By Dan Christensen, FloridaBulldog.org
For the second time in a week, attorneys for Waste Management on Tuesday halted a legal proceeding after objecting to the courtroom presence of a Florida Bulldog reporter.
In November, Broward Chief Judge Jack Tuter ruled that the Davie recycling company that’s suing Waste Management for $126 million in damages – Bergeron Environmental and Recycling – had provided sufficient evidence to establish that Waste Management’s efforts to conceal certain corporate records were phony, and that the trash giant may have sought legal advice to perpetrate a crime or fraud.
Tuesday afternoon’s hearing before Tuter was to afford Waste Management the chance to try to rebut that finding, which if it sticks would shoot down Waste Management’s claim that those records should be shielded from disclosure by the attorney-client privilege.
But things unraveled shortly after the hearing began when Miami attorney Frederick Fein, one of approximately 10 Waste Management lawyers from multiple law firms, asked the court to clear the courtroom of “all non-parties” to prevent leakage of any information contained in confidential documents that were going to be discussed.
“Who do you want to exclude, the Bulldog?” said Tuter.
“Yes,” said Fein.
‘We want to be present’
But Fort Lauderdale attorney Chris Fertig, representing Florida Bulldog, told the judge that the hearing should be an “open proceeding” for the public and the media. “We want to be present,” he said. “We want to be able to observe what goes on in this judicial proceeding.”
Tuter appeared torn among the competing interests of Waste Management’s desire for confidentiality; Bergeron’s acquiescing for confidentiality, and a free press.
“I am trying to balance all three interests,” Tuter said.
In the end, the hearing was called off. Another hearing was set for Wednesday when the judge will review certain Waste Management documents in private to see if they should be opened up for public inspection. He also ordered both sides, and Florida Bulldog, to file additional paperwork explaining their positions.
The civil case file reflects that thousands of documents in the lawsuit remain confidential. In court Tuesday, Bergeron’s Fort Lauderdale attorney, Mitchell Berger, said that out of some 99,000 documents Waste Management has produced for the defense to inspect only about 300 were not marked confidential – meaning about 98,700 documents regarding the company’s dealing with local governments and federal and state antitrust regulators remain hidden from the public.
Big corporations like Waste Management typically impose confidentiality on litigants as the price for obtaining discovery of internal company records without a fight that could drag on for months, or even years. Such an arrangement appears to have been in place in this case since shortly after it began in 2016.
Fertig, however, pointed out that judicial rules do not allow the two sides in a case to decide on their own what should be confidential. The court must make those decisions – something that was not done previously in the case.
‘Crux of this case’
Judge Tuter has written that the “crux of this case centers on the legitimacy” of Waste Management’s $525 million acquisition of the assets of Davie-based Southern Waste Systems in January 2016, a Justice Department antitrust review of that deal and “voluminous discovery pertaining to that review.” The Florida Attorney General’s Office did a similar antitrust review. Both allowed the merger to go through.
SWS’s recycling division, Sun Recycling (now known as LGL Recycling), was 50-50 partners with Bergeron Environmental in Sun Bergeron, a joint venture that between 2013 and July 2018 processed many tons of recycled trash for 17 Broward municipalities.
Together, Sun Recycling and Bergeron Environmental – owned by prominent Davie businessman Ron Bergeron – had broken Waste Management’s decades-old monopoly on the county’s solid-waste disposal business. But Waste Management’s SWS purchase restored its control of the recycling stream, resulting in major recycling price increases for local governments when their contracts with Sun Bergeron expired.
Bergeron Environmental sued Waste Management and LGL and several of its executives not long after the SWS purchase. Bergeron contends the sale was done behind his back, and that Waste Management misled Department of Justice antitrust regulators to win approval of its takeover of SWS as part of a conspiracy to ruin its business and steal its customers.
The confidential documents appear to be important to the public’s understanding of the impact of Waste Management’s acquisition of SWS and its impact on competition.
One document that leaked out last May due to a court clerk’s error created a stir among Sun Bergeron’s municipal customers. It was a secret, two-page letter sent by then-Florida Attorney General Pam Bondi’s office to Waste Management lawyers in December 2015. It showed that the state OK’d the buyout only after being reassured by the company that the Broward customers would be allowed to renew their expiring contracts this year for another five years on the same terms, conditions and prices. Bondi’s office, however, never enforced that condition or even informed the cities of its existence.
Last Thursday, attorneys for both sides were scheduled to take the video-taped deposition of Broward County Administrator Bertha Henry. But the deposition in the County Attorney’s Office at County Hall was abruptly canceled when Waste Management’s lawyers walked out after also objecting to the presence of this reporter.