Securities Law News

SEC Doesn’t Owe Attorneys’ Fees in Empire State Building Suit

Feb. 13, 2019, 5:02 PM

The SEC doesn’t have to pay attorneys’ fees to a man who sought records on the Empire State Building’s inclusion in a real estate investment trust, a federal court said Feb. 12.

Richard Edelman took the Securities and Exchange Commission to court after it was slow to respond to his Freedom of Information Act requests. But the agency doesn’t owe him attorneys’ fees because he didn’t substantially prevail in his suit, according to the U.S. District Court for the District of Columbiaa opinion.

Edelman sent the SEC six FOIA requests in 2014 for documents related to the creation of the Empire State Realty Trust, the opinion said. The agency took nine months to respond to one of Edelman’s requests and responded to the remaining five shortly after he sued, the court said.

Edelman sought $99,843.75 in attorneys’ fees and another $559.62 in court costs. He’s eligible for a fee award because the court ruled in his favor on some claims in three earlier merits decisions, requiring the agency to produce more documents, and because his suit was a catalyst for the agency’s response to five of his requests, he said.

But just because he’s eligible for attorneys’ fees doesn’t mean he’s entitled to them, the court said. That depends on whether the public benefited and whether the SEC decision to withhold documents was reasonable, the opinion said.

There’s no evidence the records Edelman obtained benefited the public as opposed to his personal interests in the pre-trust building, the opinion said.

The SEC’s initial withholding wasn’t unreasonable, either, the judge said. Edelman requested so many documents that the nine-month delay wasn’t extreme or egregious, the court said. And it was okay for the agency to initially withhold all attorney notes because whether those always count as agency records is an open question of law, the opinion said.

Judge Randolph D. Moss presided over the case.

Griggs & Adler PC and Scott A. Hodes of Washington represented Edelman.

The case is Edelman v. SEC, 2019 BL 46174, D.D.C., No. 14-1140, 2/12/19.

To contact the reporter on this story: Jennifer Bennett in Washington at jbennett@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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