Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF THE TREASURY, ) 1500 Pennsylvania Avenue NW ) Washington, DC 20220 ) ) and ) ) OFFICE OF THE COMPTROLLER OF THE ) CURRENCY ) 400 7th Street SW ) Washington, DC 20219 ) ) Defendants. ) ) AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 Case No. 20-691 COMPLAINT 1. Plaintiff American Oversight brings this action against the U.S. Department of the Treasury and the Office of the Comptroller of the Currency 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). 1 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 2 of 13 4. Because Defendants have 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 agencies from 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 it gathers, 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 the U.S. Department of the Treasury (Treasury) 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). Treasury has possession, custody, and control of the records that American Oversight seeks. 7. Defendant the Office of the Comptroller of the Currency (OCC) is an independent bureau within Treasury, headquartered in Washington, DC. It is an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). OCC has possession, custody, and control of the records that American Oversight seeks. 2 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 3 of 13 STATEMENT OF FACTS 8. On October 22, 2019, American Oversight submitted FOIA requests to Treasury and OCC seeking records of their communications, if any, with members of Congress, congressional staff, or specific financial institutions regarding the regulation of high-risk, leveraged loans. Treasury FOIA 9. On October 22, 2019, American Oversight submitted a FOIA request to Treasury seeking the following records: All email communications (including email messages, email attachments, calendar invitations, and calendar invitation attachments) sent by any of the Treasury officials specified below to any of the external individuals or entities specified below regarding regulation of leveraged loans. Treasury Officials 1. Steven Mnuchin, Secretary of the Treasury, including but not limited to the email address steven.mnuchin@treasury.gov, and anyone communicating on his behalf, such as an executive or special assistant or scheduler 2. Justin Muzinich, Deputy Secretary of the Treasury, including but not limited to the email address justin.muzinich@treasury.gov 3. Eli Miller, Former Chief of Staff, including but not limited to the email address eli.miller@treasury.gov 4. Anyone serving as Chief of Staff to the Secretary, including in an acting capacity 5. Bimal Patel, Assistant Secretary for Financial Institutions, including but not limited to the email address bimal.patel@treasury.gov 6. Christopher Campbell, Former Assistant Secretary for Financial Institutions, including but not limited to the email address christopher.campbell@treasury.gov 7. Craig Phillips, Former Counselor to the Secretary, including but not limited to the email address craig.phillips@treasury.gov 3 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 4 of 13 8. Stephen Ledbetter, Director of Policy, Financial Stability Oversight Committee, including but not limited to the email address stephen.ledbetter@treasury.gov 9. Dino Falaschetti, Director, Office of Financial Research, including but not limited to the email address dino.falaschetti@treasury.gov 10. Cornelius Crowley, Deputy Director, Office of Financial Research, including but not limited to the email address cornelius.crowley@treasury.gov 11. Stacey Schreft, Deputy Director, Office of Financial Research, including but not limited to the email address stacey.schreft@treasury.gov 12. Anyone serving in the role of White House Liaison or White House Advisor, including deputies External Entities Senate 1. Senator Ben Sasse, including but not limited to any email addresses ending in @sasse.senate.gov 2. Senator Bill Cassidy, including but not limited to any email addresses ending in @cassidy.senate.gov 3. Senator David Perdue, including but not limited to any email addresses ending in @perdue.senate.gov 4. Senator John Kennedy, including but not limited to any email addresses ending in @kennedy.senate.gov 5. Senator Mike Crapo, including but not limited to any email addresses ending in @crapo.senate.gov 6. Senator Mitch McConnell, including but not limited to any email addresses ending in @mcconnell.senate.gov 7. Senator Patrick Toomey, including but not limited to any email addresses ending in @toomey.senate.gov 8. Senator Richard Shelby, including but not limited to any email addresses ending in @shelby.senate.gov 9. Senator Thom Tillis, including but not limited to any email addresses ending in @tillis.senate.gov 10. Senator Tim Scott, including but not limited to any email addresses ending in @scott.senate.gov 11. Senator Tom Cotton, including but not limited to any email addresses ending