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 REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO UNSEAL

THE UNREDACTED COMPLAINT
ii

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................... 1

II. ARGUMENT....................................................................................................................... 2

A. TIMING IS NOT A FACTOR UNDER HUBBARD .......................................................... 2

B. HUBBARD REQUIRES DISCLOSURE............................................................................. 3

1. The First Factor—the Public‟s Need for Access to the Documents at 

Issue—Does Not Favor the Seal.............................................................................................. 3

2. The Second Factor—Previous Public Access—Does Not Favor the Seal....................... 5

3. The Fourth Factor—Countervailing Property and Privacy Interests—Does Not 

Favor the Seal .......................................................................................................................... 5

4. The Fifth Factor—Potential Prejudice to Those Opposing the Seal—Does Not 

Favor the Seal .......................................................................................................................... 8

5. The Sixth Factor—the Purpose of the Relevant Document—Does Not Favor the Seal.. 8

III. CONCLUSION.................................................................................................................. 10
iii

TABLE OF AUTHORITIES

CASES

Doe v. Exxon Mobil Corp., 

570 F. Supp. 2d 49 (D.D.C. 2008).................................................................................................. 9

EEOC v. Nat’l Children’s Ctr., 

98 F.3d 1406 (D.C. Cir. 1996).................................................................................................... 1, 3

Friedman v. Sebelius, 

672 F. Supp. 2d 54 (D.D.C. 2009).......................................................................................... 2, 7, 8

*Johnson v. Greater Se. Com’ty. Hosp. Corp., 

951 F.2d 1268 (D.C. Cir. 1991).................................................................................................. 1, 5

Tavoulareas v. Washington Post Co.,

724 F.2d 1010 (D.C. Cir. 1984).............................................................................................. 4, 5, 6

U.S. ex rel. Durham v. Prospect Waterproofing, Inc., 

No. 10-1946, 2011 U.S. Dist. LEXIS 117051 (D.D.C. Oct. 4, 2011) ................................... passim

U.S. ex rel. Schweizer v. Oce, N.V., 

577 F. Supp. 2d 169 (D.D.C. 2008)................................................................................................ 3

*U.S. v. Hubbard, 

650 F.2d 293 (D.C. Cir. 1980)................................................................................................ 1, 7, 8

U.S. v. Thomas,

No. 06-0497, 2011 U.S. Dist. LEXIS 150939 (D.D.C. Dec. 23, 2011).......................................... 8

Zapp v. Zhenli Ye Gon, 

746 F. Supp. 2d 145 (D.D.C. 2010)................................................................................................ 2

STATUTES

15 U.S.C. § 46(f)............................................................................................................................. 7
I. INTRODUCTION

Defendant Graco Inc. (“Graco”) begins its Memorandum of Law in Response to 

Plaintiff‟s Motion to Unseal the Unredacted Complaint (“Memorandum”) [DKT# 44] by asking 

the Court to add a seventh factor to the time-tested, six-factor Hubbard analysis. U.S. v. 

Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980). Graco asks the Court to analyze the question 

of timing—to predict, in other words, the best time for public disclosure. This mocks Hubbard’s 

foundation: the “strong presumption” that the public deserves access now. Id. at 317; see also 

EEOC v. Nat’l Children’s Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (“[T]he starting point in 

considering a motion to [un]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)).

Graco then asks the Court to ignore Hubbard altogether, pretending that Plaintiff bears 

the burden of justifying public disclosure. See, e.g., Memorandum at 5 (“Consideration of the 

FTC‟s motion should be heavily colored by the fact that the FTC identifies no particular need for 

public access . . . .”) [DKT# 44]. For over 30 years, the D.C. Circuit has placed the burden of 

persuasion squarely on those parties seeking confidentiality. See Greater Se. Com’ty. Hosp., 951 

F.2d at 1277 (“[In Hubbard], we articulated a series of factors a district court should weigh in 

determining whether and to what extent a party‟s interest in privacy or confidentiality . . . 

outweighs this strong presumption in favor of public access . . . .”). 

Having attempted to shift this unavoidable burden, Graco then fails to meet this burden. 

Instead, Graco offers vague, broad assertions of confidential and sensitive information while 

predicting generalized harm to its public image. See, e.g., Memorandum at 8 (“[T]here is no 

reason to allow the FTC to impugn Graco publicly . . . .”) [DKT# 44]. Such assertions are 
2

explicitly insufficient to justify the present seal. See Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 

145, 150 (D.D.C. 2010) (unsubstantiated reputational and property interests do not favor 

sealing); Friedman v. Sebelius, 672 F. Supp. 2d 54, 60 (D.D.C. 2009) (a “broad reference to 

„confidential and sensitive information‟” cannot justify a seal).

