JUDICIAL:

Food Mktg. Inst. v. Argus Leader Media, No. 18-481, 2019 WL 2570624 (U.S. June 24, 2019) Respondent Argus Leader Media filed a Freedom of Information Act (FOIA) request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in the national food-stamp program—known as the Supplemental Nutrition Assistance Program (SNAP)—and each store’s annual SNAP redemption data from fiscal years 2005 to 2010. The USDA declined to disclose the store-level SNAP data, invoking FOIA’s Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U.S.C. § 552(b)(4). Argus Leader sued the USDA. Following circuit precedent, the District Court employed the “competitive harm” test, under which commercial information cannot be deemed “confidential” unless disclosure is “likely … to cause substantial harm to the competitive position of the person from whom the information was obtained.” The court agreed that revealing store-level SNAP data could work some competitive harm, but it could not say that disclosure would cause “substantial competitive harm,” and thus ordered disclosure. Petitioner Food Marketing Institute, a trade association representing grocery retailers, intervened and filed an appeal. The Eighth Circuit affirmed, rejecting the Institute’s argument that the court should discard the “substantive competitive harm” test in favor of the ordinary public meaning of the statutory term “confidential.”
1. The Institute has standing to appeal. Disclosure of the contested data would cause its members some financial injury in the highly competitive grocery industry; this concrete injury is directly traceable to the judgment ordering disclosure; and a favorable ruling from this Court would redress the retailers’ injury by reversing that judgment. Pp. –––– – ––––.
2. Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within Exemption 4’s meaning. Pp. –––– – ––––.
(a) At the time of FOIA’s enactment, the term “confidential” meant “private” or “secret.” Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential: when the information is customarily kept private, or at least closely held, by the person imparting it; and when the party receiving the information provides some assurance that it will remain secret. At least the first of these conditions must be met; it is hard to see how information could be deemed confidential if its owner shares it freely. But the Court need not resolve whether both conditions are necessary because both conditions are clearly met here. Uncontested testimony established that the Institute’s retailers customarily do not disclose store-level SNAP data or make it publicly available. And to induce retailers to participate in SNAP and provide store-level information, the government has long promised retailers that it will keep their information private. Early courts of appeals confronting Exemption 4 interpreted its terms in ways consistent with these understandings. Pp. –––– – ––––.
(b) Argus Leader pins its hopes on the “substantial competitive harm” requirement from the D. C. Circuit’s decision in National Parks & Conservation Assn. v. Morton, 498 F.2d 765. There, the court inappropriately resorted to legislative history before consulting the statute’s text and structure and relied heavily on statements from witnesses in congressional hearings years earlier on a different bill that was never enacted into law. Unsurprisingly, National Parks has drawn considerable criticism over the years, and even the D. C. Circuit has distanced itself from the decision. Pp. –––– – ––––.
(c) Argus Leader’s attempt to salvage National Parks is unpersuasive. First, it rearranges the text of Exemption 4 to create a phrase that does not appear in the statute: “confidential commercial information.” It suggests that this synthetic term mirrors a preexisting common law term of art that covers only information whose release would lead to substantial competitive harm, but points to no treatise or case decided before Exemption 4’s adoption that assigned any such meaning to the terms actually before the Court. Nor will this Court ordinarily imbue statutory terms with a specialized common law meaning when Congress has not itself invoked the common law terms of art associated with that meaning. See, e.g.Bruesewitz v. Wyeth LLC, 562 U.S. 223, 233–235, 131 S.Ct. 1068, 179 L.Ed.2d 1. Alternatively, the company suggests that Congress effectively ratified its understanding of the term “confidential” by enacting similar phrases in other statutes in the years since National Parks was decided. But the ratification canon applies when Congress re-enacts the same statute using the same language, and Congress has never re-enacted
HUVEPHARMA EOOD & HUVEPHARMA, INC., Plaintiff, v. ASSOCIATED BRITISH FOODS, PLC, AB VISTA, INC., PGP INTERNATIONAL CORPORATION, ABITEX CORPORATION, AB ENZYMES, INC., & AB ENZYMES GMBH, Defendants. HUVEPHARMA EOOD & HUVEPHARMA, INC., Plaintiffs,, No. CV 18-129-RGA, 2019 WL 2571167 (D. Del. June 21, 2019)
Plaintiffs Huvepharma EOOD and Huvepharma, Inc. brought suit against Defendants Associated British Foods, PLC, AB Vista, Inc., PGP International Corporation, ABITEC Corporation, AB Enzymes, INC., and AB ENZYMES GmbH (“the ABF Defendants”) on January 23, 2018 asserting infringement of the ’572 patent, the ’150 patent, the ’063 patent, the ’318 patent, the ’232 patent, and the ’300 patent(“the Asserted Patents”). (D.I. 1). Plaintiffs brought suit against Defendants E.I. Du Pont de Nemours and Company, DuPont Industrial Biosciences USA, LLC, Danisco USA, Inc., and Danisco US Inc. (“the DuPont Defendants”) on June 20, 2018 asserting the ’150 patent, the ’063 patent, and the ’232 patent. (C.A. 18-914, D.I. 1). The Asserted Patents share a common specification and are related to “a method of producing phytase in yeast by introducing a heterologous gene which encodes a protein or polypeptide with phytase/acid phosphatase activity into a yeast strain and expressing that gene.” (’150 patent, col. 2:57-60).
