Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF COMMERCE, ) 1401 Constitution Avenue NW ) Washington, DC 20230 ) ) Defendant. ) ) AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 Case No. 19-cv- COMPLAINT 1. Plaintiff American Oversight brings this action against the U.S. Department of Commerce under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel compliance with the requirements of FOIA. JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §§ 1331, 2201, and 2202. 3. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e). 4. Because Defendant has failed to comply with the applicable time-limit provisions of FOIA, American Oversight is deemed to have exhausted its administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency from 1 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 2 of 14 continuing to withhold agency records and ordering the production of agency records improperly withheld. PARTIES 5. Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3) organization primarily engaged in disseminating information to the public. American Oversight is committed to the promotion of transparency in government, the education of the public about government activities, and ensuring the accountability of government officials. Through research and FOIA requests, American Oversight uses the information gathered, and its analysis of it, to educate the public about the activities and operations of the federal government through reports, published analyses, press releases, and other media. The organization is incorporated under the laws of the District of Columbia. 6. Defendant U.S. Department of Commerce (Commerce) is a department of the executive branch of the U.S. government headquartered in Washington, DC, and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). Commerce has possession, custody, and control of the records American Oversight has requested. STATEMENT OF FACTS 7. In November 2018, American Oversight submitted six FOIA requests to Commerce seeking records reflecting the communications between the highest-ranking officials in the Department—Secretary Wilbur Ross, Secretary Ross’s former Chief of Staff Wendy Teramoto, and Acting Deputy Secretary Karen Dunn Kelley—and industry groups and executives with interests that may be affected by Commerce policies. One of these requests specifically requested any records reflecting communications with entities listed in Secretary Ross’s ethics agreement. 2 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 3 of 14 Ross Ethics Agreement Entities FOIA 8. On November 14, 2018, American Oversight submitted a FOIA request to Commerce requesting all records reflecting communications between certain high-ranking Commerce officials and any individuals or entities named in Secretary Ross’s ethics agreement. Specifically, the request sought the following: All records reflecting communications (including emails, email attachments, voicemail transcripts, text messages, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, WhatsApp, Signal, Facebook or Twitter Direct Messages), telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, talking points, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials) between (1) Secretary Wilbur Ross, former Chief of Staff Wendy Teramoto, Acting Deputy Secretary Karen Dunn Kelley, or any assistants or schedulers acting on their behalves and (2) any of the individuals or entities named in Sections 2, 3, 4, 7, 8, 10, and Attachment A of Mr. Ross’ ethics agreement submitted on January 15, 2017. We have attached a copy of the ethics agreement Exhibit A for your reference. The Ross Ethics Agreement FOIA is attached hereto as Exhibit 1 and incorporated herein. 9. Commerce assigned the request tracking number DOC-IOS-2019-000231. 10. On November 27, 2018, Commerce emailed American Oversight seeking clarification regarding the timeframe for the request and requesting domain names for the entities for which American Oversight sought communications. 11. On December 12, 2018, American Oversight responded that the request sought records from February 28, 2017, through the date of the search. American Oversight further responded that many of the entities listed in Secretary’s Ross’s ethics agreement did not appear to have independent domain names. American Oversight suggested search terms that could be 3 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 4 of 14 used to identify some responsive electronic records but made clear that the application of such search terms would not be adequate to capture all responsive records. 12. American Oversight has not received any further communications from Commerce regarding this FOIA request. Ross Business Entities Communications FOIA 13. On November 14, 2018, American Oversight submitted a FOIA request to Commerce requesting all records reflecting communications between certain high-ranking Commerce officials and a list of business entities and individuals that may have business interests affected by Commerce policies. Specifically, the request sought the following: All records reflecting communications (including emails, email attachments, voicemail transcripts, text messages, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, WhatsApp, Signal, Facebook or Twitter Direct Messages), telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, talking points, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials) between (1) Secretary Wilbur Ross, former Chief of Staff Wendy Teramoto, Acting Deputy Secretary Karen Dunn Kelley, or any assistants or schedulers acting on their behalves and (2) any of the following individuals or entities: 1) Four Rivers Investment Management Co. Ltd. 2) Baosteel (including but not limited to email accounts ending in @baosteel.com) 3) China Baowu Steel Group 4) U.S.