Citations
- 161 F. Supp. 3d 199
Full opinion text
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE.:
This case concerns, inter alia, the scope of Congressional immunity under the Speech or Debate Clause of the United States Constitution, art. I, § 6, cl. 1.
The Securities and Exchange Commission (“SEC”) seeks an order, pursuant to Section 21(c) of the Exchange Act, 15 U.S.C. § 78u(c), requiring the Committee on Ways and Means of the U.S. House of Representatives (the “Committee”) and Brian Sutter — the former Staff Director of the Committee’s Health Subcommittee — to comply with investigative subpoenas served on them pursuant to a Formal Order issued by the SEC under Section 21(a) of the Exchange Act, 15 U.S.C. § 78u(a).
In response to an Order to Show Cause issued by this Court — which directed the Committee and Sutter (collectively, “Respondents”) to show cause why they should not be ordered to comply with the SEC subpoenas — Respondents have moved to dismiss the SEC’s enforcement application pursuant to Fed. R. Civ. P. 12(b)(1), (2), (3), and (6). (Dkt. No. 14) Respondents argue that (1) the application is barred by the doctrine of sovereign immunity; (2) this Court lacks personal jurisdiction over Respondents; (3) venue is improper in this District; and (4) even if venue is proper here, the case should be transferred to the U.S. District Court for the District of Columbia under 28 U.S.C. § 1404(a). (Resp. Br. (Dkt. No. 17) at 2) Respondents also contend that the SEC’s application should be denied because (1) the information sought in the subpoenas is protected from disclosure under the Speech or Debate Clause; and (2) the SEC has not established the “exceptional circumstances” necessary under United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), to justify an SEC deposition of Sutter. (Id.) For the reasons stated below, Respondents’ motion to dismiss or transfer will be denied, and the SEC’s application for an order requiring Respondents to comply with the investigative subpoenas will be granted in part and denied in part.
BACKGROUND
I. THE HUMANA INVESTIGATION
The SEC’s application relates to In the Matter of Humana Inc. (SEC Internal File No. NY-8910) (the “Humana Investigation”), a non-public SEC investigation. The investigation is aimed at determining “whether any persons or entities have violated Section 10(b) of the Securities Exchange Act of 1934 ..., and Rule 10b-5 promulgated thereunder, ... by, among other things, trading in the securities of Humana or other issuers on the basis of material nonpublic information, or disclosing to others material nonpublic information regarding Humana or other issuers, in breach of a fiduciary or other duty arising out of a relationship of trust and confidence.” (Straub Decl. (Dkt. No. 3) ¶ 3) The Humana Investigation is being conducted by the SEC’s New York Regional Office. That Office has issued “[a]ll subpoenas, informal requests for information, and other investigational correspondence in [the] investigation.” (Wadhwa Decl. (Dkt. No. 22) ¶ 3) The material non-public information at issue concerns payment rates for physicians serving Medicare patients.
On April 1, 2013, at approximately 4:15 p.m., the U.S. Centers for Medicare and Medicaid Services (“CMS”) — a federal agency within the U.S. Department of Health and Human Services (“HHS”)— issued the final 2014 Medicare Advantage (“MA”) rate announcement (the “CMS Rate Announcement”). (Straub Decl. (Dkt. No. 3) ¶ 9, Ex. A) The CMS Rate Announcement informs all MA organizations, prescription drug plan sponsors, and other interested parties of the annual MA “capitation rate” for the calendar year 2014. (Id. at 1) In the CMS Rate Announcement, CMS states that “[t]he basis for the [National Per Capita Medicare Advantage and the National Medicare Fee-for-Service] Growth Percentage for 2014 has been changed to incorporate an assumption that Congress will act to prevent the scheduled 25-percent reduction in Medicare physician payment rates from-occurring.” According to CMS, this assumption was a “more reasonable expectation than the reduction required under the statutory ‘sustainable growth rate’ (SGR) formula.” (Id.)
The CMS Rate Announcement differs significantly from preliminary Medicare payment rates that CMS had announced six weeks earlier (the “Advance Notice”). (Straub Decl. (Dkt. No. 3) ¶¶ 9-11) In the February 15, 2013 Advance Notice, CMS applied the statutory SGR formula, which resulted in a 25-percent reduction in physician payment rates. (Straub Decl. (Dkt. No. 3), Ex. A, at 1) In the April 1, 2013 final CMS Rate Announcement, however, CMS assumed that Congress would override the use of the SGR formula and prevent the reduction in physician payment rates. (Id.) This change in methodology results in payment rates that are more favorable to insurers than the preliminary payment rates that CMS had announced in the Advance Notice. (Straub Decl. (Dkt. No. 3) ¶ 10) (“According to the Advance Notice, certain payments from Medicare Advantage to insurers would have declined by 2.3% from the prior year. According to the rates released in the final Rate Announcement on April 1, those payments, in contrast, were set to increase by 3.5% from the prior year.”)
II. THE ALLEGED MATERIAL NONPUBLIC INFORMATION
At 3:11 p.m. on April 1, 2013 — approximately one hour before the release of the CMS Rate Announcement — a lobbyist at Greenberg Traurig, LLP (“Greenberg”) sent an email to an analyst at Height Securities, LLC, stating:
Our intel is that a deal was already hatched by [Senator] Hatch to smooth the way for Tavenner as long as they address the MA rates in the final notice. We have heard from very credible sources that the final notice will adjust the phase in on risk adjustment and take into account the likelihood/certainty of an SGR fix.
(Id. ¶ 12)
At 3:40 p.m. on April 1, 2013, the Height Securities analyst sent a “flash report” by email and instant message to nearly 200 clients. The “flash report” states:
(1) We now believe that a deal has been hatched to protect Medicare Advantage rates from the -2.3% rate update issued in the advanced notice mid-February
(2) We believe that the SGR will be assumed in the trends going forward resulting in roughly a 4% increase in cost trends
(3) This is a drastic change in historical policy aimed to smooth the confirmation of Marylyn Tavernier [sic]
(4) We are supportive of MA related stocks (HUM, HNT) under this circumstance[.]
