Form SC 13D/A SOTHEBYS Filed by: MARCATO CAPITAL MANAGEMENT LP

March 16, 2015 10:17 AM EDT

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 8)*

 

 

SOTHEBY’S

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

835898107

(CUSIP Number)

Neil S. Bhatia, Esq.

Marcato Capital Management LP

One Montgomery Street, Suite 3250

San Francisco, CA 94104

(415) 796-6350

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

COPIES TO:

Jeffrey L. Kochian, Esq.

Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, NY 10036

(212) 872-1000

March 13, 2015

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box  ¨.

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule §240.13d-7 for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 835898107

 

  1 

Names of Reporting Persons

 

MARCATO CAPITAL MANAGEMENT LP

  2

Check the Appropriate Box If a Member of a Group (See Instructions)

a.  ¨        b.  x

 

  3

SEC Use Only

 

  4

Source of Funds (See Instructions)

 

AF

  5

Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6

Citizenship or Place of Organization

 

DELAWARE

Number of

Shares

Beneficially

Owned By

Each

Reporting

Person

With

 

  7 

Sole Voting Power

 

0

  8

Shared Voting Power

 

6,571,806

  9

Sole Dispositive Power

 

0

10

Shared Dispositive Power

 

6,571,806

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

6,571,806

12

Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

¨

13

Percent of Class Represented By Amount in Row (11)

 

9.53%

14

Type of Reporting Person (See Instructions)

 

IA


CUSIP No. 835898107

 

  1 

Names of Reporting Persons

 

RICHARD T. MCGUIRE III

  2

Check the Appropriate Box If a Member of a Group (See Instructions)

a.  ¨        b.  x

 

  3

SEC Use Only

 

  4

Source of Funds (See Instructions)

 

AF

  5

Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6

Citizenship or Place of Organization

 

UNITED STATES OF AMERICA

Number of

Shares

Beneficially

Owned By

Each

Reporting

Person

With

 

  7 

Sole Voting Power

 

0

  8

Shared Voting Power

 

6,571,806

  9

Sole Dispositive Power

 

0

10

Shared Dispositive Power

 

6,571,806

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

6,571,806

12

Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

¨

13

Percent of Class Represented By Amount in Row (11)

 

9.53%

14

Type of Reporting Person (See Instructions)

 

IN


CUSIP No. 835898107

 

  1 

Names of Reporting Persons

 

MARCATO, L.P.

  2

Check the Appropriate Box If a Member of a Group (See Instructions)

a.  ¨        b.  x

 

  3

SEC Use Only

 

  4

Source of Funds (See Instructions)

 

WC

  5

Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6

Citizenship or Place of Organization

 

DELAWARE

Number of

Shares

Beneficially

Owned By

Each

Reporting

Person

With

 

  7 

Sole Voting Power

 

0

  8

Shared Voting Power

 

1,529,210

  9

Sole Dispositive Power

 

0

10

Shared Dispositive Power

 

1,529,210

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

1,529,210

12

Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

¨

13

Percent of Class Represented By Amount in Row (11)

 

2.22%

14

Type of Reporting Person (See Instructions)

 

PN


CUSIP No. 835898107

 

  1 

Names of Reporting Persons

 

MARCATO II, L.P.

  2

Check the Appropriate Box If a Member of a Group (See Instructions)

a.  ¨        b.  x

 

  3

SEC Use Only

 

  4

Source of Funds (See Instructions)

 

WC

  5

Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6

Citizenship or Place of Organization

 

DELAWARE

Number of

Shares

Beneficially

Owned By

Each

Reporting

Person

With

 

  7 

Sole Voting Power

 

0

  8

Shared Voting Power

 

117,754

  9

Sole Dispositive Power

 

0

10

Shared Dispositive Power

 

117,754

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

117,754

12

Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

¨

13

Percent of Class Represented By Amount in Row (11)

 

0.17%

14

Type of Reporting Person (See Instructions)

 

PN


CUSIP No. 835898107

 

  1 

Names of Reporting Persons

 

MARCATO INTERNATIONAL MASTER FUND, LTD.

