                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
KING & SPALDING, LLP,                     )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                Civil No. 1:16-cv-01616 (APM)
                                          )
UNITED STATES DEPARMENT OF                )
HEALTH AND HUMAN SERVICES, et al.,        )
                                          )
                                          )
      Defendants.                         )
_________________________________________ )

                         MEMORANDUM OPINION AND ORDER

                                               I.

       Before the court is a Motion for Reconsideration of the court’s February 10, 2020 Minute

Order granting Plaintiff King & Spalding’s Motion for Leave to File Documents Under Seal.

See Mot. for Reconsideration, ECF No. 74 [hereinafter Mot. for Reconsideration]. On February

3, 2020, Plaintiff filed a Sealed Motion for Leave to File Documents Under Seal (“Sealed

Motion”), which asked to keep off the public docket certain documents submitted in support of its

Motion for Attorneys’ Fees and Expenses. See Pl.’s Mot. for Leave to File Documents Under Seal,

ECF No. 73, Mem. of P & A in Supp., ECF No. 73-1 [hereinafter Mot. to File Under Seal].

Thinking—mistakenly, as it turned out—that the Sealed Motion was unopposed, the court granted

the Motion in a minute order before Defendants filed a response. See February 10, 2020 Minute

Order. Defendants now ask the court to reconsider its ruling. See Mot. for Reconsideration.

Because the court erred in assuming Defendants’ non-opposition, the court will reconsider its
sealing order and evaluate the merits of Plaintiff’s Sealed Motion de novo, as if it the court had

not ruled on it previously.

                                                II.

       As a preliminary matter, the court grants Plaintiff’s Motion for Leave to File a Surreply in

Opposition to Defendants’ Motion for Reconsideration, ECF No. 78. “The decision to grant or

deny leave to file a sur-reply is committed to the sound discretion of the Court.” Lu v. Lezell,

45 F. Supp. 3d 86, 91 (D.D.C. 2014). “If the movant raises arguments for the first time in his reply

to the non-movant’s opposition, the Court may either ignore those arguments in resolving the

motion or provide the non-movant an opportunity to respond to those arguments by granting leave

to file a sur-reply.” Id. (citing Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003);

Natural Res. Def. Council, Inc. v. EPA, 25 F.3d 1063, 1071–72 n.4 (D.C. Cir. 1994)). The court

finds that Defendants raised sufficiently new arguments in their reply brief for Plaintiff’s short

surreply to be appropriate. See Pl.’s Mot. for Leave to File a Surreply in Opp’n to Defs.’ Mot. for

Reconsideration, ECF No. 78. Therefore, the court has considered Plaintiff’s Surreply when

making its decision on Defendants’ Motion for Reconsideration. See Pl.’s Surreply in Opp’n to

Defs.’ Mot. for Reconsideration, ECF No. 78–1.

                                                III.

       Plaintiff asks to file two documents under seal: (1) the Declaration of King & Spalding

attorney John C. Richter in support of Plaintiff’s Motion for Attorneys’ Fees and Expenses, which

offers the background and billing rates of current and former King & Spalding “team members”

who worked on this matter, Mot. to File Under Seal, Ex. A, ECF Nos. 73-3; and (2) a report

detailing the tasks performed by King & Spalding attorneys, the hours spent on each task, and the

requested attorneys’ fees for each task, id. Ex. B, ECF No. 73-4. In its original motion, Plaintiff



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argued that sealing the firm’s billing records will not hinder public access to the proceedings; the

information has not been disclosed to the public; the “public distribution of . . . billing rates and

other details will harm the firm’s standing with respect to its competitors”; neither party will be

prejudiced from sealing the exhibits; and Plaintiff “seeks to introduce the documents for the sole

purpose of showing that it has requested a reasonable award of fees and costs in light of the value

of attorney time and other costs expended.” Mot. to File Under Seal at 2–3.

       In their Motion for Reconsideration, Defendants counter that potential competitive harm is

not a “sound legal basis” for sealing the exhibits and that King & Spalding has publicly filed billing

rates in other cases, which undermines any assertion of competitive harm.                   Mot. for

Reconsideration at 1–2. Defendants thus ask the court to vacate its minute order sealing the

documents. Id. at 2.

                                                 IV.

