By Dan Christensen, FloridaBulldog.org
Florida’s top antitrust attorney is seeking to quash a Broward subpoena that seeks to force her to answer questions about the state’s review of Waste Management’s $525-million takeover of Sun Recycling.
Among the bigger questions: Why didn’t Florida Attorney General Pam Bondi’s office inform Broward cities about pricing and other protections for their recycling programs it secured from Waste Management before allowing the acquisition to go through? Why hasn’t it sought to enforce those protections?
Attorneys for Bergeron Environmental and Recycling subpoenaed Bondi key aide Lizabeth A. Brady last month to talk about her Dec. 3, 2015 “closing letter” to Waste Management attorneys notifying them that her office wouldn’t block the trash giant’s buyout of Sun and its parent, Southern Waste Systems (SWS).
Brady is chief of the attorney general’s Multistate Antitrust Enforcement Division. Her letter included seven “agreements or commitments” made by Waste Management in order to ensure state approval of the SWS deal. Chief among them: a pledge to allow the 17 Broward cities that contract for single-stream recycling services with Sun and its partner, Bergeron Environmental, to renew their contracts for five years at the same prices when they expire early next month.
Instead, Waste Management and Sun, since renamed LGL Recycling, are now demanding fee hikes of up to 100 percent before they will agree to renew.
Public disclosure of the letter, published last week by Florida Bulldog, is already prompting municipal pushback. On Monday, a lawyer for the City of Sunrise cited the Attorney General’s letter while formally notifying the Sun Bergeron joint venture that it was exercising its option to renew its contract through July 2, 2023.
“If Sun Bergeron’s written concurrence is not received on or before June 15, 2018 the City intends to pursue all available remedies. Please govern yourself accordingly,” wrote David S. Dee, of the Tallahassee law firm Gardner, Bist Bowden, Bush, Dee, LaVia & Wright.
Court papers filed May 22 by the Attorney General’s Office ask Broward Circuit Chief Judge Jack Tuter to prohibit Bergeron Environmental’s lawyers from asking Brady to explain under oath why she wrote the letter, and warn of dire consequences if she is required to testify.
“If the information gathered in the investigation and Ms. Brady’s and her staff’s communications about it are discoverable in this lawsuit, the state will be deterred from investigating potential antitrust violations and this would have a chilling effect on the entire process leading to the decision about whether to initiate an antitrust enforcement action,” wrote Senior Assistant Attorney General Charles J.F. Schreiber Jr.
“It would impair the ability of Ms. Brady and her staff to communicate candidly and may impair the willingness of respondents to provide information in future antitrust enforcement action investigations.”
Further, Schreiber wrote, “any time spent responding to depositions is time which Ms. Brady and her staff cannot spend performing their jobs.”
Bergeron Environmental, owned by Davie land baron Ron Bergeron, wants to question Brady as it presses its breach of contract and conspiracy civil suit against Waste Management, LGL Recycling and LGL officials Anthony Lomangino and Charles Gusmano.
The 100-page suit amended complaint was filed last November. It says that six years ago Bergeron and his partners in the Sun Bergeron joint recycling venture were responsible for breaking Waste Management’s “monopoly-like power in Broward” that had allowed it to charge “excessive waste disposal fees to local governmental customers.” But later, behind Bergeron’s back, his partners sold to Waste Management the recycling facilities and permits used by Sun Bergeron and its city customers, the suit says. LGL is countersuing.
Motion to quash
The attorney general’s motion to quash says that Brady believes Bergeron’s lawyers, including Mitchell Berger, want to depose her about the letter because Waste Management is defending itself by arguing that Bondi’s office approved the merger deal.
“Presumably, the reference to ‘approval’ means the letter,” the motion says.
The motion argues that Brady should not be required to submit to a deposition because the letter is based on her “deliberative and mental processes and conversations and communications with her staff about confidential information” collected during the antitrust investigation.
“Ms. Brady seeks a protective order because, although the letter may be admissible in a court of law, Ms. Brady should not be deposed about why the letter was issued, the basis for anything stated in the letter, or what was done as part of the investigation of the proposed acquisition,” Schreiber wrote. “Inquiry about why the letter was issued or the basis for anything stated in the letter would necessarily delve into her mental and deliberative processes.”
The Attorney General’s Office filed a censored copy of the letter with its motion, withholding details of its understanding with Waste Management. But a copy of the complete letter says the state’s review was done “to determine if it raises any competitive concerns in Florida” and more specifically “in Broward County for waste disposal and recycling and the operation of the Sun Bergeron Joint Venture.”
The U.S. Justice Department and the Federal Trade Commission also investigated the acquisition and took no action, but have declined further comment.