1 THE HONORABLE RICARDO S. MARTINEZ
5 6 7 8 9 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 11 AT SEATTLE
12 Case No. 2:21-CV-01449-RSM POLSKIE LINIE LOTNICZE LOT S.A.,
13 Plaintiff, STIPULATED MOTION AND ORDER 14 FOR LEAVE TO FILE LOT’S vs. OPPOSITION TO BOEING’S MOTION TO 15 DISMISS UNDER SEAL THE BOEING COMPANY, 16 NOTE ON MOTION CALENDAR: Defendant. JANUARY 12, 2023 17 18 INTRODUCTION 19 Pursuant to Local Civil Rule 5(g)(2), Plaintiff Polskie Linie Lotnicze LOT S.A. (“LOT”) 20 and Defendant The Boeing Company (“Boeing,” and together with LOT, the “Parties”) 21 respectfully move this Court for leave to file LOT’s Opposition to Boeing’s Motion to Dismiss 22 LOT’s First Amended Complaint (“Opposition”) under seal because it references portions of 23 Boeing’s Motion to Dismiss and LOT’s First Amended Complaint that are already under seal and 24 contains other excerpts from, and summaries of, confidential documents containing sensitive 25 contractual terms, the full disclosure of which will result in harm to Boeing’s and its airline 26 customers’ (which includes LOT) commercial interests. 1 RELEVANT PROCEDURAL HISTORY 2 The Court previously allowed the Parties to file LOT’s First Amended Complaint and 3 Boeing’s Motion to Dismiss LOT’s First Amended Complaint, both of which also quoted and 4 summarized portions of the AGTA, under seal initially, with the Parties proposed limited redactions 5 a week later. See ECF No. 48 (order granting joint request to seal limited to those portions referring 6 to the AGTA terms in the First Amended Complaint); ECF No. 52 (same for Boeing’s Motion to 7 Dismiss LOT’s First Amended Complaint). 8 LCR 5(g)(3)(A) CERTIFICATION 9 The Parties have met and conferred and agree about the need for sealing. In accordance 10 with Local Civil Rule 5(g)(3)(A), the undersigned counsel certify that on January 10, 2023, the 11 Parties communicated about LOT’s intention to include in its Opposition, to be filed on January 12 12, 2023, excerpts to and references from Boeing’s Aircraft General Terms Agreements 13 (“AGTAs”) with airline lessors that leased aircraft to LOT (and assigned some contractual AGTA 14 terms to LOT during the course of those lease agreements) and references to portions of Boeing’s 15 Motion to Dismiss and LOT’s First Amended Complaint that are already under seal. 16 The Parties therefore agree that LOT’s Opposition will be filed under seal in the first 17 instance, subject to this Court’s approval. The Parties further agreed that, following LOT’s filing 18 of the Opposition under seal, as well as this accompanying Stipulation Motion and [Proposed] 19 Order: (1) the Parties would meet and confer to agree on appropriate redactions to the Opposition; 20 and, subject to the Court granting this Stipulated Motion, (2) LOT would file a redacted copy of 21 its Opposition on the public docket within seven (7) days of filing its Opposition. 22 The Parties are in further agreement that there is not another means of protecting the 23 commercially sensitive information in the AGTAs. 24 LCR 5(g)(3)(B) LEGAL STANDARD AND ARGUMENT 25 This Court applies a strong presumption favoring public access to court records that 26 ordinarily requires the moving party to provide compelling reasons to seal a document. STIPULATED MOTION AND ORDER FOR LEAVE TO 1 Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). But where the 2 underlying motion is non-dispositive, the showing required to rebut the presumption is far lower. 3 See, e.g., In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 4 (9th Cir. 2012) (holding that where the sealed records are “attached to a non-dispositive motion . 