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.
Easterbrook, Ripple, and Sykes, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
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.
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
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.
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.
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.
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.
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).
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.
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, ...