Appeal court denies Waste Management’s bid to hide antitrust records

By Dan Christensen, FloridaBulldog.org

The public may soon get fresh insight into why federal and state antitrust authorities allowed Waste Management’s $525-million acquisition of a rival – a controversial 2016 deal that eliminated recycling competition and hiked the cost of trash disposal across much of Broward.

On Monday, a three-judge panel of the Fourth District Court of Appeal in West Palm Beach denied Waste Management’s bid to keep secret numerous internal records it submitted to government regulators conducting antitrust investigations.  The records are today at the heart of a multi-million-dollar conspiracy lawsuit Waste Management is defending against Pembroke Pines-based Bergeron Environmental and Recycling LLC.

Bergeron Environmental was 50-50 partners with Sun Recycling in Sun Bergeron when Waste Management bought the assets of Sun’s parent, Southern Waste Systems (SWS). The deal gave control of the recycling stream to Waste Management and effectively put Sun Bergeron, which had contracts with 19 Broward cities, out of business when those contracts expired last year.

Bergeron Environmental claims that Waste Management misled regulators to secure approval of its takeover of SWS as part of a conspiracy to ruin its business and steal its customers. It is seeking tens of millions of dollars in damages.

It is not known whether Waste Management will ask for a rehearing or appeal to Florida’s Supreme Court. Ilene Pabian, a Holland & Knight attorney in Miami who represented Waste Management on the appeal, did not respond to a request for comment.

Attorney Darlene Lidondici, of Fort Lauderdale’s Fertig & Gramling, represents Florida Bulldog in the case. She said that absent further appeal the panel’s decision will become final in 10 days.

“Then the case goes back to the trial court, and the stay Judge Tuter put in place when he issued his order will be lifted and those documents should be released,” Lidondici said.

Waste Management’s bid

Waste Management provided the confidential records, and many others, to Bergeron Environmental’s attorneys at the Berger Singerman law firm during the discovery phase of the case after the parties reached an agreement to keep them confidential and away from public view. Broward Chief Judge Jack Tuter initially OK’d that somewhat routine arrangement, but changed his mind after Florida Bulldog objected. Tuter also declined the company’s request to exclude the public from an upcoming hearing.

Waste Management, the nation’s biggest trash and landfill company with operations in 48 states, appealed Tuter’s decisions in a wide-ranging, 52-page petition filed June 11.

Among other things, the petition cited federal and state laws that prevent disclosure of the records by the government. “The fact that Congress and the Florida Legislature have exempted from public disclosure information submitted to antitrust regulators presents a compelling argument that the court system should determine such information in court records to be confidential and not subject to public disclosure,” the petition says.

The laws, however, also “recognize that disclosure to a court may be appropriate,” the appellate panel held in its four-paragraph ruling. Thus, when documents land in court amid disputes, that protection no longer applies.

No automatic privilege

“The statutes providing for a public records exemption and restricting disclosure of information by regulators does not create an evidentiary privilege for petitioner [Waste Management] to oppose discovery in a judicial proceeding,” the panel said. “Documents that petitioner submitted to regulators do not automatically attain privileged status in judicial proceedings.”

The trial court has yet to rule on any confidentiality claims regarding specific documents among the hundreds of thousands of pages that have been submitted.

While Judge Tuter said the public has a “right to know and to understand” the buyout’s “significant consequences” on competition, Waste Management’s attorneys had also argued that a lack of media coverage – aside from Florida Bulldog – demonstrated “there is no actual public interest” in the case. The panel apparently didn’t see it necessary to address that argument.

The panel – Judges Dorian K. Damoorgian, Cory J. Ciklin and Burton C. Conner – also upheld Tuter’s decision to keep open the upcoming crime-fraud hearing. The hearing is to be held so Waste Management can attempt 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.

“The trial court did not depart from the essential requirements of law in declining to close the crime-fraud hearing,” the panel wrote. “Denial is without prejudice for petitioner to again request limited disclosure if documents are determined to be privilege or protected and if they must be discussed or disclosed during the hearing.”