The Honorable Arun Subramanian August 19, 2024 Daniel Patrick Moynihan U.S. Courthouse 500 Pearl St., Courtroom 15A New York, NY 10007 Re: United States et al. v. Live Nation Entertainment, Inc., et al., No. 1:24-cv-3973-AS Dear Judge Subramanian: Plaintiffs seek the Court’s leave to file under seal an Amended Complaint and to file a redacted version of the same on the public docket for the reasons stated below. Contemporaneous with the filing of this letter-motion, and in accordance with Paragraph 11(c)(iii) of the Court’s Individual Practices and Paragraph 9 of the Protective Order, ECF No. 213, Plaintiffs are (1) publicly filing on ECF a copy of the Amended Complaint with proposed redactions and (2) filing under seal on ECF an unredacted copy of the Amended Complaint with proposed redactions highlighted. Plaintiffs Seek Provisional Redaction of the Amended Complaint Solely to Comply with the Protective Order and the Court’s Individual Practices Plaintiffs request provisional redaction of the Amended Complaint only because it contains information that Defendants have designated as Confidential or Highly Confidential and have requested to be redacted. The Protective Order and Your Honor’s Individual Practices govern the procedures for filing such material on the Court’s docket. Those procedures are three-fold. First, if a person produces material designated Confidential or Highly Confidential, any other person that intends in good faith to make a filing on the Court’s docket containing such material may request that the producing party provide a version of the material “with the Highly Confidential or Confidential information redacted.” Protective Order ¶ 4. Such redactions “must be narrowly tailored to serve whatever purpose justifies the redaction or sealing and must be otherwise consistent with the presumption in favor of public access to judicial documents.” Individual Practices ¶ 11(B). Second, the filing party “should meet and confer with any opposing party . . . in advance to narrow the scope of the request” for redaction or sealing. Individual Practices ¶ 11(C)(i); accord Protective Order ¶ 9 (“The parties will use their best efforts to minimize such sealing.”). If, following that meet and confer, the opposing party or third party “has requested” that a document be filed “under seal or in redacted form,” then “the filing party shall notify the opposing party or third party that it must file, within three business days [of filing], a letter explaining the need to seal or redact the document.” Individual Practices ¶ 11(C)(i). Third, the filing party must file under seal “all portions of pleadings, motions, or other papers . . . that disclose such Highly Confidential or Confidential” material, and the filing “shall be . . . kept under seal until further order of the Court.” Protective Order ¶ 9. To do so, the filing party must “file a letter-motion seeking leave to file a document in redacted form,” which “shall be filed in public view” and “should explain the reasons for seeking to file the document in redacted form.” Individual Practices ¶ 11(C)(iii). highlighted.” Id. Plaintiffs followed these procedures as to both non-parties and Defendants. After conferrals, no non-party requested redaction of any information in the Amended Complaint. As to Defendants, Plaintiffs first identified the specific portions of documents designated Confidential or Highly Confidential that are the basis for the redacted portions of the Amended Complaint and asked Defendants to propose redactions to those documents. Plaintiffs sent Defendants such requests on June 13, June 26, and July 25. Defendants responded to the first two requests on July 2, 2024, and they responded to the third request on August 14, fourteen business days after it was made and three business days before the Amended Complaint was due to be filed. In an effort to eliminate, or at least narrow, the need for redactions, Plaintiffs requested on August 15 to meet and confer with Defendants about Defendants’ basis for the proposed redactions that are the subject of the present letter-motion. Defendants, however, did not make themselves available for such a conferral. Defendants Must Show “Extraordinary Circumstances” to Justify Any Continuing Redaction of the Amended Complaint Plaintiffs request provisional redaction of certain information from the Amended Complaint solely because Defendants requested such redaction. Plaintiffs do not believe, however, that the information at issue should remain sealed because it is not confidential or sensitive enough to overcome the “presumption of public access” to “judicial documents.” Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 141 (2d Cir. 2016). That presumption is “firmly rooted in our nation’s history,” deriving from both the common law and the First Amendment. