PharmacyChecker.com LLC v. National Association of Boards of Pharmacy

Opinion

BONALAW|PC — MEMO ENDORSED ANTITRUST & COMPETITION

SAN DIEGO: DALLAS - MINNEAPOLIS - NEW YORK» DETROIT Aaron Gott | Partner & COO +1 612 284 5001 331 Second Ave. S. aaron.gott@bonalawpc.com Suite 420 bonalaw.com Minneapolis, MN 554014 April 21, 2022 Via ECF Hon. Judge Kenneth M. Karas U.S. District Court, Southern District of New York 300 Quarropas St., Chambers 533 White Plains, NY 10601-4150 RE: PharmacyChecker.com LLC v. NABP et al., No. 7:19-cv-07577 (KMK): Request to Conditionally Seal Plaintiff's Pre-Motion Letter in Response to Defendants’ Pre- Motion Letter for Summary Judgment Dear Judge Karas: We represent Plaintiff PharmacyChecker.com. This letter is submitted under Section IX(A) of the Court’s Individual Rules of Practice and the Stipulated Protective Order to request that certain confidential information in (1) plaintiff's response to defendants’ pre-motion letter for summary judgment and accompanying exhibits and (2) plaintiff's response to defendants’ pre-motion Daubert letter and accompanying exhibits, filed contemporaneously, be conditionally placed under seal. Specifically, plaintiff seeks the following to conditionally be placed under seal: 1. Plaintiff's pre-motion letter in response to defendants’ pre-motion letter for summary judgment; 2. Exhibits A-E to plaintiff's pre-motion letter in response to defendants’ pre- motion letter for summary judgment; and 3. Plaintiff's response to defendants’ pre-motion Daubert letter. Pursuant to paragraph 24 of the Stipulated Protective Order, plaintiff has filed the foregoing conditionally under seal because they contain “Protected Material” as defined by the Stipulated Protective Order. Dkt. No. 181. The material includes documents, or information derived from documents, designated as Confidential by _ plaintiff PharmacyChecker.com LLC and depositions presumptively still designated as Outside Counsel Eyes only under paragraph 24 of the Stipulated Protective Order. Plaintiff, as the designating party, will later file a motion to permanently seal the documents pursuant to applicable rules.” Id. at 16.

Hon. Judge Kenneth M. Karas April 21, 2022 Page 2 While there is a presumptive right of public access to judicial documents, that right is “not absolute.” Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599 (1978)). In evaluating whether to grant a sealing request, the Court should evaluate several factors: (1) whether the document qualifies as a judicial document; (2) the weight of the presumption of public access; and (3) whether any countervailing factors or higher values outweigh the right of public access to the judicial document. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). Conditional sealing of the pre-motion letters and certain accompanying exhibits is appropriate here. See, e.g., GOSMILE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50 (S.D.N.Y. 2011) (allowing sealing of documents “containling] highly proprietary [business] material”).

Respectfully submitted,

Both NABP and Plaintiff's requests to conditionally seal the materials filed in connection with the pre-motion letters are granted. Plaintiff shall file a motion to permanently seal the appropriate materials by no later than May 2, 2022. The Clerk of Court is directed to terminate the pending motions at Dkt. Nos. 232 and 237. SO ORBRERED if YNNETH M. AS U:S.D.J. 4/25/22