Archives for April 2014

Dan Epstein on the Lars Larson Show 4/28/2014

Cause of Action’s Dan Epstein talks with Lars Larson about our amicus brief in John L. Yates v. United States.


Listen to Dan at the 1 hour 24 minute mark.

Related Documents: Cause of Action v. Federal Trade Commission

CoA filed three separate FOIA requests to the FTC between 2011 and 2012 for documents pertaining to the agency’s internet advertising guidelines on endorsements regarding social media authors and bloggers. The FTC repeatedly denied not just CoA’s access to these documents, but also a public interest fee waiver as well as news media requestor status. The FTC’s decision could have a crippling effect on government transparency. CoA has appealed the District Court’s decision to side with the FTC to the United States District Court for the District of Columbia.

United States Court of Appeals for the District of Columbia Circuit

CoA Reply Brief (September 24, 2014)

FTC Response Brief (August 7, 2014)

Brief of Amici Curiae the Reporters Committee for Freedom of the Press et al., in Support of Appellant (May 13, 2014)

Brief of Amicus Curiae the Daily Caller News Foundation in Support of Appellant (May 13, 2014)

Notice of Intention to Participate as Amici Curiae (May 9, 2014)

Motion of Daily Caller for Leave to File a Brief Amicus Curiae in Support of Appellant Cause of Action (May 9, 2014)

CoA Opening Brief  & Addendum (May 5, 2014)

Statement of Issues to be Raised (December 13, 2013)

Notice of Appeal (November 12, 2013)

United States District Court for the District of Columbia

Memorandum and Opinion of District Court (August 19, 2013)

FTC Reply in Support of its Motion for Summary Judgement (January 25, 2013)

CoA Opposition to FTC Motion for Summary Judgement (November 18, 2012)

FTC Motion for Summary Judgement (September 28, 2012)

CoA Complaint (May 25, 2012)

Original FOIA Request (Aug. 30, 2011)

Washington Post: Supreme Court to decide if law forbidding destruction of financial records applies to fish

Read the full story: Washington Post

Several legal groups, including the association of criminal defense lawyers, urged the court to take the case. One group, Cause of Action, said the case was about government overreach.

“This law is supposed to protect citizens from the destruction of corporate documents designed to conceal financial crimes,” the group said in a press release. “Yet the government applied the law to Mr. Yates for throwing overboard grouper that were an inch or less too short.”

The case is Yates v. U.S.

Cause of Action statement on Supreme Court taking up Yates v. U.S.

Cause of Action, a government accountability group which filed an amicus brief in John L. Yates v. United States, released a statement today on the Supreme Court’s decision to hear the case:

Yates v. U.S. is an opportunity for the Supreme Court to check government over-reach and over-criminalization.  A fisherman who allegedly threw overboard some undersized fish should not be prosecuted and imprisoned under a law written to prevent big corporate executives from shredding documents to cover financial fraud.

Cause of Action looks forward to supporting Mr. Yates.

HARDI Settlement with DOE Approved by Court

Heating, Air-Conditioning and Refrigeration Distributors International (HARDI) announced today that the U.S. District Court of Appeals has approved a settlement in the long-running lawsuit regarding Regional Efficiency Standards for residential gas furnaces and central air-conditioners which were finalized by the Department of Energy (DOE) in October 2011.

The court stated, “The direct final rule, 76 Fed. Reg. 37408 (June 27, 2011), and notice of effective date, 76 Fed. Reg. 67037 (Oct. 31, 2011), as they relate to energy conservation standards for non-weatherized gas furnaces, including but not limited to the Department of Energy’s determination that such furnaces constitute a single class of products for purposes of 42 U.S.C. §§ 6295(q)(1)(B), 6295(o)(4), are hereby vacated and remanded to the Department of Energy for notice and comment rulemaking in accordance with the Energy Policy and Conservation Act.”

You can find the settlement agreement here and the court’s order here.

Charles Edwards Under Investigation by CIGIE for Misconduct

Cause of Action, a government accountability group which has investigated former Department of Homeland Security acting Inspector General Charles Edwards, issued the following response to the report released today by the Senate Committee on Homeland Security and Governmental Affairs (HSGAC), Subcommittee on Financial and Contracting Oversight:

In addition to being the subject of Thursday’s report released by the Senate Committee on Homeland Security and Governmental Affairs, Charles Edwards is still under investigation today for allegations of misconduct by the Council of the Inspectors General on Integrity and Efficiency (CIGIE).

Cause of Action’s own two-year investigation into Charles Edwards prompted us to raise concerns to President Obama about the destruction of records and complaints filed about his misconduct that would warrant Edwards’ removal from office and potential criminal liability. We know that the Office of Special Counsel forwarded at least one complaint about Edwards to CIGIE. Additionally, we sued the Department of Homeland Security Office of Inspector General (DHS OIG) for failing to produce documents related to these misconduct complaints under the Freedom of Information Act (FOIA).  This lawsuit could have been avoided, as DHS OIG voluntarily provided such information to HSGAC. This transparency failure is now costing time and resources in court for what could have been a simple compliance with FOIA.

