Rebecca Bamberger Works, LLC et al v. Bamberger et al, No. 3:2024cv00706 - Document 7 (S.D. Cal. 2024)
Court Description: ORDER Granting in Part and Denying in Part: 5 Plaintiffs' Ex Parte Application for Issuance of Temporary Restraining Order, Seizure Order, Order to Show Cause for Preliminary Injunction, Order for Expedited Discovery, and Preservation Order; and 6 Plaintiffs' Ex Parte Motion to File Documents Under Seal. Motion Hearing set for 5/16/2024 01:30 PM before Judge Janis L. Sammartino. Signed by Judge Janis L. Sammartino on 4/30/24. (aas)
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Rebecca Bamberger Works, LLC et al v. Bamberger et al Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 15 REBECCA BAMBERGER WORKS, LLC d/b/a BAM COMMUNICATIONS, a Delaware limited liability company; LLORENTE & CUENCA USA, INC., a Delaware corporation; and LLORENTE & CUENCA MADRID S.L., a foreign corporation, 16 Plaintiffs, 12 13 14 17 v. 18 REBECCA BAMBERGER, an individual; RBW HOLDCO, INC., a California corporation; BAM BY BIG LLC, a California limited liability company; AND DOES 1 through 20, 19 20 21 22 Case No.: 24-CV-706 JLS (DDL) ORDER GRANTING IN PART AND DENYING IN PART: (1) PLAINTIFFS’ EX PARTE APPLICATION FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER, SEIZURE ORDER, ORDER TO SHOW CAUSE FOR PRELIMINARY INJUNCTION, ORDER FOR EXPEDITED DISCOVERY, AND PRESERVATION ORDER; AND (2) PLAINTIFFS’ EX PARTE MOTION TO FILE DOCUMENTS UNDER SEAL Defendants. 23 24 25 Presently before the Court is an Ex Parte Application for Issuance of Temporary 26 Restraining Order, Seizure Order, Order to Show Cause for Preliminary Injunction, Order 27 for Expedited Discovery, and Preservation Order (“Appl.”) filed by Plaintiffs Rebecca 28 Bamberger Works, LLC (“BAM”), Llorente & Cuenca USA, Inc. (“LLYC USA”), and 1 24-CV-706 JLS (DDL) Dockets.Justia.com 1 Llorente & Cuenca Madrid S.L. (“LLYC Madrid”) (collectively, “Plaintiffs”). Plaintiffs 2 accompany the Application with an Ex Parte Motion to File Documents Under Seal (“Seal 3 Mot.”), and declarations by Luisa Garcia (“Garcia Decl.”), Todd Renner (“Renner Decl.”), 4 and Gregory A. Nylen (“Nylen Decl.”). Having carefully considered Plaintiffs’ arguments, 5 filings, and the law, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ 6 Application and Plaintiffs’ Seal Motion. 7 BACKGROUND 8 Per the Complaint (“Compl.,” ECF No. 1), LLYC USA is a subsidiary of Llorente 9 & Cuenca S.A., “a publicly traded global communications, digital marketing, and public 10 affairs firm located in Spain.” Compl. ¶ 33.1 LLYC Madrid—also affiliated with Llorente 11 & Cuenca S.A.—own “trademark Registration No. 6,066,337 with the United States Patent 12 and Trademark Office” for the mark “LLYC.” See id. ¶ 53. 13 BAM is a San-Diego-based public relations and marketing company that works with 14 venture capital brands and venture-backed start-ups. Id. ¶¶ 10, 25. Since 2006, BAM has 15 used the mark “BAM” in connection with its services. Id. ¶ 26 16 In March of 2023, LLYC USA acquired 80% of BAM’s equity from BAM Chief 17 Executive Officer (“CEO”) (and Defendant) Rebecca Bamberger (“Bamberger”). Id. ¶¶ 1, 18 34. Bamberger’s corporation—Defendant RBW Holdco, Inc. (“RBW”)—retained a 20% 19 stake in BAM. See id. ¶ 35. As part of the purchase, RBW and Bamberger agreed to 20 comply with a series of restrictive covenants. Id. ¶¶ 38–39. Bamberger also agreed to stay 21 on as CEO subject to an employment agreement. Id. Finally, BAM, LLYC USA, RBW, 22 and Bamberger executed an operating agreement stating that BAM would be operated by 23 a three-member board. Id. ¶¶ 40–41. The board would include Bamberger and two LLYC 24 representatives. Id. 25 /// 26 27 28 1 As Plaintiffs have requested that the Garcia Declaration be filed under seal, the Court refers to allegations in the unsealed Complaint rather than facts averred in the Garcia Declaration. 2 24-CV-706 JLS (DDL) 1 After the purchase, LLYC USA incorporated the LLYC Mark into the BAM 2 branding to create a new mark: “BAM by LLYC.” Id. ¶ 52. BAM used this mark in its 3 “digital footprint and documents.” Id. 4 Beginning in late 2023, however, relations soured between Bamberger and LLYC 5 USA. The issues began when LLYC USA sought to transition BAM’s bank account from 6 Chase Bank to HSBC. Id. ¶ 59–60. Rather than transition the funds as ordered by the 7 board, however, Bamberger withdrew hundreds of thousands of dollars from BAM’s 8 account. 