IBJ, Wall Street Journal seek unsealing of Durham records

Indianapolis Business Journal and The Wall Street Journal have joined the legal fight to unseal search-warrant
documents related to the federal investigation of businessman Tim Durham and Akron, Ohio-based Fair Finance Co.

Akron
Beacon Journal and The Indianapolis Star launched the effort in mid-December. This week, an
Akron attorney filed an amended motion in federal courts in Indiana and Ohio bringing in the additional newspapers. The filing
seeks unsealing in part because of “intense community and national interest.”

The probe has been public
since Nov. 24, when FBI agents executed search warrants at Durham’s Indianapolis office and at Fair’s headquarters.
Agents hauled away computer equipment and bankers boxes full of documents. Investigators have refused to provide information
on the warrants, saying they are sealed.

The U.S. Attorney’s Office in Indianapolis has not filed a response
to the original motion to unseal. Timothy Morrison, the U.S. attorney for the Southern District of Indiana, would not comment
Tuesday morning on what position his office will take.

Court papers filed by Morrison’s office Nov. 24 allege
Fair operated as a Ponzi scheme, using money from new investors to pay what it owed prior investors,
thereby “lulling the earlier victims into believing that their money was being [handled] responsibly.”

The raids occurred one month after IBJ published an investigative story that raised
questions about whether Fair Finance had the financial wherewithal to repay Ohio investors who had purchased
nearly $200 million in investment certificates.

The story reported that, since Durham bought
the consumer-loan business in 2002, he had used it almost like a personal bank to fund a range of business
interests, some of them unsuccessful. The story noted that he and related parties owe Fair more than $168 million.

In the amended motion to unseal, Karen Lefton, an attorney for Brouse McDowell in Akron, argued that keeping the records
sealed violates the newspapers’ common law right to access judicial records, as well as their First Amendment rights.

“It is highly unlikely the government would be able to meet its burden of showing that sealing is essential
to preserving the integrity of its ongoing investigation,” the motion says.

“In addition, all the
principal parties—Mr. Durham, his companies’ leaders, the prosecutor—already know the contents
of those file cabinets and computers that were seized from Fair Finance. Indeed, it seems that by sealing the search warrant
documents, that information is being withheld only from those for whom it is most important—the public and
innocent investors who now must undertake recovery on their own.”