(Id.l 13)
Within five minutes of the release of this “flash report” — and before the CMS Rate Announcement was issued at 4:15 p.m.— the prices and trading volume of stocks of certain health insurers rose dramatically. Humana’s stock appreciated by approximately seven percent within twelve minutes of the issuance of the “flash report.” (Id. ¶ 14, Ex. B)
III. THE SEC’S ALLEGATIONS CONCERNING BRIAN SUTTER
During the time period at issue in the Humana Investigation, Brian Sutter served on the Professional Staff of the House Ways and Means Committee’s Health Subcommittee. As of April 1, 2013, Sutter was performing many of the duties of the Subcommittee’s Staff Director, and on April 22, 2013, he was named to that position. (Straub Decl. (Dkt. No. 3) ¶ 6; see also Resp. Br. (Dkt. No. 17) at 45 n. 28) On December 16, 2014, Sutter resigned. (Dec. 19, 2014 Comm. Ltr. (Dkt. No. 28) at 1)
The SEC represents that it possesses information and emails indicating that — in March 2013 — Sutter spoke several times with a colleague of the Greenberg lobbyist who sent the April 1, 2013 email to the Height Securities analyst. Sutter also communicated with at least two CMS employees in the week before the CMS Rate Announcement. (Straub Decl. (Dkt. No. 3) ¶¶ 16-17) Moreover, at 11:07 a.m. on April 1, 2013 — the day of the CMS Rate Announcement — Sutter emailed the Green-berg lobbyist “about the termination of one of the lobbyist’s clients from the Medicare Advantage program.” (Id. ¶ 18) The Greenberg lobbyist states that he and Sutter spoke by telephone at approximately 3:00 p.m. on April 1, 2013 — ten minutes before the Greenberg lobbyist emailed the Height Securities analyst — and that they discussed the CMS Rate Announcement at that time. (Id. ¶¶ 19-20)
A few weeks after the CMS Rate Announcement, an agent of the Federal Bureau of Investigation (“FBI”) and an investigator from the Office of the Inspector General at HHS (“HHS OIG”) interviewed Sutter about these communications. During the interview, Sutter said that “he did not recall speaking to the [Greenberg] [Hobbyist about the Rate Announcement.” (Id. ¶ 21)
A few days after the Sutter interview, William Pittard — Deputy Counsel of the U.S. House of Representatives- — sent a letter to the FBI and HHS OIG stating the following:
I understand that you may have asked Mr. Sutter whether he ever had used his mobile telephone to speak with [the Greenberg lobbyist], Mr. Sutter may have answered that he could not recall doing so, which would have been a correct statement of Mr. Sutter’s memory at the time. With the benefit of some time for reflection, Mr. Sutter’s best recollection now is that he previously may have used his mobile telephone to speak with [the Greenberg lobbyist], although he is not certain. It is also possible that Mr. Sutter may have made other statements in the course of his interrogation that, while an accurate reflection of his memory at the time, might merit clarification if, for example, Mr. Sutter were to review records that could refresh his memory.
(Id. ¶ 22) The SEC claims that it has “additional information indicating that Sutter may have been a source of the information in the [Greenberg] [Hobbyist’s email to the Height [Securities] [a]nalyst,” but notes that the SEC is not at liberty to specify this information due to a confidentiality agreement. (Id. ¶ 24)
IV. THE SEC INVESTIGATIVE SUB- ' POENAS
On April 9, 2013, the SEC issued an Order Directing Private Investigation and Designating Officers to Take Testimony (the “Formal Order”), pursuant to Section 21(a) of the Exchange Act, 15 U.S.C. § 78u(a). (Id. ¶ 7) The Formal Order “designates certain individuals in the [SEC’s] New York Regional Office ... [as] empowered to issue subpoenas and take evidence” in connection with the SEC’s Humana Investigation. (Id. ¶ 8)
Between January 31, 2014, and April 25, 2014, SEC counsel and Respondents exchanged a number of letters regarding the SEC’s request for a voluntary production of documents from Sutter’s files and an interview of Sutter. (Id. ¶ 26; Pittard Decl. (Dkt. No. 16), Ex. 2-7) Sutter refused to produce any documents or appear for an interview on a voluntary basis. (Straub Decl. (Dkt. No. 3) ¶ 26)
On May 6, 2014, the SEC served investigative subpoenas on the Committee and Sutter, pursuant to the Formal Order. (Id. ¶ 27; Ex. C-D) Each subpoena seeks the following documents and records for the time period between February 10, 2013 and April 10, 2013:
(1) all documents containing communications between Sutter and any member or employee of Greenberg Traurig LLP, including without limitation Mark Hayes (“Hayes”), Nancy Taylor (“Taylor”), or Danielle White (“White”);
(2) all documents concerning communications between Sutter and CMS;
(3) all documents concerning communications to, from, copying, or blind-copying Sutter concerning (i) the preliminary 2014 Medicare Advantage payment rates announced by CMS on February 15, 2013, and/or (ii) the final 2014 Medicare Advantage payment rates announced by CMS on April 1, 2013 (together, the “Medicare Advantage Rates”);
(4) all documents concerning communications to, from, copying, or blind-copying Sutter concerning the potential confirmation of Marilyn Tavenner as CMS Administrator by the U.S. Senate;
(5) all documents created by Sutter or in Sutter’s files, including without limitation handwritten notes and calendar entries, concerning (i) Hayes, Taylor, or White; (ii) the Medicare Advantage Rates; and/or (iii) the potential confirmation of Marilyn Ta-vernier as CMS Administrator by the U.S. Senate; and
(6)all telephone records, including without limitation mobile phone records, from Sutter’s work telephones.