9 Bamberger’s personal account. Id. Id. ¶¶ 67–71, 79–81. At least some of these funds were transferred to 10 Around the same time, Bamberger created two California companies—VC Comms 11 Con LLC and Big Magical Events LLC. Id. ¶ 82. BAM performed at least $252,000 worth 12 of services for these companies. Id. ¶¶ 85–86. Bamberger then dissolved both companies 13 in February of 2024, and neither company has paid BAM. Id. ¶¶ 88–91. 14 BAM’s board members pressured Bamberger to explain these actions across 15 multiple meetings between February 14 and April 1, 2024. 16 Bamberger assured the board she would resolve the issues, but nevertheless continued to 17 transfer funds from BAM’s account to her personal account until at least March 14. See 18 id. ¶¶ 72–100. Id. ¶¶ 72–78, 92–100. 19 Separately from these suspect transactions, Bamberger began working on a plan to 20 take back BAM from LLYC USA. Bamberger first informed the board’s chairman that 21 she wanted to “end LLYC’s equity interest in BAM” on December 3, 2023. Id. ¶ 63. BAM 22 responded that “there was no basis for a unilateral termination of LLYC’s interest in 23 BAM.” Id. ¶ 65. Undeterred, Bamberger—through counsel—sent a March 5, 2024 letter 24 to BAM stating that she was “interested in unwinding the acquisition of BAM by LLYC.” 25 Id. ¶ 101. BAM responded on March 15, stating that the “[b]oard had ultimate discretion 26 with regard to the operation of [BAM],” id. ¶ 102, and Bamberger replied that “every 27 member at BAM [was] aware of th[e] coming transition and [they] ha[d] started a detailed 28 change management plan internally,” id. ¶ 103 (alterations in original). BAM’s board then 3 24-CV-706 JLS (DDL) 1 told Bamberger that until they received a proposal regarding a potential repurchase, 2 Bamberger should not implement any changes to BAM or inform BAM employees of any 3 change in ownership. Id. ¶ 104. 4 The board’s warning came too late. Bamberger created—and shared among BAM 5 employees—an internal document mapping out a transition away from LLYC USA. Id. 6 ¶ 117. As part of this plan, Bamberger formed Defendant BAM by BIG LLC (“BIG”). Id. 7 ¶ 114. She also registered a new domain name and created a webpage that “copied BAM’s 8 website word for word.” Id. ¶¶ 115, 139. Then, in mid-March of 2024, Bamberger 9 executed the transition. Working with BAM employees, she (1) redirected all traffic from 10 BAM’s website to BIG’s website, (2) transferred BAM’s internal documents and client 11 files to BIG’s new Google Drive, (3) emailed clients to inform them that BAM was ending 12 its relationship with LLYC, and (4) sent new invoices with BIG’s bank information to 13 clients and directed them to ignore old invoices from BAM. Id. ¶¶ 117–149. BIG’s website 14 retains the “BAM by LLYC” mark. See id. ¶ 113. 15 Plaintiffs discovered Bamberger’s efforts on April 4, 2024, when one of BAM’s 16 clients contacted LLYC USA to inquire about a duplicate invoice it received from BIG. 17 Id. ¶ 109. This email “made it clear to BAM, the [b]oard, and LLYC [USA] . . . that 18 Bamberger was in the process of completely decimating BAM by stealing clients and 19 redirecting payments away from BAM.” Id. ¶ 151. 20 Plaintiffs filed this action on April 19, 2024, asserting, among other causes of action, 21 misappropriation of trade secrets, conversion, fraud, breach of contract, and trademark 22 infringement. See generally Compl. The instant Application and Seal Motion followed 23 one week later. 24 25 APPLICATION I. Temporary Restraining Order 26 A. 27 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 28 restraining order (“TRO”). The standard for a TRO is identical to the standard for a Legal Standard 4 24-CV-706 JLS (DDL) 1 preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Worker’s 2 Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff seeking preliminary 3 injunctive relief must establish “[1] that he is likely to succeed on the merits, [2] that he is 4 likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of 5 equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. 