THE HONORABLE JOHN H. CHUN FOR THE WESTERN DISTRICT OF WASHINGTON NXP USA, INC., and NXP B.V., Case No. 2:20-cv-01503-JHC Plaintiffs, STIPULATED MOTION AND v. ORDER TO SEAL IMPINJ, INC., NOTE ON MOTION CALENDAR: JULY 8, 2022 Defendant. Plaintiffs NXP USA, Inc. and NXP B.V. (together, “NXP”) and Defendant Impinj, Inc. (“Impinj”) jointly move the Court to maintain under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179, pursuant to Local Civil Rule 5(g). On June 21, 2022, Impinj filed a Motion for Leave to File Amended Answer. Dkt. 179. In that filing, Impinj included certain information NXP considers to be, and designated under the Protective Order (Dkt. 77) as, confidential, specifically the dollar amount of a paid licensing fee. See Dkt. 179 at p. 9. NXP notified Impinj of the issue as soon as NXP became aware of it, at STIPULATED MOTION AND ORDER TO SEAL - 1 which point Impinj requested by phone that the Court seal the filing at docket 179. The Court provisionally sealed the filing on June 27, 2022 and also directed Impinj to file a redacted version of the Motion for Leave to File Amended Answer. June 27, 2022 Notice of Docket Text Modification. On June 29, 2022, Impinj filed a redacted version of the Motion for Leave to File Amended Answer. Dkt. 183. The parties believe that the minimal redactions on page 5 of the Motion for Leave to File Amended Answer (only two words) protect against the disclosure of confidential information without interfering with the public’s access to judicial records, and request that the Court keep the unredacted version of Impinj’s Motion for Leave to File Amended Answer under seal. In accordance with Local Civil Rule 5(g)(3)(A), Kaitlin Crowder (for NXP) and Ramsey Al-Salam (for Impinj) engaged in email discussions on June 27, 2022 regarding Impinj’s filing at docket 179, and agreed that Impinj immediately would request that the Court seal that filing because it includes confidential commercial information. At the Court’s direction, Impinj then filed with the Court a public version of the Motion for Leave to File Amended Answer containing only minimal redactions. Dkt. 183 (redacting two words). On July 7, 2022, counsel for NXP and Impinj engaged in additional discussions relating to the present stipulated motion. A. The “Good Cause” Standard Applies to NXP’s Request for the Filing at Docket 179 to Remain Sealed. The standard for determining whether to seal a document depends “on whether the motion at issues is more than tangentially related to the underlying cause of action.” Ctr. for Auto Safety v.Chrysler Grp., 809 F.3d 1092, 1098 (9th Cir. 2016). If the records at issue are more than tangentially related to the merits of a case, the “compelling reasons” standard applies to the motion STIPULATED MOTION AND ORDER TO SEAL - 2 to seal. Id. at 1098-1102. But if the records are only tangentially related to the merits, the less exacting “good cause” standard applies. Id. Because the information NXP seeks to maintain under seal (a dollar amount) is not related to the merits NXP needs only to show “good cause” to maintain Impinj’s unredacted motion under seal. B. The Parties Agree that Good Cause Exists for the Filing at Docket 179 to Remain Sealed and for a Version with only Limited Redactions to be Publicly Filed. Federal courts consistently recognize that the risk of disclosure of confidential and commercially sensitive information satisfies the more exacting “compelling reasons” standard and have permitted the filing under seal of documents containing such information. See, e.g., In re Elec. Arts, Inc., 298 F. App’x 568, 569-70 (9th Cir. 2008) (holding it was error not to seal “confidential and commercially sensitive information,” including pricing terms, royalty rates, and guaranteed minimum payment terms in a licensing agreement); O’Donnell/Salvatori Inc. v. Microsoft Corp., No. C20-882-MLP, 2020 WL 3962132, at *3 (W.D. Wash. July 13, 2020) (sealing material which “appears to be confidential and commercially sensitive”); see also Fed. R. Civ. P. 26(c)(1)(G) (trial court has broad discretion to permit sealing of court