Amgen Inc. v. Amneal Pharmaceuticals et alMOTION to Seal Document: -D. Del.March 21, 2019IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AMGEN INC., Plaintiff, v. SUN PHARMACEUTICAL INDUSTRIES, LTD; SUN PHARMA GLOBAL FZE; AND SUN PHARMACEUTICAL INDUSTRIES, INC., Defendants. Civil Action No. 1:16-cv-853 (MSG) CONSOLIDATED MOTION TO FILE UNDER SEAL Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure and D. Del. LR 5.1.3, Defendants Sun Pharmaceutical Industries, Ltd., Sun Pharma Global FZE, and Sun Pharmaceutical Industries, Inc. (collectively, “Sun”), the parties in Civil Action No. 16-cv-882, which was consolidated with and into C.A. No. 16-853-MSG CONSOLIDATED (together, the “Action”), by and through their undersigned counsel, respectfully move this Court for leave to file the following documents under seal: A. Sun’s Opening Brief in Support of the Motion to Enforce the Parties’ Settlement Agreement; and, B. Exhibits A through H to Sun’s Motion and Opening Brief (collectively, the “Confidential Documents”). In support of this motion, Sun states: 1. The parties’ underlying dispute relates to the Litigation Settlement Agreement (the “Agreement”) executed by and between Sun and plaintiff Amgen Inc. (“Amgen”) to resolve a civil action between the parties concerning patent infringement. This Agreement is - 1 - Case 1:16-cv-00853-MSG Document 435 Filed 03/21/19 Page 1 of 5 PageID #: 6021 highly confidential, contains sensitive business information, and expressly prohibits public disclosure of its terms. The other Confidential Documents, which disclose and/or discuss the content of the confidential Agreement, interpretation of the Agreement’s terms, and/or business strategy, likewise contain sensitive information that is not publicly available. Specifically, these Confidential Documents contain and/or reflect the parties’ confidential business information, which is unavailable to the public, and disclosure of such information could seriously impair and injure their respective competitive positions in the marketplace. Further, the Agreement and the Confidential Documents together contain confidential information exchanged during communications among the parties, pursuant to Federal Rule of Evidence 408, for the purposes of resolving the parties’ underlying dispute. 2. Courts may deny access to and seal a document where, as here, it encompasses business information that might harm a litigant’s competitive standing. See Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (citing Nixon v. Warner Comm., Inc., 435 U.S. 589, 598 (1978)); Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 165 (3d Cir. 1993). “[C]ourts have refused to permit their files to serve as . . . sources of business information that might harm a litigant’s competitive standing.” Leucadia, 998 F.2d at 166 (noting that the “common law presumption of access must be balanced against the factors that militate against access”). “Documents containing trade secrets or other confidential business information may be protected from disclosure.” Id. The presumption of public access is overcome where the material sought to be protected is (1) “the kind of information that courts will protect[,]” and (2) “disclosure will work a clearly defined and serious injury to the party seeking closure.” In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001) (internal quotation marks and citations omitted). 3. The Confidential Documents contain information quoted directly from and interpreting the confidential Agreement and, as such, contain and/or reflect the parties’ confidential business information and business strategy, which is presently confidential and unavailable to the public. Recognizing the substantial risk to the parties’ competitive posture in - 2 - Case 1:16-cv-00853-MSG Document 435 Filed 03/21/19 Page 2 of 5 PageID #: 6022 the marketplace through disclosure of such highly confidential information to competitors, the parties have not filed the Agreement with the Court and expressly agreed to a provision in the Agreement that prohibits public disclosure of its terms. 4. The private interests at stake in this action warrant the relief sought. Here, Sun and Amgen—private parties—are in a dispute relating to patents and a generic drug product. Sealing the Confidential Documents identified herein will serve to protect the private proprietary business interests of Sun. On the other hand, publicly disclosing the subject confidential information will pose a substantial risk of harm to Sun’s legitimate business interests and competitive position. Thus, the information contained within the Confidential Documents is precisely the type of information for which courts in this Circuit have granted similar motions to “protect the parties’ confidential proprietary business and competitive interests.” See Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 415 fn. 3 (3d Cir. 2013); see also Littlejohn, 851 F.2d at 678 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir. 1984). 5. Further, disclosure of the Confidential Documents will result in a clearly defined and serious injury to Sun and Amgen. The Court has discretion to balance the factors for and against access to court documents. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). An exception to the presumptive openness of judicial proceedings is the protection of a party’s interest in confidential commercial information where there is a sufficient threat of irreparable harm. See In re Gabapentin Patent Litig., 312 F. Supp. 2d 643, 664 (D.N.J. 2004) (citation omitted). 6. Such sufficient threat of irreparable harm exists here. First, Exhibit A, the underlying Agreement, includes confidentiality provisions that prohibit disclosure of its terms. As such, Sun could incur liability if it allows confidential terms to become public. Second, the Agreement includes confidential monetary terms, temporal limitations, conditions and obligations related to patent licenses. The other Confidential Documents include excerpts of the confidential Agreement and/or information, communication, analysis and strategy surrounding - 3 - Case 1:16-cv-00853-MSG Document 435 Filed 03/21/19 Page 3 of 5 PageID #: 6023 that Agreement. If relief is not granted, the parties’ sensitive and confidential business information will be compromised, exposing them to substantial competitive and financial risks. Disclosure of this information to the public, particularly to competitors in this highly competitive industry, could result in substantial competitive harm to the parties. Competitors and others in the marketplace might exploit such information to their advantage and benefit, and to Sun’s unfair detriment. 7. Finally, there is no less restrictive alternative to the relief sought because this request is directed to only those documents containing confidential information, the release of which would pose a competitive risk to both Sun and Amgen. Once confidential information is disclosed to the public, it can never again be sealed or maintained as private. Accordingly, the only way to continue to protect the parties’ confidential interests is to seal the specific information contained in the Confidential Documents. And the filing of redacted versions of the parties’ briefs will satisfy any need for public access to information about this private dispute. 8. Thus, to protect its own confidential and sensitive business information as well as confidential and sensitive business information of Amgen, Sun respectfully requests permission from this Court to file the Confidential Documents under seal. 9. Counsel for Sun will file a public version of the Confidential Documents within seven (7) days of filing them under seal. WHEREFORE, for the foregoing reasons, Sun respectfully requests leave to file its Opening Brief in Support of the Motion to Enforce the Parties’ Settlement Agreement as well as and Exhibits A through H to the Opening Brief under seal. - 4 - Case 1:16-cv-00853-MSG Document 435 Filed 03/21/19 Page 4 of 5 PageID #: 6024 OF COUNSEL: D. Clay Holloway Mitchell G. Stockwell Courtney S. Dabbiere KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309-4528 (404) 815-6500 Kasey E. Koballa KILPATRICK TOWNSEND & STOCKTON LLP Suite 900 607 14th Street, NW Washington, DC,USA, 20005-2018 (202) 508-5800 DATED: March 21, 2019 HEYMAN ENERIO GATTUSO & HIRZEL LLP /s/ Dominick T. Gattuso Dominick T. Gattuso (#3630) 300 Delaware Ave., Suite 200 Wilmington, DE 19801 (302) 472-7311 Attorneys for Defendants Sun Pharmaceutical Industries, Ltd., Sun Pharma Global FZE, and Sun Pharmaceutical Industries, Inc. - 5 - Case 1:16-cv-00853-MSG Document 435 Filed 03/21/19 Page 5 of 5 PageID #: 6025
