Opinion
16-cv-07001-MMC
03-21-2024
TAMARA MOORE, et al., Plaintiffs, v. MARS PETCARE US, INC., et al., Defendants.
AMENDED [*]
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' ADMINISTRATIVE MOTIONS TO SEAL; DIRECTIONS TO PLAINTIFFS
MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE
Before the Court are four Administrative Motions, filed January 17, 2024 (Doc. Nos. 376, 379, 381, 383), whereby plaintiffs seek to file under seal the following materials, which, plaintiffs state, have been designated as confidential by other parties: (1) portions of “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Royal Canin U.S.A., Inc.,” “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Mars Petcare US, Inc.,” and “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Hills Pet Nutrition, Inc.” ("Supplemental Motions"); and (2) various exhibits attached to the “Declaration of Edward J. Coyne III in Support of Plaintiffs' Supplemental Memoranda of Point and Authorities in Support of Its Motions for Class Certification Against Defendants” ("Coyne Declaration"). Responses to the Administrative Motions have been filed by non-parties Banfield and PetSmart LLC and defendants Hills Pet Nutrition (“Hills”), Royal Canin U.S.A., Inc. (“Royal Canin”), and Mars Petcare US, Inc (“Mars”).
The Court having read and considered the above-referenced submissions, the Administrative Motions are hereby GRANTED in part and DENIED in part as follows:
1. To the extent the Administrative Motions (Doc. Nos. 379, 381, 383) seek leave to file under seal portions of the Supplemental Motions, the Administrative Motions are, as set forth below, GRANTED in part and DENIED in part.
a. The Administrative Motion (Doc. No. 379) as to “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Hills Pet Nutrition, Inc.,” is GRANTED as to the following:
(1) the reference to Ex. 64 on page 8 (lines 13-16)
(2) the reference to Ex. 65 on page 8 (lines 16-18)
(3) the reference to Ex. 72 on page 16 at footnote 17 (lines 27-28)
(4) the reference to Ex. 89 on page 14 (lines 11-14)
(5) the reference to Ex. 92 on page 15 (lines 13-14)
(6) the reference to Ex. 93 on page 15 (lines 17-19) and page 16 (lines 10 12)
(7) the reference to Ex. 96 on page 15 (lines 23-24)
(8) the reference to Ex. 66 on page 8 (lines 19-20).
In all other respects, the Administrative Motion is DENIED as to portions of “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Hills Pet Nutrition, Inc.,” good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
b. The Administrative Motion (Doc. No. 381) as to “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Royal Canin U.S.A., Inc.” is GRANTED as to the following:
(1) the percentage between “approximately” and “of PPF” on page 11, line 4
(2) the percentage between “approximately” and “of RC sales” on page 11,
line 6
(3) the percentage between “in 2017” and “of RC's” on page 11, line 11
(4) the percentage between “made up” and “of sales” on page 11, line 13
(5) the percentage between “approximately” and “of RC VD sales” on page 15, line 25
(6) the percentage after “alone making up” on page 15, line 25
(7) the number after “from approximately” on page 15, line 26
(8) the number between “approximately” and “in 2017” on page 15, line 27.
In all other respects, the Administrative Motion is DENIED as to portions of “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Royal Canin U.S.A., Inc.,” good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
c. The Administrative Motion (Doc. No. 383) as to “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Mars Petcare US, Inc.” is GRANTED as to the following:
(1) number between "Iams was selling approximately" and "worth of PPF" on page 2, line 19.
In all other respects, the Administrative Motion is DENIED as to portions of “Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Its Motion for Class Certification Against Defendant Mars Petcare US, Inc.,” good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
2. To the extent the Administrative Motion (Doc. No. 376) seeks leave to file under seal exhibits attached to the Coyne Declaration, the Administrative Motion is, as set forth below, GRANTED in part and DENIED in part.
a. As to Exhibits 11, 15, 17, 30, 37, 65, 89, 92, 96, 134, 145, 157, the
Administrative Motion is GRANTED.
b. As to Exhibit 9, the Administrative Motion is GRANTED as to the following: (1) pages Royal Canin121710 through Royal Canin121714
(2) pages Royal Canin121722 through Royal Canin121727
(3) pages Royal Canin121732 through Royal Canin121733.
As to all other portions of Exhibit 9, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
c. As to Exhibit 12, the Administrative Motion is GRANTED as to the following:
(1) page Royal Canin123961
(2) all bullets except for the bullet starting with “Experiences in Vet school” on page Royal Canin123963
(3) page Royal Canin123981 through the end of the exhibit.
