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Chiquita Brands Int'l, Inc. v. United States Securities & Exchange Commission

United States District Court, D. Columbia

November 19, 2013

CHIQUITA BRANDS INTERNATIONAL, INC., Plaintiff,
v.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Defendant. NATIONAL SECURITY ARCHIVE, Intervenor

Decided: November 18, 2013.

For CHIQUITA BRANDS INTERNATIONAL INC, Plaintiff: Ashley M. Sprague, Jaclyn E. Martinez Resly, James McMackin Garland, Mark H. Lynch, LEAD ATTORNEYS, COVINGTON & BURLING LLP, Washington, DC.

For U.S. SECURITIES AND EXCHANGE COMMISSION, Defendant: Sarah E. Hancur, LEAD ATTORNEY, U.S. SECURITITES AND EXCHANGE COMMISION, Office of the General Counsel, Washington, DC.

For NATIONAL SECURITY ARCHIVE, Intervenor: Jeffrey S. Gutman, LEAD ATTORNEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington, DC.

Page 2

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge.

[Dkts. ##14, 15, 18]

Plaintiff Chiquita Brands International Inc. (" Chiquita" ) filed this reverse-Freedom of Information Act (" FOIA" ) action on April 4, 2013. See Compl. [Dkt. #1]. Chiquita seeks to prevent the United States Securities and Exchange Commission (" SEC" ) from releasing certain documents in response to a FOIA request by intervenor National Security Archive (" Archive" ). Upon review of the pleadings, the underlying record, and relevant law, the Court concludes that the SEC's denial of Chiquita's request for confidential treatment was reasonable and did not violate the Administrative Procedure Act (" APA" ). Accordingly, the Court GRANTS the SEC's Motion for Summary Judgment [Dkt. #15] and DENIES Chiquita's Motion for Summary Judgment [Dkt. #18].

BACKGROUND

In November 2008, the Archive submitted two FOIA requests to the SEC for certain documents Chiquita had produced to the SEC during the course of two enforcement investigations (" Chiquita Documents" ). App. 8, 21, 107, 130, 136, 316. At the time of production, Chiquita submitted requests for confidential treatment pursuant to SEC regulations. See 17 C.F.R. § 200.83 et seq. ; App. 8, 315-16. Under these regulations, an entity producing documents to the SEC in the course of a law enforcement matter " can request that the information not be disclosed . . . for reasons of personal privacy or business confidentiality, or for any other reason permitted by federal law." 17 C.F.R. § 200.83(a), (c). On March 14, 2012, the SEC informed Chiquita in writing that the

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Chiquita Documents were responsive to the Archive's pending FOIA requests. App. 8. Chiquita subsequently submitted a written substantiation of its confidential treatment request pursuant to the SEC's FOIA regulations. App. 21-30.

The SEC's FOIA regulations establish the following process for consideration of confidential treatment requests. After the requestor of confidential treatment submits a written substantiation of the request, the SEC Office of FOIA Services issues a preliminary decision. If the requestor disagrees with the preliminary decision, the requestor may provide supplemental arguments. The Office of FOIA Services then issues a final decision. If the requestor disagrees with the final decision of the Office of FOIA Services, the requestor may appeal the decision to the SEC's Office of General Counsel (" OGC" ). The SEC has delegated OGC the authority to make FOIA appeal determinations on behalf of the agency. Finally, a requestor may seek judicial review under the APA of any adverse decision of OGC. 17 C.F.R. § § 200.83(d), (e).

Chiquita submitted a written substantiation of its request for confidential treatment on June 26, 2012. App. 21. Chiquita asserted that the SEC should withhold certain of the Chiquita Documents related to payments Chiquita made to terrorist organizations in Columbia (" Chiquita Payment Documents" ) from disclosure under FOIA Exemption 7(B). App. 23-25. This exemption protects " records or information compiled for law enforcement purposes" to the extent that production " would deprive a person of a right to a fair trial or an impartial adjudication." 5 U.S.C. § 552(b)(7)(B). Specifically, Chiquita argued that disclosure of the Chiquita Payment Documents would interfere with the fairness of multi-district litigation proceeding in the U.S. District Court for the Southern District of Florida (" Florida Litigation" ).[1]See In re: Chiquita Brands Int'l Inc., Alien Tort Statute & S'holders Derivative Litig., No. 0:08-md-01916-KAM (S.D. Fla.). Chiquita additionally argued that, " [t]o ensure consistency and [to prevent] the inadvertent production of documents that are exempt under FOIA, . . . the Commission ...


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