documents to protect “a trade secret or other confidential research, development, or commercial information”). This is because “[e]very court has supervisory power over its own records and files” and thus an obligation “to insure that its records are not used . . . as sources of business information that might harm a litigant’s competitive standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Where the material sought to be sealed “includes information about proprietary business operations, a company’s business model or agreements with clients, there are compelling reasons to seal the material” which “outweigh[] the general public interest in understanding the judicial process.” Selling Source, LLC v. Red River Ventures, LLC, No. 2:09-cv-01491, 2011 WL 1630338, at *6 (D. Nev. Apr. 29, 2011). STIPULATED MOTION AND ORDER TO SEAL - 3 Here, the parties agree that good cause exists for Impinj’s unredacted Motion for Leave to File Amended Answer (Dkt. 179) to remain sealed. The unredacted motion discloses confidential commercial information relating to the price paid for certain of NXP’s licensing agreements. This information is not generally known to NXP’s current and potential licensing partners, and NXP will suffer significant injury to its competitive standing if it is disclosed, including potentially diminished future negotiating power. See Fed. Trade Comm’n v. Amazon.com, Inc., No. C14- 1038-JCC, 2016 WL 4162440, at *1 (W.D. Wash. Mar. 22, 2016) (sealing information regarding Amazon’s refund rates, which were deemed sensitive commercial information). Further, because Impinj’s Motion for Leave to File Amended Answer already has been filed, there is no less restrictive alternative to protect NXP from competitive harm other than to maintain Impinj’s unredacted motion at docket 179 under seal. A version of the motion with limited redactions already has been publicly filed. For the foregoing reasons, NXP and Impinj respectfully request that this Court maintain under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179.
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THE HONORABLE JOHN H. CHUN FOR THE WESTERN DISTRICT OF WASHINGTON NXP USA, INC., and NXP B.V., Case No. 2:20-cv-01503-JHC Plaintiffs, STIPULATED MOTION AND v. ORDER TO SEAL IMPINJ, INC., NOTE ON MOTION CALENDAR: JULY 8, 2022 Defendant. Plaintiffs NXP USA, Inc. and NXP B.V. (together, “NXP”) and Defendant Impinj, Inc. (“Impinj”) jointly move the Court to maintain under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179, pursuant to Local Civil Rule 5(g). On June 21, 2022, Impinj filed a Motion for Leave to File Amended Answer. Dkt. 179. In that filing, Impinj included certain information NXP considers to be, and designated under the Protective Order (Dkt. 77) as, confidential, specifically the dollar amount of a paid licensing fee. See Dkt. 179 at p. 9. NXP notified Impinj of the issue as soon as NXP became aware of it, at STIPULATED MOTION AND ORDER TO SEAL - 1 which point Impinj requested by phone that the Court seal the filing at docket 179. The Court provisionally sealed the filing on June 27, 2022 and also directed Impinj to file a redacted version of the Motion for Leave to File Amended Answer. June 27, 2022 Notice of Docket Text Modification. On June 29, 2022, Impinj filed a redacted version of the Motion for Leave to File Amended Answer. Dkt. 183. The parties believe that the minimal redactions on page 5 of the Motion for Leave to File Amended Answer (only two words) protect against the disclosure of confidential information without interfering with the public’s access to judicial records, and request that the Court keep the unredacted version of Impinj’s Motion for Leave to File Amended Answer under seal. In accordance with Local Civil Rule 5(g)(3)(A), Kaitlin Crowder (for NXP) and Ramsey Al-Salam (for Impinj) engaged in email discussions on June 27, 2022 regarding Impinj’s filing at docket 179, and agreed that Impinj immediately would request that the Court seal that filing because it includes confidential commercial information. At the Court’s direction, Impinj then filed