Bioscience Advisors, Inc. v. United States Securities and Exchange Commission

• Court: District Court, N.D. California
• Decided: February 8, 2022
• Docket: 4:21-cv-00866
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BIOSCIENCE ADVISORS, INC., Case No. 21-cv-00866-HSG 8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 9 v. DISMISS 10 UNITED STATES SECURITIES AND Re: Dkt. No. 33 EXCHANGE COMMISSION, et al., 11 Defendants. 12 13 Now before the Court is a Motion to Dismiss filed by Defendants United States Securities 14 and Exchange Commission; Gary Gensler, in his official capacity as Chair of the Securities and 15 Exchange Commission; National Archives and Records Administration; and David S. Ferriero, in 16 his official capacity as the Archivist of the United States, for which briefing is now complete. See 17 Dkt. Nos. 33 (“Mot.”), 35 (“Opp.”), 37 (“Reply”). For the reasons detailed below, the Court 18 GRANTS IN PART and DENIES IN PART the motion.1 19 I. BACKGROUND 20 This case involves two Administrative Procedure Act (“APA”) claims challenging the 21 National Archives and Records Administration’s (“NARA”) approval and the Securities and 22 Exchange Commission’s (“SEC”) adoption of a records disposition schedule providing for the 23 disposition of certain temporary records three years after the entry of a confidential treatment 24 order. The remaining two causes of action allege the destruction of records in violation of the 25 Federal Records Act and the denial of requested documents under the Freedom of Information Act 26 (“FOIA”). 27 A. Statutory Background 1 i. The Federal Records Act 2 “The Federal Records Act is a collection of statutes governing the creation, management, 3 and disposal of records by federal agencies.” Pub. Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir. 4 1999) (citing 44 U.S.C. §§ 2101-18, 2901-09, 3101-07, 3301-24). The Act requires that federal 5 agencies “make and preserve records containing adequate and proper documentation of the 6 organization, functions, policies, decisions, procedures, and essential transactions of the agency . . 7 . to protect the legal and financial rights of the Government and of persons directly affected by the 8 agency’s activities.” 44 U.S.C. § 3101. “The Federal Records Act entrusts the Archivist, who is 9 the head of NARA, to provide ‘guidance and assistance to Federal agencies’ to ensure that such 10 federal records are properly preserved.” Citizens for Resp. & Ethics in Washington v. Nat’l 11 Archives & Recs. Admin., 2021 WL 950142, at *1 (D.D.C. Mar. 12, 2021) (“Crew II”) (quoting 44 12 U.S.C. § 2904(a)). 13 “The Archivist works cooperatively with federal agencies to determine which records an 14 agency must preserve in the archives and which records may be segregated and disposed because 15 of their ‘temporary value.’” Id. (quoting 44 U.S.C. § 3102(3)). “Agency heads request 16 ‘disposition authority’—permission to discard records—from the Archivist and submit to the 17 Archivist plans to dispose of records that are no longer ‘needed by [the agency] in the transaction 18 of its current business and that do not appear to have sufficient administrative, legal, research, or 19 other value to warrant their further preservation.’” Id. (quoting 44 U.S.C. § 3303(2)). These plans 20 can include “schedules proposing the disposal” of records that lose their “administrative, legal, 21 research, or other value” over time and do not qualify for permanent retention. 44 U.S.C. § 22 3303(3). After preparing a proposed schedule, the agency head then submits the schedule to the 23 Archivist for approval. 36 C.F.R. §§ 1220.12, 1225.12(i). The Archivist “examine[s] the lists and 24 schedules” and, following a public notice and comment period, determines if any of the records 25 “have sufficient, administrative, legal, research, or other value to warrant their continued 26 preservation” “after the lapse of the period specified.” 44 U.S.C. § 3303a(a). If the answer is no, 27 the Archivist may then empower the requesting agency to dispose of the records in accordance 1 with the proposed schedule. Id. § 3303a(a)(1)-(2). 2 In addition to the use and approval of records schedules, the Federal Records Act also “sets 3 forth a structure whereby the Archivist and agency heads are to work together to ensure that 4 documents are not unlawfully destroyed.” Citizens for Resp. & Ethics in Washington v. U.S. 5 S.E.C., 916 F.Supp.2d 141, 145 (D.D.C. 2013) (“Crew I”). For example, each agency head:

