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 55404 July 20, 2022 Hon. Kenneth M. Karas The Hon. Charles L. Brieant Jr. Federal Building and United States Courthouse 300 Quarropas St. White Plains, NY 10601-4150 Re: —§ PharmacyChecker.com LLC v. National Association of Boards of Pharmacy et al., No. 19-cv-07577-KMK; Request to Conditionally Seal Plaintiff's Oppositions to Motion for Summary Judgment and Daubert Filings Dear Judge Karas: We represent plaintiff PharmacyChecker.com LLC. This letter is submitted on behalf of plaintiff pursuant to Section IX(a) of the Court’s Individual Rules of Practice and the Stipulated Protective Order to request that certain confidential information included in (1) Plaintiff's Memorandum of Law in Opposition to Defendants’ Joint Motion for Summary Judgment on Sherman Act § 1 Claim, (2) Plaintiff's Statement of Material Facts in opposition to Defendants Joint Motion for Summary Judgment on Sherman Act§ 1 Claim, (3) and accompanying exhibits, filed contemporaneously herewith, be conditionally placed under seal. Specifically, plaintiff seeks the following to conditionally be placed under seal: 1. Plaintiff's Memorandum of Law in Opposition to Defendants’ Joint Motion for Summary Judgment on Sherman Act § 1 Claim; 2. Exhibits 1-2, 6-7, 9-11, 14, 17-18, 20-23, 26, 28-30, 33-34, 41-43 to Plaintiff's Opposition to Defendants Joint Motion for Summary Judgment on Sherman Act§ 1 Claim; 3. Plaintiff's Local Rule 56.1 Statement of Material Facts in opposition to Defendants Joint Motion for Summary Judgment on Sherman Act § 1 Claim; 4. Declaration of Gabriel Levitt in support of Plaintiff's Opposition to Defendants’ Joint Motion for Summary Judgment on Sherman Act § 1 Claim. 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. 181. The material includes documents, or information derived from documents, designation as Confidential or Outside Counsel Eyes Only by plaintiff PharmacyChecker.com.

Hon. Kenneth M. Karas July 20, 2022 Page 2 PharmacyChecker.com, as the designating party, has the “obligation to file a motion to permanently seal the documents pursuant to applicable rules.” Id. at 16. While there is presumptive right of public access to judicial documents, that right is “not absolute.” Mirlis v. Greer, 952 Fl.3e 51, 59 (2nd Cir. 2020) (quoting Nixon v. Warner Commce'ns, Inc., 435 U.S. 589, 599 (1978)). In evaluating whether to grant a sealing request, the court must 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 outweight the right of public access to the judicial document. Lugosch v. Pyramid Co. of Onondaga, 435 F3d 110, 119-20 (2"4 Cir. 2006). Conditional sealing of the above-referenced materials is appropriate in this instance. See, e.g., GOSMILE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp 2d 649-50 (S.D.N.Y. 2011) (allowing sealing of documents “contain[ing] highly proprietary [business material”). Respectfully submitted,

Aaron Gott Counsel for PharmacyChecker.com LLC

Plaintiff's motion to conditionally seal the referenced materials is granted. As the Court has previously ordered, (see Dkt. No. 266), Plaintiff's motion to permanently seal these materials and any other materials filed in conjunction with the parties’ summary judgment briefing will be due once Defendants’ summary judgment motion is fully briefed. SO ORBRERED iy YNNETH M. AS US.D.J. 7/22/22