with the Court a public version of the Motion for Leave to File Amended Answer containing only minimal redactions. Dkt. 183 (redacting two words). On July 7, 2022, counsel for NXP and Impinj engaged in additional discussions relating to the present stipulated motion. A. The “Good Cause” Standard Applies to NXP’s Request for the Filing at Docket 179 to Remain Sealed. The standard for determining whether to seal a document depends “on whether the motion at issues is more than tangentially related to the underlying cause of action.” Ctr. for Auto Safety v.Chrysler Grp., 809 F.3d 1092, 1098 (9th Cir. 2016). If the records at issue are more than tangentially related to the merits of a case, the “compelling reasons” standard applies to the motion STIPULATED MOTION AND ORDER TO SEAL - 2 to seal. Id. at 1098-1102. But if the records are only tangentially related to the merits, the less exacting “good cause” standard applies. Id. Because the information NXP seeks to maintain under seal (a dollar amount) is not related to the merits NXP needs only to show “good cause” to maintain Impinj’s unredacted motion under seal. B. The Parties Agree that Good Cause Exists for the Filing at Docket 179 to Remain Sealed and for a Version with only Limited Redactions to be Publicly Filed. Federal courts consistently recognize that the risk of disclosure of confidential and commercially sensitive information satisfies the more exacting “compelling reasons” standard and have permitted the filing under seal of documents containing such information. See, e.g., In re Elec. Arts, Inc., 298 F. App’x 568, 569-70 (9th Cir. 2008) (holding it was error not to seal “confidential and commercially sensitive information,” including pricing terms, royalty rates, and guaranteed minimum payment terms in a licensing agreement); O’Donnell/Salvatori Inc. v. Microsoft Corp., No. C20-882-MLP, 2020 WL 3962132, at *3 (W.D. Wash. July 13, 2020) (sealing material which “appears to be confidential and commercially sensitive”); see also Fed. R. Civ. P. 26(c)(1)(G) (trial court has broad discretion to permit sealing of court documents to protect “a trade secret or other confidential research, development, or commercial information”). This is because “[e]very court has supervisory power over its own records and files” and thus an obligation “to insure that its records are not used . . . as sources of business information that might harm a litigant’s competitive standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Where the material sought to be sealed “includes information about proprietary business operations, a company’s business model or agreements with clients, there are compelling reasons to seal the material” which “outweigh[] the general public interest in understanding the judicial process.” Selling Source, LLC v. Red River Ventures, LLC, No. 2:09-cv-01491, 2011 WL 1630338, at *6 (D. Nev. Apr. 29, 2011). STIPULATED MOTION AND ORDER TO SEAL - 3 Here, the parties agree that good cause exists for Impinj’s unredacted Motion for Leave to File Amended Answer (Dkt. 179) to remain sealed. The unredacted motion discloses confidential commercial information relating to the price paid for certain of NXP’s licensing agreements. This information is not generally known to NXP’s current and potential licensing partners, and NXP will suffer significant injury to its competitive standing if it is disclosed, including potentially diminished future negotiating power. See Fed. Trade Comm’n v. Amazon.com, Inc., No. C14- 1038-JCC, 2016 WL 4162440, at *1 (W.D. Wash. Mar. 22, 2016) (sealing information regarding Amazon’s refund rates, which were deemed sensitive commercial information). Further, because Impinj’s Motion for Leave to File Amended Answer already has been filed, there is no less restrictive alternative to protect NXP from competitive harm other than to maintain Impinj’s unredacted motion at docket 179 under seal. A version of the motion with limited redactions already has been publicly filed. For the foregoing reasons, NXP and Impinj respectfully request that this Court maintain under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179.
