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Lieff, Cabraser, Heimann & Bernstein, LLP v. United States Dep't of Justice

March 24, 2010

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ANTITRUST DIVISION, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Court

MEMORANDUM OPINION AND ORDER

Lieff, Cabraser, Heimann & Bernstein, LLP ("Lieff") filed this action against the U.S. Department of Justice, Antitrust Division ("Division" or "Agency") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking records related to requests for leniency under the Division's investigation of anticompetitive practices in the sale of municipal derivatives products. Before the Court is the Agency's motion for summary judgment [#9], in which the Agency argues that it has complied with Lieff's FOIA request to the extent required by law. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion should be granted in part and denied in part.

I. BACKGROUND

A. The Freedom of Information Act

FOIA generally allows any person to obtain access to federal agency records, subject to certain specified exceptions. 5 U.S.C. § 552(a), (b). Congress enacted FOIA to "set[] forth a policy of broad disclosure of Government documents in order to ensure 'an informed citizenry, vital to the functioning of a democratic society.'" Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)) (alteration in original). Although Congress acknowledged that information requests may impose burdens upon government agencies, it decided that the "ultimate policy of open government should take precedence." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted).

In response to a FOIA request, an agency must "conduct[] a search reasonably calculated to uncover all relevant documents." Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (internal quotation marks omitted). If a requester's suit challenges an agency's invocation of exemptions to its disclosure obligation, the agency must justify its reliance on those exemptions through the submission to the court of a so-called "Vaughn index," affidavits or declarations, or both, containing a detailed description of the information withheld. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009); see also Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir 1973).*fn1

B. Factual Background

Municipalities sometimes raise funds by issuing bonds. In some cases, those municipalities invest the money generated by bonds in derivative products, which produce income over time. The Division instigated an investigation into the industry that sells these municipal derivative products because it suspected that its participants were engaging in illegal anticompetitive behavior.

Bank of America ("Bank"), which provides derivative products to municipalities, publicly announced in February 2007 that it was an applicant to the Division's Corporate Leniency Program in connection with the investigation of the municipal derivatives industry. This program permits a corporation that has taken part in antitrust violations to receive lenient treatment from the Division in exchange for assisting with an investigation of wrongdoing in that corporation's industry.*fn2 The Bank's announcement stated only that it would likely participate in the Leniency Program; it did not make public any details about the information the Bank provided to the Division. In keeping with its practice of protecting the confidentiality of participants in the Leniency Program, the Division itself has likewise not made those details public.

On August 5, 2008, Lieff submitted a FOIA request to the Division seeking documents related to requests for leniency, including such requests by the Bank, connected to the Division's investigation of the sale of municipal derivative products.*fn3 Three days later, the Division responded with a letter stating that it could "neither confirm nor deny the existence of any records responsive to [Lieff's] request." Def.'s Mot. for Summ. J., Ex. F at 1.

On January 28, 2009, Lieff filed this action to obtain the records it had requested.*fn4 About a month later, Lieff and the Division came to an agreement narrowing the scope of Lieff's request. Lieff now seeks:

(1) The Corporate Conditional Leniency Letter, including any attachments or enclosures, or any other document exchanged between [the Bank] and [the Agency] memorializing any agreement between [the Bank] and [the Agency] in connection with [the Agency]'s investigation into anticompetitive practices in the sale of municipal derivatives, including drafts of such documents, as well as any correspondence on or before December 31, 2008 between [the Bank] and [the Agency], that requests, responds to a request for, or concerns such a request for or response to such a request for, leniency or a determination on whether the government will grant or deny leniency under the Antitrust Divisions' Corporate Leniency Policy.

(2) Correspondence on or before August 6, 2008 between any entity, other than [the Bank], and [the Agency] in connection with [the Agency]'s investigation into anticompetitive practices in the sale of municipal derivatives, that requests, or responds to a request for, leniency or a determination on whether the government will grant or deny leniency under the Antitrust Division's ...


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