-China Green Fund 5) Henry Paulson 6) Deborah Lehr 7) Paulson Institute including but not limited to email accounts ending in @paulsoninstitute.org) 8) Hwabao 9) China Merchants Finance Holdings (including but not limited to email accounts ending in @cmbchina.com) 10) The Greenbrier Companies Inc. (GBS) (including but not limited to email accounts ending in @gbrx.com) 11) Rail Security Alliance (including but not limited to email accounts ending in @railsecurity.org) 4 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 5 of 14 12) William “Bill” A. Furman 13) Sumimoto Corporation of Americas (including but not limited to email accounts ending in @sumimotocorp.com) 14) Navigator Holdings (NVGS) 15) Sibur (including but not limited to email accounts ending in @sibur.ru) 16) International Automotive Components Group (IAC) (including but not limited to email accounts ending in @iacgroup.com) 17) Permali do Brasil Indústria e Comércio Ltda 18) Plascar 19) PB Materials Holdings Inc. 20) Ocwen Financial Corp. (including but not limited to email accounts ending in @ocwen.com) 21) Longmen Group Limited 22) Organica Water (including but not limited to email accounts ending in @organicawater.com) 23) Phononic Devices, Inc. (including but not limited to email accounts ending in @phononic.com) 24) Huaneng Renewables Corp. Ltd. 25) ChargePoint Inc (including but not limited to email accounts ending in @chargempoint.com) 26) SinoTech Power Group Holding 27) Nautical Bulk Holding 28) Boeing Company (including but not limited to email accounts ending in @boeing.com) 29) Anheuser Busch (including but not limited to email accounts ending in @anheuser-busch.com) 30) Caterpillar (including but not limited to email accounts ending in @caterpillar.com) 31) Dow Chemicals Co. (including but not limited to email accounts ending in @dow.com) 32) General Electric (including but not limited to email accounts ending in @ge.com) 33) XTO Energy (including but not limited to email accounts ending in @xtoenergy.com or @exxonmobil.com) 34) Tennessee Gas Pipeline Co. 35) Kinder Morgan (including but not limited to email accounts ending in @kindermorgan.com) 36) National Rural Utilities Cooperative 37) Baker Hughes (including but not limited to email accounts ending in @bhge.com) 38) Xcel Energy (including but not limited to email accounts ending in @xcelenergy.com) 39) Southwestern Public Service Co. 40) Aperam (including but not limited to email accounts ending in @aperam.com) 5 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 6 of 14 41) Chevron Corp. (including but not limited to email accounts ending in @chevron.com) 42) Merck & Co. (including but not limited to email accounts ending in @merck.com) 43) FireEye Inc. (including but not limited to email accounts ending in @fireeye.com) 44) Amphenol (including but not limited to email accounts ending in @amphenol.com) 45) Apple Inc. (including but not limited to email accounts ending in @apple.com) 46) CDW Corp. 47) Zoetis Inc. (including but not limited to email accounts ending in @zoetis.com) 48) United Parcel Service (including but not limited to email accounts ending in @ups.com) 49) Cypress Advocacy, LLC (including but not limited to email addresses ending in @cypressgroupdc.com) Federal Hall Policy Advisors (including but not limited to email addresses ending in @fedhall.com) 50) Madison Law and Policy (including but not limited to email addresses ending in @mlppc.com) 51) Summit Strategies Government Affairs (including but not limited to email addresses ending in @summitstrategies.us) 52) SCNELSON Law Office (including but not limited to the email address scott_c_nelson@yahoo.com) 14. Commerce assigned the request tracking number DOC-IOS-2019-000232. 15. On December 4, 2018, Commerce requested clarification regarding the date range for records requested. That same day American Oversight responded that the request sought records from February 28, 2017, through the date of the search. 16. American Oversight has not received any further communications from Commerce regarding this FOIA request. Ross Meetings FOIA 17. On November 14, 2018, American Oversight submitted a FOIA request to Commerce requesting all records reflecting the content of Secretary Ross’s meetings with specific business interests and executives. Specifically, the request sought the following: 6 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 7 of 14 All records reflecting the content of the following meetings that appear on Secretary Ross’ publicly released calendars, including any calendar entries, written communications about the meetings, agendas, lists of meeting attendees, minutes, summaries, handwritten notes, or materials exchanged during the meetings. This request includes all records reflecting communications with Commerce Department Ethics officials before or following the meetings listed below, including any ethics determinations, referrals, waivers, or authorizations regarding Secretary Ross’s participation in these meetings. A) Secretary Ross’s March 22, 2017, meeting with Chevron CEO John Watson, Vice President Maria Pica Karp and International Government Affairs Manager Jay Thompson. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of Eric Branstad, Jennifer Andberg, James Uthmeier and Julius Svoboda. B) Secretary Ross’s March 30, 2017, meeting with Boeing CEO Dennis Muilenberg. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of International Trade Specialist Fred Elliott, Deputy Director of the Advocacy Center Americo Tadeau, and Director of the Executive Secretariat, International Trade Administration, Valerie McNeill. C) Secretary Ross’s September 22, 2017, call to Boeing CEO Dennis Muilenburg. We request that Commerce search the records of Secretary Ross, former Chief of Staff Wendy Teramoto, and any assistants or schedulers acting on their behalf. D) Secretary Ross’s October 2, 2017, call to Boeing CEO Dennis Muilenburg. We request that Commerce search the records of Secretary Ross, former Chief of Staff Wendy Teramoto, and any assistants or schedulers acting on their behalf. E) Secretary Ross’s May 17, 2017, meeting with the executive board of the Rail Security Alliance. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of Hunter Hall, Angel Larrauri, James Rockas, Zachery Michel and Grant Gardner. F) Secretary Ross’s May 18, 2017, lunch with Bill Furman. We request that Commerce search the records of Secretary Ross, former Chief of Staff Wendy Teramoto, and any assistants or schedulers acting on their behalf. 7 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 8 of 14 G) Secretary Ross’s June 5, 2017, meeting with Eliot Honaker and family. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of Brooke Alexander, John Guido and Wendy Teramoto. H) Secretary Ross’s June 5, 2017, meeting with Henry Paulson and Deborah Lehr. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of Brooke Alexander, John Guido and Wendy Teramoto. I) Secretary Ross’s August 10, 2017, call with Henry Paulson. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of Wendy Teramoto and Earl Comstock. J) Secretary Ross’s April 21, 2017, meeting with Henry Paulson and Deborah Lehr. In addition to Secretary Ross and any confidential assistant or scheduler acting on his behalf, we request that Commerce search the records of John Guido and Brooke Alexander. Please produce all responsive records from February 28, 2017, to the date the search is conducted. 18. Commerce assigned the request tracking number DOC-OS-2019-000233. 19. American Oversight has not received any further communications from Commerce regarding this FOIA request. Ross Ethics Communications FOIA 20. On November 14, 2018, American Oversight submitted a FOIA request to Commerce requesting all communications of individuals in the Ethics and Law Programs Division of Commerce regarding ethics and disclosure issues for Wilbur Ross, Wendy Teramoto, and Karen Dunn Kelley. Specifically, the request sought the following: All communications (including emails, email attachments, calendar invitations/entries, written guidance or memoranda) of any individuals in the Ethics Law and Programs Division of the Department of Commerce regarding the business interests, potential conflicts of interest, and the process surrounding the ethics disclosures and recusals of Wilbur Ross, Wendy Teramoto, and Karen Dunn Kelley. 8 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 9 of 14 Please produce all responsive records from February 28, 2017, to the date the search is conducted. 21. Commerce assigned the request tracking number DOC-IOS-2019-000234. 22. American Oversight has not received any further communications from Commerce regarding this FOIA request. Navigator Holdings FOIA 23. On November 14, 2018, American Oversight submitted a FOIA request to Commerce requesting all communications of certain high-ranking Commerce officials containing specific terms or phrases for a short time period in light of reporting that Secretary Ross had shorted of the stock of shipping firm Navigator Holdings. Specifically, the request sought the following: All communications (including emails, text messages, and messages sent on messaging applications) by Wilbur L. Ross, Wendy Teramoto, Karen Dunn Kell[e]y, or any person acting on any of their behalf, including confidential assistants and schedulers, containing any of the following words or phrases: a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. Navigator NVGS “New York Times” Nytimes NYT McIntire Chavkin Hamilton Forbes “Paradise Papers” Appleby Sibur “WLR” “W.L. Ross” Invesco Please produce all responsive records from the dates of Oct. 23, 2017 to Nov. 17, 2017. 9 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 10 of 14 24. Commerce assigned the request tracking number DOC-OS-2019-000237. 25. American Oversight has not received any further communications from Commerce regarding this FOIA request. Sugar Industry FOIA 26. On November 14, 2018, American Oversight submitted a FOIA request to Commerce requesting all records reflecting communications between certain high-ranking Commerce officials and certain individuals and corporations in the sugar industry in light of public records demonstrating Secretary Ross’s contacts with foreign sugar industry interests. Specifically, the request sought: All records reflecting communications (including emails, email attachments, handwritten or electronic notes summarizing meetings, and calendar invitations or entries) by Secretary Wilbur L. Ross, Chief of Staff Wendy Teramoto, Deputy Secretary Karen Dunn Kell[e]y, or any person acting on their behalf, including confidential assistants or schedulers, with or about any of the following individuals or entities, or with any person acting on their behalf: a. b. c. d. e. f. g. h. i. Jose “Pepe” Fanjul Alfonso “Alfy” Fanjul Fanjul Corp. Domino Sugar Florida Crystals C & H Sugar Redpath Sugar Tate & Lyle American Sugar Refining Please produce all responsive records from February 28, 2017, to the date the search is conducted. 27. Commerce assigned the request tracking number DOC-OS-2019-000238. 28. American Oversight has not received any further communications from Commerce regarding this FOIA request. 10 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 11 of 14 Exhaustion of Administrative Remedies 29. As of the date of this Complaint, Commerce has failed to (a) notify American Oversight of any determination regarding its FOIA requests, including the scope of any responsive records Commerce intends to produce or withhold and the reasons for any withholdings; or (b) produce the requested records or demonstrate that the requested records are lawfully exempt from production. 30. Through Commerce’s failure to respond to American Oversight’s FOIA requests within the time period required by law, American Oversight has constructively exhausted its administrative remedies and seeks immediate judicial review. COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Searches for Responsive Records 31. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 32. American Oversight properly requested records within the possession, custody, and control of Commerce. 33. Commerce is an agency subject to FOIA, and it must therefore make reasonable efforts to search for requested records. 34. Commerce has failed to promptly review agency records for the purpose of locating those records that are responsive to American Oversight’s FOIA requests. 35. Commerce’s failure to conduct adequate searches for responsive records violates FOIA and Commerce regulations. 11 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 12 of 14 36. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring Defendant to promptly make reasonable efforts to search for records responsive to American Oversight’s FOIA requests. COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Responsive Records 37. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 38. American Oversight properly requested records within the possession, custody, and control of Commerce. 39. Commerce is an agency subject to FOIA, and it must therefore release in response to a FOIA request any non-exempt records and provide a lawful reason for withholding any materials. 40. Commerce is wrongfully withholding non-exempt agency records requested by American Oversight by failing to produce non-exempt records responsive to its FOIA requests. 