Preview
FILED: NEW YORK COUNTY CLERK 05/07/2024 12:43 PM INDEX NO. 652305/2024
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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INTUITIVE SURGICAL SÀRL, Index No. 652305/2024
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Plaintiff,
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Mot. Seq. No. 002
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-against-
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PHILIPS MEDICAL SYSTEMS NEDERLAND B.V.,
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Defendant.
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO FILE DOCUMENT UNDER SEAL
Plaintiff Intuitive Surgical Sàrl (“Intuitive”) respectfully submits this Memorandum of Law
in Support of its Motion for to File Document under Seal pursuant to 22 N.Y.C.R.R. § 216.1.
BACKGROUND
Earlier today, May 7, 2024, Intuitive filed a motion by order to show cause (Motion
Sequence No. 001) (the “Injunction Motion”) seeking a temporary restraining order and
preliminary injunction enjoining and restraining Defendant Philips Medical Systems Nederland
B.V. (“Defendant” or “Philips”) from prosecuting any claim or counterclaim against Plaintiff,
other than before a court of the State of New York, which arises from or is connected to the Master
Agreement dated March 22, 2019 between Plaintiff, Defendant, and others (the “Master
Agreement”) and/or the Supply Agreement dated March 22, 2019 between Plaintiff, Defendant,
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and others (the “Supply Agreement”), and to order Defendant to withdraw the claims in the lawsuit
Defendant commenced against Plaintiff in the District Court of East Brabant in the Netherlands
(the “Dutch Proceedings”). Affirmation of Bradley S. Pensyl dated May 7, 2024 (“Pensyl Aff.”)
¶ 1. The Master Agreement and Supply Agreement are governed by New York law and contain
forum selection clauses providing for exclusive jurisdiction in courts of the state of New York. Id.
The Dutch Proceedings brought by Philips are a breach of those forum selection clauses. Id.
In support of the Injunction Motion, Intuitive filed a declaration from its counsel in the
Dutch Proceedings, Hilde van der Baan, which attached as Exhibit A the petition filed by Philips
in the Dutch Proceedings. Pensyl Aff. ¶ 2 & NYSCEF No. 13 (Exhibit A to van der Baan
Declaration). The petition in the Dutch Proceedings was filed by Philips with the Netherlands
court in violation of the parties’ confidentiality obligations to one another. Pensyl Aff. ¶ 3. That
petition contains confidential and secret business information concerning the nature of the parties’
commercial relationship. Id. It also replete with non-public, competitively sensitive information
about Intuitive’s pricing, ordering and forecasting, id., which should not have been disclosed
publicly.
Earlier today, Intuitive submitted a request to the Netherlands court to have the petition in
the Dutch Proceedings maintained as confidential and to prohibit the public viewing of that
document. Id. ¶ 4. That request with the Netherlands court remains pending. Id. The petition in
the Dutch Proceedings is not yet otherwise available publicly. Id.
ARGUMENT
I. GOOD CAUSE EXISTS TO SEAL PHILIPS’ PETITION IN THE DUTCH
PROCEEDINGS
Pursuant to 22 N.Y.C.R.R. § 216.1, the Court may seal records, either in whole or in part,
“upon a written finding of good cause, which shall specify the grounds thereof. In determining
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whether good cause has been shown, the court shall consider the interests of the public as well as
of the parties.” In determining good cause, “Courts must have discretion to balance the competing
interests of the parties, the public, and the justice systems. When the balance favors
confidentiality, confidentiality should be provided.” Matter of Twentieth Century Fox Film Corp.,
190 A.D.2d 483, 486 (1st Dep’t 1993) (quotations and citation omitted).
Good cause exists for sealing Philips’ petition in the Dutch Proceedings here. As explained
in Intuitive’s Memorandum of Law in Support of the Injunction Motion, NYSCEF No. 9, the
Dutch Proceedings should never have been filed, publicly or otherwise. To make matters worse,
Philips included secret information about the parties’ business relationship as well as confidential,
non-public, competitively sensitive information about Intuitive’s pricing, ordering and forecasting.
Pensyl Aff. ¶ 3. Some of that information is irrelevant to Philips’ claims in the Dutch Proceeding.
Philips’ petition in the Dutch Proceedings is not yet public, and Intuitive has taken steps
before the court in the Netherlands to ensure that this status is maintained. Id. ¶ 4. The American
public has no interest in viewing a foreign pleading that is not publicly available abroad and should
never have been filed in the first place. Considering the prevalence of competitively sensitive
information in the document, Philips could be irreparably harmed if its competitors are able to
access that information. See id. ¶ 3. And Philips cannot credibly claim that its ability to litigate
will be compromised if it is required to apply redactions when referencing its petition in the Dutch
Proceedings.
For these reasons, “the balance favors confidentiality,” and “confidentiality should be
provided.” Matter of Twentieth Century Fox Film Corp., 190 A.D.2d at 486. Intuitive accordingly
requests that the Court permit it to file Exhibit A to the van der Baan Declaration, NYSCEF No.