Under federal law, knowingly destroying records with the intent to obstruct an investigation or the proper administration of any department or agency of the United States is punishable by a fine, imprisonment, or both. Accordingly, CIGIE should complete its investigation as expeditiously as possible and refer evidence of criminal conduct to the Department of Justice, especially since Edwards remains employed at DHS in a managerial position.

Court Holds That Challenge Brought in Fuel Cell Energy, et al v. Markell, et al Can Continue

FOR IMMEDIATE RELEASE                                                                                                 CONTACT:      

April 23, 2014                                                Mary Beth Hutchins, 202-400-2721

Court Holds That Challenge Brought in Fuel Cell Energy, et al v. Markell, et al Can Continue

WASHINGTON – On April 17, 2014, Magistrate Judge Christopher J. Burke held in Fuel Cell Energy, et al v. Markell, et al that a competitor disadvantaged by the Delaware Public Service Commission’s tariff to Bloom Energy can continue its challenge under the U.S. Constitution, which prohibits state laws that discriminate against out-of-state competition.  The decision affirms that the plaintiff does have standing to claim that Delaware’s 2011 amendments to its Renewable Energy Portfolio Standards Act (REPSA) are unconstitutional. As Judge Burke stated, “Plaintiffs have sufficiently demonstrated the causal connection between the tariff and the competitive disadvantage that FuelCell alleges it will suffer.”   FuelCell is represented by Cause of Action, a nonprofit government accountability group based in Washington, D.C.

The decision can be found here.

Some highlights from the decision include:

  • Page 32: “FuelCell makes sufficient allegations of injury in fact as to another relevant market.  Pursuant to this argument, FuelCell asserts that the 2011 Amendments will cause it significant competitive injury in the “mid-Atlantic area” or on the “East Coast[.]”  That is, when FuelCell complains that, via the 2011 Amendments, Bloom will be “protect[ed]” by “subsidies” affecting future fuel cell transactions, FuelCell is referencing the harm caused by these alleged “subsidies” not only to its future ability to compete with Bloom in Delaware, but also as to energy sales in other mid-Atlantic or East Coast states such as New Jersey, New York and Connecticut.  As noted below, there is record evidence supporting this latter type of claimed future injury.” (internal citations omitted).
  • Page 33: “it is easier to conceive of a business opportunity gained by Bloom in a market as one that comes at the expense of FuelCell (and not one whose outcome is also subject to the action or inaction of numerous other third parties)-so long as there is some indication that the two companies are actually both likely to target that particular relevant market.”
  • Pages 34-35: “FuelCell has, therefore, sufficiently demonstrated injury in fact in this type of East Coast market.”
  • Page 38: “[A] challenged government action (here, the tariff) is said to be subsidizing the future energy production capability of Bloom, FuelCell’s “direct competitor” in a given market.  Similarly, FuelCell alleges that the funds from this tariff will allow a Bloom to increase the amount of that future production (or that absent those funds, it would have generated no such production at all).  The challenged tariff thus is said to “ease” a “competitive  burden” on Bloom, but not FuelCell, in a way that “plainly disadvantages [FuelCell’s] competitive position in the relevant marketplace.” . . . Plaintiffs have sufficiently demonstrated the causal connection between the tariff and the competitive disadvantage that FuelCell alleges it will suffer.”
  • Page 39: “FuelCell argues that “this Court has the authority to void the … tariff[, and Bloom] would thereby lose the unfair infrastructure-related  competitive advantages it enjoys in Delaware[,]” and that “enjoining [the] collection and disbursement of the tariff-subsidy will level the economic playing field vis-a-vis [Bloom] and [FuelCell].”  (D.I. 22 at 12-13)  The Court agrees that FuelCell has sufficiently met its burden as to the “redressability” prong of the analysis.”
  • Page 39, Footnote 21: “FuelCell seeks declaratory and injunctive relief barring future use of (1) the provisions requiring that a QFCP have in-state manufacturing capabilities and (2) the provisions providing for a tariff for a QFCPP.  And it argues, citing to evidence of record, that the “in-state manufacturing requirement and the tariff … [are] inextricably int[er]twined.”  The Court has articulated above how the challenged tariff is sufficiently likely to cause future competitive injury to FuelCell; FuelCell is required to show no more at this stage.“ (internal citations omitted).
  • Page 40: “Having concluded earlier that a sufficient causal connection exists between the tariff and FuelCell’s alleged competitive harm, it follows that this harm is capable of being redressed by the tariff­ related relief that Plaintiffs seek.”

About Cause of Action:

Cause of Action is a non-profit, nonpartisan government accountability organization that fights to protect economic opportunity when federal regulations, spending and cronyism threaten it. For more information, visit

To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins,  202-400-2721.