41. Commerce is wrongfully withholding non-exempt agency records requested by American Oversight by failing to segregate exempt information in otherwise non-exempt records responsive to American Oversight’s FOIA requests. 42. Commerce’s failure to provide all non-exempt responsive records violates FOIA and Commerce regulations. 43. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA requests and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. 12 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 13 of 14 REQUESTED RELIEF WHEREFORE, American Oversight respectfully requests the Court to: (1) Order Defendant to conduct a search or searches reasonably calculated to uncover all records responsive to American Oversight’s FOIA requests; (2) Order Defendant to produce, within twenty days of the Court’s order, or by such other date as the Court deems appropriate, any and all non-exempt records responsive to American Oversight’s FOIA requests and indexes justifying the withholding of any responsive records withheld under claim of exemption; (3) Enjoin Defendant from continuing to withhold any and all non-exempt records responsive to American Oversight’s FOIA requests; (4) Award American Oversight the costs of this proceeding, including reasonable attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and (5) Grant American Oversight such other relief as the Court deems just and proper. 13 Case 1:19-cv-00575 Document 1 Filed 03/01/19 Page 14 of 14 Dated: March 1, 2019 Respectfully submitted, /s/ Daniel A. McGrath Daniel A. McGrath D.C. Bar No. 1531723 /s/ Sara Kaiser Creighton Sara Kaiser Creighton D.C. Bar No. 1002367 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-4213 daniel.mcgrath@americanoversight.org sara.creighton@americanoversight.org Counsel for Plaintiff 14 Case Document 1-1 Filed 03/01/19 Page 1 of 18 EXHIBIT 1 Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 2 of 18 November 14, 2018 VIA ONLINE PORTAL Michael Toland, Ph.D. Departmental FOIA Officer Office of Privacy and Open Government U.S. Department of Commerce 14th and Constitution Avenue NW Mail Stop 52010FB Washington, D.C. 20230 Via FOIAOnline Re: Freedom of Information Act Request Dear Dr. Toland: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the Department of Commerce's (Commerce) implementing regulations, American Oversight makes the following request for records. Secretary Ross reportedly maintained ownership of numerous businesses while in office that may have given rise to conflicts of interest.1 Although Secretary Ross has now reportedly formally divested from many of these business interests, reports indicate that those ownership interests have merely been passed to a family trust.2 And records released to American Oversight suggest that Secretary Ross discussed business matters with Chevron executives while his wife owned a stake of more than $250,000 in that corporation.3 American Oversight seeks records with the potential to shed light on whether Secretary Ross has complied with his ethical obligations, and whether and to what extent Secretary Ross may have communicated with entities that affect his personal financial interests. Matthew Yglesias, Commerce Secretary Wilbur Ross Is Tied Up in Major Financial Conflicts of Interest, VOX (June 20, 2018, 8:00 AM), https://www.vox.com/2018/6/20/17479170/wilbur-ross1 corruption. 2 Id. Dan Alexander, Wilbur Ross Scheduled Meetings With Chevron, Boeing Despite Conflicts of Interest, FORBES, Oct. 25, 2018, https://www.forbes.com/sites/danalexander/2018/10/25/wilbur3 ross-scheduled-meetings-with-chevron-boeing-despite-conflicts-of-interest/#1c822baf4d0e. 1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 3 of 18 Requested Records American Oversight requests that Commerce produce the following within twenty business days: All records reflecting communications (including emails, email attachments, voicemail transcripts, text messages, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, WhatsApp, Signal, Facebook or Twitter Direct Messages), telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, talking points, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials) between (1) Secretary Wilbur Ross, former Chief of Staff Wendy Teramoto, Acting Deputy Secretary Karen Dunn Kelley, or any assistants or schedulers acting on their behalves and (2) any of the individuals or entities named in Sections 2, 3, 4, 7, 8, 10, and Attachment A of Mr. Ross' ethics agreement submitted on January 15, 2017. We have attached a copy of the ethics agreement Exhibit A for your reference. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If your agency uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms "record," "document," and "information" in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA.4 It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149-50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955-56 (D.C. Cir. 2016). 4 2 COMM-18-0818 Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 4 of 18 moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations.5 In addition, please note that in conducting a "reasonable search" as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered your agency's prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches.6 Furthermore, agencies that have adopted the National Archives and Records Administration (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians' files. For example, a custodian may have deleted a responsive email from his or her email program, but your agency's archiving tools would capture that email under Capstone. Accordingly, American Oversight insists that your agency use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. American Oversight is available to work with you to craft appropriate search terms. However, custodian searches are still required; agencies may not have direct access to files stored in .PST files, outside of network drives, in paper format, or in personal email accounts. Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information "only if . . . disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law."7 If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity "to permit a reasoned judgment as to whether the material is See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) ("The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official's] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every workrelated email in the [personal] account was duplicated in [the official's] work email account." (citations omitted)). 