FEDERAL DEPOSIT INSURANCE CORPORATION v. BANK OF AMERICA, N.A.

RESPONSE re SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL

D.D.C.March 18, 2019

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. Case No. 1:17-cv-36-EGS FDIC’s Response to Bank of America’s “Notice of Changed Circumstances” Defendant Bank of America, N.A., (“BANA”) argues in its “Notice of Changed Circumstances,” ECF 88-2 (“Notice”), that certain allegedly changed circumstances “further support[] BANA’s request for information reflecting the FDIC’s own understanding of its regulation, the subject of BANA’s pending motion to compel.” Notice at 2. This argument mischaracterizes BANA’s motion to compel. What BANA seeks in that motion are not materials reflecting the views of the FDIC, but rather internal agency documents reflecting the views of individual FDIC employees. As explained in the FDIC’s response to BANA’s motion to compel—and as held by the D.C. Circuit and other Courts—only an agency’s public pronouncements represent the agency’s understanding of a regulation; internal documents reflecting the views of individual agency employees do not represent the agency’s understanding and therefore are irrelevant. See Cross- Motions To Compel (ECF 84-2) at 60–74 (citing, e.g., SEC v. Nat’l Student Mktg. Corp., 538 F.2d 404, 406–07 (D.C. Cir. 1976); United States v. Farley, 11 F.3d 1385, 1391 (7th Cir. 1993); CFPB v. Navient Corp., 2018 WL 2088760, at *2–5 (M.D. Pa. May 4, 2018); United States v. Case 1:17-cv-00036-EGS Document 89 Filed 03/18/19 Page 1 of 3 2 Navistar Int’l Corp., 236 F. Supp. 3d 1049, 1054–58 (N.D. Ill. 2017)). The FDIC has already produced its public pronouncements about the regulation at issue in this case, see id.at 61 & n.28, so it has already produced the materials reflecting “the FDIC’s own understanding of its regulation.” BANA’s Notice—like its motion to compel—is therefore inapt. Dated: March 18, 2019 Respectfully submitted, OF COUNSEL: Barbara Katron Senior Counsel Herbert G. Smith II (D.C. Bar No. 450811) Counsel Andrew A. Nicely (D.C. Bar No. 458805) Counsel Federal Deposit Insurance Corporation 3501 N. Fairfax Drive Arlington, VA 22226-3500 Phone: (703) 516-5729 Fax: (703) 516-5067 QUINN EMANUEL URQUHART & SULLIVAN LLP /s/ Ethan Glass Christopher Landau (D.C. Bar No. 425319) Eric Lyttle (DC Bar No. 482856) Ethan Glass (D.C. Bar No. 1034207) Jonathan Cooper (D.C. Bar No. 999764) 1300 I Street NW, Suite 900 Washington, DC 20005 Phone: (202) 538-8000 Fax: (202) 538-8100 chrislandau@quinnemanuel.com ericlyttle@quinnemanuel.com ethanglass@quinnemanuel.com jonathancooper@quinnemanuel.com Attorneys for Plaintiff Federal Deposit Insurance Corporation Case 1:17-cv-00036-EGS Document 89 Filed 03/18/19 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on March 18, 2019, the foregoing document was served on all parties or their counsel of record through the CM/ECF system. /s/ Ethan Glass Ethan Glass Case 1:17-cv-00036-EGS Document 89 Filed 03/18/19 Page 3 of 3