### BEFORE THE DEPARTMENT OFTRANSPORTATION OFFICE OFTHE SECRETARY WASHINGTON, D.C.

In the matterofthe cancellation ofthe AirTaxi authority issued to: Docket DOT-OST-2012-0022 VIH COUGAR HELICOPTERS,INC.

MOTION OFVIH COUGARHELICOPTERS, INC. TO WITHHOLD INFORMATION FROMPUBLIC DISCLOSURE Communications withrespect to this document should be sent to:

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 VIH Cougar Helicopters, Inc.
Dated: April2, 2012

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### BEFORE 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 COUGAR HELICOPTERS, INC.

MOTION OF VIH COUGAR HELICOPTERS, 

### INC. TO WITHHOLD INFORMATION FROM PUBLIC DISCLOSURE
Pursuantto 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 the un-redacted VIH Cougar, Inc. Motion to Stay The Department ofTransportation's March 12, 2012 Show Cause Order and supporting exhibits, which include confidential commercial and personal information that is exempt from public disclosure pursuantto the Freedom oflnformationAct, 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 versions ofthese items were filed today withthe Department ofTransportation Docketing Office for inclusion onto DocketNo. DOT-OST-2012-0022. In addition, as asserted in ourpending motion,1

### the terms and conditions presently provided by the Department for the treatment ofVIH Cougar confidential information are

1

### See Motion ofVIH Cougar Helicopters, Inc. Objecting to the Public Release ofConfidential Information and the Release ofSuch Information to Counsel and Outside Experts ofInterested Parties Pursuantto the Terms Proposed in the March 12, 2012 Show Cause Order, dated March 16, 2012.

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### entirely inadequate for safeguarding VIH Cougar's proprietary interests. Indeed, these deficiencies already have been demonstrated by the unauthorized and illegal release of VIH Cougar confidential information to eounsel for Petroleum Helicopters, Inc. ("PHI"), a direct competitor, in violation ofthe agency's insufficient procedures. See Mar. 29, 2012 Ltr. from DOT to Jonathan Blank, counsel for PHI, attached hereto as Exhibit 1; see also Mar. 30, 2012 Ltr. from VIH Cougar to DOT, attached hereto as Exhibit 2. As VIH Cougar has asserted, the Department's present procedures fall short ofwidelyaccepted federal standards (such as those required by bid protestprotective orders issued by the U.S. 

### Government Accountability Office ("GAO")) for protecting business-sensitive information in similar contexts. In light ofthe egregious confidentiality breaches that already have occurred with respect to a competitor's counsel's unauthorized access to VIH Cougarprotected material, any further release ofVIH Cougar confidential informationto any counsel and/or outside experts in the course ofthese proceedings must be subject to processes and safeguards that require at least the same rigor as those found in GAO bid protest protective orders, particularly with respect to their provision for enhanced oversight and penalties for violations. Dated: April 2, 2012 By:

2 David Y. Yang Andrew E. Smith DICKSTEIN SH 1825 Eye Street, Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com Counsel to VIH Cougar Helicopters, Inc.

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### CERTIFICATE OF SERVICE I certify that I have on this 2nd day ofApril 2012 served the foregoing motion ofVIH Cougar Helicopters, Inc. upon the 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 Docket DOT-OST-2012-0022 Department ofTransportation Dockets 1200 NewJersey Avenue, SE Room W12-140 Washington, D.C. 20590 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

3 DSMDB-3045450vI

# EXHIBIT 12023668536 W94-122c



### u.s.Deportmentof Transportation OffiCe oftheSecretary ofTransportation

By Facsimile Jonathan Blank, Esq. K & L Gates LLP 160I K Street, NW Washington, DC 20006-1600 GENERAL COUNSEL

