King v. Habib Bank Limited

Opinion

1301 AVE3N2UNED O FFL TOHOER A MERICAS NEW YORK, NEW YORK 10019-6023 (212)336-8330 FAX (212) 336-8340 www.susmangodfrey.com __________ Suite 5100 Suite 1400 Suite 3000 1000 Louisiana Street 1900 Avenue of the Stars 401 Union Street Houston, Texas 77002-5096 Los Angeles, California 90067-6029 Seattle, Washington 98101-2683 (713)651-9366 (310)789-3100 (206)516-3880 __________ __________ __________ December 29, 2023 Via CM/ECF Hon. Ona T. Wang United States District Court for the Southern District of New York Daniel Patrick Moynihan Courthouse 500 Pearl Street, New York, NY 10007 Re: Case No. 20-cv-4322, King v. Habib Bank Limited, Joint Letter Requesting Approval of Redacted Filing Dear Judge Wang: Pursuant to Individual Rule IV, the Electronic Case Filing Rules & Instructions § 6, and the parties’ Stipulated Protective Order (Dkt. 75) ¶ 14, the parties jointly seek approval to redact information from their December 29, 2023 Joint Status Letter, which references confidential financial information of Defendant Habib Bank Limited (“HBL”). Plaintiffs are contemporaneously filing with this letter: (1) a public version of the Joint Status Letter with the proposed redactions, and (2) an under-seal version of the Joint Status Letter with the proposed redactions highlighted. Plaintiffs take no position as to whether redactions or sealing are appropriate. HBL respectfully submits that good cause exists for an order to redact certain information identifying specific HBL customers based on information that HBL produced in discovery, which the parties discuss in this Joint Status Letter. See Fed. R. Civ. P. 5.2(e). The information to be redacted includes individual account holders’ names and descriptions of transactions that HBL allegedly processed on behalf of its customers. The U.S. federal courts have a well-developed history of protecting customer financial information from disclosure to the public. Strauss v. Credit Lyonnais, S.A., summarizes the courts’ approach: “Both financial records and certain reports by banks to government authorities have historically not been subject to public access in the United States. Courts have recognized that banking customers have a justifiable expectation of privacy that their names and financial records not be revealed to the public.” No. 06- CV-702 (DLI)(MDG), 2011 WL 4736359, at *4 (E.D.N.Y. Oct. 6, 2011) (quoting and collecting cases, internal quotation marks and citation omitted) (cleaned up). Courts also commonly seal private documents containing trade secrets, internal business documents and information about a business’s operations, policies, and product development. See Kewazinga Corp. v. Microsoft Corp., No. 1:18-CV- 4500-GHW, 2021 WL 1222122, at *3 (S.D.N.Y. Mar. 31, 2021). Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020), lays out the longstanding three-part analysis with which this Court is tasked. “First, the court determines whether the record at issue is a ‘judicial document’”, Mirlis explains, noting that “[n]ot all documents filed with the court are ‘judicial’ documents.” Id. A judicial document is one that is “placed before the court by the parties” and that is “relevant to the performance of the judicial function and useful in the judicial process.” Id. (internal quotation marks and citation omitted). Next, if the bank records and communications are judicial documents, the court will “determine the weight of the presumption of access” to that document. Id. (quoting United States v. Erie Cnty., 763 F.3d 235, 239, 241 (2d Cir. 2014)). The weight given to the presumption of access is “governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). Third, “the court must identify all of the factors that legitimately counsel against disclosure of the judicial document, and balance those factors against the weight properly accorded the presumption of access.” Mirlis, 952 F.3d at 59 (citation omitted). According to the Mirlis Court, “[c]ountervailing considerations that courts may consider include the danger of impairing law enforcement or judicial efficiency and the privacy interests of those resisting disclosure.” Id. (internal quotation marks and citation omitted). In this instance, these records are not judicial documents, because the information they contain is derived from discovery documents that, on their own, “play no role in the performance of Article III functions…[and] lie entirely beyond the presumption’s reach”. Amodeo, 71 F.3d at 1050; see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006). Even if they are judicial documents, however, the weight of the presumption of public access is low because HBL’s narrow request seeks only limited redaction of confidential customer personal identifying and financial information, such that the “documents play only a negligible role in the performance of Article III duties.” See Amodeo, 71 F.3d at 1050; see also Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, Nat. Ass’n, 731 F.2d 112, 123 (2d Cir. 1984) (disagreeing that bank should have “volunteered the information” from customer account records, “particularly because a bank should keep its own customers’ affairs confidential”). Accordingly, an order permitting the parties to redact the referenced information will protect the identity and financial details of HBL’s customers and the bank’s confidential compliance procedures. The First Amendment presumption of access, which analyzes documents that “have historically been open to the press and the general public” carries little, if any, weight in this instance. Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 141 (2d Cir. 2016) (quotations omitted). The information to be redacted relates to bank customers, which typically are not made available to the press or general public. Notwithstanding the presumption of access, moreover, redaction is appropriate in light of the countervailing factors—primarily the privacy interests of the bank’s customers and of HBL in its proprietary business information, and because the subject matter is traditionally considered private rather than public. Kewazinga Corp., 2021 WL 1222122, at *5. For these reasons, the parties respectfully request that the Court grant the parties’ request to redact the referenced information contained in the Joint Status Letter. Sincerely, /s/ Danielle Nicholson Ian M. Gore (IG2664) Danielle Nicholson (Pro Hac Vice) SUSMAN GODFREY L.L.P. 401 Union Street, Suite 3000 Seattle, WA 98101 Tel: (206) 505-3841 Fax: (206) 516-3883 igore@susmangodfrey.com dnicholson@susmangodfrey.com

Seth D. Ard (SA1817) SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Tel: (212) 336-8330 Fax: (212) 336-8340 sard@susmangodfrey.com

Steven Sklaver (Pro Hac Vice) SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Tel: (310) 789-3100 Fax: (310) 789-3150 ssklaver@susmangodfrey.com

Ryan Sparacino (Pro Hac Vice) Tejinder Singh (TS0613) SPARACINO PLLC 1920 L Street, NW Suite 835 Washington, D.C. 20036 December 29, 2023 Page 4 Tel: (202) 629-3530 ryan.sparacino@sparacinopllc.com tejinder.singh@sparacinopllce.com Counsel for Plaintiffs

/s/ Claire A. DeLelle with permission Christopher M. Curran Claire A. DeLelle Celia McLaughlin (Pro Hac Vice) 701 Thirteenth Street, NW Washington, DC 20005 Telephone: +1 202 626 3600 Facsimile: + 1] 202 639 9355 ccurran@whitecase.com cdelelle@whitecase.com cemclaughlin@whitecase.com Counsel for Defendant Habib Bank Limited

Application GRANTED. SO ORDERED.

Ona T. Wang 1/4/2024 U.S.M.J.