UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) METLIFE, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 15-0045 (RMC) ) FINANCIAL STABILITY ) OVERSIGHT COUNCIL, ) ) Defendant. ) _________________________________ )

OPINION

Better Markets, Inc. filed a motion to intervene and a contingent application for

an order to show cause why the record in this case should not be entirely unsealed. The

underlying lawsuit was brought by MetLife to challenge to its designation by the Financial

Security Oversight Council (FSOC) as a nonbank systemically important financial institution

under the Dodd-Frank Act. That challenge was sustained and the designation rescinded. Yet as

Better Markets points out, much of the substantive record concerning FSOC’s Final

Determination, and MetLife’s opposition to it, remains sealed or redacted from the public record.

The motion to intervene by permission will be granted and the application for an

order to show cause will be denied. The motion assumes that this Court has not reviewed the

record in this case or the extensive briefs filed in it, and that the Court instead has allowed the

parties alone to determine what should be redacted. That assumption is in error. Just as

importantly, the law protects MetLife’s submissions to FSOC and FSOC’s discussion of them.

Finally, the need to unseal the record is lessened because the Court’s prior Opinion and Order

contain no redactions and can be fully understood.

1 I. FACTS

On December 18, 2014, FSOC voted 9-1 to designate MetLife under Section 113

of the Dodd-Frank Act,

. On the same day, FSOC issued its Explanation of the

Basis of Final Determination (Final Determination). FSOC concluded that “material financial

distress” at MetLife “could pose a threat to the financial stability of the United States.” See

(a)(1).

A public version of FSOC’s Final Determination has been available since the day

it was issued. See https://www.treasury.gov/initiatives/fsoc/designations/Pages/default.aspx.

That 30-page analysis lays bare each of FSOC’s conclusions vis-à-vis MetLife and its potential

to threaten the financial stability of the United States. An appendix summarizes MetLife’s

Consolidated Balance Sheet. See

A. Procedural History

On January 13, 2015, MetLife filed suit in this Court seeking rescission of

FSOC’s Final Determination. See Compl. [Dkt. 1]. The parties filed cross motions for summary

judgment. On August 24, 2015, MetLife filed an unopposed motion to file unredacted final

briefs under seal. See Mot. [Dkt. 67]. The motion was granted by Minute Order, and MetLife

filed its final briefs under seal on September 18, 2015. See Mem. [Dkt. 72-1]; Reply [Dkt. 73-1].

MetLife also moved to file the Joint Appendix under seal. See Mot. [Dkt. 68]. That motion was

granted by Minute Order, and the Joint Appendix was filed under Seal on September 4, 2016.

See Joint. App’x [Dkt. 69].

On September 30, 2015, the parties again filed publicly their final, redacted briefs.

The parties had conferred and decided that even more information could be released publicly.

See Notice of Filing [Dkt. 84] at 1. These were the briefs relied on by the Court. See Op. [Dkt.

2 105] at 2 (citing Def. Mot. for Summ. J. [Dkt. 84-1] (FSOC Mot.); Pl. Opp’n & Mot. for Summ.

J. [Dkt. 86-1] (MetLife Mot.); Def. Opp’n & Reply [Dkt. 84-2] (FSOC Reply); and Pl. Reply

[Dkt. 86-2] (MetLife Reply)).

On November 19, 2015, Better Markets moved to intervene in this case. See Mot.

[Dkt. 89]. Better Markets sought permissive intervention under Fed. R. Civ. P. 24(b) “for the

limited purpose of seeking to unseal the record in this case.”

. After a brief extension of

time, MetLife and FSOC filed their opposition and response, respectively, to Better Markets’

motion. See Opp’n [Dkt. 95] (Opp’n); Resp. [Dkt. 96] (Resp.). Better Markets filed a reply. See

[Dkt. 98] (Reply).

On December 8, 2015, the Court granted a Motion to Compel [Dkt. 50] by

MetLife. See Order [Dkt. 93]. The Court ordered 32 additional documents to be turned over and

directed the parties to propose a supplemental briefing schedule. Pursuant to that schedule,

MetLife filed under seal a supplemental brief on January 5, 2016 [Dkt. 97] and FSOC filed an

opposition on January 26, 2016 [Dkt. 99]. MetLife filed publicly a redacted version of its

Supplemental Memorandum on February 5, 2016 [Dkt. 103], as did FSOC [Dkt. 102]. Neither

brief was relied on—explicitly or implicitly—in the Court’s ultimate disposition of this case.

