1 THE HONORABLE JOHN H. CHUN 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 NXP USA, INC., and NXP B.V., Case No. 2:20-cv-01503-JHC 11 Plaintiffs, STIPULATED MOTION AND 12 v. ORDER TO SEAL 13 IMPINJ, INC., NOTE ON MOTION CALENDAR: JULY 8, 2022 14 Defendant. 15 16 I. INTRODUCTION 17 Plaintiffs NXP USA, Inc. and NXP B.V. (together, “NXP”) and Defendant Impinj, Inc. 18 (“Impinj”) jointly move the Court to maintain under seal the unredacted version of Impinj’s 19 Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179, pursuant to 20 Local Civil Rule 5(g). 21 II. BACKGROUND 22 On June 21, 2022, Impinj filed a Motion for Leave to File Amended Answer. Dkt. 179. In 23 that filing, Impinj included certain information NXP considers to be, and designated under the 24 Protective Order (Dkt. 77) as, confidential, specifically the dollar amount of a paid licensing fee. 25 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 1 which point Impinj requested by phone that the Court seal the filing at docket 179. The Court 2 provisionally sealed the filing on June 27, 2022 and also directed Impinj to file a redacted version 3 of the Motion for Leave to File Amended Answer. June 27, 2022 Notice of Docket Text 4 Modification. On June 29, 2022, Impinj filed a redacted version of the Motion for Leave to File 5 Amended Answer. Dkt. 183. The parties believe that the minimal redactions on page 5 of the 6 Motion for Leave to File Amended Answer (only two words) protect against the disclosure of 7 confidential information without interfering with the public’s access to judicial records, and 8 request that the Court keep the unredacted version of Impinj’s Motion for Leave to File Amended 9 Answer under seal. 10 III. CERTIFICATION 11 In accordance with Local Civil Rule 5(g)(3)(A), Kaitlin Crowder (for NXP) and Ramsey 12 Al-Salam (for Impinj) engaged in email discussions on June 27, 2022 regarding Impinj’s filing at 13 docket 179, and agreed that Impinj immediately would request that the Court seal that filing 14 because it includes confidential commercial information. At the Court’s direction, Impinj then 15 filed with the Court a public version of the Motion for Leave to File Amended Answer containing 16 only minimal redactions. Dkt. 183 (redacting two words). On July 7, 2022, counsel for NXP and 17 Impinj engaged in additional discussions relating to the present stipulated motion. 18 IV. ARGUMENT 19 A. The “Good Cause” Standard Applies to NXP’s Request for the Filing at Docket 179 to 20 Remain Sealed. 21 The standard for determining whether to seal a document depends “on whether the motion 22 at issues is more than tangentially related to the underlying cause of action.” Ctr. for Auto Safety 23 v.Chrysler Grp., 809 F.3d 1092, 1098 (9th Cir. 2016). If the records at issue are more than 24 tangentially related to the merits of a case, the “compelling reasons” standard applies to the motion 25 STIPULATED MOTION AND ORDER TO SEAL - 2 1 to seal. Id. at 1098-1102. But if the records are only tangentially related to the merits, the less 2 exacting “good cause” standard applies. Id. 3 Because the information NXP seeks to maintain under seal (a dollar amount) is not related 4 to the merits NXP needs only to show “good cause” to maintain Impinj’s unredacted motion under 5 seal. 6 B. The Parties Agree that Good Cause Exists for the Filing at Docket 179 to Remain 7 Sealed and for a Version with only Limited Redactions to be Publicly Filed. 