(Id. Ex. C-D) The subpoena to Sutter calls for documents sufficient to show all of Sutter’s personal and work telephone numbers and email addresses. (Id. Ex. D) The subpoenas direct the Committee and Sutter to produce the requested document's by 5:00 p.m. on May 19, 2014, and instruct Sutter to appear for testimony at the SEC on May 21, 2014. (Id. Ex. C-D)
Between May 7, 2014, and May 19, 2014, the SEC and Respondents exchanged a series of letters (id. Ex. E-G) in which, inter alia, Respondents request further information about the anticipated subject matter of Sutter’s testimony. Respondents also assert that “at least some, and perhaps all, of the documents that [the SEC] has demanded are protected by the Speech or Debate Clause” of the U.S. Constitution. (Id. Ex. E) The SEC informed Respondents that it intended to ask Sutter about his “knowledge of the contents of the Rate Announcement, including without limitation any communications he had on this subject with CMS employees,” and argued that the requested documents and testimony are not protected by the Speech or Debate Clause. (Id. Ex. F)
In a May 19, 2014 letter, Respondents informed the SEC that “neither the Committee nor Mr. Sutter intends to produce documents or to provide testimony in response to the subpoenas.” (Id. Ex. G) Respondents argued that: (1) the subpoenas are barred by sovereign immunity; (2) the information sought by the subpoenas is protected from disclosure by the Speech or Debate Clause; (3) the subpoena to Sutter is improper “because high-ranking government officials may not be compelled to testify absent extraordinary circumstances, not present here”; (4) the subpoenas are vague and unduly burdensome; (5) the subpoenas constitute unwarranted intrusions into Sutter’s privacy; (6) the subpoenas improperly demand documents and/or testimony irrelevant to the Humana Investigation; and (7) the subpoenas are “repugnant to public policy.” (Id. Ex. G)
On June 11, 2014 — in an effort to avoid litigation — the SEC proposed a number of procedural and substantive modifications to the subpoenas. (Id. Ex. H) The SEC offered to (1) review documents responsive to the subpoenas on-site at the Committee’s premises; (2) narrow the time period of the subpoenas; (3) limit production to those documents that are “highly relevant” to the Humana Investigation; (4) agree that the SEC’s review of documents at the Committee’s offices would not constitute a waiver by Respondents of “any applicable protection of the Speech or Debate Clause or any other privilege or protection from discovery”; and (5) suspend enforcement of Sutter’s testimonial subpoena. (Id. Ex. H) On June 17, 2014, Respondents rejected the SEC’s proposal. (Id. Ex. I)
V. THE SEC’S APPLICATION FOR AN ORDER REQUIRING COMPLIANCE WITH THE SUBPOENAS
On June 20, 2014, the SEC filed the instant application for an order requiring compliance with the subpoenas, pursuant to Section 21(c) of the Exchange Act, 15 U.S.C. § 78u(e). (Dkt. No. 1) In its memorandum of law, the SEC addresses Respondents’ objections to the subpoenas as set forth in their May 19, 2014 letter. (Dkt. No. 2) That same day, this Court issued directed Respondents to show cause why they should not be ordered to produce documents responsive to the subpoenas. (Dkt. No. 6)
On July 4, 2014, Respondents filed a motion to dismiss the SEC’s enforcement application or, in the alternative, to transfer the case to the U.S. District Court for the District of Columbia. (Dkt. No. 14) Respondents argue that the SEC’s enforcement application should be dismissed because (1) it is barred by the doctrine of sovereign immunity; (2) this Court lacks personal jurisdiction over Respondents; (3) venue is improper in the Southern District of New York; and (4) even if venue is proper in this District, the District of Columbia is a more appropriate venue. (Dkt. No. 17 at 2) Respondents also contend that the application must be denied because (1) Respondents are immune from subpoena under the Speech or Debate Clause, U.S. Const, art. I, § 6, cl. 1; and (2) “the SEC has not established the exceptional circumstances necessary to permit it to depose Mr. Sutter • regarding the matters about which it says it wishes to interrogate him.” (IdO
DISCUSSION
I. LEGAL STANDARD
“ ‘The courts’ role in a proceeding to enforce an administrative subpoena is extremely limited.’ ” RNR Enterprises, Inc, v. S.E.C., 122 F.3d 93, 96 (2d Cir.1997) (quoting In re McVane, 44 F.3d 1127, 1135 (2d Cir.1995) (internal quotation marks omitted)). “To win judicial enforcement of an administrative subpoena, the SEC ‘must show (1) that the investigation will be conducted pursuant to a legitimate purpose, (2) that the inquiry may be relevant to the purpose, (3) that the information sought is not already within the Commissioner’s possession, and (4) that the administrative steps required have been followed. ... ’ ” RNR Enterprises, 122 F.3d at 96-97 (quoting United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964)).
“ ‘[A] governmental investigation ... may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power.’” Id. at 97 (quoting United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950)). “However, ‘it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.’ ” Id. (quoting Morton Salt Co., 338 U.S. at 652, 70 S.Ct. 357). “The respondent opposing enforcement must shoulder the burden of showing that the subpoena is ‘unreasonable]’ or was issued in bad faith or for an ‘improper purpose,’ or that compliance would be ‘unnecessarily burdensome.’ ” Id. (quoting S.E.C. v. Brigadoon Scotch Distrib. Co., 480 F.2d 1047, 1053-56 (2d Cir.1973)) (emphasis in original).
II. RESPONDENTS’ OBJECTIONS TO THE SEC’S APPLICATION
The SEC states that it is “investigating whether material nonpublic information concerning the [CMS Rate Announcement] ... was leaked improperly to certain members of the public in advance of CMS’s announcement, and whether such action resulted in insider trading in violation of the federal securities laws.” (SEC Br. (Dkt. No. 2) at 1) The Humana Investigation is aimed at determining, inter alia, “the source(s) of information in the email sent from the [Greenberg] Lobbyist to Height [Securities], the circumstances surrounding the transmittal of that information, and whether any conduct relating to the transmittal constituted insider trading.” (Id. at 3)
Respondents do not dispute that the Humana Investigation has a legitimate purpose and that the requested documents would be relevant to that purpose. Respondents likewise do not contend that (1) the SEC already possesses the information sought in the subpoenas, (2) the Commission failed to follow proper administrative procedures, or (3) the subpoenas are “unreasonable]” or “unnecessarily burdensome.” See RNR Enterprises, 122 F.3d at 96-97 (quoting Brigadoon Scotch Distrib. Co., 480 F.2d at 1056)) (emphasis in original). Respondents argue, however, that the SEC’s enforcement application should be dismissed based on the doctrine of sovereign immunity, lack of personal jurisdiction, and improper venue. Respondents further contend that they are immune from the subpoenas under the Speech or Debate Clause, and that the SEC’s request to depose Sutter should be denied, because the Commission has not demonstrated the necessary “exceptional circumstances” to justify a deposition of Sutter.
A. Sovereign Immunity
Respondents argue that sovereign immunity bars enforcement of the SEC’s subpoenas because the doctrine (1) “encompasses Legislative Branch entities and officials acting, as the Committee and Mr. Sutter are here, in their official capacities,” and (2) applies in the context of a subpoena enforcement action brought by a Federal agency. (Resp. Br. (Dkt. No. 17) at 13)
1. Applicability of the Sovereign Immunity Doctrine to Inter-branch Subpoenas
This Court construes Respondents’ sovereign immunity argument as a Rule 12(b)(1) motion contending that this Court lacks subject matter jurisdiction. See, e.g., Spinale v. U.S. Dept. of Agriculture, 621 F.Supp.2d 112, 117-18 (S.D.N.Y. 2009) (concluding that court lacked subject matter jurisdiction where the United States had not waived sovereign immunity as to defamation suits). On such a motion, the plaintiff or applicant must demonstrate “by a preponderance of the evidence that subject matter jurisdiction exists....” Id. at 117 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996) (“The burden of proving jurisdiction is on the party asserting it.”)); see also Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir.2004) (“ ‘On a motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists.’”) (quoting Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir.2001)); Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (party asserting that a court has subject matter jurisdiction “has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists”).
