Opinion
Civil Action No. 03-2390 Section: E/5.
February 14, 2005
ORDER AND REASONS
This matter is before the Court on the plaintiffs' (hereinafter collectively "Moore") motion to dissolve a temporary restraining order. Record document ("R.d.") 39. The TRO was entered on December 20, 2004, to seal certain pleadings filed in this case. Both parties filed briefs with extensive exhibits attached, and presented oral argument on the merits of defendants' (hereinafter collectively "State Farm") motion for injunctive relief on February 2, 2005. For the reasons that follow, Moore's motion to dissolve the TRO is GRANTED in part and DENIED in part, and State Farm's motion for injunctive relief is GRANTED in part and DENIED in part.
BACKGROUND
This dispute initially arose out of a 1982 agency contract (AA4) between the James Moore Insurance Agency, Inc., and State Farm. Moore's original Complaint, filed in August, 2003, alleged various state law (Louisiana and Illinois) contract and tort claims against State Farm. On December 10, 2004, at r.d. 27, Moore filed a motion for leave to file a Second Amended Complaint. In his proposed Second Amended Complaint, Moore makes additional factual allegations, two of which State Farm particularly objected to. Alleging that the Second Amended Complaint disclosed confidential and proprietary information and trade secrets, State Farm responded in ten days with a motion for an expedited hearing on their motion for leave to file their motion for injunctive relief under seal, and for a TRO. R. d. 30.
For more factual detail, see r.d. 22, this Court's Order and Reasons granting in part and denying in part State Farm's Rule 12(b)(6) motion to dismiss Moore's complaint.
State Farm claimed that Moore violated his contractual duties, his duties of fidelity and loyalty as State Farm's agent/mandatary, and State Farm's rights in its trade secrets as defined by La.R.S. § 51:1431. Id., p. 6, no. 21. The Court granted the motion for an expedited hearing and on that same day, December 20, 2004, and granted defendants' request for a TRO which required that Moore's motion for leave to file his Second Amended Complaint, and all related filings and future related filings, be filed under seal. R. d. 31. State Farm's motion for a preliminary injunction was ultimately set for hearing with oral argument on February 28, 2005.
Although Moore's counsel was reached by telephone from chambers immediately prior to granting the TRO, as a practical matter, the TRO was granted without notice. The motion for preliminary injunction was originally set for hearing with oral argument on January 5, 2004. On December 22, 2004, counsel for State Farm filed an unopposed motion to continue the January 5th hearing date until January 19, 2005, due to "unavoidable scheduling conflicts". On January 12, 2005, the Court was informed that both parties intended to call witnesses and present exhibits at the hearing. As a result, the motion was reset by the Court for February 28, 2005, to be heard in conjunction with Moore's motion for leave to file Second Amended Complaint, and State Farm's motion for leave to file an amended answer to conform to the law and the evidence, both previously set for oral argument before the Magistrate Judge. R. d. 26. The Court's Order resetting the hearing date expressly ordered that the TRO presently in effect would remain in effect pending the hearing and the Court's judgment on the motion for preliminary injunction.
ANALYSIS I.
Pursuant to Rule 65(b), Moore is entitled to bring the motion to dissolve the TRO.
Rule 65(b) establishes a procedure whereby the party against whom a temporary restraining order has issued can move to dissolve or modify the injunction, upon short notice to the party who obtained the order. Situations may arise where the parties, at the time of the hearing on the motion to dissolve the restraining order find themselves in a position to present their evidence and legal arguments for or against a preliminary injunction. In such circumstances, of course, the court can proceed with the hearing as if it were a hearing on an application for a preliminary injunction. At such hearing, as in any other hearing in which a preliminary injunction is sought, the party seeking the injunction would bear the burden of demonstrating the various factors justifying preliminary injunctive relief,. . . .Granny Goose Foods, Inc., v. Brotherhood of Teamsters Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 94 S.Ct. 1113, 1125, 39 L.Ed.2d 435 (1974). The Supreme Court has also instructed that a TRO that has been continued beyond the time permissible under Rule 65, as this one has, must be treated as a preliminary injunction, and must conform to the standards applicable to preliminary injunctions. Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed. 2d 166 (1974). Accordingly, because all parties have had ample opportunity to brief and argue the merits of the preliminary injunction, and have offered extensive evidentiary support for their arguments, the Court will treat Moore's motion to dissolve the TRO as an application for injunctive relief.