        “The starting point in considering a motion to seal court records is a strong presumption

in favor of public access to judicial proceedings.” Hardaway v. D.C. Housing Auth., 843 F.3d

973, 980 (D.C. Cir. 2016) (quoting EEOC v. Nat. Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C.

Cir. 1996). “That presumption may be outweighed in certain cases,” however. Metlife, Inc. v.

Financial Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017). In United States v.

Hubbard, the D.C. Circuit outlined six factors that courts must consider when “presented with a

motion to seal or unseal.” Id.; see also United States v. Hubbard, 650 F.2d 293, 317–322 (D.C.

Cir. 1980). Specifically, the court should weigh:

           (1) the need for public access to the documents at issue; (2) the extent of
           previous public access to the documents; (3) the fact that someone has objected
           to disclosure, and the identity of that person; (4) the strength of any property
           and privacy interests asserted; (5) the possibility of prejudice to those opposing
           disclosure; and (6) the purposes for which the documents were introduced
           during the judicial proceedings.

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Metlife, 865 F.3d at 665 (quoting Nat. Children’s Ctr., 98 F.3d at 1409). Here, the Hubbard factors

weigh in favor of disclosure.

       On the first factor, Plaintiff argues that the “publicly available information is sufficient to

ensure a transparent vetting of the firm’s request for fees as the prevailing party in this case” and

that “further disclosure of King & Spalding’s billing rates, staffing strategies, and detailed billing

entries would harm the firm without providing any discernable benefit to the public.” Pl.’s Mem.

in Opp’n to Defs.’ Mot., ECF No. 76 [hereinafter Pl.’s Opp’n], at 3–4. But what Plaintiff fails to

appreciate is that the public interest in disclosure is arguably at its zenith when the fee demand is

made against the public fisc. See Brock v. Pierce Cty., 476 U.S. 253, 262 (1986) (observing that

the “protection of the public fisc is a matter that is of interest to every citizen”); DRC, Inc. v.

Republic of Honduras, Civ. Action No. 10-0003 (PLF) (AK), 2011 WL 13257869, at *4 (D.D.C.

Aug. 22, 2011) (stating that “the need for public access is strengthened when the records pertain

to financial arrangements involving the public fisc”). Indeed, there is something untoward about

Plaintiff asking to conceal their hourly rates and the work done from public view, while demanding

hundreds of thousands of dollars from the public treasury as compensation. The first factor weighs

heavily in favor of not sealing the records.

       Second, “[p]revious access . . . may weigh in favor of subsequent access.” Hubbard, 650

F.2d at 318. Here, as Defendants point out, King & Spalding attorney billing rates have been

disclosed in other court cases. Mot. for Reconsideration at 4 & n.4 (citing In re: Astroturf, LLC,

Case No. 16-41504, ECF No. 467 (N.D. Ga. Bankr.)); see also Reply in Supp. of Mot. for

Reconsideration, ECF No. 77 [hereinafter Defs.’ Reply], at 4 (citing In re Jack Cooper Ventures,

Inc., Case No. 19-62393, ECF No. 430 (N.D. Ga. Bankr.) (fee application by King & Spalding

attaching almost 200 pages of billing records and identifying the rates of approximately 40



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attorneys); In re GMG Capital Partners III, LP, Case No. 13-12937, ECF No. 315 (S.D.N.Y.

Bankr.) (fee application by King & Spalding disclosing rates and detailed billing statements)).

Plaintiff argues that the cases in which it filed billing rates previously are distinguishable because

those were bankruptcy cases, and under the applicable bankruptcy statute, Plaintiff was required

to disclose such information. Pl.’s Opp’n at 7. To be sure, the circumstances of previous

disclosures may be different than the present case, and so too are the billing rates and work at

issue. But the fact of multiple prior public disclosures of Plaintiff’s billing rates diminishes the

claimed need for confidentiality in this case. The court is also mindful that attorney billing records

are routinely filed on the public record in this District, including in FOIA cases. See Defs.’ Reply

at 2–3 (collecting cases). The second factor thus weighs in favor of disclosure.

       Third, the fact that Plaintiff is both the party requesting attorneys’ fees and the party

objecting to the disclosure cuts against its demand for secrecy. Cf. Hubbard, 650 F.2d at 319

(finding that the identity of the objecting party weighed in favor of retaining documents under seal

where the objecting party was a third party who “was not made a defendant in the proceedings”).

