Erikka Skinner vs Ken’s Foods Inc
Case No: 18CV01618
Hearing Date: Fri May 10, 2019 9:30

Nature of Proceedings: Motion for Catalyst Fees

Tentative Ruling: 1. The court grants, in part, plaintiffs’ Erikka Skinner and Ann Kenney’s motion for catalyst fees and expenses. The court awards plaintiffs attorneys’ fees in the amount of $360,781.75 and expenses in the amount of $15,741.55. The court denies the motion in all other respects.

2. The court grants, in part, defendant Ken’s Foods, Inc.’s Motion to Seal Documents Filed Conditionally Under Seal in Connection with Plaintiff’s Motion for Catalyst Fees and Expenses and makes the limited sealing order discussed below.

Background: On April 2, 2018, plaintiffs Erikka Skinner and Ann Kenney filed their putative class action complaint against defendant Ken’s Foods Inc. The complaint alleges three causes of action: (1) violation of California Consumers Legal Remedies Act (“CLRA” – Civil Code §§ 1750 et seq.); (2) violation of California Fair Advertising Law (“FAL” – B&P Code §§ 17500 et seq.); and, (3) violation of California Unfair Competition Law (“UCL” – B&P Code §§ 17200 et seq.).

On July 23, 2018, after the court overruled defendant’s demurrer, defendant filed its answer to the complaint, generally denying the allegations and asserting 33 affirmative defenses.

Motion: Plaintiffs move for catalyst fees and litigation expenses pursuant to Civil Code § 1780(e) and CCP § 1021.5. Plaintiffs brought this action alleging that defendant falsely advertised its “olive oil” salad dressings. Plaintiffs sought injunctive relief, punitive damages, attorney fees, and costs.

In discovery, defendant admitted that its “Made with Extra Virgin Olive Oil” and “Imported Olive Oil” salad dressings contained as little as 2.9% olive oils, instead being made almost entirely of soybean and canola oils. Prior to litigation, plaintiffs had demanded that defendant remove false and misleading claims from its labels. Plaintiffs had attempted to reach a resolution, including a case evaluation by a retired judge.

Plaintiffs present evidence that defendant rejected pre-suit resolution. During discovery, plaintiff learned that defendant secretly removed “olive oil” from its labels in early 2018, removing “Made with Imported Olive Oil” from the Greek Dressing on March 7, 2018. In discovery, defendant admitted that the threat of this lawsuit was a factor in removing “olive oil” from the labels. Defendant vigorously defended this lawsuit even after changing the labels. In court, defendant stated that the label modifications were permanent.

Plaintiffs ask for an award of attorneys’ fees equaling $643,045.12, which represents their attorneys’ lodestar fee of $428,786.75, plus a 1.5 multiplier based upon the risks of litigation and nonpayment, inability to accept other work, and achieving a result with skill and determination. Plaintiffs also seek $15,741.55 in litigation expenses. Each Plaintiff seeks a service award of $5,000.

Defendant opposes the motion. Defendant contends the labeling was accurate, there was no consumer confusion, plaintiffs’ action under the CLRA lacks merit, defendant disclosed the change in labels in its first answers to special interrogatories, plaintiffs did not reasonably attempt to settle the litigation prior to filing suit, and defendant was motivated to change the labels to avoid the expense of frivolous litigation.

1. Pleadings: Plaintiffs’ and defendant’s memoranda of points and authorities do not comply with CRC 2.109, 3.1110(c), and 3.1113(h). The page numbering of papers filed in trial court “must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).” CRC 2.109 and 3.1110(c). “The pages of a memorandum must be numbered consecutively beginning with the first page and using only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the first page.” CRC 3.1113(h). The parties’ page numbering does not begin with the first page and tables have Roman numerals. This made it difficult for the court to locate pages in the electronically filed pleading that correspond to the pages listed in the table of contents. These rules have been in effect since January 1, 2017. Responsible counsel must familiarize themselves with and follow applicable court rules.

