United States District Court, D. Minnesota
Roger Krueger, Jeffrey Olson, Deborah Tuckner, Susan Wones, and Margene Bauhs, individually and as representatives of a class of similarly situated persons, and on behalf of the Ameriprise Financial 401(k) Plan, Plaintiffs,
Ameriprise Financial, Inc., Ameriprise Financial, Inc. Employee Benefits Administration Committee, Michelle Rudlong, Ameriprise Financial, Inc. 401(k) Investment Committee, Compensation and Benefits Committee of the Board of Directors of Ameriprise Financial, Inc., Martin S. Solhaug, and Brent Sabin, Defendants.
Jerome J. Schlichter and Michael A. Wolff, Schlichter Bogard & Denton; and Thomas W. Pahl and Thomas A. Harder, Foley & Mansfield, PLLP, for Plaintiffs.
Stephen P. Lucke and Kirsten E. Schubert, Dorsey & Whitney LLP; and Benjamin G. Bradshaw and Shannon M. Barrett, O'Melveny & Myers LLP, for Defendants.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Plaintiffs' Objections [Doc. No. 516] to U.S. Magistrate Judge Janie S. Mayeron's October 14, 2014 Order [Doc. No. 506] ("October 14 Order") granting in part and denying in part Plaintiffs' Motion to Redesignate and Unseal Documents [Doc. No. 351]. After reviewing the Magistrate Judge's Order for clear error, the Court affirms the Order for the reasons set forth below.
A. The Parties and the Claims
Defendant Ameriprise Financial, Inc. ("Ameriprise") makes available to eligible employees and retirees of Ameriprise and its subsidiaries and affiliates the Ameriprise Financial 401(k) retirement benefit plan (the "Plan"). (See Declaration of Brent Sabin dated July 2, 2013 [Doc. No. 152], Ex. D at 1-2, 36.) The Plan is a defined contribution plan in which participants may direct their Plan balances among different investment options. (See id. at 1, 10-20.) Two named fiduciary committees have primary responsibility for administering the Plan. Ameriprise's Employee Benefits Administration Committee is the Plan administrator and is responsible for determining benefits eligibility and construing Plan documents, and the Ameriprise Financial, Inc. 401(k) Plan Investment Committee selects and monitors the investment options in the Plan lineup and directs how investment options for the Plan are invested. (See id., Ex. A §§ 2.4, 6.3, 10.3, 10.4.) Ameriprise's Compensation and Benefits Committee of the Board of Directors has the authority to appoint and to remove the EBAC's members. (Id. § 10.1.)
The Plan's assets are held by trustees selected by the Investment Committee. ( Id., Ex. A §§ 12.1, 12.2.) Ameriprise Trust Company ("ATC") was the original trustee and record-keeper of the Plan. (Id. ¶ 34 & Ex. B §§ 1.2(m), 6.2.) Ameriprise sold ATC's record-keeping business to Wachovia Bank, N.A. ("Wachovia") in June 2006, and Wachovia became the Plan's trustee and record-keeper in April 2007. (Id. ¶ 34.)
Plaintiffs are current and former participants in the Plan. They allege that Defendants breached their fiduciary duties to the Plan and are liable for the resulting losses under the Employee Retirement Income Security Act ("ERISA"). (See Second Am. Compl. [Doc. No. 228].) In March 2014, the Court granted, in part, Defendants' Motion for Summary Judgment on Statute of Limitations Grounds, dismissing as time-barred the prohibited transaction claims alleged in Counts III, IV, V, and VII of the Second Amended Complaint, as well as the breach of fiduciary duty claim alleged in Count V. (See Mem. Op. and Order dated Mar. 20, 2014 [Doc. No. 323] at 14, 40.) And, in May 2014, the Court granted Plaintiffs' Motion to Certify Class Action. (Mem. Op. and Order dated May 23, 2014 [Doc. No. 384] at 40-41.)
B. Amended Protective Order
The Court entered an Amended Protective Order in this case on March 19, 2013.
It provides for three levels of confidentiality for discovery materials: "Confidential, " "Confidential - Parties' Eyes Only, " and "Confidential - Attorneys' Eyes Only." (Am. Protective Order dated Mar. 15, 2013 [Doc. No. 114] ¶¶ 2-4.) Pursuant to the Amended Protective Order, materials may be marked "Confidential" if the producing "party or person reasonably believes [the materials] to be confidential or proprietary business, commercial or financial information, a trade secret, or confidential research and development, credit, compliance, personnel or administrative information." (Id. ¶ 2.) Materials may be marked "Confidential - Parties' Eyes Only" if "the producing party reasonably believes [the material] contains information that reflects trade secrets, know-how, ' customer information, financial and marketing information, strategy, planning and other highly sensitive commercial information that the producing party reasonably believes in good faith would cause the party to suffer business or competitive harm if publicly known, or known by third parties." (Id. ¶ 3.) Finally, materials may be marked "Confidential - Attorneys' Eyes Only" if "the producing party reasonably believes [the material] meets the requirements [for a Confidential' or Confidential - Parties' Eyes Only' designation], but should not be disclosed to a party." (Id. ¶ 4.)
That being said, a designation made pursuant to the Amended Protective Order "cannot be used as the sole basis for filing the document under seal in connection with a nondispositive, dispositive or trial-related motion." (Id. ¶ 15.) Rather:
... Only those documents and portions of a party's submission (including those portions of affidavits, exhibits and memorandum of law) which otherwise meet the requirements of protection from public filing (e.g. a statute, rule or regulation prohibits their disclosure; they are protected under the attorney-client privilege or work product doctrine; or they meet the standards for protection articulated in F.R.C.P. Rule 26(c)(1)(G)) shall be filed under seal....
(Id.) If a party submitting a document marked confidential by another party believes that the document should not be filed under seal, then it must request the designating party to permit the document to be filed publicly. (Id.) If the designating party objects, that party bears the burden of proving that the document should remain under seal. (Id.) Likewise, a party seeking to change a designation may make a request of the designating party; if the request is denied, the requesting party may move the Court for relief, and the ...