EP HENRY CORPORATION v. CAMBRIDGE PAVERS, INC., No. 1:2017cv01538 - Document 89 (D.N.J. 2019)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/9/2019. (dmr)
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EP HENRY CORPORATION v. CAMBRIDGE PAVERS, INC. Doc. 89 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF N EW JERSEY CAMD EN VICIN AGE EP HENRY CORPORATION, Plaintiff, v. H o n . Jo s e p h H . Ro d rigu e z Civil No. 17-1538 (J HR/ KMW) CAMBRIDGE PAVERS, INC., OPIN ION Defendant. These m atters com e before the Court on Defendant Cam bridge Pavers, Inc.’s Motion (Docket Item 62) for Sum m ary J udgm ent and the parties’ J oint Motion (Docket Item 8 2) to Seal various docum ents. For the reasons stated below, the Court will deny Defendants’ Motion (Docket Item 62) for Summ ary J udgm ent an d grant in part an d conditionally deny in part the parties’ J oint Motion (Docket Item 8 2) to Seal. I. Factu al an d Pro ce d u ral H is to ry 1 Plaintiff EP Henry Corporation (“EP Henry”) and Defendant Cam bridge Pavers, Inc. (“Cam bridge”) are New J ersey-based com petitors in the industry of m anufacturing concrete paving stones. EP Henry was form ed in 190 3 an d Cam bridge in 1995. In its advertising, Cam bridge has used such phrases as “always look like new,” “look like new 1 The Court distills this undisputed version of events from the parties’ statem ents of m aterial facts, affidavits, and exhibits, an d recounts them in the m anner m ost favorable to the party opposing sum m ary judgm ent — here, Plaintiff. The Court disregards, as it m ust, those portions of the parties’ statem ents of m aterial facts that lack citation to relevant record eviden ce (unless adm itted by the opponent), contain im proper legal argum ent or conclusions, or recite factual irrelevancies. See generally L. CIV. R. 56.1(a); see also Kem ly v. Werner Co., 151 F. Supp. 3d. 496, 499 n.2 (D.N.J . 20 15) (disregarding portions of the parties’ statem ents of m aterial facts on these grounds); J ones v. Sanko Steam ship Co., Ltd., 148 F. Supp. 3d 374, 379 n.9 (D.N.J . 20 15) (sam e). Dockets.Justia.com forever,” “color will never fade,” an d “skid and slip resistant.” EP Henry alleges that those phrases, am ong others, constitute false advertising under the Lanham Act. (See Docket Item 70 -1, ¶ 14.) At som e point in tim e, Cam bridge began to use a jingle as part of its advertising efforts. The jingle ends with the phrase “they’ll always look like new.”2 Cam bridge alleges that it began using the phrase “They’ll Look Like New Forever” in its advertising for its Arm orTec pavingstone products around 20 0 0 , and that it began to use language stating that the pavingstones’ color would not fade around 20 0 4. (Docket Item 63, ¶¶ 16-17.) Then, in 20 0 6, Cam bridge registered 2 tradem arks. The first consisted of Cam bridge’s logo and the slogan “They’ll Look Like New Forever,” while the second consisted of Cam bridge’s logo with the slogan “They’ll Look Like New Forever” and the words “with Arm orTec.” (See Docket Item 63, ¶ 18.) According to the Tradem ark Registration Certificates from the U.S. Patent and Tradem ark Office, the two logos had been in use sin ce the year 20 0 0 . Cam bridge alleges that it used those slogans for m arketing purposes for m ore than 15 years prior to EP Henry filing the present suit in 20 17. (Id. ¶ 20 .) It also claim s that it used language including “the rich color” and “will never fade” when advertising about Arm orTec pavingstones between 20 0 4 and 20 14. (Id. ¶ 21.) Finally, Cam bridge alleges that beginning around 20 0 9, it started including in its advertising language such as “skid-resistant” and “skid and slip resistant” when describing the Arm orTec pavingstones. (Id. ¶ 22.) 