II. ARGUMENT

A. TIMING IS NOT A FACTOR UNDER HUBBARD

Graco argues that the possibility of dismissal and the lack of a final protective order 

render Plaintiff‟s Motion to Unseal the Unredacted Complaint (“Motion”) untimely [DKT# 40].

1

 

As Graco illustrates in its Memorandum, the Hubbard analysis contains six inquiries, none of 

which asks whether Defendant finds the timing of disclosure ideal or whether future events will 

obviate the inquiry. Memorandum at 4 [DKT# 44]. In U.S. ex rel. Durham v. Prospect 

Waterproofing, Inc., No. 10-1946, 2011 U.S. Dist. LEXIS 117051 (D.D.C. Oct. 4, 2011), the 

court specifically refused to let the question of timing influence the Hubbard analysis. There, 

the plaintiff argued that the court should maintain a seal on the complaint because the plaintiff 

had already “voluntarily dismissed the case” without prejudice. Id at *10. There, unlike here, 

dismissal was certain. There, as here, a new venue was possible. The court still refused to seal 

the complaint. Id. at *11.

 

1 Chief Administrative Law Judge D. Michael Chappell has already entered a Protective Order 

Governing Discovery Material (“Administrative Protective Order”) in the ongoing administrative 

proceeding regarding the same transaction. In the Matter of Graco Inc., Docket No. 9350,

available online at http://www.ftc.gov/os/adjpro/d9350/111216aljprotectordgovdisc.pdf. As is 

customary, the final protective order here is likely to be nearly identical to the Administrative 

Protective Order. Plaintiff has also filed a similar Motion to Place the Unredacted Complaint on 

the Public Record (“Administrative Motion”) in the administrative proceeding. The 

Administrative Motion as well as the relevant complaint are available online at 

http://www.ftc.gov/os/adjpro/d9350/.
3

Under Hubbard and its progeny, court proceedings that do not merit present sealing merit 

present disclosure. U.S. ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169, 171 (D.D.C. 2008)

(“In this Circuit, „the starting point in considering a motion to [un]seal court records is a “strong 

presumption in favor of public access to judicial proceedings.‟” (quoting Nat’l Children’s Ctr., 

98 F.3d at 1409)). 

B. HUBBARD REQUIRES DISCLOSURE 

Graco‟s Memorandum abundantly illustrates that the only Hubbard factor remotely 

favoring the seal is the third factor—an inquiry into the existence and identity of an objecting 

party. Graco is the only party objecting to Plaintiff‟s Motion. Motion at 1 [DKT# 40]. The 

other Defendants—Illinois Tool Works Inc. and ITW Finishing LLC (collectively “ITW”)—do 

not oppose unsealing similar information. Under Hubbard, Graco‟s objection is insufficient to 

justify maintaining the seal. See, e.g., Nat’l Children’s Ctr., 98 F.3d at 1410 (holding that a 

sealed document merits unsealing when Hubbard’s third factor is the only factor favoring the 

seal). 

1. The First Factor—the Public’s Need for Access to the Documents at Issue—

Does Not Favor the Seal

Graco devotes a significant portion of its Memorandum to arguing that “there is no need 

for public access” to the unredacted Complaint. Memorandum at 5, 6, 8-9 [DKT# 44]. The 

argument asks the Court to ignore 30 years of unambiguous case law. That law certainly bears 

repeating: “In this Circuit, when evaluating whether to seal case pleadings, „the starting point . . . 

is a “strong presumption in favor of public access to judicial proceedings.‟”” Prospect 

Waterproofing, 2011 U.S. Dist. LEXIS 117051, at *2 (quoting Nat’l Children’s Ctr., 98 F.3d at 

1409). In this Circuit, public access is particularly vital where the government is a party and 

taxpayers are, therefore, “real parties in interest.” Schweizer, 577 F. Supp. 2d at 172.
4

Graco relies partly on rulings from other circuits to argue that the D.C. Circuit‟s “strong 

presumption in favor of public access to judicial proceedings” does not extend to the Complaint, 

the very document that initiated the present judicial proceeding. Memorandum at 5 (citing case 

law from the First and Fifth Circuits) [DKT# 44]. Otherwise, Graco relies on a tortured 

interpretation of a vacated D.C. Circuit Court opinion. Memorandum at 5 (citing Tavoulareas v. 

Washington Post Co., 724 F.2d 1010 (D.C. Cir. 1984), vacated on other grounds, 763 F.2d 1472 

(D.C. Cir. 1985) (en banc)) [DKT# 44]. The Tavoulareas court declined to unseal 3,800 pages 

of deposition transcripts, the vast majority of which were never “submitted into evidence, read 

into the record, or submitted in support of a pretrial motion.” 724 F.2d at 1011 n.2. The court 

ruled that the common law right of access does “not include documents not used at trial.” Id. at 

1016.

