By Dan Christensen, FloridaBulldog.org
Last month, Broward Chief Judge Jack Tuter ruled that Waste Management’s internal records about antitrust investigations of its buyout of a competitor should be unsealed. The public has a “right to know and to understand” the transaction’s “significant consequences” on competition and the price citizens pay for trash disposal, the judge said.
Now, Waste Management’s attorneys are using the lack of media coverage of the underlying, bitterly fought case to ask an appellate court to keep those records secret because “there is no actual public interest” in the case.
“To date, the only media entity showing any interest in this litigation is Florida Bulldog,” says Waste Management’s June 11 petition to the Fourth District Court of Appeal in West Palm Beach.
Waste Management is the chief defendant in a 2016 civil action brought by Bergeron Environmental and Recycling LLC. The suit was filed not long after Waste Management paid $525-million for the assets of Southern Waste System (SWS) and its recycling division, Sun Recycling (now known as LGL Recycling.)
Sun Recycling was 50-50 partners with Bergeron Environmental in Sun Bergeron, a joint venture that broke the multi-billion dollar trash giant’s decades-old monopoly on the county’s solid waste disposal business. Starting in 2013, it processed tons of recycled trash for 19 Broward municipalities with about half of the county’s 2 million residents.
Waste Management’s acquisition of SWS – a deal Bergeron Environmental owner Ron Bergeron contends was done behind his back – restored its control of the recycling stream and effectively put Sun Bergeron out of business. It also significantly hiked recycling costs for local governments, leading to a decline in recycling.
Bergeron Environmental contends Waste Management misled state and federal antitrust regulators to win approval of its takeover of SWS as part of a conspiracy to ruin its business and steal its customers. Bergeron Environmental is seeking tens of millions of dollars in damages from Waste Management and its former partners.
Florida Bulldog has covered the litigation for more than a year. In February, attorneys for the independent, nonprofit news organization filed a motion to unseal various records, including records pertaining to the antitrust reviews. Fort Lauderdale attorney Christopher Fertig also argued against Waste Management’s bid to close the courtroom to the public for an upcoming hearing when many confidential corporate documents are expected to be discussed.
The so-called crime-fraud hearing is for the purpose of giving Waste Management 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.
From the beginning, both sides knew Waste Management would assert confidentiality or privilege to veil a large volume of relevant documents. Instead of fighting it out one document at a time, the two sides settled on a “confidentiality agreement.” The arrangement allowed Bergeron Environmental to obtain quick access to the records in exchange for agreeing to keep them secret.
To date, only one significant document has become public – due to a clerk’s error.
The document is a Dec. 3, 2015 letter obtained and published by Florida Bulldog. The letter from the Florida Attorney General’s Office offers assurances that it would not block Waste Management’s acquisition of SWS so long as Sun would allow its municipal recycling customers in Broward to extend their contracts at the same price last year so 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. That didn’t happen. No explanation has been provided as to why the letter was kept secret and why its conditions were not enforced.
Waste Management’s 52-page appeal petition says, “The trial court’s decision to now unseal these protected materials for public consumption and open the crime-fraud discovery hearing to the public must be quashed.”
The asserted reason: Judge Tuter misapplied the law and ignored that public disclosure of records containing “valuable proprietary business information” would cause “irreparable harm” to the company. Such information, the petition says, includes communications with regulators “containing trade secrets, proprietary interest and sensitive financial information.” Specifically, customer pricing strategy, negotiating histories and the terms of individual negotiations with potential and existing customers, customer lists and contracts with customers, suppliers and others.
The information turned over to state regulators was in response to what’s known as a civil investigative demand. Such information is exempt from disclosure by the government under Florida law.
“If the order stripping these communications of their confidentiality protections were allowed to stand, it would undoubtedly have a chilling effect on the willingness of businesses and individuals to be forthcoming and provide regulatory authorities with highly sensitive documents, business information and statements in antitrust reviews and investigations,” the petition says.
The motion noted that Bergeron Environmental’s attorneys, who have seen those records, had asked the court to authorize sending them to both the Department of Justice and the Florida Attorney General’s Office in apparent hopes of triggering a reconsideration of the antitrust case.