UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

FEDERAL TRADE COMMISSION, )

)

Plaintiff, )

v. ) Civil Case No. 1:11-CV-02239 (RLW)

)

GRACO INC., et al., )

)

Defendants )

)

PLAINTIFF’S MOTION TO UNSEAL THE UNREDACTED COMPLAINT

1. Plaintiff, the Federal Trade Commission (“Commission”), respectfully moves the 

Court for an order to unseal the unredacted Complaint for Temporary Restraining Order and 

Preliminary Injunction (“unredacted Complaint”). This motion is supported by the memorandum 

of points and authorities attached hereto. Pursuant to Local Civil Rule 7(m), Plaintiff’s counsel 

discussed this motion with Defendants’ counsel. Defendant Illinois Tool Works, Inc. does not 

oppose unsealing the Complaint as to information received from ITW contained in paragraphs 5 

and 29 of the unredacted Complaint. Defendant Graco Inc. opposes this motion.

2. In light of the public’s strong interest in the outcome of this case and the 

longstanding public policy in favor of open access to judicial records, Plaintiff moves to unseal 

the unredacted Complaint. Plaintiff respectfully moves the Court for expedited treatment of this 

motion in order to facilitate a more open and thorough discussion of the issues.
January 9, 2012 Respectfully submitted,

By: /s/ 

PHILLIP L. BROYLES

 Assistant Director 

PETER RICHMAN

MARC W. SCHNEIDER

REBECCA P. DICK (D.C. Bar No. 463197)

BRIAN J. TELPNER (D.C. Bar No. 462812)

ROBERT FRIEDMAN

AMANDA HAMILTON (D.C. Bar No. 499646)

CATHLIN TULLY

ANNA CHEHTOVA 

JEFFREY OLIVER

JESSICA S. DRAKE

Attorneys

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, DC 20580

(202) 326-2805

Richard A. Feinstein (D.C. Bar No. 324848)

Director

Norman A. Armstrong, Jr. (D.C. Bar No. 459621)

Deputy Director

Federal Trade Commission

Bureau of Competition

Willard K. Tom (D.C. Bar No. 297564)

General Counsel

Federal Trade Commission

Attorneys for the Plaintiff
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 9th day of January 2012, I served the attached on the 

following counsel by electronic mail (PDF):

Katrina Robson

O’Melveny & Myers LLP

1625 Eye Street, NW

 Washington, DC 20006

krobson@omm.com

Counsel for Defendant Graco Inc.

/s/ 

Jeffrey Oliver

Counsel for Plaintiff

Federal Trade Commission
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

FEDERAL TRADE COMMISSION, )

)

Plaintiff, )

v. ) Civil Case No. 1:11-CV-02239 (RLW)

)

GRACO INC., et al., )

)

Defendants. )

)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S

MOTION TO UNSEAL THE UNREDACTED COMPLAINT

Plaintiff, the Federal Trade Commission (“Commission”), respectfully moves the Court 

for an order to unseal the Complaint for Temporary Restraining Order and Preliminary 

Injunction (“Complaint”). Plaintiff first filed the Complaint on December 15, 2011, together 

with an unopposed motion to seal the Complaint, the Motion for Temporary Restraining Order 

and Preliminary Injunction (“Motion”) [DKT# 7], and other documents. On December 16, 2011, 

the Court ordered the documents sealed until “the commencement of any hearing” on the 

Motion. On December 19, 2011, the Court ordered [DKT# 12] the parties to confer and file 

redacted public versions of the sealed filings, including the Complaint. After conferring with 

Defendants, Plaintiff filed a redacted Complaint on December 23, 2011 [DKT# 26]. The 

redacted text quotes Defendants‟ documents and a Graco Inc. (“Graco”) executive. The 

Commission protected these quotes from public disclosure during the Commission‟s

pre-Complaint antitrust investigation. That investigation ended on December 15, 2011, when the 
2

Commission filed its administrative complaint challenging the transaction.1The unredacted 

Complaint remains under seal. 

In light of the longstanding public policy in favor of open access to judicial records, and 

the public‟s strong interest in the antitrust violations in this case, Plaintiff now moves to unseal 

the unredacted Complaint. Plaintiff will also move to unseal its administrative complaint, which 

contains the same quotations. 

ARGUMENT

In U.S. v. Hubbard, the D.C. Circuit Court found a “strong presumption in favor of public 

access to judicial proceedings.”2The presumption serves to ensure “the integrity of judicial 

proceedings in particular and of the law enforcement process more generally.”3 Property and 

privacy interests may occasionally outweigh the presumption;4however, the D.C. Circuit has

seldom favored confidentiality over transparency, particularly when the government is a party to 

the case.5

Hubbard articulates a six factor balancing test for determining whether property and

privacy interests merit protection.6 The six factors are: 

(1) the need for public access to the documents at issue; (2) the extent to which 

the public had access to the documents prior to the sealing order; (3) the fact that 

a party has objected to disclosure and the identity of that party; (4) the strength of 

 

1

In the Matter of Graco Inc., FTC File No. 111-0169, available online at 

http://www.ftc.gov/os/adjpro/d9350/111215gracoadmincmpt.pdf.

