Timaero Ireland Limited v. The Boeing Company

1 THE HONORABLE RICARDO S. MARTINEZ 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE TIMAERO IRELAND LIMITED, No. 2:21-00488-RSM Plaintiff, JOINT STIPULATED MOTION AND 11 ORDER FOR LEAVE TO FILE THIRD v. AMENDED COMPLAINT UNDER SEAL THE BOEING COMPANY, Defendant.

15 INTRODUCTION 16 Pursuant to Local Civil Rule 5(g)(2), Plaintiff Timaero Ireland Limited (“Timaero”) and Defendant The Boeing Company (“Boeing”) respectfully move this Court for leave to file Plain- tiffs’ Third Amended Complaint1 under seal because it contains excerpts from and summaries of documents which contain confidential contractual terms. Boeing’s position is that the full disclo- sure of this information is highly likely to result in harm to Boeing’s and its airline customers’ commercial interests. After Plaintiffs have filed their Third Amended Complaint, the parties will promptly meet and confer to assess which redactions could adequately protect those confidentiality concerns and file a motion to seal (if necessary) with the Court.

1 As referenced in this Motion, “Third Amended Complaint” means both the redline and clean versions of the proposed Third Amended Complaint as required under LCR 15(b).

Perkins Coie LLP STIPULATED MOTION AND ORDER FOR 1201 Third Avenue, Suite 4900 1 LCR 5(G)(3)(A) CERTIFICATION 2 The parties have met and conferred and agree about the need for initially sealing the Plain- tiffs’ forthcoming Third Amended Complaint. In accordance with Local Civil Rule 5(g)(3)(A), the undersigned counsel certify that on July 12, 2024, Alan Harrison, on behalf of Plaintiffs, and Ulrike B. Connelly, on behalf of Boeing, conferred regarding Plaintiffs’ intention to include references or excerpts of documents that contain confidential contract terms relating to the purchase and/or lease of commercial aircraft and associates services, the disclosure of which is likely to result in commercial harm to, at a minimum, Boeing and its airline customers.

9 The parties therefore agree that Plaintiffs’ Third Amended Complaint would need to be filed under seal in the first instance, subject to this Court’s approval. The parties further agree that, following Plaintiffs’ filing of the Third Amended Complaint under seal, as well as this accompa- nying stipulated motion and proposed order, (1) the parties will meet and confer to discuss appro- priate redactions to Plaintiffs’ Third Amended Complaint, and, if needed, (2) Boeing will file a motion to seal those portions of the Third Amended Complaint that warrant permanent redaction from the public record within seven days of the filing of the Third Amended Complaint. 16 LCR 5(G)(3)(B) LEGAL STANDARD AND ARGUMENT 17 When deciding whether to seal court records, courts “start with a strong presumption in favor of access to court records.” Cntr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “Nonetheless, access to judicial records is not absolute,” and a court may seal its records if there are “compelling reasons” for doing so. Kamakana v. City & County of Honolulu, 447 F.3d 22 1172, 1178–79 (9th Cir. 2006); see also Center for Auto Safety, 809 F.3d at 1101–02 (applying “compelling reasons” standard to any motion that “is more than tangentially related to the merits of a case”). Examples of “compelling reasons” include “when a court record might be used ‘to gratify private spite or promote public scandal,’ to circulate ‘libelous’ statements, or ‘as sources Perkins Coie LLP of business information that might harm a litigant’s competitive standing.’” Center for Auto Safety, 809 F.3d at 1097 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598–99 (1978)).

3 Here, sealing is warranted given the commercially sensitive nature of the excerpted agree- ments (documents with which the parties are familiar), all of which are covered by contractual confidentiality provisions. The excerpts of the agreements set out the contractual terms on which Boeing sells aircraft to customers, including the terms of delivery, pricing, and product warranties.

7 Boeing contends that it does not publicly disclose information of this kind, and that the information is particularly sensitive because Boeing and its customers negotiate contracts with the understand- ing that their commercial terms will not be disclosed to the public.

10 Boeing’s position is that disclosure of the commercially sensitive terms in the excerpted agreements would result in competitive harm to Boeing and its customers. If another aircraft man- ufacturer learns of these terms, Boeing asserts that it would be unfairly disadvantaged because the competitor could craft its offers with full knowledge of and unilateral insight into the confidential package of pricing, services, and other terms that Boeing offers its customers. That unfair ad- vantage would arise by virtue of the litigation process, not through any business advantage that the competitor earned. Likewise, Boeing maintains that disclosure of the excerpted agreements would give other airline customers access to confidential pricing, services, and other contract terms that Boeing offers. According to Boeing, such access would afford airline customers unearned leverage in negotiations with Boeing—leverage that would arise by virtue of a routine filing in a litigation unrelated to those business entities, rather than through any competitive advantage that the busi- ness entities earned.