The court also notes that defendant met the 15 page limit for its memorandum by single spacing an entire page of argument (not quotations) at page 6. CRC 2.108 and 3.1113(d).

2. Objection to Evidence: Plaintiffs object to Exhibit 1 to Lawrence Green’s declaration, which is the Case Evaluation prepared by retired judge Carl J. West. Plaintiffs say this is inadmissible hearsay. Plaintiffs say that defendant offers this evaluation for the truth of matters asserted therein. This is ironic, given that plaintiffs claimed in their motion that Judge West confirmed that plaintiffs’ claims were meritorious and appropriate for class treatment. [Motion 3:26-4:1] Plaintiffs offered this assertion through the declaration of Shireen Clarkson, which is double hearsay. The court will consider the evaluation to sort out what Judge West said, since there are conflicting characterizations of his evaluation. The court is not admitting the evaluation to establish the truth of what Judge West said. Overruled.

3. Analysis: In an action under the CLRA, “[t]he court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to [Civil Code § 1780].” Civil Code § 1780(e). CCP § 1021.5 provides, in part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement … are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”

“[A]ttorney fees may be proper whenever an action results in relief for the plaintiff, whether the relief is obtained through a ‘voluntary’ change in the defendant’s conduct, through a settlement, or otherwise. … A plaintiff will be considered a ‘successful party’ where an important right is vindicated by activating defendants to modify their behavior.” Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 566-567 (2004) [internal quotation and citations omitted]. Under CCP § 1021.5, a judicially recognized change in the legal relationship between the parties is not necessary to obtain an attorney fee award under the catalyst theory of recovery. Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608 (2004). Absent judicial relief, “a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense … and, (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit.” Id. Each of these three elements must be satisfied to justify an award of attorney fees. Robinson v. City of Chowchilla, 202 Cal.App.4th 382, 390-391 (2011).

The parties do not dispute that truthful labeling and advertising serves an important public interest as evidenced by the Fair Advertising Law (B&P Code §§ 17500, et seq.). The removal of misleading information from the labels of widely distributed products is a significant benefit serving that public interest. The financial burden of private enforcement of that public interest makes an award appropriate under CCP § 1021.5. The question remains whether it is appropriate under the circumstances of this case.

a. Merit of Plaintiffs’ Action: “Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof. Accordingly, plaintiffs in a CLRA action [must] show not only that a defendant’s conduct was deceptive but that the deception caused them harm. A misrepresentation is material for a plaintiff only if there is reliance—that is, without the misrepresentation, the plaintiff would not have acted as he did.” Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1367 (2010) [internal quotations and citations omitted].

(Plaintiff Kenney and defendant submitted the matter to a retired judge to evaluate the case. His evaluation was complete on October 31, 2017. The retired judge concluded that Kenney had a viable class claim under the Unfair Competition Law and False Advertising Law, but not the CLRA. He also determined Kenney’s proposed settlement was improper as it provides no relief to the class.)

Plaintiffs maintain that the court found the lawsuit had merit when it overruled defendant’s demurrer. The court did nothing of the sort. A ruling on demurrer only determines that the pleadings state a claim.

Plaintiffs present themselves as purchasers of defendant’s products in reliance on the “olive oil” claims on defendant’s labels. To the extent that plaintiffs were relieved of their money by deceptive conduct, “they have suffered an ‘injury in fact.’” Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012) (examining standing under the UCL and FAL. “[A]ny plaintiff who has standing under the UCL’s and FAL’s ‘lost money or property’ requirement will, a fortiori, have suffered ‘any damage’ for purposes of establishing CLRA standing.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1108 (9th Cir. 2013).

Plaintiffs’ UCL, FAL, and CLRA actions have merit.

b. Catalytic Effect: Plaintiffs contend that this lawsuit prompted the change in labeling of the three products at issue. They rely on the transcripts of depositions of Albert Slingluff, defendant’s vice president, and Thomas Murphy. Defendant also relies on Slingluff’s testimony. (The court will refer to Slingluff’s deposition transcript as “S. Tr.,” and Murphy’s as “M. Tr.”)

