Cyprium Therapeutics, Inc. v Curia Global, Inc. (2023 NY Slip Op 51467(U))
[*1]
| Cyprium Therapeutics, Inc. v Curia Global, Inc. |
| 2023 NY Slip Op 51467(U) |
| Decided on February 27, 2023 |
| Supreme Court, Albany County |
| Platkin, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 27, 2023
Supreme Court, Albany County
Cyprium Therapeutics, Inc., Petitioner,
against
Curia Global, Inc., Respondent.
|
Index No. 905902-22
DLA Piper LLP (US)
Attorneys for Petitioner
(Brett Ingerman, of counsel)
6225 Smith Avenue
Baltimore, Maryland 21209
and
(Steven M. Rosato, of counsel)
1251 Avenue of the Americas
New York, New York 10020
Nixon Peabody LLP
Attorneys for Respondent
(Daniel J. Hurteau, of counsel)
677 Broadway, 10th Floor
Albany, New York 12207
and
(Richard H. Tilghman IV and Kathleen Mallon, of counsel)
70 W. Madison St., Suite 5200
Chicago, Illinois 60602
Richard M. Platkin, J.
Pending before the Court is the application of respondent Curia Global, Inc. ("Curia") to permanently seal the record of this special proceeding pursuant to 22 NYCRR 216.1. Petitioner Cyprium Therapeutics, Inc. ("Cyprium") opposes the application.
BACKGROUNDOn August 4, 2022, Cyprium commenced this special proceeding under CPLR 7502 (c), seeking a preliminary injunction in aid of arbitration (see NYSCEF Doc No. 1 ["Petition"]). Cyprium sought to enjoin Curia, a contract drug manufacturer, from terminating or ceasing performance under a master services agreement (see id., Ex. 1 ["MSA"]) and two work orders (see id., Exs. 2-3 ["Work Orders"]).
The MSA and Work Orders obliged Curia to manufacture and deliver two batches of Copper Histidinate, "a groundbreaking therapy developed by Cyprium to treat infants born with a rare genetic disease known as Menkes disease (the 'Product'), in connection with Cyprium's New Drug Application ('NDA') pending before the U.S. Food and Drug Administration ('the FDA')" (Petition, ¶ 1). "Infants born with [Menkes] disease, if untreated, presently have a median survival rate of just 16 months. There are currently no FDA approved treatments for this disease" (id., ¶ 6).[FN1]
At the outset, Cyprium filed a proposed Order to Show Cause ("OTSC") bringing on an application to seal the Petition (see NYSCEF Doc Nos. 2-4). Cyprium's counsel explained that the MSA imposes a confidentiality obligation on the parties, and Cyprium did not want to run afoul of that obligation by filing the MSA and Work Orders, which are exhibits to the Petition, on a public court docket (see NYSCEF Doc No. 3, ¶¶ 2-5).
The Court signed the proposed OTSC, which included a temporary sealing order, and gave the motion a return date of August 26, 2022 (see NYSCEF Doc No. 7). In the meantime, the entire docket of this proceeding was temporarily sealed.
On August 26, 2022, Curia moved to adjourn the return date of Cyprium's sealing motion and establish September 9, 2022 as the deadline for its contemplated sealing motion (see NYSCEF Doc No. 77).
Curia then moved on September 9, 2022 for an order sealing 32 docket entries in their entirety and substantially redacting 18 others (see NYSCEF Doc No. 81, pp. 3-4).
The documents that Curia proposed to seal included the relevant contracts: the MSA, the Work Orders and a Quality Agreement (see Petition, ¶ 50 & Ex. 5).[FN2]
Curia also sought to seal letters, emails, meeting minutes and other documentary evidence submitted in connection with the preliminary injunction application, and Curia proposed extensive redactions to the Petition, legal briefs, fact affidavits and even the transcripts of oral argument (see NYSCEF Doc No. 83).