6 Presidential Memorandum--Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, "Managing Government Records Directive," M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf. 7 FOIA Improvement Act of 2016 ? 2 (Pub. L. No. 114-185). 5 3 COMM-18-0818 Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 5 of 18 actually exempt under FOIA."8 Moreover, the Vaughn index "must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information."9 Further, "the withholding agency must supply 'a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.'"10 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document.11 Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, you are on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight hopes to decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis. Fee Waiver Request In accordance with 5 U.S.C. ? 552(a)(4)(A)(iii) and your agency's implementing regulations, American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures 8 9 10 Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). King v. U.S. Dep't of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphases in original). Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). 11 Mead Data Central, 566 F.2d at 261. 4 COMM-18-0818 Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 6 of 18 will likely contribute to public understanding of those operations. Moreover, the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of activities of the government. The disclosure of the information sought under this request will document and reveal the operations of the federal government, including how the highest-ranking officials in the Commerce Department comply with their ethical obligations to avoid conflicts of interest. Specifically, the records requested here will shed light on whether and to what extent Secretary Ross, and high-ranking officials in his agency, have communicated with businesses in which Secretary Ross has financial interests.12 The American public deserves to know whether a cabinet official has financial interests that conflict with the interests of the public. And, as described below, American Oversight has the intention and ability to disseminate the records it received to a broad audience. This request is primarily and fundamentally not for commercial purposes, but rather the primary interest is in public disclosure of responsive records. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight's financial interest. American Oversight's mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.13 American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney,14 American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ's process for ethics waivers.15 As another example, American Oversight has a project called "Audit the Wall," where the organization is gathering and analyzing information and 12 See Yglesias, supra note 1. American Oversight currently has approximately 11,900 page likes on Facebook and 45,800 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Nov. 9, 2018); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Nov. 9, 2018). 14 DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance. 15 Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents. 13 5 COMM-18-0818 Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 7 of 18 commenting on public releases of information related to the administration's proposed construction of a barrier along the U.S.-Mexico border.16 Accordingly, American Oversight qualifies for a fee waiver. Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Dan McGrath at foia@americanoversight.org or (202) 897-4213. Also, if American Oversight's request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight 16 Audit the Wall, AMERICAN OVERSIGHT, https://www.americanoversight.org/investigation/audit- the-wall. 6 COMM-18-0818 Case Document 1-1 Filed 03/01/19 Page 8 of 18 Exhibit A Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 9 of 18 January 15, 2017 Mr. David Maggi Alternate Designated Agency Ethics Official U.S. Department of Commerce 1401 Constitution Avenue, N.W. Washington, D.C. 20230 Dear Mr. Maggi: The purpose of this letter is to describe the steps that I will take to avoid any actual or apparent conflict of interest in the event that I am confirmed for the position of Secretary of the Department of Commerce. SECTION 1 - GLOBAL RECUSAL REQUIREMENT As required by 18 U.S.C. ? 208(a), I will not participate personally and substantially in any particular matter in which I know that I have a financial interest directly and predictably affected by the matter, or in which I know that a person whose interests are imputed to me has a financial interest directly and predictably affected by the matter, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). I understand that the interests of the following persons are imputed to me: any spouse or minor child of mine; any general partner of a partnership in which I am a limited or general partner; any organization in which I serve as officer, director, trustee, general partner or employee; and any person or organization with which I am negotiating or have an arrangement concerning prospective employment. SECTION 2 - POSITIONS AND ASSETS RELATED TO INVESCO Upon confirmation, I will resign from my position with Invesco Ltd. and its affiliates, including WL Ross & Co., LLC (collectively, "Invesco"). These resignations include, but are not limited to, resignation from my position with each of the following affiliated Invesco entities: 1. Huaneng Invesco WLR Investment Consulting Company Ltd. 2. Invesco Private Capital Investments, Inc. 3. 4. 5. 6. 