IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MATTHEW S. PETERSEN, FEDERAL 

ELECTION COMMISSION CHAIRMAN, 

 Defendant. 

Civil No. 07cv1227 

Judge Rebecca R. Pallmeyer 

Magistrate Judge Cole 

MEMORANDUM IN SUPPPORT 

OF SECOND MOTION 

FOR SUMMARY JUDGMENT 

DEFENDANT FEDERAL ELECTION COMMISSION'S 

 MEMORANDUM IN SUPPORT OF ITS 

SECOND MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission (“Commission” or “FEC”) hereby submits this 

memorandum in support of its motion for summary judgment pursuant to Fed. R. Civ. P. 56 on 

the single remaining issue in this case, whether the Commission received private financial 

information of the plaintiffs from the Department of Justice (“DOJ”) in violation of the Right to 

Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-3422 (“RFPA”). This Court denied the 

Commission’s prior motion for summary judgment (Doc. #142) solely because of one portion of 

the deposition testimony of FEC staff attorney Phillip Olaya that the Court found to be 

ambiguous. See Mem. Opinion and Order of Feb. 4, 2010, at 4-5 (“Feb. 2010 Mem. Op.”) (Doc. 

#148). 

This motion is based on two grounds, each of which independently requires that 

judgment be entered for the Commission. First, no RFPA violation could have occurred here 

because plaintiffs’ allegations concern only records that DOJ obtained from “Merrill Lynch,” 

Case 1:07-cv-01227 Document 161 Filed 03/29/10 Page 1 of 13
and the available evidence indicates that any records DOJ obtained were from a broker-dealer 

arm of that company. Broker-dealers are not among the “financial institution[s]” covered by the 

RFPA, which applies only to records obtained from banks or other specified entities. See 12 

U.S.C. § 3401(1). At a minimum, plaintiffs have not shown that the records in question came 

from an entity that is subject to the RFPA. Thus, even if DOJ had transferred such records to the 

FEC — which it did not — no RFPA violation could have occurred here. 

Second, there is no credible evidence that the Commission received any of plaintiffs’ 

private financial records from DOJ. In a new declaration, FEC attorney Phillip Olaya confirms 

that the relevant testimony at his deposition concerned only the public trial materials contained 

on a CD the Commission received from DOJ — materials whose transfer could not constitute a 

violation of the RFPA, as this Court has suggested. See Declaration of Phillip Olaya (“Olaya 

Decl.”) ¶¶ 4-12, attached as Exh. A; Deposition of Phillip Olaya (“Olaya Dep.”), March 11, 

2009, at 21-29, attached as Exh. B; Feb. 2010 Mem. Op. at 4 (Doc. #148). Mr. Olaya further 

clarifies that he was mistaken when he affirmed at his deposition that he had seen financial 

information of the plaintiffs on that CD. Mr. Olaya’s declaration removes any ambiguity as to 

the sole remaining factual issue in this case. Accordingly, this Court should enter summary 

judgment for the Commission.1

 

1

 In the alternative, regarding plaintiffs’ failure to show that the records at issue here were 

disclosed by a “financial institution” covered by the RFPA, the Court could dismiss this case for 

lack of subject-matter jurisdiction or for failure to state a claim upon which relief can be granted, 

under Fed. R. Civ. P. 12(b)(1) or 12(b)(6). See, e.g., Travel All Over the World, Inc. v. Kingdom 

of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996) (case dismissed under Fed. R. Civ. P. 

12(b)(6)). “If the court determines at any time that it lacks subject-matter jurisdiction, the court 

must dismiss the action.” Fed. R. Civ. P. 12(h)(3). 

