Bristol-Myers Squibb Co. v. Novartis Pharma AG

Background

Bristol-Myers Squibb Co. filed a petition asking the court to confirm a final award issued in a binding arbitration between Bristol-Myers Squibb and Novartis Pharma AG. The arbitration arose from the parties’ November 6, 1998 Evaluation, Research and Commercialization Agreement. The arbitration panel issued its final award on June 16, 2021, dismissing Novartis’s affirmative claims and requests and ordering the parties to continue their dealings under the agreement’s plain terms.

After the petition was filed publicly, Novartis moved to seal the final award in its entirety. In the alternative, Novartis asked to file a heavily redacted version. The proposed version removed eleven complete pages of the 30-page award and much of the award’s substantive discussion, including its result and reasoning. Novartis argued that disclosure would reveal research and development information, technology, product information, regulatory-application information, contracting practices, bargaining positions, and other proprietary business information.

Legal standard and analysis

The court explained that judicial documents carry a strong presumption of public access under both the common law and the First Amendment. That presumption can be overcome only when sealing is essential to protect a higher value and the restriction is narrowly tailored. Although the arbitration itself was private, the court held that the situation changed when a party asked a federal court to confirm the award. The award and related materials became judicial documents because the court would need to consider the award in deciding whether to confirm it.

The court rejected Novartis’s argument that the parties’ confidentiality agreement or the federal policy favoring arbitration justified sealing. The court stated that the policy favoring arbitration does not create an exception to the public’s right of access to judicial documents. It also concluded that merely identifying trade secrets or proprietary information in a document does not justify sealing the entire document.

The court reviewed the proposed redactions individually. It found that the arbitration’s subject matter, the identities of witnesses, the panel’s discussion of applicable law, historical information already available publicly, the panel’s discussion of the parties’ performance and legal analysis, and the amount of the award were not properly redacted as trade secrets or confidential business information. The court allowed the sales amounts on page 17 to be redacted. It also stated that royalty information was presumptively proprietary, but noted that Novartis had omitted some royalty-related information from its proposed redactions. The court gave Novartis until June 22, 2022, to state whether it wanted royalty information redacted wherever it appeared or not at all.

Disposition

The court denied Novartis’s motion to seal the final arbitration award. It also denied Novartis’s alternative request to file a redacted version, except to the extent of allowing redaction of the sales amounts on page 17 and potentially the royalty information identified on pages 16, 20, 22–23, 25–26, and 28. To that limited extent, the motion was granted. The clerk was directed to close the motion at Docket Number 7.