Curia's sealing motion was supported by the affidavit of Anish Parikh, a global vice president (see NYSCEF Doc No. 82 ["Parikh Aff."]). Parikh averred that the requested sealing "is necessary to prevent the disclosure of Curia's proprietary, confidential business information, the disclosure of which would seriously harm Curia's business" (id., ¶ 6). Parikh further averred that "[d]isclosure of the details of the MSA could compromise Curia's relationship with [] actual [*2]and potential clients" (id., ¶ 8).
In a Decision & Order dated September 12, 2022, the Court entered a preliminary injunction in aid of arbitration. During the pendency of the arbitration, Curia was enjoined from terminating the MSA, and Curia's purported termination of June 9, 2022 was stayed (see NYSCEF Doc No. 84 ["PI Decision"], pp. 32-33).
Cyprium responded to the sealing motion through a letter brief opposing Curia's suggestion that the entire record "should be permanently sealed 'because arbitration is the proper forum'" (NYSCEF Doc No. 87, p. 1, quoting NYSCEF Doc No. 81, p. 5). Cyprium further argued that Curia's "claimed need for confidentiality is vastly outweighed by the public's powerful interest in open court proceedings" (id. [internal quotation marks and citation omitted]). Nonetheless, Cyprium "defer[red] to the Court's judgment as to whether any aspect of Curia's sealing application is valid" (id.).
Following review of Curia's proposal, the Court convened a conference with counsel on October 21, 2022. While recognizing that there might be good cause for sealing docket entries containing highly confidential business information, the Court expressed concern that Curia's sealing proposal was vastly overbroad and would deprive the public of a coherent record of the allegations, evidence and arguments relied upon by the Court in granting the unusual remedy of an injunction in aid of arbitration. Given the important countervailing interests asserted by Curia, however, the Court accorded Curia the opportunity to submit a more narrowly drawn proposal.
Curia submitted a revised sealing proposal on November 18, 2022 (see NYSCEF Doc Nos. 111-113). Under its new proposal, 30 docket entries would be sealed entirely, including the MSA, Work Orders and Quality Agreement, and 42 other documents would be redacted.
Curia wrote on November 28, 2022 to notify the Court "of new information that makes maintaining confidentiality of paramount importance" (NYSCEF Doc No. 114). Curia referred to a letter that Cyprium's chief executive wrote to affiliates of Curia, threatening to embarrass Curia and its owners through "'a detailed description of Curia's . . . illegal and unconscionable acts'" (id., p. 1 [emphasis omitted], quoting NYSCEF Doc Nos. 115-116).
By letter brief dated December 2, 2022, Cyprium stated that its "position continues to be that no part of the record in this case should be [permanently] sealed or redacted" (NYSCEF Doc No. 121, p. 1). Cyprium asserted that Curia's "revised proposal is equally flawed," and Curia failed to meet its burden of showing compelling circumstances warranting the sealing of the material that the Court relied upon in rendering the PI Decision (id., p. 2).
On December 21, 2022, Curia submitted a letter brief requesting, first and foremost, that the Court seal the entire record of this proceeding because the matter properly belongs in arbitration (see NYSCEF Doc No. 124 ["Reply"], pp. 2-3). As a fallback, Curia contended that the Court should accept its original September 9, 2022 sealing proposal (see id., pp. 3-6). Finally, as a second-level fallback, Curia asserted that if the Court is disinclined to seal the entire record or adopt Curia's September 9, 2022 proposal, the Court should adopt its revised proposal of November 18, 2022 (see id., pp. 6-8).
ANALYSISUnder 22 NYCRR 216.1 (a), court records may be sealed "upon a written finding of good cause." "In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties" (id.).
"The statutory and common law of this State have long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly" (Matter of Brownstone, 191 AD2d 167, 168 [1st Dept 1993]). "Inasmuch as confidentiality is the exception and not the rule, the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access" (Manufacturers & Traders Trust Co. v Client Server Direct, Inc., 156 AD3d 1364, 1366 [4th Dept 2017] [internal quotation marks and citation omitted]).