       As to the fourth factor, Plaintiff’s claimed competitive interest in maintaining the

confidentiality of its billing rates lacks evidentiary support. “To carry [its] burden under Hubbard,

[a party] must specifically identify the commercially sensitive information . . . and explain why its

disclosure would harm [its] competitive standing.” In re McCormick & Company, Inc., Pepper

Prods. Mktg. & Sales Practices Litig., 316 F. Supp. 3d 455, 465 (D.D.C. 2018) (applying the

Hubbard factors to determine whether class certification pleadings should be unsealed). In this

case, Plaintiff offers no more than the conclusory assertion that “the public distribution of

[Plaintiff’s] billing rates and other details will harm the firm’s standing with respect to its

competitors,” because other firms could “use” that information. Mot. to File Under Seal at 2. Such



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a contention, without more, at best raises a weak inference of competitive harm, which cannot

overcome the strong public interest in disclosure. Plaintiff fails to carry its burden on the fourth

factor.

          On the fifth factor, the only prejudice that Plaintiff identifies from disclosure is the potential

for competitive harm, which the court found lacked support. This factor therefore favors denying

the sealing request.

          Finally, the records that Plaintiff asks to keep under seal go the very heart of what is before

the court: questions concerning the reasonableness of Plaintiff’s counsel’s hourly rates and the

reasonableness of the time they expended on this matter. See 5 U.S.C. § 522(a)(4)(E)(i). This

factor thus weighs in favor of disclosing the two exhibits.

          Accordingly, having weighed all six factors, the court finds that Plaintiff has not overcome

the “strong presumption” in favor of public access to judicial records.

                                                     V.

          Both parties identified out-of-district cases to support their positions, but of course those

cases are not binding on this court. Plaintiff, for example, cites cases in which the parties were

permitted to seal portions of their attorneys’ fees motions. See Pl.’s Opp’n at 5 (citing In re

Anthem, Inc. Data Breach Litig., No. 15-MD-02617-LHK, 2018 WL 3067783, at *2 (N.D. Cal.

Mar. 16, 2018); Mine O’Mine, Inc. v. Calmese, No. 2:10-CV-00043-KJD-PAL, 2012 WL

1279827, at *4 (D. Nev. Apr. 16, 2012); In re Maxwell Tech., Inc., Derivative Litig., No. 13CV966

BEN (RBB), 2015 WL 12791166, at *7 (S.D. Cal. July 13, 2015). Defendants point to district

courts that reached the opposite conclusion. Mot. for Reconsideration at 1 (citing BASF Corp. v.

SNF Holding Co., No. 4:17-cv-251, 2019 U.S. Dist. LEXIS 130633, at *26–27 (S.D. Ga. Aug. 5,

2019) (finding “that a purported concern over the public filing of counsel’s hourly rates is not a



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sound legal basis to seal”)); see also Defs.’ Reply at 3 (citing Procaps S.A. v. Patheon, Inc., No.

12-24356-CIV-GOODMAN, 2013 U.S. Dist. LEXIS 156994, at *12–13 (S.D. Fla. Nov. 1, 2013)

(observing that “[a]ttorney’s [sic] hourly rates are routinely publically [sic] disclosed and

discussed in judicial opinions at all levels”) (emphasis omitted) (collecting cases)).          These

decisions have little persuasive value, as this court is bound to balance the Hubbard factors

articulated by the D.C. Circuit. Having done so, the court finds that the documents in question

should not be sealed.

                                                 VI.

        For the foregoing reasons, Defendants’ Motion for Reconsideration, ECF No. 74, is granted

and the court’s February 10, 2020 Minute Order is hereby vacated. Unless Plaintiff notifies the

court by April 9, 2020, that it intends to withdraw its fees request, the clerk of the court shall make

available on the public docket Exhibits A and B in support of Plaintiff’s Motion for Attorneys’

Fees.

        Plaintiff’s Motion for Leave to File a Surreply in Opposition to Defendants’ Motion for

Reconsideration, ECF No. 78, is granted.



Dated: April 7, 2020
                                                                      Amit P. Mehta
                                                               United States District Judge




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