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I. BACKGROUND 

 As the Commission explained in its prior motion for summary judgment, this case began 

more than three years ago with a claim, now long dismissed, that the Commission had violated 

the Federal Election Campaign Act, 2 U.S.C. §§ 431-55, because DOJ had pursued a criminal 

investigation of a law firm with which Mr. Beam is affiliated (Fieger, Fieger, Kenney, & 

Johnson) without first receiving a referral from the Commission. See FEC Memorandum in 

Support of Its Motion for Summary Judgment, dated July 10, 2009 (“FEC SJ Mem.”), at 2-3 

(Doc. #142-2). Plaintiffs later made other claims, but since March 2008, only one has remained: 

that the Commission violated the RFPA because it allegedly received private financial records of 

the plaintiffs in a situation in which the transferring agency (not the FEC) had failed to make and 

provide notice of a certification as required by 12 U.S.C. § 3412. In early 2009, plaintiffs 

deposed eight current or former FEC staff members as to this alleged transfer, including Mr. 

Olaya. See FEC SJ Mem. at 7 n.3. The Commission moved for summary judgment in July 

2009. 

In February 2010, this Court denied the Commission’s motion for summary judgment 

solely on the grounds that one part of Mr. Olaya’s deposition testimony constituted “sufficient 

evidence from which a jury could find that the FEC received [the Beams’] financial information 

in violation of the RFPA.” Feb. 2010 Mem. Op. at 4-5. The Court noted that all parties agreed 

that the Beams’ financial records had not been used as trial exhibits. Id. at 5. However, because 

Mr. Olaya had testified that he had seen the Beams’ financial records on a CD containing 

testimony and exhibits from the Fieger criminal trial that DOJ provided to the Commission after 

the trial, the Court stated that “Olaya must be mistaken, and two inferences are possible: either 

he saw some records that were not trial exhibits or he did not see the Beams’ financial records at 

3 

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all.” Id. In a declaration executed on March 11, 2010, Mr. Olaya has clarified that he was 

mistaken in affirming during the deposition that materials related to the Beams were on the CD, 

and he further declared that he has never seen any financial information about the Beams that 

was received from DOJ. Olaya Decl. ¶¶ 4-12.

II. THE COMMISSION IS ENTITLED TO SUMMARY JUDGMENT BECAUSE 

THERE IS NO SUFFICIENT LEGAL OR FACTUAL BASIS TO SUPPORT A 

FINDING THAT THE AGENCY VIOLATED THE RFPA BY RECEIVING 

PLAINTIFFS’ FINANCIAL RECORDS

A. Summary Judgment Standards 

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled to a judgment as a matter of law.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c); Nat’l Athletic 

Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7thCir. 2008). “Once a party has 

made a properly-supported motion for summary judgment, the opposing party may not simply 

rest upon the pleadings but must instead submit evidentiary materials that ‘set forth specific facts 

showing that there is a genuine issue for trial.’” Harney v. Speedway SuperAmerica, LLC, 526 

F.3d 1099, 1104 (7th Cir. 2008), cert. denied, 129 S.Ct. 1349 (2009)(quoting Fed. R. Civ. P. 

56(e)). “The nonmoving party bears the burden of demonstrating that such a genuine issue of 

material fact exists.” Id. 

B. No RFPA Violation Could Have Occurred Here Because the Broker-Dealer 

Arm of Merrill Lynch That Provided Plaintiffs’ Records to DOJ Is Not 

Among the Entities Covered by the Statute 

Plaintiffs’ claim against the Commission must fail because Merrill Lynch is not a 

“financial institution” within the meaning of the RFPA. Thus, regardless of what kind of 

documents Merrill Lynch may have released pursuant to DOJ’s grand jury subpoena, because the 

4 

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RFPA covers only financial records obtained from a “financial institution” as narrowly defined 

in that statute, plaintiffs’ allegations do not state a claim under the RFPA. 

1. The Plaintiffs’ RFPA Claims Are Based on Materials Allegedly 

Obtained from a Broker-Dealer Arm of Merrill Lynch 

Plaintiffs claim that the Commission violated the RFPA because the agency allegedly 

received from DOJ some “private banking records” relating to the Beams’ accounts at “Merrill 

Lynch.” Specifically, the Beams allege: 

15. Initially, Merrill Lynch refused to disclose to Plaintiffs whether federal agents had 

accessed their financial records. 