2 The full lyrics of Cam bridge’s jingle are: “Cam bridge pavingstones, the best pavingstones brand for you. Cam bridge pavingstones – with Arm orTec – ‘They’ll Always Look Like New.’” 2 Cam bridge alleges that at som e point in late 20 0 8 into early 20 0 9, som e of Cam bridge’s com petitors, including Grinnell and Concrete Stone & Tile Corp. (“CST”), planned a m eeting to discuss whether the above-m entioned language in Cam bridge’s m arketing and advertising constituted false advertising. (Id. ¶¶ 23-25.) Cam bridge claim s that the m eeting took place in April 20 0 9 at Grinnell’s offices, and that approxim ately 20 -25 representatives from EP Henry, Capitol Pavers & Retain ing Walls, Inc. (“Capitol”), Unilock New York, Inc. (“Unilock”), Techo-Bloc, Inc., CST, Grinnell, and Daron Northeast Inc. were all in attendance. (Id. ¶¶ 26-29.) The m eeting apparently lasted approxim ately 60 to 90 m inutes, with the attendees discussin g the potentially “exaggerated advertising statem ents” that Cam bridge had been usin g. (Id. ¶¶ 30 -35.) Cam bridge asserts that the attendees discussed the possibility of filing a lawsuit against Cam bridge, but ultim ately decided to table the issue until a second m eeting. (Id. ¶ 34.) Cam bridge alleges that, before the second m eeting, EP Henry expressed to a CST representative that it did not want to partake in the lawsuit. (Id. ¶ 36.) Cam bridge claim s that there was then a second m eeting, approxim ately 3 to 4 weeks after the first one, in which the four com petitors in attendance (Capitol, Grinnell, CST, and Unilock) decided against filing a lawsuit and in favor of instituting a proceeding before the National Advertising Division (“NAD”) of the Council of Better Business Bureaus, Inc. (Id. ¶ 38 -41.) In early J une 20 0 9, the attorney representing those four com petitors filed a letter with NAD challenging som e of the above-m entioned advertising claim s m ade by Cam bridge. (See id. ¶ 42.) 3 3 Cam bridge relies on the Declarations of Grinnell’s President, Craig Austin, and General Counsel, J arrod C. Cofrancesco, for all above assertions about these m eetings and their afterm ath. Austin claim s to have been at the April 20 0 9 m eeting, while 3 EP Henry denies that any of its representatives were present at the April 20 0 9 m eeting. (Docket Item 70 -2, ¶ 6.) The parties agree that EP Henry was not one of the parties that filed the NAD case in 20 0 9. Instead, EP Henry contends that it did not know about Cam bridge’s use of the alleged false advertising claim s until EP Henry opened its distribution facility in Roxbury, New J ersey, in the sum m er of 20 13. (Id. ¶ 10 .) EP Henry states that the Roxbury facility represented its expansion into the North J ersey m arket, where Cam bridge had a strong presen ce. (See id. ¶¶ 11, 16.) Upon opening that facility, EP Henry claim s that North J ersey custom ers began to ask for Cam bridge’s Arm orTec products, citing Cam bridge’s advertising claim s such as “they look like new forever” and “they would never fade.” (Id. ¶ 14.) EP Henry claim s that, prior to opening the Roxbury facility, it had been unaware of Cam bridge’s alleged false advertising claim s because it had not en countered Cam bridge directly in the m arketplace, and thus had not been affected by the claim s. (Id. ¶ 16.) Upon hearing custom ers’ requests, though, EP Henry claim s it launched an investigation into Cam bridge’s alleged false advertising claim s. (Id. ¶ 17.) EP Henry contends that it was only at this point in tim e that it becam e aware of the details of the 20 0 9 NAD case and, m ore generally, the alleged false advertising claim s. (Id.) In April 20 14, EP Henry states that it subm itted its own claim to the NAD to challenge Cam bridge’s continued use of the advertising claim s “They’ll Always Look Like New” and “Will Never Fade.” (Id. ¶ 19.) The NAD issued a com pliance report on J uly 7, 20 14, which deem ed Cam bridge’s advertising claim s to be “unsupported” and took um brage with Cam bridge’s continued use of the phrases. (See id. ¶¶ 20 -22.) EP Henry Cofrancesco was m erely present at the offices on the day of the first m eeting, but did not attend it. 4 claim s that, nevertheless, Cam bridge continued to use the unsupported language, at which point EP Henry created and distributed a brochure entitled “The Truth About Pavers: Cam bridge Pavingstones with Arm orTec Exaggerations.” (Id. ¶ 24.) EP Henry says it shared this brochure with m arket actors in order to inform the industry about Cam bridge’s alleged false advertising claim s. (Id. ¶ 25.) In that brochure, EP Henry stated that Cam bridge’s use of the language at issue had been contested since 20 0 9, in reference to the 20 0 9 NAD case. (Id. ¶ 26.) Despite these efforts, EP Henry alleges that Cam bridge did not discontinue using the alleged false advertising claim s. (Id. ¶ 27.) 