UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) KING & SPALDING, LLP, ) ) Plaintiff, ) ) v. ) Civil No. 1:16-cv-01616 (APM) ) UNITED STATES DEPARMENT OF ) HEALTH AND HUMAN SERVICES, et al., ) ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I.
Before the court is a Motion for Reconsideration of the court’s February 10, 2020 Minute
Order granting Plaintiff King & Spalding’s Motion for Leave to File Documents Under Seal.
See Mot. for Reconsideration, ECF No. 74 [hereinafter Mot. for Reconsideration]. On February
3, 2020, Plaintiff filed a Sealed Motion for Leave to File Documents Under Seal (“Sealed
Motion”), which asked to keep off the public docket certain documents submitted in support of its
Motion for Attorneys’ Fees and Expenses. See Pl.’s Mot. for Leave to File Documents Under Seal,
ECF No. 73, Mem. of P & A in Supp., ECF No. 73-1 [hereinafter Mot. to File Under Seal].
Thinking—mistakenly, as it turned out—that the Sealed Motion was unopposed, the court granted
the Motion in a minute order before Defendants filed a response. See February 10, 2020 Minute
Order. Defendants now ask the court to reconsider its ruling. See Mot. for Reconsideration.
Because the court erred in assuming Defendants’ non-opposition, the court will reconsider its sealing order and evaluate the merits of Plaintiff’s Sealed Motion de novo, as if it the court had
not ruled on it previously.
II.
As a preliminary matter, the court grants Plaintiff’s Motion for Leave to File a Surreply in
Opposition to Defendants’ Motion for Reconsideration, ECF No. 78. “The decision to grant or
deny leave to file a sur-reply is committed to the sound discretion of the Court.” Lu v. Lezell,
45 F. Supp. 3d 86, 91 (D.D.C. 2014). “If the movant raises arguments for the first time in his reply
to the non-movant’s opposition, the Court may either ignore those arguments in resolving the
motion or provide the non-movant an opportunity to respond to those arguments by granting leave
to file a sur-reply.” Id. (citing Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003);
Natural Res. Def. Council, Inc. v. EPA, 25 F.3d 1063, 1071–72 n.4 (D.C. Cir. 1994)). The court
finds that Defendants raised sufficiently new arguments in their reply brief for Plaintiff’s short
surreply to be appropriate. See Pl.’s Mot. for Leave to File a Surreply in Opp’n to Defs.’ Mot. for
Reconsideration, ECF No. 78. Therefore, the court has considered Plaintiff’s Surreply when
making its decision on Defendants’ Motion for Reconsideration. See Pl.’s Surreply in Opp’n to
Defs.’ Mot. for Reconsideration, ECF No. 78–1.
III.
Plaintiff asks to file two documents under seal: (1) the Declaration of King & Spalding
attorney John C. Richter in support of Plaintiff’s Motion for Attorneys’ Fees and Expenses, which
offers the background and billing rates of current and former King & Spalding “team members”
who worked on this matter, Mot. to File Under Seal, Ex. A, ECF Nos. 73-3; and (2) a report
detailing the tasks performed by King & Spalding attorneys, the hours spent on each task, and the
requested attorneys’ fees for each task, id. Ex. B, ECF No. 73-4. In its original motion, Plaintiff
2 argued that sealing the firm’s billing records will not hinder public access to the proceedings; the
information has not been disclosed to the public; the “public distribution of . . . billing rates and
other details will harm the firm’s standing with respect to its competitors”; neither party will be
prejudiced from sealing the exhibits; and Plaintiff “seeks to introduce the documents for the sole
purpose of showing that it has requested a reasonable award of fees and costs in light of the value
of attorney time and other costs expended.” Mot. to File Under Seal at 2–3.
In their Motion for Reconsideration, Defendants counter that potential competitive harm is
not a “sound legal basis” for sealing the exhibits and that King & Spalding has publicly filed billing
rates in other cases, which undermines any assertion of competitive harm. Mot. for
Reconsideration at 1–2. Defendants thus ask the court to vacate its minute order sealing the
documents. Id. at 2.
IV.
“The starting point in considering a motion to seal court records is a strong presumption
in favor of public access to judicial proceedings.” Hardaway v. D.C. Housing Auth., 843 F.3d
973, 980 (D.C. Cir. 2016) (quoting EEOC v. Nat. Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C.
Cir. 1996). “That presumption may be outweighed in certain cases,” however. Metlife, Inc. v.
Financial Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017). In United States v.
Hubbard, the D.C. Circuit outlined six factors that courts must consider when “presented with a
motion to seal or unseal.” Id.; see also United States v. Hubbard, 650 F.2d 293, 317–322 (D.C.