Thus, the proponent of sealing must "overcome the broad presumption of public entitlement to judicial proceedings and court records" (Norddeutsche Landesbank Girozentrale v Tilton, 165 AD3d 447, 448 [1st Dept 2018]) and demonstrate that "public access . . . will likely result in harm to a compelling interest" (Mancheski v Gabelli Group Capital Partners, 39 AD3d 499, 502 [2d Dept 2007]).
After "weigh[ing] the competing interests of the public and the parties," a sealing order may be entered "only in the prudent exercise of the court's discretion" (O'Reilly v Klar, 167 AD3d 919, 920 [2d Dept 2018]), such as where "the need for secrecy outweighs the public's right to access" (Applehead Pictures LLC v Perelman, 80 AD3d 181, 191-192 [1st Dept 2010]; see Matter of R.R., 153 Misc 2d 747, 748-749 [Sur Ct, Rensselaer County 1992] [Ceresia, Jr., S.]). But "neither the potential for embarrassment or damage to reputation, nor the general desire for privacy, constitutes good cause to seal court records" (Mosallem v Berenson, 76 AD3d 345, 351 [1st Dept 2010]).
A. Sealing of Entire RecordDespite having moved for the sealing of "certain court records" (NYSCEF Doc No. 80 [capitalization omitted]) and specifically identified those court records in its memorandum of law and moving affidavit (see NYSCEF Doc No. 81, pp. 3-4, 14; Parikh Aff., ¶¶ 9-11), Curia now contends that the entire record of this proceeding should be sealed because the matter properly belongs in arbitration.
Curia supports its argument with cases from Supreme Court, New York County in which the record of a CPLR article 75 proceeding involving an arbitral dispute was sealed, "since the matter properly belongs in arbitration . . . [and] the material filed with the court belongs not in the court, but in the files of the arbitrating body" (Feffer v Goodkind, Wechsler, Labaton & Rudoff, 152 Misc 2d 812, 815 [Sup Ct, NY County 1991] [compelling arbitration], affd 183 AD2d 678 [1st Dept 1992]; see JetBlue Airways Corp. v Stephenson, 31 Misc 3d 1241[A], 2010 NY Slip Op 52405[U], *7 [Sup Ct, NY County 2010] [remanding to arbitration], affd 88 AD3d 567 [1st Dept 2011]; Matter of Cohen v S.A.C. Capital Advisors LLC, 11 Misc 3d 1054[A], 2006 NY Slip Op 50205[U], *9 [Sup Ct, NY County 2006] [declining to consolidate pending arbitral proceedings]).
This proceeding, however, is unlike the authorities relied upon by Curia, which involved questions of arbitrability. In Feffer, for example, the court sealed the record of a special proceeding to compel arbitration of a partnership dispute where the dispute was arbitral "[w]ithout question . . . and where the material [to be sealed] may have been inserted into court documents for the sole purpose of extracting a settlement of the action" (152 Misc 2d at 814-815). Likewise, JetBlue involved a dispute concerning the applicability of the Federal Arbitration Act ("FAA") to the employment contracts of airline pilots in the context of an application to stay arbitration (see 2010 NY Slip Op 52405[U], *1), and Cohen addressed the [*3]interplay between the FAA and general choice-of-law provisions in declining to consolidate arbitral proceedings (see 2006 NY Slip Op 50205[U], *1).
The arbitrability of the parties' disputes under the MSA and Work Orders, in contrast, has never been in question. The focus of this proceeding always has been on Cyprium's motion for a judicial injunction governing the parties' business dealings during the pendency of the arbitral process, a remedy expressly authorized by CPLR 7502 (c) and not foreclosed by the MSA (see PI Decision, p. 11).
Cyprium's application for a preliminary injunction in aid of arbitration obliged the Court to adjudicate (1) whether the requested injunction was necessary to avert imminent and irreparable harm to Cyprium, (2) whether the injunction was necessary to prevent an eventual arbitral award in Cyprium's favor from being rendered ineffectual, (3) whether Cyprium was likely to obtain a favorable arbitral award, and (4) whether the equities of the parties and the general public supported the grant of injunctive relief (see id., pp. 12-29).