4 Therefore, EP Henry com m enced this litigation on J anuary 13, 20 17, by filing in Gloucester County Superior Court a seven-count com plaint against Cam bridge that included allegations that Cam bridge had violated Section 43(a) of the Lan ham Act by engaging in false advertising. (Docket Item 63, ¶ 7.) On March 7, 20 17, Cam bridge rem oved the case to this Court. (Docket Item 1.) On March 24, 20 17, Cam bridge filed a Motion (Docket Item 8 ) to Dism iss EP Henry’s Com plaint. On October 31, 20 17, the late Honorable J erom e B. Sim andle granted that Motion in part and denied it in part, ultim ately dism issing all of the counts other than the Lanham Act count. (Docket Item s 21, 22.) Thereafter, Cam bridge filed its Answer (Docket Item 26) to EP Henry’s Com plaint, in which Cam bridge raised the affirm ative defen se of laches and counterclaim ed that EP Henry had also violated the Lan ham Act. On August 9, 20 18, EP Henry filed its First Am ended Com plaint (Docket Item 50 ), which set forth a single 4 EP Henry relies on the Declarations of EP Henry’s President Eric Long, its Owner an d CEO J .C. Henry, and CST’s form er General Manager Steve Guida for all assertions about how and when EP Hen ry cam e to learn about the alleged false advertising claim s. Guida claim s to have been present at the April 20 0 9 m eeting. 5 count alleging false advertising in violation of the Lanham Act. On August 22, 20 18, Cam bridge filed its Answer (Docket Item 51) to the First Am ended Com plaint, again raising laches as an affirm ative defense. On April 18, 20 19, Cam bridge filed a Motion (Docket Item 62) for Sum m ary J udgm ent. On J une 10 , 20 19, 5 EP Henry tim ely filed its Response. (Docket Item 70 .) On J uly 8 , 20 19, Cam bridge tim ely filed its Reply. (Docket Item 75.) Finally, on J uly 25, 20 19, the parties filed a J oint Motion (Docket Item 8 2) to Seal the following docum ents, som e in full and others in part: (1) Cam bridge’s Statem ent of Material Facts Not in Dispute (Docket Item 63); (2) Declaration of Charles H. Gam arekian (Docket Item 631); (3) Exhibit B to the Declaration of Charles H. Gam arekian (Docket Item 63-2); (4) Exhibit 7 to the Declaration of Melissa E. Flax (Docket Item 63-3); (5) Cam bridge’s Brief in Support of its Motion for Sum m ary J udgm ent (Docket Item 63-4); (6) Cam bridge’s Reply Brief (Docket Item 75); (7) Exhibits A, H, and I to the Reply Declaration of Melissa E. Flax (Docket Item 75-1, 75-2, an d 75-3); (8) Corrected Declaration of Charles H. Gam arekian (Docket Item 78); and (9) Exhibit B to the Corrected Declaration of Charles H. Gam areikian (Id.). The Court will address the two Motions in turn. II. D is cu s s io n The Court will first analyze Cam bridge’s Motion for Sum m ary J udgm ent, before turning to the parties’ J oint Motion to Seal. A. Cam brid ge ’s Mo tio n fo r Su m m ary Ju dgm e n t 5 On April 30 , 20 19, the Court signed a Consent Order (Docket Item 66) adjourning Cam bridge’s Motion for Sum m ary J udgm ent to J uly 16, 20 19. Resultingly, EP Henry’s deadline for respondin g to the Motion was J une 10 , 20 19, and Cam bridge’s deadline for replying was J uly 8, 20 19. 6 Cam bridge’s Motion for Sum m ary J udgm ent is based entirely on the doctrine of laches. The Court will first lay out the standards for both sum m ary judgm ent and laches. It will then apply the facts of this case to those standards in order to decide Cam bridge’s Motion. 1. Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgm ent if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord F ED. R. CIV. P. 56(c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” F ED. R. CIV. P. 56(c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex, 477 U.S. at 323. Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts 7 showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts an d affirm ative eviden ce that contradict those offered by the m oving party. Anderson, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, an d on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 2. Lach e s Stan d ard an d An alys is There are two im portant issues that the Court m ust address with respect to Cam bridge’s laches argum ent. The first issue asks which party bears the burden of proving or disproving the elem ents of laches. Once that issue is resolved, the Court m ust then analyze whether that party has m et that burden, for the purposes of this Motion. The Court will address