Tushnet v. U.S. Immigration and Customs Enforcement

We represented Harvard Law Professor Rebecca Tushnet in a Freedom of Information Act (FOIA) case against U.S. Immigration and Customs Enforcement (ICE). After an ICE official was reported to have stated at a press conference that critical use of a trademark—such as the profane debasing of a mascot—constitutes trademark infringement that would allow ICE to seize the merchandise as counterfeit, Professor Tushnet sought to determine whether ICE’s official policies are based on a misunderstanding of intellectual property law. When ICE refused to cooperate with Professor Tushnet’s informal requests for information, she submitted a FOIA request in March 2015.

ICE failed to provide a substantive response to Professor Tushnet’s FOIA request. On June 12, 2015, Professor Tushnet filed a complaint in U.S. District Court seeking an injunction ordering ICE to make the requested records available without delay. At the time she filed her complaint, ICE had not produced any of the requested records. Pursuant to a series of scheduling orders, ICE made five rolling productions of material totaling 4,539 pages. The parties then filed cross-motions for summary judgment. After Professor Tushnet filed her motion, ICE produced an additional 133 pages of material and re-released eight pages that had been withheld in their entirety under Exemption 4.

The only issues raised in the parties’ cross-motions that remained for the Court to resolve were the adequacy of ICE’s search and the propriety of ICE’s redactions under FOIA Exemption 7(E) to industry guides used by ICE agents to identify counterfeit sports-related apparel. On March 31, 2017, the Court issued a Memorandum Opinion and Order requiring ICE to: 1) Search the TECS system for responsive records associated with the seizures of greatest interest to Professor Tushnet; 2) Determine which field office searches were inadequate, provide additional guidance to those offices, and conduct further searches; and 3) Review the Exemption 7(E) redactions to the industry guides in light of the Court’s ruling that parodies or other uses of trademarks protected under the doctrine of fair use should not have been withheld and release any material incorrectly characterized as counterfeit. ICE did so and produced 1,032 pages of responsive documents from TECS, 639 pages of records from the re-search of the field offices, and two pages of material that had previously been redacted from the industry guides.

The parties informed the Court that there were no remaining issues in dispute other than the amount of attorneys’ fees. The parties negotiated a settlement agreement and stipulated to dismissal of the case.