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Doe v. Hammond

August 22, 2007

JOHN DOE,
v.
SCOTT D. HAMMOND, ACTING ASSISTANT ATTORNEY GENERAL ANTITRUST DIVISION, U.S. DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This case arises out of the plea agreement reached by the Department of Justice Antitrust Division ("DOJ") and British Airways PLC to resolve alleged criminal violations of the Sherman Act, 15 U.S.C. § 1. See United States v. British Airways PLC, Cr. No. 07-183 (D.D.C.). The plea agreement provides immunity for the offenses described in the agreement for all British Airways employees except for ten employees identified by name (referred to as the "carve out" employees).

Eight British Airways employees, proceeding under John Doe pseudonyms, challenge disclosure of their names in the agreement as a violation of grand jury secrecy under Fed. R. Crim. P. 6(e) and their right to due process under the Fifth Amendment, based on the premise that public disclosure of their names in the plea agreement will effectively label them unindicted co-conspirators and convey that they are or were the subject of a grand jury investigation and did not cooperate with the government. The first John Doe, the plaintiff in this action, filed an application for a temporary restraining order and permanent injunction on August 20, 2007, requesting that defendants be enjoined "from publicly identifying plaintiff in any manner that explicitly or implicitly discloses that Plaintiff is an unindicted co-conspirator of British Airways or is or was otherwise an unindicted subject of a grand jury investigation." See Pl.'s Mem. at 18. Plaintiff requests that this be accomplished by ordering the government to redact his name from the version of the plea agreement that will be filed in open court, or by directing that the plea agreement be redrafted to omit the names of the individuals excluded from the grant of immunity under the agreement. Id. Seven other British Airways employees, proceeding under the pseudonyms "John Does 2-5," "John Doe 6" and "John Does VII and VIII" have sought leave to intervene under Fed. R. Civ. P. 24(b)(2), seeking substantially the same relief on the same grounds proffered by plaintiff. See Joint Mot. by John Does 2-5 for Leave to Intervene (submitted Aug. 21, 2007); Mot. for Leave to Intervene of John Doe #6; Mot. to Intervene by John Does VII and VIII. The Court will thus consider the application for emergency injunctive relief as having been made by the intervenors as well and will refer to plaintiff and the John Doe intervenors collectively as "movants." The motion has now been fully briefed, and is ready for decision.*fn1 A careful review of the Information, the plea agreement, and statements attributed to DOJ confirms that none of the documents -- alone, or collectively -- expressly or impliedly identifies the movants as co-conspirators or as the subjects of a grand jury investigation. Therefore, the application will be denied.

STANDARD OF REVIEW

To prevail on an application for a temporary restraining order or preliminary injunction, a plaintiff must demonstrate (1) a substantial likelihood of success on the merits; (2) that he will suffer irreparable harm absent the relief requested; (3) that other interested parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004); Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001); Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C. Cir. 1995); Washington Area Metro. Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). These four factors should be balanced, and a "particularly strong" showing in one area can justify an injunction "even if the showings in other areas are rather weak." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). However, if a plaintiff has no likelihood of success on the merits, inquiry into the remaining factors is unnecessary, for the injunctive relief must be denied on that ground alone. See Trudeau v. FTC, 456 F.3d 178, 182-83 n.2 (D.C. Cir. 2006) (noting that a court may not issue a preliminary injunction where the plaintiff has no likelihood of success on the merits).

DISCUSSION

Rule 6(e)(2) provides that an attorney for the government "must not disclose a matter occurring before the grand jury." The phrase "matter[s] occurring before the grand jury" encompasses "'not only what has occurred and what is occurring, but also what is likely to occur, including 'the identities of witnesses, . . . the strategy or direction of the investigation . . . and the like.'" In re Sealed Case No. 99-3091, 192 F.3d 995, 1001 (D.C. Cir. 1999) (quoting In re Motions of Dow Jones & Co., 142 F.3d 496, 500 (D.C. Cir. 1998)).

Movants contend that the necessary implication of identifying the carve out employees as exempt from the grant of immunity is that they remain a subject of an ongoing grand jury investigation or that the carve out employees were a subject of a grand jury investigation and were considered uncooperative. Pl.'s Mem. at 3. The fatal flaw in this argument is that the documents they rely upon -- the Information filed against British Airways, the plea agreement, and a DOJ press release -- do not expressly or impliedly state that any of the movants are the subject of a grand jury investigation. Moreover, the news reports of imminent investigations do not change the analysis. The mere possibility that an individual is a subject of a grand jury investigation -- a matter that is unknown -- does not, under the law of this Circuit, prohibit the government from disclosing his name in other contexts, for disclosure of information that is only coincidentally before the grand jury (i.e, the name of a person of interest) is not prohibited by Rule 6(e) as long as it does not elucidate the inner workings of the grand jury. See In re Sealed Case, 192 F.3d at 1002 (discussed infra at 8).

The Court thus turns its attention to the relevant provisions of the Information, the plea agreement, and the DOJ press release. To begin with, the Information charging British Airways with two counts of conspiring to violate the Sherman Act, 15 U.S.C. § 1, does not identify any unindicted co-conspirators by name. It states only that: "individuals, not made defendants . . . participated as co-conspirators in the offense[s] charged . . . and performed acts and made statements in furtherance of it." Information ¶¶ 2, 14. The Information goes on to describe the conduct of the defendant and the "co-conspirators," but provides no indicia as to the identity of the co-conspirators. Movants contend that the Information implies that the co-conspirators are British Airways employees, but that reading makes little sense because a conspiracy consisting only of an employer and its employees does not violate Section 1 of the Sherman Act. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769-72 (1984)).

More significantly, the plea agreement, which the Court has reviewed, does not identify the movants as co-conspirators, or otherwise describe them as facing grand jury investigation or criminal liability. It provides only that the listed individuals are excluded from the cooperation and non-prosecution provisions of the agreement, without explaining the basis for the exclusion.

The provisions in which the movants are named state, in full, as follows:

12. The defendant and its subsidiaries will cooperate fully and truthfully with the United States in the prosecution of this case, the conduct of the current federal investigation of violations of federal antitrust and related criminal laws involving the sale of international air cargo and/or passenger transportation services, any other federal investigation resulting therefrom, and any litigation or other proceedings arising or resulting from any such investigation to which the United States is a party ("Federal Proceeding"). The ongoing, full, and truthful cooperation of the defendant and its subsidiaries shall include, but not be limited to:

(b) using its best efforts to secure the ongoing, full, and truthful cooperation, as defined in Paragraph 13 of this Plea Agreement, of the current and former directors, officers, and employees of the defendant or any of its subsidiaries as may be requested by the United States, but excluding [Name, Name, Name, Name, Name, Name, Name, Name, Name, and Name], including making these persons available in the United States and at other mutually agreed-upon locations, at the defendant's expense, for ...


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