United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
December 2014, the Financial Stability Oversight Council
(FSOC) determined that insurance company MetLife, Inc. was a
nonbank financial company whose financial distress could pose
a threat to the financial stability of the United States.
That determination placed MetLife under the supervision of
the Board of Governors of the Federal Reserve and was the
subject of litigation in this Court. This opinion does not
address that litigation, which has since been settled.
Rather, it addresses a motion by intervenor Better Markets,
Inc. to unseal corporate and government documents filed with
this Court by MetLife and FSOC as part of those proceedings.
last this matter was before this Court, it denied Better
Markets' motion to unseal the documents because this
Court read the privacy protections of the Dodd-Frank statute
to evidence a binding congressional intent to keep such
documents confidential. On appeal, the D.C. Circuit found
that the intent of Congress, while weighing heavily in favor
of confidentiality, was not categorical. It reversed and
remanded, directing the use of the six-factor analysis from
United States v. Hubbard to determine whether the
relevant documents should remain under seal. Accordingly,
this opinion addresses that analysis and concludes that the
Hubbard factors do not support release of those
documents that remain under seal, either in whole or in part.
Better Markets' motion will be denied.
Litigation After the MetLife Determination by FSOC
Dodd-Frank Wall Street Reform and Consumer Protection Act of
2010, Pub. L. No. 111-203, 124 Stat. 1376 (2010)
(“Dodd-Frank”), was adopted to strengthen
oversight of banks and other financial institutions after the
financial crisis of 2008. One of its reforms was to create
the Federal Stability Oversight Council, which was given the
authority to determine that financial distress at a nonbank
financial company could pose a threat to the financial
stability of the United States. See 12 U.S.C. §
5323(a). Such companies, otherwise referred to as
systemically important financial institutions (SIFIs), or
“too big to fail, ” are subject to supervision by
the Board of Governors of the Federal Reserve System. To help
it make such determinations, Congress authorized FSOC to
compel nonbank financial companies to submit extensive
operational and financial data. Id. §
5322(d)(3)(A). However, Congress also required FSOC to
“maintain the confidentiality of any data, information,
and reports, ” submitted by such companies.
Id. § 5322(d)(5)(A).
notified MetLife in July 2013 that it was considering the
insurance company for determination as a SIFI. MetLife then
voluntarily submitted over 21, 000 pages of documents to FSOC
in an attempt to persuade FSOC to the contrary. Nonetheless,
in December 2014, FSOC determined that financial distress at
MetLife could threaten the financial stability of the United
States. See Basis for the Financial Stability Oversight
Council's Final Determination Regarding MetLife,
Inc., 2 (2014),
MetLife challenged that determination in this Court.
summary judgment briefing, FSOC and MetLife filed multiple
briefs and documents with the Court including a 16-volume, 3,
000-page joint appendix and 32 supervisory documents from
regulators in the States in which MetLife does business,
which altogether form the relevant excerpts from FSOC's
administrative record for this case. Due to the large amounts
of confidential business information in those documents, the
Court authorized the parties to file them under seal and to
redact confidential information from documents placed on the
public record. See, e.g., 5/8/2015 Minute Order
(granting leave to file briefs under seal); 9/3/2015 Minute
Order (granting leave to file the joint appendix under
case progressed, MetLife and FSOC (without prompting from the
Court) continued to review the sealed documents and release
to the public those portions whose information was no longer
confidential. Thus, on September 30, 2015, the parties filed
redacted copies of their final briefs on the public docket.
See Notice of Filing Redacted Doc. [Dkt. 84]; Notice
of Filing Redacted Doc. [Dkt. 86]. They also filed redacted
copies of Volumes 1, 4, 5, and 12-15 of the joint appendix,
see Notice of Filing Redacted Doc. [Dkt. 85],
including an extensive line-by-line redaction of FSOC's
Explanation of the Basis of Final Determination
(Final Determination), see [Dkt. 85-2 and 3]. These
redacted copies were filed on a timely basis for various
amici curiae, including Better Markets, to review
before filing their motions on the merits of the
determination. On January 27, 2016, MetLife filed updated
copies of its briefs and Volumes 5 and 13 of the joint
appendix, with fewer redactions than before. See
Notice of Filing Public Versions of Brs. And J.A. [Dkt.
100]. On February 5, 2016, FSOC followed suit
with its own briefs. See Defs.' Resp. to
MetLife's Suppl. Points and Authorities [Dkt. 102].
February 10, 2016, the Court held a public hearing-with
overflow courtroom space to allow full public attendance-on
the parties' cross-motions for summary judgment. The
transcript of that hearing was made available to the public.
See Tr. of Mar. 31, 2016 Mots. Hr'g [Dkt. 108].
March 30, 2016, this Court issued its opinion and rescinded
FSOC's Final Determination. See MetLife, Inc. v.
FSOC, 177 F.Supp.3d 219 (D.D.C. 2016) (MetLife
I). That opinion is unredacted and available to the
public. The parties subsequently settled the matter while the
case was pending on appeal; this Court's final order is
available to the public. See Order Den. Joint Mot.
to Vacate [Dkt. 129].
The Motions to Unseal
to the summary judgment proceedings, Better Markets moved to
intervene and to unseal the record, including the briefs and
joint appendix. See Better Mkts. Mot. to Intervene
[Dkt. 89]. This Court granted the motion to intervene.
However, it read the privacy protections of Dodd-Frank to
evidence a binding congressional intent to keep the materials
submitted to FSOC confidential and so denied the motion to
unseal. See MetLife, Inc. v. FSOC, No. 15-0045, 2016
WL 3024015 at *6 (D.D.C. May 25, 2016) (MetLife II).
Circuit Court for the District of Columbia Circuit reversed,
finding that this Court had read the requirements of
Dodd-Frank too broadly and needed to perform the six-factor
analysis adopted in United States v. Hubbard, 650
F.2d 293 (D.C. Cir. 1980). See MetLife, Inc. v.
FSOC, 865 F.3d 661, 675 (D.C. Cir. 2017) (MetLife
III). The D.C. Circuit remanded for such an analysis. On
December 20, 2017, Better Markets filed the instant motion to
unseal the remaining documents or at least compel FSOC and
MetLife to file detailed explanations why each document or
redaction must remain sealed. See Better Mkts. Mot.
to Unseal (B. Mkts. Mot.) [Dkt. 121].
on January 31, 2018, MetLife and FSOC filed updated public
versions of Volumes 2, 3, 6, 7, 10, and 13 of the joint
appendix, again with fewer redactions. See Notice of
Filing Redacted Document [Dkt. 123]. Thus, at the time of
this opinion, approximately 2, 300 pages (a little over half)
of the administrative record remain wholly under seal and
another 1, 400 pages (including FSOC's Final
Determination) contain limited-to-no redactions.
Additionally, the Court's opinion and substantially all
of the parties' briefs are unredacted. FSOC states that
“[t]he only portions of the record that remain under
seal in this case are those that either (1) MetLife has
deemed to contain confidential business information or (2)
contain supervisory information submitted to FSOC in
confidence by state insurance regulators.” FSOC
Opp'n to Mot. to Unseal (FSOC Opp'n) [Dkt. 125] at 5.
It is those documents that are now at issue.
in this Circuit apply the six-factor analysis articulated in
United States v. Hubbard when balancing one or more
parties' interests in keeping a document sealed against
the public's interest in disclosure. Those six factors
(1) the need for public access to the documents at issue; (2)
the extent of previous public access to the documents; (3)
the fact that someone has objected to disclosure, and the
identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice
to those opposing disclosure; and (6) the ...