In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig.

316 F. Supp. 3d 455
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 11, 2018
DocketMDL Docket No. 2665; Misc. No. 15–1825 (ESH)
StatusPublished
Cited by9 cases

This text of 316 F. Supp. 3d 455 (In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., 316 F. Supp. 3d 455 (D.C. Cir. 2018).

Opinion

ELLEN SEGAL HUVELLE, United States District Judge

Before the Court are several motions relating to the sealing and redaction of documents. Plaintiffs filed a Motion to Unseal Opening Class Certification Papers (ECF No. 174 ("Mot. to Unseal") ), arguing that defendants' confidentiality designations as to materials produced during discovery are overly broad, and since defendants have failed to justify these designations, all documents should be unsealed and unredacted in full.1 Also at issue are defendants' several motions to seal documents (ECF Nos. 160, 163, 177, and 179), which plaintiffs oppose, as well as plaintiffs' two motions to seal documents (ECF Nos. 157 and 172), which plaintiffs filed in compliance with the parties' Stipulated Protective Order (ECF No. 48), but they argue against the sealing of these documents.

The question is whether defendants' confidentiality designations justify allowing significant redactions to pleadings and related declarations, in addition to the complete sealing of hundreds of pages of exhibits. Last year, this Court addressed potential redactions in a judicial opinion *458related to plaintiffs' amended complaint. See In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig. , 275 F.Supp.3d 218 (D.D.C. 2017). The Court, concluding that the public interest in access to judicial records outweighed McCormick's interest in avoiding reputational harm, overruled McCormick's objections and published its opinion without redactions. In re McCormick & Co., Inc. , No. 15-mc-1825, 2017 WL 2560911, at *1 (D.D.C. June 13, 2017). Now, pleadings and declarations associated with the plaintiffs' motion for class certification, the motion to unseal, and the joint motion to exclude plaintiffs' expert, Armando Levy, are at issue. In addition to the extensive redaction of multiple pleadings and declarations, defendants ask that hundreds of pages of exhibits attached to these declarations remain under seal.

BACKGROUND

Plaintiffs, who are purchasers of defendant McCormick's black pepper, allege in their complaint that defendants "had a statutory duty to refrain from unfair or deceptive acts or practices in the promotion and sale of McCormick black pepper or store-branded black pepper," (Second Am. Compl. Consol. Class Action Compl. ¶ 115, ECF No. 128), and that they "violated this duty by selling black pepper in non-transparent containers containing nonfunctional slack-fill." (Id. ¶ 116.)

I. CLASS CERTIFICATION

On July 21, 2017, plaintiffs moved to certify three multistate classes under the consumer protection and unjust enrichment laws of more than thirty states and the District of Columbia, claiming that McCormick and Wal-Mart violated these laws when they knowingly sold black pepper in non-transparent containers containing non-functional slack fill, intending to minimize or eliminate consumers' ability to notice the reduced quantity of pepper by maintaining the same price and container size. (See Mot. for Class Cert. at 1-15, ECF No. 157-2.)

A. Redacted Pleadings

When plaintiffs filed their memo in support of class certification, they moved to file it under seal (ECF No. 157) pursuant to the parties' Protective Order, and they filed a redacted version on the public docket as well. (ECF No. 159.) Redactions appear in the Table of Contents and on the following pages: 1-2, 4-5, 7-15, 18, 21, 23-24, 35, and 37-39. McCormick also filed a redacted version of its opposition to class certification (ECF No. 161) and moved to file an unredacted version under seal.2 (ECF No. 160.) These redactions appear on the following pages: 1 n.2, 4-6, 10, 19, 23-25, and 25 n.29. Finally, plaintiffs filed a redacted reply to McCormick's opposition to class certification (ECF No. 168) and moved to file an unredacted version under seal. (ECF No. 172.) Plaintiffs' reply includes redactions on the following pages: 8-9 & n. 10, and 10.

Apart from the class certification pleadings, Wal-Mart filed its opposition to plaintiffs' motion to unseal with redactions and attached two redacted exhibits (ECF No. 180) and moved to file an unredacted version under seal. (ECF No. 179.) Exhibit A is the letter Wal-Mart's attorney Andrew Klevorn wrote in response to plaintiffs' initial challenge to defendants' confidentiality designations. ("Klevorn Letter," ECF No. 179-1.) Exhibit B is the Declaration *459of Wal-Mart employee Kassie Keeter, which identifies and explains commercially sensitive information that appears in Wal-Mart's exhibits. ("Keeter Decl.," ECF No. 179-1.)

In sum, three redacted class certification pleadings are at issue-plaintiffs' motion, McCormick's opposition, and plaintiffs' reply to McCormick-as well as Wal-Mart's opposition to plaintiffs' motion to unseal and the two exhibits attached to the opposition. Plaintiffs challenge all redactions.3

B. Declarations and Reports

Both plaintiffs and McCormick attach declarations, reports, and exhibits to their class certification pleadings. Several of these documents are heavily redacted or filed entirely under seal.

i. Fegan Declaration

Plaintiffs' Fegan Declaration-describing plaintiffs' underlying merits case-was filed as an affidavit in support of the class certification motion. (ECF No. 157-3.) Large swathes of the Fegan Declaration are redacted (ECF No. 158), including portions of pages 2, 5-17, 20-26, and 30-32. Most of the redacted information comes from defendants' documents, produced in discovery, which were filed as Exhibits 101-143 to the Fegan Declaration. (See ECF No. 157.) Defendants say very little about the Fegan Declaration.

ii. Levy Report

Plaintiffs also filed a sealed copy of the report written by their damages expert, Armando Levy, as Exhibit 100 to the Fegan Declaration. ("Levy Report," ECF No. 157-4). McCormick does not object to unsealing the Levy Report so long as "any references ... to confidential materials [are] appropriately redacted." (McCormick Opp. to Unseal at 3 n.2, ECF No. 176.) Wal-Mart appears to adopt a similar position, but expresses concern that the report shows how many "units of select McCormick-supplied black pepper products" Wal-Mart sold in each state for each month over the course of more than two years, as well as "Wal-Mart's net sales of those products in each state for the same period." (Wal-Mart Opp. to Unseal at 3, ECF No. 179-1; see also id. at 7 (requesting that the Court maintain under seal "Wal-Mart documents attached to Plaintiffs' Motion for Class Certification and referenced in Dr. Levy's report").)

iii. Schmitt Declaration Exhibits

McCormick filed the Schmitt Declaration as an affidavit in support of its opposition to class certification. (ECF No. 162.) Though the Schmitt Declaration itself contains no redacted material, McCormick moved to file three attachments to it under seal. (ECF No. 160.) These include the Hester Declaration as Exhibit 16 (ECF No.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
316 F. Supp. 3d 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mccormick-co-inc-pepper-prods-mktg-sales-practices-litig-cadc-2018.