16. Subsequently, Plaintiffs Jack and Renee Beam obtained documentary proof that 

federal agents of the Justice Department and/or FBI had, in fact, obtained their 

financial records by engaging in acts and/or omissions that violate the Right to 

Financial Privacy Act. * * * 

18. Upon information and belief, sometime after Gonzales and his agents secretly 

obtained Plaintiffs’ private banking records, Gonzales and his agent(s) transmitted 

such illegally gathered documents to the Federal Election Commission. 

 

Second Amended Complaint (“2d Am. Compl.”) (Doc. #91).2

 

“Merrill Lynch” is a trade name of certain entities owned at the time relevant to this 

lawsuit by Merrill Lynch & Co., Inc., whose primary business was as a broker-dealer of 

 

2

 As far as the Commission has been able to determine, in the more than 150 docket entries 

in this case, the only specific description of the records the Beams allege led to an RFPA 

violation occurs in paragraphs 15-18 of the Second Amended Complaint (Doc. #91) and in the 

Plaintiffs’ Motion to Compel Compliance with Third Party Subpoena (Doc. #67). That motion 

references “Merrill Lynch” and “bank records,” ¶¶ 1-6, and its memorandum uses similar terms. 

Plaintiffs subpoenaed “Merrill Lynch” at a Chicago address. (Doc. #67-1 at 2-3). Merrill 

Lynch, Third Party Services, acknowledged receipt of the Beams’ subpoena, but stated that “[n]o 

such records have been found.” (Doc. #67-2 at 2). A letter from DOJ to defense attorneys in the 

Fieger criminal trial stated that it enclosed, inter alia, a copy of a “CD-ROM from Merrill 

Lynch.” (Doc. #67-3 at 2). Moreover, in its response to a motion to compel in the Fieger 

criminal case, DOJ indicated that it had subpoenaed records from the “brokerage arm of Merrill 

Lynch.” United States’ Response to Motion to Compel, dated Nov. 26, 2007, United States v. 

Fieger, Case No. 2:07-cr-20414 (E.D. Mich.) at 2 n.3 (Doc. #108). Thus, the alleged violations 

5 

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securities. See AMERICA’S CORPORATE FAMILIES, Dunn & Bradstreet, Vol. 1 (2008) at 1135-36. 

At that time 15 entities, owned by the corporate parent or one of its subsidiaries, used the trade 

name “Merrill Lynch.” Of these 15 entities, only one, along with one of its subsidiaries, was a 

“bank,” namely, Merrill Lynch Bank USA and its subsidiary Merrill Lynch Business Financial 

Services, Inc., and both listed their business as “national commercial banks.” Id. at 1135. In 

short, the name “Merrill Lynch” by itself overwhelmingly refers to securities brokers and 

dealers, see id. at 1135, and DOJ’s response to a motion to compel in the related Fieger criminal 

case noted that DOJ had subpoenaed records from the “brokerage arm of Merrill Lynch.” 

United States’ Response to Motion to Compel, dated Nov. 26, 2007, United States v. Fieger, No. 

2:07-cr-20414 (E.D. Mich.), at 2 n.3 (Doc. #108) (emphasis added). Thus, plaintiffs have 

provided no evidence to suggest that their claims about “Merrill Lynch” mean anything other 

than Merrill Lynch & Co., Inc., or its broker-dealer subsidiaries.3

 

2. Broker-Dealers are Not “Financial Institutions” Under the RFPA, So 

No Violation of That Statute Could Have Occurred Here 

 The Supreme Court has noted that “[t]he most salient feature of the [RFPA] is the narrow 

scope of the entitlements it creates.” SEC v. Jerry T. O’Brien, Inc., 467 US 735, 745 (1984); see

 

of the RFPA here concern documents DOJ obtained from a brokerage arm of Merrill Lynch. 

Plaintiffs do not allege that the FEC obtained any records directly from Merrill Lynch.

