USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 1 of 10
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`No. 21-10994
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`________________________________
`JOHN D. CARSON,
`Plaintiff-Appellant,
`v.
`MONSANTO COMPANY,
`Defendant-Appellee,
`________________________________
`On Appeal from the United States District Court
`for the Southern District of Georgia
`No. 4:17-cv-00237-RSB-CLR (Baker, J.)
`________________________________
`DEFENDANT-APPELLEE MONSANTO COMPANY’S UNOPPOSED
`MOTION TO FILE DOCUMENTS UNDER SEAL
`________________________________
`
`
`Joe G. Hollingsworth
`Eric G. Lasker
`Martin C. Calhoun
`HOLLINGSWORTH LLP
`1350 I Street, NW
`Washington, DC 20005
`Tel: 202-898-5800
`Fax: 202-682-1639
`jhollingsworth@hollingsworthllp.com
`elasker@hollingsworthllp.com
`mcalhoun@hollingsworthllp.com
`
`Michael X. Imbroscio
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`Washington, DC 20001
`Tel: 202-662-6000
`Fax: 202-662-6291
`mimbroscio@cov.com
`K. Lee Marshall
`BRYAN CAVE LEIGHTON PAISNER LLP
`Three Embarcadero Center, 7th Floor
`San Francisco, California 94111-4070
`Tel: 415-675-3400
`Fax: 415-675-3434
`klmarshall@bclplaw.com
`
`Counsel for Defendant-Appellee Monsanto Company
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`
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`No. 21-10994
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`
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`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`________________________________
`JOHN D. CARSON,
`Plaintiff-Appellant,
`v.
`MONSANTO COMPANY,
`Defendant-Appellee,
`________________________________
`On Appeal from the United States District Court
`for the Southern District of Georgia
`No. 4:17-cv-00237-RSB-CLR (Baker, J.)
`________________________________
`DEFENDANT-APPELLEE MONSANTO COMPANY’S UNOPPOSED
`MOTION TO FILE DOCUMENTS UNDER SEAL
`________________________________
`
`
`Joe G. Hollingsworth
`Eric G. Lasker
`Martin C. Calhoun
`HOLLINGSWORTH LLP
`1350 I Street, NW
`Washington, DC 20005
`Tel: 202-898-5800
`Fax: 202-682-1639
`jhollingsworth@hollingsworthllp.com
`elasker@hollingsworthllp.com
`mcalhoun@hollingsworthllp.com
`
`Michael X. Imbroscio
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`Washington, DC 20001
`Tel: 202-662-6000
`Fax: 202-662-6291
`mimbroscio@cov.com
`K. Lee Marshall
`BRYAN CAVE LEIGHTON PAISNER LLP
`Three Embarcadero Center, 7th Floor
`San Francisco, California 94111-4070
`Tel: 415-675-3400
`Fax: 415-675-3434
`klmarshall@bclplaw.com
`
`Counsel for Defendant-Appellee Monsanto Company
`
`
`
`
`
`
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 2 of 10
`Carson v. Monsanto Co., Appeal No. 21-10994
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`CERTIFICATE OF INTERESTED PARTIES
`Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit
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`Rule 26.1-1(a)(3), Appellee Monsanto Company, through undersigned counsel,
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`hereby submits this Certificate of Interested Persons and Corporate Disclosure
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`Statement.
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`Below is a complete list of all trial judges, attorneys, persons, associations of
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`persons, firms, partnerships, or corporations that have an interest in the outcome of
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`the particular case or appeal, including subsidiaries, conglomerates, affiliates, part
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`corporations, any publicly held corporations that owns 10% or more of the party’s
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`stock, and other identifiable legal entities related to a party:
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`Interested Persons
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`1. Baker, Hon. R. Stan, United States District Judge
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`2. Boswell, Chase E., Attorney for Appellee (in the District Court)
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`3. Calhoun, Martin C., Attorney for Appellee
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`4. Carson, John D., Sr., Appellant
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`5. Hollingsworth, Joe G., Attorney for Appellee
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`6. Imbroscio, Michael X., Attorney for Appellee
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`7. Lasker, Eric G., Attorney for Appellee
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`8. Madison, Ashleigh Ruth, Attorney for Appellant
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`9. Marshall, K. Lee, Attorney for Appellee
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` C-1 of 2
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 3 of 10
`Carson v. Monsanto Co., Appeal No. 21-10994
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`10. Ray, Hon. Christopher L., United States Magistrate Judge
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`11. Thomas, Michael J., Attorney for Appellee (in the District Court)
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`Entities
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`12. Bayer AG, BAYRY
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`13. Bryan Cave Leighton Paisner LLP
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`14. Covington & Burling LLP
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`15. Hollingsworth LLP
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`16. Monsanto Company
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`17. Pennington, P.A.