A preliminary injunction is a remedy that should be imposed only in extraordinary cases. Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). In order to obtain injunctive relief, the party requesting the injunction must show all four of the following prerequisites: (1) that he has a substantial likelihood of success on the merits; (2) that a substantial threat of irreversible injury will result to movant without relief; (3) that the threatened injury outweighs any harm to the non-movant; and (4) that granting the relief requested will not disserve the public interest. Id.; Sugar Busters LLC v. Brennan, 177 F.3d 258, 265 (5th Cir. 1999). A preliminary injunction will not be granted if the movant fails to prevail on any one of these prerequisites. Canal Auth. of State of Fla., 489 F.2d at 572
II. Does State Farm have a substantial likelihood of success on the merits of its motion for injunctive relief?
State Farm's motion for injunctive relief contains a list of 26 numbered statements cataloging Moore's alleged violations of his duties and responsibilities with respect to State Farm's trade secrets and proprietary and confidential information that are encompassed in Moore's Second Amended Complaint. The factual allegations that State Farm specifically complains of are as follows:(1) That State Farm is implementing a new fire insurance policy, the HOW Policy, to replace the HO-3, HO-4, and HO-5 policies currently in force, which policy change will effect "an approximately thirty (30%) percent increase in premiums for all insureds" without the necessary approval by the LIRC. See Second Amended Complaint (SAC) PP-7.
(2) That State Farm implemented a plan called the 2004 Louisiana Property and Casualty Business Plan-Fire Strategy (Fire Business Plan or the Louisiana Strategic Marketing Plan (SMP)), effective June 15, 2004, that prohibits it agents from writing new business in certain named parishes in the State, and instead requires a 30% reduction of the policies presently in force for agents in these parishes. The allegation refers to annexed Exhibits "C" and "D". See SAC at PP-1.
Exhibit "C" is a copy of a map of the State of Louisiana that shows by colors the parishes designated as "tier" and "non-tier" parishes based on geographic location and includes base market penetration rates for identified groups of parishes denominated as "Segments". Exhibit "D" is a copy of a document entitled "LIST OF ALL PARISHES BY SECTION (LOUISIANA 2004 PC BUSINESS PLAN)" which identifies three Segments and lists tier or non-tier parishes in each Segment, and shows the specific market penetration rate for each parish in the state through December 2003. Exhibit "D" also includes a copy of a one page document entitled "Louisiana 2004 Property Casualty Business Plan" which generally describes the marketing goals for each Segment based on a base market penetration rate and risk assessment. PP-1 of the SAC names those parishes identified as "Segment 1-Tier Parishes" in the SMP, for which Moore alleges that he (as well as other State Farm agents) is prohibited from writing any new homeowners' business based on their geographic location.
State Farm alleges that Moore "illegally disclosed in a public record the future implementation of a fire insurance policy Plaintiffs refer to as the 'HOW' policy to replace older policies now in force." It further alleges that Moore's factual allegations "maliciously and erroneously claim that this policy change will effect a 30% increase in premiums for all State Farm policyholders in the State of Louisiana". State Farm's Motion, p. 5, no. 16. Second, State Farm claims that its "market penetration, marketing strategies, and business plans", specifically, Exhibits "C" and "D" annexed to Moore's Second Amended Complaint, are confidential and proprietary information pertaining to State Farm's business strategies, and are trade secrets, and that his allegation that the SMP requires a 30% reduction of policies in force in certain parishes is his unsubstantiated opinion. Id., no. 17.
Moore argues that none of the information disclosed in the factual allegations of his Second Amended Complaint constitutes trade secrets, or confidential or proprietary information. He argues that all of the information State Farm seeks to protect has been publically disclosed by State Farm in hearings and filings before the Louisiana Insurance Rating Commission ("LIRC"), the Louisiana Department of Insurance ("LDI"), and the Louisiana Commissioner of Insurance ("LCI"). He also argues that State Farm has never claimed or marked any of the information disclosed in the Second Amended Complaint as proprietary, confidential or trade secrets.