Cir. 1980). Specifically, the court should weigh:
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
3 Metlife, 865 F.3d at 665 (quoting Nat. Children’s Ctr., 98 F.3d at 1409). Here, the Hubbard factors
weigh in favor of disclosure.
On the first factor, Plaintiff argues that the “publicly available information is sufficient to
ensure a transparent vetting of the firm’s request for fees as the prevailing party in this case” and
that “further disclosure of King & Spalding’s billing rates, staffing strategies, and detailed billing
entries would harm the firm without providing any discernable benefit to the public.” Pl.’s Mem.
in Opp’n to Defs.’ Mot., ECF No. 76 [hereinafter Pl.’s Opp’n], at 3–4. But what Plaintiff fails to
appreciate is that the public interest in disclosure is arguably at its zenith when the fee demand is
made against the public fisc. See Brock v. Pierce Cty., 476 U.S. 253, 262 (1986) (observing that
the “protection of the public fisc is a matter that is of interest to every citizen”); DRC, Inc. v.
Republic of Honduras, Civ. Action No. 10-0003 (PLF) (AK), 2011 WL 13257869, at *4 (D.D.C.
Aug. 22, 2011) (stating that “the need for public access is strengthened when the records pertain
to financial arrangements involving the public fisc”). Indeed, there is something untoward about
Plaintiff asking to conceal their hourly rates and the work done from public view, while demanding
hundreds of thousands of dollars from the public treasury as compensation. The first factor weighs
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) KING & SPALDING, LLP, ) ) Plaintiff, ) ) v. ) Civil No. 1:16-cv-01616 (APM) ) UNITED STATES DEPARMENT OF ) HEALTH AND HUMAN SERVICES, et al., ) ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I.
Before the court is a Motion for Reconsideration of the court’s February 10, 2020 Minute
Order granting Plaintiff King & Spalding’s Motion for Leave to File Documents Under Seal.
See Mot. for Reconsideration, ECF No. 74 [hereinafter Mot. for Reconsideration]. On February
3, 2020, Plaintiff filed a Sealed Motion for Leave to File Documents Under Seal (“Sealed
Motion”), which asked to keep off the public docket certain documents submitted in support of its
Motion for Attorneys’ Fees and Expenses. See Pl.’s Mot. for Leave to File Documents Under Seal,
ECF No. 73, Mem. of P & A in Supp., ECF No. 73-1 [hereinafter Mot. to File Under Seal].
Thinking—mistakenly, as it turned out—that the Sealed Motion was unopposed, the court granted
the Motion in a minute order before Defendants filed a response. See February 10, 2020 Minute
Order. Defendants now ask the court to reconsider its ruling. See Mot. for Reconsideration.
Because the court erred in assuming Defendants’ non-opposition, the court will reconsider its sealing order and evaluate the merits of Plaintiff’s Sealed Motion de novo, as if it the court had
not ruled on it previously.
II.
As a preliminary matter, the court grants Plaintiff’s Motion for Leave to File a Surreply in
Opposition to Defendants’ Motion for Reconsideration, ECF No. 78. “The decision to grant or
deny leave to file a sur-reply is committed to the sound discretion of the Court.” Lu v. Lezell,
45 F. Supp. 3d 86, 91 (D.D.C. 2014). “If the movant raises arguments for the first time in his reply
to the non-movant’s opposition, the Court may either ignore those arguments in resolving the
motion or provide the non-movant an opportunity to respond to those arguments by granting leave
to file a sur-reply.” Id. (citing Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003);
Natural Res. Def. Council, Inc. v. EPA, 25 F.3d 1063, 1071–72 n.4 (D.C. Cir. 1994)). The court
finds that Defendants raised sufficiently new arguments in their reply brief for Plaintiff’s short
surreply to be appropriate. See Pl.’s Mot. for Leave to File a Surreply in Opp’n to Defs.’ Mot. for
Reconsideration, ECF No. 78. Therefore, the court has considered Plaintiff’s Surreply when
making its decision on Defendants’ Motion for Reconsideration. See Pl.’s Surreply in Opp’n to
Defs.’ Mot. for Reconsideration, ECF No. 78–1.
III.
