SMBA Construction, LLC v. Sika Corporation
1:23-cv-10875
S.D.N.Y.
Oct 16, 2024
Check Treatment
Docket
Opinion Summary

Facts

  1. The United States Department of Justice filed a letter-motion to allow filing under seal regarding its motion to intervene in an antitrust case [lines="18-22"].
  2. The motion to intervene is intended to support a Stipulation for a limited stay of discovery while an ongoing criminal investigation is conducted [lines="31-34"].
  3. Portions of the memorandum support the motion and discuss matters protected by grand jury secrecy [lines="35-36"].
  4. No parties objected to the motion being filed under seal, citing the necessity to protect law enforcement interests [lines="51-52"].
  5. The court verified that the unredacted portions could impair ongoing investigations if made public [lines="78-80"].

Issues

  1. Whether the United States is entitled to file its motion to intervene in this case under seal due to grand jury secrecy concerns [lines="38-39"].
  2. Whether the sealing of the memorandum complies with the standard requirements for protecting judicial documents [lines="57-64"].

Holdings

  1. The court granted the United States' request to file its motion to intervene ex parte and under seal to protect grand jury secrecy [lines="104-106"].
  2. The United States must show cause by October 18, 2024, why the redacted memorandum should not be publicly filed without restrictions [lines="108-109"].

OPINION

Case Information

*1 Case 1:23-cv-10875-LJL Document 91 Filed 10/16/24 Page 1 of 2 Chicago Office Rookery Building 312/984-7200 209 South LaSalle Street, Suite 600 Chicago, Illinois 60604 FAX 312/984-7299 October 15, 2024 Honorable Lewis J. Liman

United States District Court for the Southern District of New York

Daniel Patrick Moynihan

United States Courthouse

500 Pearl St.

New York, NY 10007-1312

Re: In Re: Concrete and Cement Additives Antitrust Litigation No. 24-md-3097 (LJL)

Dear Judge Liman:

The Antitrust Division of the United States Department of Justice respectfully submits this letter-motion to File Ex Parte and to Seal the United States’ Motion to Intervene. We have contacted counsel for all parties regarding filing under seal in advance of filing this letter-motion and none opposed filing under seal.

The United States respectfully requests that its forthcoming memorandum in support of its unopposed motion to intervene in the above-captioned case be filed ex parte and a redacted version be filed under seal. The United States plans to file this motion to intervene pursuant to Federal Rule of Civil Procedure 24(b)(1)(B) for the purpose of filing a Stipulation for a limited stay of discovery to avoid prejudice to an ongoing criminal investigation being conducted in the Eastern District of Pennsylvania.

Portions of the United States’ memorandum in support of its Motion to Intervene discuss details protected by Federal Rule of Criminal Procedure 6(e). The United States requests that these portions be considered ex parte by the Court. An ex parte submission is “appropriate where, as here, it [i]s necessary in order to protect grand jury secrecy.” S.E.C. v. Beacon Hill Asset Mgmt. LLC , No. 02 CIV. 8855 (LAK), 2004 WL 367673, at *1 (S.D.N.Y. Feb. 25, 2004).

The United States further requests that the redacted version of the memorandum also be filed under seal. No party has objected to the filing of the motion under seal. It is well-established that there is a common-law and First Amendment right of public access to judicial documents.

Case 1:23-cv-10875-LJL Document 91 Filed 10/16/24 Page 2 of 2 Lugosch v. Pyramid Co. of Onondaga , 435 F.3d 110, 119–20 (2d Cir. 2006). As such, documents may be sealed “only with specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim.” Id . at 124. Under this framework, a court must determine: (1) whether the document subject to a sealing request qualifies as a judicial document; (2) the weight of the presumption of public access attaching to that judicial document; and (3) if any countervailing factors or higher values outweigh the right of public access to that judicial document. Id . at 119–20.

Courts in the Second Circuit have given examples of the “higher values” that justify sealing, including the “the danger of impairing law enforcement,” United States v. Park , 619 F. Supp. 2d 89, 94 (S.D.N.Y. 2009), and the avoidance of “jeopardizing ongoing or future investigations,” United States v. Huntley , 943 F. Supp. 2d 383, 386 (E.D.N.Y. 2013); see also United States v. Milken , 780 F. Supp. 123, 127 (S.D.N.Y. 1991). Here, the unredacted portions of the memorandum provide analysis of issues that could impair the United States’ ability to continue its investigation if made broadly available to the public, including potential witnesses.

We are available to provide additional information at the Court’s convenience. We respectfully request permission to file the memorandum in support of the United States’ motion to intervene ex parte and to file a redacted version of said memorandum under seal.

Respectfully submitted, ___________________________ Allison Mileo Gorsuch Trial Attorney

Illinois ARDC #6329734 Carla M. Stern

Trial Attorney

Illinois ARDC #6201979 U.S. Department of Justice, Antitrust Division 209 S. LaSalle St., Suite 600 Chicago, IL 60604 Office: 312-705-1145; fax: 312-984-7299 allison.gorsuch@usdoj.gov carla.stern@usdoj.gov cc: All attorneys of record via ECF

The United States' motion to file ex parte and under seal its memorandum in support of its motion to intervene in the above-captioned case is granted. The unredacted motion may be filed and kept under seal with access limited to the Court and to the United States. The United States shall show cause no later than October 18, 2024, why the redacted memorandum should not be filed on the public docket without access restrictions.

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October 16, 2024