As most litigators know, litigation comes with a presumption of public access to judicial records. But as a practical matter, the parties can normally prevent public disclosure of sensitive information by seeking protective orders, which are routinely entered by courts. As a result, defendants in antitrust cases usually expect that, barring trial, competitively sensitive discovery information about their market share, business operations, and customers will remain confidential.
Maintaining confidentiality may be more difficult, however, when the plaintiff is the Department of Justice Antitrust Division (referred to hereafter as “the division”). Defendants should not assume that the government will be bound by protective orders to the same degree as private plaintiffs. As the recent decision in United States v. Agri-Stats shows, even protective orders in private litigation may not prevent the division from disclosing information as it sees fit in the public interest.
In September 2023, the division filed a civil complaint against Agri-Stats, Inc. The complaint alleges that Agri-Stats violated Sherman Act Section 1 by facilitating the exchange of competitively sensitive information among processors of chicken, pork, and turkey. The complaint details Agri-Stats’s proprietary business model and provides unredacted charts and figures from Agri-Stats internal reports, as well as its customers’ internal documents. Many of these materials were subject to protective orders in related private suits against Agri-Stats brought by purchasers of these products.
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.