8 Federal courts consistently recognize that the risk of disclosure of confidential and 9 commercially sensitive information satisfies the more exacting “compelling reasons” standard and 10 have permitted the filing under seal of documents containing such information. See, e.g., In re 11 Elec. Arts, Inc., 298 F. App’x 568, 569-70 (9th Cir. 2008) (holding it was error not to seal 12 “confidential and commercially sensitive information,” including pricing terms, royalty rates, and 13 guaranteed minimum payment terms in a licensing agreement); O’Donnell/Salvatori Inc. v. 14 Microsoft Corp., No. C20-882-MLP, 2020 WL 3962132, at *3 (W.D. Wash. July 13, 2020) 15 (sealing material which “appears to be confidential and commercially sensitive”); see also Fed. R. 16 Civ. P. 26(c)(1)(G) (trial court has broad discretion to permit sealing of court documents to protect 17 “a trade secret or other confidential research, development, or commercial information”). This is 18 because “[e]very court has supervisory power over its own records and files” and thus an 19 obligation “to insure that its records are not used . . . as sources of business information that might 20 harm a litigant’s competitive standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 21 (1978). Where the material sought to be sealed “includes information about proprietary business 22 operations, a company’s business model or agreements with clients, there are compelling reasons 23 to seal the material” which “outweigh[] the general public interest in understanding the judicial 24 process.” Selling Source, LLC v. Red River Ventures, LLC, No. 2:09-cv-01491, 2011 WL 25 1630338, at *6 (D. Nev. Apr. 29, 2011). STIPULATED MOTION AND ORDER TO SEAL - 3 1 Here, the parties agree that good cause exists for Impinj’s unredacted Motion for Leave to 2 File Amended Answer (Dkt. 179) to remain sealed. The unredacted motion discloses confidential 3 commercial information relating to the price paid for certain of NXP’s licensing agreements. This 4 information is not generally known to NXP’s current and potential licensing partners, and NXP 5 will suffer significant injury to its competitive standing if it is disclosed, including potentially 6 diminished future negotiating power. See Fed. Trade Comm’n v. Amazon.com, Inc., No. C14- 7 1038-JCC, 2016 WL 4162440, at *1 (W.D. Wash. Mar. 22, 2016) (sealing information regarding 8 Amazon’s refund rates, which were deemed sensitive commercial information). Further, because 9 Impinj’s Motion for Leave to File Amended Answer already has been filed, there is no less 10 restrictive alternative to protect NXP from competitive harm other than to maintain Impinj’s 11 unredacted motion at docket 179 under seal. A version of the motion with limited redactions 12 already has been publicly filed. 13 IV. CONCLUSION 14 For the foregoing reasons, NXP and Impinj respectfully request that this Court maintain 15 under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on 16 June 21, 2022 at docket 179. 17 18 19 20 21 22 23 24 25
STIPULATED MOTION AND ORDER TO SEAL - 4 1 DATED this 8th day of July, 2022. 2 PERKINS COIE LLP HARRIGAN LEYH FARMER & THOMSEN LLP 3 By: s/Ramsey M. Al-Salam By: s/Tyler L. Farmer By: s/Christina J. McCullough By: s/Bryn R. Pallesen 4 By: s/Stevan R. Stark Tyler L. Farmer, WSBA #39912 By: s/R. Tyler Kendrick Bryn R. Pallesen, WSBA #57714 5 Ramsey M. Al-Salam, WSBA 999 Third Avenue, Suite 4400 6 #18822 Seattle, WA 98104 Christina J. McCullough, WSBA Tel: (206) 623-1700 7 #47147 Fax: (206) 623-8717 Stevan R. Stark, WSBA #39639 Email: tylerf@harriganleyh.com 8 R.Tyler Kendrick, WSBA #55094 Email: brynp@harriganleyh.com 1201 Third Avenue, Suite 4900 9 Seattle, WA 98101-3099 JONES DAY Tel: 206.359.6385 10 Fax: 206.359.9000 Thomas W. Ritchie (admitted pro hac vice) Email: RAlSalam@perkinscoie.com 77 West Wacker Drive 11 Email: Chicago, IL 60601-1692 12 CMcCullough@perkinscoie.com Tel: (312) 269-4259 Email: SStark@perkinscoie.com Email: twritchie@jonesday.com 13 Email: RKendrick@perkinscoie.com T.Kaitlin Crowder (admitted pro hac vice) 14 901 Lakeside Ave By: s/Brianna L.