Most of the case law addressing sovereign immunity has involved private party lawsuits brought against a Federal agency or a Federal official in the individual defendant’s official capacity. In that context, a number of basic principles are well settled. “ ‘[T]he United States, as sovereign, “is immune from suit save as it consents to be sued...." "Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941))); see also F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”) (citing Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); Federal Hous. Admin., Region No. 4 v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 84 L.Ed. 724 (1940)). Moreover, “an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States.... ” Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994). Accordingly, in the context of a private party suit against a Federal agency or officer — -absent a waiver of sovereign immunity — subject matter jurisdiction does not exist. See, e.g., Spinale, 621 F.Supp.2d at 117-18. Finally, the doctrine of sovereign immunity applies with equal force to a private party’s claims against a Federal agency or officer and to subpoenas for documents or testimony. See United States E.P.A. v. Gen. Elec. Co., 197 F.3d 592, 597 (2d Cir.1999), opinion amended on reh’g, 212 F.3d 689 (2d Cir.2000) (absent express waiver of sovereign immunity, a court may not enforce a subpoena duces tecum issued by a private party to a Federal agency); In re S.E.C. ex rel. Glotzer, 374 F.3d 184, 190 n. 7 (2d Cir.2004) (sovereign immunity bars a subpoena for testimony because such a subpoena “constitutes an attempt to compel the [government] to a'ct”).
In contending that the SEC subpoenas are barred by the doctrine of sovereign immunity, Respondents rely on a host of cases brought by private parties against Congress, members of Congress, and Federal agencies. (See Resp. Br. (Dkt. No. 17) at 13-15)
Considered together, these cases demonstrate that the doctrine of sovereign immunity (1) encompasses Congress and members of Congress acting in their official capacities; and (2) applies where private parties have brought subpoena enforcement actions against Federal agencies. This case does not involve a claim or application brought by a private party, however, and accordingly cases involving private party litigants are of limited value here.
The litigants in this action are components of co-equal legislative and executive branches of the Federal government. While cases exist involving inter-branch subpoenas of the sort at issue here, no court has suggested — much less held — that sovereign immunity bars the enforcement of such subpoenas. Given that sovereign immunity presents a threshold issue of subject matter jurisdiction, the absence of case law applying this doctrine in the context of inter-branch subpoenas cannot be ignored.
In Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 683 (1972), for example, Senator Gravel moved to quash a grand jury subpoena served on a member of his staff in connection with an investigation of possible crimes relating to the release and dissemination of the Pentagon Papers. Gravel, 408 U.S. at 608-09, 92 5.Ct. 2614. The Supreme Court ruled that the Speech or Debate Clause of the U.S. Constitution applies both to members of Congress and to a Member’s staff, insofar as the conduct at issue would constitute a protected legislative act if performed by the Member. Id. at 621-22, 92 S.Ct. 2614. The Court went on to hold that the Speech or Debate Clause did not prevent enforcement of the grand jury subpoena at issue, however, because the alleged private publication of the Pentagon Papers did not constitute a legislative act. Id. at 625-26, 92 S.Ct. 2614. There is no suggestion in Gravel that sovereign immunity barred enforcement of the grand jury subpoena.
Similarly, in In re Sealed Case, 121 F.3d 729 (D.C.Cir.1997), the Office of the Independent Counsel moved to enforce a grand jury subpoena seeking documents from the White House Counsel. In re Sealed Case, 121 F.3d at 734-36. In vacating the district court’s denial of the Independent Counsel’s motion, the D.C. Circuit addressed at length the presidential communications privilege. Id. at 736-40. There is no suggestion in In re Sealed Case that the doctrine of sovereign immunity barred enforcement of the subpoena served on the White House Counsel, however.
Likewise, when Congressional committee subpoenas have been challenged by the executive branch, no court has conducted a sovereign immunity analysis. See, e.g., Comm, on Oversight and Gov’t Reform v. Holder, 979 F.Supp.2d 1, 5-7, 17-20 (D.D.C.2013) (House Committee action seeking to enforce congressional subpoena issued to the U.S. Attorney General for documents related to Operation Fast and Furious); Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, 55-56 (D.D.C.2008) (motion to compel compliance with a congressional subpoena issued to former White House counsel); United States v. House of Representatives, 556 F.Supp. 150, 151 (D.D.C.1983) (EPA Administrator sought a declaratory judgment that she was entitled to withhold “sensitive” documents subpoenaed by a House subcommittee); Senate Select Comm, on Presidential Campaign v, Nixon, 498 F.2d 725, 726 (D.C.Cir.1974) (Senate committee sought to enforce a subpoena issued to the President).
It is true, of course, that “ ‘[w]hen questions of jurisdiction have been passed on in prior decisions sub silentio,’ ” courts are not bound when a “ ‘subsequent case finally [raises] the jurisdictional issue,’ ” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)). Nonetheless, it bears mention that none of the courts that have considered inter-branch subpoenas have conducted a sovereign immunity analysis.
It is also worth noting that Rule VIII of the Rules of the U.S. House of Representatives indicates that the House itself does not believe that House members and staff have blanket sovereign immunity from administrative subpoenas issued by federal agencies such as the SEC. House Rule VIII states:
When a Member, Delegate, Resident Commissioner, officer, or employee of the House is properly served with a judicial or administrative subpoena or judicial order directing appearance as a witness relating to the official functions of the House or for the production or disclosure of any document relating to the official functions of the House, such Member, Delegate, Resident Commissioner, officer, or employee shall comply, consistently with the privileges and rights of the House, with the judicial or administrative subpoena or judicial order as hereinafter provided, unless otherwise determined under this rule.
Rule VIII.l, Rules of the House of Representatives, 114th Cong. (Jan. 6, 2015) (emphasis added). Although Rule VIII.8 states that “[njothing in this rule shall be construed to deprive, condition or waive the constitutional or legal privileges or rights applicable or available at any time to a Member, Delegate, Resident Commissioner, officer, or employee of the House, or of the House itself[,]” the language concerning compliance with an administrative subpoena is inconsistent with the notion that blanket sovereign immunity applies. If the House, House Members, and House staff enjoy immunity from administrative subpoenas under the doctrine of sovereign immunity — as Respondents argue — the language stating that a Member or House employee “shall comply ... with [an] ... administrative subpoena” would serve no purpose.
Given that no court has ever held that sovereign immunity applies to an inter-branch subpoena, and given that the House rules appear to acknowledge that no blanket sovereign immunity applies to an administrative subpoena issued by a Federal agency to the House, a House member, or House staff, this Court concludes that sovereign immunity has no application here.
2. Sovereign Immunity Has Been Waived
Even if sovereign immunity applied to inter-branch subpoenas, Congress waived any such-immunity as to an SEC investigation involving allegations of insider trading.