7. Invesco Private Capital, Inc. Invesco WLR Limited Invesco WLR Private Equity Investment Management, Ltd. WL Ross & Co LLC WL Ross & Co (India) LLC Prior to assuming the duties of the position of Secretary, I will receive a bonus payment for calendar year 2016. I will forfeit this payment if I do not receive it before I assume the duties Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 10 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 2 of the position of Secretary. I hold stock and unvested restricted stock in Invesco, Ltd. I do not hold stock options. I previously held an interest in a money purchase plan through Invesco, Ltd., but the company terminated this plan and fully distributed the balance of my account to me. Before I assume the duties of the position of Secretary, Invesco, Ltd. will vest my unvested restricted stock. I will forfeit any restricted stock that is unvested at the time I assume the duties of the position of Secretary. Invesco will distribute the shares of vested restricted stock (i.e., stock) to me within 180 days of its vesting, and I will divest these shares within 30 days of distribution. I will divest all of my other financial interests in Invesco, except for those interests specifically identified in Section 10 below as being retained. I will complete the divestiture of these other financial interests in Invesco within 90 days of my confirmation, except as specifically provided otherwise in Section 9 (Assets To Be Divested) below and in Attachment A. With respect to each of these Invesco entities, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of the entity or its holdings until I have divested it, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). For a period of two years after my appointment to the position of Secretary, I will not participate personally and substantially in any particular matter in which Invesco, Ltd. or any of its affiliated entities is a party or represents a party. 1 SECTION 3 - POSITION AND ASSETS RELATED TO EXCO RESOURCES Upon confirmation, I will resign from my position with Exco Resources, Inc. ("Exco"). I hold stock and unvested restricted stock in Exco, but I do not hold stock options. Exco will not accelerate the vesting of my unvested restricted stock. I will forfeit any restricted stock that is unvested at the time I assume the duties of the position of Secretary. Within 90 days of my confirmation, I will divest all of my direct financial interests in Exco, and within 180 days of my confirmation, I will divest all of my indirect financial interests in Exco that I hold through investment entities listed in Attachment A. I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of Exco until I have divested it, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). For a period of two years after my receipt of this payment, I will not participate personally and substantially in any particular matter in which Exco is a party or represents a party, unless I first receive a written waiver pursuant to 5 C.F.R. ? 2635.503(c). SECTION 4 - INCOME FROM ROTHSCHILD & CO. I have a contractual right to income from the Rothschild & Co. Profit Sharing Plan. Within 90 days of my confirmation, I will divest my right to this income by irrevocably assigning the right to a charity. I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial 1 References in this ethics agreement to the divestiture of a fund, limited partnership, or limited liability company include the divestitures of all assets, holdings, subsidiaries, and subordinate interests of such entities, except as expressly indicated otherwise in this ethics agreement. Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 11 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 3 interests of Rothschild & Co. until I have divested my right to this income, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). SECTION 5 - RETENTION OF POSITIONS WITH ENTITIES IN WHICH I HAVE A FINANCIAL INTEREST I will retain my unpaid positions as managing member of 1116 South Main Street, LLC, 781 Fifth Avenue, LLC, and El Vedado LLC. I am the sole member of each of these entities. The sole assets of 1116 South Main Street, LLC, and 781 Fifth Avenue, LLC are personal residences. El Vedado LLC will divest a small interest that it holds in WL Ross Group, LP, and thereafter its sole asset will be a personal residence. These entities will not acquire new assets during my appointment as Secretary, except that, if the residences are sold, the proceeds will be reinvested in cash, cash equivalents, obligations of the United States, or investment funds that qualify for the exemption at 5 C.F.R. ? 2640.201(a). I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of 1116 South Main Street, LLC, 781 Fifth Avenue, LLC, and El Vedado LLC or their underlying assets for as long as I own them, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). SECTION 6 - RESIGNATIONS FROM POSITIONS WITH ENTITIES IN WHICH I HAVE NO FINANCIAL INTERESTS Upon confirmation, I will resign from my positions with the following entities: 1. American Friends of the Rene Magritte Museum 2. Blenheim Foundation USA 3. British American Business 4. Brookings Economic Studies Council 5. Brookings Institution 6. Harvard Business School Club of New York 7. Musee des Arts Decoratifs 8. Palm Beach Civic Association 9. Palm Beach Preservation Foundation 10. Palm Beach Retirement Funds 11. The Japan Society, Inc. 12. The Partnership for New York City I do not hold any financial interest in any of these entities. For a period of one year after my resignation from each of these entities, I will not participate personally and substantially in any particular matter involving specific parties in which I know that entity is a party or represents a party, unless I am first authorized to participate, pursuant to 5 C.F.R. ? 2635.502(d). Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 12 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 4 SECTION 7 - RESIGNATIONS FROM POSITIONS WITH ENTITIES IN WHICH I HAVE FINANCIAL INTERESTS AND AM RETAINING THOSE INTERESTS Upon confirmation, I will resign from my positions with the following entities: 1. 2. 3. 4. 5. 6. 7. The Briarcliff Condominium Apartment Building DSS Holdings LP (Diamond S Shipping and Diamond S Shipping Group Inc.) Starboard GP Ltd. (Cayman) Starboard WLR Associates L.P. WLR Cardinal Associates Ltd. WLR Recovery Associates IV DSS AIV GP, Ltd. (Cayman) WLR Recovery Associates V DSS AIV GP, Ltd. (Cayman) I hold a financial interest in each of these entities. Accordingly, with regard to each of these entities, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of the entity or its underlying assets for as long as I own it, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). SECTION 8 - RESIGNATIONS FROM POSITIONS WITH ENTITIES IN WHICH I HAVE FINANCIAL INTERESTS AND AM DIVESTING THOSE INTERESTS Upon confirmation, I will resign from my positions with the following entities: 1. 2. 3. 4. 5. 