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006). The presumption of public access applies with special force to a complaint because, among other things, (1) “[c]omplaints have historically been publicly accessible by default, even when they contain arguably sensitive information,” (2) “public access to the complaint and other pleadings has a ‘significant positive role’ in the functioning of the judicial process,” and (3) complaints “are highly relevant to the exercise of Article III judicial power” and “among the most likely [records] to affect judicial proceedings.” Bernstein, 814 F.3d at 141–42 (citation omitted). For core judicial documents like a complaint, the presumption of public access “is at its zenith, and thus can be overcome only be extraordinary circumstances.” Id. (citation omitted). “The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such action,” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997), and sealing “should not be done without a compelling reason,” City of Hartford v. Chase, 942 F.2d 130, 135 (2d Cir. 1991). Therefore, Defendants, as the only parties advocating continuing redaction of the Amended Complaint, have the burden to establish “a compelling reason” and “extraordinary circumstances” to maintain redactions. Defendants’ burden extends to each specific piece of information. See Brown v. Maxwell, 929 F.3d 41, 48–51 (2d Cir. 2019) (court must conduct “individualized review” and make “specific, on-the-record findings that sealing is necessary to preserve higher values”). Although Defendants have not yet explained their basis for their redaction Defendants can carry their burden of showing “extraordinary circumstances,” Bernstein, 814 F.3d at 142, or establishing that all of the redactions at issue are otherwise “consistent with the presumption in favor of public access to judicial documents.” Individual Practices § 11(B). Although Plaintiffs request a fuller opportunity to respond to any letter-motion to seal filed by Defendants, the redactions at issue do not appear to present a sufficient “risk of competitive disadvantage” to overcome the strong presumption of public access to complaints. See Wenger S.A. v. Olivet Int'l Inc., 2024 WL 3581796, at *2 (S.D.N.Y. June 25, 2024) (Subramanian, J.) (denying proposed redactions in a summary judgment opinion). Much, if not all, the information at issue appears to be sufficiently aggregated, non-specific, historical or otherwise competitively non-actionable, such that public disclosure would be unlikely to cause Defendants harm.
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The Honorable Arun Subramanian August 19, 2024 Daniel Patrick Moynihan U.S. Courthouse 500 Pearl St., Courtroom 15A New York, NY 10007 Re: United States et al. v. Live Nation Entertainment, Inc., et al., No. 1:24-cv-3973-AS Dear Judge Subramanian: Plaintiffs seek the Court’s leave to file under seal an Amended Complaint and to file a redacted version of the same on the public docket for the reasons stated below. Contemporaneous with the filing of this letter-motion, and in accordance with Paragraph 11(c)(iii) of the Court’s Individual Practices and Paragraph 9 of the Protective Order, ECF No. 213, Plaintiffs are (1) publicly filing on ECF a copy of the Amended Complaint with proposed redactions and (2) filing under seal on ECF an unredacted copy of the Amended Complaint with proposed redactions highlighted. Plaintiffs Seek Provisional Redaction of the Amended Complaint Solely to Comply with the Protective Order and the Court’s Individual Practices Plaintiffs request provisional redaction of the Amended Complaint only because it contains information that Defendants have designated as Confidential or Highly Confidential and have requested to be redacted. The Protective Order and Your Honor’s Individual Practices govern the procedures for filing such material on the Court’s docket. Those procedures are three-fold. First, if a person produces material designated Confidential or Highly Confidential, any other person that intends in good faith to make a filing on the Court’s docket containing such material may request that the producing party provide a version of the material “with the Highly Confidential or Confidential information redacted.” Protective Order ¶ 4. Such redactions “must be narrowly tailored to serve whatever purpose justifies the redaction or sealing and must be otherwise consistent with the presumption in favor of public access to judicial documents.” Individual Practices ¶ 11(B). Second, the filing party “should meet and confer with any opposing party . . . in advance to narrow the scope of the request” for redaction or