Case Detail

FOIA Project Annotation: Judge Rudolph Contreras has ruled that the SEC properly responded to a FOIA request from Energy Policy Advocates for records concerning communications between then-SEC Senior Counsel for Climate ESG Kristina Wyatt and two outside organizations â€" Persefoni AI, Inc, a climate management and accounting platform company, and Environmental Resources Management (ERM) Group, a sustainability consultancy firm. The agency located 9,600 potentially responsive records. By the time Contreras ruled in the case, EPA objected only to a 96-page PDF being withheld under Exemption 4 (commercial and confidential) and Exemption 5 (privileges). Although the EPA did not contest the adequacy of the agency's search, Contreras reviewed it anyway, finding the agency's search was adequate. EPA did not contend that the information withheld under Exemption 4 was commercial, but did challenge whether it qualified as confidential. Contreras found that it did. He indicated that "courts [in this Circuit] have taken the position that privately held information is generally confidential absent an express statement by the agency that it would not keep information private, or a clear implication to that effect (for example, a history of releasing the information at issue).'" He added that "therefore, because ERM and Persefoni treated the information as private and expected that the SEC would not disclose it, the Court holds that these withholdings should be considered confidential." Contreras also found that the material withheld under Exemption 4 qualified under the foreseeable harm standard. He noted that "the SEC adequately explains the link between the withheld pricing and project information and the foreseeable harm that it would cause â€" giving an advantage to competitors by allowing them the opportunity to use it in the bidding process and to lure away ERM's staff." Contreras also upheld the SEC's Exemption 5 claims, including the fact that they met the foreseeable harm standard. Here, he pointed out that "the SEC's explanation of foreseeable harm is not 'generalized' nor 'conclusory' because it contains focused and concrete explanations that have been found adequate in this Circuit." He noted that "the SEC's explains how the disclosure of the withheld records including proposed changes and discussions about a proposed rulemaking would lead its staff to be less candid in future internal discussions, adversely affecting the agency's rulemakings."
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2023-02-24	1	COMPLAINT against SECURITIES AND EXCHANGE COMMISSION ( Filing fee $ 402 receipt number ADCDC-9881436) filed by ENERGY POLICY ADVOCATES. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Proposed to AG, USAO, and Agency)(Hardin, Matthew) (Entered: 02/24/2023)
2023-02-24		Case Assigned to Judge Rudolph Contreras. (zljn) (Entered: 02/24/2023)
2023-02-24	2	SUMMONS (3) Issued Electronically as to SECURITIES AND EXCHANGE COMMISSION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zljn) (Entered: 02/24/2023)
2023-02-25	3	NOTICE of Appearance by Christopher Cochran Horner on behalf of ENERGY POLICY ADVOCATES (Horner, Christopher) (Entered: 02/25/2023)
2023-03-30	4	NOTICE of Appearance by Mary Alexandra Verdi on behalf of SECURITIES AND EXCHANGE COMMISSION (Verdi, Mary) (Entered: 03/30/2023)
2023-03-30	5	ANSWER to Complaint by SECURITIES AND EXCHANGE COMMISSION.(Verdi, Mary) (Entered: 03/30/2023)
2023-03-30		MINUTE ORDER: It is hereby ORDERED that the parties shall meet and confer and submit a proposed briefing schedule on or before April 13, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 3/30/23. (lcrc2) (Entered: 03/30/2023)
2023-04-13	6	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 04/13/2023)
2023-04-14		MINUTE ORDER: Upon consideration of 6 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit another joint status report on or before May 10, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 4/14/23. (lcrc2) (Entered: 04/14/2023)
2023-05-10	7	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 05/10/2023)
2023-05-11		MINUTE ORDER: Upon consideration of 7 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit another joint status report on or before June 9, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 5/11/23. (lcrc2) (Entered: 05/11/2023)
2023-06-09	8	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 06/09/2023)
2023-06-12		MINUTE ORDER: Upon consideration of 8 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit another Joint Status Report on or before July 12, 2023. It is FURTHER ORDERED that Defendant shall process the emails before the multi-page attachments, and shall process the emails at a rate of 500 pages per month with the first batch due on or before July 12, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 6/12/23. (lcrc2) (Entered: 06/12/2023)