See generally Op. [Dkt. 105].

On January 27, 2016, MetLife (of its own volition) suggested that “some of the

information that had been redacted from the public versions of its briefs and the joint appendix

can now be made public without compromising the Company’s proprietary commercial or

financial information.” Notice of Filing [Dkt. 100] at 1. MetLife filed new, less-redacted

versions its final Motion for Summary Judgment [Dkt. 100-1]; its final Reply [Dkt. 100-2];

3 Volume 5 of the Joint Appendix [Dkt. 100-3];1 and Volume 13 of the Joint Appendix [Dkt. 100-

4]. To appreciate how minimally redacted these filings are, consider that MetLife’s final Motion

had only two redactions in 71 pages of facts and argument. See Mot. [Dkt. 100-1] at 29, 64-65.

FSOC’s final Motion contained two redactions in 62 pages. See Mot. [Dkt. 84-1] at 47, 51 n.35.

In short, the parties’ filings are almost entirely open to the public.

On February 10, 2016, the Court held a hearing on the parties’ cross motions for

summary judgment. The hearing was open to the public—complete with a live video feed into a

second courtroom so that even more people could attend—and the Transcript of Proceedings

[Dkt. 108] is available to the public.

On March 30, 2016, the Court entered an Opinion [Dkt. 105] under seal and an

Order [Dkt. 106] granting in part MetLife’s motion for summary judgment and denying FSOC’s

motion for summary judgment. The Court gave the parties one week to suggest any redactions

to the Court’s Opinion. Both parties agreed that the Opinion should be unsealed entirely. See

Notice [Dkt. 109]. The Court agreed and entered a Minute Order accordingly. The Opinion,

containing every basis upon which the Court ruled in this case, is open to public viewing.

B. The Instant Motion and Application

Notwithstanding the foregoing, Better Markets moves to intervene and apply for

an order to show cause why the record in this case should not be unsealed.2 Specifically, Better

Markets would have this Court order:

1 MetLife inadvertently redacted several lines that were not originally redacted, and filed a revised version on February 4, 2016 [Dkt. 101]. 2 Better Markets’ motion was not mooted by this Court’s disposition of the case on the merits or by FSOC’s subsequent appeal. See FutureFuel Chem. Co. v. Lonza, Inc.,

(8th Cir. 2014) (“‘[T]he right of access to judicial records and documents is independent of the disposition of the merits of the case.’ Thus, the district court was permitted to consider whether to unseal the record despite [appellant’s] filing of a notice of appeal in this case challenging the 4 [T]hat counsel for the Plaintiff and the Defendant each shall . . . complete a review of every document within the Joint Appendix and briefing that has been redacted in whole or in part and determine whether any portions thereof may be unredacted, and shall file new versions on the public docket[.]

Mot., Ex. A, Proposed Order [Dkt. 89-2 at 45].3 As to any document that the parties wish to

remain sealed, they would have to present the Court with a redaction log stating the justification

for sealing and the basis for believing that their interest outweighs the public’s interest in

accessing the record. See

The parties reacted differently to Better Markets’ motion. FSOC took no position

as to intervention, but opposed the application for a show-cause order. According to FSOC,

“The briefs and record materials that have been placed on the public docket are more than

sufficient to inform the public of the basis for the Council’s decision to designate MetLife, Inc.”

Resp. at 1; see also id. at 1-2 (“While Better Markets complains about the number of pages of the

Joint Appendix that have been withheld or redacted from the public docket, the key record

materials relied upon by the parties in support of their arguments are available on the public

docket.”). FSOC also argued that Better Markets’ request was “inconsistent with Section 112 of

the Dodd-Frank Act, which provides that the Council ‘shall maintain the confidentiality of any

data, information, and reports submitted’ by a nonbank financial company.” Id. at 2 (quoting

(d)(5)(A)). That MetLife sought judicial review does not, according to FSOC,

grant of summary judgment to [appellee], which was a final and appealable decision.”) (quoting Stone v. Univ. of Md. Medical Sys. Corp.,

, 180 n.* (4th Cir. 1988) (citation omitted)). 3 After the Court entered its March 30, 2016 Opinion, Better Markets filed an Amended Contingent Application. See Am. App. [Dkt. 107]. Better Markets added the Court’s Opinion to the documents already sought to be reviewed (“the Joint Appendix and briefing that has been redacted in whole or in part . . .”) in the event that any of the Opinion remained under seal. Because the Opinion was unsealed entirely, the Amended Application is moot.

