Reporter Loses Second Bid for AIG Deal Reports

     (CN) – A federal judge rejected a journalist’s second bid to force disclosure of confidential reports related to American International Group’s settlement of securities fraud charges in 2004.
     In doing so, U.S. District Judge Gladys Kessler sided with AIG, which had argued that a previous ruling against Sue Reisinger, a senior reporter for American Lawyer Media, barred her from making the same claim a second time.
     The case stems from a $126 million settlement between the federal government and AIG that was approved by the court on Dec. 7, 2004.
     Though the global re-insurance giant never had to admit or deny the allegations, the consent order it entered into with the Justice Department and the Securities and Exchange Commission required it to retain a government-selected independent consultant and create an audit committee.
     The consultant was tasked with analyzing all transactions AIG entered into between Jan. 1, 2000 and the entry of the settlement for misconduct.
     More than a year and half later, the SEC and AIG successfully persuaded the court to approve an added provision barring public dissemination of the independent consultant’s reports. That provision limited the reports’ release to the SEC, the Justice Department and AIG.
     The court has since granted just two requests to release the reports: once to the Office of Thrift Supervision and once to the House of Representatives’ government oversight committee.
     Reisinger filed a Freedom of Information Act request for the documents in January 2011, and sued in February 2012 when the SEC cited the confidentiality order in denying her request.
     In April 2012, Kessler ordered the government to release the documents.
     On appeal, the D.C. Circuit ruled that the documents Reisinger sought in her original motion were “not judicial records subject to the [common law] right of access” she was relying on to force their disclosure.
     In her consideration of Reisinger’s second motion, Kessler noted that the federal appeals court’s opinion “was a final one and obviously the court of appeals is ‘a court of competent jurisdiction.'”
     But Reisinger pressed on, filing a second motion seeking access to the reports.
     The reporter argued that “[t]he parties are not identical, no court has yet considered the issue at bar – thus, no judgment has been made on the merits and the pending motion presents no cause of action, much less one previously litigated by these parties.”
     “It is hard to understand what this sentence means,” Kessler wrote, referring to Reisinger’s motion. “Reisinger’s cause of action is for access to the reports of AIG’s [independent consultant]. That was the issue litigated in her first motion – and she lost. She presents no additional facts or case law that in any way differentiates her cause of action in this motion from her cause of action in her first motion.
     “The only difference between the two motion is that Reisinger is presenting a legal theory in the second motion that she could have, but failed, to raise in her first motion,” Kessler added.
     “In short, Reisinger had the option to raise her ‘good cause’ argument in her first motion for access to the [independent consultant] documents and failed to do so. That failure to raise an argument which could have been litigated in an earlier proceeding is covered by the claim preclusion doctrine,” Kessler concluded.

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