  2

Check the Appropriate Box If a Member of a Group (See Instructions)

a.  ¨        b.  x

 

  3

SEC Use Only

 

  4

Source of Funds (See Instructions)

 

WC

  5

Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6

Citizenship or Place of Organization

 

CAYMAN ISLANDS

Number of

Shares

Beneficially

Owned By

Each

Reporting

Person

With

 

  7 

Sole Voting Power

 

0

  8

Shared Voting Power

 

4,924,842

  9

Sole Dispositive Power

 

0

10

Shared Dispositive Power

 

4,924,842

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

4,924,842

12

Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

¨

13

Percent of Class Represented By Amount in Row (11)

 

7.14%

14

Type of Reporting Person (See Instructions)

 

OO


CUSIP No. 835898107

SCHEDULE 13D

This Amendment No. 8 supplements the information set forth in the Schedule 13D filed by the Reporting Persons with the United States Securities and Exchange Commission (the “SEC”) on July 30, 2013, as amended from time to time (the “Schedule 13D”), relating to Common Stock, par value $0.01 per share (the “Shares”), of Sotheby’s, a Delaware corporation (the “Issuer”). All capitalized terms contained herein but not otherwise defined shall have the meanings ascribed to such terms in the Schedule 13D.

The information set forth in response to each separate Item below shall be deemed to be a response to all Items where such information is relevant. The Schedule 13D is hereby supplementally amended as follows:

Item 4.    Purpose of Transaction.

As previously disclosed, on February 26, 2015, Marcato filed a Notice of Challenge to Confidential Treatment with the Delaware Chancery Court (the “Notice”), seeking the unredacted release of certain documents from prior legal proceedings involving the Issuer. These legal proceedings, captioned Third Point LLC v. Ruprecht (Case No. 9469-VCP), involved a dispute between a large shareholder of the Issuer and members of its Board of Directors. The resolution of this dispute was announced on May 5, 2014, but unredacted versions of certain court filings remain unavailable to the public. In response to the Notice, the Issuer filed unredacted versions of three of the four requested briefs, but seeks continued confidential treatment of certain information redacted from the public version of plaintiff Third Point LLC’s Opening Brief in Support of Its Motion for Preliminary Injunction (the “Third Point Brief”), filed on April 29, 2014. On March 13, 2015, Marcato filed an Opposition to Motion for Continued Confidential Treatment with the Delaware Chancery Court (the “Opposition to Motion”). In the Opposition to Motion, Marcato argues that the public has a right to access the information contained in the Third Point Brief and that the Issuer has failed to make any particularized showing of harm necessary to maintain confidentiality.

The foregoing description of the Opposition to Motion does not purport to be complete and is qualified in its entirety by reference to the full text of the Opposition to Motion, which is filed as Exhibit 7, and is incorporated herein by reference.

Item 5.     Interest in Securities of the Issuer.

(a) - (e) As of the date hereof, (i) Marcato and Mr. McGuire may be deemed to be the beneficial owners of 6,571,806 Shares (the “Marcato Shares”) constituting 9.53% of the Shares, (ii) Marcato, L.P. may be deemed to be the beneficial owner of 1,529,210 Shares, constituting 2.22% of the Shares, (iii) Marcato II, L.P. may be deemed to be the beneficial owner of 117,754 Shares, constituting 0.17% of the Shares and (iv) Marcato International Master Fund, Ltd. may be deemed to be the beneficial owner of 4,924,842 Shares, constituting 7.14% of the Shares, each based upon a total of 68,992,620 Shares outstanding as of February 17, 2015 (based on the Issuer’s Annual Report on Form 10-K, filed with the SEC on March 2, 2015).

Marcato, L.P. may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) 1,529,210 Shares. Marcato II, L.P. may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) 117,754 Shares. Marcato International Master Fund, Ltd. may be deemed to have the shared power to vote or direct vote of (and the shared power to dispose or direct the disposition of) 4,924,842 Shares. Marcato, as the investment manager of Marcato, L.P., Marcato II, L.P. and Marcato International Master Fund, Ltd., may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Marcato Shares. By virtue of Mr. McGuire’s position as managing partner of Marcato, Mr. McGuire may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Marcato Shares and, therefore, Mr. McGuire may be deemed to be the beneficial owner of the Marcato Shares.