6 shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, 7 or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the 8 Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed 9 from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency. 10 44 U.S.C. § 3106(a). If the agency head does not initiate such an action, the Archivist “shall 11 request the Attorney General to initiate such action, and shall notify the Congress when such a 12 request has been made.” Id. § 3106(b). 13 ii. The Freedom of Information Act 14 Under FOIA, each agency is required to make public various records upon request, subject 15 to certain exceptions. 5 U.S.C. § 552. If an agency improperly withholds agency records in 16 response to a FOIA request, the party making the request may ask the district court to “to enjoin 17 the agency from withholding agency records and to order the production of any agency records 18 improperly withheld from the complainant.” Id. § 552(a)(4)(B). 19 B. SEC’s 2019 Amendment and 2020 Records Disposition Schedule 20 i. The 2019 Amendment 21 In April 2019, the SEC amended the disclosure requirements set out in Regulation S-K for 22 material contracts and other exhibits filed under the Securities Act and the Exchange Act. The 23 amendment (the “2019 Amendment”) permitted registrants to self-redact portions of confidential 24 filings if such redactions were “both not material and would likely cause competitive harm to the 25 registrant if publicly disclosed.” 17 C.F.R. § 229.601 (version effective January 31, 2022) (“Rule 26 601”). Previously, the only procedures for obtaining confidential treatment for exhibits filed 27 under the Exchange Act and Securities Act were set out in Exchange Act Rule 24b-2 (“Rule 24b- 1 2”) and Securities Act Rule 406 (“Rule 406”), which require registrants to submit a detailed 2 application to the SEC identifying the particular text for which confidential treatment is sought, a 3 statement of the legal grounds for the exemption, and an explanation of why, based on the facts 4 and circumstances of the particular case, disclosure of the information was unnecessary for the 5 protection of investors. Id. §§ 240.24b-2(b)(2), 230.406(b)(2). Upon receipt of an application, 6 known as a “confidential treatment request” or “CTR,” SEC staff evaluate whether the request 7 appears appropriate and whether to issue comments on the application. Id. §§ 240.24b-2(b)(2), 8 230.406(b)(2). 9 ii. The 2020 Schedule 10 Following the 2019 Amendment, the SEC developed a proposed records disposition 11 schedule for “[m]aterials submitted in support of a request for confidential treatment pursuant to 12 Rules 406 and 24b-2” and submitted the proposal to NARA for appraisal and approval. See 13 Records Schedule DAA-0266-2019-0002, available at https://www.archives.gov/files/records- 14 mgmt/rcs/schedules/independent-agencies/rg-0266/daa-0266-2019-0002_sf115.pdf.2 The 15 proposed schedule (the “2020 Schedule”) provided that all temporary materials justifying a request 16 for confidential treatment of information (and submitted under Rules 406 or 24b-2) were to be 17 disposed of three years after the entry of a confidential treatment order. Id. at 3; id. at 6 (“This 18 item covers materials voluntarily submitted by an entity requesting confidential treatment of 19 business information following the optional method of a traditional/legacy confidential treatment 20 request allowed by Rules 406 and 24b-2. This type of submission is no longer required by the 21 Commission but remains as an option for use at the discretion of the registrant at the time of a 22 filing.”). On November 25, 2019, a NARA staff appraiser prepared a memorandum evaluating 23 and recommending approval of the SEC’s proposed schedule. See NARA-19-0018-0003 (the 24