“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.” Lane, 518 U.S. at 192, 116 S.Ct. 2092 (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)) (internal citations omitted).' “Moreover, [any] waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Id. Finally, “the doctrine of sovereign immunity is jurisdictional in nature ... [and] the [proponent of waiver] bears the burden of establishing that her claims fall within an applicable waiver.” Makarova, 201 F.3d at 113; see also Spinale, 621 F.Supp.2d at 117 (“It is Plaintiffs’ burden to demonstrate that sovereign immunity has been waived.”).
In the Stop Trading on Congressional Knowledge Act of 2012 (“STOCK Act”), Pub. L. No. 112-105, 126 Stat. 291 (2012), Congress provided that
each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and confidence to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information derived from such person’s position as a Member of Congress or employee of Congress or gained from the performance of such person’s official responsibilities.
STOCK Act, § 4, 15 U.S.C. § 78u-l. In recognition of, and in furtherance of that duty, the STOCK Act states that “Members of Congress and employees of Congress are not exempt from the insider trading prohibitions arising under the securities laws, including section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.” STOCK Act § 4.
The effect of the Stock Act is to make applicable to members of Congress and their staff those provisions of the securities laws that govern insider trading, including Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Section 10(b) and Rule 10b-5 are the provisions under which the SEC is conducting the Humana Investigation. Respondents argue, however, that although Congress, its members, and staff are now subject to the insider trading laws, the STOCK Act does not render them subject to an SEC investigative subpoena.
Section 21(a) of the Exchange Act, 15 U.S.C. § 78u(a)(l), gives the SEC authority to
make such investigations as it deems necessary to determine whether any person has violated, is violating, or is about to violate any provision of this chapter [or] the rules or regulations thereunder, ... the rules of a national securities exchange or registered securities association of which such person is a member or a person associated ... and may require or permit any person to file with it a statement in writing, under oath or otherwise as the Commission shall determine, as to all the facts and circumstances concerning the matter to be investigated.
15 U.S.C. § 78u(a)(l). Section 21(b) of the Exchange Act authorizes the SEC, “[f|or the purpose of any such investigation, or any other proceeding under this chapter ... [to] subp[o]ena witnesses, compel their attendance, take evidence, and require the production of any [documents] ... which the Commission deems relevant or material to the inquiry.” 15 U.S.C. § 78u(b).
The plain language of the STOCK Act provides that members of Congress and Congressional employees “are not exempt from the insider trading prohibitions arising under the securities laws.” STOCK Act § 4. Stated another way, members of Congress and Congressional employees are subject to the laws governing insider trading. Section 21(a) and 21(b) of the Exchange Act are two provisions of the law that govern insider trading. Section 21(a) authorizes the SEC to investigate suspected violations of the insider trading laws, and Section 21(b) authorizes the SEC to use certain investigative tools and techniques in connection with an insider trading investigation, including depositions and document requests.
In the context of a civil enforcement action under Section 10(b) and Rule 10b-5, it is clear that the SEC could serve— consistent with the STOCK Act — document requests, interrogatories and deposition notices on Members of Congress and their staff. Another aspect of not being “exempt from the insider trading prohibitions” is that a person is subject to (1) investigation by the SEC for suspected insider trading pursuant to Section 21(a) of the Exchange Act; and (2) the investigative tools authorized in Section 21(b) of the Exchange Act, including depositions and document requests. Respondents’ interpretation of the STOCK Act — that it makes Members of Congress and their staff subject to SEC civil enforcement actions and criminal prosecutions regarding insider trading but not to SEC investigations of insider trading- — is not a tenable reading of the STOCK Act and is not consistent with its plain language
In sum, even if the doctrine of sovereign immunity applied to inter-branch subpoenas, this Court would find that Congress waived any such immunity in enacting the STOCK Act.
B. Personal Jurisdiction
Respondents contend that this action must be dismissed because this Court lacks personal jurisdiction over them. (Resp. Br. (Dkt. No. 17) at 16-21)
1. Legal Standard
“The plaintiff [or applicant] bears the burden of establishing that the court has jurisdiction over the defendant [or the respondent] when served with a Rule 12(b)(2) motion to dismiss.” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001). “A plaintiff may carry this burden ‘by pleading in good faith ... legally sufficient allegations of jurisdiction, i.e., by making a “prima facie showing” of jurisdiction.’ ” Id. at 208 (quoting Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990))). “A district court has ‘broad discretion’ in deciding such a motion, including the discretion to conduct an evi-dentiary hearing if the Court believes one is warranted.” Realuyo v. Villa Abrille, 01 Civ. 10158(JGK), 2003 WL 21537754, at *2 (S.D.N.Y. July 8, 2003), aff'd sub nom. Realuyo v. Abrille, 93 Fed.Appx. 297 (2d Cir.2004) (quoting CutCo Indus, v. Naughton, 806 F.2d 361, 364 (2d Cir.1986)).
2. Analysis
“The Exchange Act permits the exercise of personal jurisdiction ‘to the limit of the Due Process Clause of the Fifth Amendment.’ ” S.E.C. v. Compania Internacional Financiera S.A., 11 Civ. 4904 (DLC), 2011 WL 3251813, at *4 (S.D.N.Y. July 29, 2011) (quoting S.E.C. v. Unifund SAL, 910 F.2d 1028, 1033 (2d Cir.1990)); see also 15 U.S.C. § 78u(c) (“In case of ... refusal to obey a subp[o]ena issued to[] any person, the [SEC] may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carnes on business, in requiring the attendance and testimony of witnesses and the production of [documents] ....”) “ ‘The due process test for personal jurisdiction has two related components: the ‘minimum contacts inquiry’ and the ‘reasonableness’ inquiry.’ ” Compania, 2011 WL 3251813, at *4 (quoting Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996)). “The former looks to ‘whether the defendant has certain minimum contacts [with the forum] ... such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” In re Parmalat Securities Litigation, 376 F.Supp.2d 449, 453 (S.D.N.Y.2005) (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir.2002)). “The latter ‘asks ... whether it is reasonable under the circumstances of the particular case’ to assert personal jurisdiction.” Id. (quoting Bank Brussels Lambert, 305 F.3d at 129).
