MorrisonCohenus April 26, 2023 Submitted via ECF The Honorable John P. Cronan United States District Court Southern District of New York 500 Pearl Street, Room 1320 New York, New York 10007 Re: — Sterling Select II Advisory LLC v. Argus Information & Advisory Services, LLC, and Argus Information and Advisory Services, Inc., No. 1:23-cv-02939- JPC Dear Judge Cronan: Counsel for Plaintiff Sterling Select I] Advisory LLC (“Plaintiff”) and Defendants Argus Information & Advisory Services, LLC, and Argus Information and Advisory Services, Inc. (“Defendants”) (together, “the Parties”), write this joint letter, pursuant to Rule 4.B.i1 of Your Honor’s Individual Rules and Practices in Civil Cases to seek leave to file: (1) a revised version of Plaintiff's redacted Complaint; and (2) an unredacted version of the Complaint under seal. On March 8, 2023, Plaintiff filed its Complaint in the Supreme Court of the State of New York, New York County. See Dkt. No. 1-1, Ex. A (“Compl.”). That same day, Plaintiff also filed an Order to Show Cause requesting permission to redact certain paragraphs in the Complaint and to file an unredacted version of the Complaint under seal. See Dkt. No. 1, Exs. C-D. While the Order to Show Cause was pending, Defendants filed their Notice of Removal on April 7, 2023, removing the action to this Court. See Dkt. No. 1 (“Notice of Removal”). Following removal, and in accordance with Rule 4.B.1 of the Court’s Individual Rules and Practices in Civil Cases, the Parties conferred to narrow the scope of the proposed redactions to the Complaint. Upon further review of the applicable law and the relevant materials, the Parties now seek to: (1) redact Plaintiff's Complaint in a more limited form, and (2) file the unredacted Complaint under seal. The Parties are aligned with regards to the requested redactions. A. BACKGROUND OF THE PARTIES’ DISPUTE This case arises out of disputes related to a series of contracts executed by the Parties. As set forth in the Complaint, Plaintiff is a venture development and investment platform while Defendants provide proprietary insights and data into consumer purchaser behaviors. Compl. □ 6, 12. The Parties’ business relationship began in 2016 when they executed a Business Development Agreement (“BDA”) and a contemporaneous Statement of Work to potentially develop data analytics products in the Sports & Entertainment (“S&E”) Sector. Jd. 9] 17-18, 25. Between 2016 and 2020, the Parties executed several additional Statements of Work in which they agreed to, among other things, further develop and commercialize an S&E product and to re-define the revenue share structure between the Parties. /d. 9 30-51. The agreements executed by the Parties contain confidentiality provisions to protect certain confidential information and
B. DETAILS REGARDING DEFENDANTS’ TRADE SECRETS SHOULD BE REDACTED AND FILED UNDER SEAL Here, information regarding the development and functionalities of the S&E product that is the subject of this action is proprietary. Accordingly, the Parties seek leave to redact paragraphs 25, 114, 116, and 145 of Plaintiff’s Complaint because they reveal specific details regarding the functionality of the S&E product. Although the Complaint is a “judicial document” to which a presumption of public access applies, see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006), that presumption must be balanced against countervailing factors, such as whether the materials at issue contain trade secrets or reveal commercially sensitive and proprietary information. See Standard Inv. Chartered, Inc. v. Fin. Indus. Regul. Auth. Ind., 347 F. App’x 615, 617 (2d Cir. 2009) (affirming that a party’s “interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access” (citation omitted)). Indeed, the presumption of public access can be overcome when the disclosure of information would reveal trade secrets, confidential business strategy, financials, and other sensitive information that could place a party at a competitive disadvantage. See GoSmile, Inc. v. Levine, 769 F. Supp. 2d 630, 649 (S.D.N.Y. 2011) (“When litigation requires disclosure of trade secrets, the court may disclose certain materials only to the attorneys involved.” (citation omitted)). A trade secret “is any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Encyclopedia Brown Prods. v. Home Box Office, 26 F. Supp. 2d 606, 613 (S.D.N.Y. 1998) (citation omitted). Courts in this district consider the following factors to determine whether information constitutes a trade secret: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. EarthWeb, Inc. v. Schlack, 71 F. Supp. 2d 299, 314 (S.D.N.Y. 1999) (internal citations omitted). The information contained in paragraphs 25, 114, 116, and 145 of Plaintiff’s Complaint reveal commercially sensitive details about an S&E product that the Parties have spent significant time and resources developing. Information