Case 1:11-md-02221-NGG-RER Document 712 Filed 12/02/15 Page 1 of 3 PageID #: 32214

CARDOZO
BENJAMIN N. CARDOZO SCHOOL OF LAW YESHIVA UNIVERSITY

Myriam Gilles, Professor of Law gilles@yu.edu 212.790.0344 (office) / 212.790.0205 (fax)

December 2, 2015
By ECF
Honorable Nicholas G. Garaufis
United States District Judge
United States Courthouse
225 Cadman Plaza East
Brooklyn, NY 11201
Re:

In re American Express Anti-Steering Rules Antitrust Litig., 11-md-02221

Dear Judge Garaufis:

Please accept this letter, under Local Civil Rule 7.1(d), in lieu of a formal motion to
intervene under Rule 24 for the purpose of moving to unseal certain filings on the Courts docket
in the above-referenced matter. Alternatively, I respectfully request a pre-motion conference at
which I propose to move the Court for leave to intervene in order to seek the relief described
below.
Interest of the Applicant
My latest article, which will be published early next year in the University of Chicago
Law Review, focuses extensively on the various coordinated American Express litigations that
are pending before this Court. A draft of the article, entitled Can John Coffee Rescue the Private
Attorney General? Lessons from the Credit Card Wars, is available for download at
http://papers.ssrn.com/abstract=2689310. As is clear from my writing, I believe that the payment
systems antitrust cases address issues of broad public importance and I expect to do further
academic work in this area. I also believe that U.S. merchants and their lawyers need to
understand the arguments and counter-arguments at issue on the parties pending summary
judgment motions as they weigh potential individual arbitrations. Separate from my academic
work, I am currently consulting for merchants and their legal advisors with respect to their
options for pursuing claims against American Express, given the Supreme Courts endorsement
of Amexs arbitration clause and class action waiver in the Italian Colors matter.1 Among those
1

This is an area on which I have extensively lectured and published, both individually and with
my occasional collaborator and husband. See, e.g., Myriam Gilles, Opting Out of Liability: The
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attorneys is Noah Shube, who is assisting me with this application and has posted this letter to
ECF.
Relief Sought
From my review of the docket, it appears that the extensive litigation papers filed by
American Express and the Individual Merchant Plaintiffs relating to the currently pending
motions and cross-motions for summary judgment and related relief have been filed almost
entirely under seal. Without limitation, these summary judgment papers include the briefs,
declarations, exhibits (including expert reports) and Rule 56.1 statements filed in:
a. the 2013-14 round of summary judgment motion papers, including docket entries 277,
286 (including the documents included on the disc referred to in the declaration at 3),
287, 288, 308, 309 and 311;
b. the 2015 round of partial summary judgment and collateral estoppel briefing, including
docket entries 668, 669, 687, 689, 694 and 709; and
c. Daubert briefing with respect to IMPs experts, including docket entries 350, 352, 355,
683 and 686.
The proposed motion here seeks to unseal all of these filings. To the extent that a party
makes a concrete factual showing that disclosure of any specific fact will cause it substantial
injury, narrowly limited redactions will protect the interests of that party.
Grounds For Relief
In Lugosch v. Pyramid Co., 435 F. 3d 110, 126 (2nd Cir. 2006), the Second Circuit held
that documents submitted to a court in support of or in opposition to a motion for summary
judgment are judicial documents to which a presumption of immediate public access attaches
under both the common law and the First Amendment a presumption that can be overcome
only by specific, on-the-record findings that higher values necessitate a narrowly tailored
sealing. Documents that are used by parties moving for, or opposing, summary judgment
should not remain under seal absent the most compelling reasons. Id. at 121 (internal
quotations omitted).
The test under Lugosch is a rigorous one: The party opposing disclosure must make a
particular and specific demonstration of fact showing that disclosure would result in an injury
sufficiently serious to warrant protection; broad allegations of harm unsubstantiated by specific
Forthcoming, Near-Total Demise of the Modern Class Action, 104 MICH. L. REV. 373 (2005);
Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T
Mobility v. Concepcion, 79 U. CHI. L. REV. 623 (2012); Myriam Gilles & Gary Friedman,
Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers,
155 U. PENN. L. REV. 103 (2006).
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examples or articulated reasoning fail to satisfy the test. King Pharms., Inc. v. Eon Labs, Inc.,
2010 U.S. Dist. LEXIS 102703, *22 (E.D.N.Y. Sept. 28, 2010), quoting In re Parmalat Secs.
Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009). As Judge Easterbrook has observed, [m]any a
litigant would prefer that the subject of the case how much it agreed to pay for the
construction of a pipeline, how many tons of coal its plant uses per day, and so on be kept
from the curious (including its business rivals and customers), but when litigants call on the
courts, they must accept the openness that goes with subsidized dispute resolution by public (and
publicly accountable) officials. Union Oil Co. v. Leavell, 220 F. 3d 562, 567-68 (7th Cir. 2000).
Here, it is implausible that all of the sealed materials satisfy the rigorous test for
maintaining First Amendment-protected judicial documents under seal. Far more likely is that
none of the information in the summary judgment papers would satisfy the exacting standards
applied by courts for hiding from public view records of this type. For example, it is hard to
fathom that information relating to the experiences of American Express with merchant
surcharging in Australia could possibly warrant such extraordinary secrecy (including, e.g.,
evidence regarding the spread of merchant surcharging; the extent to which consumers switch
payment products or pay surcharges or leave the store when faced with a surcharge; Amexs use
of no-differential-surcharge agreements and cancellation, or threats of cancellation, to contain
surcharging; and other such matters.)
Finally, I note that the terms of this Courts protective order, docket entry 102, direct that
within 10 days after any filing is made under seal, the filing party shall electronically file with
the Court, for its public file, a copy of the submitted materials with the Confidential Information
and/or Highly Confidential Information redacted. Id. at 24(b). Apparently, this procedure has
simply been disregarded by the parties to the summary judgment motions. To be clear, my
proposed motion does not seek an order directing the parties to file the summary judgment
papers with the Confidential Information and/or Highly Confidential Information redacted.
The parties confidentiality designations under the protective order have no bearing on a motion
to unseal summary judgment papers, which is governed by the First Amendment. See Lugosch,
435 F. 3d at 125-26. The proposed motion here seeks public unredacted filing of all of the
summary judgment materials, save for information if any that meets the exacting standards
articulated above.
Respectfully submitted,
s/ Myriam Gilles
Myriam Gilles
Professor of Law

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