in @cotton.senate.gov House of Representatives 1. Representative Ann Wagner, including but not limited to the email addresses ann.wagner@mail.house.gov, charlie.keller@mail.house.gov, and rachel.wagley@mail.house.gov 2. Representative Bill Huizenga, including but not limited to the email addresses bill.huizenga@mail.house.gov, 4 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 5 of 13 jon.dewitte@mail.house.gov, and palmer.rafferty@mail.house.gov 3. Representative Blaine Luetkemeyer, including but not limited to the email addresses blaine.luetkemeyer@mail.house.gov, chad.ramey@mail.house.gov, and hailey.hart@mail.house.gov 4. Representative Bryan Steil, including but not limited to the email addresses bryan.steil@mail.house.gov, ryan.carney@mail.house.gov, and david.goldfarb@mail.house.gov 5. Representative French Hill, including but not limited to the email addresses french.hill@mail.house.gov, brooke.bennett@mail.house.gov, dylan.frost@mail.house.gov, and steven.smith@mail.house.gov 6. Representative Kevin McCarthy, including but not limited to the email addresses kevin.mccarthy@mail.house.gov, james.min@mail.house.gov, and kyle.lombardi@mail.house.gov 7. Representative Steve Stivers, including but not limited to the email addresses steve.stivers@mail.house.gov, courtney.whetstone@mail.house.gov, and mark.gilbride@mail.house.gov Trade Associations 1. Clearing House Association, including but not limited to any email addresses ending in @theclearinghouse.org 2. Bank Policy Institute, including but not limited to any email addresses ending in @bpi.com 3. Loan Syndications and Trading Association, including but not limited to any email addresses ending in @lsta.org 4. American Bankers Association, including but not limited to any email addresses ending in @aba.com 5. Securities Industry and Financial Markets Association, including but not limited to any email addresses ending in @sifma.org 6. Financial Services Forum, including but not limited to any email addresses ending in @fsforum.com 7. American Investment Council, including but not limited to any email addresses ending in @investmentcouncil.org Financial Institutions 1. Goldman Sachs, including but not limited to any email addresses ending in @gs.com 2. J.P. Morgan, including but not limited to any email addresses ending in @jpmorgan.com 5 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 6 of 13 3. Barclays, including but not limited to any email addresses ending in @barclays.com 4. Bank of America, including but not limited to any email addresses ending in @bofa.com 5. Credit Suisse, including but not limited to any email address ending in @credit-suisse.com 6. Deutsche Bank, including but not limited to any email address ending in @db.com 7. Citigroup, including but not limited to any email address ending in @citigroup.com 8. Wells Fargo, including but not limited to any email address ending in @wellsfargo.com 9. American International Group, including but not limited to any email address ending in @aig.com 10. MetLife, including but not limited to any email address ending in @metlife.com American Oversight believes that records containing the terms below are likely to be responsive records, and American Oversight requests that the government, at a minimum, employ these search terms to identify responsive records: 1. “leveraged loan” 2. “leveraged lending” 3. “leveraged finance” 4. “junk loan” 5. “collateralized loan obligation” 6. “CLO” 7. “covenant-lite” 8. “document-lite” 9. “zombie companies” In an effort to accommodate the government and reduce the number of responsive records to be processed and produced, American Oversight has limited its request to emails sent by the specified custodians. To be clear, however, American Oversight still requests that complete email chains be produced, displaying both the sent messages and the prior received messages in each email chain. This means, for example, that both a government official’s response to an email from one of the external entities and the initial received message are responsive to this request and should be produced. 10. American Oversight requested that Treasury provide all responsive records from November 9, 2016, through the date of the search. 6 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 7 of 13 11. By letter dated October 28, 2019, Treasury acknowledged American Oversight’s FOIA request and assigned it the tracking number 2019-10-133. 