regarding this product is not readily known to competitors, not readily accessible to the general public, and the product itself is not easily duplicated. As such, the information contained in these paragraphs should be protected from unnecessary public disclosure. See GoSmile, 769 F. Supp. 2d at 649–50 (granting motion to seal documents containing “highly proprietary” trade secret information regarding “product development”). In addition, this request is narrowly tailored to apply only to the paragraphs that the Parties believe are absolutely necessary to protect such information. As such, this request is consistent with Lugosch, 435 F.3d at 120. C. DETAILS REGARDING THE PARTIES’ CONFIDENTIAL, COMPETITIVELY SENSITIVE COMMERCIAL AND FINANCIAL INFORMATION SHOULD REMAIN UNDER SEAL In addition, details relating to the Parties’ respective confidential, competitively sensitive commercial and financial information should remain under seal. Specifically, Paragraphs 26-27, 29-30, 35, 43, 45-46, 48, 51-53, 138, 145, 177, 180, 265, 269-270, and 309 of the Complaint include non-public, competitively sensitive commercial and financial information regarding strategy, compensation, and revenue share as between the Parties. Public disclosure of this confidential information would irreparably harm the Parties in their future efforts to negotiate similar agreements or could be exploited by the Parties’ competitors. Accordingly, the interest in maintaining the confidentiality of this information outweighs the public interest in disclosure. See Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y.
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MorrisonCohenus April 26, 2023 Submitted via ECF The Honorable John P. Cronan United States District Court Southern District of New York 500 Pearl Street, Room 1320 New York, New York 10007 Re: — Sterling Select II Advisory LLC v. Argus Information & Advisory Services, LLC, and Argus Information and Advisory Services, Inc., No. 1:23-cv-02939- JPC Dear Judge Cronan: Counsel for Plaintiff Sterling Select I] Advisory LLC (“Plaintiff”) and Defendants Argus Information & Advisory Services, LLC, and Argus Information and Advisory Services, Inc. (“Defendants”) (together, “the Parties”), write this joint letter, pursuant to Rule 4.B.i1 of Your Honor’s Individual Rules and Practices in Civil Cases to seek leave to file: (1) a revised version of Plaintiff's redacted Complaint; and (2) an unredacted version of the Complaint under seal. On March 8, 2023, Plaintiff filed its Complaint in the Supreme Court of the State of New York, New York County. See Dkt. No. 1-1, Ex. A (“Compl.”). That same day, Plaintiff also filed an Order to Show Cause requesting permission to redact certain paragraphs in the Complaint and to file an unredacted version of the Complaint under seal. See Dkt. No. 1, Exs. C-D. While the Order to Show Cause was pending, Defendants filed their Notice of Removal on April 7, 2023, removing the action to this Court. See Dkt. No. 1 (“Notice of Removal”). Following removal, and in accordance with Rule 4.B.1 of the Court’s Individual Rules and Practices in Civil Cases, the Parties conferred to narrow the scope of the proposed redactions to the Complaint. Upon further review of the applicable law and the relevant materials, the Parties now seek to: (1) redact Plaintiff's Complaint in a more limited form, and (2) file the unredacted Complaint under seal. The Parties are aligned with regards to the requested redactions. A. BACKGROUND OF THE PARTIES’ DISPUTE This case arises out of disputes related to a series of contracts executed by the Parties. As set forth in the Complaint, Plaintiff is a venture development and investment platform while Defendants provide proprietary insights and data into consumer purchaser behaviors. Compl. □ 6, 12. The Parties’ business relationship began in 2016 when they executed a Business Development Agreement (“BDA”) and a contemporaneous Statement of Work to potentially develop data analytics products in the Sports & Entertainment (“S&E”) Sector. Jd. 9] 17-18, 25. Between 2016 and 2020, the Parties executed several additional Statements of Work in which they agreed to, among other things, further develop and commercialize an S&E product and to re-define the revenue share structure between the Parties. /d. 9 30-51. The agreements executed by the Parties contain confidentiality provisions to protect certain confidential information and