25 2 The Court takes notice of the SEC’s proposed schedule under the incorporation by reference doctrine because its contents are alleged in the complaint, the complaint “necessarily relies” on the 26 documents, the document’s authenticity is uncontested, and the document’s relevance is uncontested. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); United 27 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to a 1 “Appraisal”), available at https://www.regulations.gov/document/NARA-19-0018-0003.3 2 As background to the record schedule, the Appraisal’s “Additional Background 3 Information” section stated in relevant part:

4 Records schedule item DAA-0266-2014-0001-0001, Unredacted Exhibits made certain CTR materials filed with the Commission 5 permanent records because by law, they had to be managed and maintained separately in paper form from the related electronically 6 filed Registration Statements. In 2016, the SEC initiated a review of rules found in 17 CFR Chapter II pursuant to Section 610 of the 7 Regulatory Flexibility Act. The review led to changes in SEC regulations which eliminated the requirements for registrants to 8 request confidential treatment of portions of registration submissions. As a result, unredacted exhibits are no longer required to be submitted 9 to the Commission, and item DAA-0266-2014-0001-0001 is rendered obsolete and is superseded by item DAA-0266-2019-0002-0001 of 10 this proposed schedule. The revised regulations continue to allow entities to submit an elective confidential treatment request. If such a 11 request should occur, documents received by the Commission would be authorized for disposal under item DAA-0266-2019-0002-0001 12 Appraisal at 6. Finally, the Appraisal set out the following “Appraisal Justification”: 13 * Previously approved as temporary. 14 Confidential Treatment Request (CTR) Supplemental Materials, DAA-0266-2016-0001-0001 15 * Similar records have been approved as temporary. Commodity Futures Trading Commission, Petitions for Confidential 16 Treatment of Regulatory Filings, N1-180-00-001 / 313/a 17 Id. at 7. 18 Less than one month later, on December 18, 2019, NARA published a notice in the Federal 19 Register, inviting public comment on the proposed records schedule. See Records Schedules; 20 Availability and Request for Comments, 84 Fed. Reg. 69,395 (Dec. 18, 2019).4 After publication 21 of the notice, which drew no comments, the Archivist approved the schedule on February 20, 22 2020. See NARA-19-0018 Consolidated Reply for All Schedules in This Notice (No Comments 23 Received), available at https://www.regulations.gov/document/NARA-19-0018-0007.5 24 3 The Court takes notice of the Appraisal under the incorporation by reference doctrine. See Coto 25 Settlement, 593 F.3d at 1038; Ritchie, 342 F.3d at 908.

26 4 The Court takes notice of NARA’s Federal Register publication under the incorporation by reference doctrine. See Coto Settlement, 593 F.3d at 1038; Ritchie, 342 F.3d at 908. 27 C. Bioscience Advisors, Inc. 1 Plaintiff Bioscience Advisors, Inc. is a private company that tracks SEC filings submitted 2 with confidential treatment requests (including those submitted under Rules 406, 24b-2, and 601). 3 After the confidential treatment orders expire, Plaintiff requests copies of the unredacted exhibits 4 from the SEC through FOIA requests and incorporates the information they contain into its 5 commercial database of biopharmaceutical industry financial updates, deal announcements, and 6 searchable contracts. According to Plaintiff, in 2020 the SEC began responding to Plaintiff’s 7 FOIA requests by stating that the requested filings were unavailable and presumptively subject to 8 the 2020 Schedule. 9 Plaintiff filed this lawsuit in February 2021. See Dkt. No. 1. After Defendants filed a 10 partial motion to dismiss, Dkt. No. 24, the parties stipulated to the filing of an amended complaint 11 that would moot Defendants’ motion, Dkt. No. 30, which the Court granted. Dkt. No. 31. In May 12 2021, Plaintiff filed the operative Complaint.6 Dkt. No. 32 (“Compl.”). Defendants now move to 13 dismiss. 