each issue in turn. a. W h o be ars th e bu rde n ? The doctrin e of laches was developed by courts of equity in order “to protect defendants against ‘unreasonable, prejudicial delay in com m encing suit.’” SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (20 17) (quoting 8 Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 667 (20 14)). Laches is an affirm ative defense that “applies in those extraordinary cases where the plaintiff ‘unreasonably delays in filing a suit,’ and, as a result, causes ‘unjust hardship’ to the defendant.” Petrella, 572 U.S. at 688 (Breyer, J ., dissenting) (citations om itted) (first quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 121 (20 0 2); and then quoting Chirco v. Crosswinds Cm tys., Inc., 474 F.3d 227, 236 (6th Cir. 20 0 7)). “Its purpose is to avoid ‘in equity.’” Id. (quoting Galliher v. Cadwell, 145 U.S. 368 , 373 (18 92). The Third Circuit has noted that “[i]t is hornbook law that laches consists of two essential elem ents: (1) inexcusable delay in in stituting suit, and (2) prejudice resulting to the defendant from such delay.” Univ. of Pittsburgh v. Cham pion Prods., 686 F.2d 10 40 , 10 44 (3d Cir. 1982)). Because laches is an affirm ative defense, it is the defendant’s burden to establish the requisite elem ents of inexcusable delay and prejudice. EEOC v. Great Atl. & Pac. Tea Co., 735 F.2d 69, 8 0 -81 (3d Cir. 1984). However, that burden shifts to the plaintiff in a case where the statutory lim itations period that would bar legal relief has expired. Id. Section 43(a) claim s under the Lanham Act, such as the claim in the present case, “are analogized to New J ersey’s six-year fraud statute. N.J . Physicians United Reciprocal Exch. V. Privilege Underwriters, Inc., Civ. Action No. 15-6911 (FLW), 20 16 WL 6126914, at *3 (D.N.J . Oct. 18, 20 16) (collecting cases); see Beauty Tim e, Inc. v. VU Skin Sys., 118 F.3d 140 , 143 (3d Cir. 1997). In the context of the Lanham Act, the statute of lim itations begins to run when “the right to institute and m aintain the suit arises.” Beauty Tim e, 118 F.3d at 144 (citations and quotations om itted). Thus, “aggrieved parties m ust . . . bring their claim within [the applicable statute of lim itations] when they learned or should 9 have learned, through the exercise of due diligence, that they have a cause of action.” Id. at 148. Thus, in order to determ ine which party bears the burden of provin g or disproving the laches elem ents in this case, the Court m ust resolve whether Cam bridge has shown in a m anner sufficient to satisfy the sum m ary judgm ent standard that EP Henry knew or should have known about its Lanham Act claim s m ore than 6 years before EP Henry filed the present suit (i.e., before J anuary 13, 20 11). Cam bridge argues that EP Henry had actual knowledge of the claim s no later than 20 0 9 or, in the alternative, that EP Henry should have known about them prior to 20 11. The Court will address each argum ent in turn. Cam bridge’s first argum ent is that EP Henry had actual knowledge of its Lanham Act claim s no later than 20 0 9 — m ore than 6 years before EP Henry filed this suit. Cam bridge provides two bases for this argum ent. First, they claim that EP Henry representatives were present at the April 20 0 9 m eeting in which Cam bridge’s com petitors discussed how to address Cam bridge’s alleged false advertising claim s. However, EP Henry claim s that none of its representatives were present at that m eeting and that, in fact, it had no knowledge of the m eeting whatsoever. Cam bridge’s second basis for this argum ent stem s from EP Henry’s 20 15 brochure, which stated in part, “The accuracy of these claim s has long been challenged. Since 20 0 9, m anufacturers including . . . EP Henry had brought com plaints before [NAD].” Cam bridge argues that this proves that EP Henry knew about the claim s in 20 0 9. EP Henry, on the other han d, contends that it only learned about the 20 0 9 NAD com plaint at som e point in 20 13, when it initiated its own investigation into Cam bridge’s advertising statem ents. (Docket Item 70 -2, ¶ 16-17.) EP Henry explains that while other com petitors brought the NAD 10 com plaint in 20 0 9, EP Henry brought its in 20 14. As such, stating that Cam bridge’s claim s have been challenged by num erous com petitors including EP Henry since 20 0 9 is not