of public access discussed to this point, courts have identified a similar presumption stemming from the First Amendment. See, e.g., Lugosch, 435 F.3d at 124; Gambale, 377 F.3d at 140 n. 4. In its arguments in opposition to NASD’s protective order motion, Standard conflates the two presumptions of access, claiming that NASD must “overcome the commonlaw [sic] right of public access with its First Amendment foundation.” (See Standard’s Surreply 4 (citing common law and First Amendment precedent in same footnote).) Nevertheless, due to the important constitutional principles at stake, the Court construes Standard’s argument as a separate assertion of both the common law and the First Amendment presumptions of access with respect to all of the documents. See, e.g., Gambale, 377 F.3d at 141 (<HOLDING>) (internal quotation marks and citations
recognizing that the primary issue to be considered in whether the representative parties will fairly and adequately protect the interest of the class is a determination of whether any antagonism exists between the interests of the plaintiffs and those of the remainder of the class recognizing courts role as primary representative of the public interest and its duty to determine whether confidential treatment over records filed wholesale under seal is warranted holding that a a representative plaintiff acts as fiduciary for the others requiring the representative to act in the best interest of class holding records did not qualify as exempt confidential commercial information under exemption 4 because the information was not actually confidential recognizing that refinement of rule governing confidential court records was a necessary step in providing the public electronic access to court records