Archives for September 2017

Cause of Action Institute Signs Second Coalition Letter Warning of Continued Congressional Interference with the FOIA

Cause of Action Institute signed a letter yesterday, joining a broad coalition of government transparency advocates, warning members of the Bipartisan Legal Advisory Group of the U.S. House of Representatives about the dangers of mounting congressional interference with the Freedom of Information Act (“FOIA”) and, specifically, continued efforts to expand the definition of “congressional records” not subject to disclosure. The letter comes in the wake of the House Committee on Ways and Means’ motion to intervene in a lawsuit filed by American Oversight, a left-leaning government transparency group.

The letter reiterates much of the argument found in a May 2017 coalition letter from government transparency advocates urging Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his directive that federal agencies treat any and all records exchanged with the Committee as exempt from the FOIA. As I have previously discussed, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not by itself render it a “congressional record.” The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.  Chairman Hensarling and the leadership of the Ways and Means Committee are pushing the boundaries of this legal requirement.

Cause of Action Institute continues to investigate Chairman Hensarling’s controversial, and legally dubious, attempt to frustrate public access to records of the Executive Branch’s dealings with Congress, as well as similar efforts undertaken at the Internal Revenue Service. The transparency community and the general public must remain united in protecting the spirit of disclosure and open government promised by the FOIA.

Ryan Mulvey is Counsel at Cause of Action Institute.

CoA Institute Moves to Strike FBI Official’s Opinions from Clinton Email Case

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a motion to strike from the record improper opinion testimony submitted by FBI Assistant Director E.W. Priestap. The declaration was filed in support of the government’s defense in a pending case against the State Department and National Archives and Records Administration regarding former Secretary of State Hillary Clinton’s unlawful removal of emails.  The suit seeks to refer the matter to the Attorney General, which is what the law requires.

A federal judge in August ordered the government to publicly release the unredacted declaration that it had previously filed so that only the judge was able to review it. The FBI’s declaration includes several opinions that the government relies on to support its case. For example, Mr. Priestap states that “[i]t is my opinion that there are no further investigative actions that can be undertaken by the FBI to recover additional Clinton work-related e-mails which would be meaningful to the investigation, as described above.”

However, the investigation Mr. Priestap is referencing is “the potential unauthorized transmission and storage of classified information on the personal e-mail server of former Secretary Clinton.”  He is not referencing a record-recovery effort pursuant to the Federal Records Act (“FRA”), which is the subject of this litigation.

Cause of Action Institute President and CEO John J. Vecchione: “The FBI’s declaration revealed grand jury subpoenas where there was probable cause to believe classified information may have been involved. This litigation is not merely about classified information, but about the government doing everything in its power to recover Secretary Clinton’s records, in accordance with the law. The opinions offered by Mr. Priestap are unfounded under the applicable standard of law and ignore that this suit seeks more than classified material, which was the FBI’s interest.”

The full Motion to Strike is available here.
CoA Institute also filed its reply brief available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

Media Recap: Court Dismisses FTC’s Unfairness Count Against D-Link Systems


Family Business Fights Back Against FTC, Files Appeal After Lower Court Wrongly Granted Injunctive Order

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed its opening brief in the 11th Circuit Court of Appeals on behalf of a family-run tech support company, Vylah Tec, LLC (“V-Tec”), after the Federal Trade Commission (“FTC”) used misleading evidence to convince the lower court to grant a damaging injunctive order against the company. V-Tec is a small start-up, owned by Robert Cupo, that provides tech support to customers who have purchased electronic devices from the Home Shopping Network and other shopping channels. V-Tec also generates revenue from selling third-party antivirus and other data security software.

In May, the FTC, in conjunction with the Florida Attorney General’s office, raided the company’s headquarters on suspicion of “deceptive” sales practices, but were unable to uncover any concrete evidence of wrongdoing. In court, the FTC cited two examples of recorded calls that were both mischaracterized. A Florida federal judge granted the government’s request for a preliminary injunctive order (“PI”) that turned the company’s operation over to a third-party receiver and froze the assets of Mr. Cupo and several of his family members. In August, CoA Institute filed a motion to stay the district court’s order. While that decision is still pending, today’s brief is the first in CoA Institute’s appeal of the district court’s decision.