The essence of Moore's Second Amended Complaint appears to be his allegations that (1) State Farm's "massive" conversion of all homeowner's policies currently in effect in the State to the HOW policy (which has been approved by the LDI and exclusively used for new homeowner's policies), and (2) its implementation of the 2004 SMP, are illegal acts pursuant to La.R.S. 22:636.2(D) as amended by Acts 2004, No. 826, § 1, (and the equal protection clause of the U.S. Constitution), for which he and similarly situated State Farm agents are entitled to damages. State Farm's defense rests on its claim that these acts are legal pursuant to La.R.S. 22:635.4, added by Acts 2004, No. 358, § 1. The State's Eleventh Amendment immunity to suit in federal court places the dispute as to the legality of State Farm's acts pursuant to the Louisiana Insurance Code beyond the scope of the district court's jurisdiction.
"The threshold inquiry in every trade secrets case is whether a legally protectable trade secret exists in fact." Walker v. Louisiana Health Management Co., 666 So.2d 415, 421 (La.App. 1 Cir. 1995), writ denied, 671 So.2d 922 (1996). In this case, the burden is on State Farm to show that Moore's Second Amended Complaint contains legally protectable secrets.United Group v. Vinson, 666 So.2d 1338, 1344 (La.App. 2 Cir. 1996), citing Engineered Mechanical Services, Inc., v. Langlois, 464 So.2d 329 (La.App. 1 Cir. 1984), writ denied, 467 So.2d 531 (1985). "Whether something is a trade secret is a question of fact." United Group, 666 So.2d at 1344.
The Court need not address and does not reach State Farm's claim that Moore's disclosure of its claimed trade secrets violated his contractual duties and his duties of fidelity and loyalty as State Farm's agent/mandatary in order to address the propriety of its request for injunctive relief. Those arguments are left for another day.
Pursuant to Louisiana's Uniform Trade Secrets Act,
"Trade secrets" means information, including formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
La.R.S. 51:1431(4). According to Comment (e) of that statute:
The language "not being generally known to and not being readily ascertainable by proper means by other persons" does not require that information be generally known to the public for trade secret rights to be lost. If the principal person who can obtain economic benefit from information is aware of it, there is no trade secret. . . .
Information is readily ascertainable if it is available in trade journals, reference books, or published materials.
Comment (f) further addresses paragraph (b) of the statute as follows:
Reasonable efforts to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on a "need to know basis", and controlling plant access. On the other hand, public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection.
The efforts required to maintain secrecy are those "reasonable under the circumstances."
Based on Comment (f) to the trade secrets act, courts have concluded that Louisiana has adopted the concept of "relative secrecy" as opposed to "absolute secrecy", and "courts do not require extreme and unduly expensive procedures be taken to protect trade secrets." Sheets v. Yamaha Motors Corp., U.S.A., 849 F.2d 179, 183 (5th Cir. 1988), citing Tubular Threading, Inc. v. Scandaliato, 443 So.2d 712, 714 (La.Ct.App. 1983); Tubos de Acero de Mexico v. American Intern. Inv., 292 F.3d 471, 483 (5th Cir. 2002). However, "[a] disclosure of a trade secret to others who have no obligation of confidentiality extinguishes the property right in the trade secret." Tubos de Acero de Mexico at id., quoting Tubular Threading, at 183-84. As a matter of law in Louisiana, all filings submitted to the LIRC and the Commissioner and "all information pertaining thereto" are open to public inspection when filed. Employers-Commercial Union Ins. Co. v. Bernard, 303 So.2d 728, 732 (La. 1974); La.R.S. 22:1407A(1) (e).
State Farm's motion for injunctive relief was accompanied by a memorandum in support addressing the merits of its motion, which included the following exhibits: Exhibit A — a copy of State Farm's Agent's Agreement (AA4); Exhibit B — a declaration of Gary Albert, State Farm's Field Compliance Coordinator as to his knowledge that Moore understood his obligation not to disclose State Farm's proprietary information and trade secrets; Exhibit C — a declaration of Randall Young, an Agency Field Consultant with State Farm, as to his understanding that Exhibits C and D attached to Moore's Second Amended Complaint are confidential, proprietary information concerning State Farm's market penetration and business strategy plan; and Exhibit D — a declaration of Gail Quinn, a State Farm employee in its Crescent City Metro Field Office, that Moore was informed by email that the information on the conversion to the HOW policy was confidential and proprietary, and should not be disclosed.
