First Amendment Clinic Obtains 18 More of DOJ's Secret Deals with Corporate Offenders

Jon Ashley, Josh Wheeler and Ben Teeger

Research librarian and lawsuit plaintiff Jon Ashley, First Amendment Clinic director Josh Wheeler and recent clinic student Ben Teeger stand with a copy of the lawsuit that forced the latest disclosures.

June 4, 2015

The First Amendment Clinic at the University of Virginia School of Law has prevailed in its latest Freedom of Information Act lawsuit against the Department of Justice. The clinic recently obtained copies of 18 deals the department made with big businesses and other entities to settle alleged federal violations — agreements the DOJ at first attempted to shield from public view. Students in this year's clinic helped research, draft and file the lawsuit that forced the government's hand.

The clinic acquired the non-prosecution and deferred prosecution agreements, which include among them the government's $75 million settlement with Edward Jones , through negotiations that ended in May. The yearlong clinic offers students practical legal experience in free speech and press issues, and is conducted in conjunction with the Thomas Jefferson Center for the Protection of Free Expression and the Reporters Committee for Freedom of the Press.

UVA Law research librarian Jon Ashley served as plaintiff in the November lawsuit, as well as in a test lawsuit the clinic won in March 2014, after being denied 30 agreements while preparing a database of Federal Organizational Prosecution Agreements with Professor Brandon Garrett. Many of Garrett's insights from the database went into his latest book, " Too Big to Jail: How Prosecutors Compromise with Corporations. "

Ben Teeger, a 2015 LL.M. graduate, and Lea Patterson, a third-year J.D. student, participated in the clinic and shared the primary responsibility for drafting the Freedom of Information Act lawsuit.

"There was a delay of about seven months from the time Jon lodged his 'super-FOIA' request until we received a substantive response from the Justice Department," Teeger said. "On this basis, we treated the Justice Department as having constructively denied Jon's request, which is why we filed suit. I think it was the fact that we filed suit that precipitated meaningful action on their part."

Teeger practices intellectual property and media law in his native Australia, and said he was fortunate to have been given a live case to work on during his relatively short time in the United States.

"As a foreign lawyer, being able to arrive in the country, and the next minute be involved in active litigation, is perhaps unique, and very lucky," he said.

In addition to drafting the complaint, Teeger and Patterson were responsible for the ongoing management of the litigation, which included conducting legal research and preparing correspondence with the Justice Department. The students worked under the supervision of clinic leaders Josh Wheeler '92 , the director of the Thomas Jefferson Center for the Protection of Free Expression, and Bruce Brown , the executive director of the Reporters Committee for Freedom of the Press.

Katie Townsend, a 2007 Law School graduate who serves as the Reporter Committee's litigation director, and Adam Marshall, a legal fellow with the group, helped the students formulate strategy and fine-tune the complaint.

"While we were there providing oversight and guidance, the students took the lead when it came to developing the facts and putting us in a position to reach a favorable resolution," Townsend said. "It was a great outcome for the client, and a great learning experience for the students."

Townsend is also an alum of the First Amendment Clinic.

"The clinic, along with the First Amendment law course taught, at the time, by Professor Bob O'Neill , helped solidify my passion for media and First Amendment work," she said. "I'm sure I would not be where I am today in my career — representing reporters and news organizations full-time in press freedom and access matters — were it not for my experiences at UVA Law."

The Freedom of Information Act often serves as a tool for journalists and others seeking government transparency. The law requires federal agencies to publicly disclose the documents they generate in the course of doing business — unless a legally exempted reason, such as a secret in the interest of national security, dictates otherwise.

Although the government ultimately said it couldn't find a number of the requested agreements (some of which may have been generated before digital record-keeping), it determined that it had the power to release all but one, which the department said was sealed by court order.

"To this day, we do not understand why prosecutors agreed to seal [the documents]," Garrett said. "While we may not have good answers, we are pleased that the Department of Justice made efforts to locate the agreements and has provided most of them, at least."

The organizations that entered into the agreements were accused of such diverse crimes as fraudulent business practices, hiring undocumented workers, illegal storage of toxic waste and poaching endangered species. While the agreements are not considered an admission of guilt, they often entail fines and corrective actions.

Garrett and Ashley said they wanted to see the details of the Edward Jones "deferred consideration agreement" from 2004, for example, in order to better understand the conflict of interest to investors and the requirements for the company to remain in compliance with the agreement.

But other agreements they sought were not finance-related, and some were not even business-related. The pair simply ran across mentions of the agreements while doing their research and wondered why they weren't available to the public.

One such agreement is with the Roman Catholic Archbishop of Boston in 2005, which reveals details of corrective action after the church allegedly failed to report a known pedophile, "Father John Doe," during a routine background check. The priest sought and ultimately obtained work at the Department of Veterans Affairs. The agreement also reveals the federal government's broader oversight of the church in the effort to protect children from future sexual abuse.

Garrett and Ashley said they will sort through the new information in the coming weeks to determine if the contents reveal additional insights.

"I am incredibly grateful to the First Amendment clinic," Garrett said. "These agreements, which Jon and I have been seeking for years now, will add to our research and our efforts to create a public resource for all who are interested in studying how corporate prosecutions are litigated and typically settled."

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