5 . . , the usual presumption of the public’s right of access is rebutted” (internal quotation marks 6 and citation omitted)); Kamakana, 447 F.3d at 1179 (“The public policies that support the right 7 of access to dispositive motions, and related materials, do not apply with equal force to non- 8 dispositive materials.”). 9 In the case of a non-dispositive motion, a “good cause” showing will suffice to seal any 10 records attached to the motion. Id. at 1180; see also Midland, 686 F.3d at 1119 (”[A] 11 particularized showing of ‘good cause’ under Federal Rule of Civil Procedure 26(c) is sufficient 12 to preserve the secrecy of sealed discovery documents attached to non-dispositive motions.” 13 (citation omitted)). Here, Boeing’s Motion to Dismiss is not a dispositive motion; it is a motion 14 to dismiss only some of the causes of the action. Therefore, the Court need only find good cause 15 exists to redact portions of LOT’s Opposition to Boeing’s Motion to Dismiss that address 16 confidential contractual terms. 17 Boeing and LOT agree that the AGTAs set out the contractual terms on which Boeing 18 sells commercial aircraft to its customers, including the terms of delivery, pricing, rebates, and 19 product warranties. Boeing does not publicly disclose information of this kind. It is particularly 20 sensitive because contracts between Boeing and its customers are heavily negotiated and subject 21 to confidential terms and conditions. Boeing and its customers negotiate those contracts with the 22 understanding that those commercial terms will not be disclosed to the public, thereby resulting 23 in competitive harm both to Boeing and to its customers. For precisely this reason, the AGTAs 24 contain provisions requiring the parties to treat as strictly confidential any information pertaining 25 to the AGTAs, including the documents as well as individual provisions contained therein. 26 Similarly, when airline customers lease Boeing aircraft (versus purchasing them outright), the STIPULATED MOTION AND ORDER FOR LEAVE TO 1 airline customer, such as LOT here, will execute assignments of certain rights under the lessor’s 2 AGTA, and the confidentiality provisions of the AGTAs are one such right assigned. 3 This Court has already granted Boeing leave to file under seal its Motion to Dismiss, 4 which quotes and summarizes many of the same portions of the AGTAs that LOT does in its 5 Opposition, for the same reasons as stated in this Stipulated Motion. See ECF No. 52. Other 6 courts have consistently permitted parties to redact similar contractual information on the grounds 7 that it is commercially and competitively sensitive. See, e.g., KM Enters., Inc. v. Glob. Traffic 8 Techs., Inc., 725 F.3d 718, 734 (7th Cir. 2013) (sealing “customer and pricing data”); Apple Inc. 9 v. Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (redacting “product-specific 10 financial information”); Amgen Inc. v. Amneal Pharms. LLC, 2021 WL 4843959, at *2 (D. Del. 11 Oct. 18, 2021) (sealing “contract price at which [manufacturer] sells the . . . product to each 12 customer” and the “chargebacks, rebates, and discounts provided to each customer”). As Judge 13 Posner reasoned, information of this type gives “unearned competitive advantage” to other firms, 14 and “the American public does not need to know [such information] in order to evaluate the 15 handling of this litigation by the judiciary.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 16 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003). 17 Disclosure of the contractual terms of AGTAs would result in harm to Boeing and its 18 customers.