3

 The Beams’ three “CMA” checks made payable to Edwards for President that the FEC’s 

Audit Division received from that campaign committee, as part of the mandatory audit under 26 

U.S.C. § 9038, appear to have been drawn on a Cash Management Account administered by 

Merrill Lynch. See FEC SJ Mem. at 9-11 and Exh. 8. On its website, Merrill Lynch describes 

its “CMA” or “Cash Management Account” as follows: “As a central asset account, [the CMA] 

is an investment and money management vehicle. The Visa Card and checking features are 

intended to provide clients with easy access to the assets in their accounts, but [the CMA] is not 

a bank account.” See Merrill Lynch Direct Cash Management Account Program Description, 

https://olui2.fs.ml.com/publish/content/PDF/GWMOL/Direct_Cash_Management_Account_Pro

gram_Description.pdf, at 9-10 (visited Mar. 25, 2010). Of course, these three checks were not 

received from DOJ, and as products of a statutorily-mandated audit, the checks cannot constitute 

an RFPA violation. Plaintiffs have never argued to the contrary.

6 

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Walker v. S.W.I.F.T. SCRL, 491 F. Supp. 2d 781, 792 (N.D. Ill. 2007) (“SWIFT”)). By its own 

terms, the RFPA applies only to “financial records” obtained by the government “from a 

financial institution.” 12 U.S.C. § 3402 (emphasis added). The RFPA defines “financial 

institution” as: 

any office of a bank, savings bank, card issuer [as defined elsewhere], industrial loan 

company, trust company, savings association, building and loan, or homestead 

association (including cooperative banks), credit union, or consumer finance institution, 

located in any State or territory of the United States, the District of Columbia, Puerto 

Rico, Guam, American Samoa, or the Virgin Islands. 

12 U.S.C. 3401(1); see also SWIFT, 491 F. Supp. 2d at 792. Because the RFPA does not cover 

broker-dealers, there is no evidence that DOJ ever obtained any records from a covered entity, so 

there is no genuine issue of fact that could support a finding of an RFPA violation. The “starting 

point in any case involving the meaning of a statute is the language of the statute itself.” Group 

Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210 (1979). Section 3401(1) does not 

specify that broker-dealers of securities fall within the definition of “financial institution” 

covered by the RFPA. Thus, under the familiar statutory construction doctrine “inclusio unius, 

exclusio alterius” — the listing of some things implies that other things were purposefully 

excluded — broker-dealers are not covered by the RFPA. 

The legislative history of the RFPA provides no indication that Congress was targeting 

securities brokers and dealers. See H.R. Rep. 95-1383, 1978 U.S. Code Cong. & Adm. News p. 

9273. Broker-dealers play a major role in the nation’s economy, and if Congress had intended 

that those entities be covered by this significant privacy legislation, it would have said so clearly. 

“[Congress] does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 

U.S. 457, 468 (2001). Indeed, if the RFPA applied to records obtained from entities other than 

7 

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those listed in section 3401(1), a wide range of persons, including individuals, might be subject 

to RFPA liability without meaningful notice. 

In accord with these principles, the RFPA’s definition of “financial institution” has been 

construed narrowly. In SWIFT, a court in this district held that a supplier of messaging services 

to financial institutions was not itself a “financial institution” subject to the RFPA. SWIFT, 491 

F. Supp. 2d at 792 (“Plaintiffs’ conclusory statement that SWIFT ‘acted as a financial institution’ 

is not enough to make it so.”). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“a 

plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than 

labels and conclusions”) (internal quotation marks omitted). Similarly here, though arms of 

Merrill Lynch obviously provide financial services and do business with banks, that is not 

enough to make Merrill Lynch or any particular part of it a “financial institution” within the 

meaning of section 3401(1) of the RFPA. 