After reviewing the allegations, arguments and evidence submitted by the parties, including the contracts, legal briefs, fact affidavits, emails, letters, business records and transcripts of court proceedings, the Court found that Cyprium had established these four essential elements. Accordingly, the Court entered an injunction on September 12, 2022 enjoining Curia from terminating the MSA during the pendency of the arbitration (see id., p. 33).
None of the cases cited by Curia involved a judicial injunction governing the primary conduct of parties outside of the arbitral process. Issuance of such an injunction was a matter that properly belonged in the Court (see id., pp. 9-12),[FN3]
and the documents that were filed with the Court and relied upon by the Court are court records, not records of the arbitrator (cf. Feffer, 152 Misc 2d at 815).[FN4]
The authorities relied upon by Curia are further distinguishable because the sealed materials in those cases did not implicate matters of public interest (see id. at 815-816; JetBlue, 2010 NY Slip Op 52405[U], *7 ["no countervailing public interest that would be furthered by . . . disclosure"]; accord Cohen, 2006 NY Slip Op 50205[U], *9).
In contrast, this proceeding involves an injunction pertaining to the manufacture and commercialization of a lifesaving drug for babies and infants, which clearly implicates the public interest. Indeed, the Court was obliged to discern and give effect to the public interest in determining whether the equities tipped in favor of an injunction (see PI Decision, p. 26), and each side sought to support its litigation positions by reference to the public interest (see id., p. 29; see also NYSCEF Doc No. 9, pp. 19-21; Doc No. 14, pp. 23-24; Doc No. 65, p. 10).
The Court therefore finds that there is a strong public interest in access to the allegations, evidence and arguments upon which the Court enjoined Curia from terminating the MSA and Work Orders during the pendency of the parties' arbitration (see Danco Labs v Chemical Works of Gedeon Richter, 274 AD2d 1, 7 [1st Dept 2000] ["The public interest in openness is particularly important on matters of public concern, even if the issues arise in the context of a [*4]private dispute."]; see also Tong v S.A.C. Capital Mgt., LLC, 52 AD3d 386, 387 [1st Dept 2008] [vacating sealing order in proceeding to compel arbitration, as "[t]he factors relied upon by the (lower) court in sealing the record (did) not outweigh the public's right of access thereto"]).
Finally, the Court is unpersuaded by Curia's contention that sealing is needed to prevent Cyprium from "embarrassing Curia into a settlement" by "misrepresent[ing] . . . the substance of [the PI Decision]" and "falsely accus[ing] Curia of violating [the injunction]" (NYSCEF Doc No. 114; see Reply, pp. 1-2). Opening the record is the best way to prevent mischaracterization and allow informed judgments to be made.
Accordingly, even assuming that Curia's request for a wholesale sealing of the record is properly before the Court, Curia has failed to overcome the presumption of open access and demonstrate good cause for such relief.
B. Curia's Original Proposal of September 9, 2022Curia filed its sealing motion on September 9, 2022, following briefing and oral argument on the injunction motion, but immediately before issuance of the PI Decision. At that time, the docket contained 79 entries, and Curia proposed to seal 32 of them entirely and substantially redact another 18 entries (see NYSCEF Doc No. 81 ["Sealing Mem"], pp. 3-4).
To protect the commercial terms of the parties' agreements, Curia proposed to seal the MSA, the Work Orders and Quality Agreement entirely, and redact any discussion of the terms of those agreements from the parties' briefing, fact affidavits and the argument transcripts (see id., pp. 5-6). Curia cited the confidentiality obligations prescribed by Section 8 of the MSA, as well as the parties' agreement to arbitrate any disputes arising out of the MSA (see id., p. 6). Curia further argued that disclosure of the MSA and Quality Agreement could disrupt customer relationships and cause it to sustain competitive disadvantage (see id.).
