MOTION TO FILE UNDER SEAL 1

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA

ex rel. JOHN N. KRAMER, D.D.S.,

 Relator,

v.

CDC MARTINS FERRY, LLC, AND 

CDC STEUBENVILLE, LLC,

 Defendants.

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CIVIL ACTION NO. 1:18-cv-373-DRC

Judge Douglas R. Cole

DEFENDANTS CDC MARTINS FERRY, LLC AND CDC STEUBENVILLE, LLC’S 

MOTION TO FILE DOCUMENTS UNDER SEAL

Defendants CDC Martins Ferry, LLC and CDC Steubenville, LLC (“Defendants”) hereby 

file this motion to file two documents under seal in response to Relator’s Motion to Join Parties 

[Doc. 71]. In his Motion to Join Parties, Relator relies heavily on an Asset Purchase Agreement 

(“APA”) between Defendants, the two parties proposed to be joined, and other entities. 

However, two other agreements between those same parties, a Transition Services Agreement 

and a Transition Professional Services Agreement, make clear that Defendants, and not the 

proposed parties to be joined, retained responsibility for the dental services alleged in Relator’s 

Third Amended Complaint. Defendants believe these documents are necessary for their response 

to Relator’s motion and should be read in conjunction with the APA upon which Relator relies.

As required by the Stipulated Protective Order in this case, Defendants state that the legal 

basis for the designation of these documents as “Confidential-Attorneys’ Eyes Only” is that the 

two agreements in question contain sensitive information that could cause material competitive 

disadvantage to both Defendants and the other parties to the agreements, including agreements 

between Defendants and other entities, and materials or items that relate to proprietary 

information about the Defendants’ and other parties’ business practices. Specifically, the 

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MOTION TO FILE UNDER SEAL 2

agreements contain proprietary information about the competitive practice of dentistry, including 

proprietary information relating to third parties’ business practices and plans.

As recognized by the Sixth Circuit, agreements like these that themselves contain a 

confidentiality obligation, that have been designated as “Confidential” or “Attorneys’ Eyes 

Only,” and that contain contractual provisions that one party to the agreement views as providing 

it with competitive advantages that would, if revealed publicly, give such advantages to 

competitors or future acquisition targets, may be properly filed under seal when offered as an 

exhibit or appendix to a motion or legal brief. Ray v. Found. Risk Partners, Corp., No. 22-3387, 

2022 U.S. App. LEXIS 25954, [WL] at *3 (6th Cir. Sept. 15, 2022) (citing Ohio Rev. Code 

1333.61(D) and State ex rel. The Plain Dealer v. Ohio Dep’t of Ins., 687 N.E.2d 661 (1997)).

In accordance with Local rule 5.2.1 and the Stipulated Protective Order in this case [Doc. 58], 

Defendants therefore move the Court for leave to file the Transition Services Agreement and the 

Transition Professional Services Agreement under seal as exhibits to their upcoming response to 

Relator’s Motion to Join Parties. Defendants are the “Designating Party” as to the confidentiality of 

these agreements under paragraph 11 of the Protective Order. As required by the Protective Order, a 

hard copy of the two agreements in question will be provided to chambers, along with a courtesy copy 

of this motion and a proposed order granting the requested relief.

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MOTION TO FILE UNDER SEAL 3

December 22, 2022 

 

Respectfully submitted,

/s/ Donald Screen

Donald Screen

Ohio Bar No. 44070

Don.Screen@ChandraLaw.com

TRIAL COUNSEL

THE CHANDRA LAW FIRM, LLC

The Chandra Law Building

1265 W. 6th St., Suite 400

Cleveland, Ohio 44113-1326

Phone: 216-578-1700

Fax: 216-578-1800

 /s/ Elizabeth K. Stepp

 Elizabeth K. Stepp (pro hac vice)

Texas State Bar No. 00788467

eks@federal-lawyer.com

OBERHEIDEN P.C.

440 Louisiana Street, Suite 200

Houston, Texas 77002

(214) 334-7648 (Telephone)

(972) 559-3365 (Facsimile)

ATTORNEYS FOR DEFENDANTS

CDC MARTINS FERRY, LLC AND

CDC STEUBENVILLE, LLC 

CERTIFICATE OF SERVICE

I hereby certify that on December 22, 2022, a true and correct copy of the above and foregoing document 

was served on all counsel of record through the Court’s electronic filing system.

/s/ Elizabeth K. Stepp

 Elizabeth K. Stepp

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EXHIBIT A

 Unpublished Opinions

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Elizabeth Stepp

 Neutral

As of: December 21, 2022 8:49 PM Z

Ray v. Found. Risk Partners, Corp.

United States Court of Appeals for the Sixth Circuit

September 15, 2022, Filed

Nos. 22-3387/3411

Reporter

2022 U.S. App. LEXIS 25954 *

DUANE RAY (No. 22-3387), Plaintiff-Appellee, v. 

FOUNDATION RISK PARTNERS, CORPORATION, 

Defendant-Appellant, FIFTH THIRD BANK, N.A., dba 

Fifth Third Bank, et al., Defendants.DUANE RAY (No. 

22-3411), Plaintiff-Appellee, v. FIFTH THIRD BANK, 

N.A., dba Fifth Third Bank, et al., DefendantsAppellants, FOUNDATION RISK PARTNERS, 

CORPORATION, Defendant.