Moore responded by arguing that, notwithstanding the declarations of Gary Albert, Randall Young and Gail Quinn, none of the information has ever been designated as confidential, proprietary, or trade secrets by State Farm, and the AA4 contract does not identify that information as confidential. Moore's argument is supported by his own affidavit and the affidavit of Kenneth E. Carroll, also a State Farm agent, to the effect that State Farm has never designated its SMP, or Exhibits "C" and "D" to Moore's SAC, as confidential, proprietary information or trade secrets, and that they believe that information contained in the SMP must be "disclosed to the consuming public in connection with marketing the products of State Farm." See r.d. 36. Exhibit A attached to Moore's opposition memorandum is a copy of an email to Moore from Linda Gonzalez of the Public Affairs Office of the Louisiana Department of Insurance confirming that State Farm officially notified the LDI by letter dated August 16, 2004, that State Farm intended to convert several current policy forms to the HOW policy form beginning with renewals that occur on and after February 1, 2005. Exhibits B and C include copies of pages from State Farm publications and emails demonstrating that "trade secrets" are identified as names, addresses, and renewal or expiration dates of existing policy holders, and that any email containing confidential information should be marked "Confidential Trade Secrets". Finally, Exhibit D is a copy of a letter dated September 24, 2004, from Tim McFadden, a Vice President of Agency for State Farm, to Moore in which McFadden states that implementation of the Strategic Growth Plan represented a the change in the Underwriting Guidelines, and that the Louisiana Commissioner of Insurance is aware of the changes in the Plan.
In further support of his argument, Moore offers 685 pages of documents produced by the LDI pursuant to a subpoena, and by the LIRC pursuant to a Freedom of Information Request. See R.d. 40, Moore's supplemental memorandum in opposition to motion for injunctive relief with attached Exhibits 1-13 (hereinafter "Supp. Ex."). The documents include, inter alia, transcripts of LIRC meetings in 2000, 2001, and 2002; State Farm correspondence in 2004 and 2002 related to State Farm's intended conversion of HO3/HO-5 policies to HOW policies; and 2004 correspondence related to State Farm's lawsuit filed in the 19th JDC regarding the LIC's determination that State Farm's plan to implement the wholesale replacement of existing policy forms with the HOW policy form is illegal.
State Farm responded by arguing that while some aspects of its 2004 SMP have been discussed with the Commissioner of Insurance as necessary with regard to State Farm's request to substitute the HOW policy for all current policies upon renewal of those policies, it still considers its entire marketing plan to be proprietary information, and has taken appropriate steps to keep it confidential. Moreover, the SMP was never filed with the LIRC for consideration or approval. Attached are affidavits of Karen Terry and Tim McFadden, who both state that while they communicated with the Commissioner of Insurance and discussed some aspects of the SMP, both considered the Plan itself to be confidential and proprietary, and each disclosed only limited information necessary to the immediate discussion. Also attached are copies of maps comparable to Exhibit "C" at issue here, but for 2001 and 1998, which were referred to in testimony before the LIRC, and a printout of State Farm's website identifying "underwriting practices/guidelines" and "marketing plans, studies and reports" as trade secrets.
A. The HOW policy and Moore's claim that the conversion will result in a 30% increase in consumer's premiums.
There is no dispute that the HOW policy form and the rate structure for that policy were previously submitted to and approved by the LIRC. See, i.e., Supp. Ex. 6 at pp. 238-39, Ex. 7 at p. 253, Exs. 8 and 9. That form has been used to write new business since 2001. At oral argument, State Farm expressly objected to the "manner and process" of Moore's disclosure of its plan to convert all current homeowner's policies to the HOW form beginning with renewals on February 1, 2005, and to Moore's claim that the conversion will mean a 30% rate increase to most policyholders.