14 II. LEGAL STANDARD 15 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 16 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 17 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 18 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 19 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 20 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 21 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on 22 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 23 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 24 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 25 26 6 The Complaint alleges that after exhausting its administrative appeals, Plaintiff “received notice 27 from the SEC of its ‘right to seek judicial review of [the SEC’s] determination by filing a 1 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 2 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 3 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, 4 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 5 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 6 2008). 7 III. DISCUSSION 8 Plaintiff brings four claims. Plaintiff’s first cause of action challenges NARA’s approval 9 and the SEC’s adoption of the 2020 Schedule as arbitrary and capricious under the APA. Compl. 10 ¶¶ 47-54. Plaintiff’s second cause of action alleges that NARA’s enactment of the 2020 Schedule 11 does not comply with the Federal Records Act. Id. ¶¶ 56-60. Plaintiff’s third cause of action 12 alleges that the Archivist and SEC Chair failed to enforce the Federal Records Act by notifying the 13 Attorney General of the unlawful destruction of documents. Id. ¶¶ 61-66. Finally, Plaintiff’s 14 fourth cause of action alleges that the SEC’s failure to provide the records Plaintiff requested 15 violated FOIA. Id. ¶¶ 67-73. Defendants move to dismiss all claims. See generally Mot. 16 A. “Arbitrary and Capricious” under the APA (Claim One) 17 Plaintiff’s first cause of action alleges that (1) NARA’s approval and (2) the SEC’s 18 adoption of the 2020 Schedule were each arbitrary and capricious under the APA.7 Compl. ¶¶ 49, 19 54. 20 “When presented with a motion to dismiss [an APA claim] for failure to state a claim, the 21 district court may, in appropriate circumstances, reach the merits even in the absence of the 22 administrative record, as when the parties’ arguments can be resolved with reference to nothing 23 more than the relevant statute and its legislative history.” Banner Health v. Sebelius, 797 24 F.Supp.2d 97, 112 (D.D.C. 2011). But “in recognition of the dangers associated with proceeding 25

26 7 Plaintiff’s opposition brief challenges the SEC’s proposal of the 2020 Schedule for the first time in this litigation. Opp. at 15. The Court will not consider this contention because it was not 27 alleged in the Complaint. McMichael v. Napa Cnty., 709 F.2d 1268, 1273 n.4 (9th Cir. 1983) 1 with judicial review ‘on the basis of a partial and truncated record’ without the consent of the 2 parties, when the arguments raised go to the question of whether the agency has adhered to the 3 standards of decisionmaking required by the APA, the United States Court of Appeals for the 4 District of Columbia Circuit has advised that the ‘better practice’ is to test the parties’ arguments 5 in the context of a motion for summary judgment and with reference to the full administrative 6 record.” Id. at 112-13 (citing Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 7 n.5 (D.C. Cir. 1993)); see also Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 8 (D.C. Cir. 1984) (“If a court is to review an agency’s action fairly, it should have before it neither 9 more nor less information than did the agency when it made its decision.”); Occidental Petroleum 10 Corp. v. Secs. & Exch. Comm’n, 873 F.2d 325, 338 (D.C. Cir. 1989) (“[I]n order to allow for 11 meaningful judicial review, the agency must produce an administrative record that delineates the 12 path by which it reached its decision.”). 