Austin Lawyers Win Big at U.S. Supreme Court

The Baker Botts team, from left to right: Gavin R. Villareal, Thomas R. Phillips, Evan A. Young, Ellen Springer, and Stephanie F. Cagniart, all members of the Austin Bar.

On June 24, 2019, a team of lawyers from the Austin office of Baker Botts won a landmark Freedom of Information Act (FOIA) decision in the U.S. Supreme Court.

The Baker Botts team included Austin Bar Association members Gavin R. Villareal, Evan A. Young, Thomas R. Phillips, Scott A. Keller, Stephanie F. Cagniart, and Ellen Springer.

The 6-3 decision in Food Marketing Institute v. Argus Leader Media will govern all FOIA requests for private parties’ commercial information that the federal government has in its files. FOIA’s Exemption 4 protects from mandatory disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Food Marketing addressed what “confidential” means, and overturned more than four decades of precedent that required proof of a likelihood of substantial competitive harm for commercial information to qualify as “confidential.”

The path to the Supreme Court began in South Dakota. Using FOIA, a local newspaper requested that the U.S. Department of Agriculture release nationwide sales data from retailers that participate in the food-stamp program, now known as the Supplemental Nutrition Assistance Program (SNAP).

SNAP funding information is readily available, including at local levels. But USDA had never disclosed sales data at individual retail locations. It rejected the FOIA request under Exemption 4, deeming the sales data as confidential commercial information. But USDA lost at the district court and decided not to appeal.

That’s where the Baker Botts team came in. The Food Marketing Institute (FMI), which has many SNAP-participating members, retained Baker Botts to challenge the judgment on appeal.

At the Eighth Circuit, the Baker Botts team argued that releasing the sales data would implicate the longstanding “substantial competitive harm” standard, which every federal circuit applied in Exemption 4 cases. But it also argued that the standard itself had no basis in the exemption’s text.

When the Eighth Circuit affirmed, the South Dakota newspaper demanded USDA produce the SNAP data immediately. “We heard that the newspaper’s lawyer was in his car driving to pick up the data,” said Villareal, lead counsel for FMI.

But the Baker Botts team convinced the Supreme Court to grant a rare stay and then filed a petition for certiorari, which the Court granted in January. The case became one of only 70 cases argued out of over 7,000 petitions. The timeframe to file merits briefs and prepare for argument— set for April 22—was tight. FMI stuck with its Austin-based team to finish the job.

The team spent most of the week before the April 22 oral argument in a conference room in Baker Botts’s D.C. offices, practicing questions and answers with Young, who argued the case for FMI.

“Our preparation was extensive—we did three full moots—but it paid off,” said Young. “Stephanie Cagniart and Ellen Springer were our secret weapon. They prepared me for every question I faced, and many others that the Justices didn’t have time to ask.”

Young was at the Court when, on June 24, Justice Neil Gorsuch announced the judgment—a total victory for FMI. The Court agreed that Exemption 4’s plain text, not the widely accepted “substantial competitive harm” test, must govern future FOIA disputes. Even the three dissenting Justices agreed with FMI that the existing test was improper.

“We cannot approve such a casual disregard of the rules of statutory interpretation,” wrote Gorsuch, adding that “a court’s proper starting point lies in a careful examination of ordinary meaning and structure of the law itself.”

The opinion has broad implications for a wide range of industries that provide confidential commercial data and information to the government.

“The Court’s decision restores protections that Congress had included in the Freedom of Information Act but that had not been respected or enforced by lower courts for over 40 years,” said Cagniart. “Being part of the legal team that brought this issue to the Supreme Court so that it could rectify this long-standing error was incredibly exciting.”

“It’s always satisfying to achieve the best possible outcome for a client,” said Springer, “but it’s particularly thrilling to do so after such an uphill battle to reach the highest court in the land.” AL