Antitrust Law Daily Wrap Up, ANTITRUST—D.N.J.: Court records remain sealed in anticoagulant pharmaceuticals case, (Mar 13, 2015)

By Greg Hammond, J.D.

A Japanese pharmaceutical company could not unseal court records pertaining to an antitrust matter against competitors Sanofi-Aventis U.S., LLC and Sanofi-Aventis U.S., Inc., alleging that the defendants engaged in anticompetitive practices involving the sale of anticoagulant pharmaceuticals. The federal district court in Trenton, New Jersey, affirmed the magistrate judge’s order denying plaintiff’s motion to unseal the record, finding that the magistrate judge committed no abuse of discretion or error of law (Eisai Inc. v. Sanofi-Aventis U.S., LLC, March 10, 2015, Cooper, M.).

All of the parties connected to this litigation demonstrated a strong interest in limiting public access to filed discovery documents, according to the court. Consequently, the magistrate judge entered a protective order governing documents and testimony of all the parties and nonparties. Additionally, two protective orders concerning the discovery produced by nonparties, GlaxoSmithKline, LLC and Pfizer, Inc., were entered. The Honorable John J. Hughes was also appointed Special Master to address disputes concerning the confidentiality designations of specific documents. He reviewed roughly 1,100 pages of documents and issued a report and recommendation in May 2012.

The plaintiff pharmaceutical company, Eisai Inc., moved the Magistrate Judge to unseal all court records concerning the antitrust matter between Eisai and Sanofi-Aventis. The magistrate judge denied the motion to unseal the record, and Eisai appealed.

First, the district court determined that Eisai’s allegation of a blanket seal on submissions in this case was entirely without merit, and inconsistent with the procedural history of this case. The parties filed redacted portions of their respective submissions, giving the public basic information concerning the litigation, and the magistrate judge appointed a Special Master to review the confidential documents to ensure the appropriateness of the designation.

Next, in balancing the public’s presumptive right of access to information against the parties’ potential harm from disclosure, the court found no evidence that the magistrate judge abused his discretion in concluding that the private harms outweighed the presumption of access in this case, and denying the plaintiff’s request for unsealing the record. Specifically, two interests were balanced against the strong presumption of public access to the record: (1) the existence of business information in the documents, affecting the parties’ competitive standing; and (2) the desire to protect nonparty disclosures in order to avoid unnecessary harm.

The court noted that Sanofi-Aventis demonstrated that the disclosure of specific confidential business documents contained in the record would likely lead to “significant competitive or commercial disadvantage.” In addition, the nonparties GSK and Pfizer agreed to produce certain business documents due to the security provided in the Protective Orders, weighing in favor of maintaining the seal on the record. The Magistrate Judge therefor neither abused its discretion nor erred by denying Eisai’s motion to unseal the record.

The case is number 08-4168 (MLC).

Attorneys: Jonathan F. Donath (Coughlin Duffy LLP) for Eisai Inc. Liza M. Walsh (Connell Foley, LLP) for Sanofi-Aventis U.S., LLC and Sanofi-Aventis U.S., Inc.

Companies: Eisai Inc.; Sanofi-Aventis U.S., LLC; Sanofi-Aventis U.S., Inc.

Cases: Antitrust NewJerseyNews