Osterjung, LLC v. Newmark S11 GP, LLC

• Court: Court of Chancery of Delaware
• Decided: September 25, 2023
• Docket: C.A. No. 2020-0502-PAF
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE PAUL A. FIORAVANTI, JR. LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734

Date Submitted: September 8, 2023 Date Decided: September 25, 2023

Christopher Viceconte, Esquire C. Barr Flinn, Esquire Jennifer M. Rutter, Esquire Paul J. Loughman, Esquire Gibbons P.C. Alberto E. Chávez, Esquire 300 Delaware Avenue, Suite 1015 Young Conaway Stargatt & Taylor, LLP Wilmington, DE 19801 1000 North King Street Wilmington, DE 19801

Re: Osterjung, LLC v. Newmark S11 GP, LLC et al., C.A. No. 2020-0502-PAF

Dear Counsel:

This action was filed on June 23, 2020, as a confidential filing under Court of

Chancery Rule 5.1. Dkt. 1. The action was dismissed on December 21, 2020,

pursuant to a stipulated order of dismissal. Dkt. 21.

On August 9, 2023, the Register in Chancery filed a notice to the parties under

Court of Chancery Rule 5.1(g) advising that the documents filed confidentially in

this action are required to be unsealed three years after disposition of the action. Dkt.

22. The notice further informed the parties that any documents in this action will be

released from confidential treatment unless the parties file an application for

continued confidential treatment. Id. In accordance with Rule 5.1(g), the notice

further instructed the parties that any motion for continued confidential treatment Osterjung, LLC v. Newmark S11 GP, LLC et al. C.A. No. 2020-0502-PAF September 25, 2023 Page 2 of 3

“must be made within 30 days of the date of th[e] notice.” Id.; see Ct. Ch. R.

5.1(g)(2) (“Any person seeking continued Confidential Treatment must move for

continued Confidential Treatment within 30 days after the filing of the Register in

Chancery’s Notice.”).

On September 8, 2023, Defendant Newmark S11 GP, LLC and Nominal

Defendant Spring11 Holdings, L.P. (“Defendants”), filed a motion seeking continued

confidential treatment of three documents (the “Motion”). Dkt. 23. The Motion was

unaccompanied by any exhibits.

Court of Chancery Rule 5.1(g) provides that confidential treatment afforded

to any document filed in a civil action “shall expire three years after the final

disposition of the civil action,” unless a person seeking continued confidential

treatment makes a proper application to the court. Ct. Ch. R. 5.1(g). That application

must be in the form of a motion, and the movant “must demonstrate that the

particularized harm from public disclosure of the Confidential information in the

Confidential Filing clearly outweighs the public interest in access to Court records.”

Ct. Ch. R. 5.1(g)(2). To meet its burden, the movant “must file . . . affidavits

providing an evidentiary basis for the particularized harm on which the movant relies

for each document for which continued Confidential Treatment is sought.” Id.

(emphasis added). Osterjung, LLC v. Newmark S11 GP, LLC et al. C.A. No. 2020-0502-PAF September 25, 2023 Page 3 of 3

Defendants’ Motion was not accompanied by any affidavit providing an

evidentiary basis for the particularized harm that would result from releasing the

filings in this case from confidential treatment. Accordingly, the motion for

continued confidential treatment is denied. All filings in this action shall be made

available for public inspection on December 22, 2023.

IT IS SO ORDERED.

Very truly yours,

/s/ Paul A. Fioravanti, Jr.

Vice Chancellor

PAF/dtw