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1 THE HONORABLE JOHN H. CHUN 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 NXP USA, INC., and NXP B.V., Case No. 2:20-cv-01503-JHC 11 Plaintiffs, STIPULATED MOTION AND 12 v. ORDER TO SEAL 13 IMPINJ, INC., NOTE ON MOTION CALENDAR: JULY 8, 2022 14 Defendant. 15 16 I. INTRODUCTION 17 Plaintiffs NXP USA, Inc. and NXP B.V. (together, “NXP”) and Defendant Impinj, Inc. 18 (“Impinj”) jointly move the Court to maintain under seal the unredacted version of Impinj’s 19 Motion for Leave to File Amended Answer, filed on June 21, 2022 at docket 179, pursuant to 20 Local Civil Rule 5(g). 21 II. BACKGROUND 22 On June 21, 2022, Impinj filed a Motion for Leave to File Amended Answer. Dkt. 179. In 23 that filing, Impinj included certain information NXP considers to be, and designated under the 24 Protective Order (Dkt. 77) as, confidential, specifically the dollar amount of a paid licensing fee. 25 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 1 which point Impinj requested by phone that the Court seal the filing at docket 179. The Court 2 provisionally sealed the filing on June 27, 2022 and also directed Impinj to file a redacted version 3 of the Motion for Leave to File Amended Answer. June 27, 2022 Notice of Docket Text 4 Modification. On June 29, 2022, Impinj filed a redacted version of the Motion for Leave to File 5 Amended Answer. Dkt. 183. The parties believe that the minimal redactions on page 5 of the 6 Motion for Leave to File Amended Answer (only two words) protect against the disclosure of 7 confidential information without interfering with the public’s access to judicial records, and 8 request that the Court keep the unredacted version of Impinj’s Motion for Leave to File Amended 9 Answer under seal. 10 III. CERTIFICATION 11 In accordance with Local Civil Rule 5(g)(3)(A), Kaitlin Crowder (for NXP) and Ramsey 12 Al-Salam (for Impinj) engaged in email discussions on June 27, 2022 regarding Impinj’s filing at 13 docket 179, and agreed that Impinj immediately would request that the Court seal that filing 14 because it includes confidential commercial information. At the Court’s direction, Impinj then 15 filed with the Court a public version of the Motion for Leave to File Amended Answer containing 16 only minimal redactions. Dkt. 183 (redacting two words). On July 7, 2022, counsel for NXP and 17 Impinj engaged in additional discussions relating to the present stipulated motion. 18 IV. ARGUMENT 19 A. The “Good Cause” Standard Applies to NXP’s Request for the Filing at Docket 179 to 20 Remain Sealed. 21 The standard for determining whether to seal a document depends “on whether the motion 22 at issues is more than tangentially related to the underlying cause of action.” Ctr. for Auto Safety 23 v.Chrysler Grp., 809 F.3d 1092, 1098 (9th Cir. 2016). If the records at issue are more than 24 tangentially related to the merits of a case, the “compelling reasons” standard applies to the motion 25 STIPULATED MOTION AND ORDER TO SEAL - 2 1 to seal. Id. at 1098-1102. But if the records are only tangentially related to the merits, the less 2 exacting “good cause” standard applies. Id. 3 Because the information NXP seeks to maintain under seal (a dollar amount) is not related 4 to the merits NXP needs only to show “good cause” to maintain Impinj’s unredacted motion under 5 seal. 6 B. The Parties Agree that Good Cause Exists for the Filing at Docket 179 to Remain 7 Sealed and for a Version with only Limited Redactions to be Publicly Filed. 