1 THE HONORABLE RICARDO S. MARTINEZ 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 AAA MAX | LIMITED, AAA MAX 2 No. 2:23-cv-01356-RSM 10 || LIMITED, AAA MAX 3 LIMITED, AAA MAX 4 LIMITED, AAA B787 2 LIMITED JOINT STIPULATED MOTION AND 11 || and AAA B787 3 LIMITED, ORDER FOR LEAVE TO FILE AMENDED COMPLAINT UNDER 12 Plaintiffs, SEAL 13 v. NOTE ON MOTION CALENDAR: February 29, 2024 14 || THE BOEING COMPANY, 15 Defendant. 16 Pursuant to Local Civil Rule 5(g)(2), Plaintiffs AAA Max 1 Limited, AAA Max 2 Limited, 17 AAA Max 3 Limited, AAA Max 4 Limited, AAA B787 2 Limited, and AAA B787 3 Limited 18 (“Plaintiffs”) and Defendant The Boeing Company (“Boeing”) respectfully move this Court for 19 leave to file Plaintiffs’ Amended Complaint under seal because it contains excerpts from and sum- 20 maries of documents which contain confidential contractual terms. Boeing’s position 1s that the 21 full disclosure of this information is highly likely to result in harm to Boeing’s and its airline 22 customers’ commercial interests. After Plaintiffs have filed the Amended Complaint, the parties 23 will promptly meet and confer to assess which redactions could adequately protect those confiden- 24 tiality concerns and file a motion to seal (if necessary) with the Court. 25 26
Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 LCR 5(G)(3)(A) CERTIFICATION 2 The parties have met and conferred and agree about the need for initially sealing the Plain- 3 || tiffs’ forthcoming Amended Complaint. In accordance with Local Civil Rule 5(g)(3)(A), the un- 4 || dersigned counsel certify that on February 27 and 28, 2024, Michael Hatley, on behalf of Plaintiffs, 5 || and Ulrike B. Connelly and Marten King, on behalf of Boeing, conferred regarding Plaintiffs’ 6 || intention to include references or excerpts of documents that contain confidential contract terms 7 || relating to the purchase and/or lease of commercial aircraft and associates services, the disclosure 8 || of which is likely to result result in commercial harm to, at a minimum, Boeing and its airline 9 || customers. 10 The parties therefore agree that Plaintiffs’ Amended Complaint would need to be filed 11 || under seal in the first instance, subject to this Court’s approval. The parties further agree that, 12 || following Plaintiffs’ filing of the Amended Complaint under seal, as well as this accompanying 13 || stipulated motion and proposed order, (1) the parties will meet and confer to discuss appropriate 14 || redactions to Plaintiffs’ Amended Complaint, and, if needed, (2) Boeing will file a motion to seal 15 || those portions of the Amended Complaint that warrant permanent redaction from the public record 16 || within seven days of the filing of the Amended Complaint. 17 LCR 5(G)(3)(B) LEGAL STANDARD AND ARGUMENT 18 When deciding whether to seal court records, courts “start with a strong presumption in 19 || favor of access to court records.” Cntr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 20 || (9th Cir. 2016) (quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 21 || 2003)). “Nonetheless, access to judicial records is not absolute,” and a court may seal its records 22 || if there are “compelling reasons” for doing so. Kamakana v. City & County of Honolulu, 447 F.3d 23 || 1172, 1178-79 (9th Cir. 2006); see also Center for Auto Safety, 809 F.3d at 1101-02 (applying 24 || “compelling reasons” standard to any motion that “is more than tangentially related to the merits 25 || of a case”). Examples of “compelling reasons” include “when a court record might be used ‘to 26 || gratify private spite or promote public scandal,’ to circulate ‘libelous’ statements, or ‘as sources Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 || of business information that might harm a litigant’s competitive standing.’” Center for Auto Safety, 2 || 809 F.3d at 1097 (quoting Nixon v. Warner Comme’ns, Inc., 435 U.S. 589, 598-99 (1978)). 