The brief states:

“The PI was granted without benefit of an evidentiary hearing, without application of the proper legal standard for issuing a preliminary injunction, and without application of the proper legal standard for analyzing the likelihood of success on the merits. It was based on untested and facially inadequate factual allegations.

“The Government has conceded that it submitted false evidence and mischaracterized other evidence it offered to the trial court, but it has done nothing to correct the record. To the contrary, the Government insists that the lower court and this Court condone its false evidence to crush a small business and to personally destroy its managers… The Government is seeking to bulldoze V-Tec before this Court can even rule on this appeal. That is not due process, and it certainly is not justice.”

CoA Institute Senior Counsel Cynthia Crawford: “The FTC’s facts in this case are either incomplete or patently false. Without evidence, it was wrong for the district court to grant an order that is draining V-Tec’s finances and destroying its reputation. We urge the 11th Circuit Court of Appeals to reexamine the flawed evidence and allow the Cupo family the due process they deserve, before their company is destroyed.”

The full brief can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

D-Link Systems Secures Significant Victory in Court Battle Against FTC

Judge dismisses ‘unfairness’ allegations citing complete lack of consumer harm

SAN FRANCISCO – A federal judge has dismissed three counts against D-Link Systems, Inc. from a complaint brought by the Federal Trade Commission (“FTC”) involving baseless charges regarding the company’s data security practices for its consumer routers and IP cameras. Cause of Action Institute (“CoA Institute”) represents D-Link Systems in its defense.

The Court dismissed the FTC’s Section 5 “unfairness” claim due to the “absence of any concrete facts” supporting the FTC’s allegations of potential consumer harm. The Order states:

The FTC does not identify a single incident where a consumer’s financial, medical or other sensitive personal information has been accessed, exposed or misused in any way, or whose IP camera has been compromised by unauthorized parties, or who has suffered any harm or even simple annoyance and inconvenience from the alleged security flaws in the DLS devices.

In March, Michael Pepson, counsel at CoA Institute, argued before the Court that the case should be dismissed due to, among other things, the lack of facts supporting the government’s claims. Pepson argued that the FTC’s complaint includes only vague, unsubstantiated allegations with no mention of an actual breach of any D-Link product, or any harm to a single consumer.

In response to the ruling, Pepson stated: “We are grateful to the Court for taking the time to hear the arguments, carefully study the questions presented, and issue a well-reasoned decision on D-Link Systems’ motion to dismiss. Cause of Action Institute remains proud to represent D-Link Systems in this litigation.”

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

CoA Institute Forces FBI to Reveal New Details of Clinton Email Investigation

Washington D.C. – The FBI has revealed previously undisclosed details outlining the scope of its investigation into Hillary Clinton’s email practices as Secretary of State. The disclosure, made Wednesday evening, was a result of Cause of Action Institute (“CoA Institute”) convincing the court to release the secret declaration. In August, U.S. District Court Judge James Boasberg ruled in favor of CoA Institute ordering the government to produce the full declaration that had been filed ex parte and in camera, meaning only the judge had been able to review it.

The declaration reveals the FBI issued several grand jury subpoenas to allies of Mrs. Clinton in instances where there was probable cause to believe those individuals may have received classified information. These subpoenas were issued in addition to subpoenas to her email service providers. The FBI claims it recovered thousands of emails that had previously not been returned to the State Department.

Cause of Action Institute President and CEO John J. Vecchione: “Americans are finally getting important information about the FBI’s efforts to recover the government emails possessed by Hillary Clinton. It’s amazing that this information was only revealed by this suit and not by Congress, the mainstream press, or the administration.”

The full FBI declaration is available here.

For information regarding this press release, please contact Zachary Kurz, director of communications:

John Vecchione discusses efforts to recover Hillary Clinton’s emails on Sirius XM’s Wilkow Majority