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1 THE HONORABLE RICARDO S. MARTINEZ
5 6 7 8 9 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 11 AT SEATTLE
12 Case No. 2:21-CV-01449-RSM POLSKIE LINIE LOTNICZE LOT S.A.,
13 Plaintiff, STIPULATED MOTION AND ORDER 14 FOR LEAVE TO FILE LOT’S vs. OPPOSITION TO BOEING’S MOTION TO 15 DISMISS UNDER SEAL THE BOEING COMPANY, 16 NOTE ON MOTION CALENDAR: Defendant. JANUARY 12, 2023 17 18 INTRODUCTION 19 Pursuant to Local Civil Rule 5(g)(2), Plaintiff Polskie Linie Lotnicze LOT S.A. (“LOT”) 20 and Defendant The Boeing Company (“Boeing,” and together with LOT, the “Parties”) 21 respectfully move this Court for leave to file LOT’s Opposition to Boeing’s Motion to Dismiss 22 LOT’s First Amended Complaint (“Opposition”) under seal because it references portions of 23 Boeing’s Motion to Dismiss and LOT’s First Amended Complaint that are already under seal and 24 contains other excerpts from, and summaries of, confidential documents containing sensitive 25 contractual terms, the full disclosure of which will result in harm to Boeing’s and its airline 26 customers’ (which includes LOT) commercial interests. 1 RELEVANT PROCEDURAL HISTORY 2 The Court previously allowed the Parties to file LOT’s First Amended Complaint and 3 Boeing’s Motion to Dismiss LOT’s First Amended Complaint, both of which also quoted and 4 summarized portions of the AGTA, under seal initially, with the Parties proposed limited redactions 5 a week later. See ECF No. 48 (order granting joint request to seal limited to those portions referring 6 to the AGTA terms in the First Amended Complaint); ECF No. 52 (same for Boeing’s Motion to 7 Dismiss LOT’s First Amended Complaint). 8 LCR 5(g)(3)(A) CERTIFICATION 9 The Parties have met and conferred and agree about the need for sealing. In accordance 10 with Local Civil Rule 5(g)(3)(A), the undersigned counsel certify that on January 10, 2023, the 11 Parties communicated about LOT’s intention to include in its Opposition, to be filed on January 12 12, 2023, excerpts to and references from Boeing’s Aircraft General Terms Agreements 13 (“AGTAs”) with airline lessors that leased aircraft to LOT (and assigned some contractual AGTA 14 terms to LOT during the course of those lease agreements) and references to portions of Boeing’s 15 Motion to Dismiss and LOT’s First Amended Complaint that are already under seal. 16 The Parties therefore agree that LOT’s Opposition will be filed under seal in the first 17 instance, subject to this Court’s approval. The Parties further agreed that, following LOT’s filing 18 of the Opposition under seal, as well as this accompanying Stipulation Motion and [Proposed] 19 Order: (1) the Parties would meet and confer to agree on appropriate redactions to the Opposition; 20 and, subject to the Court granting this Stipulated Motion, (2) LOT would file a redacted copy of 21 its Opposition on the public docket within seven (7) days of filing its Opposition. 22 The Parties are in further agreement that there is not another means of protecting the 23 commercially sensitive information in the AGTAs. 24 LCR 5(g)(3)(B) LEGAL STANDARD AND ARGUMENT 25 This Court applies a strong presumption favoring public access to court records that 26 ordinarily requires the moving party to provide compelling reasons to seal a document. STIPULATED MOTION AND ORDER FOR LEAVE TO 1 Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). But where the 2 underlying motion is non-dispositive, the showing required to rebut the presumption is far lower. 3 See, e.g., In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 4 (9th Cir. 2012) (holding that where the sealed records are “attached to a non-dispositive motion . 5 . . , the usual presumption of the public’s right of access is rebutted” (internal quotation marks 6 and citation omitted)); Kamakana, 447 F.3d at 1179 (“The public policies that support the right 7 of access to dispositive motions, and related materials, do not apply with equal force to non- 8 dispositive materials.”). 