CAHILL GORDON & REINDEL LLP 32 OLD SLIP NEW YORK, NY 10005 R. BANKS ARIEL GOLDMAN TELEPHONE: (212) 701-3000 BRIAN T. MARKLEY JONATHAN D. THIER BANSAL PATRICK GORDON WWW.CAHILL.COM MEGHAN N. McDERMOTT SEAN P. TONOLLI L. BARASH JASON M. HALL _ WILLIAM J. MILLER JOHN A. TRIPODORO C. BEST STEPHEN HARPER NOAH B. NEWITZ GLENN J. WALDRIP, JR. J. BONDI WILLIAM M. HARTNETT 1990 K STREET, N.W. WARREN NEWTON § HERBERT S. WASHER CKTON B. BOSSON NOLA B. HELLER WASHINGTON, DC 20006-1181 DAVID R. OWEN MICHAEL B. WEISS BROWNSON * CRAIG M. HOROWITZ (202) 862-8900 JOHN PAPACHRISTOS DAVID WISHENGRAD CHOUDHURI* DOUGLAS 8. HOROWITZ LUIS R. PENALVER C. ANTHONY WOLFE ES J. CLARK TIMOTHY B. HOWELL CAHILL GORDON & REINDEL (UK) LLP KIMBERLY PETILLO-DECOSSARD COREY WRIGHT W. CLEMENT DAVID G. JANUSZEWSKI 24 MONUMENT STREET SHEILA C. RAMESH ELIZABETH M. YAHL COLLIER ELAI KATZ LONDON EC3R 8AJ MICHAEL W. REDDY JOSHUA M. ZELIG K. CREED JAKE KEAVENY +44 (0) 20 7920 9800 OLEG REZZY CRIDDLE + BRIAN S. KELLEHER _ THORN ROSENTHAL DAVIS RICHARD KELLY TAMMY L. ROY G. DOWNING CHERIE R. KISER ¢ WRITER’S DIRECT NUMBER JONATHAN A. SCHAFFZIN * ADMITITED AS A SOLICITOR IN M M. DWORKIN JOEL KURTZBERG DARREN SILVER ENGLAND AND WALES ONLY STASIA EFIMOVA TED B. LACEY JOSIAH M. SLOTNICK WESTERN AUSTRALIA ONLY B. EZRING MARC R. LASHBROOK RICHARD A. STIEGLITZ JR. S. FRANCESCHI ALIZA R. LEVINE ROSS E. STURMAN # ADMITTED IN DC ONLY MURTAGH FRANKEL JOEL H. LEVITIN SUSANNA M. SUH § ADMITTED AS AN ATTORNEY J. FRANKEL GEOFFREY E. LIEBMANN ANTHONY K. TAMA ON REPUBLIC OF SOUTH AFRICA (212) 701-3732 August 6, 2021 The motion to seal is GRANTED temporarily. The Court will assess VIA ECF whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to The Honorable Jesse M. Furman terminate ECF No. 687. United States District Court SO ORDERED. Southern District of New York 40 Centre Street, Room 2202 New York, NY 10007 Re: City of Providence, Rhode Island et al. v. BATS Global" Ayoust 9, 2021 Markets, Inc. et al., No. 14-cv-2811 (JMF) (S.D.N.Y.) Dear Judge Furman: We represent and write on behalf of non-party Credit Suisse Securities (USA) LLC (“CSSU”) in the above-referenced litigation. On July 27, 2021, Defendants The Nasdaq Stock Market LLC and Nasdaq OMX BX, Inc. notified undersigned counsel that in connection with Defendants’ opposition to Plaintiffs’ class certification motion in the above-referenced matter, a Declaration and transactional data produced pursuant to a Stipulated Protective Order (Dkt. No. 402) by CSSU (hereafter, the “Proprietary Material”) will be referenced in Defendants’ briefing and/or associated expert report. Additionally, Defendants have notified CSSU that the Declaration has been filed under seal as Exhibit 7 to Defendants’ opposition to Plaintiffs’ class certification motion. Consistent with Your Honor’s Individual Rule 7.C “Procedures for Filing Sealed or Redacted Documents,” CSSU requests that the Declaration remain under seal, and that references to the Proprietary Material in publicly filed submissions be redacted.' ' CSSU has not been provided with a copy of Defendants’ brief or expert report. Defendants instead have provided CSSU with limited indication of how information from CSSU’s productions will be incorporated into Defendants’ filings. Accordingly, we cannot file with this letter motion the brief and -2- The Proprietary Materials constitute proprietary and trade secret information2 in that they discuss or reveal, in significant detail, the systems that non-party CSSU uses to intake, store, organize, and analyze transactions and transactional data, both during the relevant period of the litigation and today. The Declaration contains information revealing the capabilities and limitations of these systems, and also details the results of running specific queries in these systems. The transactional data has been produced in a format that reveals the organizational structure of the proprietary systems used to maintain it, and details dozens of data fields CSSU collects commercially sensitive information on for each transaction. Under Lugosch v. Pyramid Co. of Onondaga, the presumption of access to judicial documents must be balanced against the “privacy interests of those resisting disclosure.” 435 F.3d 110, 120 (2d Cir. 2006). Consistent with Lugosch and its progeny, the proposed sealing is narrowly tailored to serve the compelling interest of non-party CSSU’s interest in protecting its proprietary and most commercially sensitive information, as outlined above. In this analysis, the privacy interests of “innocent third parties . . . should weigh heavily in a court’s balancing equation.” S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir. 2001). This Court has held that confidential business information is a privacy interest worthy of protection. See, e.g., Hanks v. Voya Retirement Ins. & Annuity Co., 2021 WL 2451981 (S.D.N.Y. 2021); Waiv Solutions Inc. v. HTC Corp., 2021 WL 871415 (S.D.N.Y. 2021). Given that, to the best of CSSU’s knowledge, the information contained in the Declaration and transactional data is not directly related to the claims and defenses of the Parties, this interest is balanced against the presumption of public access to judicial records. CSSU notes that it does not request an across-the-board sealing or redaction of the materials it has produced in connection with the above-referenced litigation and relied on in Defendants’ brief and expert reports, some of which describe the proprietary systems in question at a high-level. Instead, CSSU specifically requests the sealing and redaction of the Proprietary Material, which discusses the proprietary systems with sufficient detail that public disclosure would significantly harm CSSU’s commercial interests. expert reports indicating where CSSU would require redactions of references to the Proprietary Material. From Defendants’ present representations, we understand that references to the Proprietary Material would necessitate approximately five redactions to Defendants’ filings. CSSU asks the Court to permit Defendants to apply these redactions on CSSU’s behalf. 2 Rule 7.A of Your Honor’s Individual Rules lists “proprietary . . . information” among categories of information that do not require prior Court approval for redactions. Although the Proprietary Material may be considered proprietary information under Rule 7.A, CSSU submits this request for avoidance of doubt. -3- Respectfully Submitted, /s/ Britney R. Foerter Britney R. Foerter James D. Miller Cahill Gordon & Reindel LLP 32 Old Slip New York, New York 10005 Telephone: (212) 701-3732 bfoerter@cahill.com jdmiller@cahill.com cc: All counsel of record (via ECF)