The parties have three common disputed terms. (D.I. 62 at 13, 52, 69; C.A. 18-914, D.I. 65 at 13, 51, 67). Plaintiffs and the ABF Defendants dispute an additional term in claims 8-9 of the ’300 patent. (D.I. 62 at 72). Plaintiffs and the DuPont Defendants dispute an additional term in claims 1 and 28 of the ’150 patent, claim 1 of the ’063 patent, and claim 1 of the ’232 patent. (C.A. 18-914, D.I. 65 at 69). Claims 1 and 2 of the ’150 patent and claims 1 and 6-8 of the ’300 patent are representative.
Claims 1 and 2 of the ’150 patent read as follows:
1. A method of producing phytase in yeast comprising: providing a heterologous polynucleotide from non-yeast organism which encodes a protein or polypeptide comprising either a PhyA phytase or an AppA phytase; expressing the protein of polypeptide in a yeast; and isolating the expressed protein or polypeptide, wherein said protein or polypeptide catalyzes the release of phosphatefrom phytate and has increased thermostability as compared to that of said protein or polypeptide expressed in a non-yeast host cell.
2. The method according to claim 1, wherein the heterologous polynucleotide is an isolated appA polynucleotide.
(’150 patent, cls. 1-2) (disputed terms italicized). Claims 1 and 6-8 of the ’300 patent read as follows:
1. A method of producing a phytase in fungal cells, the method comprising: providing a polynucleotide encoding an Escherichia coli phytase; expressing the polynucleotide in the fungal cells; and isolating the expressed Escherichia coli phytase wherein the Escherichia coli phytase catalyzes the release of phosphate from phytate.
6. The method of claim 1 wherein the fungal cells are cultured in a growth medium.
7. The method of claim 6 wherein the Escherichia coli phytase is secreted from the fungal cells into the growth medium.
8. The method of claim 7 wherein the Escherichia coli phytase is purified from the growth medium.
CENTER FOR BIOLOGICAL DIVERSITY; EARTH ISLAND INSTITUTE, Plaintiffs-Appellants, v. ELI ILANO; THOMAS TIDWELL; UNITED STATES FOREST SERVICE, Defendants-Appellees, SIERRA PACIFIC INDUSTRIES, Intervenor-Defendant-Appellee., No. 17-16760, 2019 WL 2571434 (9th Cir. June 24, 2019)
The panel affirmed the district court’s summary judgment in favor of the U.S. Forest Service in an action challenging the Forest Service’s designation of at-risk forest lands and its approval of the Sunny South Project, which aimed to address spreading pine-beetle infestation in previously designated at-risk areas within the Tahoe National Forest.
In 2014, Congress amended the Healthy Forests Restoration Act (“HFRA”) to allow the Forest Service greater flexibility in managing the health of forest lands threatened by insect and disease infestation. Large areas of forest land that face a heightened risk of harms are designated as “landscape-scale areas.” 16 U.S.C. §§ 6591a, 6591b.
The panel held that the Forest Service’s designation of 5.3 million acres as a landscape-scale area in the Tahoe National Forest in California did not violate the National Environmental Policy Act (“NEPA”). Specifically, the panel held that here the designation of landscape-scale areas under HFRA did not change the status quo, and did not trigger a NEPA analysis. The panel further held that California Wilderness Coalition v. United States Department of Energy, 631 F.3d 1072 (9th Cir. 2011), did not compel a contrary result. The panel concluded that the Forest Service’s designation of landscape-scale areas did not require an environmental assessment or environmental impact statement under NEPA.
Plaintiffs challenged the Forest Service’s conclusion that no extraordinary circumstances existed and that the Sunny South Project was categorically excluded from NEPA compliance because the project’s potential impact on the California spotted owl constituted extraordinary circumstances. The panel held that the Forest Service considered relevant scientific data, engaged in a careful analysis, and reached its conclusion based on evidence supported by the record. The panel concluded that the Forest Service’s decision was not arbitrary or capricious.