To protect the details of the parties' business relationship, Curia proposed to seal or substantially redact the Petition, the briefs, the fact affidavits, and documentary evidence concerning the parties' disputes (see id., pp. 6-7). This includes a complete sealing of the Work Orders, the Invoices, meeting minutes, emails between Cyprium and Curia pertaining to the Work Orders, information about Curia's manufacturing facility and settlement communications (see id., p. 10). Curia contends that the sealing of such material is warranted based on (1) the broad confidentiality obligations imposed by the MSA, (2) the parties' agreement to arbitrate, (3) the likelihood that disclosure would jeopardize Curia's client relationships and put the company at a competitive disadvantage, and (4) the lack of any public interest in the information sought to be sealed (see id., pp. 10-13).
Curia also seeks to seal documents pertaining to arbitration, such as its demand for arbitration and Cyprium's counterclaims in arbitration, based on the parties' agreement to arbitrate (see id., pp. 13-14).
As the Court articulated at the October 21, 2022 conference, Curia's sealing proposal inappropriately would deny access to key materials underlying this proceeding, including: the pertinent allegations of the Petition; the contractual language upon which those allegations were based; the fact affidavits bearing on all aspects of Cyprium's injunction application; the letters emails, meeting minutes and other documentary evidence relied upon by the parties to support or oppose the application; the arguments made by the parties in their briefs and moving affirmations; and even portions of oral argument held in open court.
The Court relied on these allegations, evidence and arguments in determining issues bearing on Cyprium's entitlement to injunctive relief, including: (i) the consequences to the parties and the public if Curia's purported termination of the MSA remained in effect; (ii) whether Cyprium was likely to persuade the arbitrator that it disputed the Invoices, an issue that implicated other ongoing disputes between the parties, including their fundamental disagreement as to whether the Work Orders required Curia to produce "commercial batches" of the Product; (iii) whether Cyprium was likely to persuade the arbitrator that Curia wrongfully terminated the MSA for improper "regulatory correspondence," an issue that called for consideration of evidence regarding the inspection-readiness of Curia's manufacturing facility and the representations made by Cyprium to the FDA regarding the facility; and (iv) the harms Curia would suffer if ordered to manufacture the Product, some of which directly implicated its manufacturing facility and business operations.
As Cyprium correctly observes, the sealing of documents relied upon by a court in reaching its decision should be reserved for only the most compelling circumstances (see Matter of Gliklad v Deripaska, 185 AD3d 512, 513 [1st Dept 2020]), and Curia has failed to establish that this is such a case.
"[C]onclusory claims of the need for confidentiality . . . are insufficient to seal a record" (Matter of Hofmann, 284 AD2d 92, 94 [1st Dept 2001], citing George F. Carpinello, Public Access To Court Records In Civil Proceedings: The New York Approach, 54 Alb L Rev 93, 108-110 [1989]; accord Heng Ren Silk Rd. Invs. LLC v Duff & Phelps, LLC, 203 AD3d 659, 660 [1st Dept 2022]), but Curia offers little more than that in seeking to establish that public access to the full record of this proceeding would "likely result in harm to a compelling interest" (Mancheski, 39 AD3d at 502).
Apart from its repeated refrain that sealing is warranted "because arbitration is the proper forum" (Sealing Mem, p. 5), and its reliance on the confidentiality provisions of the MSA, which are not determinative in assessing the public's right to view court records (see Mosallem, 76 AD3d at 350; Eusini v Pioneer Elecs. [USA], Inc., 29 AD3d 623, 626 [2d Dept 2006]), the only evidence submitted by Curia is the Parikh Affidavit.