3 Here, sealing is warranted given the commercially sensitive nature of the excerpted agree- 4 || ments (documents with which the parties are familiar), all of which are covered by contractual 5 || confidentiality provisions. The excerpts of the agreements set out the contractual terms on which 6 || Boeing sells aircraft to customers, including the terms of delivery, pricing, rebates, and product 7 || warranties. Boeing contends that it does not publicly disclose information of this kind, and that the 8 || information is particularly sensitive because Boeing and its customers negotiate contracts with the 9 || understanding 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 11 || agreements would result in competitive harm to Boeing and its customers. If another aircraft man- 12 || ufacturer learns of these terms, Boeing asserts that it would be unfairly disadvantaged because the 13 || competitor could craft its offers with full knowledge of and unilateral insight into the confidential 14 || package of pricing, services, and other terms that Boeing offers its customers. That unfair ad- 15 || vantage would arise by virtue of the litigation process, not through any business advantage that the 16 || competitor earned. Likewise, Boeing maintains that disclosure of the excerpted agreements would 17 || give other airline customers access to confidential pricing, services, and other contract terms that 18 || Boeing offers. According to Boeing, such access would afford airline customers unearned leverage 19 || in negotiations with Boeing—leverage that would arise by virtue of a routine filing in a litigation 20 || unrelated to those business entities, rather than through any competitive advantage that the busi- 21 || ness entities earned. 22 Plaintiffs do not take a position at this time about whether permanent sealing is warranted, 23 || but agree it is appropriate to file the Amended Complaint under seal in the first instance to allow 24 || 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., 26 || Polskie Linie Lotnicze LOT S.A. v. Boeing Co., No. C21-1449-RSM, Dkt. Nos. 44 (approving a Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 || redacted First Amended Complaint to be filed); 52 (approving the filing of a redacted motion to 2 || dismiss); 60 (approving the filing of a redacted opposition brief); Comair Ltd. v. Boeing Co., No. 3 || 2:23-cv-00176-RSM, Dkt. Nos. 27 (approving filing of redacted motion to dismiss), 38 (approving 4 || the filing of a redacted opposition brief). Other courts have consistently permitted parties to redact 5 || or file under seal similar contractual information on the grounds that it is commercially and com- 6 || petitive sensitive. See, e.g., KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 734 (7th 7 || Cir. 2013) (sealing “customer and pricing data”); Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 8 || 1223 (Fed. Cir. 2013) (redacting “product-specific financial information”); Amgen Inc. v.
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1 THE HONORABLE RICARDO S. MARTINEZ 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 AAA MAX | LIMITED, AAA MAX 2 No. 2:23-cv-01356-RSM 10 || LIMITED, AAA MAX 3 LIMITED, AAA MAX 4 LIMITED, AAA B787 2 LIMITED JOINT STIPULATED MOTION AND 11 || and AAA B787 3 LIMITED, ORDER FOR LEAVE TO FILE AMENDED COMPLAINT UNDER 12 Plaintiffs, SEAL 13 v. NOTE ON MOTION CALENDAR: February 29, 2024 14 || THE BOEING COMPANY, 15 Defendant. 16 Pursuant to Local Civil Rule 5(g)(2), Plaintiffs AAA Max 1 Limited, AAA Max 2 Limited, 17 AAA Max 3 Limited, AAA Max 4 Limited, AAA B787 2 Limited, and AAA B787 3 Limited 18 (“Plaintiffs”) and Defendant The Boeing Company (“Boeing”) respectfully move this Court for 19 leave to file Plaintiffs’ Amended Complaint under seal because it contains excerpts from and sum- 20 maries of documents which contain confidential contractual terms. Boeing’s position 1s that the 21 full disclosure of this information is highly likely to result in harm to Boeing’s and its airline 22 customers’ commercial interests. After Plaintiffs have filed the Amended Complaint, the parties 23 will promptly meet and confer to assess which redactions could adequately protect those confiden- 24 tiality concerns and file a motion to seal (if necessary) with the Court. 25 26
Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 LCR 5(G)(3)(A) CERTIFICATION 2 The parties have met and conferred and agree about the need for initially sealing the Plain- 3 || tiffs’ forthcoming Amended Complaint. In accordance with Local Civil Rule 5(g)(3)(A), the un- 4 || dersigned counsel certify that on February 27 and 28, 2024, Michael Hatley, on behalf of Plaintiffs, 5 || and Ulrike B. Connelly and Marten King, on behalf of Boeing, conferred regarding Plaintiffs’ 6 || intention to include references or excerpts of documents that contain confidential contract terms 7 || relating to the purchase and/or lease of commercial aircraft and associates services, the disclosure 8 || of which is likely to result result in commercial harm to, at a minimum, Boeing and its airline 9 || customers. 