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John Doe Co. v. Consumer Financial Protection Bureau

United States District Court, District of Columbia

October 15, 2015

JOHN DOE COMPANY 1, et al., Plaintiffs,
v.
CONSUMER FINANCIAL PROTECTION BUREAU, Defendant.

Original Opinion Filed: September 21, 2015

AMENDED MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Before the Court is Plaintiffs' motion to Seal Case (Dkt. 1). For the reasons stated below, the motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiffs are businesses and an individual who provide services related to consumer credit counseling and are currently under investigation by Defendant, the Consumer Financial Protection Bureau ("CFPB"). Dkt. 3 ¶¶ 4-9, 23. This litigation centers on Plaintiffs' relationship with ___, a California-licensed attorney. Plaintiffs allege that ___ "has been counsel to Plaintiffs since 2012 and was intimately involved in providing legal representation to all Plaintiffs." Id. ¶ 13. They also allege that ___ is the sole owner and operator of ___, which is Plaintiffs' "longtime business partner." Id. ¶ 16.

On December 29, 2015, the CFPB issued a "Civil Investigative Demand, " or "CID, " to ___. A CID is "a form of administrative subpoena that may direct the recipient to produce documents or other materials or to provide information or oral testimony." Morgan Drexen, Inc. v. CFPB, 979 F.Supp.2d 104, 107 (D.D.C. 2013). It subsequently issued a CID to one of the Plaintiff entities on January 5, 2015, and, on June 16, 2015, it advised Plaintiffs that it was "considering enforcement action against" each of them, as well as against at least one entity that is not a party here. Id. ¶¶ 19, 23. According to Plaintiffs, they learned on July 10, 2015, that ___ had agreed "to voluntarily provide testimony" to the CFPB at a July 23, 2015, "voluntary investigational hearing"-a proceeding that the parties liken to a deposition. Id. ¶ 25. Plaintiffs' counsel subsequently requested permission from an attorney at the CFPB to attend the voluntary investigational hearing, arguing that their presence was necessary to "protect the lawful privileges held by their clients . . . and protect against inadvertent waiver of those privileges." Id. ¶ 26. Counsel for the CFPB denied the request. Plaintiffs then filed a petition with the CFPB seeking the same relief. Id. ¶ 31. That petition was denied on July 20, 2015. Id. ¶ 32.

Plaintiffs filed this lawsuit on July 22, 2015. Their complaint alleges that the CFPB's decision not to allow Plaintiffs' counsel to attend the voluntary investigational hearing must be set aside under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Dkt. 3 ¶¶ 49-61. That same day, Plaintiffs filed an application for a temporary restraining order ("TRO") seeking an injunction barring the CFPB from "proceeding with its planned voluntary investigational hearing, of Plaintiffs' attorney . .. without Plaintiffs' being present to assert and protect their valid attorney-client privilege." Dkt. 4 at 12.

Accompanying their complaint and TRO application, Plaintiffs filed a motion to seal the case. Dkt. 1. They argue that sealing is appropriate because CFPB investigations are normally nonpublic and sealing the case will "protect the Plaintiffs from the serious harm that would result if [their] identity as the subjects] of an ongoing investigation were to be disclosed to the public at large." Id. at 1. The CFPB opposes the motion, arguing that Plaintiffs have not overcome the '"strong presumption in favor of public access to judicial proceedings.'" Dkt. 7 at 1 (quoting EEOC v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). On July 22, 2015- the day the case and the motion to seal were filed-Acting Chief Judge Emmet G. Sullivan ordered the case temporarily sealed "without prejudice to further consideration by the United States District Judge to whom this case is randomly assigned." Dkt. 2. The case was randomly assigned to Judge Randolph D. Moss later that day.

The Court held an evidentiary hearing on the TRO application on July 23, 2015. Events at the hearing largely mooted the case, and, on August 6, 2015, Plaintiffs filed a notice of voluntary dismissal without prejudice. Dkt. 13. All that remains is for the Court to determine whether this matter should remain under seal.

II. LEGAL STANDARDS

When determining whether court records should be sealed, courts in this Circuit apply the six-factor test set out in United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980):

(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the document prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purpose for which the documents were introduced.

TIG Ins. Co. v. Firemen's Ins. Co. of Washington, D.C, 718 F.Supp.2d 90, 95 (D.D.C. 2010) (citation omitted). Whether judicial records should be made public is a matter "best left to the sound discretion of the trial court, " and the court's discretion is "to be exercised in light of the relevant facts and ...


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