Documents, courtroom should be open to public in Waste Management case, Broward’s chief judge says

By Dan Christensen,

Citing the public’s “right to know and to understand” the impact of Waste Management’s $525-million buyout of a competitor on the cost of disposing of trash in Broward, a judge has ordered company documents regarding federal and state antitrust investigations of the merger deal to be made public.

According to Broward Chief Judge Jack Tuter, the transaction “has significant consequences for the Broward County waste disposal market, and the costs borne by the Broward citizenry with respect to waste collection. As such, the correspondence between Waste Management and the antitrust regulatory authorities regarding the subject transaction, and the documents that are a part of the civil investigative demand are of great import in ensuring transparency on this critical issue.”

Also in his May 8 order, Tuter denied a bid by Waste Management to close the courtroom to the public for an upcoming hearing when many internal corporate documents are expected to be discussed.

The purpose of the hearing is to give the multi-billion-dollar trash giant an opportunity to rebut the court’s finding last fall that it may have sought legal advice in order to perpetrate a crime or fraud. If so, documents Waste Management is trying to shield on grounds of attorney-client privilege would no longer be confidential.

“We are gratified at Judge Tuter’s decision to protect the public interest in this case,” said Fort Lauderdale attorney Chris Fertig, who represents Florida Bulldog. “Too many important questions about these antitrust reviews remain unanswered.”

Still, no company documents will become public soon. Attorneys for Waste Management asked for and got Judge Tuter to stay his order while they appeal. They have 30 days to do so at the Fourth District Court of Appeal in West Palm Beach.

Broward Chief Judge Jack Tuter

The action follows Florida Bulldog’s formal request to the court earlier this year to unseal numerous records and keep the courtroom open in the complex, heavily litigated case that pits Waste Management, LGL Recycling (formerly known as Sun Recycling) and several of LGL’s current and former executives against Pembroke Pines-based Bergeron Environmental and Recycling. Most notable are documents about regulators’ antitrust reviews of Waste Management’s January 2016 acquisition of the assets of Sun Recycling’s parent, Broward-based Southern Waste Systems (SWS).

50-50 Partners

At the time of the merger, Bergeron and Sun were 50-50 partners in a joint venture known as Sun Bergeron, which from 2013 to July 2018 recycled trash for 17 Broward municipalities. Bergeron Environmental, owned by well-known developer and recent appointee to the governing board of the South Florida Water Management District Ron Bergeron, promptly sued, alleging breach of contract and conspiracy and contending that the sale was done behind Bergeron’s back. Bergeron contends the deal gave Waste Management, owner of the mountainous Monarch Hill landfill in North Broward, monopolistic control of Broward’s waste stream and cost him tens of millions of dollars.

The case has been marked by abnormal secrecy, fueling intrigue that’s been accentuated by Bergeron Environmental’s contention that in order to secure its buyout of SWS, Waste Management misrepresented material facts to regulators about how the deal would impact competition for waste disposal and recycling in Broward.

The secrecy is the result of a confidentiality agreement between the parties that was initially allowed by the court. Corporate defendants often impose confidentiality as the price to obtain discovery of internal company records without a fight.

Bergeron’s attorney, Mitchell Berger, has said in court that out of some 99,000 documents produced by Waste Management, only about 300 were not labeled as confidential – meaning about 98,700 documents regarding the company’s dealings with local governments and federal and state regulators remain confidential.

Attorneys Mitchell Berger, left, and Brian K. Hole

In opposing Florida Bulldog’s motion to open up the records, Waste Management attorney Brian K. Hole argued last month in court papers that secrecy is necessary because the company has produced “hundreds of thousands of pages of documents during the course of discovery containing confidential information relating to its business,” often “without being allotted the necessary time to review the documents” in advance. Hole also said that “in a not-so-subtle attempt to push [Waste Management’s] confidential information towards public disclosure,” Bergeron’s attorneys attached thousands of pages to various unrelated filings in an invitation to “a third party” like Florida Bulldog “to search through the court record and challenge the closure of those filings. Movants, however, lack good grounds to challenge.”

Judge Tuter disagreed. After noting Florida law’s “strong presumption of public access to court proceedings and their records,” he said in a follow-up order that he was removing “confidentiality protections of waste Management’s correspondence with the Department of Justice and Florida Attorney General that were filed with the court, as well as similar correspondence not filed in the court record. The court orders the same to be produced to plaintiff and shall remain unsealed,” he wrote, before later staying his order for the announced appeal.

Secret depositions of public officials

While Tuter similarly declined to close his courtroom to the public for the as yet unscheduled crime-fraud evidentiary hearing, he did in March block this reporter from attending the depositions of public officials, including Broward County Administrator Bertha Henry.

By law, the county has “the responsibility and power for the operation of solid waste disposal facilities to meet the needs of all incorporated and unincorporated areas of the county.” Broward also has the declared goal of achieving 75 percent countywide recycling.

Before Tuter’s ruling, Florida Bulldog appeared for Henry’s scheduled deposition. It was canceled, however, when Waste Management’s lawyers walked out after objecting to Bulldog’s presence.

Henry was later deposed in secret. The deposition of a Miramar city official scheduled for last week also was postponed.

To date, only one confidential Waste Management document has become public. It was explosive.

The document is a Dec. 3, 2015 letter to Waste Management lawyers from former Florida Attorney General Pam Bondi’s office. It says, among other things, that state antitrust regulators would not block its acquisition of SWS as long as Sun would allow its municipal customers in Broward to extend their recycling deals with Sun Bergeron for another five years starting last July.

Bondi’s office, however, never informed the Broward cities of the letter’s existence. Florida Bulldog obtained and published the letter when it suddenly appeared in the court file about a month before those municipal recycling contracts were set to expire last year. The court clerk’s office had mistakenly made it public.

The decision by Bondi’s office not to enforce the terms of its letter resulted in significantly higher recycling costs for local governments last year or, in the case of Sunrise and Deerfield Beach, at least a temporary end to traditional recycling where certain materials are sorted for reuse. Instead their recyclables will either be burned in a waste-to-energy incinerator or dumped in a Waste Management landfill.

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