Extrapolating wildly, Graco posits (without fully articulating) the novel theory that 

information in a complaint is specifically outside the realm of public access until it is “used at 

trial.” This reading of Tavoulareas presumably means that all complaints merit complete sealing 

until the material therein is “submitted into evidence, read into the record, or submitted in 

support of a pretrial motion.” Id. at 1011 n.2. Graco‟s approach is not a theory of presumed 

public access but rather presumed confidentiality. The theory is precisely refuted by relevant 

case law. In Prospect Waterproofing 2011 U.S. Dist. LEXIS 117051, at *9-11, the court used

Hubbard to justify unsealing a complaint voluntarily dismissed before trial. The court stated: 

“When [Plaintiff] filed his Complaint, his purpose was for his allegations to be the basis of a 

potential trial. Therefore, there is a strong presumption for public access weighing in favor of 

unsealing the Complaint.” Id. at *10. Under Hubbard, it is therefore irrelevant whether the 

unredacted Complaint has technically been “used at trial.”
5

The presumptive need for public access is a given under Hubbard and it extends 

specifically to the unredacted Complaint. Plaintiff needs not justify the presumption nor rehearse 

the logic behind it. This Court has already done so repeatedly. Despite Graco‟s arguments to the 

contrary, the only question before this Court is whether Graco‟s privacy and confidentiality 

interests trump the need for public access. See Greater Se. Com’ty. Hosp., 951 F.2d at 1277 

(“[In Hubbard], we articulated a series of factors a district court should weigh in determining 

whether and to what extent a party‟s interest in privacy or confidentiality . . . outweighs this 

strong presumption in favor of public access . . . .”). 

2. The Second Factor—Previous Public Access—Does Not Favor the Seal

Graco argues that a lack of previous public access to the redacted material supports the 

seal. This is a misreading of the case law. Lack of previous public access does not lend support 

to maintaining a seal. Prospect Waterproofing, 2011 U.S. Dist. LEXIS 117051 at *6 (“The 

public did not have prior access to the pleadings in the present case because this case was under 

seal . . . . This factor is thus neutral.”). 

3. The Fourth Factor—Countervailing Property and Privacy Interests—Does 

Not Favor the Seal 

Relying, again, on a weak blend of the Tavoulareas opinion and tangential case law from 

other circuits, Graco argues that the D.C. Circuit‟s “strong presumption in favor of public

access” is outweighed by Graco‟s vague property and privacy interests. Memorandum at 7

(citing the Third and First Circuits and Tavoulareas) [DKT# 44]. 

Graco argues Tavoulareas is pertinent here because in both cases the government 

obtained the contested material during pre-trial investigations. Memorandum at 7 [DKT# 44]. 

The precedent is unavailing for three reasons. First, the ruling in Tavoulareas is based on the

superfluity of the sealed material, not on the particular time of its gathering. 724 F.2d at 1029 
6

(finding that “the depositions at issue were never used at trial” and therefore did not merit 

disclosure). Second, the court in Tavoulareas did not actually seal “the small portion of these 

depositions and exhibits” used in filings and arguments. Id. at 1011-12. The court, in other 

words, did exactly what Plaintiff is moving this Court to do: publicly disclose excerpts of 

otherwise sealed documents. 

This second point bears repeating in light of the Memorandum‟s reference to the 

“confidentiality of Graco‟s documents.” Memorandum at 4 [DKT# 44]. At this time, the FTC is 

only seeking to unseal the language quoted in the Complaint, not the cited documents and 

transcripts. While other portions of the cited documents may indeed merit sealing, nothing 

precludes public disclosure of the redacted material in the Complaint. This is evident in the fact 

that ITW has not objected to public disclosure of similar material. Motion at 1 (“[ITW] does not 

oppose unsealing the Complaint as to information received from ITW . . . .”) [DKT# 40]. 

