In re Omnicom Group. Inc. ERISA Litigation

Nature of the Filing

The provided text is a letter from defendants’ counsel, not a judicial opinion or order. The defendants requested permission to file certain materials under seal in connection with their motion for summary judgment and motions to exclude testimony from the plaintiffs’ experts.

Materials the Defendants Sought to Seal

The defendants asked the clerk to seal Exhibits 98 and 103 to the supplemental declaration of Jeff G. Hammel; their reply memorandum supporting summary judgment; their reply memorandum supporting the motion to exclude Michael Geist’s opinions; and their reply to the plaintiffs’ response to the defendants’ statement of material facts.

The defendants said Exhibit 98 described fiduciary training provided by plan counsel to the Administrative Committee. They argued that the information was protected by attorney-client privilege, while recognizing that the ERISA fiduciary exception limits a fiduciary’s ability to assert that privilege against plan beneficiaries. The defendants’ stated position was that the information had been produced to the plaintiffs as plan beneficiaries but should not be disclosed to the general public.

The defendants said Exhibit 103 contained a proprietary presentation and report prepared by the plan’s adviser, Mercer, concerning Omnicom’s investment structure. They also identified pricing information from a request-for-proposals process through which the Administrative Committee, with Mercer’s assistance, sought recordkeeping-fee proposals from five recordkeepers. The defendants argued that this proprietary and pricing information justified sealing despite the presumption that court records are publicly accessible.

Other Sealing Review

The defendants reported that Exhibits 3 through 14 to the Rubinow Declaration could be unsealed. They said Exhibit 70 to the Hammel Declaration contained attorney-client information subject to the fiduciary exception, and that Exhibits 65, 66, and 68 contained sensitive information about competing recordkeepers’ fee bids. They also identified various exhibits to the Hammel and Rubinow Declarations containing Mercer presentations and reports that Mercer considered confidential and proprietary.

The defendants stated that they were continuing to review previously sealed exhibits, including deposition excerpts, and would provide a comprehensive list of information they believed should remain sealed.

Disposition

The text contains the defendants’ request and representations but no ruling by Judge Colleen McMahon. It therefore does not establish that the sealing request was granted, denied, or otherwise resolved.