United States District Court, District of Columbia
IN RE MCCORMICK & COMPANY, INC., PEPPER PRODUCTS MARKETING AND SALES PRACTICES LITIGATION This Document Relates To ALL CONSUMER S MDL No. 2665 Misc. No. 15-1825 (ESH)
SEGAL HUVELLE United States District Judge
plaintiffs have made antitrust, consumer protection, and
unjust enrichment claims against defendants related to
alleged fill reductions in pepper containers. After
dismissing plaintiffs' antitrust claim, the Court granted
plaintiffs' motion for reconsideration and allowed them
to file their Second Amended Consolidated Class Action
Complaint, ECF No. 129. The Court filed its opinion on the
motion for reconsideration, ECF No. 127, under seal and
invited the parties to propose redactions to the opinion,
because it referred to paragraphs in the complaint that were
based on material that defendants had produced in discovery
and designated as confidential pursuant to a protective
order. McCormick has moved for redactions of three types of
information that the Court cited from plaintiffs'
complaint: (1) quotations from and descriptions of internal
McCormick documents that discuss the challenged fill
reductions; (2) descriptions of the process by which
McCormick contacted retailers about the fill reductions and
responses from some retailers; and (3) plaintiffs'
statements of their theory that competition about fill levels
would have driven prices down. According to McCormick,
publicizing this information would create a misleading
picture of McCormick's conduct that could harm its
reputation. Plaintiffs oppose the redactions based on the
public interest in having access to the Court's full
opinion. Because the Court finds that the public interest in
access to the opinion outweighs the potential risk of
embarrassment to McCormick, it will deny McCormick's
motion and unseal the opinion without redactions.
is a “strong presumption in favor of public access to
judicial proceedings.” EEOC v. Nat'l
Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir.
1996) (quoting Johnson v. Greater Se. Cmty. Hosp.
Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)).
“[A]pproval of the Protective Order . . . does not mean
that references to protected information and documents in a
judicial opinion must be redacted.” Doe v. Exxon
Mobil Corp., 570 F.Supp.2d 49, 52 (D.D.C. 2008); see
Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). Rather,
the D.C. Circuit has instructed courts to decide whether to
redact or seal court records by considering six factors:
“(1) the need for public access to the documents at
issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the strength
of any property and privacy interests asserted; (5) the
possibility of prejudice to those opposing disclosure; and
(6) the purposes for which the documents were introduced
during the judicial proceedings.” Nat'l
Children's, 98 F.3d at 1409 (citing United
States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir.
the first factor - the need for public access - weighs
heavily against redaction. There is a “strong public
interest in the openness of judicial proceedings, which
exists irrespective of whether the proceedings at issue
relate to disputes among private litigants.” Upshaw
v. United States, 754 F.Supp.2d 24, 28 (D.D.C. 2010);
Am. Prof'l Agency, Inc. v. NASW Assurance Servs.,
Inc., 121 F.Supp.3d 21, 24 (D.D.C. 2013). Such openness
is essential to the integrity of judicial proceedings,
Upshaw, 754 F.Supp.2d at 30, and to public
understanding of the law, such as “what needs to be
pleaded to satisfy the pleading standard, ”
Guttenberg v. Emery, 26 F.Supp.3d 88, 92-93 (D.D.C.
2014). The presumption in favor of public access is
especially strong for judicial orders and opinions.
Exxon, 570 F.Supp.2d at 51-52; APA, 121
F.Supp.3d at 24; Upshaw, 754 F.Supp.2d at 28.
Redacting statements that are critical to a court's
analysis would substantially impede the public right of
access to judicial opinions. Guttenberg, 26
F.Supp.3d at 93-94, 97; Berliner Corcoran & Rowe LLP
v. Orian, 662 F.Supp.2d 130, 133 (D.D.C. 2009);
Exxon, 570 F.Supp.2d at 52. Plaintiffs'
allegations about McCormick's internal discussions
regarding the fill reduction, the communications between
McCormick and retailers, and plaintiffs' statements that
competing on fill level would have created downward pressure
on prices were central to the Court's analysis of the
motion for reconsideration. Without that information, the
public cannot understand why the Court concluded that
plaintiffs' proposed complaint did not plausibly allege
an anticompetitive agreement on fill level, but that
plaintiffs should be permitted to file the complaint because
they “seem[ed] to be intimating that their antitrust
claim can be based on an alternative theory that defendants
agreed to deceive consumers about the reduction in
fill.” (Mem. Opinion at 9-10, ECF No. 127.) Therefore,
the need for public access is a factor that strongly favors
unsealing the opinion in its entirety.
second factor - the extent of previous public access - weighs
against some proposed redactions and is neutral as to others.
