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In re Commodity Futures Trading Commission

United States Court of Appeals, Seventh Circuit

October 22, 2019

In the Matter of: Commodity Futures Trading Commission, Petitioner. Kraft Foods Group, Inc., and Mondelez Global LLC, Parties in Interest.

          Submitted October 15, 2019

          Petition for a Writ of Mandamus to the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 2881 - John Robert Blakey, Judge.

          Before Easterbrook, Ripple, and Sykes, Circuit Judges.

          EASTERBROOK, CIRCUIT JUDGE.

         In 2015 the Commodity Futures Trading Commission filed a civil action against Kraft Foods Group and Mondelez Global. It was settled in August 2019, and the parties' bargain, which the judge entered as a consent decree, includes this provision:

Neither party shall make any public statement about this case other than to refer to the terms of this settlement agreement or public documents filed in this case, except any party may take any lawful position in any legal proceedings, testimony or by court order.

         Shortly after the district court entered its order, the Commission issued a press release announcing the suit's resolution. Two Commissioners (Dan Berkovitz and Rostin Behnam) filed statements explaining why they voted in favor of accepting this settlement.

         Kraft and Mondelez asked the district judge to hold the Commission and Commissioners in contempt of court for issuing the press release and concurring statements. The district judge set the motion for a hearing and directed Chairman Heath Tarbert, Commissioners Berkovitz and Behnam, the Commission's Director of Enforcement, and several of the Commission's other employees to appear in court and testify under oath. The judge stated that he would administer Miranda warnings to these witnesses in preparation for a finding of criminal contempt and would demand that the witnesses explain the thinking behind the press release and the separate statements. Chairman Tarbert and the Commissioners protested. After a motion asking the district court to lift the demand for their presence and the threat of criminal sanctions went unaddressed for approximately two weeks, and the date scheduled for the hearing approached, the Commission filed a petition for a writ of mandamus. A motions panel issued a stay pending further order of this court.

         We also ordered all of the papers to be placed in the public record. The district judge had directed the parties not to say anything in public about the upcoming hearing and to keep all of their legal filings secret, an order that is inconsistent with the law of this circuit. See, e.g., Union Oil Co. v. Leavell, 220 F.3d 562, 567-68 (7th Cir. 2000); Herrnreiter v. Chicago Housing Authority, 281 F.3d 634, 636-37 (7th Cir. 2002). Those two decisions hold that a confidentiality clause in the litigants' agreement does not authorize secret adjudication.

         We ordered Kraft and Mondelez to respond to the petition and invited the district judge to do so. See Fed. R. App. P. 21(b)(1), (4). The district judge's response states, among other things, that he no longer contemplates the possibility of criminal contempt, so that aspect of the controversy has dropped out. Everything we say from now on concerns civil contempt only.

         Chairman Tarbert and Commissioners Berkovitz and Behnam have moved for leave to intervene. We grant that motion. Although the Commission is representing their interests adequately for the present, the threat of being personally penalized for contempt of court entitles them to be litigants in their own right, so that they may take such steps as they deem wise to protect their personal interests.

         Mandamus is a drastic remedy, reserved for urgent needs, but, for all that, it remains available to a litigant who can establish a clear right to relief and lacks any other way to protect his or her rights. See, e.g., Cheney v. United States District Court, 542 U.S. 367 (2004); Ex parte Fahey, 332 U.S. 258 (1947).

         The district court's order directing the Chairman and two members of the Commission, plus members of the staff, to appear for questioning in open court cannot be reviewed on appeal from a final decision. The time taken away from their official duties will be lost forever.

         Cheney holds that mandamus is the appropriate remedy when a district court has authorized an inquest into the internal deliberations of the Executive Branch's senior officials. See also, e.g., In re United States,398 F.3d 615 (7th Cir. 2005). That's a good description of the order requiring the Chairman and two Commissioners, appointed by the President on advice and consent of the Senate, to appear and reveal what lies behind their published words. Many decisions hold that mandamus is appropriate when a district judge inappropriately compels a ranking federal official to appear personally rather than by counsel. See, e.g., In re United States,624 F.3d 1368, 1372 (11th Cir. 2010); In re Cheney,544 F.3d 311, 314 (D.C. Cir. 2008); In re United States,197 F.3d 310, ...


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