13 Given the allegations, the Court has some doubt as to whether Plaintiff can successfully 14 show that NARA’s approval and the SEC’s adoption of the 2020 Schedule were arbitrary and 15 capricious. However, pending presentation of the full administrative record, the Court exercises 16 its discretion at this stage “to decline to reach the ultimate question of whether the agency’s 17 decisionmaking process was arbitrary or capricious.” Banner Health, 797 F.Supp.2d at 113 18 (collecting cases); see also City of Columbus v. Trump, 453 F.Supp.3d 770, 796 (D. Md. 2020) 19 (“The Court will require the Secretary [of the Department of Health and Human Services] to 20 produce the administrative record before reaching the merits of these arguments.”). 21 Accordingly, the Court denies Defendants’ motion to dismiss Plaintiff’s first claim. 22 B. Compliance with the Federal Records Act under the APA (Claim Two) 23 Plaintiff’s second claim mounts another procedural challenge to the 2020 Schedule, 24 arguing that the Schedule should be set aside as “not in accordance with law [the Federal Records 25 Act].” Compl. ¶¶ 55-60. In particular, Plaintiff argues that NARA’s approval of the 2020 26 Schedule violates the Federal Records Act because it permits the destruction of documents while 27 they still have “objective, quantifiable market value in addition to administrative, legal, and 1 the Policy.” Id. ¶ 60. Defendants move to dismiss Plaintiff’s claim under Rule 12(b)(6). 2 For an APA claim to survive a motion to dismiss, Plaintiff must allege facts that could 3 plausibly lead the court to find the contested 2020 Schedule “not in accordance with law’ because 4 [it] permit[s] the destruction of record material that should be maintained” under the Federal 5 Records Act. Armstrong v. Bush, 924 F.2d 282, 297 (D.C. Cir. 1991) (quoting 5 U.S.C. § 6 706(2)(A)). 7 To determine whether federal records have archival value, NARA has promulgated an 8 “Appraisal Policy” that “sets out the strategic framework, objectives, and guidelines that [it] uses 9 to determine whether Federal records have archival value.” Nat’l Archives & Records Admin., 10 Appraisal Policy of the National Archives § 1 (Sept. 2007), https://www.archives.gov/records- 11 mgmt/scheduling/appraisal#policy (“NARA Appraisal Policy”). As a “beginning point for 12 appraisal,” the NARA Appraisal Policy categorizes the evidence it collects into:

13 (1) records that document the rights of citizens and enable citizens to establish their identities, protect their rights, and claim their 14 entitlements; (2) records that document actions of Federal officials and enable them 15 to explain past decisions, form future policy, and be accountable for consequences; and 16 (3) records that document the national experience and provide the means for evaluating the effects of Federal actions on the nation and 17 for understanding its history, science, and culture, including the man- made and natural environment. 18 19 CREW II, 2021 WL 950142, at *2 (simplified) (quoting NARA Appraisal Policy). 20 Drawing all reasonable inferences in Plaintiff’s favor, as the Court must at this stage, the 21 Court concludes that Plaintiff has plausibly stated a claim for relief. The Complaint alleges that 22 the records at issue contain information that enables Plaintiff to “provide a database of financial 23 updates, deal announcements, and searchable contracts that was widely referenced by the 24 biopharmaceutical business community,” and that “[t]hese exhibits, obtained long after any risk of 25 harm from disclosure had passed, provided valuable insights into the industry for researchers and 26 industry players about the details of deals that had been conducted in past years.” Compl. ¶ 21. 27 These allegations are sufficient to plausibly contend that the documents at issue have value 1 retention period. 2 Defendants seek dismissal because Plaintiff’s claim is focused on records with “objective, 3 quantifiable market value.” Mot. at 20. Neither the Federal Records Act nor NARA’s 4 promulgated appraisal policy, Defendants argue, takes into consideration market or commercial 5 value of federal records. Id. at 20-21. Instead, Defendants contend that the focus of documents 6 warranting preservation is “on the preservation of records that serve an important function in 7 documenting the government’s actions—not simply any document with ‘objective, market value’ 8 or even some form of commercial ‘research value.’” Id. at 20. Defendants further argue that 9 “courts have generally understood this mandate to apply to historical research rather than 10 commercial research—and in particular, historical research related to the government itself.” Id. 11 at 20-21 (“[T]he unredacted exhibits that are at issue in this case have no bearing on the 12 ‘documentary history of the federal government’ . . . or any other historical interest.” (internal 13 citation omitted)). 