an adm ission that EP Henry knew about the claim s in 20 0 9, but m erely that it learned about them in 20 13. Both of these bases clearly constitute genuine issues of m aterial fact, which require a factfinder to gauge the credibility of the testim ony that supports each sides’ argum ents. It is not within this Court’s province to m ake such determ inations. Because this genuine issue of m aterial fact exists, Cam bridge has not m et the sum m ary judgm ent standard in proving that EP Henry knew about these claim s in 20 0 9. Therefore, the burden will not be shifted onto EP Henry based on the argum ent that it had actual knowledge of the claim s prior to J anuary 13, 20 11. Cam bridge next argues that EP Henry should have known about the claim s prior to J anuary 13, 20 11. Cam bridge points to its “widespread use” of the advertising phrases as well as the two tradem arks it registered in 20 0 6 as evidence that EP Henry should have known about the statem ents. Cam bridge asserts that “com peting pavingstone m anufacturers routinely keep abreast of, are fam iliar with, and m onitor the advertising and m arketing activities of their com petitors,” therefore EP Henry should have known about the statem ents in question when Cam bridge first started usin g them prior to 20 11. Cam bridge relies on a tradem ark infringem en t case in which the Northern District of California found that a com petitor should have known of the Lanham Act violation when its com petitor began “selling sim ilar devices ‘in the sam e geographic area under [a] rem arkably sim ilar nam e[].’” Fitbug Ltd. v. Fitbit, Inc., 78 F. Supp. 3d 1180 , 1187-8 8 (N.D. Cal. 20 15) (quoting Internet Specialties W., Inc. v. Milon-Digiorgio Enters., Inc., 559 F.3d 985, 990 (9th Cir. 20 0 9)). Since EP Henry and Cam bridge are com petitors in 11 the pavingstone m anufacturing industry, Cam bridge concludes, EP Henry should have known about these claim s in or about 1999. Cam bridge’s argum ent on this point is insufficient to satisfy the sum m ary judgm ent standard. Fitbug — which is m erely nonbinding authority to begin with — is inapposite because it is factually distinguishable from the case at hand. In Fitbug, the plaintiff was im m ediately aware of the defendant’s entry into the m arket. Id. at *1186. Representatives of the plaintiff acknowledged the defendant as a com petitor whose product was a “total ripoff” that appeared to do the sam e functions as the plaintiff’s product. Id. at *1186-87. The plaintiff long contem plated taking legal action against the defendant, and the plaintiff’s Chief Marketing Officer even stated that the defendant “could cause confusion in the classic tradem ark sense.” Id. The Court found that statem ent in particular to be “the crucial issue for determ ining when [the plaintiff] knew or should have known of its potential cause of action.” Id. at *118 7. The sam e facts are not present in the case at hand. Rather, EP Henry has argued that it was unaware of the statem ents at issue because, in essence, Cam bridge was not its direct com petitor and the two com panies were not operating in the sam e m arket until 20 13. It is reasonable for the Court to infer that pavingstone m anufacturers that are not in com petition with one another do not keep abreast of each other’s advertising to the extent that would be required for the Court to hold that EP Henry should have known about these claim s prior to J anuary 13, 20 11. This is precisely why EP Henry is arguing that it should not have known about Cam bridge’s claim s prior to that date. Because this is a m otion for sum m ary judgm ent, the Court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party — here, EP Henry. As such, the Court holds that, for the purposes of this Motion, the 12 circum stances prior to EP Henry opening the Roxbury facility are not such that EP Henry should have known about the alleged falsity of Cam bridge’s advertising statem ents prior to J anuary 13, 20 11. Because Cam bridge has not m et the sum m ary judgm ent standard in arguing that EP Henry knew or should have known about Cam bridge’s advertisin g claim s prior to J anuary 13, 20 11, the Court cannot conclude that the 6-year statute of lim itations period expired prior to EP Henry filing this suit. Therefore, the burden of proving the elem ents of laches rem ains with Cam