6 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is “an extraordinary remedy 7 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief” 8 and is “never awarded as of right.” Id. at 22, 24. 9 10 11 12 13 14 15 16 When a plaintiff has not provided notice of their TRO application to the defendant, Federal Rule of Civil Procedure 65(b)(1) imposes additional requirements. Namely: The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. 17 Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed . . . by Rule 65[] on the 18 availability of ex parte temporary restraining orders reflect the fact that our entire 19 jurisprudence runs counter to the notion of court action taken before reasonable notice and 20 an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, 21 Inc. v. Bhd. of Teamsters, 415 U.S. 423, 438–39 (1974) (footnote omitted). 22 “Courts have [thus] recognized very few circumstances justifying the issuance of an 23 ex parte TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). 24 “For example, an ex parte TRO may be appropriate ‘where notice to the adverse party is 25 impossible either because the identity of the adverse party is unknown or because a known 26 party cannot be located in time for a hearing.’” Id. (quoting Am. Can Co. v. Mansukhani, 27 742 F.2d 314, 322 (7th Cir. 1984)). Alternatively, “[i]n cases where notice could have 28 been given to the adverse party, courts have recognized ‘a very narrow band of cases in 5 24-CV-706 JLS (DDL) 1 which ex parte orders are proper because notice to the defendant would render fruitless the 2 further prosecution of the action.’” Id. (quoting Am. Can Co., 742 F.3d at 322). In 3 trademark infringement cases, these include situations “where an alleged infringer is likely 4 to dispose of the infringing goods before the hearing.” Id. 5 B. 6 Plaintiffs suggest the Court should grant the Application without notice because if 7 Defendants receive notice of the Application, Defendants “will not think twice before 8 moving, hiding, and/or destroying evidence.” Appl. at 32; see also id. at 12. Discussion 9 Plaintiffs have made an insufficient showing to prevail on this argument. “To justify 10 an ex parte proceeding [on destruction of evidence grounds], “the applicant must do more 11 than assert that the adverse party would dispose of evidence if given notice.” Reno Air, 12 452 F.3d at 1131 (internal quotation marks omitted) (quoting First Tech. Safety Sys., Inc. 13 v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993)). Instead, “[p]laintiffs must show that 14 defendants would have disregarded a direct court order and disposed of the goods within 15 the time it would take for a hearing . . . [and] must support such assertions by showing that 16 the adverse party has a history of disposing of evidence or violating court orders or that 17 persons similar to the adverse party have such a history.” Id. (first alteration added and 18 internal quotation marks omitted) (quoting Depinet, 11 F.3d at 650–51). 19 Plaintiffs offer only a sparse, seemingly boilerplate declaration from their attorney 20 Gregory Nylen, who avers that “in [his] experience in working with trademark clients and 21 litigation with infringers, ex parte seizure is the only way to ensure that goods and services, 22 including websites bearing a counterfeit mark . . . are preserved for use in the legal action.” 23 Nylen Decl. ¶ 11. The Ninth Circuit, however, rejected a near-identical statement in Reno 24 Air. 452 F.3d at 1132. So too have multiple district courts. See, e.g., Acushnet Co. v. Yoo, 25 No. 13CV2632-MMA (NLS), 2013 WL 12100800, at *3–4 (S.D. Cal. Nov. 1, 2013); 26 FitTrack Inc. v. Hyperzoo Tech. Ltd., No. 23-CV-536 TWR (NLS), 2023 WL 2705844, at 27 *3 (S.D. Cal. Mar. 29, 2023). 28 /// 6 24-CV-706 JLS (DDL) 1 In an apparent attempt to bolster the above statement, Nylen also cites several 2 trademark cases where courts have granted ex parte temporary restraining orders. Nylen 3 Decl. ¶ 12. “Apart from the fact that Defendants are also alleged trademark infringers,” 4 however, “Plaintiff[s] ha[ve] not established any reasonable similarity between the 5 parties.” Acushnet Co., 2013 WL 12100800, at *3. This is not a case involving numerous, 6 amorphous ecommerce sellers, fungible products, or uncertain actors. Instead, this case 7 involves a marketing CEO who has resided and worked in San Diego for many years. See 8 Compl. ¶¶ 10, 12. Plaintiffs have not sufficiently established that Bamberger specifically, 9 or persons similar to Bamberger, have a history of destroying evidence. 