Slingluff testified: Defendant changed the labels because Wish-Bone was having some litigation issues with labeling of olive oil and there were front panel labeling issues with Newman’s Own salad dressing. “So we thought it would be appropriate for us to make changes to our own retail labels and made this change.” [S. Tr. 40:6-11] Defendant decided to remove “Imported Olive Oil Dressing” from labeling in December 2017 to avoid possible litigation. [S. Tr. 40:25-41:3; 41:22-25] Defendant had concern about litigation in the marketplace and costs. “The concern was about frivolous lawsuits and defending ourselves from those lawsuits.” [S. Tr. 60:6-15]

Newman’s Own had litigation that led defendant to change its label. Defendant manufactured and packaged Newman’s Own dressings. [S. Tr. 61:7-62:11]

The threat of this litigation was “a discussion point,” “a part of the conversation,” and “a factor among many,” in the label changes. [S. Tr. 138:7-16] Slingluff and Jamie Mullen created a PowerPoint presentation in November 2017. [S. Tr. 176:14-177:10] This case was referenced in bullet point 3. [S. Tr. 178:9-14] Another lawsuit regarding Balsamic with Honey dressing “was part of that.” [S. Tr. 178:15-21] The last bullet point refers to this case. [S. Tr. 185:14-186:22]

Thomas Murphy testified: He was involved in the conversation that led to removal of the “Imported Olive Oil” claim. [M. Tr. 53:7-15] He was made aware that defendant had been challenged regarding that claim and “was also aware that in our industry more broadly there was some litigation with regard to ingredient related claims. I think general risk aversion, concern of being involved with litigation that led us to consider removing those claims or that description.” [M. Tr. 53:24-54:6]

“Made With Extra Virgin Olive Oil” was removed from a label because “the general environment within our category was such that there was litigation surrounding ingredient descriptions on the front panel, we were aware that there was some risk involved in that. For the sake of avoiding potential litigation, we decided to take the claims off of the front panels.” [M. Tr. 83:12-24] He believes it includes the current litigation. “We also knew that other manufacturers in our space had been challenged. So the general environment was one in which there were instances of litigation with regard to claims on front panels of labels.” [M. Tr. 83:25-84:8] “We were aware of the nature of claims being made against other manufacturers and against ourselves specifically and wanted to avoid the risk of litigation against us.” [M. Tr. 94:1-4]

In discussing risk associated with label artwork, he was “talking about the same risk that drove our decision in the first place to remove any reference from the labels in question, any risk of the time and effort spent in litigation.” M. Tr. 175:11-21]

It is clear from the evidence that plaintiffs’ claims were among the factors that moved defendant to change its labeling. Plaintiff Kenney served a pre-lawsuit notice on defendant on June 12, 2017, and the third-party evaluation concluded on October 31, 2017. The discussions regarding removing the olive oil claims from the labels commenced in November 2017. Both witnesses indicated that plaintiffs’ claims were part of that discussion.

“[T]he catalyst theory does not require that [plaintiffs’] litigation be the only cause of a defendant’s acquiescence. Rather, [plaintiffs’] litigation need only be a substantial factor contributing to the defendant’s action.” Hogar Dulce Hogar v. Cmty. Dev. Com. of City of Escondido, 157 Cal.App.4th 1358, 1365 (2007) [italics in original]. Courts look to see if a plaintiff’s lawsuit was “demonstrably influential” in prompting the desired change. Karuk Tribe of N. California v. California Reg’l Water Quality Control Bd., N. Coast Region, 183 Cal.App.4th 330, 363 (2010).