2 U.S. v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1981); see also EEOC v. Nat’l Children’s Ctr., 

Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (“[T]he starting point in considering a motion to seal 

court records is a „strong presumption in favor of public access to judicial proceedings.‟”

(quoting Johnson v. Greater Se. Com’ty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991))). 

3 Hubbard, 650 F.2d at 315. 

4 Greater Se. Com’ty. Hosp., 951 F.2d at 1277. 

5

See Nat’l Children’s Ctr., 98 F.3d at 1409 (citing FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 

404, 410 (1st Cir. 1987) (“The appropriateness of making court files accessible is accentuated in 

cases where the government is a party.”)).

6 Hubbard, 650 F.2d at 317-22. 
3

the property and privacy interests involved; (5) the possibility of prejudice to 

those opposing disclosure; and (6) the purposes for which the documents were 

introduced.7 

In Hubbard, the fourth factor was the deciding one.8Property and privacy interests must 

be specific and pressing to qualify for protection.

9

 Here, the redacted material quotes

Defendants‟ documents and a Graco executive discussing competition and the likely impact of 

the acquisition.10 Such information does not merit protection under Hubbard. Subsequent courts 

have ruled that nondescript reputational interests do not weigh in favor of sealing documents.11 

Broad references to confidential or sensitive information are equally insufficient.

12

 Property 

interests must typically rise to the level of trade secret before earning protection.13 In the D.C. 

Circuit, a trade secret is defined as a “commercially valuable plan, formula, process, or device”

related to the “productive process” of a particular product or products.14 Here, none of the 

redacted material reveals anything about Defendants‟ “productive process.” Disclosure will not 

 

7 Greater Se. Com’ty Hosp., 951 F.2d at 1277, n.14 (citing Hubbard, 650 F.2d at 317-22). 

8 Hubbard, 650 F.2d at 320.

9 Hubbard, 650 F.2d at 315-16 (public access may be denied, however, “to protect trade secrets, 

or the privacy and reputation of victims of crimes, as well as to guard against risks to national 

security interests, and to minimize the danger of an unfair trial by adverse publicity”).

10 See, e.g., ¶¶ 1-2, 5-6, 16, 25-26, 29-30, and 47 of the sealed Complaint.

11 Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 150 (D.D.C. 2010) (unsubstantiated reputational 

interests do not weigh in favor of sealing documents).

12 Friedman v. Sebelius, 672 F. Supp. 2d 54, 60 (D.D.C. 2009).

13 Hubbard, 650 F.2d at 315-16; Doe v. Exxon Mobil Corp., 570 F. Supp. 2d 49, 53 (D.D.C. 

2008) (finding that none of the proposed redactions concerned trade secrets).

14 Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983); accord

Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 150-51 (D.C. Cir. 

2001) (emphasizing that the D.C. Circuit “narrowly cabins trade secrets to information relating 

to the „productive process‟ itself”). Section 6(f) of the Federal Trade Commission Act (“FTC 

Act”) forbids the Commission from making public “any trade secret.” 15 U.S.C. § 46(f). The 

FTC Act does not define the term. 
4

reveal Defendants‟ trade secrets, and mere embarrassment or loss of reputation does not justify

the seal.15 

Four of the remaining five factors are equally unsupportive of the seal. The public‟s need 

for access (the first factor) peaks when the government is a party to the proceeding.16 In such 

cases, “the taxpaying public are, in effect, real parties in interest.”

17

 Here, the government has 

brought an antitrust challenge to a merger that will affect consumers in this region and 

elsewhere. These consumers, if not all taxpayers, are effectively parties in interest with a 

corresponding need for access.

The second factor asks whether previous publication obviates present sealing. Here, the 

relevant quotations have apparently never been public. This renders the second factor neutral in 

determining whether to publicize the unredacted Complaint.

18

 The third factor is an inquiry into 

the existence and identity of an objecting party. Defendants are the only parties who object to 

unsealing the unredacted Complaint. In Exxon, the lack of a third-party objector weighed against 

redaction.19 Other courts have found that a defendant‟s objection favors the seal, but is 

insufficient to justify it.

20

 Here, Defendants‟ objection provides insufficient support, if any, 

because there is no other rationale under Hubbard for maintaining the seal.

 

15 Zapp, 746 F. Supp. 2d at 150. 

16 See Nat’l Children’s Ctr., 98 F.3d at 1409 (the fact that a government agency was a party to 

the lawsuit and objected to sealing the record “strengthened the already strong case for access” 

(citing Standard Fin. Mgmt. Corp., 830 F.2d at 410 (“The appropriateness of making court files 

accessible is accentuated in cases where the government is a party.”))).