But the Parikh Affidavit is cast in the most conclusory and general terms, merely reciting that: disclosure of "Curia's proprietary, confidential business information . . . would seriously harm [its] business" (Parikh Aff., ¶ 6); disclosure of such information "could compromise Curia's relationship with its actual and potential clients, putting it at a competitive disadvantage" (id., ¶ 8); and disclosure of Curia's operations, work and pricing, which is maintained in confidence, would "jeopardize . . . relationships with its actual and potential customers" (id., ¶ 9), "harm [its] competitive advantage and disrupt its business relationships" (id., ¶ 11).[FN5]
There simply is no evidence before the Court as to how a competitor might use the information that Curia seeks to withhold or what tangible injury to Curia is likely to result from disclosure (see RDI Corp. v Charter Communications, Inc., 2022 WL 604723, *2, 2022 US Dist LEXIS 35807, *5 [SD NY, Mar. 1, 2022, 19 Civ 10929 (CM)]). Nor is there evidence as to the nature or extent of the harm that disclosure might cause to Curia's relationships with actual or [*5]potential customers.
On the other hand, "the public has a powerful interest in open court proceedings" (Mosallem, 76 AD3d at 350), and the extensive sealing and redactions proposed by Curia would deny access to key portions of the allegations, arguments and evidence relied upon by the Court in this proceeding. Curia claims that its proposal would still allow "the public . . . to know . . . the nature of the claims and defenses being asserted" (Sealing Mem., p. 9), but the Court finds that the extensive sealing and redactions proposed by Curia would render the docket unintelligible and inappropriately deprive the public of a coherent record of this litigation.
Accordingly, after weighing of the interests of the parties and the public, the Court finds, in the exercise of discretion, that Curia has failed to overcome the broad presumption of public entitlement to the record of this judicial proceeding, so as to warrant adoption of its September 9, 2022 sealing proposal.
C. Curia's Revised Proposal of November 18, 2022Curia was given the opportunity to present a revised sealing proposal, which it submitted on November 18, 2022 (see NYSCEF Doc No. 111 ["Revised Proposal"]).[FN6]
Curia requests that a total of thirty (30) docket entries be sealed in their entirety, "includ[ing] the MSA, work orders, invoices, meeting minutes, arbitration filings, and select email correspondence between the parties" (id., p. 1).
Curia also requests redactions to 42 other docket entries "focused on direct reference to MSA provisions, quoted language from sealed emails, reference to regulatory filings, pricing, production methods or other specific processes, and settlement negotiations. Of particular note, Dkt. No. 1 is the Verified Petition, which includes seven exhibits. Curia requests that, of those seven exhibits, Exhibits 1 (the MSA), 2 and 3 (the Work Orders), and 5 (the Quality Agreement) be redacted in full" (id.).[FN7]
The Court finds that the Revised Proposal does not cure the infirmities in the original proposal and inappropriately would deny access to important arguments and evidence that the Court relied upon in granting extraordinary relief in a matter affected with the public interest. For example, Curia would redact the critical language of the Work Orders regarding the nature of the manufacturing work that Curia undertook to perform, as well as the contractual language and much of the evidence bearing on the Court's determination that the arbitrator was unlikely to [*6]uphold Curia's purported termination insofar as it was based on improper regulatory communications with the FDA.
To seal such material, Curia was obliged to demonstrate a substantial likelihood of competitive harm or damage to customer relationships. For the reasons stated above, the Court finds the Parikh Affidavit's generic and conclusory attestations of competitive harm and potential damage to customer relationships to be insufficient to warrant the requested relief. Precisely the same boilerplate invocations of competitive harm and damage to customer relationships could be made in many of the disputes litigated in the Commercial Division, yet sealing is the exception and not the rule, reserved only for the most compelling circumstances.
Finally, the Court has considered whether any discrete elements of Curia's revised sealing proposal should be adopted, but finds pruning to be infeasible and unwarranted. Curia already has been accorded the opportunity to prune its overbroad proposal of September 9, 2022 in response to the Court's concerns, and the intricate and voluminous nature of the docket would make pruning an "onerous and unwarranted burden on the court" (Eusini, 29 AD3d at 635).[FN8]
More fundamentally, given that the Parikh Affidavit paints all of Curia's confidential business and customer information with the same broad brush, there is no record basis upon which the Court could attempt to craft a more limited sealing order.