Because of the timing of the olive oil label discussion and because plaintiffs’ claims were a part of the discussion, they appear to be a substantial factor in defendant’s decision. But that is not the only element of the catalyst theory. The plaintiffs’ effort must have “achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense.” Tipton-Whittingham v. City of Los Angeles, supra, 34 Cal.4th at 608. In making this determination, “the court is to inquire not into a defendant’s subjective belief about the suit but rather to gauge, objectively speaking, whether the lawsuit had merit.” Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 575 (2004)

The defendant’s representatives’ subjective testimony is that defendant wanted to avoid the time, effort, and expense involved in litigation—even frivolous litigation. Objectively, however, it appears that featuring “olive oil” on labels where olive oil is a tiny portion of the oil in the product is misleading and there was a “threat of victory.” Defendant had already incurred legal expenses in connection with the claims. The motivation appears to have been avoiding more litigation expense and effort, but there was also a threat of success of plaintiffs’ claims.

c. Settlement Efforts: Plaintiffs must have “reasonably attempted to settle the litigation prior to filing the lawsuit.” Id. Defendant says that plaintiffs simply made demands. The initial demand was for defendant to remove misleading labels and establishment of a fund to provide class members a refund. [Clarkson Dec. Exh. 6] The response was a refusal with no counteroffer. [Clarkson Dec. Exh. 7] Subsequently, defendant rejected any effort to move to mediation with Judge West after his evaluation. [Clarkson Dec. Exh. 8] On November 15, 2017, defendant remained unwilling to make any settlement offer. [Clarkson Dec. Exh.10]

The submission of the matter to a retired judge for evaluation was a step toward reasonable settlement efforts. There is no evidence that plaintiffs’ settlement proposals were unreasonable. The absence of any counteroffer despite later taking action equivalent to the injunctive demands indicates that defendant had no interest in engaging in reasonable settlement efforts. In that context plaintiffs’ settlement efforts were reasonable.

d. Conclusion: Plaintiffs have established the elements for recovery of attorney fees under the CLRA and CCP § 1021.5. Therefore, the court will turn to the amount of fees.

e. Amount of Fees: Plaintiffs ask for an award of attorneys’ fees equaling $643,045.12, which represents their attorneys’ lodestar fee of $428,786.75, plus a 1.5 multiplier based upon the risks of litigation and nonpayment, inability to accept other work, and achieving a result with skill and determination. Plaintiffs also seek $15,741.55 in litigation expenses. Each Plaintiff moves for a service award of $5,000.

Defendant contends that any award should be reduced to $50,000, eliminating work related to damages and class certification. Defendant does not challenge the reasonableness of plaintiffs’ counsel’s hourly rates.

It is undisputed that defendant changed all the labels by March 2018. Yet defendant continued to vigorously defend the lawsuit, including the demurrer that the court overruled in July 2018. Defendant had taken the position that the labels on their face were not misleading. The court did not agree.

Through defendant’s discovery responses in August 2018, Plaintiffs learned that the labels were changed. Defendants continued to vigorously defend the suit, including filing eight motions to compel further responses to discovery. After the court ordered the parties to confer, the discovery dispute boiled down to a single form interrogatory as it related to four requests for admission.

The court must first determine a “‘lodestar’ figure based on a ‘careful compilation of the time spent and reasonable hourly compensation for each attorney . . . involved in the presentation of the case.’ [Citations] That figure may then be increased or reduced by the application of a ‘multiplier’ after the trial court has considered other factors concerning the lawsuit.” Press v. Lucky Stores (1983) 34 Cal.3d 311, 322. The lodestar fee “may be adjusted by the court based on factors including, … (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132. “The award of a multiplier is in the end a discretionary matter largely left to the trial court.” Hogar Dulce Hogar v. Community Development Com. (2007) 157 Cal.App.4th 1358, 1371.

Awardable fees “include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.” Serrano v. Unruh, 32 Cal.3d 621, 639 (1982). “[W]hen an amount of attorney’s fees is statutorily authorized, the reasonable expenses of preparing the application for fees should be included in the award.” Bruckman v. Parliament Escrow Corp., 190 Cal.App.3d 1051, 1062 (1987).

[T]he catalyst theory contemplates a successful litigant will have engaged in precomplaint negotiation with its adversary. [Citation] On the other hand, in most cases the connection between such precomplaint litigation activity and the outcome of the litigation will not be as strong as the connection between the result and postcomplaint activity. Hence when a successful litigant seeks to recover precomplaint litigation expenses, the litigant will, as a practical matter, bear a heavier burden of demonstrating how that activity contributed to the success of the litigation.