Because the Exchange Act “authorize[s] nationwide service of process ... [i]t is not the State of New York but the United States which would exercise its jurisdiction over [Respondents].” Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir.1974) (internal citations omitted). “And plainly, where, as here, the [Respondents] reside within the territorial boundaries of the United States, the minimal contacts, required to justify the federal government’s exercise of power over them, are present.” Id. at 1143 (internal citations omitted); see also S.E.C. v. Straub, 921 F.Supp.2d 244, 253 (S.D.N.Y.2013) (“ ‘When the jurisdictional issue flows from a federal statutory grant that authorizes suit under federal-question jurisdiction and nationwide service of process, ... the Fifth Amendment applies, and the Second Circuit has consistently held that the minimum-contacts test in such circumstances looks to contacts with the entire United States rather than with the forum state.’ ”) (quoting S.E.C. v. Morton, No. 10 Civ. 1720(LAK)(MHD), 2011 WL 1344259, at *12 (S.D.N.Y. Mar. 31, 2011), adopted, No. 10 Civ. 1720, 2011 WL 11768504 (S.D.N.Y. Nov. 3, 2011). Accordingly, the first prong of the due process test for the exercise of personal jurisdiction is satisfied.
“Once it has been decided that [respondents] purposefully established minimum contacts within the forum ..., these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “The Supreme Court has held that the court must evaluate the following factors as part of this ‘reasonableness’ analysis: (1) the burden that the exercise of jurisdiction will impose on the [respondents]; (2) the interests of the forum state in adjudicating the case; (3) the [applicant]^ interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.” Metro. Life Ins. Co., 84 F.3d at 568 (citing Asahi Metal Indus. Co., Ltd, v. Superior Court, 480 U.S. 102, 113-114, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). -‘“The reasonableness inquiry is largely academic in non-diversity cases brought under a federal law which provides for nationwide service of process[, however,] because of the strong federal interests involved.’ ” Straub, 921 F.Supp.2d at 259 (quoting S.E.C. v. Syndicated Food Servs. Int’l, Inc., No. 04 Civ. 1303 (NGGXALC), 2010 WL 3528406, at *3 (E.D.N.Y. Sept. 3, 2010)). “ ‘To date, while most courts continue to apply the test as a constitutional floor to protect litigants from truly undue burdens, few ... have ever declined jurisdiction, on fairness grounds, in such cases.’ ” Id. (quoting Syndicated Food Servs. Int’l, 2010 WL 3528406, at *3 (internal quotation marks omitted)).
Respondents recognize that sufficient minimum contacts with the forum state exist, but argue that it is not constitutionally reasonable for this Court to exercise personal jurisdiction over them. (Resp. Br. (Dkt. No. 17) at 18-21) They assert that “litigating this dispute [in New York] unquestionably will burden the Committee and Mr. Sutter and interfere with their governmental responsibilities,” and that “[t]his District has no special interest in adjudicating an enforcement action involving subpoenas (i) directed to an entity and individual that ‘operate predominantly’ in Washington, D.C.... and (ii) which directed compliance to be made in Washington, D.C.” (Id. at 18-19) Respondents have not demonstrated, however, that litigating this dispute in New York would be “ ‘so gravely difficult and inconvenient’ that [they would be] ... at a ‘severe disadvantage’ in comparison to [the SEC].” See Burger King, 471 U.S. at 478, 105 S.Ct. 2174 (quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); McGee v, Int’l Life Ins. Co., 355 U.S. 220, 223-24, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)).
Acknowledging that (1) Respondents are located in or around the District of the District of Columbia; (2) many of the events at issue in the Humana Investigation took place in that District, and (3) many of the documents at issue are located in the District of Columbia, litigating this case in New York will not put Respondents at a “severe disadvantage.”
“[T]he realities of modern transportation and communication, as well as the nature of civil litigation ..., serve to reduce the burdens of litigating in a distant forum.” S.E.C. v. Softpoint, Inc., No. 95 Civ. 2951, 2001 WL 43611, at *6 (S.D.N.Y. Jan. 18, 2001) (citing Burnham v. Superior Court, 495 U.S. 604, 638-39 & n. 1, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (noting that “any [such] burdens that do arise can be ameliorated by a variety of procedural devices”) (Brennan, J., concurring in the judgment)).
Moreover, all twelve SEC attorneys working on the Humana Investigation are “employed exclusively within the Commission’s New York Regional Office.” (Wadhwa Decl. (Dkt. No. 22) ¶ 2) These attorneys issued the subpoenas at issue here, as well as all other subpoenas and informal requests for information that have been disseminated in this investigation. These attorneys have also conducted a number of interviews in New York. (Id. ¶[¶ 2-3) In addition, more than half of the investment funds and other entities that received the April 1, 2013 Height Securities analyst’s email are headquartered in New York, and only one is located in the District of Columbia. (Id. ¶ 5) Although “[t]he determination of the locale of [an SEC] investigation is based on a standard of reasonableness,” S.E.C. v. Financial Institutions Assur. Corp., 1985 WL 1562, at *2 (N.D.Ga. Mar. 18, 1985), the choice of New York as a forum in this case is not unreasonable given the Humana Investigation’s connections to New York.
The Court also notes that this is a subpoena enforcement application and not a plenary civil lawsuit, and that “enforcement proceedings may be summary in nature,” S.E.C. v. Knopfler, 658 F.2d 25, 26 (2d Cir.1981), and “do not typically involve discovery, testimony from parties or witnesses, or the presentation of evidence.” S.E.C. v. Jones, No. CV 13-08314 DDP, 2013 WL 6536085, at *2 (C.D.Cal. Dec. 13, 2013) (citing U.S. v. Firestone Tire & Rubber Co., 455 F.Supp. 1072, 1078 (D.D.C.1978) (“A proceeding to enforce a subpoena or a special order is summary in nature, and except in the most extraordinary circumstances, discovery and testimony are not allowed.”)). “As a result, the inconvenience to pai"ties and witnesses associated with litigation ... is largely eliminated.” Id.
Accordingly, this Court has personal jurisdiction over Respondents for purposes of resolving the SEC’s enforcement application pursuant to Section 21(c) of the Exchange Act, 15 U.S.C. § 78u(c).
C. Venue
Respondents also contend that venue in the Southern District of New York is improper. (Resp. Br. (Dkt. No. 17) at 21-23)
Section 21(c) of the Exchange Act, 15 U.S.C. § 78u(c), governs the venue determination here. That provision states:
[i]n case of contumacy by, or refusal to obey a subp[o]ena issued to, any person, the Commission may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of [documents]. And such court may issue an order requiring such person to appear before the [SEC] or member or officer designated by the [SEC], there to produce records, if so ordered, or to give testimony touching the matter under investigation or in question....