State Farm has engaged in extensive correspondence regarding this intended conversion. In correspondence addressed to Robert Wooley, Louisiana Commissioner of Insurance, dated March 19, 2004, from G. Michael Gooding, counsel for State Farm, State Farm makes its case for conversion of the HO-3/HO-5 policies to the HOW policy form to the Commissioner. Supp. Ex. 5. The correspondence includes the following: Exhibit A — Summary of State Farm's business rationale for converting policyholders to the HOW policy form; Exhibit B — summary of coverage differences between the HO-5 and HOW policy forms; Exhibit C — State Farm's legal position on the issue of conversion (the copy provided is missing four pages); and Exhibit D — side-by-side comparison of the two policy forms. On April 23, 2004, State Farm filed a lawsuit against Insurance Commissioner Robert Wooley in the 19th Judicial District Court in East Baton Rouge Parish. Supp. Exs. 7 and 12. The complaint expressly spells out State Farm's intent and plan to convert all current homeowner's policies to the HOW policy form. Supp. Ex. 6. On June 14, 2004, Richard Bates, counsel for State Farm, wrote to James Donelon, General Counsel for the Louisiana Department of Insurance, regarding State Farm's intent to convert the policy forms. Mr. Donelon replied on July 31, 2004, with an opinion that the planned conversion was illegal. Finally, by letter dated August 16, 2004, to Robert Wooley, Commissioner of Insurance, from Cecil J. Autry, Counsel for State Farm, State Farm officially notified the Commissioner that it intended to implement the wholesale conversion of all homeowner's policies to the HOW policy form.Id., p. 246.
State Farm voluntarily dismissed the lawsuit on August 20, 2004.
State Farm cannot claim that this information is privileged or a trade secret. State Farm appears to be most distressed by Moore's claim that the conversion to the HOW policy forms will result in a 30% increase in premiums for consumers. This is merely an unproven allegation made in the complaint, not a trade secret, nor, since State Farm vehemently denies the truth of the allegation, proprietary or confidential information worthy of protection. State Farm's own filings with the LIRC for approval of the HOW policy form and rate structure, indicate that as a result of the conversion to the HOW policy form, homeowners could see a "form indicated rate level adjustment" of 34.5% (see Supp. Ex. 6, pp. 298, 300), and in a public hearing held on April 14, 2002, the LIRC discussed at length, without reaching a clear understanding, the overall effect that the policy conversion might have on rates. Supp. Ex. 4, pp. 14-20. See also Supp. Ex. 1, p. 51, a letter dated April 29, 2002, from Commissioner Ruiz to Craig Gardner, Deputy Commissioner of the Louisiana Department of Insurance, requesting a "market conduct study" of State Farm regarding its plan to convert all policyholders to the HOW policy form.
State Farm has not shown that it is entitled to injunctive relief sealing all pleadings relating to its planned conversion of all homeowners' policies to the HOW policy form, including the alleged effect the conversion might have on rates. Moore is entitled to the dissolution of the TRO with respect to these claims.
B. State Farm's 2004 Strategic Marketing Plan
State Farm argues that Moore's factual allegations in PP-1 of the Second Amended Complaint, and Exhibits "C" and "D" attached thereto, severely "compromise State Farm's Marketing Plan for property and casualty business in Louisiana beginning in June 2004" by placing State Farm at a competitive disadvantage with respect to marketing its property and casualty insurance products, and compromise its position in the market with respect to consumers. See State Farm's request for oral argument, rec. doc. 42 at p. 13, and r.d. 30 — declarations of Gail Quinn and Randall Young.
State Farm's failure or refusal to write new business in certain parishes in Louisiana is public knowledge. State Farm admits that its representatives have disclosed to and discussed with Commissioner Wooley certain aspects of the 2004 SMP, including changes in State Farm's Underwriting Guidelines in the Plan. At oral argument, Moore's counsel stated that as a part of their daily business activities, State Farm agents are required to implement the SMP and therefore must disclose to potential customers that they are prohibited by that SMP from selling new homeowner's policies in certain parishes, as Moore and Kenneth Carroll testified in their affidavits. State Farm did not refute or controvert this claim.
Moore also cites an article in Volume 5, Issue 4 of "The Agent's Link", an industry publication, in support of his argument that State Farm's 2004 SMP is public knowledge. See Supp. Ex. 11. The article states that State Farm is the largest insurer in Louisiana, covering more than one third of the state's homeowners. The article, credited to " The Advocate, 10/21/04", reported that State Farm spokesman Gary Stephenson said that the company has been adding new homeowner's insurance customers on a limited basis since this [2004] summer. According to Stephenson, there are "five coastal parishes where State Farm has reached its coverage goals", and the company is writing new policies in the parishes where State Farm has yet to reach its desired market penetration. While he said that he could not disclose what percentage of the market that is, "[w]e think its unrealistic to ask State Farm or any other company to carry more than 30 percent of any market". The article also states that Commissioner [of the LIRC] Steven "Rock" Ruiz complained that "on numerous occasions over the past several years, State Farm has promised the commission to write more policies in exchange for higher rates,. . . . But it never actually happens."