14 At this early stage when no factual record has been presented, the Court is unpersuaded. 15 The SEC is a “a federal agency whose mission is to protect investors nationwide and to regulate 16 the securities markets.” See Morris v. United States Sec. & Exch. Comm’n, No. 19-CV-887 17 (APM), 2019 WL 4575607, at *1 (D.D.C. Sept. 20, 2019), aff’d sub nom. Morris v. Sec. & Exch. 18 Comm’n, No. 19-5274, 2020 WL 2610606 (D.C. Cir. Apr. 21, 2020); Nat. Res. Def. Council, Inc. 19 v. Sec. & Exch. Comm’n, 606 F.2d 1031, 1036 (D.C. Cir. 1979) (“[T]he SEC . . . is, of course, the 20 agency charged with administering the federal statutes mandating disclosure of corporate 21 information.”). As Plaintiff suggests, “[p]ractically every element of the SEC’s work could be 22 characterized as ‘commercial’ . . . Virtually all the records created and collected by the SEC have 23 ‘commercial value,’ and deal with ‘commercial’ subjects.” Opp. at 19. The fact that records have 24 commercial or market value does not categorically exclude them from the reach of the Federal 25 Records Act. The Act does not set out an exclusive list of categories of value warranting 26 preservation, and accounts for this by requiring the Archivist to determine whether documents 27 “have sufficient administrative, legal, research, or other value” warranting their continued 1 outside of their commercial or market value, the Court cannot conclude as a matter of law on a 2 motion to dismiss that the disputed records necessarily fall outside of the protections of the 3 Federal Records Act. 4 Accordingly, the Court denies Defendants’ motion to dismiss Plaintiff’s second claim. 5 C. Enforcement Action under the APA and the Federal Records Act (Claim Three) 6 The APA permits private enforcement of the Federal Records Act when a plaintiff seeks 7 judicial review of (1) the adequacy of an agency’s recordkeeping guidelines; or (2) the Archivist’s 8 and agency head’s pursuit of (or failure to pursue) enforcement actions seeking redress for the 9 unlawful removal or destruction of records. Armstrong, 924 F.2d at 296; see also 44 U.S.C. §§ 10 2115(b), 3106(a). Plaintiff’s third cause of action invokes the latter theory. Compl. ¶¶ 61-66. 11 Defendants seek to dismiss Plaintiff’s claim on the grounds that (1) Plaintiff has already obtained 12 all of the allegedly destroyed documents, rendering its claim moot; and (2) the Complaint does not 13 sufficiently plead a claim. 14 Plaintiff sufficiently states a claim under the Federal Records Act. The Complaint alleges 15 that the “Plaintiff has notified the SEC and NARA repeatedly that SEC staff are destroying (and/or 16 claim to have destroyed) documents that are subject to preservation under the Policy,” and that 17 “[n]either the SEC Chair nor the Archivist has initiated an investigation into these violations of the 18 FRA, nor have they invited the Attorney General to initiate an enforcement action.” Compl. ¶ 65. 19 These allegations are sufficient at this stage to plead that the Archivist and SEC Chair did not take 20 required action to prevent the unlawful destruction of documents. Armstrong, 924 F.2d at 296 21 n.12 (“[T]he agency head and Archivist are required to take action to prevent the unlawful 22 destruction or removal of records and, if they do not, private litigants may sue under the APA to 23 require them to do so.”). 24 Defendants raise a mootness argument, contending that Plaintiff’s claim should be 25 dismissed because Plaintiff has already obtained all of the allegedly destroyed records. Mot. at 22. 