12. American Oversight has received no further communications from Treasury regarding its FOIA request. OCC FOIA 13. On October 22, 2019, American Oversight submitted a FOIA request to OCC seeking the following records: All email communications (including email messages, email attachments, calendar invitations, and calendar invitation attachments) sent by any of the OCC officials specified below to any of the external individuals or entities specified below regarding regulation of leveraged loans. OCC Officials 1. Joseph Otting, Comptroller of the Currency, including but not limited to the email address joseph.otting@occ.treas.gov, and anyone communicating on his behalf, such as an executive or special assistant, or scheduler 2. Morris Morgan, Senior Deputy Comptroller, including but not limited to the email address morris.morgan@occ.treas.gov 3. Jonathan Gould, Senior Deputy Comptroller, including but not limited to the email address jonathan.gould@occ.treas.gov 4. Grovetta Gardineer, Senior Deputy Comptroller, including but not limited to the email address grovetta.gardineer@occ.treas.gov 5. Maryann Kennedy, Senior Deputy Comptroller, including but not limited to the email address maryann.kennedy@occ.treas.gov 6. Michael Sullivan, Senior Deputy Comptroller, including but not limited to the email address michael.sullivan@occ.treas.gov 7. Ralph DeLeon, Director for Banking Relations, including but not limited to the email address ralph.deleon@occ.treas.gov 7 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 8 of 13 8. Carrie Moore, Director for Congressional Relations, including but not limited to the email address carrie.moore@occ.treas.gov External Entities Senate 1. Senator Ben Sasse, including but not limited to any email addresses ending in @sasse.senate.gov 2. Senator Bill Cassidy, including but not limited to any email addresses ending in @cassidy.senate.gov 3. Senator David Perdue, including but not limited to any email addresses ending in @perdue.senate.gov 4. Senator John Kennedy, including but not limited to any email addresses ending in @kennedy.senate.gov 5. Senator Mike Crapo, including but not limited to any email addresses ending in @crapo.senate.gov 6. Senator Mitch McConnell, including but not limited to any email addresses ending in @mcconnell.senate.gov 7. Senator Patrick Toomey, including but not limited to any email addresses ending in @toomey.senate.gov 8. Senator Richard Shelby, including but not limited to any email addresses ending in @shelby.senate.gov 9. Senator Thom Tillis, including but not limited to any email addresses ending in @tillis.senate.gov 10. Senator Tim Scott, including but not limited to any email addresses ending in @scott.senate.gov 11. Senator Tom Cotton, including but not limited to any email addresses ending in @cotton.senate.gov House of Representatives 1. Representative Ann Wagner, including but not limited to the email addresses ann.wagner@mail.house.gov, charlie.keller@mail.house.gov, and rachel.wagley@mail.house.gov 2. Representative Bill Huizenga, including but not limited to the email addresses bill.huizenga@mail.house.gov, jon.dewitte@mail.house.gov, and palmer.rafferty@mail.house.gov 3. Representative Blaine Luetkemeyer, including but not limited to the email addresses blaine.luetkemeyer@mail.house.gov, chad.ramey@mail.house.gov, and hailey.hart@mail.house.gov 4. Representative Bryan Steil, including but not limited to the email addresses bryan.steil@mail.house.gov, ryan.carney@mail.house.gov, and david.goldfarb@mail.house.gov 8 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 9 of 13 5. Representative French Hill, including but not limited to the email addresses french.hill@mail.house.gov, brooke.bennett@mail.house.gov, dylan.frost@mail.house.gov, and steven.smith@mail.house.gov 6. Representative Kevin McCarthy, including but not limited to the email addresses kevin.mccarthy@mail.house.gov, james.min@mail.house.gov, and kyle.lombardi@mail.house.gov 7. Representative Steve Stivers, including but not limited to the email addresses steve.stivers@mail.house.gov, courtney.whetstone@mail.house.gov, and mark.gilbride@mail.house.gov Trade Associations 1. Clearing House Association, including but not limited to any email addresses ending in @theclearinghouse.org 2. Bank Policy Institute, including but not limited to any email addresses ending in @bpi.com 3. Loan Syndications and Trading Association, including but not limited to any email addresses ending in @lsta.org 4. American Bankers Association, including but not limited to any email addresses ending in @aba.com 5. Securities Industry and Financial Markets Association, including but not limited to any email addresses ending in @sifma.org 6. Financial Services Forum, including but not limited to any email addresses ending in @fsforum.com 7. American Investment Council, including but not limited to any email addresses ending in @investmentcouncil.org Financial Institutions 1. Goldman Sachs, including but not limited to any email addresses ending in @gs.com 2. J.P. Morgan, including but not limited to any email addresses ending in @jpmorgan.com 3. Barclays, including but not limited to any email addresses ending in @barclays.com 4. Bank of America, including but not limited to any email addresses ending in @bofa.com 5. Credit Suisse, including but not limited to any email address ending in @credit-suisse.com 6. Deutsche Bank, including but not limited to any email address ending in @db.com 7. Citigroup, including but not limited to any email address ending in @citigroup.com 8. Wells Fargo, including but not limited to any email address ending in @wellsfargo.com 9 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 10 of 13 9. American International Group, including but not limited to any email address ending in @aig.com 10. MetLife, including but not limited to any email address ending in @metlife.com American Oversight believes that records containing the terms below are likely to be responsive records, and American Oversight requests that the government, at a minimum, employ these search terms to identify responsive records: 1. “leveraged loan” 2. “leveraged lending” 3. “leveraged finance” 4. “junk loan” 5. “collateralized loan obligation” 6. “CLO” 7. “covenant-lite” 8. “document-lite” 9. “zombie companies” In an effort to accommodate the government and reduce the number of responsive records to be processed and produced, American Oversight has limited its request to emails sent by the specified custodians. To be clear, however, American Oversight still requests that complete email chains be produced, displaying both the sent messages and the prior received messages in each email chain. This means, for example, that both a government official’s response to an email from one of the external entities and the initial received message are responsive to this request and should be produced. 14. American Oversight requested that OCC provide all responsive records from November 9, 2016, through the date of the search. 15. On October 22, 2019, OCC acknowledged American Oversight’s FOIA request and assigned it tracking number 2020-00022-F. 16. American Oversight has received no further communications from OCC regarding the Adelson Communications FOIA. Exhaustion of Administrative Remedies 17. As of the date of this complaint, Defendants have failed to (a) notify American Oversight of any determination regarding its FOIA requests, including the scope of any 10 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 11 of 13 responsive records Defendants intend 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. 18. Through Defendants’ 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 19. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 20. American Oversight properly requested records within the possession, custody, and control of Defendants. 21. Defendants are subject to FOIA, and they must therefore make reasonable efforts to search for requested records. 22. Defendants have failed to promptly review agency records for the purpose of locating those records that are responsive to American Oversight’s FOIA requests. 23. Defendants’ failure to conduct an adequate search for responsive records violates FOIA and the agencies’ regulations. 24. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring Defendants to promptly make reasonable efforts to search for records responsive to American Oversight’s FOIA requests. 11 Case 1:20-cv-00691 Document 1 Filed 03/10/20 Page 12 of 13 COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Responsive Records 25. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 26. American Oversight properly requested records within the possession, custody, and control of Defendants. 27. Defendants are subject to FOIA, and they must therefore release in response to a FOIA request any non-exempt records and provide a lawful reason for withholding any materials. 28. Defendants are wrongfully withholding non-exempt agency records requested by American Oversight by failing to produce non-exempt records responsive to its FOIA requests. 29. Defendants are 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. 30. Defendants’ failure to provide all non-exempt responsive records violates FOIA and the agencies’ regulations. 31. 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 1:20-cv-00691 Document 1 Filed 03/10/20 Page 13 of 13 REQUESTED RELIEF WHEREFORE, American Oversight respectfully requests the Court to: (1) Order Defendants to conduct a search or searches reasonably calculated to uncover all records responsive to Plaintiff’s FOIA requests; (2) Order Defendants 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 Plaintiff’s FOIA requests and indexes justifying the withholding of any responsive records withheld under claim of exemption; (3) Enjoin Defendants from continuing to withhold any and all non-exempt records responsive to Plaintiff’s FOIA requests; (4) Award Plaintiff 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 Plaintiff such other relief as the Court deems just and proper. Dated: March 10, 2020 Respectfully submitted, /s/ Hart W. Wood Hart W. Wood DC Bar No. 1034361 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 873-1743 hart.wood@americanoversight.org Counsel for Plaintiff 13