B. DETAILS REGARDING DEFENDANTS’ TRADE SECRETS SHOULD BE REDACTED AND FILED UNDER SEAL Here, information regarding the development and functionalities of the S&E product that is the subject of this action is proprietary. Accordingly, the Parties seek leave to redact paragraphs 25, 114, 116, and 145 of Plaintiff’s Complaint because they reveal specific details regarding the functionality of the S&E product. Although the Complaint is a “judicial document” to which a presumption of public access applies, see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006), that presumption must be balanced against countervailing factors, such as whether the materials at issue contain trade secrets or reveal commercially sensitive and proprietary information. See Standard Inv. Chartered, Inc. v. Fin. Indus. Regul. Auth. Ind., 347 F. App’x 615, 617 (2d Cir. 2009) (affirming that a party’s “interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access” (citation omitted)). Indeed, the presumption of public access can be overcome when the disclosure of information would reveal trade secrets, confidential business strategy, financials, and other sensitive information that could place a party at a competitive disadvantage. See GoSmile, Inc. v. Levine, 769 F. Supp. 2d 630, 649 (S.D.N.Y. 2011) (“When litigation requires disclosure of trade secrets, the court may disclose certain materials only to the attorneys involved.” (citation omitted)). A trade secret “is any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Encyclopedia Brown Prods. v. Home Box Office, 26 F. Supp. 2d 606, 613 (S.D.N.Y. 1998) (citation omitted). Courts in this district consider the following factors to determine whether information constitutes a trade secret: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. EarthWeb, Inc. v. Schlack, 71 F. Supp. 2d 299, 314 (S.D.N.Y. 1999) (internal citations omitted). The information contained in paragraphs 25, 114, 116, and 145 of Plaintiff’s Complaint reveal commercially sensitive details about an S&E product that the Parties have spent significant time and resources developing. Information regarding this product is not readily known to competitors, not readily accessible to the general public, and the product itself is not easily duplicated. As such, the information contained in these paragraphs should be protected from unnecessary public disclosure. See GoSmile, 769 F. Supp. 2d at 649–50 (granting motion to seal documents containing “highly proprietary” trade secret information regarding “product development”). In addition, this request is narrowly tailored to apply only to the paragraphs that the Parties believe are absolutely necessary to protect such information. As such, this request is consistent with Lugosch, 435 F.3d at 120. C. DETAILS REGARDING THE PARTIES’ CONFIDENTIAL, COMPETITIVELY SENSITIVE COMMERCIAL AND FINANCIAL INFORMATION SHOULD REMAIN UNDER SEAL In addition, details relating to the Parties’ respective confidential, competitively sensitive commercial and financial information should remain under seal. Specifically, Paragraphs 26-27, 29-30, 35, 43, 45-46, 48, 51-53, 138, 145, 177, 180, 265, 269-270, and 309 of the Complaint include non-public, competitively sensitive commercial and financial information regarding strategy, compensation, and revenue share as between the Parties. Public disclosure of this confidential information would irreparably harm the Parties in their future efforts to negotiate similar agreements or could be exploited by the Parties’ competitors. Accordingly, the interest in maintaining the confidentiality of this information outweighs the public interest in disclosure. See Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (allowing redacted filings where “Plaintiffs’ proposed redactions are generally limited to specific business information and strategies, which, if revealed, may provide valuable insights into a company’s current business practices that a competitor would seek to exploit” (citation omitted)). Because courts routinely grant motions to seal such sensitive business information to prevent injury to a party, and because the Parties seek only to seal information as is necessary, the Parties respectfully request the Court grant them leave to redact paragraphs 25—27, 29-30, 35, 43, 45-46, 48, 51-53, 114, 116, 138, 145, 177, 180, 265, 269-270, and 309 of the Complaint and to file an unredacted version of the Complaint under seal. We are available at Your Honor’s convenience if the Court requires any additional information. Sincerely,
Court has considered the parties’ arguments in favor of /s/ Brie Kuwana Kuwana sealing for portions of the Complaint in this Enc Kuwana ALSTON & BIRD LLP under the standard articulated in Lugosch v. Counsel for Defendants Argus I . . ‘gus Information Co. of Onondaga, 435 . F.3d 110 . (2d Cir. & Advisory Services, LLC, and Argus For the reasons stated in the parties’ letter Information and Advisory Services, Inc. sealing, Dkt. 15, the Court finds the continued sealing appropriate. The parties //fgword P. Gilbert file the proposed partially redacted Complaint WORRISONCOHENLIP © the full unredacted Complaint under seal. The Clerk — Counsel for Plaintiff Sterling Select II Court is respectfully directed to close the motion at Advisory LLC 15.
SO ORDERED. Date: May 22, 2024 VfB New York, New York ° JOHN P. CRONAN United States District Judge