17 U.S. ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169, 172 (D.D.C. 2008).

18 U.S. ex rel. Durham v. Prospect Waterproofing, Inc., 2011 U.S. Dist. LEXIS 117051, at *6 

(D.D.C. 2011). 

19 Exxon, 570 F. Supp. 2d at 53.

20 See, e.g., Nat’l Children’s Ctr., 98 F.3d at 1410 (holding that a sealed document should be 

unsealed given that the only Hubbard factor supporting the seal was the fact that the defendant 

objected to disclosure); Prospect Waterproofing, 2011 U.S. Dist. LEXIS 117051 at *7 (holding 
5

The fifth factor—the possibility of prejudice—asks whether public disclosure will 

prejudice the objecting party in litigation.21 Public disclosure cannot logically prove prejudicial 

in the underlying litigation because the Court—the decision maker in this matter—already has 

access to the redacted quotations. Prejudice in future litigation is equally unlikely because the 

redacted material is specifically relevant to current cause of action. The quotations speak to 

existing competition between merging parties and the potential for anticompetitive effects 

post-acquisition.22 While the quotations are certainly probative here, the possibility of future 

prejudice is too minimal to favor the seal. 

The sixth factor—the purpose of the sealed material—weighs the importance of the 

relevant information.

23

 As noted in the previous paragraph, the redacted material is highly 

relevant to the claims at hand. Indeed, the redacted quotations “go to the heart” of the sealed 

document, making public disclosure even more important.

24

 

Unsealing the unredacted Complaint supports the purpose of the Court‟s Protective Order 

[DKT# 29], which only allows for the sealing of “confidential material.”

25

 The FTC Act 

expressly empowers the Commission to “make public from time to time” non-sensitive 

information gathered during investigations “as [the Commission] shall deem expedient in the 

 

that a complaint and other documents should be unsealed, despite plaintiff‟s objection that 

unsealing the documents would lead to employer retaliation). 

21 Hubbard, 650 F.2d at 320-21.

22 ¶¶ 1-2, 5-6, 16, 25-26, 29-30, and 47 of the sealed Complaint.

23 Prospect Waterproofing, 2011 U.S. Dist. LEXIS 117051 at *9-10 (“There is a strong 

presumption against sealing court pleadings that are relevant to the litigation . . . because the 

public has a right to access the filings.” (citing Friedman, 672 F. Supp. 2d at 61 (“if the 

documents sought to be sealed are entered as evidence during a trial, there is a strong 

presumption against sealing . . .”))). 

24 Exxon, 570 F. Supp. 2d at 52 (proposed redactions that “go to the heart” of the document are 

necessarily left unredacted). 

25 Protective Ord. ¶ 1 [DKT# 29]; see, e.g., Exxon, 570 F. Supp. 2d at 52 (“approval of the 

Protective Order, which allows the parties to file certain documents under seal, does not mean 

that references to protected information and document . . . must be redacted”). 
6

public interest.”26 The Commission never hoped for the unredacted Complaint to remain under 

seal indefinitely.27 In its motion to seal, the Commission stated: “Under these circumstances, the 

Commission‟s practice is to (1) file the documents under seal and (2) notify the producing parties 

of the filing. After those parties have had an opportunity to review the documents, the 

Commission may move to unseal some or all of them.”28 The Commission now does so. 

 

26 15 U.S.C. § 46(f) (“Provided, That the Commission shall not have any authority to make 

public any trade secret or any commercial or financial information.”). 

27 Pl. Mot. to File Under Seal ¶ 5.

28 Id.
7

CONCLUSION

For the forgoing reasons, Plaintiff respectfully requests that the Court unseal the 

unredacted Complaint. 

January 9, 2012 Respectfully submitted,

By: /s/ 

PHILLIP L. BROYLES

 Assistant Director 

PETER RICHMAN

MARC W. SCHNEIDER

REBECCA P. DICK (D.C. Bar No. 463197)

BRIAN J. TELPNER (D.C. Bar No. 462812)

ROBERT FRIEDMAN

AMANDA HAMILTON (D.C. Bar No. 499646)

CATHLIN TULLY

ANNA CHEHTOVA 

JEFFREY OLIVER

JESSICA S. DRAKE

Attorneys

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, DC 20580

(202) 326-2805

Richard A. Feinstein (D.C. Bar No. 324848)

Director

Norman A. Armstrong, Jr. (D.C. Bar No. 459621)

Deputy Director

Federal Trade Commission

Bureau of Competition

Willard K. Tom (D.C. Bar No. 297564)

General Counsel

Federal Trade Commission

Attorneys for the Plaintiff