Courts have consistently construed the definitions provisions of the RFPA narrowly. See,

e.g., O’Brien, 467 U.S. at 745 (illustrating that the RFPA limits kinds of “customers” to whom it 

applies and types of records under its protection); Collins v. Commodity Futures Trading 

Comm’n, 737 F. Supp. 1467, 1478 (N.D. Ill. 1990) (corporation not a “customer” under the 

RFPA); Spa Flying Service, Inc. v. United States, 724 F.2d 95, 95 (8th Cir. 1984) (per curiam) 

(same); Rosiere v. SEC, 2010 WL 489526 (D. Nev. 2010) (same); Lee v. McClellan, No. 3:97-

355-P, 1997 WL 882907 (W.D.N.C. 1997 *4) (RFPA does not apply to corporations or trusts); 

In re Porras, 191 B.R. 357, 359 (Bankr. W.D. Tex. 1995) (trust not a ”customer” under the 

RFPA); Donovan v. U.A. Local 38 Plumbers and Pipe Trades Pension Fund of San Francisco, 

569 F. Supp. 1488, 1490 (N.D. Cal. 1983) (pension fund trust records not “financial records” 

protected by the RFPA); Young v. U.S. Dept. of Justice, 882 F.2d 633, 639 (2d Cir. 1989) (RFPA 

8 

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does not apply to court-appointed commissioners, who would otherwise qualify as “government 

authorities” under the RFPA, when they seek information from financial institutions with courtordered subpoenas). 

When Congress does intend to include broker-dealers within the definition of “financial 

institution” in privacy laws, it typically makes that inclusion clear. For example, in the Bank 

Secrecy Act, Congress enumerated many entities under the definition of “financial institution.” 

In that statute, Congress specifically listed brokers and dealers as a separate category, and 

distinguished them from various kinds of banks. See 31 U.S.C. § 5312(2). Congress has thus 

demonstrated that it is quite able to make clear that broker-dealers are covered by such statutes 

when it so intends. The RFPA was enacted 32 years ago, and we are aware of no authority 

suggesting that Congress intended the statute to include broker-dealers as “financial institutions.” 

In sum, plaintiffs have provided no evidence that their allegations about Merrill Lynch 

involve a “financial institution” under the RFPA, or, indeed, any evidence at all about the 

financial materials plaintiffs claim were transferred to the Commission. Plaintiffs have failed to 

meet their burden at the summary judgment stage to show that there is a genuine issue for trial. 

See Harney, 526 F.3d at 1104. Because there is no evidence that an RFPA violation could have 

occurred in this case, summary judgment should be granted to the Commission.4

 

 

4

 The FEC respectfully disagrees with the Court’s earlier conclusion (Oct. 15, 2008 Mem. 

Op. at 14 (Doc. #108)) that the FEC could be liable under the RFPA because of another entity’s 

alleged failure to make and provide notice of a certification as required under 12 U.S.C. § 3412. 

That provision places certain obligations on the agency transferring private financial information 

to another agency. But here, plaintiffs have alleged only that the Commission improperly 

obtained their private financial records from DOJ. Since section 3412 does not require the 

receiving agency to take any action, the FEC would have had no obligations under that 

provision. 

9 

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C. It Is Now Clear That the Sole Testimony That Prevented a Grant of 

Summary Judgment to the FEC Referred to a CD Containing Public Trial 

Materials Whose Transfer Could Not Constitute an RFPA Violation, and 

Plaintiffs’ Records Indisputably Do Not Appear on That CD in Any Event 

The Court’s recent denial of summary judgment to the Commission was based solely on 

the ambiguity the Court identified in the deposition testimony of FEC staff attorney Phillip Olaya 

about whether he had seen plaintiffs’ financial information. See Feb. 2010 Mem. Op. at 4-5. 