March 29, 2012 04:30:20 p.m. 03-29-2012

1200 New Jersey Avenue, Sf**Wo~hington,** DC 20590

Re: VIH Cougar Helicopters, Inc., DocketNo. DOT-OST-2012-0022
DearMr. Blank: On March 12,2012,the Department of.Transportation (Department) issued Order 2012-3- 7tentatively finding that VIH CougarHelicopters (VIH Cougar) is not a U.S. citizen as defined in 49 U.S.C. Section40102 (a)(15). Among otherthings, that Order specifically provides that interim access to documents provided by VIH CougarHelicopters will be granted to counsel for interestedparties who file affidavits in advance until such time as we have received and ruled upon a motion to withhold information from public disclosure. We understand that on March 23,2012, you appeared at the Department's Dockets Office and were given access to information marked confidential in the VIH Cougar administrative proceedingreferenced above. Pursuant to 14 CFR Section 302.12(d)(3) of the Department's rules ofpractice, and the Department's March 12,2012 Orderto Show Cause in this proceeding, such access was prohibited absent the filing ofan appropriate affidavit in advance as described in that Order. On March 27,2012, you filed a Reply OfPetroleum Helicopters, Inc. (PHI) To Motion Of VIH Cougar Helicopters Objecting To Access OfCounsel To Confidential Material. In that document, you state that you filed the required affidavit on March 23, 2012. Your affidavit, however, does not appear in the docket ofthis proceeding. Subsequently, on March 28,2012, you filed an entry ofappearance on behalfofyourselfand two other attorneys representing PHI. While each ofthem has now filed an affidavit as required by Order 2012-3-7 and ourrules, your affidavit still does not appear in the docket ofthis proceeding. 2/32023668536 W94-122c 04:30:43 p.m. 03-29-2012

Underthese circumstances, the Department expects that you will immediatelyfile (or refile) the required affidavit, and 

### will strictly adhere to the prohibitions on use and disclosure ofinformation marked confidential 

### in this proceeding, including material you may have been given access to priorto the filing ofyour affidavit, as required in ourrules ofpractice and the March 12, 2012 Order.

cc: Docket DOT-OST-2012-0022 David M. Nadler, Esq. DICKSTEINSHAPIRO

### LLP 1825 Eye Street, NW Washington, D.C. 20006 Rosalind A. Knapp Deputy General Counsel

2 3/3

# EXHIBIT 2

### DICKSTEINSHAPI

## ROuP 1825 Eye Street NW 

### I Washington, DC 20006-5403 TEL (202) 420-2200 

### I FAX (202) 420-2201 

### I dicksteinshapiro.com

March 30, 2012
Via E-maillindy.knapp@dot.gov Via Facsimile (202) 366-9151 Rosalind A. Knapp Deputy General Counsel Office ofthe General Counsel U.S. Department ofTransportation, Office ofthe Secretary 1200 NewJersey Avenue, SE C-60, Room W96-120 Washington, DC 20590 Re: VIH Cougar Helicopters, Inc. DocketNO. DOT-OST-2012-0022 DearMs. Knapp: We write on behalfofVIH Cougar Helicopters, Inc. ("VIH Cougar") in response to your March 29, 2012letterto counsel for Petroleum Helicopters, Inc. ("PHI"), a direct competitor ofVIH Cougar. The letter's revelations about PHI's prohibited conduct and the Department's inability to keep VIH Cougar's trade secrets confidential are very troubling. PHI knewwhatthe prohibitions in the Department's rules and the Order to ShowCause were, and whatfurther disclosure protections VIH Cougar sought in its pending Motion. 1 PHI nonetheless showed up at the Department's Docket Office unannounced, and without having filed an appropriate affidavit in advance as required by the Orderto Show Cause, so that neither the DepartmentnorVIH Cougar had any prior notice that PHI would gain access to VIH Cougar's confidential information. PHI then proceeded to inspect the Department folders containing VIH Cougar's trade secrets for the "purpose ofdetermining their extent and the most efficientprocedures for their final inspection."2 PHI asserts that doing so "compl[ied) in full with the procedures in the Motion ofVIH Helicopters, Inc. Objecting to the Public Release ofConfidential Information and the Release ofSuch Information to Counsel and Outside Experts ofInterested Parties Pursuant to the Terms Proposed in the March 12, 2012 ShowCause Order. 2 See Answer ofPetroleum Helicopters, Inc. to Motion ofVIH Cougar Helicopters, Inc. for an Oral Evidentiary Hearing ("Answer") at p.6 n.5.