5 “result in any change in the confidential treatment of the designated company’s submissions.”

Resp. at 2. FSOC warned of “a chilling effect on companies’ willingness to provide the Council

with the information necessary to enable the Council to reach an informed judgment, as well as

companies’ willingness to seek judicial review.” Id.

MetLife opposed both intervention and application. It argued that Better Markets’

motion is untimely under Fed. R. Civ. P. 24(b) and that Better Markets lacks “a claim or defense

that shares . . . a common question of law or fact” with MetLife’s suit, because the intervention

request is premised on a generalized right of access to judicial records that is no different from

the interest shared by every other member of the public. Opp’n at 6 (quoting Fed. R. Civ. P.

24(b)(1)(B) (citation and quotation marks omitted)). On the merits of Better Markets’

application, MetLife joined FSOC in arguing that Dodd-Frank protects the confidentiality of

materials submitted during FSOC’s designation process. Opp’n at 6 (citing

(d)(5)).

The motion and application are ripe for resolution.

II. LEGAL STANDARD

Permissive intervention is governed by Rule 24(b) of the Federal Rules of Civil

Procedure. “On timely motion, the court may permit anyone to intervene who . . . has a claim or

defense that shares with the main action a common question of law or fact.”

R. 24(b)(1)(B).

“In exercising its discretion” to grant permissive intervention, “the court must consider whether

the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”

R. 24(b)(3).

Better Markets expressly premises its contingent application on the so-called

“common law right of access.” Mot. at 21 n.10 (acknowledging “that the D.C. Circuit has

6 expressed doubts about whether the First Amendment right of access applies outside of the

criminal context”) (citing SEC v. Am. Int’l Grp.,

(D.C. Cir. 2013); Ctr. for Nat’l

Sec. Studies v. DOJ,

(D.C. Cir. 2003)). The common-law right is premised on

the notion that all members of the public have a presumptive right of access to judicial records.

See Nixon v. Warner Commc’ns,

(1978); EEOC v. Nat’l Children’s Ctr.,

Inc.,

(D.C. Cir. 1996) (Children’s Ctr. I) (recognizing the “strong

presumption in favor of public access to judicial proceedings”) (quoting Johnson v. Greater Se.

Cmty. Hosp. Corp.,

(D.C. Cir. 1991)).

Ordinarily courts apply a six-factor framework to decide whether the public right

is overcome by private interest, weighing: (1) the need for public access to the documents at

issue; (2) the extent of previous public access to the documents; (3) the fact that someone has

objected to disclosure, and the identity of that person; (4) the strength of any property and

privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6)

the purposes for which the documents were introduced during the judicial proceedings. See

United States v. Hubbard,

(D.C. Cir. 1980). For the reasons stated below,

the Court does not reach that framework in this case.

III. ANALYSIS

The Court will grant Better Markets’ motion to intervene by permission but will

deny its application for an order to show cause.

A. Motion to Intervene

MetLife first argued that Better Markets was too late, and that it should have filed

its motion in May 2015 when it first became aware that materials were being filed under seal.

Opp’n at 8. Waiting more than six months was, per MetLife, an “inexcusable delay.” Id. at 9.

7 But the crux of MetLife’s argument was that Better Markets’ untimely intervention could

“unduly delay [and] prejudice the adjudication of the original parties’ rights.” Id. (quoting Fed.

R. Civ. P. 24(b)(3) (alteration in original)). MetLife asked not to be diverted from the task then

at hand: “the upcoming oral argument.” Opp’n at 10.

Those concerns have since been alleviated. Oral argument has passed and the

dispositive motions have been ruled upon. Intervention by Better Markets no longer threatens

the parties’ or the Court’s ability to adjudicate this case. As the D.C. Circuit has explained, the

timeliness requirement “is aimed primarily at preventing potential intervenors from unduly

disrupting litigation, to the unfair detriment of the existing parties.” Amador Cnty. v. U.S. Dep’t

of the Interior,

(D.C. Cir. 2014); see also Roane v. Leonhart,

(D.C. Cir. 2014) (“disadvantage [to] existing parties” is “the most important consideration”

in assessing timeliness). The D.C. Circuit has thus affirmed denials of motions to intervene

when intervention would have “delay[ed] resolution of the merits to the detriment of the existing

parties, since the case was otherwise ready for a decision on the merits.” Amador Cnty.,

(internal quotation marks omitted); see also, e.g., United States v. British Am.