2023-07-12	9	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 07/12/2023)
2023-07-12		MINUTE ORDER: Upon consideration of 9 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit another joint status report on or before August 11, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 7/12/23. (lcrc2) (Entered: 07/12/2023)
2023-08-11	10	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 08/11/2023)
2023-08-14		MINUTE ORDER: Upon consideration of 10 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit another joint status report on or before September 12, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 8/14/23. (lcrc2) (Entered: 08/14/2023)
2023-09-12	11	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 09/12/2023)
2023-09-12		MINUTE ORDER: Upon consideration of 11 the parties' Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report on or before October 12, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 09/12/2023. (lcrc2) (Entered: 09/12/2023)
2023-10-12	12	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 10/12/2023)
2023-10-12		MINUTE ORDER: Upon consideration of 12 the parties' Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report on or before November 13, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 10/12/2023. (lcrc2) (Entered: 10/12/2023)
2023-11-09	13	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 11/09/2023)
2023-11-09		MINUTE ORDER: Upon consideration of 13 the parties' Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report on or before December 11, 2023. SO ORDERED. Signed by Judge Rudolph Contreras on 11/09/2023. (lcrc2) (Entered: 11/09/2023)
2023-12-11	14	Joint STATUS REPORT by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 12/11/2023)
2023-12-12		MINUTE ORDER: Upon consideration of 14 the parties' joint status report, it is hereby ORDERED that the following schedule shall govern further proceedings: The SEC's motion for summary judgment shall be filed on or before March 8, 2024; Plaintiff's response and cross-motion, if any, shall be filed on or before April 5, 2024; The SEC's response, if any, and reply shall be filed on or before May 3, 2024; and Plaintiff's reply in support of its cross motion, if any, shall be filed on or before May 31, 2024. SO ORDERED. Signed by Judge Rudolph Contreras on 12/12/2023. (lcrc2) (Entered: 12/12/2023)
2024-03-08	15	MOTION for Summary Judgment by SECURITIES AND EXCHANGE COMMISSION. (Attachments: # 1 Statement of Facts, # 2 Declaration of Lizzette Katilius, # 3 Declaration of Elizabeth Murphy, # 4 Declaration of Ann Chilton, # 5 Declaration of Peter Bartolino, # 6 Declaration of Mark Tallarico, # 7 Exhibit 1 (Vaughn Index), # 8 Memorandum in Support, # 9 Text of Proposed Order)(Verdi, Mary) (Entered: 03/08/2024)
2024-04-05	16	Consent MOTION for Extension of Time to File Opposition to Motion for summary Judgment by ENERGY POLICY ADVOCATES. (Attachments: # 1 Proposed Order)(Hardin, Matthew) (Entered: 04/05/2024)
2024-04-05		MINUTE ORDER granting 16 Consent Motion for Extension of Time. It is hereby ORDERED that Plaintiff shall file its opposition to Defendant's motion for summary judgment on or before April 6, 2024. SO ORDERED. Signed by Judge Rudolph Contreras on 04/05/2024. (lcrc2) (Entered: 04/05/2024)
2024-04-06	17	RESPONSE re 15 MOTION for Summary Judgment filed by ENERGY POLICY ADVOCATES. (Attachments: # 1 Statement of Facts)(Hardin, Matthew) (Entered: 04/06/2024)
2024-05-03	18	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by SECURITIES AND EXCHANGE COMMISSION. (Attachments: # 1 Declaration (Supplemental) of Ann Chilton, # 2 Declaration (Supplemental) of Mark Tallarico)(Verdi, Mary) (Entered: 05/03/2024)
2024-10-17	19	ORDER granting 15 Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 10/17/2024. (lcrc2) (Entered: 10/17/2024)
2024-10-17	20	MEMORANDUM OPINION granting 15 Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 10/17/2024. (lcrc2) (Entered: 10/17/2024)
2024-10-31	21	MOTION for Attorney Fees and costs by ENERGY POLICY ADVOCATES. (Attachments: # 1 Declaration of Christopher Horner, # 2 Declaration of Matthew Hardin)(Hardin, Matthew) (Entered: 10/31/2024)
2024-11-12	22	Consent MOTION for Extension of Time to File Response/Reply as to 21 MOTION for Attorney Fees and costs by SECURITIES AND EXCHANGE COMMISSION. (Attachments: # 1 Text of Proposed Order)(Verdi, Mary) (Entered: 11/12/2024)
2024-11-12		MINUTE ORDER granting 22 Defendant's Motion for Extension of Time to File Response/Reply to 21 Plaintiff's Motion for Attorney's Fees: It is hereby ORDERED that Defendant shall file either a stipulation of dismissal or its response to Plaintiff's motion for attorney's fees on or before December 5, 2024. SO ORDERED. Signed by Judge Rudolph Contreras on 11/12/2024. (lcrc2) (Entered: 11/12/2024)
2024-11-14	23	STIPULATION of Dismissal by SECURITIES AND EXCHANGE COMMISSION. (Verdi, Mary) (Entered: 11/14/2024)
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