sealing. Individual Practices ¶ 11(C)(i); accord Protective Order ¶ 9 (“The parties will use their best efforts to minimize such sealing.”). If, following that meet and confer, the opposing party or third party “has requested” that a document be filed “under seal or in redacted form,” then “the filing party shall notify the opposing party or third party that it must file, within three business days [of filing], a letter explaining the need to seal or redact the document.” Individual Practices ¶ 11(C)(i). Third, the filing party must file under seal “all portions of pleadings, motions, or other papers . . . that disclose such Highly Confidential or Confidential” material, and the filing “shall be . . . kept under seal until further order of the Court.” Protective Order ¶ 9. To do so, the filing party must “file a letter-motion seeking leave to file a document in redacted form,” which “shall be filed in public view” and “should explain the reasons for seeking to file the document in redacted form.” Individual Practices ¶ 11(C)(iii). highlighted.” Id. Plaintiffs followed these procedures as to both non-parties and Defendants. After conferrals, no non-party requested redaction of any information in the Amended Complaint. As to Defendants, Plaintiffs first identified the specific portions of documents designated Confidential or Highly Confidential that are the basis for the redacted portions of the Amended Complaint and asked Defendants to propose redactions to those documents. Plaintiffs sent Defendants such requests on June 13, June 26, and July 25. Defendants responded to the first two requests on July 2, 2024, and they responded to the third request on August 14, fourteen business days after it was made and three business days before the Amended Complaint was due to be filed. In an effort to eliminate, or at least narrow, the need for redactions, Plaintiffs requested on August 15 to meet and confer with Defendants about Defendants’ basis for the proposed redactions that are the subject of the present letter-motion. Defendants, however, did not make themselves available for such a conferral. Defendants Must Show “Extraordinary Circumstances” to Justify Any Continuing Redaction of the Amended Complaint Plaintiffs request provisional redaction of certain information from the Amended Complaint solely because Defendants requested such redaction. Plaintiffs do not believe, however, that the information at issue should remain sealed because it is not confidential or sensitive enough to overcome the “presumption of public access” to “judicial documents.” Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 141 (2d Cir. 2016). That presumption is “firmly rooted in our nation’s history,” deriving from both the common law and the First Amendment. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006). The presumption of public access applies with special force to a complaint because, among other things, (1) “[c]omplaints have historically been publicly accessible by default, even when they contain arguably sensitive information,” (2) “public access to the complaint and other pleadings has a ‘significant positive role’ in the functioning of the judicial process,” and (3) complaints “are highly relevant to the exercise of Article III judicial power” and “among the most likely [records] to affect judicial proceedings.” Bernstein, 814 F.3d at 141–42 (citation omitted). For core judicial documents like a complaint, the presumption of public access “is at its zenith, and thus can be overcome only be extraordinary circumstances.” Id. (citation omitted). “The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such action,” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997), and sealing “should not be done without a compelling reason,” City of Hartford v. Chase, 942 F.2d 130, 135 (2d Cir. 1991). Therefore, Defendants, as the only parties advocating continuing redaction of the Amended Complaint, have the burden to establish “a compelling reason” and “extraordinary circumstances” to maintain redactions. Defendants’ burden extends to each specific piece of information. See Brown v. Maxwell, 929 F.3d 41, 48–51 (2d Cir. 2019) (court must conduct “individualized review” and make “specific, on-the-record findings that sealing is necessary to preserve higher values”). Although Defendants have not yet explained their basis for their redaction Defendants can carry their burden of showing “extraordinary circumstances,” Bernstein, 814 F.3d at 142, or establishing that all of the redactions at issue are otherwise “consistent with the presumption in favor of public access to judicial documents.” Individual Practices § 11(B). Although Plaintiffs request a fuller opportunity to respond to any letter-motion to seal