This King & Spalding FOIA Suit Hinges on Whether a Government Source Is Person or Company
A federal judge in Washington has kept alive a lawsuit from King & Spalding that seeks records from federal enforcement and regulatory agencies about information the firm believes was at the heart of an investigation targeting a pharmaceutical client.
September 07, 2017 at 03:16 PM
14 minute read
A federal judge in Washington has kept alive a lawsuit from King & Spalding that seeks records from federal enforcement and regulatory agencies about information the firm believes was at the heart of an investigation targeting a pharmaceutical client.
The firm last year sued the U.S. Department of Justice and the U.S. Department of Health & Human Services for records about the government's investigation of the Massachusetts-based medical device company Abiomed Inc. The Justice Department investigated claims but did not bring any action against Abiomed over the marketing of the heart pump Impella 2.5, the company said in 2015.
Abiomed received some records from federal investigators, but not everything. At issue in the case now: 67 pages of records that, if released to the public, could reveal the identity of an unnamed source who provided information to the government. Justice Department lawyers argued in the Freedom of Information Act lawsuit that disclosure of certain records “would invade the privacy of third parties.”
U.S. District Judge Amit Mehta of the District of Columbia said he can't rule on the validity of keeping the disputed records secret without first learning the answer to a key question: Is the government's source an individual or a company? On Wednesday, he asked the lawyers in the case to give him an update by Sept. 22.
Mehta said that if the source is an “entity”—rather than an individual—certain materials can't be withheld “based solely on the company's interest in nondisclosure.” He pointed to a U.S. Supreme Court case that said a personal privacy exemption under the Freedom of Information Act does not apply to a corporation.
King & Spalding, the judge wrote, “believes one of Abiomed's competitors in the pharmaceutical industry, Maquet, may be the government's anonymous source.”
Mehta said in his ruling: “In this case, the applicability of both exemptions may turn on whether the source that supplied the government with information about Abiomed is an entity or an individual. [King & Spalding] has produced some evidence suggesting that the source may have been persons acting on behalf of one of Abiomed's rival companies, Maquet.”
In February, King & Spalding partner John Richter argued in court papers that the public interest in how the government makes prosecutorial decisions “easily outweighs the government's conclusory claim that disclosure would threaten vague privacy interests.”
“Moreover,” he added, “the particular public interest here—the possibility that the government improperly leaked information about a pending grand jury investigation and that a competitor working in conjunction with Wall Street investment analysts and hedge funds used the information to short Abiomed's stock—dwarfs the vague privacy interest identified by the government.”
Related Articles:
|- King & Spalding Takes Feds to Court Over Heart-Device Investigation Docs
- Texas Jury Clears Medical-Device Executive in Fraud Case
A federal judge in Washington has kept alive a lawsuit from
The firm last year sued the U.S. Department of Justice and the U.S. Department of Health & Human Services for records about the government's investigation of the Massachusetts-based medical device company Abiomed Inc. The Justice Department investigated claims but did not bring any action against Abiomed over the marketing of the heart pump Impella 2.5, the company said in 2015.
Abiomed received some records from federal investigators, but not everything. At issue in the case now: 67 pages of records that, if released to the public, could reveal the identity of an unnamed source who provided information to the government. Justice Department lawyers argued in the Freedom of Information Act lawsuit that disclosure of certain records “would invade the privacy of third parties.”
U.S. District Judge Amit Mehta of the District of Columbia said he can't rule on the validity of keeping the disputed records secret without first learning the answer to a key question: Is the government's source an individual or a company? On Wednesday, he asked the lawyers in the case to give him an update by Sept. 22.
Mehta said that if the source is an “entity”—rather than an individual—certain materials can't be withheld “based solely on the company's interest in nondisclosure.” He pointed to a U.S. Supreme Court case that said a personal privacy exemption under the Freedom of Information Act does not apply to a corporation.
Mehta said in his ruling: “In this case, the applicability of both exemptions may turn on whether the source that supplied the government with information about Abiomed is an entity or an individual. [
In February,
“Moreover,” he added, “the particular public interest here—the possibility that the government improperly leaked information about a pending grand jury investigation and that a competitor working in conjunction with Wall Street investment analysts and hedge funds used the information to short Abiomed's stock—dwarfs the vague privacy interest identified by the government.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllBig Law Communications, Media Attorneys Brace for Changes Under Trump
4 minute readHow Big Law Congressional Investigation Practices Will Stay Busy in 2025
5 minute readBig Law Practice Leaders 'Bullish' That Second Trump Presidency Will Be Good for Business
3 minute readFrom Guaranteed Comp to Ethics Screens, How Big Law Navigates the Revolving Door
7 minute readTrending Stories
- 1Judge Denies Sean Combs Third Bail Bid, Citing Community Safety
- 2Republican FTC Commissioner: 'The Time for Rulemaking by the Biden-Harris FTC Is Over'
- 3NY Appellate Panel Cites Student's Disciplinary History While Sending Negligence Claim Against School District to Trial
- 4A Meta DIG and Its Nvidia Implications
- 5Deception or Coercion? California Supreme Court Grants Review in Jailhouse Confession Case
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250