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SCOTUS Relaxes Definition of "Confidential" Commercial Information Exempt from FOIA

Client Alert | 1 min read | 06.25.19

The Supreme Court yesterday made it easier for the Federal Government to withhold from the public certain records that businesses want kept private. Under the Freedom of Information Act (FOIA), the Government ordinarily must make available information it receives from a private entity to members of the public who request it. But FOIA exempts from disclosure (among other things) any “commercial or financial” information that is “confidential.” For nearly half a century, following a 1974 decision by the D.C. Circuit in National Parks and Conservation Association v. Morton, courts held that information is “confidential” for purposes of that exemption only where its disclosure would result in “substantial competitive harm.” In yesterday’s decision in Food Marketing Institute v. Argus Leader Media, the Court rejected the National Parks test, noting that the plain language of FOIA makes no mention of “substantial competitive harm.” Instead, the Court held that information is “confidential” for purposes of this exemption so long as it is: (1) both customarily and actually treated as private by its owner, and (2) provided to the government under an assurance of privacy. That definition is substantially broader — and far easier to meet — than the one set out in National Parks.

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Client Alert | 4 min read | 04.14.25

A New Sheriff in Town: State Attorneys General Take Action To Enforce Violations of the Foreign Corrupt Practices Act

Foreign Corrupt Practices Act (“FCPA”) enforcement has been fairly predictable for many years as the Fraud Section of the Department of Justice (“DOJ”) has maintained exclusive authority over investigating claims and bringing enforcement actions in federal courts across the country. President Trump’s recent pause on FCPA enforcement, the first of its kind since the statute was passed in 1977, has created significant uncertainty for individuals and businesses operating internationally regarding the future of FCPA enforcement. While DOJ is in the process of assessing what the future of FCPA enforcement, state attorneys general are stepping in. On April 2, California Attorney General Rob Bonta issued a Legal Advisory (the “Advisory) to California businesses explaining that violations of the FCPA are actionable under California’s Unfair Competition Law (UCL). The announcement signals a shift in FCPA enforcement where states may take the lead and pursue FCPA enforcement through their state unfair competition laws....