Man, Is That a Question!

I doubt it ever occurred to Judge Travis A. (“Tag”) Greaves, when he assured the United States Senate Committee on Finance, back on 7/24/19, that “I will make every effort to balance the need to help these taxpayers understand the Court’s rules and procedures, while remaining independent and impartial,” he would find himself echoing the Rolling Stones and “perfecting ways of making sealing wax.”

I do hope that that wonderful source of blogfodder Amgen Inc. & Subsidiaries, Docket No. 16017-21, filed 3/10/26, doesn’t result in anyone’s 19th nervous breakdown, and that no one “owes a million dollars tax.” Howbeit, on with the story.

Back in July last year Judge Tag Greaves unsealed a co-promotion agreement between Amgen and nonparty Pfizer. Pfizer now wants Rule 161 reconsideration, but Judge Tag Greaves converts that into a motion to seal.

Unhappily, what Pfizer wants to seal bears heavily upon the leading issue in the case: who bears the cost of the healthcare reform fees (HCR)? HCRs are legacies of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), legislation that inspired half-a-hundred repeal votes and a celebrated Senate vote. Trade secrets, which are what Pfizer claims the stuff they want sealed to be, get sealed when disclosure would seriously impair the secretor economically. The bar is lower when the secrets don’t go to the heart of the case, but when justice must be done it must be seen to be done, and the sealing wax comes off.

But Pfizer slides under the tag.

The parties are willing to mask the exact numbers. That’s good enough for Judge Tag Greaves.

“To the extent Mr. M’s testimony addresses the mechanics of expense sharing, the nature of the fee obligations, the approval process, or the operative reimbursement structure, it lies at the core of the issues before us. The public’s right to access such testimony outweighs Pfizer’s interest in confidentiality. We therefore decline to seal those portions, except to the limited extent respondent concedes that discrete numerical figures may be sealed.

“By contrast, other portions of Mr. M’s testimony concern granular operational and budgeting details that do not bear directly on the reimbursement issue. The same is true for Mr. M’s testimony concerning a dispute between Amgen and Pfizer. Those passages were not meaningfully relied upon in the parties’ briefing, nor do they presently appear necessary to our ultimate disposition. With respect to such material, Pfizer’s demonstrated interest in protecting confidential commercial information outweighs the diminished public’s interest in disclosure. We will therefore seal those portions of Mr. M’s testimony.” Order, at p. 5. (Name and footnote omitted, but the footnote says that Pfizer’s proposal to put a summary of the sealed into the record has no basis in statute or reg, and only risks disclosing sealed stuff).

But before Pfizer breaks out the ’07 Salon Le Mesnil, Judge Tag Greaves has a parting shot.” Should it become necessary to reference any sealed testimony in our opinion, we will do so.” Order, at p. 5.

And there follow five (count ’em, five) pages with a line-by-line statement of what Judge Tag Greaves leaves out and lets in.