As to all other portions of Exhibit 12, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
d. As to Exhibit 19, the Administrative Motion is GRANTED as to the following:
(1) pages 6, 8, and 10
(2) the “objectives” box, “strategy” box, and the email address identified in the “approval process” on page 12.
The pages used in this Order for Exhibits 19, 64, 72, and 73 are the pages described by Hills as “pdf p.” or “pdf pp.” (See Doc. 387-2.)
As to all other portions of Exhibit 19, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
e. As to Exhibit 22, the Administrative Motion is GRANTED as to the following:
(1) the second page of the exhibit (slide 3)
(2) all text except for row “e” on the third page of the exhibit (slide 5)
(3) the final page of the exhibit (slide 8).
As to all other portions of Exhibit 22, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
f. As to Exhibit 64, the Administrative Motion is GRANTED as to the following:
(1) pages 5 and 17 through 21
(2) the “contextual advertising” and “promoted content” bullets on page 6. As to all other portions of Exhibit 64, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
g. As to Exhibit 66, the Administrative Motion is GRANTED as to the following:
(1) page 182, line 5 through page 185, line 12
(2) page 185, line 22 through page 186, line 23
(3) page 187, lines 9 through 22
(4) page 188, lines 13 through 20
(5) page 189, lines 16 through 19
(6) page 190, lines 5 through 8.
As to all other portions of Exhibit 66, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
h. As to Exhibit 69, the Administrative Motion is GRANTED as to the following:
(1) all text starting at the third email on page Royal Canin050871 through end of the exhibit.
As to all other portions of Exhibit 69, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
i. As to Exhibit 71, the Administrative Motion is GRANTED as to the following:
(1) the second email of the chain on page Royal Canin223357
(2) from the beginning of page Royal Canin223358 until the email from Leah Wilkinson
(3) the phone number in the email signature on page Royal Canin223359. As to all other portions of Exhibit 71, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
j. As to Exhibit 72, the Administrative Motion is GRANTED as to the following:
(1) page 5
(2) the list of sources from which the data was compiled that is included under the images on pages 6 through 9
(3) pages 11 through 12, 18, 20 through 21,23 through 24, 31, 33, 36, and 38.
As to all other portions of Exhibit 72, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
k. As to Exhibit 73, the Administrative Motion is GRANTED as to the following:
(1) pages 12 through 24, and 28 through 31.
As to all other portions of Exhibit 73, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
l. As to Exhibit 75, the Administrative Motion is GRANTED as to the following:
(1) all content except for the box titled “Marketing” on page Royal Canin193836
(2) all content except for the slide heading on page Royal Canin193841
(3) all text below the row titled “(e)KAM” on page Royal Canin193843.
As to all other portions of Exhibit 75, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
m. As to Exhibit 93, the Administrative Motion is GRANTED as to the following:
(1) all terms under “Merchandising and Sale of Prescription Diet Products” on pages 1 through 2
(2) all terms under “Education and Promotion” and “Incentives” on pages 2 through 4
(3) the names and addresses under “In the case of PETsMART” and “In the case of MMI” on page 6
(4) the signatures under “Hill's Pet Nutrition, Inc.,” “Medical Management,” and “PETsMART, Inc.” on page 7.
As to all other portions of Exhibit 93, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
n. As to Exhibit 100, the Administrative Motion is GRANTED as to the following:
(1) all text in the exhibit except for paragraph 3.
As to all other portions of Exhibit 100, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
o. As to Exhibit 101, the Administrative Motion is GRANTED as to the following:
(1) the second paragraph of the first email and the phone numbers in email signatures on page Royal Canin168882
(2) the phone numbers in the email signatures on page Royal Canin168883.
As to all other portions of Exhibit 101, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
p. As to Exhibit 107, the Administrative Motion is GRANTED as to the
following:
(1) page Royal Canin284020 and page Royal Canin284024
(2) all text on page Royal Canin284028 except for:
a. “Leading Global Pet Specialty Retailer” and the text under that heading
b. “Second Largest Pet Specialty Retailer” and text under that heading. As to all other portions of Exhibit 107, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
q. As to Exhibit 111, the Administrative Motion is GRANTED as to the following:
(1) on page Royal Canin038674:
a. the name and email on the “To:” line in the “May 26 8:57 AM” email
b. the name and email on the “From:” line in the “May 25 6:11 PM” email
c. the name and email on the “From:” line in the “May 22 9:59 PM” email
(2) on page Royal Canin038675:
a. the name and email on the “From: line” in the “May 22 12:17 AM” email
b. the “To:” line in the “May 22 7:10 AM” email.