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`18. Southeast Law, LLC
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`Dated: April 28, 2021
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`By:
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`
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`Respectfully submitted,
`/s/ Michael X. Imbroscio
`Michael X. Imbroscio
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`Washington, DC 20001
`Tel: 202-662-6000
`Fax: 202-662-6291
`mimbroscio@cov.com
`
`Counsel for Defendant-Appellee
`Monsanto Company
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`C-2 of 2
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 4 of 10
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`Defendant-Appellee Monsanto Company respectfully moves for leave to file
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`under seal the parties’ “Confidential Settlement Agreement and Release,” which is
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`Exhibit 1 to the Declaration of Michael X. Imbroscio filed in support of Monsanto’s
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`Opposition to the Motion by Non-Parties for Leave to File Letter Brief
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`(“Opposition”), as well as an unredacted version of that Opposition. In support of
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`its Motion, Monsanto states as follows:
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`1. On April 22, 2021, non-parties to this case filed with this Court a
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`Motion for Leave to File Letter Brief. Attached to the non-parties’ Motion were
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`a “letter brief” and a declaration that purport to describe aspects of a confidential
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`settlement agreement entered into by and between Plaintiff Dr. John D. Carson,
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`Sr. and Defendant Monsanto Company in John D. Carson v. Monsanto Company,
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`Civil Action No. 4:17-cv-237 (S.D. Ga.). The non-parties do not assert that they
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`have seen the settlement agreement.
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`2. As Monsanto affirmatively explained in its civil appeal statement, filed
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`with this Court on April 5, 2021, Dr. Carson and Monsanto Company entered
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`into a “high-low” settlement agreement under which the amount of Dr. Carson’s
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`recovery is contingent on how this Court resolves his appeal of the district court’s
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`dismissal of his failure-to-warn claim. The non-parties’ letter brief and
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`declaration includes hearsay descriptions of the settlement agreement that are
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`incomplete, misleading, and in some respects inaccurate.
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`1
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 5 of 10
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`3. Because the non-parties have purported to describe the settlement terms
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`in detail, but in inaccurate and misleading ways, Monsanto believes that the Court
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`should see a full and complete copy of the parties’ executed “Confidential
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`Settlement Agreement and Release.” However, the parties have strong interests
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`in maintaining the confidentiality of their private agreement and have required
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`that the settlement agreement, with certain exceptions allowing for disclosure to
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`the Court, remain confidential under Section 9.0 of the agreement. Accordingly,
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`Monsanto respectfully requests leave to file under seal the settlement agreement
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`(Exhibit 1 of the Imbroscio Declaration), and an unredacted version of its
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`Opposition.1
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`4. In the most recent, leading court of appeals case concerning the effect
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`of a high-low settlement on appellate jurisdiction, the Second Circuit granted a
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`motion to file the settlement agreement at issue there under seal, and permitted
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`the parties to heavily redact their briefs in describing the settlement’s terms. See
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`Order, Linde v. Arab Bank, PLC, 16-2119 (2d Cir. May 26, 2017), ECF No. 218
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`(granting motion for leave to file under seal a copy of the settlement agreement
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`referenced at oral argument); see also Linde v. Arab Bank, PLC, 882 F.3d 314,
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`1 On the public docket, Monsanto has filed a lightly redacted, public version of its
`Opposition. The only information redacted from the publicly filed version of
`Monsanto’s Opposition is the “high” payment amount Dr. Carson will recover if he
`prevails on this appeal. Pursuant to 11th Circuit Rule 25-5(a), Monsanto has
`redacted Dr. Carson’s social security number from all filed documents in which it
`appears.
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`2
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 6 of 10
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`318 n.4 (2d Cir. 2018) (“The Confidential Appendix detailing the parties’
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`settlement agreement is unsealed only to the extent referenced in this opinion.”).
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`Maintaining the confidentiality of a private settlement agreement is particularly
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`appropriate in the context of mass tort litigation, where there are numerous other
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`plaintiffs bringing claims similar to Dr. Carson’s.
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`5. Moreover, Monsanto’s proposed approach provides significantly more
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`public disclosure than what the Second Circuit authorized in Arab Bank.
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`Monsanto’s Opposition quotes certain terms of the settlement agreement relevant
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`to this Court’s jurisdiction, and Monsanto does not seek to redact those terms
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`from the public briefing apart from the “high” amount of the settlement. Cf.
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`United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 858 (2d Cir. 1998)
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`(concluding that “presumption of access to settlement negotiations, draft
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`agreements, and conference statements is negligible to nonexistent,” because,
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`among other things, release of documents impairs the Article III function of
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`fostering settlements).
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`6. The filing of a public brief that discloses the material terms of the
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`settlement more than satisfies any public interest in transparency in this
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`proceeding. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d Cir.