10 Moreover, Plaintiffs’ own submissions undercut their argument that the risk of 11 destruction of evidence requires ex parte relief. First, Plaintiffs’ digital consultant indicates 12 that he has already preserved copies of BIG’s allegedly infringing website and online 13 drive—presumably, much of the very evidence Plaintiffs fear will be destroyed. See 14 Renner Decl. ¶¶ 11–20; see also Rovio Ent. Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 15 1086, 1097 n.7 (N.D. Cal. 2012) (rejecting ex parte TRO in part because the plaintiff had 16 already conducted an extensive investigation and preserved substantial evidence of 17 infringement). Second, Plaintiffs have already filed proof of service with respect to at least 18 some Defendants. See ECF No. 4. If the aim was to prevent destruction of evidence by 19 hiding this case from Defendants until said evidence was in safe hands, that ship has sailed. The Court therefore DENIES Plaintiffs’ Application for an Ex Parte TRO. 20 21 II. Seizure Order 22 Plaintiffs next seek “an ex parte seizure pursuant to 15 U.S.C. § 1116(d).” Appl. at 23 31. This statute allows an order of seizure to issue if the court determines, among other 24 required findings, that “the person against whom seizure would be ordered, or persons 25 acting in concert with such a person, would destroy, move, hide, or otherwise make [the 26 matter to be seized] inaccessible to the court, if the applicant were to proceed on notice to 27 such person.” Id. § 1116(d)(4)(B)(vii). The fundamental inquiry under this section is as 28 follows: “Could the defendants be trusted to comply with the order of a Federal District 7 24-CV-706 JLS (DDL) 1 Court?” See Lorillard Tobacco Co. v. Bisan Food Corp., 377 F.3d 313, 320 (3d Cir. 2004). 2 Where courts in this Circuit have refused to grant TROs without notice to 3 defendants, they have also refused to grant ex parte seizure orders. The logic underlying 4 this approach is straightforward—if a plaintiff failed to show a sufficient risk of destruction 5 of evidence to justify an ex parte TRO, they have necessarily failed to make the more 6 intensive showing necessary to justify a seizure order. See, e.g., Acushnet Co., 2013 WL 7 12100800, at *5. Here, as Plaintiffs have failed to justify an ex parte TRO on destruction- 8 of-evidence grounds, an ex parte seizure order may not issue. 9 III. Order for Expedited Discovery 10 A. 11 Courts may allow expedited discovery prior to a Rule 26(f) discovery conference for 12 good cause, i.e., where “the need for expedited discovery, in consideration of the 13 administration of justice, outweighs the prejudice to the responding party.” Semitool, Inc. 14 v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “In determining 15 whether good cause exists . . . , courts look at the following factors: ‘(1) whether a 16 preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose 17 for requesting the expedited discovery; (4) the burden on the [party opposing expedited 18 discovery] to comply with the requests; and (5) how far in advance of the typical discovery 19 process the request was made.’” FitTrack Inc., 2023 WL 2705844, at *4 (first alteration 20 added) (quoting NobelBiz, Inc. v. Wesson, No. 14CV0832-W (JLB), 2014 WL 1588715, at 21 *1 (S.D. Cal. Apr. 18, 2014)). Though “good cause is frequently found in cases involving 22 claims of infringement,” expedited discovery is not appropriate in every infringement case. 23 Semitool, Inc., 208 F.R.D. at 276–277. Legal Standard 24 B. 25 Plaintiffs seek expedited discovery to “identify third parties acting in concert with 26 Defendants to infringe on Plaintiffs’ rights.” Appl. at 36. They also suggest that they must 27 act “without delay” to identify Defendants’ “sources of equipment and devices containing 28 or storing the counterfeit BAM Mark and LLYC Mark.” Id. Discussion 8 24-CV-706 JLS (DDL) 1 Though the Court is mindful of Plaintiffs’ allegations of ongoing harm, the Court is 2 again left with the distinct impression that Plaintiffs have submitted a boilerplate request 3 ill-tailored to the peculiar circumstances of this case. This is not a case where an unknown 4 network of manufacturers, distributors, and sellers are flooding the market with knock-off 5 products. Instead, this case involves a CEO leading the employees of a company in an 6 alleged revolt against the company’s majority owner. 