Except as set forth in previous amendments to this Schedule 13D, there have been no other transactions in the class of securities reported on that were effected within the past 60 days.

The limited partners of (or investors in) each of Marcato, L.P., Marcato II, L.P., and Marcato International Master Fund, Ltd., or their respective subsidiaries or affiliated entities, for which Marcato or its affiliates acts as general partner and/or investment manager have the right to participate in the receipt of dividends from, or proceeds from the sale of, the Shares held for the accounts of their respective funds in accordance with their respective limited partnership interests (or investment percentages) in their respective funds.

Item 7.    Material to be Filed as Exhibits.

Exhibit 7 – Opposition to Motion for Continued Confidential Treatment


CUSIP No. 835898107

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Date: March 16, 2015 MARCATO CAPITAL MANAGEMENT LP
By: Marcato Holdings LLC
By:

/s/ Richard T. McGuire III

Richard T. McGuire III
Authorized Person
Date: March 16, 2015 RICHARD T. MCGUIRE III
By:

/s/ Richard T. McGuire III

Date: March 16, 2015 MARCATO, L.P.
By: MCM General Partner LLC, its General Partner
By:

/s/ Richard T. McGuire III

Richard T. McGuire III
Authorized Person
Date: March 16, 2015 MARCATO II, L.P.
By: MCM General Partner LLC, its General Partner
By:

/s/ Richard T. McGuire III

Richard T. McGuire III
Authorized Person
Date: March 16, 2015 MARCATO INTERNATIONAL MASTER FUND, LTD.
By:

/s/ Richard T. McGuire III

Richard T. McGuire III
Director

Exhibit 7

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

 

THIRD POINT LLC, a Delaware limited )
liability company, )
)

Plaintiff,

)
)

v.

)
)
WILLIAM F. RUPRECHT, )     C.A. No. 9469-VCP
PEREGRINE A. M. CAVENDISH, )
DOMENICO DE SOLE, JOHN M. )
ANGELO, STEVEN B. DODGE, )
DANIEL H. MEYER, ALLEN I. )
QUESTROM, MARSHA E. SIMMS, )
MICHAEL I. SOVERN, ROBERT S. )
TAUBMAN, DIANA L. TAYLOR and )
DENNIS M. WEIBLING, )
)

Defendants,

)
)

and

)
)
SOTHEBY’S, a Delaware corporation, )
)

Nominal Defendant.

)

MARCATO CAPITAL MANAGEMENT LP’S OPPOSITION TO

MOTION FOR CONFIDENTIAL TREATMENT

Pursuant to Court of Chancery Rule 5.1(f)(2), non-party Marcato Capital Management LP (“Marcato”), by and through its undersigned counsel, hereby submits this opposition to nominal defendant Sotheby’s (“Sotheby’s”) motion for continued confidential treatment (the “Motion”), and in support thereof states as follows:


INTRODUCTION

1. This action concerned an application for a preliminary injunction brought by Third Point LLC (“Third Point”) relating to the Sotheby’s board of directors’ adoption of a poison pill in an alleged attempt to thwart Third Point from waging an effective proxy contest. The Court denied the preliminary injunction in a memorandum opinion dated May 2, 2014, and the litigation surrounding the proxy contest settled thereafter.

2. On February 26, 2015, Marcato filed a notice challenging the confidential treatment of information redacted from four briefs filed with the Court in connection with the preliminary injunction application (the “Notice”). Marcato is an institutional investor that beneficially owns approximately 9.5% of Sotheby’s outstanding shares. Starting in July 2013, Marcato has been publicly advocating for certain changes to Sotheby’s business and operations. Marcato is mentioned extensively in the briefs and pleadings in this case.

3. In response to Marcato’s Notice, Sotheby’s filed unredacted versions of three of the four requested briefs, but seeks continued confidential treatment of certain information redacted from the public version of Plaintiff Third Point LLC’s Opening Brief in Support of Its Motion for Preliminary Injunction, filed on April 29, 2014 (the “Third Point Opening Brief”).