8 Federal courts consistently recognize that the risk of disclosure of confidential and 9 commercially sensitive information satisfies the more exacting “compelling reasons” standard and 10 have permitted the filing under seal of documents containing such information. See, e.g., In re 11 Elec. Arts, Inc., 298 F. App’x 568, 569-70 (9th Cir. 2008) (holding it was error not to seal 12 “confidential and commercially sensitive information,” including pricing terms, royalty rates, and 13 guaranteed minimum payment terms in a licensing agreement); O’Donnell/Salvatori Inc. v. 14 Microsoft Corp., No. C20-882-MLP, 2020 WL 3962132, at *3 (W.D. Wash. July 13, 2020) 15 (sealing material which “appears to be confidential and commercially sensitive”); see also Fed. R. 16 Civ. P. 26(c)(1)(G) (trial court has broad discretion to permit sealing of court documents to protect 17 “a trade secret or other confidential research, development, or commercial information”). This is 18 because “[e]very court has supervisory power over its own records and files” and thus an 19 obligation “to insure that its records are not used . . . as sources of business information that might 20 harm a litigant’s competitive standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 21 (1978). Where the material sought to be sealed “includes information about proprietary business 22 operations, a company’s business model or agreements with clients, there are compelling reasons 23 to seal the material” which “outweigh[] the general public interest in understanding the judicial 24 process.” Selling Source, LLC v. Red River Ventures, LLC, No. 2:09-cv-01491, 2011 WL 25 1630338, at *6 (D. Nev. Apr. 29, 2011). STIPULATED MOTION AND ORDER TO SEAL - 3 1 Here, the parties agree that good cause exists for Impinj’s unredacted Motion for Leave to 2 File Amended Answer (Dkt. 179) to remain sealed. The unredacted motion discloses confidential 3 commercial information relating to the price paid for certain of NXP’s licensing agreements. This 4 information is not generally known to NXP’s current and potential licensing partners, and NXP 5 will suffer significant injury to its competitive standing if it is disclosed, including potentially 6 diminished future negotiating power. See Fed. Trade Comm’n v. Amazon.com, Inc., No. C14- 7 1038-JCC, 2016 WL 4162440, at *1 (W.D. Wash. Mar. 22, 2016) (sealing information regarding 8 Amazon’s refund rates, which were deemed sensitive commercial information). Further, because 9 Impinj’s Motion for Leave to File Amended Answer already has been filed, there is no less 10 restrictive alternative to protect NXP from competitive harm other than to maintain Impinj’s 11 unredacted motion at docket 179 under seal. A version of the motion with limited redactions 12 already has been publicly filed. 13 IV. CONCLUSION 14 For the foregoing reasons, NXP and Impinj respectfully request that this Court maintain 15 under seal the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on 16 June 21, 2022 at docket 179. 17 18 19 20 21 22 23 24 25
STIPULATED MOTION AND ORDER TO SEAL - 4 1 DATED this 8th day of July, 2022. 2 PERKINS COIE LLP HARRIGAN LEYH FARMER & THOMSEN LLP 3 By: s/Ramsey M. Al-Salam By: s/Tyler L. Farmer By: s/Christina J. McCullough By: s/Bryn R. Pallesen 4 By: s/Stevan R. Stark Tyler L. Farmer, WSBA #39912 By: s/R. Tyler Kendrick Bryn R. Pallesen, WSBA #57714 5 Ramsey M. Al-Salam, WSBA 999 Third Avenue, Suite 4400 6 #18822 Seattle, WA 98104 Christina J. McCullough, WSBA Tel: (206) 623-1700 7 #47147 Fax: (206) 623-8717 Stevan R. Stark, WSBA #39639 Email: tylerf@harriganleyh.com 8 R.Tyler Kendrick, WSBA #55094 Email: brynp@harriganleyh.com 1201 Third Avenue, Suite 4900 9 Seattle, WA 98101-3099 JONES DAY Tel: 206.359.6385 10 Fax: 206.359.9000 Thomas W. Ritchie (admitted pro hac vice) Email: RAlSalam@perkinscoie.com 