However, Mr. Olaya has now executed a declaration that makes clear that, when he affirmed 

during his deposition that he had seen the Beams’ financial records, he was discussing the CD 

from DOJ that contains exhibits from the Fieger criminal trial. Olaya Decl. ¶¶ 4-9, 11 

(Attachment A). See Olaya Dep. at 21-29 (testimony regarding CD containing Fieger criminal 

trial exhibits)(Attachment B). Such trial exhibits, as this Court suggested in its recent ruling, 

Feb. 2010 Mem. Op. at 4, do not contain private financial information, and this CD contained 

only public trial material, as the Court itself can readily confirm by consulting its copy. See

Letter from Benjamin A. Streeter III to Judge Pallmeyer, dated April 14, 2009 (Doc. #143) 

(enclosing CD for Court’s review). Mr. Olaya also clarifies in his declaration that he erred in 

stating that the Beams’ financial records were on that CD. Olaya Decl. ¶ 11. And Mr. Olaya 

testifies that he saw no private financial information from DOJ relating to the Beams in any other 

form or context. Id. ¶¶ 9, 13. His declaration thus confirms that the Commission did not in fact 

receive any financial records from DOJ in violation of the RFPA.5

 

 As explained in Section I above, the Court in its recent decision found that the deposition 

testimony of Mr. Olaya left open to question whether the Commission had in fact received 

plaintiffs’ private financial information. See Feb. 2010 Mem. Op. at 4-5. The Court cited the 

10 

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testimony at pages 21 and 28 of Mr. Olaya’s deposition, particularly the testimony at page 28, 

where Mr. Olaya eventually responds in the affirmative to counsel’s questions as to whether he 

saw the plaintiffs’ names in the “other financial documents” contained on the CD of trial 

materials that the Commission received from DOJ. See Olaya Dep. at 26-28; see also id. at 21-

29. This testimony, when viewed in context and in light of Mr. Olaya’s clarifying declaration, 

concerns only the contents of the CD that indisputably contains no private financial information 

of any kind. Because the testimony concerns only that CD, it would be unreasonable to interpret 

it as suggesting that the Commission received the plaintiffs’ financial information from DOJ on 

some other occasion or in some other form, much less that the agency received plaintiffs’ private 

financial information in violation of the RFPA — particularly since the unchallenged testimony 

of the most knowledgeable witnesses, DOJ’s Kendall Day and former FEC attorney Audra 

Wassom, clearly shows that no such transfer ever occurred. See FEC SJ Mem. at 5-6. Indeed, it 

is important to recognize that Mr. Olaya never stated in his deposition that he had seen private

financial information of the Beams; he merely responded affirmatively to counsel’s questions 

whether he had seen plaintiffs’ information among the “other financial documents” on the CD of 

trial materials. Nevertheless, in order to remove any possible doubt, Mr. Olaya has now 

executed a detailed declaration to explain what materials he has seen and to clarify his deposition 

testimony. 

In his declaration, Mr. Olaya explains that he saw two types of information from DOJ 

related to this matter: summaries of non-grand jury law enforcement interviews (“302” 

interviews), and public trial materials (testimony and exhibits) from the Fieger criminal trial that 

 5

 The Commission offered counsel for plaintiffs an opportunity to depose Mr. Olaya about 

the testimony in his new declaration, but counsel declined. See Letter to Michael Dezsi dated 

March 12, 2010, attached as Exh. C.

11 

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DOJ provided to the Commission on a CD after the trial concluded. Olaya Decl. ¶¶ 4-5. Mr. 

Olaya explains that the trial exhibits consisted of two categories of information, specifically 

summaries of the timeline of relevant events for each conduit reimbursed by the criminal 

defendants, and financial records reflecting each conduit’s relevant contributions and 

reimbursements. Id. ¶¶ 7-8. Mr. Olaya confirms that none of this material contains any financial 

information about the Beams. Id. ¶¶ 4-9. Mr. Olaya forthrightly explains that in his deposition, 

he mistakenly stated that he had seen financial information related to the Beams on the CD of 

Fieger trial exhibits, but that he did so due to a lapse in concentration after having answered in 

the affirmative to questions about two other individuals’ information, and “without fully 

considering Counsel’s questions.” Olaya Decl. ¶¶ 11-12. Of course, regardless of whether 

information about the Beams did appear on that CD, there is no dispute that nothing on the CD is 

private financial information of anyone. Mr. Olaya also categorically states that “[t]he records 

DOJ transmitted to the Commission do not include any financial information that related to Jack 

or Renee Beam.” Id. ¶ 13.6

 As this Court correctly recognized in its recent ruling denying 

summary judgment, which identified only Mr. Olaya’s testimony as presenting a triable issue of 

fact, there is no other evidence to support a finding of RFPA liability here. 

