Subject: RE: FOIA/Legal
From: "Singham, Shanker A." <[email-masked]>
To: "Virginia Verdeja" <[email-masked]>, "Jitendra Tomar" <[email-masked]>, "Maiwurm, James J." <[email-masked]>, "Hilary Rosen" <[email-masked]>, "Alex Slater" <[email-masked]>, "Lehman, Robert D." <[email-masked]>, "Woolfolk, Brian P." <[email-masked]>, <[email-masked]>, "Eric Schwerin" <[email-masked]>
Date: Thu, 23 Sep 2010 19:48:39 -0400

Virginia:
 
FOIA
 
This is usually part of the judicial review procedure of FTA's action
that we have discussed. The letter itself is a very straightforward
letter (a one page request).  That's ready to go if you want to do it.
The reason to do that now is as follows. If we believe, and I think our
intel strongly suggests this, that FTA is about to close the door on us,
then we need to do everything we can to get them to hold it open for
enough time that the political solution has a chance to work.  So we are
just buying some time with them.  My view is that the most likely way is
if Members of Congress ask FTA to do it.  Another way would be to send a
FOIA request which will put them on notice that we are likely to attempt
to get judicial review of FTA's decision to deny our request.  Given
that the time that it has taken FTA in the past to respond to a Request
for Reconsideration is between 1.5 and 6 months, that might at least buy
us a few weeks. It would be very unusual for FTA to deny a Request for
Reconsideration in less than 6 weeks from when the Request was made, and
if they think they might be judicially reviewed they are less likely to
do something that is so obviously different from their normal procedure.
I'm not saying by any means that the FOIA request will definitely have
this effect, rather that it has a chance, and there is little if any
downside risk.  In fact, I would only not file it if we were definitely
not going to seek judicial review.  But from the record I have so far
seen, while getting judicial review is an uphill task, we definitely
have some arguments both substantively and procedurally (and if they
denied our Request in a very short period, that would be an additional
argument). We would also want to make sure that the FOIA request was
submitted before the door was closed.
 
We can certainly get you a sense of a budget for a judicial review
process, and I will include that in our options note to you.
 
Litigation Options
 
We will be sending you a note of all the litigation options that are
available to us at the moment. This note will include our
recommendations re the idea of publicly talking about the strategy we
would follow. My last sentence, which will be expanded on in that note)
refers to the fact that METRO can terminate us for convenience at any
time, and the equitable adjustment is intended to account for losses we
incur (not the full value of the contract).  The contract also has
provisions on limitation of liability for both contract and tort claims
that may further limit the size of our claim.  In any event we will
outline all of this.
 
Regarding Congressional actions, I will let Brian and Rob report on
that, and also on Lou Stokes' reach out to Sheila Jackson-Lee.
 
Shanker.

________________________________

From: Virginia Verdeja [mailto:[email-masked]] 
Sent: Thursday, September 23, 2010 6:32 PM
To: Singham, Shanker A.; Jitendra Tomar; Maiwurm, James J.; Hilary
Rosen; Alex Slater; Lehman, Robert D.; Woolfolk, Brian P.;
[email-masked]; Eric Schwerin
Subject: RE: FOIA/Legal

Shanker and all,

I'm puzzled by your last sentence.  Also I just spoke with Josu and we
are not sure why the FOIA request now.  Also we need a budget for this
task including review of documentation provided by FTA.  Josu, Tomar and
I think we have written enough legal letters for now.  If we are not
successful, we will get into litigation as a second phase.  

What we really need to do is reach the right people in Houston and
Washington.  In Houston, either the Mayor needs to understand the
implications of her actions and make a move or the previous
administration, which is looking like a bunch of crooks, needs to make
noise.  We either have access or not and if we don't we need to get
people that do have it.  

Except meeting with FTA, it does not seem like we are making a lot of
progress.  Please consider all the avenues available to you and let us
know if there is anything else we should be doing.  I understand, for
now, we have not made any direct contact with members of the
Congressional delegation and we have been working on that since Tuesday.
Please let me know if we are wrong.  Our management is growing impatient
since they believe we have the best team and cannot see we are moving
forward.  Maybe there isn't much hope but at least there should be
movement in the background.

Regards,

Virginia

 

________________________________

From: Singham, Shanker A. [mailto:[email-masked]] 
Sent: Thursday, September 23, 2010 3:33 PM
To: Virginia Verdeja; Jitendra Tomar; Maiwurm, James J.; Brown, Amy L.;
Sohar Henter, Christine J.
Subject: FOIA/Legal

Virginia: Jim and I just spoke - I am out in Tampa with a client, but he
and I will be together in Orlando tomorrow.  We both think that it is
very important that we get the FOIA request out to FTA either today or
tomorrow at the latest. The only amendment I have to the document sent
this am is to also direct it to rogoff and carter.

On the legal options, we will send you a note about our various options.
We have to be careful about filing cases/press conferences because of
the risks in the contract.

S