UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

PRIME MARKETING LLC, et al., )

)

)

Plaintiffs, )

)

v. ) Civil Action No. 15-1177 (RDM)

)

CONSUMER FINANCIAL 

PROTECTION BUREAU,

)

)

)

Defendant. )

)

AMENDED MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs’ motion to Seal Case (Dkt. 1). For the reasons stated below, 

the motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiffs are businesses and an individual who provide services related to consumer 

credit counseling and are currently under investigation by Defendant, the Consumer Financial 

Protection Bureau (“CFPB”). Dkt. 3 ¶¶ 4-9, 23. This litigation centers on Plaintiffs’ relationship 

with Arthur Barens, a California-licensed attorney. Plaintiffs allege that Mr. Barens “has been 

counsel to Plaintiffs since 2012 and was intimately involved in providing legal representation to 

all Plaintiffs.” Id. ¶ 13. They also allege that Mr. Barens is the sole owner and operator of Park 

View Law, which is Plaintiffs’ “longtime business partner.” Id. ¶ 16.

On December 29, 2015, the CFPB issued a “Civil Investigative Demand,” or “CID,” to 

Park View Law. A CID is “a form of administrative subpoena that may direct the recipient to 

produce documents or other materials or to provide information or oral testimony.” Morgan 
2

Drexen, Inc. v. CFPB, 979 F. Supp. 2d 104, 107 (D.D.C. 2013). It subsequently issued a CID to 

one of the Plaintiff entities on January 5, 2015, and, on June 16, 2015, it advised Plaintiffs that it 

was “considering enforcement action against” each of them, as well as against at least one entity 

that is not a party here. Id. ¶¶ 19, 23. According to Plaintiffs, they learned on July 10, 2015, that 

Mr. Barens had agreed “to voluntarily provide testimony” to the CFPB at a July 23, 2015,

“voluntary investigational hearing”—a proceeding that the parties liken to a deposition. Id. ¶ 25. 

Plaintiffs’ counsel subsequently requested permission from an attorney at the CFPB to attend the 

voluntary investigational hearing, arguing that their presence was necessary to “protect the 

lawful privileges held by their clients . . . and protect against inadvertent waiver of those 

privileges.” Id. ¶ 26. Counsel for the CFPB denied the request. Plaintiffs then filed a petition 

with the CFPB seeking the same relief. Id. ¶ 31. That petition was denied on July 20, 2015. Id.

¶ 32. 

Plaintiffs filed this lawsuit on July 22, 2015. Their complaint alleges that the CFPB’s 

decision not to allow Plaintiffs’ counsel to attend the voluntary investigational hearing must be 

set aside under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Dkt. 3 ¶¶ 49-61. That 

same day, Plaintiffs filed an application for a temporary restraining order (“TRO”) seeking an 

injunction barring the CFPB from “proceeding with its planned voluntary investigational hearing 

of Plaintiffs’ attorney . . . without Plaintiffs’ being present to assert and protect their valid 

attorney-client privilege.” Dkt. 4 at 12. 

Accompanying their complaint and TRO application, Plaintiffs filed a motion to seal the 

case. Dkt. 1. They argue that sealing is appropriate because CFPB investigations are normally 

nonpublic and sealing the case will “protect the Plaintiffs from the serious harm that would result 

if [their] identity as the subject[s] of an ongoing investigation were to be disclosed to the public 

at large.” Id. at 1. The CFPB opposes the motion, arguing that Plaintiffs have not overcome the 
3

“‘strong presumption in favor of public access to judicial proceedings.’” Dkt. 7 at 1 (quoting 

EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). On July 22, 2015—

the day the case and the motion to seal were filed—Acting Chief Judge Emmet G. Sullivan 

ordered the case temporarily sealed “without prejudice to further consideration by the United 

States District Judge to whom this case is randomly assigned.” Dkt. 2. The case was randomly 

assigned to Judge Randolph D. Moss later that day.