Respondents argue that the SEC has not demonstrated that its investigation is being “carried on” in the Southern District of New York, as required by Section 21(c), and that authorizing officials in the. SEC’s New York Regional Office to issue subpoenas “is not enough to satisfy the statutory ‘carried on’ requirement.” (Resp. Br. (Dkt. No 17) at 21-22) Respondents also assert that “neither the Committee nor Mr. Sutter reside or carry on their regular work activities in the Southern District of New York.” (Id. at 20)
As discussed above, however, the SEC has shown that "the Humana Investigation is being conducted by SEC staff in the New York Regional Office, and that “New York has been the hub of the [SEC’s] investigative activity in the Humana investigation.” (Wadhwa Decl. (Dkt. No. 22) ¶¶ 3-5) The fact that Respondents are located in the District of Columbia does not prevent the SEC from conducting its investigation in New York, nor does it require the SEC to submit its enforcement application to a court in the District of Columbia. “The [S.E.C.] should not be required to go to each jurisdiction where documents are supposedly kept to secure enforcement of a subpoena when [Section 21(c) ] of the Act allows the Commission to require the production of records from anywhere in the United States at any designated place of hearing.” F.T.C. v. MacArthur, 532 F.2d 1135, 1141 (7th Cir.1976) (construing similar language under the Federal Trade Commission Act, 15 U.S.C. § 49); cf. F.E.C. v. Committee to Elect Lyndon La Rouche, 613 F.2d 849, 854-57 (D.C.Cir.1979) (Federal Election Commission investigation was “carried on” in the District of Columbia where D.C. “was the hub of the Commission’s investigative activity” and was “where the Commission authorized the auditing of [one appellant’s] records and the interviewing of its contributors, where the Commission determined that there was reason to believe that appellants may have violated the federal election laws, where all correspondence regarding those possible violations emanated, and where the subpoenas were in fact issued”). Here, the Humana Investigation “concerns not only the Respondents, but numerous other participants, witnesses and custodians of documents,” including investment funds and other entities headquartered predominantly in New York, but also in Connecticut, Massachusetts, Illinois, and California. (Wadhwa Decl. (Dkt. No. 22) ¶¶ 4-5) In such a nationwide inquiry, it would be impractical for the SEC to enter each forum to enforce the subpoenas related to the Humana Investigation.
Because the SEC is carrying on the Humana Investigation in New York, venue in this District is proper pursuant to 15 U.S.C. § 78u(c).
D. Transfer of Venue
Respondents argue that — even if venue is proper in this District — this Court should transfer this case to the U.S. District Court for the District of Columbia, pursuant to 28 U.S.C. § 1404(a). (Resp. Br. (Dkt. No. 17) at 22)
1. Legal Standard
28 U.S.C. § 1404(a) provides that “[f]or the convenience of parties and witnesses, in the .interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “The purpose of § 1404(a) is ‘to prevent waste of “time, energy and money” and “to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” ’ ” In re Stillwater Min. Co. Sec. Litig., No. 02 Civ. 2806, 2003 WL 21087953, at *2 (S.D.N.Y. May 12, 2003) (quoting Trehern v. OMI Corp., No. 98 Civ. 0242 RWS, 1999 WL 47303, at *1 (S.D.N.Y. Feb. 1, 1999) (quoting Wilshire Credit Corp. v. Barrett Capital Mgmt. Corp., 976 F.Supp. 174, 180 (W.D.N.Y.1997))).
“A court performs a two-part inquiry to determine whether transfer is appropriate [under Section 1404(a)]1. First, the court must determine whether the action sought to be transferred is one that ‘might have been brought’ in the transferee court.” In re Collins & Aikman Corp. Sec. Litig., 438 F.Supp.2d 392, 394 (S.D.N.Y.2006) (citing 28 U.S.C. § 1404(a); In re Nematron Corp. Sec. Litig., 30 F.Supp.2d 397, 400 (S.D.N.Y.1998)). Second, “the court must evaluate whether transfer is warranted using several factors relating to the convenience of transfer and the interests of. justice.” Id. (citing In re Nematron Corp. Sec. Litig., 30 F.Supp.2d at 400; Lewis v. C.R.I., Inc., No. 03 Civ. 651, 2003 WL 1900859, at *2 (S.D.N.Y. Apr. 17, 2003)).
Under Section 1404(a), the party seeking transfer has the burden of demonstrating that transfer is appropriate. See New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir.2010) (“[T]he party requesting transfer [under § 1404(a)] carries the ‘burden of making out a strong case for transfer.’ ”) (quoting Filmline (Cross-Country) Prods., Inc, v. United Artists Corp., 865 F.2d 513, 521 (2d Cir.1989)). “A motion to transfer pursuant to 1404(a) rests within the ‘sound discretion’ of the district court.” Montgomery v. Tap Enters., Inc., No. 06 CV 5799, 2007 WL 576128, at *2 (S.D.N.Y. Feb. 26, 2007) (quoting Schwartz y. R.H. Macy’s Inc., 791 F.Supp. 94, 94 (S.D.N.Y.1992)). Making this determination “lie[s] within the broad discretion of the district court and [is] determined upon notions of convenience and fairness on a case-by-case basis.” In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992) (citing Stewart Org., Inc, v. Ricoh Corp., 487 U.S. 22, 28, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)).
2. Analysis
(a) The SEC’s Application “Could Have Been Brought” in the District of Columbia
“ ‘The threshold question in a transfer motion [under § 1404(a)] is whether the action could have been brought in the district to which transfer is proposed.’ ” Freeman v. Hoffman-La Roche, Inc., No. 06CIV13497(RMB)(RLE), 2007 WL 895282, at *2 (S.D.N.Y. Mar. 21, 2007) (quoting Arrow Elecs., Inc, v. Ducommun, Inc., 724 F.Supp. 264, 265 (S.D.N.Y.1989)) (alterations in original).
As noted above, Section 21(e) of the Exchange Act provides that the SEC “may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where [the person who refuses to obey an SEC subpoena] resides or carries on business.... ” 15 U.S.C.. § 78u(c). The SEC does not dispute Respondents’ assertion that “the Committee and Mr. Sutter both carry on their congressional business in and around the U.S. Capitol complex in Washington, D.C.” (See Resp. Br. (Dkt. No. 17) at 20) Because Section 21(c) provides that venue is proper where the-person refusing to obey an SEC subpoena “carries on business,” see 15 U.S.C. § 78u(c), and because Respondents indisputably carry on business in the District of Columbia, this enforcement application “ ‘could have been brought’ ” in the District of Columbia. See Freeman, 2007 WL 895282, at *2 (quoting Arrow Elees., 724 F.Supp. at 265). Accordingly, the District of Columbia is a proper venue.