As to all other portions of Exhibit 111, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
r. As to Exhibit 117, the Administrative Motion is GRANTED as to the following:
(1) page Royal Canin160935
(2) all text and graphics except the slide heading (“Cash Impact of the Big
Four”) and the words “Top 4 Impact,” “Chewy & PetSmart,” “Petco,” and “Amazon” on page Royal Canin160937.
As to all other portions of Exhibit 117, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
s. As to Exhibit 127, the Administrative Motion is GRANTED as to the following:
(1) all text except “Royal Canin needs to renew its SPT super premium business model” through “right product for each cat or dog” on page Royal Canin174171
(2) pages Royal Canin174172 through Royal Canin174174.
As to all other portions of Exhibit 127, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
t. As to Exhibit 129, the Administrative Motion is GRANTED as to the following:
(1) pages Royal Canin173411; Royal Canin173413 through Royal Canin173414; Royal Canin173419 through Royal Canin173420; and Royal Canin173422
(2) the pie chart on page Royal Canin173427
(3) pages Royal Canin173431; Royal Canin173433; Royal Canin173435; Royal Canin173445 through Royal Canin173447; Royal Canin173451; Royal Canin173457; and Royal Canin173498.
As to all other portions of Exhibit 129, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
u. As to Exhibit 130, the Administrative Motion is GRANTED as to the following:
(1) the text after “through this crisis” through the end of page Royal Canin205515
(2) the text after “chat with a vet 24/7” through the end of page Royal Canin205516
(3) pages Royal Canin205517 through Royal Canin205519
(4) pages Royal Canin205521 through Royal Canin205528.
As to all other portions of Exhibit 130, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
v. As to Exhibit 132, the Administrative Motion is GRANTED as to the following:
(1) pages BM037815 through BM037816; BM037820 through BM037826; BM037829 through BM037839; BM037841 through BM037844; BM037847 through BM037848; BM037850 through BM037882; BM037884; and BM037886 through BM037887.
As to all other portions of Exhibit 132, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
w. As to Exhibit 133, the Administrative Motion is GRANTED as to the following:
(1) pages BM000170; BM000174; BM000186 through BM000193; and BM000200 through BM000202.
As to all other portions of Exhibit 133, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
x. As to Exhibit 137, the Administrative Motion is GRANTED as to the following:
(1) pages Royal Canin091470; Royal Canin091473; Royal
Canin091500 through Royal Canin091502; and Royal Canin091517.
As to all other portions of Exhibit 137, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
y. As to Exhibit 138, the Administrative Motion is GRANTED as to the following:
(1) pages Royal Canin163896 through Royal Canin163897; Royal Canin163900 through Royal Canin163901; and Royal Canin163911
(2) all content below the slide heading, except for “Prescription Pad” and the graph on page Royal Canin163912
(3) page Royal Canin163933.
As to all other portions of Exhibit 138, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
z. As to Exhibit 139, the Administrative Motion is GRANTED as to the following:
(1) page Royal Canin009616
(2) the text before “From: Zuncic, Neil” on page Royal Canin009617
(3) page Royal Canin009618
(4) the phone number in the email signature on page Royal Canin009619
(5) pages Royal Canin009620 through Royal Canin009623.
As to all other portions of Exhibit 139, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
aa. As to Exhibit 140, the Administrative Motion is GRANTED as to the following:
(1) pages Royal Canin321350, Royal Canin321353, and Royal Canin321372.
As to all other portions of Exhibit 140, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
bb. As to Exhibit 141, the Administrative Motion is GRANTED as to the following:
(1) page Royal Canin285880
(2) all text except for “our top two SPT customers, PetSmart & Petco, together constitutes a VERY large portion of the [sic] our business” on page Royal Canin285881
(3) pages Royal Canin285882 through Royal Canin285883.
As to all other portions of Exhibit 141, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
cc. As to Exhibit 142, the Administrative Motion is GRANTED as to the following:
(1) pages Royal Canin152408 through Royal Canin152409
(2) pages Royal Canin152411 through Royal Canin152414
(3) all text except that which is highlighted pink in the exhibit copy on page Royal Canin152417
(4) page Royal Canin152420 through the end of the exhibit.
As to all other portions of Exhibit 142, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
dd. As to Exhibit 143, the Administrative Motion is GRANTED as to the following:
(1) all text before “Research Results Summary,” the text in the first bullet below “Market Size/Characteristics,” and the text after the second bullet below “Market Size/Characteristics” on page Mars025956
(2) page Mars025957.
As to all other portions of Exhibit 143, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
ee. As to Exhibit 144, the Administrative Motion is GRANTED as to the following:
(1) page Mars011521
(2) all text except “WHAT'S in it for you & your shoppers?” and “Create a ‘Store within a Store Rx Destination [sic]” on page Mars011522
(3) page Mars011523.