7 The Court finds Rovio’s analysis instructive. Here, as in Rovio, Plaintiffs have 8 “made no showing that a reasonable basis exists to conclude that there are other individuals 9 or entities involved in the counterfeiting scheme.” 907 F. Supp. 2d at 1100. Relatedly, 10 “Plaintiff[s] ha[ve] ascertained the identities of the entities and the individual allegedly 11 responsible for the conduct it seeks to enjoin,” have amassed evidence related to the alleged 12 infringement, and “ha[ve] not articulated any specific missing evidence essential for 13 injunctive relief.” Id.; see also Appl. Exs. A–C. Finally, the breadth of Plaintiffs’ 14 discovery request weighs against granting expedited discovery. See Rovio, 907 F. Supp. 15 2d at 1110. While courts have authorized expedited discovery where plaintiffs seek narrow 16 categories of documents or information, see Semitool, Inc., 208 F.R.D. 2 at 277, courts are 17 leery to grant what Plaintiffs here seek—wholesale permission to begin propounding 18 document requests and scheduling depositions. See FitTrack Inc., 2023 WL 2705844, at 19 *4; Rovio, 907 F. Supp. 2d at 1100. 20 At this early stage, therefore, Plaintiffs have not shown good cause for expedited 21 discovery prior to a hearing on a preliminary injunction. The Court will thus DENY 22 WITHOUT PREJUDICE Plaintiffs’ request for expedited discovery. 23 believes expedited discovery remains necessary, Plaintiffs may file a more narrowly 24 tailored request. 25 D. 26 Where courts have denied ex parte TROs and seizure orders, they have (1) swiftly 27 scheduled a hearing on a preliminary injunction and (2) issued evidence preservation orders 28 to assuage plaintiffs’ concerns regarding the destruction of evidence. See, e.g., id.; If Plaintiffs Order to Show Cause and Preservation Order 9 24-CV-706 JLS (DDL) 1 Acushnet Co., 2013 WL 12100800, at *5. Accordingly, the Court GRANTS Plaintiffs’ 2 Application to the extent it seeks (1) an order to show cause why a preliminary injunction 3 should not issue and (2) an evidence preservation order. The Court will set a briefing 4 schedule and hearing date in the conclusion of this Order. 5 6 SEAL MOTION I. Legal Standard 7 “[T]he courts of this country recognize a general right to inspect and copy public 8 records and documents, including judicial records and documents.” Nixon v. Warner 9 Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). “Unless a particular court 10 record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the 11 starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 12 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 13 2003)). “The presumption of access is ‘based on the need for federal courts, although 14 independent—indeed, particularly because they are independent—to have a measure of 15 accountability and for the public to have confidence in the administration of justice.’” Ctr. 16 for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United 17 States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 18 A party seeking to seal a judicial record bears the burden of overcoming this strong 19 presumption of access. Kamakana, 447 F.3d at 1178 (citing Foltz, 331 F.3d at 1135). The 20 showing required to meet this burden depends upon whether the documents to be sealed 21 relate to a motion that is “more than tangentially related to the merits of the case.” Ctr. for 22 Auto Safety, 809 F.3d at 1102. When the underlying motion is more than tangentially 23 related to the merits, the “compelling reasons” standard applies. Id. When the underlying 24 motion does not surpass the tangential relevance threshold, the “good cause” standard 25 applies instead. Id. at 1096–99. 