Plaintiff asks to file two documents under seal: (1) the Declaration of King & Spalding
attorney John C. Richter in support of Plaintiff’s Motion for Attorneys’ Fees and Expenses, which
offers the background and billing rates of current and former King & Spalding “team members”
who worked on this matter, Mot. to File Under Seal, Ex. A, ECF Nos. 73-3; and (2) a report
detailing the tasks performed by King & Spalding attorneys, the hours spent on each task, and the
requested attorneys’ fees for each task, id. Ex. B, ECF No. 73-4. In its original motion, Plaintiff
2 argued that sealing the firm’s billing records will not hinder public access to the proceedings; the
information has not been disclosed to the public; the “public distribution of . . . billing rates and
other details will harm the firm’s standing with respect to its competitors”; neither party will be
prejudiced from sealing the exhibits; and Plaintiff “seeks to introduce the documents for the sole
purpose of showing that it has requested a reasonable award of fees and costs in light of the value
of attorney time and other costs expended.” Mot. to File Under Seal at 2–3.
In their Motion for Reconsideration, Defendants counter that potential competitive harm is
not a “sound legal basis” for sealing the exhibits and that King & Spalding has publicly filed billing
rates in other cases, which undermines any assertion of competitive harm. Mot. for
Reconsideration at 1–2. Defendants thus ask the court to vacate its minute order sealing the
documents. Id. at 2.
IV.
“The starting point in considering a motion to seal court records is a strong presumption
in favor of public access to judicial proceedings.” Hardaway v. D.C. Housing Auth., 843 F.3d
973, 980 (D.C. Cir. 2016) (quoting EEOC v. Nat. Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C.
Cir. 1996). “That presumption may be outweighed in certain cases,” however. Metlife, Inc. v.
Financial Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017). In United States v.
Hubbard, the D.C. Circuit outlined six factors that courts must consider when “presented with a
motion to seal or unseal.” Id.; see also United States v. Hubbard, 650 F.2d 293, 317–322 (D.C.
Cir. 1980). Specifically, the court should weigh:
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
3 Metlife, 865 F.3d at 665 (quoting Nat. Children’s Ctr., 98 F.3d at 1409). Here, the Hubbard factors
weigh in favor of disclosure.
On the first factor, Plaintiff argues that the “publicly available information is sufficient to
ensure a transparent vetting of the firm’s request for fees as the prevailing party in this case” and
that “further disclosure of King & Spalding’s billing rates, staffing strategies, and detailed billing
entries would harm the firm without providing any discernable benefit to the public.” Pl.’s Mem.
in Opp’n to Defs.’ Mot., ECF No. 76 [hereinafter Pl.’s Opp’n], at 3–4. But what Plaintiff fails to
appreciate is that the public interest in disclosure is arguably at its zenith when the fee demand is
made against the public fisc. See Brock v. Pierce Cty., 476 U.S. 253, 262 (1986) (observing that
the “protection of the public fisc is a matter that is of interest to every citizen”); DRC, Inc. v.
Republic of Honduras, Civ. Action No. 10-0003 (PLF) (AK), 2011 WL 13257869, at *4 (D.D.C.
Aug. 22, 2011) (stating that “the need for public access is strengthened when the records pertain
to financial arrangements involving the public fisc”). Indeed, there is something untoward about
Plaintiff asking to conceal their hourly rates and the work done from public view, while demanding
hundreds of thousands of dollars from the public treasury as compensation. The first factor weighs
heavily in favor of not sealing the records.
Second, “[p]revious access . . . may weigh in favor of subsequent access.” Hubbard, 650
F.2d at 318. Here, as Defendants point out, King & Spalding attorney billing rates have been
disclosed in other court cases. Mot. for Reconsideration at 4 & n.4 (citing In re: Astroturf, LLC,
Case No. 16-41504, ECF No. 467 (N.D. Ga. Bankr.)); see also Reply in Supp. of Mot. for
Reconsideration, ECF No. 77 [hereinafter Defs.’ Reply], at 4 (citing In re Jack Cooper Ventures,
Inc., Case No. 19-62393, ECF No. 430 (N.D. Ga. Bankr.) (fee application by King & Spalding
attaching almost 200 pages of billing records and identifying the rates of approximately 40
4 attorneys); In re GMG Capital Partners III, LP, Case No. 13-12937, ECF No. 315 (S.D.N.Y.
Bankr.) (fee application by King & Spalding disclosing rates and detailed billing statements)).
Plaintiff argues that the cases in which it filed billing rates previously are distinguishable because
those were bankruptcy cases, and under the applicable bankruptcy statute, Plaintiff was required
to disclose such information. Pl.’s Opp’n at 7. To be sure, the circumstances of previous
disclosures may be different than the present case, and so too are the billing rates and work at
issue. But the fact of multiple prior public disclosures of Plaintiff’s billing rates diminishes the
claimed need for confidentiality in this case. The court is also mindful that attorney billing records
are routinely filed on the public record in this District, including in FOIA cases. See Defs.’ Reply
at 2–3 (collecting cases). The second factor thus weighs in favor of disclosure.
