Photo: Diego M. Radzinschi/NLJ

A Chicago federal judge on Monday will question the U.S. Commodity Futures Trading Commission over claims that its public statements announcing a $16 million settlement with two major food manufacturers went beyond the limited scope of what enforcers were allowed to say.

The two companies, Kraft Food Groups Inc. and Mondelēz Global LLC, said statements from the commodities agency Thursday “blatantly violate” the terms of a settlement resolving allegations of price manipulation in the wheat market. The consent order, ending four years of litigation, contained a provision that barred both sides from making “any public statement about this case other than to refer to the terms of this settlement agreement or public documents filed in this case.”

Heath Tarbert. Credit: Diego M. Radzinschi/ NLJ

CFTC chairman Heath Tarbert, announcing the settlement in a news release, said market manipulation “inflicts real pain on farmers by denying them the fair value of their hard work and crops.” He added: “It also hurts American families by raising the costs of putting food on the table. Instances of market manipulation are precisely the kinds of cases the CFTC was founded to pursue.”

U.S. District Judge John Blakey of the Northern District of Illinois, responding to the companies’ complaints about the CFTC’s comments, set an “emergency” hearing for Monday. The CFTC “should come prepared to answer allegations it has violated court orders and should be held in contempt and or subject to sanctions,” the court said in an order late Thursday.

Representatives from the companies did not say publicly what specific grievances they had with the CFTC’s statements about the settlement, and they did not offer how they think the dispute should be resolved. A spokesperson for the CFTC said in media reports that the “commission’s statement is fully compliant with the terms of the consent order.”

A spokesman for Mondelēz said in an email: “We can’t comment on the settlement per se but we strongly disagree with the CFTC’s statements, which blatantly violate and misrepresent the terms and spirit of the consent order, and will be seeking immediate relief from the court.” A statement from a Kraft representative mirrored that language.

Teams of lawyers from Jenner & Block and Eversheds Sutherland represented Kraft Foods and Mondelēz Global. Chicago-based Jenner partners J. Kevin McCall and Dean Panos did not return messages seeking comment.

The inclusion of a gag provision in the consent order drew two additional government statements that accompanied the main press release: one from the CFTC and one from the agency’s two Democratic commissioners.

The agency said in its statement that commissioners “do not expect the commission to agree to similar language in the future, except in limited situations where our statutory enforcement mission of preventing market manipulation is substantially advanced by the settlement terms and the public’s right to know about commission actions is not impaired.”

Two agency commissioners—Dan Berkovitz and Rostin Behnam—called the speech restriction, and another provision, “unusual.”

“Commissioners, as public officials, must be able to explain to Congress and the public the basis for the sanctions obtained, as well as the rationale for entering into a settlement agreement rather than pursuing litigation,” Berkovitz and Behnam said in their statement. “Although we disagree with any provision restricting the five-member commission’s capacity to make public statements, this provision does not impede our ability to provide information about this case to the public in light of each commissioner’s right to discuss this case freely.”

They added: “In our view, in future situations, the commission should not accept any confidentiality provisions or restrictions on the commission’s ability to make public statements.”

Berkovitz is a former Wilmer Cutler Pickering Hale and Dorr partner in Washington, and Behnam served as an aide to U.S. Sen. Debbie Stabenow, D-Michigan. Berkovitz, nominated by President Donald Trump last year, formerly served at the CFTC’s general counsel from 2009 to 2013. Behnam was nominated by Trump in 2017 and earlier was an investigator for the New Jersey Bureau of Securities. Tarbert, the CFTC chairman, is a former Allen & Overy partner.

Berkovitz and Behnam also raised questions about the absence of factual findings and conclusions of law in the consent order.

“Other federal agencies expressly prohibit consent or settlement agreements that restrict the agency’s ability to speak about settlements or the underlying action,” the two commissioners wrote. They pointed to a U.S. Justice Department policy “that prohibits it from entering into settlement agreements or consent decrees that are subject to a confidentiality provision in any civil matter in which the department is representing the interests of the United States or its agencies.”

That DOJ regulation, Berkovitz and Behnam said, is based on the “strong interest” the public has in knowing about the conduct of federal agencies.

Blakey on Thursday issued a judgment against Kraft and Mondelēz. Still, he retains jurisdiction to enforce the terms of the consent order.

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