It appears to be disingenuous for State Farm to claim that its marketing of its property and casualty business will be hurt or compromised by the factual allegations made in Moore's Second Amended Complaint, when clearly, the fact that the plan exists and that it includes changes in State Farm's Underwriting Guidelines, and that the Plan is being implemented by its agents on a daily basis, is public knowledge. It is also public knowledge that State Farm believes it is overexposed in the Louisiana market and has stopped writing new business in certain parishes in south Louisiana.
There can be no trade secret or confidential or proprietary information disclosed by addressing the fact of and the alleged effect of State Farm's 2004 SMP in certain parishes since that information is public knowledge. Moreover, Moore's statement in his SAC that implementation of the 2004 SMP will result in a 30% reduction in policies in force for agents in the named parishes is not a trade secret or confidential information, but, like his claim that the conversion to the HOW policy forms may result in a 30% rate increase, is merely an unproven allegation. Moore cannot be enjoined from public discussion of this information and allegation.
However, the information contained in Exs. "C" and "D" to the Second Amended Complaint is not public knowledge. Moore has not shown that these particular documents have ever been submitted to the LIRC, the LCI, or the LDI. Moore has shown that the documents have been given to State Farms agents, in their capacity as agents/mandataries of State Farm, and that some general aspects of the information therein is divulged to certain potential customer or consumers in the course and scope of the agents' daily business. But the detailed risk assessment and marketing strategy broken out by geographic region that is contained in Exs. "C" and "D" is the only information that Randall Young, Karen Terry and Tim McFadden actually identify as a trade secrets. The documents show the State divided into geographic regions in which State Farm's business strategies vary in accordance to its risk assessment and current market penetration rates for each parish. State Farm has made a reasonable effort under the circumstances to maintain the secrecy of this specific proprietary information.
The Fifth Circuit has held that using or disclosing even one trade secret may create a substantial threat of irreparable injury. NewSouth Communications Corp. V. Universal Telephone Company, LLC, 2002 WL 31246558 *21 (E.D.La.), citing Union Carbide Corp. V. UGI Corp., 731 F.2d 1186, 1191-92 (5th Cir. 1984). Moore can still litigate his causes of action against State Farm, and neither Moore nor the public interest will suffer any great injury if Exs. "C" and "D" remain sealed and accessible only to the Court, to counsel and the parties. However, nothing in the other pleadings that are now sealed disclose that specific, detailed proprietary information, that is, the actual rate of market penetration, the risk assessment and the marketing strategy for each parish. The pleadings merely discuss the fact that the 2004 SMP exists and the alleged affect implementation of that plan may have on certain agents in certain parishes, which information is already public knowledge.
Accordingly,
IT IS ORDERED that Moore's motion to dissolve the Temporary Restraining Order is GRANTED as to those pleadings including and related to his proposed Second Amended Complaint, and DENIED as to Exhibits "C" and "D" attached to the Second Amended Complaint, and as to any disclosure of the actual rate of market penetration, the risk assessment and the marketing strategy for each parish; and IT IS FURTHER ORDERED that State Farm's motion for a preliminary injunction is GRANTED as to Exhibit "C" and "D" attached to Moore's Second Amended Complaint and as to any disclosure of the actual rate of market penetration, the risk assessment and the marketing strategy for each parish, and is DENIED as to all other pleadings; and
IT IS FURTHER ORDERED that documents 31, 34, 35, 36, 38, 39, 40, 42, 43, 45, and 46 be UNSEALED and placed in the record, and that document 27 be UNSEALED and placed in the record with the exception of Exhibits "C" and "D" which shall remain sealed; and
IT IS FURTHER ORDERED that State Farm's motion for a preliminary injunction, presently set for hearing on February 28, 2004, is CANCELLED; and
IT IS FURTHER ORDERED that Moore's motion for leave to file a Second Amended Complaint, and State Farm's motion for leave to file an amended answer, will be heard as scheduled on February 28, 2004, at 10:30 a.m.