LosAngeles 

### I New York 

### I OrangeCounty 

### I SiliconValley 

### I Stamford 

### I Washington, DC DSMDB-3045134vl

### DICKSTEINSHAPI

## ROup Rosalind A. Knapp March 30, 2012 Page2 Department's Order to ShowCause for such inspection."3 But, ofcourse, as your letterpoints out, the conduct was not compliant, butprohibited even by the Department's own inadequate rules and disclosure protocol, notto mention by the additional procedures VIH Cougar seeks in its pending Motion.4 Nor, as your letter and PHI's statement also reveal, did the Department take steps to ensure that such prohibited conductwould not take place before 

### itdid. In fact, the Department facilitated the prohibited conduct- turning over VIH Cougar's trade secrets to a company that the Department knew was a direct VIH Cougar competitor that instigated these proceedings. Whatmakes PHI's and the Department's actions all the more dismaying is that they occurred less than a weekafter VIH Cougar specifically warned the Department aboutthe inadequacy of its disclosure safeguards and ofthe irreparable harm VIH Cougar would suffer ifcompetitors, such as PHI, were given access to VIH Cougar'strade secrets. This episode is a prime example ofwhy the safeguards VIH Cougar asksthe Department to put in place are absolutely essential. The Department's inability to follow evenits own procedures confirms that the Department should immediately implement the procedures detailed in VIH Cougar'sMotion to minimize the possibility ofanother improper disclosure. In addition, the Department's actions- which have the effect ofbenefiting a known competitor ofVIH Cougar

- further demonstrate the need for a hearing before an independentAdministrative Law Judge. The Department also mustpromptly remedy PHI's prohibited conduct. Until all the facts are known, that remedy cannot yet be known. The Department's first order ofbusiness, therefore, should be to conduct a promptand full investigation into PHI's conduct. Only then will the Department be in a position to decide what sanctions are warranted. The Department's first investigative step should be to require PHI to submit a sworn affidavit that, at a minimum:

3 • lists everyperson associated with PHI who read anything 

### in the Department VIH Cougarfolders, and every'person to whom any information in those folders was communicated;

Answer at p.6 n.5. 4 PHI'sMarch 30 Answerto VIH Cougar's Objections to the Affidavits ofJohn Longstreet, Timothy Hobbs, and Winston Chew (atp.2 n.l) seeks to minimize its prohibited conductby asserting that it resulted from an "apparentmisunderstanding." Butthat misses the point of protective orders, which are designed to guard against anyprohibited access to confidential information, deliberate or otherwise.

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### DICKSTEINSHAPI

## ROtLP Rosalind A. Knapp March 30, 2012 Page3

• states whether any documents that in any way involve or refer to the contents of those folders were generated (in any form including but not limited to handwritten notes and e-mails) after the folders were reviewed, and identifies who generated them, and who has possession ofthem;
• states how much time PHi took in reading the folders atthe Department, whether anything in the folders was copied orphotographed and ifso, what, by whom, and when; and
• states whether the contents ofthe folders were divulged in any form to employees oforpersons associated with PHI, and ifso, what, by whom, and to whom. When that investigation is complete, the Department can determine whether sanctions against PHI are warranted. Until then, the Department should continue to deny PHI access to 

### VIH Cougar's confidential information. Finally, we were pleased to learn today that the Department has stayed interim access to 

### VIH Cougar's confidential documents, intends to rule expeditiously on VIH Cougar'sMotion objecting to release ofthat information, and will rule on VIH Cougar'sotherpending motions, including its request for anevidentiary hearing, in subsequent actions. We urge the Department to take the matters detailed in this response into account as part ofthe Department's decisionmaking process on those motions. Sincerely,

# 7)~ ((}. 

# TJo.Jk lAGS David M. Nadler (202) 420-2281 direct dial (202) 379-9352 direct fax nadlerd@dicksteinshapiro.com DMN/cnm cc: Jonathan Blank, Esq. E-mail: jonathan.blank@klgates.com Facsimile: (202) 778-9100

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