When these details appeared in the public record, Agri-Stats filed a motion to seal, seeking an order requiring the division to withdraw the complaint from the public docket. Agri-Stats argued that the cited materials were confidential and subject to protective orders in other courts. Agri-Stats further explained that, when complying with the CID, it had repeatedly requested that the division maintain the materials’ confidentiality. Agri-Stats expected its request to be honored based on the “Antitrust Division Manual,” which provides that the division’s policy is to try to avoid using competitively sensitive information in complaints, allow parties to seek a protective order, or voluntarily file the pleading under seal.
The court disagreed, denying Agri-Stats’ motion and allowing the complaint to remain public, notwithstanding the other courts’ protective orders.
The court based its decision to override other courts’ protective orders on the plain language of the Antitrust Civil Process Act. Subsection (c)(2) provides that a CID “supersedes any inconsistent order, rule, or provision of law (other than this chapter) preventing or restraining disclosure of such product of discovery to any person.” The court rejected Agri-Stats’s position that this language applied only to the investigation phase, holding instead that it extends to public proceedings. Under 15 U.S.C. section 1313(d)(1), investigative files may be used as a division attorney “determines to be required.” Further, FOIA’s disclosure exemptions for trade secrets, confidential business information, and information “compiled for law enforcement purposes) (see 5 U.S.C. § 552(b)(4), (7)) did not apply.
The court further held that, to the extent the division deviated from its own policy and practices in publicizing the complaint without prior notice, the division’s internal policy lacks the force of law and was insufficient to require sealing.
The court also questioned whether Agri-Stats was harmed by the disclosure of the information, some of which was already public, stale, or unlikely to cause competitive harm. Accordingly, the court held the there was insufficient basis to overcome the presumption of public access.
- Do not assume the division will honor unilateral confidentiality requests.
- As part of a government agency, as opposed to a private plaintiff, division staff may feel dutybound to uphold the public’s presumptive right of access. Expect the division to push back against overbroad confidentiality designations.
- Narrow confidentiality designations to those that could result in an articulable risk of harm.
- Discuss good faith confidentiality requests with the division as early as possible, and try to get an agreement that key information will remain out of the public realm pre-trial.