Tobacco Australia Servs., Ltd.,

(D.C. Cir. 2006) (affirming denial of

intervention because it would have prejudiced the parties by “delay[ing] and complicat[ing]” a

trial scheduled weeks later). In this case, the dust has settled. Better Markets’ intervention will

not disrupt or delay anyone.

MetLife argues second that Better Markets has no “claim or defense that shares . .

. a common question of law or fact” with this litigation. Opp’n at 11 (quoting Fed. R. Civ. P.

24(b)(1)(B)). Better Markets asserts an interest in this case as “a member of the public” seeking

to enforce the “public’s right of access to judicial records.” Mot. at 21, 20. The D.C. Circuit

8 has recognized a “narrow exception” to the requirement that a federal court have subject-matter

jurisdiction over a putative intervenor’s claim “when the third party seeks to intervene for the

limited purpose of obtaining access to documents protected by a confidential order.” EEOC v.

Nat’l Children’s Ctr., Inc.,

(D.C. Cir. 1998) (Children’s Ctr. II). MetLife is

right that this “exception” is generally confined to intervenors who have “a particularized interest

in those records that was distinct from the generalized interest in judicial proceedings shared by

all members of the public.” Opp’n at 12.

Better Markets meets that standard here. As MetLife acknowledges, courts have

allowed intervention by news organizations seeking to unseal judicial records for journalistic

purposes. Opp’n at 13 (citing Jessup v. Luther,

(7th Cir. 2000); Pansy v.

Borough of Stroudsburg,

(3d Cir. 1994)). In this case, Better Markets is a

nonprofit organization that “engages in extensive . . . public education,” including through

“mainstream and social media channels to promote public awareness about financial reform.”

Mot. at 3. These interests align with those of journalists who have been allowed to intervene.

Better Markets is also a seasoned advocate, participating in “regulatory

commentary and significant court cases involving financial regulation and enforcement.”

In

this regard, Better Markets is not unlike the intervenor in Children’s Center II, whose

intervention “might shed light on the substance of [her own] suit.” Opp’n at 12 (quoting

Children’s Cntr. II,

(alterations in original)). No doubt Better Markets seeks to

use what it learns from this case in other cases or administrative litigation.

The Court grants permissive intervention cautiously and only because the motion

does not concern the merits of the underlying case (as to which Better Markets has no standing).

9 In these circumstances, given Better Markets’ purposes and the intense publicity following the

Court’s Opinion, its discretion leads this Court to grant intervention.

B. Application for Order to Show Cause

The issue of Better Markets’ intervention aside, its application for an order to

show cause will be denied. Congress has determined that the information Better Markets is

seeking to unseal must remain confidential and this Court, after review, agrees with the parties

that the congressional direction and court precedent support the redactions that have been made.

When a statute requires an agency to preserve the confidentiality of administrative

materials, the statute supersedes the multi-factor inquiry prescribed by the D.C. Circuit in

Hubbard and relied on by Better Markets. See In re Sealed Case,

(D.C. Cir.

2001); United States v. Hubbard,

(D.C. Cir. 1980). Thus, in Sealed Case,

the D.C. Circuit held that a provision of the Federal Election Campaign Act,

et

seq., barred the Federal Elections Commission (FEC) from publicly filing a petition to enforce a

third-party subpoena in connection with an investigation into potential campaign-finance

violations.

. The D.C. Circuit concluded that the statute—which provided that

“[a]ny notification or investigation made under this section shall not be made public by the

Commission” without written consent,

at 665—“plainly prohibit[ed]” FEC from filing its

petition publically and eliminated the need for a Hubbard analysis.

.

Dodd-Frank has a similar mandate: it requires that FSOC “maintain the

confidentiality of any data, information, and reports submitted under this subchapter.”

