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 CASES
SEGAL HUVELLE UNITED STATES DISTRICT JUDGE
the Court are several motions relating to the sealing and
redaction of documents. Plaintiffs filed a Motion to Unseal
Opening Class Certification Papers (ECF No. 174 (“Mot.
to Unseal”)), arguing that defendants'
confidentiality designations as to materials produced during
discovery are overly broad, and since defendants have failed
to justify these designations, all documents should be
unsealed and unredacted in full. Also at issue are
defendants' several motions to seal documents (ECF Nos.
160, 163, 177, and 179), which plaintiffs oppose, as well as
plaintiffs' two motions to seal documents (ECF Nos. 157
and 172), which plaintiffs filed in compliance with the
parties' Stipulated Protective Order (ECF No. 48), but
they argue against the sealing of these documents.
question is whether defendants' confidentiality
designations justify allowing significant redactions to
pleadings and related declarations, in addition to the
complete sealing of hundreds of pages of exhibits. Last year,
this Court addressed potential redactions in a judicial
opinion related to plaintiffs' amended complaint. See
In re McCormick & Co., Inc., Pepper Prods. Mktg.
& Sales Practices Litig., 275 F.Supp.3d 218 (D.D.C.
2017). The Court, concluding that the public interest in
access to judicial records outweighed McCormick's
interest in avoiding reputational harm, overruled
McCormick's objections and published its opinion without
redactions. In re McCormick & Co., Inc., No.
15-mc-1825, 2017 WL 2560911, at *1 (D.D.C. June 13, 2017).
Now, pleadings and declarations associated with the
plaintiffs' motion for class certification, the motion to
unseal, and the joint motion to exclude plaintiffs'
expert, Armando Levy, are at issue. In addition to the
extensive redaction of multiple pleadings and declarations,
defendants ask that hundreds of pages of exhibits attached to
these declarations remain under seal.
who are purchasers of defendant McCormick's black pepper,
allege in their complaint that defendants “had a
statutory duty to refrain from unfair or deceptive acts or
practices in the promotion and sale of McCormick black pepper
or store-branded black pepper, ” (Second Am. Compl.
Consol. Class Action Compl. ¶ 115, ECF No. 128), and
that they “violated this duty by selling black pepper
in non-transparent containers containing nonfunctional
slack-fill.” (Id. ¶ 116.)
21, 2017, plaintiffs moved to certify three multistate
classes under the consumer protection and unjust enrichment
laws of more than thirty states and the District of Columbia,
claiming that McCormick and Wal-Mart violated these laws when
they knowingly sold black pepper in non-transparent
containers containing non-functional slack fill, intending to
minimize or eliminate consumers' ability to notice the
reduced quantity of pepper by maintaining the same price and
container size. (See Mot. for Class Cert. at 1-15,
ECF No. 157-2.)
plaintiffs filed their memo in support of class
certification, they moved to file it under seal (ECF No. 157)
pursuant to the parties' Protective Order, and they filed
a redacted version on the public docket as well. (ECF No.
159.) Redactions appear in the Table of Contents and on the
following pages: 1-2, 4-5, 7-15, 18, 21, 23-24, 35, and
37-39. McCormick also filed a redacted version of its
opposition to class certification (ECF No. 161) and moved to
file an unredacted version under seal. (ECF No. 160.)
These redactions appear on the following pages: 1 n.2, 4-6,
10, 19, 23-25, and 25 n.29. Finally, plaintiffs filed a
redacted reply to McCormick's opposition to class
certification (ECF No. 168) and moved to file an unredacted
version under seal. (ECF No. 172.) Plaintiffs' reply
includes redactions on the following pages: 8-9 & n. 10,
from the class certification pleadings, Wal-Mart filed its
opposition to plaintiffs' motion to unseal with
redactions and attached two redacted exhibits (ECF No. 180)
and moved to file an unredacted version under seal. (ECF No.
179.) Exhibit A is the letter Wal-Mart's attorney Andrew
Klevorn wrote in response to plaintiffs' initial
challenge to defendants' confidentiality designations.
(“Klevorn Letter, ” ECF No. 179-1.) Exhibit B is
the Declaration of Wal-Mart employee Kassie Keeter, which
identifies and explains commercially sensitive information
that appears in Wal-Mart's exhibits. (“Keeter
Decl., ” ECF No. 179-1.)
three redacted class certification pleadings are at
issue-plaintiffs' motion, McCormick's opposition, and
plaintiffs' reply to McCormick-as well as Wal-Mart's
opposition to plaintiffs' motion to unseal and the two
exhibits attached to the opposition. Plaintiffs challenge all
Declarations and Reports
plaintiffs and McCormick attach declarations, reports, and
exhibits to their class certification pleadings. Several of
these documents are heavily redacted or filed entirely under
Fegan Declaration-describing plaintiffs' underlying
merits case-was filed as an affidavit in support of the class
certification motion. (ECF No. 157-3.) Large swathes of the
Fegan Declaration are redacted (ECF No. 158), including
portions of pages 2, 5-17, 20-26, and 30-32. Most of the
redacted information comes from defendants' documents,
produced in discovery, which were filed as Exhibits 101-143
to the Fegan Declaration. (See ECF No. 157.)
Defendants say very little about the Fegan Declaration.
also filed a sealed copy of the report written by their
damages expert, Armando Levy, as Exhibit 100 to the Fegan
Declaration. (“Levy Report, ” ECF No. 157-4).