 

2


4. The Third Point Opening Brief is now largely unredacted and contains extensive quotations and discussions of the board communications that were produced during the underlying litigation. Sotheby’s, however, seeks the continued confidential treatment of selected communications regarding perspectives on board members and board dynamics that outgoing lead director Steven B. Dodge shared with incoming lead director Domenico De Sole (the “Dodge Memorandum”) and with Audit Committee Chair Dennis Weibling (the “Weibling Email”). (Motion ¶ 3.)

5. The redacted material goes to the very heart of the parties’ dispute in this litigation – the conduct and competence of Sotheby’s board of directors in adopting a poison pill. The public has a right of access to such information. In its Motion, Sotheby’s has failed to make any particularized showing of harm necessary to maintain confidentiality. Sotheby’s has accordingly failed to sustain its burden under Rule 5.1 and its Motion should be denied.

ARGUMENT

 

I. THE LEGAL STANDARD

6. The public’s right to access judicial records is well-grounded in both “the First Amendment and the common law.” Horres v. Chick-fil-A, Inc., 2013 WL 1223605, at *1 (Del. Ch. Mar. 27, 2013) (citations omitted); see also Sequoia Presidential Yacht Grp. LLC. v. FE Partners LLC, 2013 WL 3724946, at *2 (Del.

 

3


Ch. July 15, 2013) (“The public’s right to access judicial records is considered fundamental to a democratic state.”) (internal quotation marks omitted). This right of access is reflected in Court of Chancery Rule 5.1, which provides as a default that “proceedings in a civil action are a matter of public record.” Ct. Ch. R. 5.1(a). In adopting Rule 5.1 in January 2013, the Court of Chancery “implement[ed] [a] powerful presumption of public access.” Sequoia Presidential Yacht Grp., 2013 WL 3724946, at *2 (internal quotation marks omitted); see also Horres, 2013 WL 1223605, at *1 (emphasizing that access “helps ensure quality, honesty and respect for our legal system”) (internal quotations omitted).

7. In accordance with this powerful presumption, “[t]he party or person seeking to obtain or maintain Confidential Treatment always bears the burden of establishing good cause for Confidential Treatment.” Ch. Ct. R. 5.1(b)(3). To establish good cause, a party “must demonstrate that the particularized harm from public disclosure of the Confidential Information . . . clearly outweighs the public interest in access to Court records.” Sequoia Presidential Yacht Grp., 2013 WL 3724946, at *2 (quoting Ct. Ch. R. 5.1(g)) (emphasis added).

8. “Rule 5.1 provides examples of information that may qualify for confidential treatment: trade secrets; sensitive proprietary information; sensitive financial, business, or personnel information; sensitive personal information . . .; [or] personally identifying information such as social security numbers.” Al Jazeera Am., LLC v. AT & T Servs., Inc., 2013 WL 5614284, at *3 (Del. Ch. Oct. 14, 2013) (quoting Rule 5.1(b)(2)).

 

4


II. SOTHEBYS HAS NOT DEMONSTRATED THE PARTICULARIZED HARM OR GOOD CAUSE REQUIRED FOR CONTINUED CONFIDENTIAL TREATMENT

9. Neither the Dodge Memorandum nor the Weibling Email contains material that qualifies as Confidential Information under Rule 5.1(b)(2) or that would cause any particularized harm to Sotheby’s sufficient to defeat the “powerful presumption of public access.” Sequoia Presidential Yacht Grp., 2013 WL 3724946, at *2 (internal quotation marks omitted). Rule 5.1 was intended to clarify “that only limited types of information qualify for confidential treatment in submissions to the Court.” Protecting Public Access to the Courts: Chancery Rule 5.1, at 1 (Jan. 1, 2013), available at http://courts.delaware.gov/rules/Chancery MemorandumRule5-1.pdf. Sotheby’s does not seek continued confidential treatment of “trade secrets; sensitive proprietary information; sensitive financial, business, or personnel information;” or the other categories of information identified in Rule 5.1 as possibly warranting protection. Ct. Ch. R. 5.1(b)(2); see also Al Jazeera Am., 2013 WL 5614284, at *5 (“Rule 5.1 protects sensitive business information like price terms, account numbers, and the names of companies that place non-winning bids during corporate reorganizations.”).