bridge. b. H as Cam brid ge m e t its bu rd e n ? Having held that the burden rem ains with Cam bridge, the next issue for the Court to address is whether Cam bridge has adequately shown that EP Henry’s delay in filing this suit was both inexcusable and prejudicial to Cam bridge. In trying to satisfy the first elem ent — inexcusable delay — Cam bridge relies on the sam e argum ents and analysis as it relied on in arguing that the burden should shift to EP Henry. Cam bridge again posits that EP Henry knew or should have known about the existence of its claim s in no later than 20 0 9 and, thus, EP Henry’s 7-year delay in filing suit was inexcusable. However, as discussed above, the Court is not persuaded for purposes of the present Motion for Sum m ary J udgm ent to hold that EP Henry knew or should have known about these claim s prior to J anuary 13, 20 11. Cam bridge does not argue, nor will the Court hold, that EP Henry’s tim eline — that is, learning about the claim s in 20 13 an d filing suit in 20 17 — would constitute inexcusable delay sufficient to satisfy the first elem ent of laches. Therefore, for the reasons expressed in the previous discussion, the Court holds that Cam bridge has not satisfied the first elem ent of the laches defense. The 13 Court need not address the second elem ent — prejudice — since both elem ents are required to successfully claim the affirm ative defense of laches. Cam bridge has failed to show that, under the sum m ary judgm ent standard, EP Henry’s delay in filing this suit was inexcusable. As this is an essential elem ent of the affirm ative defense of laches, the Court will deny Cam bridge’s Motion for Sum m ary J udgm ent. B. Th e Partie s ’ Jo in t Mo tio n to Se al Having disposed of Cam bridge’s Motion for Sum m ary J udgm ent, the Court will next address the parties’ J oint Motion to Seal portions of various docket item s. Specifically, the parties seek to seal portions from (1) Cam bridge’s Statem ent of Material Facts Not in Dispute (Docket Item 63); (2) Declaration of Charles H. Gam arekian (Docket Item 63-1); (3) Exhibit B to the Declaration of Charles H. Gam arekian (Docket Item 63-2); (4) Exhibit 7 to the Declaration of Melissa E. Flax (Docket Item 63-3); (5) Cam bridge’s Brief in Support of its Motion for Sum m ary J udgm ent (Docket Item 63-4); (6) Cam bridge’s Reply Brief (Docket Item 75); (7) Exhibits A, H, and I to the Reply Declaration of Melissa E. Flax (Docket Item 75-1, 75-2, an d 75-3); (8) Corrected Declaration of Charles H. Gam arekian (Docket Item 78); and (9) Exhibit B to the Corrected Declaration of Charles H. Gam areikian (Id.). Local Civil Rule 5.3(c) requires a party m ovin g to seal docum ents show the following: (1) the nature of the m aterials or proceedings at issue; (2) the legitim ate private or public interests which warrant the relief sought; (3) the clearly defined and serious injury that would result if the relief sought is not granted; and (4) why a less restrictive alternative to the relief sought is n ot available. L. CIV. R. 5.3(c)(3). While the Court has the authority to restrict public access to inform ation, it has been well 14 established that a “com m on law public right of access to judicial proceedings and records” exists. In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 20 0 1). The parties m ust overcom e this presum ption and dem onstrate that “good cause” exists for the protection of the m aterials at issue. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 78 6 (3d Cir. 1994). For good cause to exist, the parties m ust m ake a particularized showing that disclosure will cause a “clearly defin ed and serious injury.” L. CIV. R. 5.3(c)(3)(c); Pansy, 23 F.3d at 78 6. Good cause is not established when the parties m erely provide “broad allegations of harm , unsubstantiated by specific exam ples or articulated reasoning.” Pansy, 23 F.3d at 786 (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 110 8, 1121 (3d Cir. 198 6)). Finally, the serious in jury that the parties allege would result from disclosure m ust be to the parties them selves, not m erely to third parties. See Tedesco v. Attorney Gen. of N.J ., 20 19 U.S. Dist. LEXIS 16977 (D.N.J . Feb. 1, 20 19). The parties claim that the m aterials at issue constitute “confidential business inform ation,” (Docket Item 8 2-1, ¶ 3), and “proprietary