filed by Defendants, the redactions at issue do not appear to present a sufficient “risk of competitive disadvantage” to overcome the strong presumption of public access to complaints. See Wenger S.A. v. Olivet Int'l Inc., 2024 WL 3581796, at *2 (S.D.N.Y. June 25, 2024) (Subramanian, J.) (denying proposed redactions in a summary judgment opinion). Much, if not all, the information at issue appears to be sufficiently aggregated, non-specific, historical or otherwise competitively non-actionable, such that public disclosure would be unlikely to cause Defendants harm. If Defendants seek continued redaction of any information in the Amended Complaint, Plaintiffs request that Defendants be required to file a letter-motion to seal within three business days “explaining the need to seal or redact the document,” see Individual Practices § 11(C)(), and Plaintiffs further request an opportunity to respond to that letter-motion within three business days. Respectfully submitted, /s/ Bonny Sweeney BONNY SWEENEY Lead Trial Counsel The application for provisional sealing is Matthew R. Huppert granted. If Defendants want the unredacted . . : . United States Department of Justice complaint to remain under seal, they must Antitrust Division file a letter-motion within three business 450 Fifth Street N.W., Suite 4000 days explaining the basis for continued Washington, DC 20530 sealing. See Bernstein v. Bernstein Litowitz Telephone: (202) 725-0165 Berger & Grossmann LLP, 814 F.3d 132, Facsimile: (202) 514-7308 140 (2d Cir. 2016). Email:Bonny.Sweeney@usdo}j.gov The Clerk of Court is directed to terminate Attorneys for Plaintiff the motion at ECF No. 232. United States of America SO ORDERED.
Arun Subramanian, U.S.D.J. Date: August 19, 2024
Office of the Arizona Attorney General Kim Carlson McGee (admitted pro hac vice) Consumer Protection & Advocacy Section Assistant Attorney General 2005 N. Central Avenue Office of the Attorney General of Connecticut Phoenix, AZ 85004 165 Capitol Avenue Telephone: (602) 542-3725 Hartford, CT 06106 Fax: (602) 542-4377 Telephone: 860-808-5030 Robert.Bernheim@azag.gov Email: kim.mcgee@ct.gov Attorney for Plaintiff State of Arizona Attorney for Plaintiff State of Connecticut /s/ Amanda J. Wentz /s/ Elizabeth G. Arthur Amanda J. Wentz (admitted pro hac vice) Elizabeth G. Arthur (admitted pro hac vice) Assistant Attorney General Assistant Attorney General Arkansas Attorney General's Office Office of the Attorney General for the District 323 Center Street, Suite 200 of Columbia Little Rock, AR 72201 400 6th Street NW, 10th Floor Phone: (501) 682-1178 Washington, DC 20001 Fax: (501) 682-8118 Attorney for Plaintiff District of Columbia Email: amanda.wentz@arkansasag.gov Attorney for Plaintiff State of Arkansas /s/ Lizabeth A. Brady Lizabeth A. Brady /s/ Paula Lauren Gibson Director, Antitrust Division Paula Lauren Gibson (Admitted Pro Hac Liz.Brady@myfloridalegal.com Vice) Florida Office of the Attorney General Deputy Attorney General PL-01 The Capitol (CA Bar No. 100780) Tallahassee, FL 32399-1050 Office of the Attorney General 850-414-3300 California Department of Justice Attorney for Plaintiff State of Florida 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 /s/ Richard S. Schultz Tel: (213) 269-6040 Richard S. Schultz (Admitted pro hac vice) Email: paula.gibson@doj.ca.gov Assistant Attorney General Attorneys for Plaintiff State of California Office of the Illinois Attorney General Antitrust Bureau /s/ Conor J. May 115 S. LaSalle Street, Floor 23 Conor J. May (admitted pro hac vice) Chicago, Illinois 60603 Assistant Attorney General (872) 272-0996 cell phone Antitrust Unit f (312) 814-4209 facsimile Colorado Department of Law Attorney for Plaintiff State of Illinois Conor.May@coag.gov 1300 Broadway, 7th Floor /s/ Schonette J. Walker Denver, CO 80203 Schonette J. Walker (Admitted pro hac vice) Assistant Attorney General Telephone: (720) 508-6000 Chief, Antitrust Division Attorney for Plaintiff State of Colorado 200 St. Paul Place, 19th floor Baltimore, Maryland 21202 (410) 576-6470 Attorney for Plaintiff State of Maryland /Ks/a tKhaerthineeri nWe .W K.r eKmresm (sa d m itted pro hac /s/ Yale A. Leber vice) Yale A. Leber (admitted pro hac vice) Assistant Attorney General, Antitrust Division Deputy Attorney General Office of the Massachusetts Attorney New Jersey Office of the Attorney General General 124 Halsey Street, 5th Floor One Ashburton Place, 18th Floor Newark, NJ 07101 Boston, MA 02108 Phone: (973) 648-3070 (617) 963-2189 Attorney for Plaintiff State of New Jersey Attorney for Plaintiff Commonwealth of Massachusetts /s/ Jeremy R. Kasha Jeremy R. Kasha /s/ LeAnn D. Scott Assistant Attorney General LeAnn D. Scott (admitted pro hac vice) Jeremy.Kasha@ag.ny.gov Assistant