10. Sotheby’s nevertheless asserts in conclusory fashion that disclosure of the contents of the Dodge Memorandum and the non-public portions of the

 

5


Weibling Email will cause “a potential harm” by serving “to chill candid communications between and among board members.” (Motion ¶ 15.) But Sotheby’s has acknowledged that board communications are typically not protected by Rule 5.1 by removing redactions on every other board communication quoted or discussed in the brief. (See, e.g., Third Point Opening Brief at 9-10, 13-15, 17-21, 26, 28-32, 35-38.) Sotheby’s further undermined its argument by allowing selective portions of the Weibling Email and the Dodge Memorandum to be disclosed in Third Point’s Opening Brief. (Id. at 9 (quoting Ex. 39, the Dodge Memorandum), 36-37 (quoting Ex. 52, the Weibling Email).)

11. The distinction, Sotheby’s contends, is that the remaining redactions “were neither discussed at the preliminary injunction hearing nor disclosed in the Court’s May 2014 opinion,” and were thus “inconsequential to the dispute.” (Motion ¶ 6.) The Court of Chancery, however, has expressly rejected the contention that when the resolution of litigation does not involve the information sought to be kept confidential, the public loses its interest in access to judicial records. See Sequoia Presidential Yacht Grp., 2013 WL 3724946, at *2. The public retains an interest not only “in the actions in the Court before” resolution, but also in “judg[ing] the product of the courts” where the resolution is provided by the Court. Id. The defining line under Rule 5.1 then is whether the information was “presented to the Court,” in which case it “should be available to the public.” Protecting Public Access to the Courts, at 4.

 

6


12. Indeed, Sotheby’s efforts to establish good cause suggest only that disclosure of the board members’ perspectives regarding board dynamics may embarrass or damage relations between members of Sotheby’s board of directors, despite the fact that the sentiments reflected are largely those of a member – Mr. Dodge – who has long since left the board. Delaware law is clear, however, that the prospects of “embarrassment will not suffice for continued Confidential Treatment.” Horres, 2013 WL 1223605, at *2; see also Al Jazeera Am., 2013 WL 5614284, at *3 (the fact that particular information “may be embarrassing or previously undisclosed does not alone warrant confidential treatment”); Sequoia Presidential Yacht Grp., 2013 WL 3724946, at *3 (finding that “desire to avoid embarrassment . . . cannot justify continued confidential treatment”).

13. Nor can potential collateral economic effects justify continued disclosure. “Rule 5.1 does not envision a scenario where information in court documents . . . is kept confidential merely because disclosure has the potential for collateral economic consequences.” Al Jazeera Am., 2013 WL 5614284, at *5. Thus, Sotheby’s vague suggestions of possible “competitive harm” are wholly unavailing. (Motion ¶ 4.) Although Sotheby’s speculates that communications between board members generally may be chilled, this speculation does not approach the particularized harm necessary to outweigh the significant public interest in access to court records.

 

7


14. Moreover, any potential negative effect of the disclosures sought would be negligible, given the stale nature of the information redacted. As recognized by this Court, “over time, information typically grows stale and its sensitivity fades.” Horres, 2013 WL 1223605, at *2; see also Proctor & Gamble v. Nabisco Brands, Inc., 111 F.R.D. 326 (D. Del. 1986) (denying a protective order where defendant could not show that revelation of purportedly confidential information “at this time will harm it”). The Dodge Memorandum and Weibling Email contain perspectives provided a year or more ago (December 2013 and March 2014, respectively). (Third Point Opening Brief at 8, 35.) There is no proposed transaction or dispute currently at issue that would be affected by the revelation of those directors’ views.