financial inform ation” that is not “publicly available,” (Docket item 8 2-3, ¶ 5). Generally speaking, the parties seek to seal the following types of inform ation: (1) details about Cam bridge’s advertising an d m arketing budgets and m edia through which it pursued its advertising and m arketing cam paigns; (2) inform ation about the 20 0 9 and 20 14 NAD com plaints; (3) test results provided to Cam bridge by an in dependent testing com pany about slipperiness of Arm orTec; and (4) data about EP Henry’s year-to-year sales revenues. As a prelim inary m atter, the parties seek to seal three docum ents in their entirety because they allege that the disclosure of those docum ents would result in “[h]arm to third-parties.” (Docket Item 8 2-2, at 2, 4.) Based on that argum ent, the Court will not grant the Motion to Seal those docum ents. See Tedesco, 20 19 U.S. Dist. LEXIS 16977. 15 The Court finds that the rem aining inform ation that the parties seek to seal — financial inform ation and proprietary com m ercial inform ation — constitutes confidential business inform ation and/ or trade secrets. See, e.g., Techfields Pharm a Co. v. Covance Inc., 20 19 U.S. Dist. LEXIS 99488 (D.N.J . J une 13, 20 19); Im pax Labs, Inc. v. Zydus Pharm s. (USA) Inc., 20 19 U.S. Dist. LEXIS 20 60 44 (D.N.J . Dec. 6, 20 18 ); Cim a Labs, Inc. v. Actavis Group HF, 20 0 7 U.S. dist. LEXIS 41516 (D.N.J . J une 7, 20 0 7). Furtherm ore, the parties satisfactorily show that clearly defined and serious injuries would result if the inform ation were disclosed to the public. See, e.g., Techfields Pharm a Co., 20 19 U.S. Dist. LEXIS 99488. Specifically the parties argue that: (1) “Cam bridge could suffer a clearly defined, substantial, irreparable and specific harm , including, but not lim ited to, financial dam age, dam age to business relationships, dam age to its com m ercial standing, and/ or other irreparable harm if an y of the confidential proprietary, com m ercial, and com petitively sensitive business inform ation is publicly disclosed in contravention of the term s of the DCO,” (Docket Item 8 2-1, ¶ 7); (2) “[d]isclosure . . . would cause irreparable harm to Cam bridge’s business relationships and divulge confidential and proprietary inform ation concerning . . . Cam bridge’s business practices,” (Id. ¶ 8 ); (3) disclosure “has the potential to harm EP Henry’s business and/ or com petitive position,” (Docket Item 8 2-3, ¶ 5); and (4) “public disclosure of this inform ation would be detrim ental” to the parties, (Docket Item 8 2-4, ¶ 3). Therefore, the Court will grant the parties’ J oint Motion in part and deny it in part. Specifically, the Court will seal the requested portions of the following docum ents: (1) Cam bridge’s Statem ent of Material Facts Not in Dispute (Docket Item 63); (2) Declaration of Charles H. Gam arekian (Docket Item 63-1); (3) Exhibit 7 to the 16 Declaration of Melissa E. Flax (Docket Item 63-3); (4) Cam bridge’s Brief in Support of its Motion for Sum m ary J udgm ent (Docket Item 63-4); (5) Cam bridge’s Reply Brief (Docket Item 75); (6) Exhibits H and I to the Reply Declaration of Melissa E. Flax (Docket Item s 75-2 an d 75-3); and (7) Corrected Declaration of Charles H. Gam arekian (Docket Item 78). However, because the parties’ sole argum ent for sealing the rem aining records is that their disclosure would harm third parties, the Court will conditionally deny the parties’ Motion with respect to the following records: (1) Exhibit B to the Declaration of Charles H. Gam arekian (Docket Item 63-2); (2) Exhibit A to the Reply Declaration of Melissa E. Flax (Docket Item 75-1); and (3) Exhibit B to the Corrected Declaration of Charles H. Gam areikian (Docket Item 78). The Court will perm it the parties to file a ren ewed Motion to Seal that addresses how the disclosure of those three docum ents would cause clearly defined and serious injury to the parties them selves. III. Co n clu s io n For the reasons expressed above, the Court will deny Cam bridge’s Motion for Sum m ary J udgm ent (Docket Item 62) and grant in part an d conditionally deny in part the parties’ J oint Motion (Docket Item 8 2) to Seal. An accom panying Order shall issue. Decem ber 9, 20 19 Date s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ United States District J udge 17
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