Attorney General New York State Office of the Attorney General Corporate Oversight Division 28 Liberty Street Michigan Department of Attorney General New York, NY 10005 P.O. Box 30736 (212) 416-8262 Lansing, MI 48909 Attorney for Plaintiff State of New York Tel: (517) 335-7632 Attorney for Plaintiff State of Michigan /s/ Sarah G. Boyce Sarah G. Boyce (admitted pro hac vice) /s/ Zach Biesanz Deputy Attorney General & General Counsel Zach Biesanz North Carolina Department of Justice Senior Enforcement Counsel Post Office Box 629 Antitrust Division Raleigh, North Carolina 27602 zach.biesanz@ag.state.mn.us Phone: (919) 716-6000 Office of the Minnesota Attorney General Facsimile: (919) 716-6050 445 Minnesota Street, Suite 1400 Attorney for Plaintiff State of North Carolina Saint Paul, MN 55101 Phone: (651) 757-1257 /s/ Sarah Mader Attorney for Plaintiff State of Minnesota Sarah Mader (Admitted pro hac vice) Assistant Attorney General /s/ Lucas J. Tucker Antitrust Section Lucas J. Tucker (admitted pro hac vice) Office of the Ohio Attorney General Senior Deputy Attorney General 30 E. Broad St., 26th Floor Office of the Nevada Attorney General Columbus, OH 43215 Bureau of Consumer Protection Telephone: (614) 466-4328 100 N. Carson St. Attorney for Plaintiff State of Ohio Carson City, NV 89701 Email: ltucker@ag.nv.gov /s/ Caleb J. Smith Attorney for Plaintiff State of Nevada Caleb J. Smith (admitted pro hac vice) Assistant Attorney General /s/ Zachary Frish Consumer Protection Unit Zachary A. Frish (admitted pro hac vice) Office of the Oklahoma Attorney General Assistant Attorney General 15 West 6th Street Consumer Protection & Antitrust Bureau Suite 1000 New Hampshire Attorney General’s Office Tulsa, OK 74119 Department of Justice Telephone: 918-581-2230 1 Granite Place South Email: caleb.smith@oag.ok.gov Concord, NH 03301 Attorneys for Plaintiff State of Oklahoma (603) 271-2150 Attorney for Plaintiff State of New Hampshire /s/ Tim Nord Tim Nord (admitted pro hac vice) /s/ Diamante Smith Special Counsel Diamante Smith (admitted pro hac vice) Civil Enforcement Division Assistant Attorney General, Antitrust Division Oregon Department of Justice Trevor Young (admitted pro hac vice) 1162 Court Street NE Deputy Chief, Antitrust Division Salem, Oregon 97301 Office of the Attorney General of Texas Tel: (503) 934-4400 P.O. Box 12548 Fax: (503) 378-5017 Austin, TX 78711-2548 Attorney for Plaintiff State of Oregon (512) 936-1674 Attorney for Plaintiff State of Texas /s/ Joseph S. Betsko Joseph S. Betsko (admitted pro hac vice) /s/ Tyler T. Henry Assistant Chief Deputy Attorney General Tyler T. Henry (admitted pro hac vice) Antitrust Section Senior Assistant Attorney General Pennsylvania Office of Attorney General Office of the Attorney General of Virginia Strawberry Square, 14th Floor 202 North 9th Street Harrisburg, PA 17120 Richmond, Virginia 23219 Phone: (717) 787-4530 Telephone: (804) 786-2071 Attorney for Plaintiff Commonwealth of Facsimile: (804) 786-0122 Pennsylvania thenry@oag.state.va.us Attorney for Plaintiff Commonwealth of /s/ Paul T.J. Meosky Virginia Paul T.J. Meosky (admitted pro hac vice) Special Assistant Attorney General /s/ Rachel A. Lumen 150 South Main Street Rachel A. Lumen (admitted pro hac vice) Providence, RI 02903 Assistant Attorney General, Antitrust Division (401) 274-4400, ext. 2064 Washington Office of the Attorney General (401) 222-2995 (Fax) 800 Fifth Avenue, Suite 2000 Attorney for Plaintiff State of Rhode Island Seattle, WA 98104-3188 (206) 464-5343 /s/ Danielle A. Robertson Attorney for Plaintiff State of Washington Danielle A. Robertson (admitted pro hac vice) /s/ Douglas L. Davis Assistant Atorney General Douglas L. Davis (admitted pro hac vice) Office of the Attorney General of South Senior Assistant Attorney General Carolina Consumer Protection and Antitrust Section P.O. Box 11549 West Virginia Office of Attorney General Columbia, South Carolina 29211 P.O. Box 1789 DaniRobertson@scag.gov Charleston, WV 25326 (803) 734-0274 Phone: (304) 558-8986 Attorney for Plaintiff State of South Fax: (304) 558-0184 Carolina Attorney for Plaintiff State of West Virginia /s/ Hamilton Millwee /s/ Laura E. McFarlane Hamilton Millwee (admitted pro hac vice) Laura E. McFarlane (admitted pro hac vice) Assistant Attorney General Assistant Attorney General Office of the Attorney General and Wisconsin Department of Justice Reporter Post Office Box 7857 P.O. Box 20207 Madison, WI 53707-7857 Nashville, TN 38202 (608) 266-8911 Telephone: 615.291.5922 mcfarlanele@doj.state.wi.us /s/ William T. Young William T. Young Assistant Attorney General Wyoming Attorney General’s Office 109 State Capitol Cheyenne, WY 82002 (307) 777-7841 william.young@wyo,gov Attorney for the Plaintiff State of Wyoming