Hogar Dulce Hogar v. Community Development Com., supra, 157 Cal.App.4th at 1370.

A party “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.” Serrano v. Unruh, 32 Cal.3d 621, 638 (1982); Peak-Las Positas Partners v. Bollag, 172 Cal.App.4th 101, 114 (2009).

a. Lodestar Fee: The dispute over the lodestar fees centers on defendant’s contention that any catalyst fee should be confined to services directed at injunctive relief, not damages or class certification. Plaintiffs maintain that none of the services relate to class certification or damages. The court found only one reference to a billing entry related to class certification (July 16, 2018) and one reference to damages (November 20, 2017).

The complaint did seek class certification and that undoubtedly was part of defendant’s calculus in the costs of and time spent on litigation. Defendant concedes the extent and cost of litigation was the reason for changing the product labels. It necessarily follows that plaintiffs’ counsel’s work related to class certification and damages, if any, was a factor in the assessment of the costs in deciding to change the labels.

Under the catalyst theory, certain pre-litigation effort to settle the dispute is necessary. Litigation through August 2018, when plaintiffs learned the labels had been changed was necessary. Plaintiffs had to pursue discovery regarding the reasons or “catalyst” for the changes. Plaintiffs had to respond to defendant’s extensive discovery and motions to compel. Plaintiffs also had to engage in their own discovery to ascertain why defendant changed the labels. Defendant does not indicate any specific item in the time records that should not be compensated.

The court does find some entries excessive, such as two attorneys attending hearings on the demurrer ($4,225 excess) and discovery motions ($3,710 excess) and a case management conference ($3,250 excess). The court will also reduce the lodestar fee for excessive preparation of documents for filing (4/18/19, $1,440)

The fees for preparation of the instant motion and supporting documents are excessive. The first mention of a catalyst fee motion was on November 5, 2018, with work on the motion beginning in earnest after January 18, 2019. The motion is not that complicated and the numerous revisions and reviews exceed what was reasonable and necessary. The total fees related to this motion alone total $70,290. The court finds $15,000 reasonable, a reduction of $55,290.

The court finds a reasonable lodestar fee to be $360,781.75. The court finds the issues in the case were not novel or difficult. While counsel were skillful, that skill is reflected in their hourly rates. Counsel only state preclusion of other employment in a conclusory fashion, not addressing the extent to which the nature of the litigation precluded other employment. While the fee was contingent on success, the voluntary change in labels and the instant motion mitigated this factor. The court will not apply a multiplier to the fee.

There is no dispute over the reasonableness of costs of $15,741.55.

Plaintiffs seek a $5,000 service award for each plaintiff. “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” Clark v. American Residential Services LLC, 175 Cal.App.4th 785, 806 (2009). But can the court make such an award under a catalyst theory?

CCP § 1021.5 addresses only a successful party’s attorneys’ fees. The court can find no authority for catalyst service awards where there is no settlement, no class certification, and no judgment. The court will not make an incentive award to plaintiffs.

4. Order: The court grants, in part, plaintiffs’ Erikka Skinner and Ann Kenney’s motion for catalyst fees and expenses. The court awards plaintiffs attorneys’ fees in the amount of $360,781.75 and expenses in the amount of $15,741.55. The court denies the motion in all other respects.

Motion to Seal: Defendant moves to seal the memorandum of points and authorities in support of plaintiffs’ motion and the declaration of Shireen M. Clarkson in support of the motion and all exhibits attached thereto. Redacted versions of these documents are in the court’s public record.

“Unless confidentiality is required by law, court records are presumed to be open.” CRC 2.550(c).

The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.

Defendant argues that discovery material is not subject to the presumption in favor of public access to court records, citing Mercury Interactive Corp. v. Klein, 158 Cal.App.4th 60, 90 (2007). That court addressed the footnote in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 1208 n25 (1999), in which the Supreme Court discussed cases finding “a First Amendment right of access to civil litigation documents filed in court as a basis for adjudication.” That standard is expressly the basis for CRC 2.550(a)(3), which provides that sealing rules: “do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.” (See Advisory Committee Comment.)