10 The parties therefore agree that Plaintiffs’ Amended Complaint would need to be filed 11 || under seal in the first instance, subject to this Court’s approval. The parties further agree that, 12 || following Plaintiffs’ filing of the Amended Complaint under seal, as well as this accompanying 13 || stipulated motion and proposed order, (1) the parties will meet and confer to discuss appropriate 14 || redactions to Plaintiffs’ Amended Complaint, and, if needed, (2) Boeing will file a motion to seal 15 || those portions of the Amended Complaint that warrant permanent redaction from the public record 16 || within seven days of the filing of the Amended Complaint. 17 LCR 5(G)(3)(B) LEGAL STANDARD AND ARGUMENT 18 When deciding whether to seal court records, courts “start with a strong presumption in 19 || favor of access to court records.” Cntr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 20 || (9th Cir. 2016) (quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 21 || 2003)). “Nonetheless, access to judicial records is not absolute,” and a court may seal its records 22 || if there are “compelling reasons” for doing so. Kamakana v. City & County of Honolulu, 447 F.3d 23 || 1172, 1178-79 (9th Cir. 2006); see also Center for Auto Safety, 809 F.3d at 1101-02 (applying 24 || “compelling reasons” standard to any motion that “is more than tangentially related to the merits 25 || of a case”). Examples of “compelling reasons” include “when a court record might be used ‘to 26 || gratify private spite or promote public scandal,’ to circulate ‘libelous’ statements, or ‘as sources Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 || of business information that might harm a litigant’s competitive standing.’” Center for Auto Safety, 2 || 809 F.3d at 1097 (quoting Nixon v. Warner Comme’ns, Inc., 435 U.S. 589, 598-99 (1978)). 3 Here, sealing is warranted given the commercially sensitive nature of the excerpted agree- 4 || ments (documents with which the parties are familiar), all of which are covered by contractual 5 || confidentiality provisions. The excerpts of the agreements set out the contractual terms on which 6 || Boeing sells aircraft to customers, including the terms of delivery, pricing, rebates, and product 7 || warranties. Boeing contends that it does not publicly disclose information of this kind, and that the 8 || information is particularly sensitive because Boeing and its customers negotiate contracts with the 9 || understanding 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 11 || agreements would result in competitive harm to Boeing and its customers. If another aircraft man- 12 || ufacturer learns of these terms, Boeing asserts that it would be unfairly disadvantaged because the 13 || competitor could craft its offers with full knowledge of and unilateral insight into the confidential 14 || package of pricing, services, and other terms that Boeing offers its customers. That unfair ad- 15 || vantage would arise by virtue of the litigation process, not through any business advantage that the 16 || competitor earned. Likewise, Boeing maintains that disclosure of the excerpted agreements would 17 || give other airline customers access to confidential pricing, services, and other contract terms that 18 || Boeing offers. According to Boeing, such access would afford airline customers unearned leverage 19 || in negotiations with Boeing—leverage that would arise by virtue of a routine filing in a litigation 20 || unrelated to those business entities, rather than through any competitive advantage that the busi- 21 || ness entities earned. 22 Plaintiffs do not take a position at this time about whether permanent sealing is warranted, 23 || but agree it is appropriate to file the Amended Complaint under seal in the first instance to allow 24 || 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., 26 || Polskie Linie Lotnicze LOT S.A. v. Boeing Co., No. C21-1449-RSM, Dkt. Nos. 44 (approving a Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 || redacted First Amended Complaint to be filed); 52 (approving the filing of a redacted motion to 2 || dismiss); 60 (approving the filing of a redacted opposition brief); Comair Ltd. v. Boeing Co., No. 3 || 2:23-cv-00176-RSM, Dkt. Nos. 27 (approving filing of redacted motion to dismiss), 38 (approving 4 || the filing of a redacted opposition brief). Other courts have consistently permitted parties to redact 5 || or file under seal similar contractual information on the grounds that it is commercially and com- 6 || petitive sensitive. See, e.g., KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 734 (7th 7 || Cir. 2013) (sealing “customer and pricing data”); Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 8 || 1223 (Fed. Cir. 2013) (redacting “product-specific financial information”); Amgen Inc. v. Amneal 9 || Pharms. LLC, 2021 WL 4843959, at *2 (D. Del. Oct. 18, 2021) (sealing “contract price at which 10 || [manufacturer] sells the... product to each customer” and the “chargebacks, rebates, and dis- 11 || 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- 13 || mation and trade secrets contained in motion to dismiss). As Judge Posner reasoned, information 14 || of this type gives “unearned competitive advantage” to other firms, and “the American public does 15 || not need to know [such information] in order to evaluate the handling of this litigation by the 16 || judiciary.