The Court held an evidentiary hearing on the TRO application on July 23, 2015. Events 

at the hearing largely mooted the case, and, on August 6, 2015, Plaintiffs filed a notice of 

voluntary dismissal without prejudice. Dkt. 13. All that remains is for the Court to determine 

whether this matter should remain under seal.

II. LEGAL STANDARDS

When determining whether court records should be sealed, courts in this Circuit apply the 

six-factor test set out in United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980):

(1) the need for public access to the documents at issue; (2) the extent to which 

the public had access to the document prior to the sealing order; (3) the fact that a 

party has objected to disclosure and the identity of that party; (4) the strength of 

the property and privacy interests involved; (5) the possibility of prejudice to 

those opposing disclosure; and (6) the purpose for which the documents were 

introduced.

TIG Ins. Co. v. Firemen's Ins. Co. of Washington, D.C., 718 F. Supp. 2d 90, 95 (D.D.C. 2010)

(citation omitted). Whether judicial records should be made public is a matter “best left to the 

sound discretion of the trial court,” and the court’s discretion is “to be exercised in light of the 

relevant facts and circumstances of the particular case.” Nixon v. Warner Commc’ns, 435 U.S. 

589, 598 (1978). 
4

III. DISCUSSION

A. The Need for Public Access to the Documents at Issue

The documents here are court records from a lawsuit brought against the United States 

government. There is a “strong presumption in favor of public access to judicial proceedings.” 

EEOC v. Nat’l Children’s Ctr., 98 F.3d at 1409. Additionally, as the CFPB argues, “in cases 

where the government is a party, the appropriateness of making court files accessible is 

enhanced.” Friedman v. Sebelius, 672 F. Supp 2d 54, 58 (D.D.C. 2009) (alterations and 

quotation marks omitted). Plaintiffs’ contrary contention that “this information is presumptively 

non-public” (Dkt. 1 at 3) is incorrect—whatever the CFPB’s typical practices are with respect to 

identifying entities that are under investigation, judicial proceedings are normally open to the 

public. Moreover, unlike in Hubbard, where only a small subset of documents introduced in the 

course of litigation were subject to sealing (see 650 F.2d at 317-18), Plaintiffs here move to seal 

the entire proceeding and would thus deny the public even the most basic knowledge of its 

subject matter. Under this circumstance, the Court concludes that the public interest weighs 

strongly in favor of unsealing the case.

B. The Extent to Which the Public Had Access to the Document Prior to the Sealing Order

The information Plaintiffs seek to protect is the fact that they are the subject of an 

investigation by the CFPB. There is no indication in the record that this information was public 

before this case was provisionally sealed. Thus, there is “no previous access to weigh in favor 

of” unsealing. Hubbard, 650 F.2d at 318-19.

The CFPB points to the fact that Plaintiffs filed a petition with the agency prior to filing 

this lawsuit, and argues that that petition is part of the “public record.” Dkt. 7 at 3. It also notes 

that when an entity files a “petition for an order modifying or setting aside a civil investigative 
5

demand,” the party may request confidential treatment “at the time the petition is filed.” 12 

C.F.R. § 1080.6(e), (g). It is undisputed that Plaintiffs did not seek confidential treatment when 

they submitted their petition, although the parties disagree as to whether Plaintiffs’ petition was 

in fact governed by that regulation. 

It does not appear, however, that the CFPB has made Plaintiff’s petition publicly 

available as of the date of this Order. See Consumer Financial Protection Bureau, Petitions to 

Modify or Set Aside, http://www.consumerfinance.gov/guidance/petitions-to-modify-or-set-aside

(last visited September 21, 2015). Were it to do so, it is likely that Plaintiffs would have an 

opportunity to seek judicial review (and potentially interim relief) on grounds similar to those 

they advance here. Absent actual publication of Plaintiffs’ identities or a formal determination 

that their identities are a matter of public record, the Court cannot conclude that the public has 

had access to that information.