13, under seal, and redact quotations from and references to that document in other papers.
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II. PHILIPS MAY BE SERVED BY MAIL
Philips is a Netherlands company. Compl., NYSCEF No. 1, at ¶ 7. Article 10(a) of the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters allows for service by mail unless the destination state objects to such service.
See Mutual Benefits Offshore Fund v. Zelster, 140 A.D.3d 444, 445 (1st Dep’t 2016). The
Netherlands does not object to service on its residents and companies by mail pursuant to Article
10(a). See Hague Conference on Private International Law, Netherlands, Central Authority and
practical information, https://www.hcch.net/en/states/authorities/details3/?aid=37 (last visited
May 5, 2024) (noting that the Netherlands has “no opposition” to Article 10(a)). Service by mail
on Philips of the order to show cause requested by this motion is therefore appropriate and
sufficient. Even though it is not required, Intuitive has also proposed additional service by email
on Philips’ outside counsel of record in the Dutch Proceedings.
CONCLUSION
For the foregoing reasons, Intuitive’s motion should be granted, along with such other and
further relief as the Court may consider appropriate.
Dated: May 7, 2024
New York, New York
/s/ Bradley S. Pensyl
ALLEN OVERY SHEARMAN STERLING US LLP
Bradley S. Pensyl
bradley.pensyl@aoshearman.com
Justin L. Ormand
justin.ormand@aoshearman.com
1221 Avenue of the Americas
New York, New York 10020
Telephone: (212) 610-6300
Attorneys for Plaintiff Intuitive Surgery Sàrl
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SECTION 202.8-B CERTIFICATION
Counsel for Plaintiff, pursuant to Section 202.8-b of the Uniform Civil Rules for the
Supreme Court and the County Court, certifies that this brief contains approximately 935 words,
excluding the parts exempted by Section 202.8-b(b), and therefore complies with the word count
limit in Section 202.8-b(a).
Dated: May 7, 2024
New York, New York
/s/ Bradley S. Pensyl
ALLEN OVERY SHEARMAN STERLING US LLP
Bradley S. Pensyl
bradley.pensyl@aoshearman.com
Justin L. Ormand
justin.ormand@aoshearman.com
1221 Avenue of the Americas
New York, New York 10020
Telephone: (212) 610-6300
Attorneys for Plaintiff Intuitive Surgery Sàrl
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Preview
FILED: NEW YORK COUNTY CLERK 05/07/2024 12:43 PM INDEX NO. 652305/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x : INTUITIVE SURGICAL SÀRL, Index No. 652305/2024 : : Plaintiff, : Mot. Seq. No. 002 : -against- : : PHILIPS MEDICAL SYSTEMS NEDERLAND B.V., : : Defendant. : x PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO FILE DOCUMENT UNDER SEAL Plaintiff Intuitive Surgical Sàrl (“Intuitive”) respectfully submits this Memorandum of Law in Support of its Motion for to File Document under Seal pursuant to 22 N.Y.C.R.R. § 216.1. BACKGROUND Earlier today, May 7, 2024, Intuitive filed a motion by order to show cause (Motion Sequence No. 001) (the “Injunction Motion”) seeking a temporary restraining order and preliminary injunction enjoining and restraining Defendant Philips Medical Systems Nederland B.V. (“Defendant” or “Philips”) from prosecuting any claim or counterclaim against Plaintiff, other than before a court of the State of New York, which arises from or is connected to the Master Agreement dated March 22, 2019 between Plaintiff, Defendant, and others (the “Master Agreement”) and/or the Supply Agreement dated March 22, 2019 between Plaintiff, Defendant, 1 of 5 FILED: NEW YORK COUNTY CLERK 05/07/2024 12:43 PM INDEX NO. 652305/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/07/2024 and others (the “Supply Agreement”), and to order Defendant to withdraw the claims in the lawsuit Defendant commenced against Plaintiff in the District Court of East Brabant in the Netherlands (the “Dutch Proceedings”). Affirmation of Bradley S. Pensyl dated May 7, 2024 (“Pensyl Aff.”) ¶ 1. The Master Agreement and Supply Agreement are governed by New York law and contain forum selection clauses providing for exclusive jurisdiction in courts of the state of New York. Id. The Dutch Proceedings brought by Philips are a breach of those forum selection clauses. Id. In support of the Injunction Motion, Intuitive filed a declaration from its counsel in the Dutch Proceedings, Hilde van der Baan, which attached as Exhibit A the petition filed by Philips in the Dutch Proceedings. Pensyl Aff. ¶ 2 & NYSCEF No. 13 (Exhibit A to van der Baan Declaration). The petition in the Dutch Proceedings was filed by Philips with the Netherlands court in violation of the parties’ confidentiality obligations to one another. Pensyl Aff. ¶ 3. That petition contains confidential and secret business information concerning the nature of the parties’ commercial relationship. Id. It also replete with non-public, competitively sensitive information about Intuitive’s pricing, ordering and forecasting, id., which should not have been disclosed publicly. Earlier today, Intuitive submitted a request to the