STIPULATED MOTION AND ORDER TO SEAL - 4 DATED this 8th day of July, 2022. PERKINS COIE LLP HARRIGAN LEYH FARMER & THOMSEN LLP By: s/Ramsey M. Al-Salam By: s/Tyler L. Farmer By: s/Christina J. McCullough By: s/Bryn R. Pallesen By: s/Stevan R. Stark Tyler L. Farmer, WSBA #39912 By: s/R. Tyler Kendrick Bryn R. Pallesen, WSBA #57714 Ramsey M. Al-Salam, WSBA 999 Third Avenue, Suite 4400 #18822 Seattle, WA 98104 Christina J. McCullough, WSBA Tel: (206) 623-1700 #47147 Fax: (206) 623-8717 Stevan R. Stark, WSBA #39639 Email: tylerf@harriganleyh.com R.Tyler Kendrick, WSBA #55094 Email: brynp@harriganleyh.com 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 JONES DAY Tel: 206.359.6385 Fax: 206.359.9000 Thomas W. Ritchie (admitted pro hac vice) Email: RAlSalam@perkinscoie.com 77 West Wacker Drive Email: Chicago, IL 60601-1692 CMcCullough@perkinscoie.com Tel: (312) 269-4259 Email: SStark@perkinscoie.com Email: twritchie@jonesday.com Email: RKendrick@perkinscoie.com T.Kaitlin Crowder (admitted pro hac vice) 901 Lakeside Ave By: s/Brianna L. Kadjo Cleveland, OH 44114 Brianna L. Kadjo, CO #55578 Tel: (216) 586-7347 1900 16th Street, Suite 1400 Email: kcrowder@jonesday.com Denver, CO 80202 Tel: (303) 291-2349 Michael C. Hendershot (admitted pro hac Email: bkadjo@perkinscoie.com vice) Tharan Greg Lanier (admitted pro hac vice) Attorneys for Impinj, Inc. 1755 Embarcadero Road Palo Alto, CA 94303 Tel: (650) 739-3940 Email: mhendershot@jonesday.com Email: tglanier@jonesday.com Yury Kalish (admitted pro hac vice) Tracy A. Stitt (admitted pro hac vice) 51 Louisiana Avenue, N.W. Washington D.C. 20001 Tel: (202) 879-3616 Email: ykalish@jonesday.com Email: tastitt@jonesday.com STIPULATED MOTION AND ORDER TO SEAL - 5 Jonathan McNeal Smith 555 South Flower Street, Fiftieth Floor Los Angeles, CA 90071 Tel: (213) 243-2559 Email: jonathansmith@jonesday.com Attorneys for NXP USA, Inc. and NXP B.V. STIPULATED MOTION AND ORDER TO SEAL - 6 Based on the foregoing Stipulated Motion, the Court orders the clerk to maintain under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179. DATED this 8th day of July, 2022. __A_____________________________________ UNITED STATES DISTRICT COURT JUDGE Presented by: HARRIGAN LEYH FARMER & THOMSEN LLP By: s/Tyler L. Farmer By: s/Bryn R. Pallesen Tyler L. Farmer, WSBA #39912 Bryn R. Pallesen, WSBA #57714 999 Third Avenue, Suite 4400 Seattle, WA 98104 Tel: (206) 623-1700 Fax: (206) 623-8717 Email: tylerf@harriganleyh.com Email: brynp@harriganleyh.com Thomas W. Ritchie (admitted pro hac vice) 77 West Wacker Drive Chicago, IL 60601-1692 Tel: (312) 269-4259 Email: twritchie@jonesday.com T.Kaitlin Crowder (admitted pro hac vice) 901 Lakeside Ave Cleveland, OH 44114 Tel: (216) 586-7347 Email: kcrowder@jonesday.com STIPULATED MOTION AND ORDER TO SEAL - 7 Michael C. Hendershot (admitted pro hac vice) Tharan Greg Lanier (admitted pro hac vice) 1755 Embarcadero Road Palo Alto, CA 94303 Tel: (650) 739-3940 Email: mhendershot@jonesday.com Email: tglanier@jonesday.com Yury Kalish (admitted pro hac vice) Tracy A. Stitt (admitted pro hac vice) 51 Louisiana Avenue, N.W. Washington D.C. 20001 Tel: (202) 879-3616 Email: ykalish@jonesday.com Email: tastitt@jonesday.com Jonathan McNeal Smith 555 South Flower Street, Fiftieth Floor Los Angeles, CA 90071 Tel: (213) 243-2559 Email: jonathansmith@jonesday.com Attorneys for NXP USA, Inc. and NXP B.V. By: s/Ramsey M. Al-Salam By: s/Christina J. McCullough By: s/Stevan R. Stark By: s/R. Tyler Kendrick Ramsey M. Al-Salam, WSBA #18822 Christina J. McCullough, WSBA #47147 Stevan R. Stark, WSBA #39639 R.Tyler Kendrick, WSBA #55094 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Tel: 206.359.6385 Fax: 206.359.9000 Email: RAlSalam@perkinscoie.com Email: CMcCullough@perkinscoie.com Email: SStark@perkinscoie.com Email: RKendrick@perkinscoie.com STIPULATED MOTION AND ORDER TO SEAL - 8 By: s/Brianna L. Kadjo Brianna L. Kadjo, CO #55578 1900 16th Street, Suite 1400 Denver, CO 80202 Tel: (303) 291-2349 Email: bkadjo@perkinscoie.com Attorneys for Impinj, Inc. STIPULATED MOTION AND ORDER TO SEAL - 9