Third, the fact that Plaintiff is both the party requesting attorneys’ fees and the party
objecting to the disclosure cuts against its demand for secrecy. Cf. Hubbard, 650 F.2d at 319
(finding that the identity of the objecting party weighed in favor of retaining documents under seal
where the objecting party was a third party who “was not made a defendant in the proceedings”).
As to the fourth factor, Plaintiff’s claimed competitive interest in maintaining the
confidentiality of its billing rates lacks evidentiary support. “To carry [its] burden under Hubbard,
[a party] must specifically identify the commercially sensitive information . . . and explain why its
disclosure would harm [its] competitive standing.” In re McCormick & Company, Inc., Pepper
Prods. Mktg. & Sales Practices Litig., 316 F. Supp. 3d 455, 465 (D.D.C. 2018) (applying the
Hubbard factors to determine whether class certification pleadings should be unsealed). In this
case, Plaintiff offers no more than the conclusory assertion that “the public distribution of
[Plaintiff’s] billing rates and other details will harm the firm’s standing with respect to its
competitors,” because other firms could “use” that information. Mot. to File Under Seal at 2. Such
5 a contention, without more, at best raises a weak inference of competitive harm, which cannot
overcome the strong public interest in disclosure. Plaintiff fails to carry its burden on the fourth
factor.
On the fifth factor, the only prejudice that Plaintiff identifies from disclosure is the potential
for competitive harm, which the court found lacked support. This factor therefore favors denying
the sealing request.
Finally, the records that Plaintiff asks to keep under seal go the very heart of what is before
the court: questions concerning the reasonableness of Plaintiff’s counsel’s hourly rates and the
reasonableness of the time they expended on this matter. See 5 U.S.C. § 522(a)(4)(E)(i). This
factor thus weighs in favor of disclosing the two exhibits.
Accordingly, having weighed all six factors, the court finds that Plaintiff has not overcome
the “strong presumption” in favor of public access to judicial records.
V.
Both parties identified out-of-district cases to support their positions, but of course those
cases are not binding on this court. Plaintiff, for example, cites cases in which the parties were
permitted to seal portions of their attorneys’ fees motions. See Pl.’s Opp’n at 5 (citing In re
Anthem, Inc. Data Breach Litig., No. 15-MD-02617-LHK, 2018 WL 3067783, at *2 (N.D. Cal.
Mar. 16, 2018); Mine O’Mine, Inc. v. Calmese, No. 2:10-CV-00043-KJD-PAL, 2012 WL
1279827, at *4 (D. Nev. Apr. 16, 2012); In re Maxwell Tech., Inc., Derivative Litig., No. 13CV966
BEN (RBB), 2015 WL 12791166, at *7 (S.D. Cal. July 13, 2015). Defendants point to district
courts that reached the opposite conclusion. Mot. for Reconsideration at 1 (citing BASF Corp. v.
SNF Holding Co., No. 4:17-cv-251, 2019 U.S. Dist. LEXIS 130633, at *26–27 (S.D. Ga. Aug. 5,
2019) (finding “that a purported concern over the public filing of counsel’s hourly rates is not a
6 sound legal basis to seal”)); see also Defs.’ Reply at 3 (citing Procaps S.A. v. Patheon, Inc., No.
12-24356-CIV-GOODMAN, 2013 U.S. Dist. LEXIS 156994, at *12–13 (S.D. Fla. Nov. 1, 2013)
(observing that “[a]ttorney’s [sic] hourly rates are routinely publically [sic] disclosed and
discussed in judicial opinions at all levels”) (emphasis omitted) (collecting cases)). These
decisions have little persuasive value, as this court is bound to balance the Hubbard factors
articulated by the D.C. Circuit. Having done so, the court finds that the documents in question
should not be sealed.
VI.
For the foregoing reasons, Defendants’ Motion for Reconsideration, ECF No. 74, is granted
and the court’s February 10, 2020 Minute Order is hereby vacated. Unless Plaintiff notifies the
court by April 9, 2020, that it intends to withdraw its fees request, the clerk of the court shall make
available on the public docket Exhibits A and B in support of Plaintiff’s Motion for Attorneys’
Fees.
Plaintiff’s Motion for Leave to File a Surreply in Opposition to Defendants’ Motion for
Reconsideration, ECF No. 78, is granted.
Dated: April 7, 2020 Amit P. Mehta United States District Judge