26 Instead of initiating the enforcement action that Plaintiff requested under Federal Records Act, the 27 SEC simply returned three documents to Plaintiff – an action which, according to Defendants, 1 moots Plaintiff’s claim. However, since the Complaint alleges that neither the SEC Chair nor the 2 Archivist have asked the Attorney General for help and Defendants have not shown that such a 3 request could not lead to recovery of additional documents, Plaintiff’s claim is not moot. See Jud. 4 Watch, Inc. v. Kerry, 844 F.3d 952, 953 (D.C. Cir. 2016) (reversing trial court’s dismissal of 5 Federal Records Act enforcement proceedings action on mootness grounds); id. at 955 (“[T]he 6 [SEC] has not explained why shaking the tree harder—e.g., by following the statutory mandate to 7 seek action by the Attorney General—might not bear more [documents] still.”) 8 Accordingly, the Court denies Defendants’ motion to dismiss Plaintiff’s third claim. 9 D. Denial of Records under FOIA (Claim Four) 10 Plaintiff’s fourth cause of action alleges that the SEC has improperly denied an unspecified 11 number of FOIA record requests. Compl. ¶¶ 67-73. Defendants seek dismissal of Plaintiff’s 12 claim because Plaintiff does not describe any of its FOIA requests “with sufficient detail for 13 Defendants to determine with confidence which requests are being challenged.” Mot. at 26. 14 Construed as a claim under FOIA, Plaintiff’s fourth cause of action fails to state a claim for 15 relief. The Complaint details one FOIA denial in support of Plaintiff’s claim: “Plaintiff was 16 provided with amendments to contracts wherein the amendments were subject to confidentiality 17 orders coterminous with the original contract, but Plaintiff was denied access to the original 18 contracts.” Id. ¶ 69. Outside of this single example, Plaintiff does not identify – let alone with 19 sufficiently specific detail – any requests purportedly denied in violation of FOIA. See Marshall 20 v.Cuomo, 192 F.3d 473, 485 (4th Cir. 1999) (affirming district court’s dismissal of FOIA claim 21 based on its finding that plaintiff “failed to identify the specific documents requested, when they 22 were requested, to whom those requests were directed, or the extent of [agency’s] responses”); 23 Carroll v. Soc. Sec. Admin., 2012 WL 1454858, at *2 (D. Md. Apr. 24, 2012) (“Absent a 24 description of the documents sought, as well as details of the refusal to turn over the requested 25 information, it is impossible to determine if [plaintiff] has stated a viable claim.”). 26 Plaintiff counters that “[t]he sheer numerosity of accumulating FOIA violations here 27 makes listing every violative act in a pleading impracticable.” Opp. at 21. But Plaintiff’s 1 action asserting a large number of FOIA violations is permissible. See Yagman v. Pompeo, 868 2 |} F.3d 1075, 1081 n.6 (9th Cir. 2017) (“Indeed, the statute itself puts no restrictions on the quantity 3 of records that may be sought. Rather, it explicitly contemplates unusually large requests, 4 || affording reviewing agencies additional time to search for a voluminous amount of separate and 5 distinct records which are demanded in a single request.” (simplified) (internal citations omitted)). 6 Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s fourth claim. 7 || IV. CONCLUSION 8 The Court GRANTS IN PART and DENIES IN PART Defendants’ motion as follows: 9 1. Defendants’ motion is DENIED as to Plaintiff’s first cause of action. 10 2. Defendants’ motion is DENIED as to Plaintiffs second cause of action. 11 3. Defendants’ motion is DENIED as to Plaintiffs third cause of action. 12 4. Defendants’ motion is GRANTED as to Plaintiff’s fourth cause of action. Because 13 the Court cannot conclude that amendment would be futile, this claim is dismissed 14 with leave to amend. If Plaintiff can cure the pleading deficiencies described 3 15 above, it must file any amended complaint within 21 days from the date this order a 16 is filed. 3 17 5. The parties are further ORDERED to appear at a case management conference on 18 March 1, 2022 at 2:00 p.m. to discuss setting an expedited summary judgment 19 briefing schedule. The parties will be advised closer to the hearing whether it will 20 take place telephonically or in person. A joint case management conference 21 statement is due by February 22, 2022. 22 IT IS SO ORDERED. 23 || Dated: 2/8/2022 : Autenls Mh lp HAYWOOD S. GILLIAM, JR. 25 United States District Judge 26 27 28