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 261 F. Supp. 2d 1002, 1008 (N.D. 17 || Til. 2003). 18 Finally, the parties do not propose keeping the entirety of the Amended Complaint under 19 |! seal. See LCR 5(g)(3)(B)(iii) (requiring the least restrictive method to ensure protection of material 20 || to be sealed). Instead, Boeing anticipates being able to redact only some portions of the Amended 21 || 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 24 || Amended Complaint be filed under seal. Within seven days of the Court’s order sealing the initial 25 || filing, Boeing will file a motion to seal to propose more limited redactions sufficient to protect its 26 || interests. Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 2 IT IS SO STIPULATED by and between the parties. 3 || DATED: February 29, 2024 4 By: s/ Robert M. Sulkin By: s/ Ulrike B. Connelly 5 Malaika M. Eaton, Bar No. 32837 Ulrike B. Connelly, Bar No. 42478 Michael P. Hatley, Bar No. 57500 Eric B. Wolff, Bar No. 43047 6 Robert M. Sulkin, Bar No. 15425 Erik B. Kundu, Bar No. 56746 MeNaul Ebel Nawrot & Helgren PLLC Marten N. King, Bar No. 57106 7 600 University Street, Suite 2700 Perkins Coie LLP Seattle, Washington 98101-3143 1201 Third Avenue, Suite 4900 g Telephone: 206.467.1816 Seattle, Washington 98101-3099 meaton@menaul.com Telephone: 206.359.8000 9 mhatley@mcenaul.com Facsimile: 206.359.9000 rsulkin@menaul.com uconnelly@perkinscoie.com 10 ewolff@perkinscoie.com Mitchell A. Orpett (pro hac vice) ekundu@perkinscoie.com Tribler Orpett & Myer, P.C. mking@perkinscoie.com 225 West Washington Street, Suite 2550 D Chicago, IL 60606 Michael R. Huston (pro hac vice) Telephone: 312.201.6400 Perkins Coie LLP B maorpett@tribler.com 700 13th Street, NW, Suite 800 Washington, DC 20005 14 Attorneys for Plaintiffs AAA Max I Lim- mhuston@perkinscoie.com ited, AAA Max 2 Limited, AAA Max 3 15 Limited, AAA Max 4 Limited, AAA B787 Attorneys for Defendant The Boeing 2 Limited and AAA B787 3 Limited Company 16 17 18 19 20 21 22 23 24 25 26
Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 ORDER 2 IT IS SO ORDERED. 3 Based on the stipulated motion, the Court hereby DIRECTS the Clerk of the Court to main- 4 || tain under seal Plaintiffs’ Amended Complaint. 5 Boeing will file a motion to seal within seven days of this order to propose redactions to 6 || the Amended Complaint. 7 8 DATED this 1° day of March, 2024. 9 10 ( S | : 11 RICARDO S. MARTINEZ 12 UNITED STATES DISTRICT JUDGE 13 14 15 || Presented By: 16 || By: s/ Ulrike B. Connelly Ulrike B. Connelly, Bar No. 42478 17 Eric B. Wolff, Bar No. 43047 Erik B. Kundu, Bar No. 56746 18 Marten N. King, Bar No. 57106 Perkins Coie LLP 19 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 20 Telephone: 206.359.8000 Facsimile: 206.359.9000 21 uconnelly@perkinscoie.com ewolff@perkinscoie.com 22 ekundu@perkinscoie.com mking@perkinscoie.com 23 Michael R. Huston (pro hac vice) 24 Perkins Coie LLP 700 13th Street, NW, Suite 800 25 Washington, DC 20005 mhuston@perkinscoie.com 26
Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099
1 || Attorneys for Defendant The Boeing Company 2 || By: s/ Robert M. Sulkin Malaika M. Eaton, Bar No. 32837 3 Michael P. Hatley, Bar No. 57500 Robert M. Sulkin, Bar No. 15425 4 MeNaul Ebel Nawrot & Helgren PLLC 600 University Street, Suite 2700 5 Seattle, Washington 98101-3143 Telephone: 206.467.1816 6 meaton@menaul.com mhatley@mcenaul.com 7 rsulkin@menaul.com 8 Mitchell A. Orpett (pro hac vice) Tribler Orpett & Myer, P.C. 9 225 West Washington Street, Suite 2550 Chicago, IL 60606 10 Telephone: 312.201.6400 maorpett@tribler.com Attorneys for Plaintiffs AAA Max I Limited, AAA 12 || Max 2 Limited, AAA Max 3 Limited, AAA Max 4 Limited, AAA B787 2 Limited and AAA B787 3 13 || Limited 14 15 16 17 18 19 20 21 22 23 24 25 26
Perkins Coie LLP STIPULATED MOTION AND ORDER FOR LEAVE TO 1201 Third Avenue, Suite 4900 FILE UNDER SEAL Seattle, WA 98101-3099