26 As relevant here, the “compelling reasons” standard typically applies to motions for 27 preliminary injunctions and temporary restraining orders. See id. at 1099. “In general, 28 ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify 10 24-CV-706 JLS (DDL) 1 sealing court records exist when such ‘court files might have become a vehicle for improper 2 purposes,’ such as the use of records to gratify private spite, promote public scandal, 3 circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179 4 (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the production of records 5 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will 6 not, without more, compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). 7 Under the “compelling reasons” standard, the party seeking protection must “present 8 ‘articulable facts’ identifying the interests favoring continued secrecy and . . . show that 9 these specific interests overc[o]me the presumption of access by outweighing the ‘public 10 interest in understanding the judicial process.’” Id. at 1181 (citation omitted) (first quoting 11 Foltz, 331 F.3d at 1136; and then quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th 12 Cir. 1995)). “The movant must make this required particularized showing for each 13 document it seeks to seal.” Avnet, Inc. v. Avana Techs. Inc., No. 2:13-CV-00929-GMN, 14 2014 WL 4181831, at *1 (D. Nev. Aug. 20, 2014) (citing San Jose Mercury News, Inc. v. 15 U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999)). And if the movant wishes to seal an 16 entire document, they must show that their compelling interest cannot be protected by 17 redacting only the sensitive portions of said document. See In re Roman Cath. Archbishop, 18 661 F.3d 417, 425 (9th Cir. 2011); Foltz, 331 F.3d at 1137. 19 The decision to seal documents is “one best left to the sound discretion of the trial 20 court” upon consideration of “the relevant facts and circumstances of the particular case.” 21 Nixon, 435 U.S. at 599. 22 II. Discussion 23 Plaintiffs first point out that 15 U.S.C. § 1116(d)(8) requires that “a[ seizure] order 24 under this subsection, together with the supporting documents, shall be sealed until the 25 person against whom the order is directed has an opportunity to contest such order.” 26 Courts, however, routinely unseal case files after denying plaintiffs’ requests for seizure 27 orders. See Rovio, 907 F. Supp. 2d at 1101; Acushnet Co., 2013 WL 12100800, at *5. As 28 the Court has determined that a seizure order is not justified, the Court declines to seal the 11 24-CV-706 JLS (DDL) 1 Application on that ground. 2 Plaintiffs next request to file the Garcia and Renner Declarations (Exhibits A and B 3 of the Application) under seal. Plaintiffs point out that these declarations contain sensitive 4 and confidential business information, including BAM’s “business strategies, third-party 5 outreach, business relationships, client lists, sales strategies, and financial information.” 6 Seal Mot. at 5. 7 declarations: Exhibits 7, 9, 10, 14, 15, 17, 18, 19, 20, and 21 of the Garcia Declaration and 8 Exhibits 3 and 4 of the Renner Declaration. Id. In support, Plaintiffs point to select exhibits associated with the 9 Plaintiffs are correct that sensitive business information, including “customer 10 names,” “internal documents,” “business plans,” and “financial records” may be filed 11 under seal. See, e.g., Apex.AI, Inc. v. Langmead, No. 5:23-CV-02230-BLF, 2023 WL 12 4157629, at *2 (N.D. Cal. June 23, 2023). However, requests to seal must be narrowly 13 tailored—a party may not seek to seal an entire document where redaction would suffice. 14 See id. at *1 (granting a request to seal where the moving party, rather than seek to seal 15 declarations in their entirety, identified specific paragraphs and exhibits that should be 16 sealed); see also In re Roman Cath. Archbishop, 661 F.3d at 425. 17 The Court is persuaded that select portions of the Garcia and Renner Declarations 18 should be filed under seal. See, e.g., Garcia Decl. Ex. 17 (containing a list of select BAM 19 clients). The Court also recognizes, however, that large portions of the Declarations 20 contain information for which sealing is not justified.2 And, as it is Plaintiffs’ burden to 21 offer compelling reasons to seal each portion of documents they believe should be sealed, 22 the Court will not parse the Declarations on Plaintiffs’ behalf. 