Finally, Tavoulareas is distinguished from the present case by the simple fact that the 

contested material there actually qualified as “sensitive commercial information” and thus 

merited confidentiality. 724 F.2d at 1023 (“[Plaintiff] succeeded in confirming that the 3,800 

pages of depositions designated confidential contained a kind of information that, if revealed, 

would harm its competitive position.”). The “adequately specified” harms in Tavoulareas

included the likelihood that disclosure could “undermine [Plaintiff‟s] relationship with the 

Kingdom of Saudi Arabia, hamper its ability to compete in the marine transportation business, 

and threaten its access to substantial volumes of crude oil from Saudi Arabia.” Id. at 1013. The 

plaintiff in Tavoulareas substantiated the likelihood of these harms with two affidavits and an 

exhibit. Id. at 1024. 
7

Here, the claimed harms are not so specified, substantial, or substantiated. Graco raises 

the vague possibility of “harm to both its legal and business interests.” Memorandum at 8. This 

ethereal claim is accompanied by broad assertions that the contested material comprises 

“confidential business information.” See, e.g., Memorandum at 7 [DKT# 44]. Such 

unsubstantiated statements are explicitly insufficient to justify the present seal. See, e.g., 

Friedman, 672 F. Supp. 2d at 60 (a “broad reference to „confidential and sensitive information‟” 

cannot justify a seal).

Graco primarily stakes its claims of confidentiality on two irrelevant facts: 1) the material 

comes from the “highest levels of management,” and 2) the FTC obtained the material during a 

non-public, pre-Complaint investigation. Memorandum at 7-9. Plaintiff can find no court

holding that the corporate standing of a given communicator bolsters a privacy or property 

interest under Hubbard. Only the substance of the material matters. Hubbard, 650 F.2d at 

315-16 (public access may be denied “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”). If anything, the fact that the contested 

material comes from the “highest levels” of Graco management demonstrates its importance and 

reliability—its suitability for explaining the nature of the case to the public. 

That the FTC came by the contested material during a confidential pre-trial investigation 

has no bearing. The FTC Act expressly empowers the Commission to “make public from time to 

time” non-sensitive information gathered during its investigations as is “in the public interest.”

15 U.S.C. § 46(f). 
8

4. The Fifth Factor—Potential Prejudice to Those Opposing the Seal—Does 

Not Favor the Seal 

Here Graco again advances a strained argument instead of a relevant one, claiming that 

disclosure will “harm both its legal and business interests.” Memorandum at 8 [DKT# 44]. The 

law is unmistakable on this point. The fifth factor is only interested in the possibility of legal

prejudice. See Hubbard, 650 F.2d at 320-21. Graco offers no real claim that such prejudice will 

occur here, arguing simply that “there is no reason to allow the FTC to impugn Graco publicly.” 

Memorandum at 8 [DKT# 44]. The FTC is not impugning Graco, Plaintiff simply seeks to 

unseal information that is not competitively sensitive and does not qualify as a trade secret. 

Without a more precise rendering of potential legal prejudice, the fifth factor cannot 

weigh in favor of the seal. See Friedman, 672 F. Supp. 2d at 60 (holding that the fifth factor 

does not support the seal when the relevant party has “not claimed that unsealing this matter 

would affect them in any future litigation; rather, they refer only to generalized reputational 

harm”). 

5. The Sixth Factor—the Purpose of the Relevant Document—Does Not Favor 

the Seal 

Graco adds redundancy to irrelevancy, arguing, once again, that the seal must abide 

because the FTC has failed to justify disclosure; or, more precisely, because the FTC “fails to 

explain how any legitimate litigation purpose supports its Motion.” Memorandum at 9 [DKT# 

44]. Again, Hubbard makes clear that Graco bears the burden of justifying confidentiality. 

In reality, the sixth factor is a “bright line” inquiry into the purpose of the relevant 

document. See U.S. v. Thomas, No. 06-0497, 2011 U.S. Dist. LEXIS 150939, at *10 (D.D.C. 

Dec. 23, 2011). Prospect Waterproofing recently made clear that the Complaint falls well within 

the category of documents meriting the presumption of disclosure. 2011 U.S. Dist. LEXIS 
9

117051 at *10 (“When [Plaintiff] filed his Complaint, his purpose was for his allegations to be 

the basis of a potential trial. Therefore, there is a strong presumption for public access weighing 

in favor of unsealing the Complaint.”). 

Graco cannot reasonably argue that public disclosure of the redacted material—which 

quotes Graco‟s documents and a Graco executive discussing competition in the relevant markets 

and the likely impact of the acquisition—serves no purpose when the Complaint alleges an 

antitrust violation of Section 7 of the Clayton Act and Section 5 of the FTC Act. The redacted 

material goes to the very heart of the Complaint. See Doe v. Exxon Mobil Corp., 570 F. Supp. 2d 

49, 52 (D.D.C. 2008) (proposed redactions that “go to the heart” of the document are necessarily 

left unredacted). 
10

III. CONCLUSION

For the foregoing reasons, Graco respectfully requests that the Court grant Plaintiff‟s 

Motion [DKT# 40]. 

January 19, 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 19th 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/ 

Amanda Hamilton (DCBN 499646)

Counsel for Plaintiff

Federal Trade Commission