(d)(5)(A) (emphasis added). When challenged by MetLife, FSOC defended in part by

filing the complete Final Determination under seal but filing a redacted version on the public

docket. Similarly, both parties filed full versions of their briefs under seal and filed partially-

10 redacted versions on the public docket. FSOC agrees with MetLife that the records sought by

Better Markets are protected by congressional cover. See Resp. at 2 (arguing that Better

Markets’ request was “inconsistent with Section 112 of the Dodd-Frank Act, which provides that

the Council ‘shall maintain the confidentiality of any data, information, and reports submitted’

by a nonbank financial company”) (quoting

(d)(5)(A)); accord Opp’n at 6.

Better Markets contends that Section 5322(d)(5)(A) applies only to “FSOC and its

member agencies, not to a federal court.” Mot. at 32. In re Sealed Case suggests otherwise.

Having been specifically directed by Congress to maintain confidentiality of “any” information it

received, FEC was not free to ignore that direction merely because it sought to enforce its

subpoena in court. Instead, there was “a strong presumption that, even if the FEC possesses the

power to file subpoena enforcement actions on the public record, such actions should be sealed.”

In re Sealed Case,

.

Section 5322(d)(5) must also be read in harmony with Section 5323(h), which

provides a right to judicial review. It is unthinkable that Congress would condition the

confidential treatment of a company’s information on that company’s refraining from seeking

judicial review expressly afforded to it by the same statute. Nothing in Dodd-Frank suggests that

a company waives confidentiality by going to court. FSOC agrees. See Resp. at 2 (“The statute

does not, however, indicate that such litigation will result in any change in the confidential

treatment of the designated company’s submissions to the Council.”).

Better Markets also complains that FSOC and MetLife jointly decided what

should be redacted without an independent evaluation by the Court. To the contrary, this Court

has reviewed the record and all of the briefs. The Court concurs in the parties’ judgment and

finds that large parts of the administrative record and the briefs should be redacted from public

11 view. The parties sought authority to file under seal and the Court granted it, although it also

required the parties to filed appropriately redacted copies, which they did. Since then, the parties

have been entirely forthcoming, even volunteering to lift redactions previously made.

Indeed, there would be little left to unseal. Better Markets, even if successful on

its application, could only claim a right to access “judicial records.” Notably, “not all documents

filed with courts are judicial records.” SEC v. Am. Int’l Grp.,

(D.C. Cir. 2013).

“[W]hether something is a judicial record depends on ‘the role it plays in the adjudicatory

process.’”

(quoting United States v. El-Sayegh,

(D.C. Cir. 1997)

(concluding that certain reports were not judicial records where the court made no decisions

about them or otherwise relied on them)). “A court’s decrees, its judgments, its orders, are the

quintessential business of the public’s institutions.” Children’s Ctr. I,

. FSOC

has argued that “a determination of which portions of the Joint Appendix constitute ‘judicial

records’ w[ould] depend upon what materials the Court relies upon in its opinion ruling on the

parties’ dispositive motions.” Resp. at 6.

The portions of the Joint Appendix that were relied on by the parties are discussed

extensively and, at times, recited verbatim in their briefs. Those briefs are almost entirely

unsealed. More importantly, this Court’s Opinion—“the quintessential business of the public’s

institution[],” Children’s Ctr. I, 98 F.3d at 1409—is entirely unsealed. The Court’s Opinion

quotes extensively from those portions of FSOC’s Final Determination on which the Opinion

relies. Neither party objected to unsealing any of those portions. In sum, the public is not left to

guess at this Court’s decisionmaking.

The right of “[a]ccess to records” is intended to “ensur[e] the integrity of judicial

proceedings,” Hubbard,

, by affording the public a means of “monitoring . .

12 . judicial misconduct.” Washington Post v. Robinson,

(D.C. Cir. 1991). As

its public Opinion makes clear, this Court relied on precedent from the Supreme Court to find

FSOC’s Final Determination arbitrary and capricious as a matter of administrative law. No basis

for the Court’s decision remains hidden from view. To the contrary, its analysis is available for

the public to consider and debate (as it has). Better Markets may do the same.

IV. CONCLUSION

Better Markets’ Motion to Intervene [Dkt. 89] will be granted by permission.

Better Market’s application for an order to show cause will be denied.

A memorializing Order accompanies this Opinion.

Date: May 25, 2016 /s/ ROSEMARY M. COLLYER United States District Judge

13