(b) Consideration of Section 1404(a) Factors
After determining that “the action could have been brought in the proposed-transferee court,” a judge must next “consider whether a transfer serves • the ‘convenience of the parties and witnesses’ and the ‘interest of justice.’ ” Capitol Records, LLC v. VideoEgg, Inc., 611 F.Supp.2d 349, 365-66 (S.D.N.Y.2009) .(quoting Berman v. Informix Corp., 30 F.Supp.2d 653, 656 (S.D.N.Y.1998)). In making this determination, courts generally consider the following factors:
(1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum’s familiarity with the governing law, (8) the weight accorded the plaintiffs choice of forum, and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.
Ivy Soc’y Sports Grp., LLC v. Baloncesto Superior Nacional, No. 08 Civ. 8106, 2009 WL 2252116, at *4 (S.D.N.Y. July 28, 2009) (quoting Berman, 30 F.Supp.2d at 657). “There is no rigid formula for balancing these factors and no single one is determinative.” Citigroup Inc, v. City Holding Co., 97 F.Supp.2d 549, 561 (S.D.N.Y.2000) (citing S & S Mach. Corp. v. Gen. Motors Corp., No. 93 Civ. 3237, 1994 WL 529867, at *7 (S.D.N.Y. Sept. 28, 1994)). “Instead, weighing the balance ‘is essentially an equitable task’ left to the Court’s discretion.” Id. (quoting First City Nat. Bank & Tr. Co. v. Simmons, 878 F.2d 76, 80 (2d Cir.1989)).
(i) Convenience of Witnesses and Parties
“Courts typically regard the convenience of witnesses as the most important factor in considering a § 1404(a) motion to transfer.” Herbert Ltd. P’ship v. Elec. Arts Inc., 325 F.Supp.2d 282, 286 (S.D.N.Y.2004). In summary enforcement proceedings such as this, however, courts have held that “the inconvenience tq parties and witnesses associated with litigation, as may be considered under § 1404(a), is largely eliminated.” See Jones, 2013 WL 6536085, at *2 (citing F.T.C. v. Carter, 464 F.Supp. 633, 637 (D.D.C.1979) (“[I]n summary proceedings such as this[,] testimony from parties or witnesses is rarely necessary.... This of course eliminates a significant convenience factor involved in § 1404(a) determinations.”) (internal citations omitted)). Thus, “such convenience factors carry little weight in the context of a summary enforcement proceeding such as the present one.” Id., 2013 WL 6536085, at *2. To the extent that these factors do matter, “[t]he convenience to the SEC in litigating near the situs of its investigation and staff personnel should [also] be accorded some weight on a transfer motion.” S.E.C. v. Captain Crab, Inc., 655 F.Supp. 615, 617 n. 2 (S.D.N.Y.1986). In short, the convenience of witnesses and parties does not weigh in favor of transfer.
(ii) Location of Relevant Documents and Locus of Operative Facts
“The location of documents and sources of proof is another consideration in the § 1404(a) calculus,” Berger v. Cushman & Wakefield of Pa., Inc., No. 12 Civ. 9224, 2013 WL 4565256, at *10 (S.D.N.Y. Aug. 28, 2013), and “[t]he locus of operative facts is an ‘important factor to be considered in deciding where a case should be tried.’ ” Age Grp. Ltd, v. Regal Logistics, Corp., No. 06 Civ. 4328, 2007 WL 2274024, at *3 (S.D.N.Y. Aug. 8, 2007) (quoting 800-Flowers, Inc, v. Intercontinental Florist, Inc., 860 F.Supp. 128, 134 (S.D.N.Y.1994)). Respondents argue that “all of the documents at issue are in the District of Columbia (and none are in [the Southern District of New York]), and all, or virtually all, of the ‘operative facts’ concern players — or took place — in the District of Columbia.” (Resp. Br. (Dkt. No. 17) at 22)
Although most of the documents requested in the subpoenas are likely located in or near the District of Columbia— whether in the Committee’s files, or in Sutter’s personal or work files — “ ‘[t]he location of documents and records “is not a compelling consideration when records are easily portable.” ’ ” Berger, 2013 WL 4565256, at *10 (quoting Am. Eagle Outfitters, Inc. v. Tala Bros. Corp., 457 F.Supp.2d 474, 478 (S.D.N.Y.2006) (quoting Astor Holdings, Inc, v. Roski, No. 01 CIV.1905, 2002 WL 72936, at *12 (S.D.N.Y. Jan. 17, 2012); see also Am. Steamship Owners Mut. Prot. & Indem. Ass’n, Inc, v. Lafarge N. Am., Inc., 474 F.Supp .2d 474, 484 (S.D.N.Y.2007), aff'd sub nom New York Marine & Gen. Ins. Co., 599 F.3d at 114 (“The location of relevant documents is largely a neutral factor in today’s world of faxing, scanning, and emailing documents.”). Most of the requests in the subpoenas seek documents reflecting communications between Sutter and other individuals or entities. Given that these communications are likely available electronically, the location of any physical copies of these communications is not determinative for purposes of the Section 1404(a) analysis.
“To determine where the locus of operative facts lies, courts look to ‘the site of events from which the claim arises.’ ” Age Group Ltd., 2007 WL 2274024, at *3 (quoting 800-Flowers, 860 F.Supp. at 134). Given that this case involves a subpoena enforcement application and not a plenary lawsuit, there is no “claim” at issue. Instead, the SEC has “invoke[d] the aid of [a] court of the United States ... in requiring the attendance and testimony of witnesses and the production of [documents]” pursuant to its authority under Section 21(c) of the Exchange Act. See 15 U.S.C. § 78u(c). In cases where the enforcement of a subpoena is at issue, courts have considered the place where the recipient of the subpoena was ordered to produce testimony and/or witnesses, whether a related case is being heard or has been heard in another district, whether transfer will serve the interests of judicial economy and consistency, and whether the subpoena was issued in connection with litigation pending in another district. See Bent v. Berman, 859 F.Supp. 84, 88 (S.D.N.Y.1994); In re Subpoena Issued to Boies, Schiller & Flexner LLP, No. M8-85, 2003 WL 1831426, at *1 (S.D.N.Y. Apr. 3, 2003).
Accepting Respondents’ assertion that the facts and events underlying the SEC’s application “concern players — or took place — in the District of Columbia” (Resp. Br. (Dkt. No. 17) at 22), resolving the SEC’s application does not require this Court to engage in a fact-finding exercise. Because a court’s “ ‘role in a proceeding to enforce an administrative subpoena is extremely limited,’ ” RNR Enterprises, Inc., 122 F.3d at 96 (quoting In re McVane, 44 F.3d at 1135), and “ ‘it is sufficient if the [subpoena’s] inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant,’ ” id. at 97 (quoting Morton Salt Co., 338 U.S. at 653, 70 S.Ct. 357), it is not necessary or appropriate for this Court to delve into the operative