9 In the case of a non-dispositive motion, a “good cause” showing will suffice to seal any 10 records attached to the motion. Id. at 1180; see also Midland, 686 F.3d at 1119 (”[A] 11 particularized showing of ‘good cause’ under Federal Rule of Civil Procedure 26(c) is sufficient 12 to preserve the secrecy of sealed discovery documents attached to non-dispositive motions.” 13 (citation omitted)). Here, Boeing’s Motion to Dismiss is not a dispositive motion; it is a motion 14 to dismiss only some of the causes of the action. Therefore, the Court need only find good cause 15 exists to redact portions of LOT’s Opposition to Boeing’s Motion to Dismiss that address 16 confidential contractual terms. 17 Boeing and LOT agree that the AGTAs set out the contractual terms on which Boeing 18 sells commercial aircraft to its customers, including the terms of delivery, pricing, rebates, and 19 product warranties. Boeing does not publicly disclose information of this kind. It is particularly 20 sensitive because contracts between Boeing and its customers are heavily negotiated and subject 21 to confidential terms and conditions. Boeing and its customers negotiate those contracts with the 22 understanding that those commercial terms will not be disclosed to the public, thereby resulting 23 in competitive harm both to Boeing and to its customers. For precisely this reason, the AGTAs 24 contain provisions requiring the parties to treat as strictly confidential any information pertaining 25 to the AGTAs, including the documents as well as individual provisions contained therein. 26 Similarly, when airline customers lease Boeing aircraft (versus purchasing them outright), the STIPULATED MOTION AND ORDER FOR LEAVE TO 1 airline customer, such as LOT here, will execute assignments of certain rights under the lessor’s 2 AGTA, and the confidentiality provisions of the AGTAs are one such right assigned. 3 This Court has already granted Boeing leave to file under seal its Motion to Dismiss, 4 which quotes and summarizes many of the same portions of the AGTAs that LOT does in its 5 Opposition, for the same reasons as stated in this Stipulated Motion. See ECF No. 52. Other 6 courts have consistently permitted parties to redact similar contractual information on the grounds 7 that it is commercially and competitively sensitive. See, e.g., KM Enters., Inc. v. Glob. Traffic 8 Techs., Inc., 725 F.3d 718, 734 (7th Cir. 2013) (sealing “customer and pricing data”); Apple Inc. 9 v. Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (redacting “product-specific 10 financial information”); Amgen Inc. v. Amneal Pharms. LLC, 2021 WL 4843959, at *2 (D. Del. 11 Oct. 18, 2021) (sealing “contract price at which [manufacturer] sells the . . . product to each 12 customer” and the “chargebacks, rebates, and discounts provided to each customer”). As Judge 13 Posner reasoned, information of this type gives “unearned competitive advantage” to other firms, 14 and “the American public does not need to know [such information] in order to evaluate the 15 handling of this litigation by the judiciary.” SmithKline Beecham Corp. v. Pentech Pharms., Inc., 16 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003). 17 Disclosure of the contractual terms of AGTAs would result in harm to Boeing and its 18 customers. If another aircraft manufacturer learns of these terms, Boeing would be unfairly 19 disadvantaged because the competitor could craft its offers with full knowledge of the package 20 of pricing, services, and other terms that Boeing offers its customers. The result would be that 21 the competitor could craft its own proposals with unilateral insight into Boeing’s confidential 22 contracts. That unfair advantage would arise by virtue of the litigation process, not through any 23 earned business advantage. Likewise, such disclosure would also give other airline customers 24 (or aircraft lessees) access to confidential pricing, services, and other contract terms that Boeing 25 offers to the counterparties to the AGTAs at issue in this case, which would create unearned 26 leverage in negotiations with Boeing arising by virtue of a routine filing in a litigation unrelated STIPULATED MOTION AND ORDER FOR LEAVE TO 1 to those business entities, rather than through any earned competitive advantage. 