BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. :.. :_: f**f.~.**

In the matter ofthe cancellation ofthe Air Taxi authority issued to: DocketDOT-OST-2012-0022 VIH COUGAR HELICOPTERS, INC.

MOTION OF VIH COUGARHELICOPTERS, INC. TO WITHHOLD INFORMATION FROM PUBLIC DISCLOSURE Communications withrespectto this document shouldbe sentto:

David M. Nadler David Y. Yang AndrewE. Smith DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com 

### Counsel to VIHCougarHelicopters, Inc.
Dated: December 18, 2012BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.

In the matter ofthe cancellation ofthe Air Taxi authority issued to: Docket DOT-OST-2012-0022 VIH COUGARHELICOPTERS, INC.

MOTION OF VIH COUGAR HELICOPTERS, INC. TO WITHHOLD INFORMATION FROM PUBLIC DISCLOSURE


### Pursuant to Rule 12 ofthe Rules ofPractice (14 C.P.R. § 302.12) for the Department of Transportation ("Department"), VIH Cougar Helicopters, Inc. ("VIH Cougar"), by and through the undersigned counsel, hereby moves to withhold from public disclosure unredacted versions ofthe documents set forth in Exhibit A (collectively, "the Documents"), which were providedto the Department inresponse to the Department's December 14, 2012 order in the above-captioned proceedings. I. BACKGROUND AND ARGUMENT 

### The Documents contain confidential commercial and personal information that is exempt from public disclosure pursuantto Exemption 4 ofthe Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552, the Trade Secrets Act, 18 U.S.C. § 1905, and all other applicable statutory and regulatory prohibitions against the public disclosure ofsensitive, non-public information. Redacted, public versions ofthe Documents will be filed with the Department's Docketing Office for inclusion onto DocketNo. DOT-OST-2012-0022 in the coming days. Exemption 4 ofFOIAprotects all matters that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5U.S.C.§ 552(b)(4). To fall within the purview ofExemption4, information mustbe: (1) commercial or financial in nature; (2) obtained from a person orby the Government; and (3) confidential or privileged. 

### See e.g., Watkins v. US. Bureau of Customs andBorder, 643 F.3d 1189, 1194 (9th Cir. 2011); 

### see also, Public Citizen Health Research Group, 704 F.2d at 1290 (D.C. Cir. 1983). In addition, the Trade Secrets Act, 18 U.S.C. § 1905, prohibits Governmentpersonnel from disclosing confidential informationunless disclosure wouldbe allowed under FOIA Exemption 4. 

### See Canadian Commercial Corp. v. Dept. of AirForce, 514 F.3d 37, 39 (D.C. Cir. 2008) (citing 

### CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1151 (D.C. Cir. 1987)). Notably, in seeking Exemption 4 protection, a personneed notprove with certainty thatit will suffer competitive harm bythe release ofits commercial or financial information. 

### McDonnell Douglas Corp. v. UnitedStates, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (sufficient to trigger Exemption 4 protection where person shows that it is likelythat competitive harmwouldresult); 

### see also GeneralElec. Co. v. Dep'tof theAirForce, 648 F. Supp. 2d 95, 103-04 (D.D.C. 2009) (holding that a contractor is notrequired to showhowexactly a competitor would use its information to gain a competitive advantage). Here, the Documents satisfy the Exemption 4 requirements. Specifically, the Documents

are commercial orfinancial in nature, they are maintained confidentially, and they are not available to the general public. Indeed, VIH Cougartakes reasonable efforts to guard against unauthorized dissemination ofthe Documents, thereby protecting their commercial value. More specifically, the Documents contain confidential, commercial information regarding VIH Cougar's organization, operations, capabilities, strategic alliances, real estate, licenses, insurance policies, including the terms and conditions ofthose business arrangements. Accordingly, ifthe Documents were publicly disclosed, the information would allow competitors (such as Petroleum

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### Helicopters, Inc.) insights into sensitive subjects such as the number ofaircraft that operatedby the companies, the capabilities ofthose aircraft, the capabilities and services providedbythe companies, the location ofany bases and facilities, the names ofthe pilots who fly for the companies and the crews which service the aircraft, the vendors that support the companies and the types ofservices that they provide. All ofthis information would assist in determining where the companies operate and what they presently do, as well as in predicting the industries, sectors, and/or geographic locations ormarkets in whichthey may be likely to expand. Thus, all ofthis information would be useful to competitors in pursuing current or identifying prospective business opportunities. Underthese circumstances, the public disclosure ofthe Exhibit A Documents intheir umedacted forms would give competitors access to commercially sensitive and valuable informationthatthey would not otherwise have but for these proceedings