Netherlands court to have the petition in the Dutch Proceedings maintained as confidential and to prohibit the public viewing of that document. Id. ¶ 4. That request with the Netherlands court remains pending. Id. The petition in the Dutch Proceedings is not yet otherwise available publicly. Id. ARGUMENT I. GOOD CAUSE EXISTS TO SEAL PHILIPS’ PETITION IN THE DUTCH PROCEEDINGS Pursuant to 22 N.Y.C.R.R. § 216.1, the Court may seal records, either in whole or in part, “upon a written finding of good cause, which shall specify the grounds thereof. In determining 2 2 of 5 FILED: NEW YORK COUNTY CLERK 05/07/2024 12:43 PM INDEX NO. 652305/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/07/2024 whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.” In determining good cause, “Courts must have discretion to balance the competing interests of the parties, the public, and the justice systems. When the balance favors confidentiality, confidentiality should be provided.” Matter of Twentieth Century Fox Film Corp., 190 A.D.2d 483, 486 (1st Dep’t 1993) (quotations and citation omitted). Good cause exists for sealing Philips’ petition in the Dutch Proceedings here. As explained in Intuitive’s Memorandum of Law in Support of the Injunction Motion, NYSCEF No. 9, the Dutch Proceedings should never have been filed, publicly or otherwise. To make matters worse, Philips included secret information about the parties’ business relationship as well as confidential, non-public, competitively sensitive information about Intuitive’s pricing, ordering and forecasting. Pensyl Aff. ¶ 3. Some of that information is irrelevant to Philips’ claims in the Dutch Proceeding. Philips’ petition in the Dutch Proceedings is not yet public, and Intuitive has taken steps before the court in the Netherlands to ensure that this status is maintained. Id. ¶ 4. The American public has no interest in viewing a foreign pleading that is not publicly available abroad and should never have been filed in the first place. Considering the prevalence of competitively sensitive information in the document, Philips could be irreparably harmed if its competitors are able to access that information. See id. ¶ 3. And Philips cannot credibly claim that its ability to litigate will be compromised if it is required to apply redactions when referencing its petition in the Dutch Proceedings. For these reasons, “the balance favors confidentiality,” and “confidentiality should be provided.” Matter of Twentieth Century Fox Film Corp., 190 A.D.2d at 486. Intuitive accordingly requests that the Court permit it to file Exhibit A to the van der Baan Declaration, NYSCEF No. 13, under seal, and redact quotations from and references to that document in other papers. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 05/07/2024 12:43 PM INDEX NO. 652305/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/07/2024 II. PHILIPS MAY BE SERVED BY MAIL Philips is a Netherlands company. Compl., NYSCEF No. 1, at ¶ 7. Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters allows for service by mail unless the destination state objects to such service. See Mutual Benefits Offshore Fund v. Zelster, 140 A.D.3d 444, 445 (1st Dep’t 2016). The Netherlands does not object to service on its residents and companies by mail pursuant to Article 10(a). See Hague Conference on Private International Law, Netherlands, Central Authority and practical information, https://www.hcch.net/en/states/authorities/details3/?aid=37 (last visited May 5, 2024) (noting that the Netherlands has “no opposition” to Article 10(a)). Service by mail on Philips of the order to show cause requested by this motion is therefore appropriate and sufficient. Even though it is not required, Intuitive has also proposed additional service by email on Philips’ outside counsel of record in the Dutch Proceedings. CONCLUSION For the foregoing reasons, Intuitive’s motion should be granted, along with such other and further relief as the Court may consider appropriate. Dated: May 7, 2024 New York, New York /s/ Bradley S. Pensyl ALLEN OVERY SHEARMAN STERLING US LLP Bradley S. Pensyl bradley.pensyl@aoshearman.com Justin L. Ormand justin.ormand@aoshearman.com 1221 Avenue of the Americas New York, New York 10020 Telephone: (212) 610-6300 Attorneys for Plaintiff Intuitive Surgery Sàrl 4 4 of 5 FILED: NEW YORK COUNTY CLERK 05/07/2024 12:43 PM INDEX NO. 652305/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/07/2024 SECTION 202.8-B CERTIFICATION Counsel for Plaintiff, pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court, certifies that this brief contains approximately 935 words, excluding the parts exempted by Section 202.8-b(b), and therefore complies with the word count limit in Section 202.8-b(a). Dated: May 7, 2024 New York, New York /s/ Bradley S. Pensyl ALLEN OVERY SHEARMAN STERLING US LLP Bradley S. Pensyl bradley.pensyl@aoshearman.com Justin L. Ormand justin.ormand@aoshearman.com 1221 Avenue of the Americas New York, New York 10020 Telephone: (212) 610-6300 Attorneys for Plaintiff Intuitive Surgery Sàrl 5 of 5