6. Absolute Recovery Capital Partners, LLC Absolute Recovery Hedge Fund, Ltd.; Absolute Recovery Master Fund Ltd. ArcelorMittal Bank of Cyprus Euro Wagon Ltd. (position with Euro Wagon Ltd., divesting Euro Wagon L.P) Euro Wagon II Ltd. (position with Euro Wagon II Ltd., divesting Euro Wagon II L.P) 7. India Asset Recovery Associates LLC 8. India Asset Recovery GP Ltd. (Cayman) 9. India Asset Recovery Fund Limited (Mauritius) 10. Nexeo Solutions, Inc. 11. Ross CG GP LLC 12. Ross Expansion FLP, LP 13. Ross Expansion GP, LLC 14. Sun BanCorp. Inc. (Sun National Bank) 15. WLR China Energy Associates, Ltd. 16. WLR Euro Wagon Management Ltd. (Jersey) 17. WLR IV Loans AIV Feeder (Cayman), Ltd. 18. WLR Master Co-Investment SLP GP, Ltd. 19. WLR Recovery Associates II LLC 20. WL Ross Group (Cayman) Ltd. Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 13 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 5 21. WLR-SC Financing Conduit LLC 22. WLR Select Associates DSS GP, Ltd. I hold a financial interest in each of these entities. Following my confirmation, I will divest my financial interest in each of these entities as set forth in Section 9 (Assets To Be Divested) below and in Attachment A. With regard to each of these entities, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of the entity until I have divested it, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). For a period of one year after my resignation from each of these entities, I also will not participate personally and substantially in any particular matter involving specific parties in which I know that entity is a party or represents a party, unless I am first authorized to participate, pursuant to 5 C.F.R. ? 2635.502(d). SECTION 9 - ADDITIONAL ASSETS TO BE DIVESTED I will divest all of my financial interests in the entities identified in Attachment A. With regard to each of the entities identified in Attachment A, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of the entity until I have divested it, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). Attachment A specifies the timeframes for divesting these assets, specifically providing for the divestiture of some assets to occur within 90 days and for the divestiture of other assets to occur within 180 days. The reason for extending the timeframe to 180 days for certain assets is that these assets are illiquid and it may take longer to divest them. I am, however, committed to divesting all of these assets as promptly as is reasonably practicable, and I may not need the entire 180-day period to complete all divestitures. As to the assets subject to the 180-day deadline, you have advised me that you may be willing to consider a brief extension of up to 60 days for a subset of these assets, provided that I demonstrate that I have made substantial progress toward completing the divestiture of all of these assets by the end of the 180-day time period. SECTION 10 - ASSETS TO BE RETAINED I will retain my financial interests in the following entities: 1. 2. 3. 4. 5. 6. 7. Starboard GP Ltd. Starboard WLR Associates, L.P. WLR IMRF II Associates LLC WLR/IVZ Mortgage Recovery Associates LLC WLR Mezzanine Associates LLC WLR Recovery Associates IV DSS AIV, L.P. WLR Recovery Associates IV DSS AIV GP, Ltd. Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 14 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 6 8. WLR Recovery Associates V DSS AIV, L.P. 9. WLR Recovery Associates V DSS AIV GP, Ltd. With regard to each of these entities, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on the financial interests of the entity, unless I first obtain a written waiver, pursuant to 18 U.S.C. ? 208(b)(1), or qualify for a regulatory exemption, pursuant to 18 U.S.C. ? 208(b)(2). The holdings of these entities are limited to the following sectors: (1) real estate financing and mortgage lending, and (2) transoceanic shipping. The following entities are no longer acquiring new assets, and they will not acquire any new assets during my appointment to my position as Secretary: WLR/IVZ Mortgage Recovery Associates LLC; WLR Mezzanine Associates LLC; WLR Recovery Associates IV DSS AIV, L.P.; WLR Recovery Associates IV DSS AIV GP, Ltd.; WLR Recovery Associates V DSS AIV, L.P.; and WLR Recovery Associates V DSS AIV GP, Ltd. The following entities are not fully invested, but are contractually limited to investing in the same sector in which they already are investing: Starboard GP Ltd.; Starboard WLR Associates, L.P.; and WLR IMRF II Associates LLC. My retained interests in these three entities will be solely as a passive investor, without prior knowledge of or influence over investment decisions made by the funds' managers. As the senior ethics official for the Department of Commerce, you have advised me that it is not necessary at this time for me to divest the entities identified in this section, inasmuch as the likelihood that I will need to participate in any particular matter affecting these entities is remote. However, I will remain vigilant in identifying any particular matters affecting the interests of these entities and their holdings, including both particular matters involving specific parties and particular matters of general applicability. You have explained that particular matters of general applicability are much broader than particular matters involving specific parties because they include every matter that is focused on the interests of a discrete and identifiable class of persons, such as an industry. SECTION 11 - ETHICS IN GOVERNMENT ACT RESTRICTION Upon confirmation, I will not permit my name to be used by any firm, partnership, association, corporation, or other entity that provides professional services involving a fiduciary relationship, pursuant to 5 U.S.C. app. ? 502(a)(2). Invesco previously acquired all rights to the name "WL Ross & Co." I made a good faith request to Invesco that the following entities discontinue using my name if I am confirmed: W.L. Ross & Co., LLC and WL Ross & Co. (India) LLC. In connection with this request, I specifically advised them that you have indicated the use of initials would be acceptable in place of "Ross." Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 15 of 18 Mr. David Maggi .AlttttWe Designaled Agency Ethics Official Pagc7 SECrlON 12 ~ ADDmONALACflONS, ETHICS BRIEFING Following CODfinnation :and befo~ I assume the duties of the position of Secretary, I will provide you with a list of eveey ~t thal I uqnircd subsequent ro filing my nominee financial disclosure report. I will abide by your decision regarding the divestiture or retention of these mets and, if you d.itt.cl the divcstitDJC of any ~t, I will accomplish the dive..