Prior History: Ray v. Fifth Third Bank, N.A., 2022 U.S. 

Dist. LEXIS 59391, 2022 WL 974341 (S.D. Ohio, Mar. 

31, 2022)

Core Terms

seal, confidential, public access, trade secret, 

preliminary injunction, district court, acquisition, 

attachments, advantages, provisions, appendix, 

includes, parties, records, merits, email

Counsel: [*1] For DUANE RAY (22-3387, 22-3411), 

Plaintiff - Appellee: Randall S. Strause, Courtney Lauren 

Graham, Strause Law Group, Louisville, KY; Louis C. 

Schneider, Thomas Law, Cincinnati, OH.

For FOUNDATION RISK PARTNERS, 

CORPORATION, Defendant - Appellant (22-3387): 

Kevin E. Griffith, Chad J. Kaldor, Andrew KlabenFinegold, Littler Mendelson, Columbus, OH.

For FIFTH THIRD BANK, N.A., dba: Fifth Third Bank, 

FIFTH THIRD INSURANCE AGENCY, INC., dba: Fifth 

Third Insurance, Defendants - Appellants (22-3411): R. 

Kenyon Meyer, Dinsmore & Shohl, Louisville, KY; 

Michael A. Xavier, Dinsmore & Shohl, Denver, CO.

Judges: Before: DAVIS, Circuit Judge.

Opinion

ORDER

Plaintiff Duane Ray is a former employee of Defendant 

Fifth Third Insurance Agency, Inc. ("Fifth Third 

Insurance"), a wholly owned subsidiary of Defendant 

Fifth Third Bank, N.A. (collectively, "Fifth Third"). After 

Defendant Foundation Risk Partners, Corporation 

("FRP") purchased substantially all the assets of Fifth 

Third Insurance and its affiliates in 2020, Ray declined 

continued employment with FRP. Ray later filed this 

lawsuit to challenge a restrictive covenant that FRP 

seeks to enforce. In these related appeals from the 

district court's order denying a preliminary [*2] 

injunction and vacating a temporary restraining order, 

FRP and Fifth Third each move for leave to file an 

appendix to their appellant briefs under seal. Pursuant 

to Federal Rule of Appellate Procedure 27(c), a single 

judge may rule on the motions.

"Documents sealed in the lower court . . . must continue 

to be filed under seal in this court." 6 Cir. R. 25(h)(5). 

Otherwise, "[d]ocuments filed in this Court generally 

must be made available to the public," United States v. 

Hatcher, 698 F.3d 936, 937 (6th Cir. 2012) (order), and 

will be sealed only if they "justify court-imposed 

secrecy," Procter & Gamble Co. v. Bankers Trust Co., 

78 F.3d 219, 227 (6th Cir. 1996). "[C]ommon sense tells 

us that the greater the motivation a corporation has to 

shield its operations, the greater the public's need to 

know." Brown & Williamson Tobacco Corp. v. FTC, 710 

F.2d 1165, 1180 (6th Cir. 1983). "In such cases, a court 

should not seal records unless public access would 

reveal legitimate trade secrets, a recognized exception 

to the right of public access to judicial records." Id.; see 

Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 

F.3d 299, 308 (6th Cir. 2016).

The tendered appendices consist of the 2020 Asset 

Purchase Agreement ("APA") between FRP and Fifth 

Third Insurance. The APA itself contains a 

confidentiality obligation between the signatories and 

has always been designated as "Confidential" or 

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Page 2 of 2

Elizabeth Stepp

"Attorneys' Eyes Only" in this case, pursuant to the 

protective order entered below. The APA includes 

several contractual provisions that FRP has [*3] 

developed and negotiated over time in various asset 

purchases and acquisitions, which are unique to its 

business needs and goals. FRP views many of the 

provisions in the APA as providing competitive 

advantages, which if revealed publicly, would give such 

advantages to its competitors and future acquisition 

targets. The APA also contains tables, attachments and 

schedules with highly confidential pricing and other 

information. Fifth Third's appendix also includes an 

email transmitting the APA to the district court. As the 

district court explained, "the APA was not admitted as 

physical evidence during the Preliminary Injunction 

hearing" but "the parties stipulated to its authenticity and 

admissibility, and agreed that counsel would email a 

copy of the APA and associated attachments to 

chambers after the hearing for inclusion in the record[.]" 

FRP and Fifth Third ask this court to similarly restrict 

public access, asserting that the APA is replete with 

confidential business information and trade secrets as 

defined under Ohio law. Despite the unusual procedure 

employed below, the court is satisfied that the APA 

contains legitimate trade secrets or proprietary and 

confidential information [*4] as defined by Ohio law. 

See Ohio Rev. Code § 1333.61(D); State ex rel. The 

Plain Dealer v. Ohio Dep't of Ins., 80 Ohio St.3d 513, 

524-25, 1997- Ohio 75, 687 N.E.2d 661 (1997).

Upon consideration, the motions for leave to file the 

appendices under seal are GRANTED without prejudice 

to reconsideration by the merits panel. See Carter v. 

Welles-Bowen Realty, Inc., 628 F.3d 790, 791 (6th Cir. 

2010) (order). The parties are cautioned that this order 

does not seal the opinion to be issued by the merits 

panel. A separate motion is required to request sealing 

all or part of the opinion. See 6 Cir. R. 25(h)(1).

End of Document

2022 U.S. App. LEXIS 25954, *2

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