22 Plaintiffs do not take a position at this time about whether permanent sealing is warranted, but agree it is appropriate to file the Third Amended Complaint under seal in the first instance to allow Boeing further time to assess the pleading and its need to be redacted or sealed.

25 This Court has previously approved of sealing in very similar circumstances. See, e.g., Polskie Linie Lotnicze LOT S.A. v. Boeing Co., No. C21-1449-RSM, Dkt. Nos. 44 (approving a Perkins Coie LLP redacted First Amended Complaint to be filed); 52 (approving the filing of a redacted motion to dismiss); 60 (approving the filing of a redacted opposition brief); Comair Ltd. v. Boeing Co., No. 2:23-cv-00176-RSM, Dkt. Nos. 27 (approving filing of redacted motion to dismiss), 38 (approving the filing of a redacted opposition brief). Other courts have consistently permitted parties to redact or file under seal similar contractual information on the grounds that it is commercially and com- petitive sensitive. See, e.g., KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 734 (7th Cir. 2013) (sealing “customer and pricing data”); Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (redacting “product-specific financial information”); Amgen Inc. v. Amneal Pharms. LLC, 2021 WL 4843959, at *2 (D. Del. Oct. 18, 2021) (sealing “contract price at which [manufacturer] sells the . . . product to each customer” and the “chargebacks, rebates, and dis- counts provided to each customer”); In re: Dendreon Corp. Class Action Litig., 2012 WL 12 12896179, at *1 (W.D. Wash. May 11, 2012) (sealing sensitive and confidential business infor- mation and trade secrets contained in motion to dismiss). As Judge Posner reasoned, information of this type gives “unearned competitive advantage” to other firms, and “the American public does not need to know [such information] in order to evaluate the handling of this litigation by the judiciary.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 261 F. Supp. 2d 1002, 1008 (N.D. 17 Ill. 2003).

18 Finally, the parties do not propose keeping the entirety of the Third Amended Complaint under seal. See LCR 5(g)(3)(B)(iii) (requiring the least restrictive method to ensure protection of material to be sealed). Instead, Boeing anticipates being able to redact only some portions of the Third Amended Complaint (as it did in both the LOT and Comair litigations).

22 CONCLUSION 23 For the foregoing reasons, the parties respectfully request that this Court order the Third Amended Complaint be filed under seal. Within seven days of the Court’s order sealing the initial filing, Boeing will file a motion to seal to propose more limited redactions sufficient to protect its interests.

Perkins Coie LLP 1 IT IS SO STIPULATED by and between the Parties.

3 RESPECTFULLY SUBMITTED this 12th day By: s/ Ulrike B. Connelly________________ of July, 2024. Kathleen M. O’Sullivan, WSBA No. 27850 4 Harry H. Schneider, Jr., WSBA No. 9404 I certify that this motion/memorandum con- Eric B. Wolff, WSBA No. 43047 tains 1,203 words, in compliance with the Lo- Ulrike B. Connelly, WSBA No. 42478 cal Civil Rules. Marten N. King, WSBA No. 57106 6 Perkins Coie LLP 1201 Third Avenue, Suite 4900 7 Seattle, Washington 98101-3099 Telephone: +1.206.359.8000 8 Facsimile: +1.206.359.9000 KO’[email protected] 9 [email protected] [email protected] 10 [email protected] [email protected] Attorneys for Defendant The Boeing Company 13 By: _s/ Alan Harrison___________________ Alan Harrison, pro hac vice 14 600 Summer Street Stamford, Connecticut 06901 15 Telephone: +1.203.703.0800 Facsimile:+1.203.703.0801 16 [email protected] 17 Gregory J. Hollon, WSBA No. 26311 Timothy B. Fitzgerald, WSBA No. 45103 18 600 University Street, Suite 2700 Seattle, Washington 98101 19 Phone: +1.206.467.1816 Fax: +1.206.624.5128 20 [email protected] [email protected] Attorneys for Plaintiff

Perkins Coie LLP 1 ORDER 2 Based on the stipulated motion, the Court hereby DIRECTS the Clerk of the Court to maintain under seal Plaintiffs’ Third Amended Complaint.

5 Boeing will file a motion to seal within seven days of this order to propose redactions to the Third Amended Complaint.

8 DATED this 15th day of July, 2024.

A 11 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE

Perkins Coie LLP