2 Finally, the Parties do not propose keeping the entirety of the Opposition under seal. See 3 LCR 5(g)(3)(B)(iii) (requiring the least restrictive method to ensure protection of material to be 4 sealed). Instead, the Parties anticipate being able to redact only those portions that quote from or 5 specifically detail terms from the AGTAs. As soon as the Opposition is filed, and available to 6 Boeing for review, the Parties will work together to prepare such a redacted version for filing in 7 the public record. 8 CONCLUSION 9 For the foregoing reasons, the Parties respectfully request that this Court order the following 10 document be filed under seal: an unredacted copy of LOT’s Opposition to Boeing’s Motion to 11 Dismiss LOT’s First Amended Complaint. The Parties will submit a redacted copy for filing in the 12 public record within seven (7) days of the Court’s order sealing this Opposition. 13 IT IS SO STIPULATED by and between the Parties. 14 DATED: January 12, 2023 15 By: s/ Mirin Park By: s/ Ulrike B. Connelly 16 Mirin Park, WSBA No. 57983 Steve Y. Koh, WSBA No. 23284 17 Eric B. Wolff, WSBA No. 43047 Condon & Forsyth LLP Ulrike B. Connelly, WSBA No. 42478 18 600 Stewart Street Gregory F. Miller, WSBA No. 56466 Suites 300 & 400 Michelle L. Maley, WSBA No. 51318 19 Seattle, Washington 98101 Email: mpark@condonlaw.com Perkins Coie LLP 20 1201 Third Avenue, Suite 4900 21 Anthony U. Battista (pro hac vice) Seattle, WA 98101-3099 Diana Gurfel Shapiro (pro hac vice) Telephone: 206.359.8000 22 Evan Kwarta (pro hac vice) Facsimile: 206.359.9000 Mary Dow (pro hac vice) Email: SKoh@perkinscoie.com 23 EWolff@perkinscoie.com 24 Condon & Forsyth LLP UConnelly@perkinscoie.com 7 Times Square, 18th Floor GMiller@perkinscoie.com 25 New York, New York 10036 MMaley@perkinscoie.com Email: abattista@condonlaw.com 26 STIPULATED MOTION AND ORDER FOR LEAVE TO dgurfel@condonlaw.com Attorneys for Defendant 1 ekwarta@condonlaw.com The Boeing Company 2 mdow@condonlaw.com
3 Attorneys for Plaintiff Polskie Linie Lotnicze LOT S.A. 4
7 ORDER
8 Based upon the foregoing Stipulation, the Court hereby: 9 ORDERS, ADJUDGES AND DECREES that the unredacted copy of LOT’s 10 Opposition to Boeing’s Motion to Dismiss LOT’s First Amended Complaint may be filed under seal. 11 IT IS SO ORDERED. 12
13 DATED this 13th day of January, 2023.
14 A 15 RICARDO S. MARTINEZ 16 UNITED STATES DISTRICT JUDGE 17
20 Presented by: 21
22 By: s/ Mirin Park Mirin Park, WSBA No. 57983 23 Condon & Forsyth LLP 24 600 Stewart Street Suites 300 & 400 25 Seattle, Washington 98101 Email: mpark@condonlaw.com 26 STIPULATED MOTION AND ORDER FOR LEAVE TO Anthony U. Battista (pro hac vice) 1 Diana Gurfel Shapiro (pro hac vice) Evan Kwarta (pro hac vice) 2 Mary Dow (pro hac vice)
3 Condon & Forsyth LLP 7 Times Square, 18th Floor 4 New York, New York 10036 Email: abattista@condonlaw.com 5 dgurfel@condonlaw.com 6 ekwarta@condonlaw.com mdow@condonlaw.com 7 Attorneys for Plaintiff 8 Polskie Linie Lotnicze LOT S.A.
9 By: s/ Ulrike B. Connelly Steve Y. Koh, WSBA No. 23284 10 Eric B. Wolff, WSBA No. 43047 Ulrike B. Connelly, WSBA No. 42478 11 Gregory F. Miller, WSBA No. 56466 Michelle L. Maley, WSBA No. 51318 12 Perkins Coie LLP 13 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 14 Telephone: 206.359.8000 Facsimile: 206.359.9000 15 Email: SKoh@perkinscoie.com EWolff@perkinscoie.com 16 UConnelly@perkinscoie.com GMiller@perkinscoie.com 17 MMaley@perkinscoie.com
18 Attorneys for Defendant The Boeing Company 19 20 21 22 23 24 25 26 STIPULATED MOTION AND ORDER FOR LEAVE TO