C. The Fact That a Party Has Objected to Disclosure and the Identity of That Party

Under the Hubbard test, the fact that “objection to access is made by a third party” would 

“weigh[ ] in favor of non-disclosure.” 650 F.3d at 319-20. In this case, however, the request is 

being made by Plaintiffs, not by a third party. The CFPB, in turn, opposes Plaintiffs’ request to 

seal the case. Thus, this factor does not support either position.

D. Strength of the Generalized Property and Privacy Interests Asserted

Plaintiffs argue that they have a significant privacy interest in avoiding being identified 

as the targets of a CFPB investigation. To support this proposition, they rely primarily on In re 

Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001). There, the Court of Appeals held that exhibits 

relating to an ongoing Federal Election Commission (“FEC”) investigation should have been 

sealed when the FEC filed them in connection with a petition to enforce a third-party subpoena. 

Id. at 662. The court relied on provisions of the Federal Election Campaign Act (“FECA”) and 
6

the FEC’s regulations, which unambiguously stated that “[a]ny . . . investigation” made pursuant 

to the FEC’s enforcement authority “shall not be made public . . . without the written consent of 

the person . . . with respect to whom such investigation is made.” Id. at 667 (citing 2 U.S.C. § 

437g(a)(12)(A) (2001)); see also 11 C.F.R. § 111.21(a) (“no . . . investigation conducted by the 

Commission . . . shall be made public . . . without the written consent of the respondent with 

respect to whom the . . . investigation [was] conducted”). The Court of Appeals concluded that 

these clear statutory and regulatory directives “create[d] a strong confidentiality interest 

analogous to that protected by Federal Rule of Criminal Procedure 6(e)(6),” which protects the 

secrecy of grand jury proceedings; the court reasoned that these protections were “vital to protect 

an innocent accused who is exonerated from disclosure of the fact that he has been under 

investigation.” In re Sealed Case, 237 F.2d at 667 (citing United States v. Procter & Gamble 

Co., 356 U.S. 677, 682 n.6 (1958)) (alterations and quotation marks omitted). 

Here, however, Plaintiffs have identified no statutory language or purpose that creates a 

confidentiality interest of the sort that compelled secrecy in In re Sealed Case. Indeed, their 

motion does not cite any statutory authority whatsoever. Instead, Plaintiffs rely on 12 C.F.R. § 

1080.14, which states:

Bureau investigations generally are non-public. Bureau investigators may 

disclose the existence of an investigation to potential witnesses or third parties to 

the extent necessary to advance the investigation.

12 C.F.R. § 1080.14. They also point to the CFPB’s notice announcing the promulgation of 

§ 1080.14, which states:

Section 1080.14 of the Interim Final Rule provides that investigations generally 

will not be disclosed to the public, but permits Bureau investigators to disclose the 

existence of an investigation when necessary to advance the investigation. The 

Interim Final Rule does not contemplate publicizing an investigation, but rather 

disclosing the existence of the investigation to, for example, a potential witness or 

third party with potentially relevant information when doing so is necessary to 

advance the investigation. This limited exception sufficiently balances the
7

concerns expressed by the commenter with the Bureau's need to obtain 

information efficiently.

77 Fed. Reg. 39101-01 (June 29, 2012). These regulatory provisions do not create as strong a 

privacy interest as the one that required sealing of the documents at issue in In re Sealed Case. 

For one thing, they were not mandated by Congress. For another, they do not categorically bar 

disclosure over the objection of the investigated party—instead, they include the qualifier 

“generally” and also recognize that that party’s interest must sometimes yield to the agency’s 

important investigative objectives. Even though the CFPB does not contend here that unsealing 

the case will further its investigative activity, the fact that its regulations allow for exceptions to

the “general[ ]” rule of confidentiality suggests that the privacy interest protected by the rule is 

weaker than that protected by FECA and the FEC’s regulations. 