As to all other portions of Exhibit 144, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
ff. As to Exhibit 146, the Administrative Motion is GRANTED for the following: (1) page 19, line 24 through page 20, line 22.
As to all other portions of Exhibit 146, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
gg. As to Exhibit 149, the Administrative Motion is GRANTED as to the following:
(1) the number between “campaign at” and “The updated” on page BM050894
(2) the phone number in the email signature of the second email on page BM050894
(3) the number between “at the cost of” and “for all of 2021” on page BM050895
(4) the phone numbers in the email signature on page BM050895.
As to all other portions of Exhibit 149, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
hh. As to Exhibit 150, the Administrative Motion is GRANTED as to the following:
(1) the “From” line and the customer name in the second email on page BM000482.
As to all other portions of Exhibit 150, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
ii. As to Exhibit 151, the Administrative Motion is GRANTED as to the following:
(1) page Royal Canin047154
(2) the text before “From: Lovern, Cindy” and after “us and our brand” on page Royal Canin047155
(3) pages Royal Canin047156 through Royal Canin047157.
As to all other portions of Exhibit 151, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
jj. As to Exhibit 152, the Administrative Motion is GRANTED as to the following:
(1) the text before “Continued growth of EComm” and after “over the next few years” on page Royal Canin231326
(2) page Royal Canin231327 through the end of the exhibit.
As to all other portions of Exhibit 152, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
kk. As to Exhibit 154, the Administrative Motion is GRANTED as to the following:
(1) page Royal Canin243178 through Royal Canin243184
(2) the text before “a clinic wrote a letter” and after “they seemed to have stopped” on page Royal Canin243185
(3) page Royal Canin243186 through Royal Canin243188
(4) the text before “I said ‘this letter'” and after “be fined” on page Royal Canin243189
(5) page Royal Canin243190.
As to all other portions of Exhibit 154, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
ll. As to Exhibit 155, the Administrative Motion is GRANTED as to the following:
(1) the text before “With the transformation of the pet owner” and after “(getting zero margin)” on page Royal Canin019390
(2) page Royal Canin019391 through Royal Canin019394.
As to all other portions of Exhibit 155, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
mm. As to Exhibit 156, the Administrative Motion is GRANTED as to the following:
(1) pages Royal Canin057998 through Royal Canin0579999
(2) all text except that which is highlighted pink in the exhibit copy on page Royal Canin057800
(3) page Royal Canin057801.
As to all other portions of Exhibit 156, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
nn. As to Exhibit 160, the Administrative Motion is GRANTED as to the
following:
(1) the text after “virtually all prescription pet food competitors” on page Mars000007
(2) page Mars000008 through the end of the exhibit.
As to all other portions of Exhibit 160, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
oo. As to Exhibit 161, the Administrative Motion is GRANTED as to the following:
(1) the text below the “SUBJECT” line and above the “Background” heading on page Mars021371.
As to all other portions of Exhibit 161, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
pp. As to Exhibit 164, the Administrative Motion is GRANTED as to the following:
(1) the phone numbers in the email signatures, name, and email address of the veterinarian on page Royal Canin022828.
As to all other portions of Exhibit 164, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
qq. As to Exhibit 166, the Administrative Motion is GRANTED as to the following:
(1) the text above “Q2 2013 Client Promotion,” between “Q2 2013 Client Promotion” and “Recommendations by Veterinarian,” and after “reverse side” on page Royal Canin067703.
As to all other portions of Exhibit 166, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
rr. As to Exhibit 167, the Administrative Motion is GRANTED as to the following:
(1) all text except for the pie chart in the bottom-right corner of the slide on the second page of the exhibit.
As to all other portions of Exhibit 167, the Administrative Motion is DENIED, good cause for their sealing not having been shown or the designating parties not having sought to have those other portions sealed.
ss. As to Exhibits 1, 10, 18, 20, 23-24, 33, 67-68, 70, 74, 84-88, 90-91,94-95, 102-04, 106, 108, 115-16, 123-24, 128, 131, 136 and 147, the Administrative Motion is DENIED, the designating parties not having sought to have those exhibits sealed.
3. Plaintiffs are hereby DIRECTED to file in the public record, no later than fourteen days from the date of this order:
a. revised redacted versions of the Supplemental Motions; and
b. revised redacted versions of Exhibits 9, 12, 19, 22, 64, 66, 69, 71-73, 75, 93, 100-01, 107, 111, 117, 127, 129-130, 132-33, 137-44, 146, 149-52, 154-56, 160-61, 164, 166-67 to the Coyne Declaration.
IT IS SO ORDERED.
[*] The sole amendment is to correct the list of exhibits in Paragraph 3.b.