BB -
I am jomama's friend. There was an issue with my account and I haven't been able to post for the longest time. I follow the message board closely and am long AMRN. I appreciate your daily posts.
The brief is currently under seal for one of two reasons: (1) AMRN filed it under seal, or (2) court order. Let's take the latter first. If the brief is filed under seal due to a court order, it is either in the form of a stipulation between the parties (I do not see one on the docket), or a protective order has been entered (this could be an issue of contention). I do not see a protective order entered on the docket or moving papers to support the entry of a protective order. Thus, in my experience, unless there are some extraordinary circumstances at work, AMRN filed the brief under seal.
Most telling: the brief was filed very late in the evening. There are no court employees who "screen" the content or substance of filings. The filing party literally chooses to file a document under seal or not. Although I have never filed in the Federal Circuit Court of Appeals, I file in its sister court, the Third Circuit Court of Appeals (highest circuit court in my jurisdiction). Given my practice, I've filed several briefs under seal and we typically file things later in the evening on filing deadlines for strategic reasons.
You cite to FRCP 5.2(e). The rule states that the court may, for good cause, limit non-party access to filings. I've seen this occur once in my career, and it was not until one of the parties moved for an "emergency" protective order. That is not to say that the Court cannot, sua sponte, enter an order limiting access to non-parties, but I believe that would constitute extraordinary circumstances. In this case, given the timing of the filing, I find it extremely unlikely that the court reviewed the filing and decided to restrict access. As an aside, your guess is as good as mine as to what constitutes the nebulous "good cause" standard.
Also, take a look at local rule 25(f), governing privacy: "[t]he responsibility for redacting restricted or sensitive materials from documents and assuring that all materials contained in the public version of documents rests solely with the parties and counsel. The clerk of court will not review documents filed for compliance with this requirement."
In sum, I believe AMRN filed the brief under seal to protect proprietary information contained therein. When we consider the core arguments that AMRN would have raised in the ITC, which is intrinsically one of the factors for consideration on appeal, I find it more than likely that AMRN "let it fly" in its brief. In other words, in order to establish that the ITC acted arbitrarily in declining to investigate, AMRN likely got into the merits of exactly how DS are misleading the public re EPA, and that requires a discussion of both public and private (proprietary) information.
Hope this helps. I completely agree with you that given AMRN's volume today, this certainly affected the PPS.
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