E. The Possibility of Prejudice to Those Seeking to Avoid Disclosure

The possibility of prejudice to Plaintiffs in the event it is revealed that they are the 

subjects of a CFPB investigation is significant. The CFPB’s contention that Plaintiffs have “not 

identified any possible prejudice to them” (Dkt. 7) is incorrect—in their motion, Plaintiffs 

explicitly stated that “[r]eleasing their identities and information tying them to a government 

investigation will surely do irreparable reputational and financial harm.” Dkt. 1 at 6. The fact 

that Plaintiffs made this argument under the related prong of the strength of their privacy 

interests, see id., has no substantive bearing on the strength of their showing. The precise 

magnitude of the harm Plaintiffs face is difficult to determine on this record, and it is of course 

possible that Plaintiffs overstate the severity of the injury that disclosure of their identities would 

inflict. Nonetheless, it is not difficult to see how disclosure of the fact that an entity is subject to 

investigation by federal authorities would inflict non-trivial reputational, and possibly associated 
8

financial, harm on that entity. This unrebutted, commonsense showing favors keeping the case 

under seal.

F. The Purpose for Which the Documents Were Introduced

Plaintiffs introduced the documents at issue here—all of the submissions in this 

litigation—for the purpose of ensuring that the attorney-client privilege was respected in the 

course of the CFPB’s interview with Mr. Barens. Plaintiffs have not identified a risk that 

attorney-client privileged information would be made public if this case were unsealed, so this 

factor does not favor maintaining the case under seal.

* * *

Based on this analysis, the Court concludes that the predominant factors guiding this 

determination are the public’s interest in access to judicial information, on the one hand, and 

Plaintiff’s significant privacy interest in maintaining the confidentiality of the CFPB’s 

investigation, on the other. The question is much closer than the one the Court of Appeals 

addressed in In re Sealed Case. The privacy interest here, although substantial, is far less 

significant than the absolute right of confidentiality imposed by statute at issue in that decision. 

Moreover, sealing the entire case, rather than simply a subset of the filed documents, would 

deprive the public of even the most basic information about this litigation. Maintaining this 

matter entirely under seal is not warranted.

The Court concludes, however, that it is appropriate to re-caption this case as a John Doe 

suit and to afford Plaintiffs the opportunity to submit versions of all of the documents filed to 

date that redact their names and other identifying information. This compromise maximizes the 

amount of information available to the public while still protecting the privacy interest Plaintiffs 

assert. For this reason, it is hereby 
9

ORDERED that the Clerk shall re-caption this matter as John Doe Company No. 1, John 

Doe Company No. 2, John Doe Company No. 3, John Doe Company No. 4, John Doe Company 

No. 5, and John Doe v. Consumer Financial Protection Bureau. It is further

ORDERED that, on or before October 1, 2015, Plaintiffs shall file redacted versions of 

all documents, pleadings and orders that were filed in this matter prior to this Order.

1

 The 

redacted versions should omit the names of Plaintiffs and any other information reasonably 

likely to lead to the disclosure of Plaintiffs’ identities. Plaintiffs shall confer with the CFPB 

regarding their proposed redactions before filing and shall file a notice along with the redacted 

documents indicating whether the CFPB objects to any of the redactions.

After this case is re-captioned, the Court will issue an Order directing that the case be 

unsealed but requiring that the unredacted documents filed to date, including the transcript of the 

January 23, 2015, hearing and this Order, remain under seal. If Plaintiffs fail to submit redacted 

versions of the documents filed to date by the deadline set by the Court, the Court will unseal all 

documents in the case. 

IT IS SO ORDERED.

______________________ 

 RANDOLPH D. MOSS 

 United States District Judge 

Original Opinion Filed: September 21, 2015

Amended Opinion Filed: October 15, 2015

 1

 After Plaintiffs file redacted versions of the filings on the docket prior to this Order, the Court 

will create a redacted version of this Order and file it on the public docket.