Judge ‘leaning toward’ unsealing antitrust records, orders Waste Management to explain why they should remain secret

By Dan Christensen, FloridaBulldog.org

A Broward judge late Thursday gave Waste Management 10 days to explain in writing why internal company documents about federal and state antitrust reviews of a 2016 merger should be kept secret.

“At this time, the court is considering whether the public, i.e. the citizens, the media, and city governments of Broward County, have a right to be present at court hearings and see materials the parties have withheld from the public…relating to these antitrust investigations,” wrote Chief Judge Jack Tuter.

“This court has grave concerns of excluding the media and Broward County citizens from court proceedings in a case where things common to each Broward citizen and its cities have a compelling interest in – competitive recycling and refuse collection rates.”

On the other hand, Tuter apparently has no such concerns about blocking the media from attending the depositions of public officials. At the end of a hearing on Tuesday, he announced he would not allow this reporter to attend related depositions of County Administrator Bertha Henry or certain city officials.

Still, at Tuesday’s hearing, Tuter also declared that he was “leaning toward unsealing all these records” about the antitrust reviews for “municipalities and the people of Broward County” to see because “it directly affects how much they pay” for trash disposal. The judge’s remarks followed arguments in favor of unsealing by Florida Bulldog attorney Chris Fertig

Waste Management has fought long and hard to keep those antitrust review records, and other records, secret. At Tuesday’s hearing, Bergeron attorney Mitchell Berger said that out of some 99,000 documents Waste Management has produced, only about 300 were not marked confidential.

Opponent Bergeron Environmental And Recycling has also fought to obtain Tuter’s approval to provide records it has obtained under the confidentiality arrangement to both the Justice Department and the state Attorney General. Why is not known, but it would seem as if Bergeron believes those records contain significant information those government agencies were not given before they signed off on the merger that allowed it to regain monopolistic control of Broward’s recycling stream.

$126 million civil case

Bergeron Environmental’s attorneys have seen the confidential records, but obtained them only after committing to keep them secret in advance of trial. The $126 million civil case brought by Bergeron alleges Waste Management misled the Justice Department and Florida Attorney General antitrust regulators to win approval of its $525 million buyout of assets of Southern Waste Systems (SWS) as part of a conspiracy to ruin its business and steal its customers.

Before the buyout, Bergeron was a 50-50 partner with SWS’s recycling division, Sun Recycling, in Sun Bergeron, a joint venture that from 2013-2018 processed tons and tons of recycled trash for 17 Broward cities. Sun Recycling is now called LGL Recycling and, with Waste Management, is also a defendant.

Previously, Tuter has written that the “crux of this case centers on the legitimacy” of the Waste Management’s buyout of SWS

At a hearing on Tuesday, Judge Tuter refused Waste Management’s request to exclude a Florida Bulldog reporter and the public from being present when many company documents, previously allowed to be kept confidential by court order, were to be displayed in open court.

The hearing had been set to allow Waste Management to attempt to rebut the judge’s November finding that Bergeron Environmental had provided enough evidence to establish that Waste Management’s efforts to conceal the records were bogus, and that it may have sought legal advice to perpetrate a crime or fraud. If true, Waste Management would not be able to claim the records should be shielded from disclosure by the attorney-client privilege.

But the hearing quickly ground to a halt over questions of confidentiality vs. a free press.

In Tuter’s order last night, he acknowledged that “a significant part of this litigation has revolved around antitrust issues pertaining to the Department of Justice and Florida Attorney General’s respective investigations” and that the court must determine whether shielded documents and communications about them should now “be made available to the public.”

In addition to ordering Waste Management to tell him why the material should not be made public, Tuter also instructed Bergeron Environmental to explain within 10 days why the existing confidentiality order should be vacated.