Zinger v. Bai Brands, LLC

1001 PAGE MILL ROAD AUSTIN NEW YORK BUILDING ONE, SUITE 200 BRUSSELS PALO ALTO BAKER BOTTS LLP PALO ALTO, CALIFORNIA DALLAS RIYADH 94304-1007 DUBAI SAN FRANCISCO HOUSTON SINGAPORE TEL +1 650.739.7500 LONDON WASHINGTON FAX +1 650.739.7699 BakerBotts.com November 14, 2025 VIA ECF Cheryl Cauley TEL: 6507397557 Honorable Arun Subramanian i P30 b . oo [email protected] United States District Court Southern District of New York Pearl Street, Courtroom 15A New York, NY 10007 Re: Zinger v. Bai Brands, LLC; Case No. 24-cv-3993 — Letter Motion to Seal Dear Judge Subramanian: Pursuant to Sections 11(C)(i1) and (111) of this Court’s procedures, Section 6 of the S.D.N.Y. Electronic Case Filing Rules, and the Protective Order entered in this matter (ECF 31), Defendant Bai Brands, LLC (“Bai” or “Defendant”) requests that the designated portions of Defendant’s Reply in Support of its Motion for Summary Judgment (“Reply”), as □□□□ as the designated portions of Defendant’s Response to Plaintiff's Statement of Additional Material Facts (“Response to PSUF”) that refer to or describe documents filed under seal or other confidential material be sealed. Bai’s request is narrowly tailored, only requesting to seal limited portions of the materials above that reflect confidential material. Such confidential portions are shown in green highlight in the sealed versions of the filings.

While federal courts recognize a general common law right of public access to court records and proceedings, the right of access is not absolute, and courts have discretion to deny such public access where appropriate. Nixon v. Warner Commce’ns, Inc., 435 U.S. 589, 597-99 (1978)). “To determine whether documents should be placed under seal, a court must balance the public’s interest in access to judicial documents against the privacy interests of those resisting disclosure.” In re Utica Mut. Ins. Co. v. INA Reinsurance Co., 468 F. App’x 37, 39 (2d Cir. 2012) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006)).

Court documents may be sealed to avert “[p]otential damage from the release of sensitive business information” and protect from the disclosure of information that may harm a business’s ability to compete in the future. Bergen Brunswig Corp. v. vax Corp., No. 97-CV-2003, 1998 WL 113976, at *3 (S.D.N.Y. Mar. 12, 1998) (collecting cases); Standard v. Fin. Indus. Regulatory Auth., Ind., 347 F. App’x 615, 617 (2d Cir. 2009) (affirming district court’s sealing on grounds that the party’s “interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access”); Automated Mgmt. Sys., Inc. v. Rappaport Hertz Cherson Rosenthal, P.C., No. 16-CV-04762, 2022 WL 1450737 at *2 (S.D.N.Y. May 9, 2022) (granting motion to seal confidential business documents that revealed the party’s source code and software functions and noting that “[i]n the context of business documents like those at issue here, a party may overcome the presumption of access upon a showing of higher values such as ‘the BAKER BOTTS we _2- protection of sensitive, competitive, or proprietary business information’”) (citing Whittaker v. MAR Fund Mgmt. LLC, No. 20-CV-7599, 2021 WL 4441524, at *2 (S.D.N.Y. Sept. 28, 2021)).

Sealing and Redaction Justification — Bai Reply and Response to Plaintiff’s Statement of Additional Material Facts): The designated portions of the Reply and Response to PSUF disclose sensitive business information, as detailed below, including internal and non-public market research and marketing strategy information, and information regarding the preparation of the erythritol used in the Bai Waters based on confidential and proprietary information from third- party suppliers, all from the past several years. Disclosure of this information would allow competitors access to Bai’s internal marketing strategy information, confidential market research, and details regarding the preparation of an ingredient in the Bai Waters, which may harm □□□□□ ability to compete in the future.

Courts in this District routinely recognize that these types of materials are appropriately maintained under seal. See, e.g., Playtex Prods., LLC v. Munchkin, Inc., No. 14-CV-1308, 2016 WL 1276450, at *11 (S.D.N.Y. Mar. 29, 2016) (granting motion to seal information related to testing, sales and revenue, qualitative market research, and research and development for new products); GoSMILE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50 (S.D.N.Y. 2011) (noting that “material concerning the defendants’ marketing strategies [and] product development” was “highly proprietary” and could “remain under seal”); Grayson v. Gen. Elec. Co., No. 3:13-CV-1799, 2017 WL 923907, at *3 (D. Conn. Mar. 7, 2017) (finding that disclosure of documents reflecting “the amount of [product] sold relates directly to confidential information about pricing and profit, and disclosure thereof could cause defendant competitive harm’’).

Specifically, Bai seeks to redact and file under seal the portions of its Reply and Response to PSUF that describe the following: 1. Bai’s confidential market research, marketing strategy, and competitive strategy in the marketplace.

2. Confidential third-party information about the preparation of an ingredient in the Bai Waters.

The portions of Bai’s Reply and Response to PSUF that refer to or describe this material should be redacted and maintained under seal, as they contain confidential, sensitive, and competitive business information related to Bai’s marketing strategies, market research, and the preparation of a sweetener used in the Bai Waters. See Playtex Prods, 2016 WL 1276450, at *11; GoSMiLE, Inc., 769 F. Supp. 2d at 649-50; DoorDash, Inc., 2024 WL 4285682, at *3; Grayson, 2017 WL 923907, at *3.

BAKER BOTTS ur _3- Respectfully submitted, GRANTED.

The Clerk of Court is respectfully directed to terminate /s/ Cheryl Caule y y the motion at ECF No. 113.

Cheryl Cauley SO ORDERED.

Arun Subramanian, U.S.D,J.

Date: November 18, 2025