~itmc wilhin 90 days of my confirmation. If any of the ~ts specifically identified in Section 10 a.c; be.ing retained acquire DCW assets, I undeIStand that you will not require divcstitu1e unless you make a dctennination that the ~t bas acq_uired a conilicting ~ in a sector other than the rwo sccton;; idencificd in St.Ction 10 and that recusal is inadvisable... 1 will meet iD ~on with you during the first week of my suvice in the position of Secretary in order to complete tbe inilial ethics briefing required under S C.F.R.. ? 2638.305. You have explained tha4 pursnant to 26U.S.C.?1043(a)-(bX1), l will not be eligt"ble for a Certificate of Divestiture fot any a.~ being divested by an investmc:nt vehicle, such as a c.orpora~ a limited liability rompuy, a. limited partnership, or other types of legal entities.. You have also explained that. pursuant to S C.F.R. ? 2634.1007(b), I will not be eligible for a Certificate of Divcstinue !or any of these assets that are ..similar or rclaled" t.o assets that I am retaining. However, I understand that I may be eligible to request a c.enificatc of Dive.c;titure for qualifying assets and tba.t a. Cettific:ate of Divestiture is cffcccive only if obtained prior to divestiture. Regardless of whether I receive ll Cenificate of Divestiture, I will ensure that all divcstimrcs discussed in this agreemcDt occur within the agreed upon timcframe.~ and that all prOceed.s 111C invested in "pe:tmiUed property" as defined 5 C.F.R. ? 2634.1003. In re.~ of any interest or asset th2l l wiJl divest as proVided in this agteeinent. l am authoriud to participate in my personal capacity in th~ divestiture process to the extent occcssazy to comply with amtr.sctual or legal requirements necessary to facilitaU: such divestitwe, subject to any applicable ethics restrictions in conflict of interest laws and government edrics rcgulalio.os.. Among other such restridions, I understand that, as Secretary, I will be subjecl lO the eamed income ban under 5 C.F.R. ? 2635.804(a) and the rc~"trictions on c::om~tion under 5 CF.R. ?? 2636.305~2636.306: SECTION 13- PUBLIC POSTING OF AOREEMENI' I have been advised that this cthia:a agreement will be posted publicly, consistent with S U.S.C. ? 552, oo. the web!tite of the U.S. Office of Government Ethics with ethics agreements of other Presidential n,omiNes who file public financial di~osure rep0ns. Sincerely, G.J~~~ Wilbur L Ross Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 16 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 8 ATTACHMENT A -ADDITIONAL ASSETS TO BE DIVESTED I. The following entities will be divested within 90 days of confirmation: 1. Air Lease Corporation 2. Amphenol Corp CL A 3. Aperam NY Reg Shares 4. Apple Inc. 5. ArcelorMittal SA 6. Atara Biotherapeutics Inc Com 7. Bank of Cyprus 8. BankUnited, Inc. 9. Bear Stearns Co. Inc. 6.4% Oct 2, 2017 10. Bear Stearns Co. Inc. 7 1/4% Feb 1, 2018 11. Boeing Co. 12. CDW Corp Com USD0.01 13. Chevron Corp New Com 14. Citigroup Inc Bond Perpetual 6.25000% 15. CME Group Inc. 16. FireEye Inc. 17. HSBC HLDGS PLC PERP SUB CAP SECS 18. Intercontinental Exchange, Inc. 19. Invesco Core Plus Fixed Income Fund 20. Invesco Private Capital Investments, Inc. 21. Invesco Private Capital, Inc. 22. Invesco WLR Limited 23. Invesco WLR Private Equity Investment Management, Ltd. 24. Merck & Co. Inc New Com 25. Moody's Corp. 26. MSCI Inc Com 27. Neustar Inc CL A 28. Ocwen Financial Corporation 29. SSgA Inflation Protected Bond Index Fund 30. SSgA U.S. Bond Index Non-Lending Series Fund Class C 31. Sun Bancorp, Inc. (Sun National Bank) 32. SVB Finl Group 33. Verisk Analytics Inc. 34. Wells Fargo & Co New Dep SHS REPSTG 35. Wex Inc. 36. WL Ross & Co (India) LLC 37. WL Ross & Co LLC 38. XTO Energy Corp 61/2% Dec 15, 2018 39. XTO Energy Inc. SR NTS 6.500% Matures 12/15/18 40. Zoetis Inc. Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 17 of 18 Mr. David Maggi Alternate Designated Agency Ethics Official Page 9 II. The following entities will be divested within 180 days of confirmation: 1. 2. 3. 4. 8 Partners VC Fund I, L.P. SVC Angel Fund I, L.P. Absolute Recovery Capital Partners LLC Absolute Recovery Hedge Fund, Ltd.; Absolute Recovery Master Fund Ltd. 5. Euro Wagon II L.P. 6. Euro Wagon L.P. 7. Formations Partners Entrepreneur Fund II S. Formations Partners Fund I 9. India Asset Recovery Associates LLC 10. India Asset Recovery Fund Limited (Mauritius) 11. India Asset Recovery GP Ltd. (Cayman) 12. Nexeo Solutions, Inc. 13. Ross CG GP LLC 14. Ross Expansion FLP, LP 15. Ross Expansion GP LLC 16. Ross FOF LLC 17. WLRoss GP LLC 18. WL Ross Group LP 19. WL Ross Sponsor LLC 20. WLR China Energy Associates, Ltd. 21. WLR Conduit MM LLC 22. WLR Euro Wagon Management Ltd. (Jersey) 23. WLR IV Loans AIV Feeder (Cayman), Ltd. 24. WLR Master Co-Investment GP, LLC 25. WLR Master Co-Investment SLP Associates LP (Cayman) 26. WLR Master Co-Investment SLP GP, LTD (Cayman) 27. WLR Master Co-Investment SLP, LLC 28. WLR Nanotechnology GP LLC 29. WLR Nanotechnology LP LLC 30. WLR Recovery Associates II, LLC 31. WLR Recovery Associates III, LLC 32. WLR Recovery Associates IV LLC 33. WLR Recovery Associates LLC 34. WLR Recovery Associates V LLC 35. WLR Ross Group (Cayman) Ltd. 36. WLR Select Associates DSS GP, Ltd. 37. WLR Select Associates DSS, L.P. 3S. WLR Select Associates LLC 39. WLR-SC Financing Conduit LLC 40. YG Partners Fund, LP Case 1:19-cv-00575 Document 1-1 Filed 03/01/19 Page 18 of 18 January 31 , 2017 Mr. David Maggi Alternate Designated Agency Ethics Official U. S. Department of Commerce 1401 Constitution Avenue, N.W. Washington, D.C. 20230 Dear Mr. Maggi: The purpose of this letter is to supplement my ethics agreement signed on January 15, 2017. The following information supplements my ethics agreement: I understand that as an appointee I will be required to sign the Ethics Pledge required under the Executive Order dated January 28, 201 7 ("Ethics Commitments by Executive Branch Appointees") and that I will be bound by the requirements and restrictions therein in addition to the commitments I made in the ethics agreement I signed on January 15, 2017. I have been advised that this supplement to my ethics agreement will be posted publicly, consistent with 5 U.S.C. ? 552, on the website of the U.S. Office of Government Ethics with ethics agreements of other Presidential nominees who file public financial disclosure reports. Sincerely, U0~J-~ Wilbur L. Ross