The Court therefore finds, in the exercise of discretion, that the provisional sealing of the record should be lifted in its entirety and the full record of this proceeding opened to the public. However, at Curia's request, the Court will delay the effectiveness of its unsealing order for a brief period to allow Curia to pursue its appellate remedies if so inclined (see Reply, p. 8).
CONCLUSIONBased on the foregoing, it is
ORDERED that Curia's sealing motion (Motion #6) is denied; and it is further
ORDERED that Curia's motion for an extension of time (Motion #5) is granted, nunc pro tunc; and it is further
ORDERED that Cyprium's sealing motion (Motion #1) is denied; and finally it is
ORDERED that, as of March 20, 2023, the docket of this proceeding shall be unsealed and open to the public.
This constitutes the Decision & Order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for Cyprium shall promptly serve notice of entry on all parties entitled thereto.
Dated: February 27, 2023
Albany, New York
RICHARD PLATKIN
A.J.S.C.
[*7]
Papers Considered:NYSCEF Doc Nos. 1, 3-4, 7, 77-78, 80-83, 87, 111-118, 121, 124-125.[FN9]
Footnotes
Footnote 1:Additional background is set forth in the Court's prior decisions and will not be repeated here.
Footnote 2:The Quality Agreement allegedly obliged Curia "to support Cyprium's [FDA] filings and activities" and "maintain inspection readiness" at its Camarillo manufacturing facility (Petition, ¶ 50).
Footnote 3:Curia did not appeal the denial of its cross motion to compel Cyprium to arbitrate its application for injunctive relief.
Footnote 4:Indeed, if Curia's request to seal the entire docket were granted, even the PI Decision would be sealed. But secret injunctions are not part of our system of civil justice.
Footnote 5:The arguments of Curia's counsel (
see e.g. Sealing Mem, pp. 10-13) are, of course, devoid of probative value (
see generally Zuckerman v City of New York, 49 NY2d 557, 563 [1980];
Rossi v C.C.O. Equip., 200 AD2d 933, 933 [3d Dept 1994],
lv denied 84 NY2d 802 [1994]).
Footnote 6:Curia takes the position that the Revised Proposal is "not restrictive enough to protect the interests set forth in its September 9, 2022 submission," which "included the MSA, Work Orders, Invoices, Meeting Minutes, arbitration filings, and select email correspondence between Curia and Cyprium personnel related to regulatory submissions, commercial readiness, product testing specifications, and commercial terms of the parties' agreements" (Reply, p. 6). And despite having moved for an order sealing "certain" records, Curia maintains, first and foremost, that the entire record of this proceeding should be sealed because the matter belongs in arbitration (
see id., p. 2).
Footnote 7:In other words, the Revised Proposal is said to target "references to specific upgrades to the Camarillo facility, quoted language from emails sought to be sealed, direct reference to MSA provisions, reference to unauthorized regulatory filings, pricing information, production methods or specific testing regimes, and details of settlement negotiations involving proposed commercial terms" (Reply, p. 6).
Footnote 8:Even redaction issues that might appear straightforward, like the price that Curia charged Cyprium for the manufacturing work, present difficulty. The public may have a limited interest in the specific prices that Curia charged, but Cyprium relied on the pricing terms of the Work Orders and historical pricing levels to support one of its central arguments in the case: that the Work Orders called for Curia to manufacture "commercial batches" of Product. And that argument and the supporting evidence, including pricing information, is woven throughout the legal memoranda, fact affidavits, oral argument transcripts and court decisions.
Footnote 9:The Court takes judicial notice of the prior proceedings and filings in this matter (
see Matter of Shirley v Shirley, 101 AD3d 1391, 1394 [3d Dept 2012];
Casson v Casson, 107 AD2d 342, 344 [1st Dept 1985],
appeal dismissed 65 NY2d 637 [1985]).