“Previous access is a factor which may weigh in favor
of subsequent access.” Hubbard, 650 F.2d at
318. If there has been no previous access, this factor is
neutral. APA, 121 F.Supp.3d at 24. The information
about plaintiffs' theory is available in unredacted
paragraphs of the complaint, so this factor weighs against
redacting that information. The other proposed redactions
refer to redacted parts of the complaint, and the parties
have not provided the information in unredacted briefing, so
this factor is neutral as to that information.
asserted privacy interest and potential prejudice do not
outweigh the need for public access. “The third,
fourth, and fifth Hubbard factors are interrelated,
and require courts to look at the strength of the property
and privacy interests involved, and to take into account
whether anyone has objected to public disclosure and the
possibility of prejudice to that person.”
Upshaw, 754 F.Supp.2d at 29. Courts have denied
public access to “business information that might harm
a litigant's competitive standing.” Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978).
McCormick argues that “[d]isclosure of these selective
excerpts . . . could harm McCormick's competitive
standing by presenting otherwise confidential business
materials out of context . . . .” (Mot. Redact at 1-2,
ECF No. 130.) According to McCormick, “[a]
company's reputation is vital to its ability to succeed
in the market; that reputation is threatened and/or
undermined by the premature disclosure of internal company
communications . . . . Developed as part of a more fulsome
record (for example, on summary judgment or at trial),
additional context may be yielded which would allow
interested persons to properly weigh the importance” of
these excerpts. (Reply at 5, ECF No. 137). McCormick's
concern about its reputation does not rise to the level of
the privacy and property interests that courts have permitted
to outweigh the public's right of access. For example,
redaction may be appropriate for trade secrets and price
information. See Hubbard, 650 F.2d at 315; Ball
Mem'l Hosp., Inc. v. Mut. Hosp. Ins., Inc., 784 F.2d
1325, 1346 (7th Cir. 1986); Brown & Williamson
Tobacco Corp. v. FTC, 710 F.2d 1165, 1179-80 (6th Cir.
1983); Fudali v. Pivotal Corp., 623 F.Supp.2d 25, 28
(D.D.C. 2009). In contrast, “[s]imply showing that the
information would harm the company's reputation is not
sufficient to overcome the strong common law presumption in
favor of public access to court proceedings and
records.” Brown & Williamson, 710 F.2d at
1179; see Kamakana v. City & Cnty. of Honolulu,
447 F.3d 1172, 1179 (9th Cir. 2006); Joy, 692 F.2d
at 894; APA, 121 F.Supp.3d at 25. McCormick has not
argued that the information in the Court's opinion
betrays confidential business practices or strategy. Rather,
McCormick's only explanation for potential harm to its
competitive standing is that publishing the information
without McCormick's side of the story would damage the
company's reputation. Thus, McCormick's privacy
interest is not adequate to support redaction of the
the purpose for which the documents were introduced also
favors unsealing the complete opinion, although this factor
incorporates opposing considerations. Courts give more weight
to a party's objection to disclosure when the documents
at issue were obtained from that party in discovery,
especially when the party relied upon a protective order.
Friedman v. Sebelius, 672 F.Supp.2d 54, 61 (D.D.C.
2009); Tavoulareas v. Wash. Post Co., 111 F.R.D.
653, 659 (D.D.C. 1986). This Court recognizes that McCormick
produced the information at issue (other than statements of
plaintiffs' theory) to comply with plaintiffs'
discovery requests and that plaintiffs, not McCormick, have
provided excerpts to the Court. However, when information
produced by a party in discovery becomes critical to the
Court's analysis, as it is here, the
“purpose” factor does not support redaction.
Exxon, 570 F.Supp.2d at 52-53; see also
Guttenberg, 26 F.Supp.3d at 96.
the relevant factors, the Court finds that redaction is not
appropriate. There is an extremely strong public interest in
access to judicial opinions, and McCormick's proposed
redactions would prevent the public from seeing information
that was critical to the Court's analysis. Even though
McCormick turned over the information in discovery and it has
concerns about reputational harm, this does not overcome the
presumption in favor of openness. Thus, the Court will deny
McCormick's motion for redactions.
reasons discussed above, McCormick's motion at ECF No.
130 to redact the Memorandum Opinion dated March 21, 2017, is
denied. McCormick's motion at ECF No. 131 for leave to
file under seal its exhibit of proposed redactions is
granted. A separate Order accompanies this Memorandum
 However, the Court will permit the
exhibit in which McCormick highlighted its proposed
redactions to remain under seal. Although the docket text
accompanying plaintiffs' opposition to McCormick's
motion for redactions states that it is also a response to
McCormick's motion for leave to file the exhibit under
seal, the opposition does not even mention the latter motion,
let alone make any argument about why the exhibit should be
unsealed. (See Pls. Opp., ECF No. 136.) Highlighting
McCormick's proposed redactions for the public would
increase the potential embarrassment for McCormick without
enhancing public access to the Court's ...