Valelly v. Merrill Lynch, Pierce, Fenner & Smith Incorporated

Background

Merrill Lynch moved for permission to file in redacted form the plaintiff’s memorandum supporting a motion for reconsideration and/or clarification. Merrill Lynch said the proposed redactions covered information that it and non-party Bank of America, N.A. had designated confidential or highly confidential under the protective order.

According to Merrill Lynch and Bank of America, the material included the methodology used to set interest rates, specific factors considered in setting rates, references to proposed rate changes, and key inputs into Bank of America’s proprietary forecasting methodology. They argued that disclosure could give competitors information useful in making pricing decisions and could cause competitive harm. They also said the methodologies remained in use and were not shared with the public or competitors.

The plaintiff argued that redacting court documents requires a high standard, particularly in a case involving a proposed class whose members have an interest in following the litigation. The plaintiff also questioned earlier whether a methodology based on market benchmarks and selected competitors’ rates was truly proprietary. For this request, however, the plaintiff took no position, while reserving all rights, based on counsel’s representation that Bank of America still used the methodology and that disclosure could harm Bank of America and Merrill Lynch.

Ruling

Judge Valerie E. Caproni granted the defendant’s sealing request. The order required the plaintiff to re-file docket 165 on the public docket with redactions over the material highlighted in the request.

Classification

This is a procedural order about public access to and redaction of court documents. The order did not decide the underlying claims or the plaintiff’s motion for reconsideration and/or clarification.