Here, the material is offered as a basis for adjudication of a motion other than a discovery motion. So the presumption in favor of public access applies.

Defendant argues that the documents “contain confidential, proprietary, and trade secret information belonging to Ken’s,” including “the composition of specific Ken’s products, among other things.” [Dawn Eyerly Declaration ¶2]

The court has reviewed the material defendant seeks to seal and finds it is not limited to potentially confidential, proprietary, and trade secret information. For example, in plaintiff’s memorandum of points and authorities, the following are redacted: Plaintiffs provide their characterization of Judge West’s October 31, 2017 case evaluation [Memorandum 3:26-4:1; 12:6-7], an evaluation that defendant puts in evidence in its entirety. (See Lawrence Green Declaration ¶2, Exhibit 1.) There are statements that olive oil is not the predominant oil in the subject products, something that defendant insists was evident from the order of the listing of ingredients on the back of its products. Plaintiffs say that defendant decided to remove claims in its labels because of litigation risks, something that defendant openly insists is the case in its opposition. [Memorandum 1:18-19; 4:8-5:6; 5:12-19; 5:27-6:5; 6:12-13; 7:6-27; 11:5]

Similarly, the portions of the Clarkson declaration that defendant wants sealed include much the same non-confidential information as is disclosed in the memorandum: statements about Judge West’s case evaluation [Clarkson Dec. ¶20]; identification of Albert Slingluff [¶¶24, 25]; statements that olive oil is not the predominant oil [¶¶26, 27]; reasons for changing the labels [¶¶28, 29, 30, 32-39, 60, 61]; and dates the labels were modified [¶57].

As for the allegedly confidential exhibits to Clarkson’s declaration: Exhibits 8 and 9 are emails between counsel regarding whether to involve Judge West further. There is no suggestion of confidentiality of these emails. Exhibits 2-4, 14, and 15 appear to be artwork for labels that were publicly used. Exhibit 11 is something called the “Label Update Scope” dated 11/15/17, which appears to discuss public labels. Exhibit 12 is the Slingluff deposition transcript with statements about the reasons for changing the labels, which are openly conceded and discussed by both parties (though the parties offer different characterizations of his testimony). Similarly, Exhibit 13 is the deposition transcript of Thomas Murphy, which has no proprietary information. Exhibit 16 consists of a transcript of a court proceeding with statements that plaintiffs’ and defendant’s counsel made in open court. The statements simply reflect the changes to the labels and the fact that they are permanent, which is not proprietary information. Exhibits 10, 17, and 18 reflect settlement communications. Defendant makes no argument that settlement communications are confidential. An offer to compromise is inadmissible to prove the offering party’s liability for the loss or damage or any part of it. Evid. Code § 1152. But admissibility is not at issue here and the communications do not appear to be offered to prove liability.

The only possibly confidential information appear to be: Memorandum, p. 11, lines 20-21, which discloses percentages of oils in defendant’s products; Exhibits A-D to Exhibit 1 and Exhibit 5, which appear to address the content of defendant’s products.

It is only with respect to these limited items that the court finds an overriding interest that overcomes the right of public access to the record; the overriding interest supports sealing the record; a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; sealing of only these items is narrowly tailored; and no less restrictive means exist to achieve the overriding interest.

The court grants the motion to seal in part and will make the foregoing limited order sealing the record (Memorandum, p. 11, lines 20-21; Exhibits A-D of Exhibit 1 and Exhibit 5 to the Clarkson Declaration). On or before May 24, 2019, the parties shall submit new redacted versions of the memorandum of points and authorities in support of plaintiff’s motion for catalyst fees and expenses and Shireen M. Clarkson’s declaration in support of the motion consistent with this ruling. If new redacted versions are not submitted by that date, the court will place the entire memorandum and declaration into the public record.