 

III. THE AUTHORITY RELIED UPON BY SOTHEBYS IS INAPPOSITE

15. Sotheby’s relies on this Court’s opinion in Disney v. Walt Disney Co. for the proposition that preliminary deliberations of a corporate board of directors are generally non-public and directors should enjoy a reasonable expectation that they remain private. (See Motion ¶ 12 (citing Disney v. Walt Disney Co., 2005 WL 1538336, at *4 (Del. Ch. June 20, 2005)). Sotheby’s similarly relies upon Pershing Square, L.P. v. Ceridian Corp. to support its argument that any public interest in

 

8


disclosure of the redacted portions of the Weibling Email and the Dodge Memorandum is outweighed by the chilling effect on candid board communications. (See Motion ¶ 15 (citing Pershing Square, L.P. v. Ceridian Corp., 923 A.2d 810, 824 (Del. Ch. 2007)). Not only do Pershing Square and Disney predate the adoption of Rule 5.1, they relate to the confidentiality of documents produced pursuant to a books and records demand under 8 Del. C. § 220, not the continued confidentiality of briefs and other documents filed publicly in a litigation. See Disney, 2005 WL 1538336 at *1; Pershing Square, 923 A.2d at 824.

16. As the Court recognized in Disney, “Delaware courts have repeatedly placed reasonable restrictions on shareholders’ inspection rights . . . under 8 Del. C. § 220, and have made disclosure contingent upon the shareholder first consenting to a reasonable confidentiality agreement.” 2005 WL 1538336, at *1 (quoting Stroud v. Grace, 606 A.2d 75, 89 (Del. 1992) (collecting cases)). In Disney, the information at issue was designated as confidential pursuant not to Rule 5.1, but to a letter agreement entered into by the plaintiff. See Disney v. Walt Disney Co., 857 A.2d 444, 445 (Del. Ch. 2004). Further highlighting these disparate circumstances, the Court in Disney emphasized that the board members who participated in the communications sought to be revealed “had a reasonable expectation that they would remain private unless disclosed in the course of litigation….” 2005 WL 1538336, at *3 (emphasis added). Here, of course,

 

9


Marcato seeks the disclosure of information from documents that were produced in the course of litigation and then quoted in public filings, not to obtain and publish documents pursuant to Section 220.

17. Unlike Section 220, “[w]here Rule 5.1 draws the line is when information designated by the parties as confidential is filed with the Court” because at “that point, the public’s right of access comes into play.” Protecting Public Access to the Courts, at 4. Rule 5.1 makes clear that “information presented to the Court should be available to the public” absent a particularized showing of harm demonstrating good cause. Id. Sotheby’s has failed to make such a showing here.

CONCLUSION

For the foregoing reasons, Marcato respectfully submits that Sotheby’s Motion for Continued Confidential Treatment should be denied.

 

 

 

 

Of Counsel:

AKIN GUMP STRAUSS

HAUER & FELD LLP

Douglas A. Rappaport

One Bryant Park

Bank of America Tower

New York, New York 10036-6745

Telephone: (212) 872-7412

ASHBY & GEDDES

 

  /s/ Catherine A. Gaul (#4310)

  Catherine A. Gaul (#4310)

  Peter H. Kyle (#5918)

  500 Delaware Avenue, 8th Floor

  P.O. Box 1150

  Wilmington, Delaware 19899

  (302) 654-1888

 

Attorneys for Marcato Capital Management LP

 

Dated: March 13, 2015

 

10


CERTIFICATE OF SERVICE

I hereby certify that, on March 13, 2015, a copy of Marcato Capital Management LP’s Opposition to Motion for Confidential Treatment was caused to be served upon the following counsel of record by File & ServeXpress.

 

Donald J. Wolfe, Jr.

Kevin R. Shannon

Berton W. Ashman, Jr.

Matthew F. Davis

Potter Anderson & Corroon LLP

1313 N. Market Street

Hercules Plaza, 6th Floor

Wilmington, DE 19801

Samuel T. Hirzel

Proctor Heyman LLP

300 Delaware Avenue

Suite 200

Wilmington, DE 19801

Kevin G. Abrams

John M. Seaman

Daniel A. Gordon

Abrams & Bayliss LLP

20 Montchanin Road, Suite 200

Wilmington, DE 19807

Stuart M. Grant

Cynthia A. Calder

John C. Karis

Bernard C. Devieux

Grant & Eisenhofer, P.O.

123 S. Justison Street

Wilmington, DE 19801

William M. Lafferty

Morris Nichols Arsht & Tunnell LLP

1201 North Market Street

Wilmington, DE 19801

 

/s/ Catherine A. Gaul (#4310)

Catherine A. Gaul (#4310)



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