McCormick does not object to unsealing the Levy Report so
long as “any references . . . to confidential materials
[are] appropriately redacted.” (McCormick Opp. to
Unseal at 3 n.2, ECF No. 176.) Wal-Mart appears to adopt a
similar position, but expresses concern that the report shows
how many “units of select McCormick-supplied black
pepper products” Wal-Mart sold in each state for each
month over the course of more than two years, as well as
“Wal-Mart's net sales of those products in each
state for the same period.” (Wal-Mart Opp. to Unseal at
3, ECF No. 179-1; see also Id. at 7 (requesting that
the Court maintain under seal “Wal-Mart documents
attached to Plaintiffs' Motion for Class Certification
and referenced in Dr. Levy's report”).)
Schmitt Declaration Exhibits
filed the Schmitt Declaration as an affidavit in support of
its opposition to class certification. (ECF No. 162.) Though
the Schmitt Declaration itself contains no redacted material,
McCormick moved to file three attachments to it under seal.
(ECF No. 160.) These include the Hester Declaration as
Exhibit 16 (ECF No. 160-3 (hereinafter “Hester
Decl.”)); the Johnson Expert Report as Exhibit 19 (ECF
No. 160-4 (hereinafter “Johnson Report”)); and
selected Levy Deposition Excerpts as Exhibit 20. (ECF No.
160-5 (hereinafter “Levy Deposition Excerpts”).)
support its argument that the Hester Declaration contains
confidential business information, McCormick relies on the
Declaration of Richard M. Morse, McCormick's Vice
President of Global Customers. (ECF No. 176-6.) McCormick
cites Morse to show that the Hester Declaration contains
“information regarding the sourcing and density of
McCormick pepper, packaging processes and strategy, and
historical filling practices” (McCormick's Reply to
Seal Opp. to Class Cert. at 4), and argues that its
disclosure “could harm McCormick” (McCormick Opp.
to Unseal at 10), and that “none of this information is
already available to the public.” (Id. at 6.)
Plaintiffs respond that the Hester Declaration “is
devoid of any information that could harm Defendants, ”
characterizing it as containing “general, historical
discussions.” (Opp. to Sealing McCormick Opp. at 7.)
Johnson Report receives limited attention from the parties.
Plaintiffs oppose the motion to file it under seal and lump
together their analysis of the Levy Report, the Johnson
Report, and the Hester Declaration. (See, e.g., Opp.
to Sealing McCormick Opp. at 5 (referring to all three
documents and explaining that they “were filed with the
Court and introduced into evidence as part of the class
certification briefing”).) Plaintiffs describe
“Dr. Johnson's report [as] focused on refuting the
conclusions in Dr. Levy's report.” (Id. at
7.) McCormick states that the Johnson Report refers to
“market research on changes to the pepper containers
and reaction to those changes, third-party sales data,
McCormick documents discussing the qualities and sourcing of
pepper, and filling practices, and fill weights of McCormick
pepper containers.” (McCormick's Reply in Supp. of
Mot. to Seal Opp. to Class Certification at 5, ECF No. 175
(“McCormick's Reply to Seal Opp. to Class
argue that no redactions to these documents (the Fegan
Declaration, the Hester Declaration, the Levy Report, and the
Johnson Report) are justified.
Fegan Declaration Exhibits 101-143
to the Fegan Declaration, plaintiffs filed 45 sealed exhibits
consisting of more than 200 pages. Forty-three of these are
company documents that defendants produced in discovery and
designated as “confidential” or “highly
confidential.” (McCormick Opp. to Unseal at 4-5;
Wal-Mart Opp. to Unseal at 2.) McCormick produced forty of
these documents, and Wal-Mart produced three. (McCormick Opp.
to Unseal at 2.) As above, plaintiffs argue that defendants
have failed to demonstrate that these documents are properly
designated as confidential and therefore challenge all
designations and oppose sealing all Fegan Declaration
Exhibits. (Mot. to Unseal ¶¶ 1, 9.)
MOTION TO EXCLUDE EXPERT REPORT & OPINIONS
August 28, 2017, defendants jointly moved to exclude the
report and opinions of plaintiffs' expert, Dr. Armando
Levy. (ECF No. 164 (“Mot. to Exclude”).)
Plaintiffs retained Levy to calculate class-wide damages. He
relied on facts and data in defendants' documents to draw
conclusions about pepper sales and fill levels in the pepper
containers and to explain his damage calculations. (See,
e.g., id. ¶ 20 n.16 & Ex. B-2.)
filed a redacted version of their memo in support of the
motion to exclude the Levy Report (ECF No. 164-1) and moved
to file the unredacted version under seal. (ECF No. 163.)
Redactions appear on the following pages: 2 & n.4, 3-7.
Plaintiffs filed a redacted version of their opposition (ECF
No. 170) and moved to file an unredacted version under seal.
(ECF No. 172.) These redactions appear on the following
pages: 2-3, 5, 7 & n.2, 9, 14. Finally, defendants filed
a redacted reply (ECF No. 178) and moved to file an
unredacted version under seal. (ECF No. 177.) Defendants'
reply includes redactions on the following pages: 3-4, 7 n.6.
As a result, three redacted pleadings relating to the motion
to exclude are at issue. Plaintiffs oppose all redactions.
(Pls.' Opp. to Defs.' Mot. to File Mot. to Exclude
Under Seal, ECF No. 173.)