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`1994) (“[I]f a case involves private litigants, and concerns matters of little
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`legitimate public interest, that should be a factor weighing in favor of granting or
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`3
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 7 of 10
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`maintaining an order of confidentiality.”). This is not a case where the parties
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`have asked the Court to approve, interpret, or enforce a settlement agreement.
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`See United States v. Amodeo, 71 F.3d 1044, 1049-50 (2d Cir. 1995) (explaining
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`that the right of access to court documents is weaker with respect to documents
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`that played “only a negligible role in the performance of Article III duties”); see
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`also Romero v. Drummond Co., Inc., 480 F.3d 1234 (11th Cir. 2007)
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`(“[D]ecisions less central to merits resolutions implicate lesser right-to-access
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`considerations.”
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`(quotation marks omitted)); Chicago Tribune Co. v.
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`Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 n.6 (11th Cir. 2001)
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`(documents “unrelated, or only tangentially related, to the underlying cause of
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`action” reflecting matters “conducted in a private matter” do not implicate right
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`to public access (quotation marks omitted)). Rather, it is incidental to the dispute
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`before the Court and relevant only for purposes of the Court assuring itself of its
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`jurisdiction. In these circumstances, an appropriate balance of interests is for the
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`agreement to be filed under seal, while the public briefing describes the elements
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`of the settlement that are material to responding to the non-parties’ improper
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`filing.
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`7. Counsel for Monsanto conferred with counsel for Dr. Carson, who
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`consents to the filing of the settlement agreement under seal.
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`4
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 8 of 10
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`8. There is therefore good cause to seal the parties’ confidential settlement
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`agreement and the unredacted Opposition. Accordingly, this Court should grant
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`Monsanto’s motion.
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`For the foregoing reasons, the Court should grant Monsanto’s motion
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`for leave to file under seal the parties’ “Confidential Settlement Agreement and
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`Release,” designated as Exhibit 1 to the Declaration of Michael X. Imbroscio
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`filed in support of Monsanto’s Opposition to the Motion by Non-Parties for
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`Leave to File Letter Brief, and the unredacted version of that Opposition.
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`By:
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`
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`Respectfully submitted,
`/s/ Michael X. Imbroscio
`Michael X. Imbroscio
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`Washington, DC 20001
`Tel: 202-662-6000
`Fax: 202-662-6291
`mimbroscio@cov.com
`
`K. Lee Marshall
`BRYAN CAVE LEIGHTON PAISNER LLP
`Three Embarcadero Center, 7th Floor
`San Francisco, California 94111-4070
`Tel: 415-675-3400
`Fax: 415-675-3434
`klmarshall@bclplaw.com
`
`Dated: April 28, 2021
`
`
`Joe G. Hollingsworth
`Eric G. Lasker
`Martin C. Calhoun
`HOLLINGSWORTH LLP
`1350 I Street, NW
`Washington, DC 20005
`Tel: 202-898-5800
`Fax: 202-682-1639
`jhollingsworth@hollingsworthllp.com
`elasker@hollingsworthllp.com
`mcalhoun@hollingsworthllp.com
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`5
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 9 of 10
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`CERTIFICATE OF COMPLIANCE WITH
`TYPE-VOLUME LIMITATION, TYPEFACE
`REQUIREMENTS AND TYPE STYLE REQUIREMENTS
`This response complies with the type-volume limitation of Fed. R. App.
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`1.
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`
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`P. 27(d)(2)(A) because, excluding the parts of the brief exempted by Fed. R. App.
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`P. 32(f) and Fed. R. App. P. 27(a)(2)(B), it contains 1001 words.
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`2.
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`This response complies with the typeface requirements of Fed. R. App.
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`P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6), applicable
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`pursuant to Fed. R. App. P. 27(d)(2)(E), because it has been prepared in
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`proportionally-spaced typeface, using Microsoft Word, in Times New Roman 14-
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`point font.
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`Dated: April 28, 2021
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`/s/ Michael X. Imbroscio
`Michael X. Imbroscio
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`Washington, DC 20001
`Tel: 202-662-6000
`Fax: 202-662-6291
`mimbroscio@cov.com
`
`Counsel for Defendant-Appellee
`Monsanto Company
`
`6
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`USCA11 Case: 21-10994 Date Filed: 04/28/2021 Page: 10 of 10
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`CERTIFICATE OF SERVICE
`I hereby certify that on April 28, 2021, I caused the foregoing document to be
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`filed with the United States Court of Appeals for the Eleventh Circuit using the
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`CM/ECF System for filing and transmittal of a Notice of Electronic Filing to counsel
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`of record.
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`/s/ Michael X. Imbroscio
`Michael X. Imbroscio
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth Street NW
`Washington, DC 20001
`Tel: 202-662-6000
`Fax: 202-662-6291
`mimbroscio@cov.com
`
`Counsel for Defendant-Appellee
`Monsanto Company
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`7
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