Mr. Olaya’s declaration, in combination with the evidence presented in the FEC’s 

previous motion for summary judgment, see FEC SJ Mem. at 4-11, demonstrates that there is no 

evidence that the Commission received any private financial records of the Beams from DOJ. 

Thus, there is no genuine issue of material fact as to whether a violation of the RFPA occurred, 

 

6

 Mr. Olaya also explains that he saw copies of the three checks from the Beams procured 

by the FEC’s Audit Division pursuant to the audit of the Edwards for President committee 

required by 26 U.S.C. § 9038. Olaya Decl. ¶ 10. As we have explained, these checks did not 

come from DOJ. See supra p. 6 n.3. 

12 

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13 

and the Court should grant summary judgment to the Commission. “If the nonmoving party fails 

to establish the existence of an element essential to his case, one on which he would bear the 

burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz v. John 

O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996). 

III. CONCLUSION 

Because the broker-dealer arms of Merrill Lynch are not “financial institutions” covered 

by the RFPA, and because the Commission has removed any remaining ambiguity as to the one 

isolated portion of deposition testimony that was found to suggest (contrary to fact and all other 

evidence) that the Commission received private financial information regarding the Beams, there 

is no basis to find that Commission has violated the RFPA. The Commission respectfully 

requests that the Court grant it summary judgment and dismiss this case. 

 Respectfully submitted, 

Thomasenia P. Duncan* 

 General Counsel 

 David Kolker* 

Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

/s/ Holly J. Baker

Holly J. Baker* 

 Attorney 

 

 *Admitted pro hac vice 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

AND ITS CHAIRMAN 

999 E Street, N.W. 

Washington, DC 20463 

 202-694-1650 

March 29, 2010 

Case 1:07-cv-01227 Document 161 Filed 03/29/10 Page 13 of 13
THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MATTHEW S. PETERSEN, FEDERAL 

ELECTION COMMISSION CHAIRMAN, 

 Defendant. 

 Civil No. 07cv1227 

 Judge Rebecca R. Pallmeyer 

 Magistrate Judge Cole 

 DEFENDANT’S SECOND MOTION 

 FOR SUMMARY JUDGMENT 

DEFENDANT’S SECOND MOTION 

FOR SUMMARY JUDGMENT 

 Defendant Federal Election Commission (“Commission”) moves for summary 

judgment pursuant to Federal Rule of Civil Procedure 56 on the grounds that there is no 

legal or factual basis to support a finding that the Commission violated the Right to 

Financial Privacy Act, 12 U.S.C. §§ 3401 et seq. In support of this motion, the 

Commission relies on its memorandum of law and its statement of material facts as to 

which there is no genuine issue, pursuant to Northern District of Illinois LR56.1(a)(3). 

PLEASE TAKE NOTICE that Defendant Federal Election Commission’s Second 

Motion for Summary Judgment will be presented to the Honorable Rebecca R. Pallmeyer 

on Tuesday, April 6, 2010, at 9:00 a.m., or as soon thereafter as counsel may be heard. 

 Respectfully submitted, 

Thomasenia P. Duncan* 

 General Counsel 

 David Kolker* 

Associate General Counsel 

Case 1:07-cv-01227 Document 161-1 Filed 03/29/10 Page 1 of 2
2 

Harry J. Summers* 

Assistant General Counsel 

/s/ Holly J. Baker 

Holly J. Baker* 

 Attorney 

hbaker@fec.gov

*Admitted pro hac vice 

 COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

AND ITS CHAIRMAN 

999 E Street, N.W. 

Washington, DC 20463 

 202-694-1650 

March 29, 2010 

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