23 The Court will instead take the following approach. The Court will allow Plaintiffs 24 to file the Application, the Seal Motion, and all associated material—including the Garcia 25 and Renner Declarations—under seal for now. By the date of the preliminary injunction 26 27 28 2 Much of the Garcia Declaration, for instance, parrots allegations contained within the unsealed Complaint. 12 24-CV-706 JLS (DDL) 1 hearing, Plaintiffs MAY FILE a renewed motion to seal that identifies specific portions of 2 the Declarations and/or Application that should be sealed and offers compelling reasons to 3 seal each identified portion. Plaintiffs SHALL accompany said motion with a copy of the 4 Application and Declarations that includes Plaintiffs’ proposed redactions. If Plaintiffs do 5 not file such a motion, the Court will order the Application and all associated documents 6 unsealed in their entirety. 7 CONCLUSION 8 In light of the foregoing, the Court ORDERS as follows: 9 1. Plaintiffs’ request for an ex parte TRO is DENIED. 10 2. Plaintiffs’ request for an ex parte seizure order is DENIED. 11 3. Plaintiffs’ request for expedited discovery is DENIED WITHOUT 12 PREJUDICE. 13 4. Plaintiffs’ request for an order to show cause why a preliminary injunction 14 should not issue is GRANTED. The Court will construe Plaintiffs’ Application—only to 15 the extent it seeks a TRO—as a motion for a preliminary injunction. Plaintiffs SHALL 16 SERVE Defendants with the summons, Complaint, Application, and all other documents 17 filed in this case, including this Order, within two (2) days of the date this Order is filed. 18 Plaintiffs SHALL FILE proofs of service with the Court and submit a new proposed order 19 to the Court via email by Friday, May 3, 2024. Defendants SHALL FILE any opposition 20 by Wednesday, May 8, 2024. Plaintiffs MAY FILE any reply by Friday, May 10, 2024. 21 The Court warns the parties that a failure to oppose any motion may constitute consent to 22 granting the motion under Civil Local Rule 7.1(f)(3)(c). 23 5. A hearing on Plaintiffs’ motion for a preliminary injunction is SET for 24 Thursday, May 16, 2024, at 1:30 p.m. in Courtroom 4D of the Edward J. Schwartz United 25 States Courthouse, 221 West Broadway, San Diego, CA, 92101. 26 6. The Court ORDERS Defendants to take reasonable steps to preserve any 27 records, documents, communications, or stored information, regardless of medium, either 28 (1) using/containing the BAM by LLYC, LLYC, and BAM marks, or a substantially 13 24-CV-706 JLS (DDL) 1 similar mark; or (2) relating to the advertising, promoting, marketing, offering for sale, 2 distributing, or collecting accounts receivable for services associated with said marks or 3 substantially similar marks. The Court further ORDERS Defendants to take reasonable 4 steps to preserve any records, documents, communications, or stored information, 5 regardless of medium, either (1) using/containing BAM’s confidential and proprietary 6 information or trade secrets; or (2) relating to the advertising, promoting, marketing, 7 offering for sale, distributing, or collecting accounts receivable for services offered using 8 said confidential or proprietary information or trade secrets. 9 7. The Clerk of the Court SHALL FILE the Application, the Seal Motion, and 10 all associated declarations and exhibits under seal. On or before Thursday, May 16, 2024, 11 Plaintiffs MAY FILE a renewed motion to seal that identifies specific portions of the 12 Application and associated documents for which compelling reasons exist to prevent public 13 access, accompanied by a copy of the Application and associated documents that 14 incorporates Plaintiffs’ proposed redactions. If Plaintiffs elect not to file said motion, the 15 Court will order all documents unsealed in their entirety. 16 8. 17 IT IS SO ORDERED. 18 The Court otherwise DENIES Plaintiffs’ Application and Motion to Seal. Dated: April 30, 2024 19 20 21 22 23 24 25 26 27 28 14 24-CV-706 JLS (DDL)
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