Federal Trade Commission v. Microsoft Corporation

Background

The Federal Trade Commission, Microsoft Corporation, and Activision Blizzard, Inc. filed numerous administrative motions to seal portions of their own filings and materials designated confidential by non-parties. The order addressed requests concerning proposed findings of fact and conclusions of law filed before and after the evidentiary hearing, the FTC’s bench brief, Activision’s answer, and briefing connected to the FTC’s emergency motion.

Legal standard

The court applied the “compelling reasons” standard because the briefing was more than tangentially related to the case’s merits and had been filed in connection with the FTC’s motion for a preliminary injunction. Under that standard, a party seeking to seal judicial records must overcome the strong presumption of public access with specific reasons showing that confidentiality interests, such as protection from competitive harm, outweigh the public interest in disclosure. Requests must also be narrowly tailored under Civil Local Rule 79-5.

Rulings

The court denied many sealing requests in whole or in part when the requesting party did not show competitive harm, failed to provide a supporting declaration or statement, sought to seal information already discussed publicly, or requested more material than necessary. The court denied Microsoft’s requests to seal portions of the FTC’s pre-trial and post-trial proposed findings of fact and conclusions of law in full without prejudice because the requests were not narrowly tailored. Those requests could be renewed in narrower form within 14 days.

The court also denied, without prejudice to renewal in a more narrowly tailored form, the pending requests to seal portions of the FTC’s complaint, the FTC’s emergency motion, Defendants’ opposition, the FTC’s reply, and Microsoft’s answer. The court allowed the designating parties to submit one joint, renewed request concerning those filings within 14 days. If no renewed motions were filed, the moving party was required to publicly file versions of the documents within 21 days.

The court granted some requests to seal portions of or entire exhibits attached to pre-trial briefing when the exhibits were not used during the evidentiary hearing or relied on in the court’s preliminary-injunction opinion, and when the requests were supported and sufficiently tailored. The attached Exhibit A contains the detailed rulings, including grants limited to the proposed redactions, denials, and one ruling expressly stated as “granted in part” and “denied in part.” The order disposed of the listed docket entries.