77 West Wacker Drive 11 Email: Chicago, IL 60601-1692 12 CMcCullough@perkinscoie.com Tel: (312) 269-4259 Email: SStark@perkinscoie.com Email: twritchie@jonesday.com 13 Email: RKendrick@perkinscoie.com T.Kaitlin Crowder (admitted pro hac vice) 14 901 Lakeside Ave By: s/Brianna L. Kadjo Cleveland, OH 44114 15 Brianna L. Kadjo, CO #55578 Tel: (216) 586-7347 1900 16th Street, Suite 1400 Email: kcrowder@jonesday.com 16 Denver, CO 80202 Tel: (303) 291-2349 Michael C. Hendershot (admitted pro hac 17 Email: bkadjo@perkinscoie.com vice) 18 Tharan Greg Lanier (admitted pro hac vice) Attorneys for Impinj, Inc. 1755 Embarcadero Road 19 Palo Alto, CA 94303 Tel: (650) 739-3940 20 Email: mhendershot@jonesday.com Email: tglanier@jonesday.com 21 Yury Kalish (admitted pro hac vice) 22 Tracy A. Stitt (admitted pro hac vice) 23 51 Louisiana Avenue, N.W. Washington D.C. 20001 24 Tel: (202) 879-3616 Email: ykalish@jonesday.com 25 Email: tastitt@jonesday.com STIPULATED MOTION AND ORDER TO SEAL - 5 1 Jonathan McNeal Smith 555 South Flower Street, Fiftieth Floor 2 Los Angeles, CA 90071 Tel: (213) 243-2559 3 Email: jonathansmith@jonesday.com 4 Attorneys for NXP USA, Inc. and NXP B.V. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATED MOTION AND ORDER TO SEAL - 6 1 ORDER 2 Based on the foregoing Stipulated Motion, the Court orders the clerk to maintain under seal 3 the unredacted version of Impinj’s Motion for Leave to File Amended Answer, filed on June 21, 4 2022 at docket 179. 5 IT IS SO ORDERED 6 DATED this 8th day of July, 2022. 7 __A_____________________________________ 8 THE HONORABLE JOHN H. CHUN UNITED STATES DISTRICT COURT JUDGE 9 10 Presented by: 11 HARRIGAN LEYH FARMER & THOMSEN LLP 12 13 By: s/Tyler L. Farmer By: s/Bryn R. Pallesen 14 Tyler L. Farmer, WSBA #39912 Bryn R. Pallesen, WSBA #57714 15 999 Third Avenue, Suite 4400 Seattle, WA 98104 16 Tel: (206) 623-1700 Fax: (206) 623-8717 17 Email: tylerf@harriganleyh.com Email: brynp@harriganleyh.com 18 19 JONES DAY 20 Thomas W. Ritchie (admitted pro hac vice) 77 West Wacker Drive 21 Chicago, IL 60601-1692 Tel: (312) 269-4259 22 Email: twritchie@jonesday.com 23 T.Kaitlin Crowder (admitted pro hac vice) 901 Lakeside Ave 24 Cleveland, OH 44114 25 Tel: (216) 586-7347 Email: kcrowder@jonesday.com STIPULATED MOTION AND ORDER TO SEAL - 7 1 Michael C. Hendershot (admitted pro hac vice) Tharan Greg Lanier (admitted pro hac vice) 2 1755 Embarcadero Road Palo Alto, CA 94303 3 Tel: (650) 739-3940 Email: mhendershot@jonesday.com 4 Email: tglanier@jonesday.com 5 Yury Kalish (admitted pro hac vice) 6 Tracy A. Stitt (admitted pro hac vice) 51 Louisiana Avenue, N.W. 7 Washington D.C. 20001 Tel: (202) 879-3616 8 Email: ykalish@jonesday.com Email: tastitt@jonesday.com 9 Jonathan McNeal Smith 10 555 South Flower Street, Fiftieth Floor 11 Los Angeles, CA 90071 Tel: (213) 243-2559 12 Email: jonathansmith@jonesday.com 13 Attorneys for NXP USA, Inc. and NXP B.V. 14 PERKINS COIE LLP 15 By: s/Ramsey M. Al-Salam By: s/Christina J. McCullough 16 By: s/Stevan R. Stark By: s/R. Tyler Kendrick 17 Ramsey M. Al-Salam, WSBA #18822 18 Christina J. McCullough, WSBA #47147 Stevan R. Stark, WSBA #39639 19 R.Tyler Kendrick, WSBA #55094 1201 Third Avenue, Suite 4900 20 Seattle, WA 98101-3099 Tel: 206.359.6385 21 Fax: 206.359.9000 Email: RAlSalam@perkinscoie.com 22 Email: CMcCullough@perkinscoie.com 23 Email: SStark@perkinscoie.com Email: RKendrick@perkinscoie.com 24 25 STIPULATED MOTION AND ORDER TO SEAL - 8 1 By: s/Brianna L. Kadjo Brianna L. Kadjo, CO #55578 2 1900 16th Street, Suite 1400 Denver, CO 80202 3 Tel: (303) 291-2349 Email: bkadjo@perkinscoie.com 4 5 Attorneys for Impinj, Inc. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATED MOTION AND ORDER TO SEAL - 9