- and the information inequality would likely place VIH Cougar and these nonparties at an unfair competitive disadvantage inrelation to these competitors when pursuing the same or similarbusiness opportunities or formulating and/or executing strategic alliances and similarpursuits. Moreover, the Documents also contain certain personal information related to employees. This sensitive, personal information is also confidential and its release would violate company policies for safeguarding the privacy interests ofemployees. Finally, because the impetus behind the Department's Rule 12 procedures is to ensure that a company's confidential commercial and personal information is protected to the maximum practicable while also ensuring that the public has adequate access to the relevant facts, it is appropriate to consider whether disclosure ofthe Documents would be central to understanding

3the proceedings underlying this case, particularly since confidential information is also involved. VIH Cougar contends that it is not. The redactions that VIH Cougar will file onthe public docket in the coming days will provide all ofthis information necessary and, thus, properly addresses the Department's stated

concerns while maintainingunder seal confidential informationthatthe public does not needto see, in an effort to promote the regulatory and statutoryrights ofVIH Cougar and its employees to have theirpersonal and business-sensitive informationprotectedto the fullest extent ofthe law. 

### See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 5298 F. Supp. 866, 0907-08 (E.D. Pa. 1981) (findingthatpublic'spresumption ofaccess to commercial information designated as confidential was weak, where public's general interest inthe underlying litigation was satisfied by court's unsealing ofother documents andthe protected information was commercially sensitive). 

### II. CONCLUSION Forthe foregoing reasons, the Department should grant VIH Cougar's motion andnot disclose the umedacted Documents inExhibitA thathave beenprovidedto the Department in response to the Department's December 14, 2012 order.

Dated: December 18, 2012 Respectfully submitted, By:

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# DAufd**M~** David M. Nadler David Y. Yang Andrew E. Smith DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com5 yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com Counsel to VIH Cougar Helicopters, Inc.

### EXHIBIT A INDEX OF CONFIDENTIAL INFORMATION AND DOCUMENTS TO BE WITHHELD FROM THE PUBLIC:

CONFIDENTIAL ITEM# TITLE/DESCRIPTION 1. The documents contained within the file named "Articles of Incorporation," which is being filed as Tab A inresponse to the Department's Dec. 14, 2012 order. 2. The documents contained within the file named "DOT-FAA Certificates," which is being filed as Tab Binresponse to the Department's Dec. 14, 2012 order. 3. The documents contained within the file named "Company Benefit Plan," which is being filed as Tab C inresponse to the Department's Dec. 14, 2012 order. 4. The documents contained withinthe file named "Company Employee List," whichis being filed as Tab D in response to the Department's Dec. 14, 2012 order. 5. The documents contained within the file named "Financial Statements and Documents," which is being filed as Tab E in response to the Department's Dec. 14, 2012 order. 6. The documents contained withinthe file named "Helicopter Leases," which is being filed as Tab Finresponse to the Department's Dec. 14, 2012 order. 7. The documents contained withinthe file named "Insurance Policies and Related Documents," which is being filed as Tab G in response to the Department's Dec. 14, 2012 order. 8. The documents contained withinthe file named "HSBC Bank USA, NA Line ofCredit Agreement," which is being filed as Tab H inresponse to the Department's Dec. 14, 2012 order. 9. The documents contained withinthe file named "Material Contracts and Agreements," which is being filed as Tab I in response to the Department's Dec. 14, 2012 order. 10. The documents contained within the file named "Real Estate Leases," which is being filed as Tab J in response to the Department's Dec. 14, 2012 order.

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### CERTIFICATE OF SERVICE I certify that I have onthis 18th day ofDecember 2012 served the foregoing uponthe persons listed below:

Susan L. Kurland Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 NewJersey Avenue, SE Room W96-495 Washington, DC 20590 Lauralyn Remo Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 NewJersey Avenue, SE Room W96-495 Washington, DC 20590 Jonathan Blank JohnLongstreth Timothy Hobbs K&L Gates LLP 1601 K StreetNW Washington, DC 20006-1600 Peter Lynch, AGC-300 Asst. ChiefCounsel for Enforcement Federal Aviation Administration 800 Independence Ave. SW Washington, DC 20591 William J. Weber Certification Section Manager FAA AFS-900 45005 Aviation Drive Suite 131 Dulles, VA 20166 Roy Hardie Aviation Safety Inspector Federal Aviation Administration 1601 Lind Avenue SW, Suite 260 Renton, W A 98057

Andrew E. Smith

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