Heath Tarbert. Photo: Diego M. Radzinschi/ALM

A federal appeals court on Tuesday stopped a Chicago trial judge from pursuing any civil contempt sanctions against ranking officials at the U.S. Commodity Futures Trading Commission, but the agency itself still faces an inquiry into whether certain public statements violated the terms of a $16 million settlement with two major food producers.

The U.S. Court of Appeals for the Seventh Circuit overturned an order compelling three Senate confirmed leaders—Chairman Heath Tarbert, a Republican, and Democratic Commissioners Dan Berkovitz and Rostin Behnam—to appear in court and testify about remarks they made about the settlement, despite a gag provision that limited what the commission could say publicly. The court said the trial judge can still assess whether the CFTC itself should be held in contempt.

The two companies, Kraft Foods Group Inc. and Mondelēz Global LLC, represented by lawyers from Jenner & Block and Eversheds Sutherland, argued the CFTC violated the settlement when commissioners made statements appearing in a trio of news releases. The agency has removed the news released pending the outcome of the contempt inquiry. The settlement resolved allegations of price manipulation in the wheat market.

"If the commission has done wrong, that is because of what the commission itself said and did, not because of what any of its members or employees thought or planned," the Seventh Circuit panel said Tuesday. Judge Frank Easterbrook, who wrote the opinion, was joined by Judges Kenneth Ripple and Diane Sykes.

The dustup marked a rare instance where a federal judge had ordered high-level U.S. officials to appear in court, and the dispute also put in focus whether and when federal agency leaders ever should agree to a settlement provision that limits what public officials can say about a deal with private companies. The CFTC has denied any public statements violated the terms of the settlement.

Tuesday's appeals court order directs U.S. District Judge John Robert Blakey of the Northern District of Illinois "to withdraw its demand that these persons appear in court for questioning."

"We also direct the district court to desist from any effort to hold the chairman, commissioners, and staff members personally in contempt of court, or otherwise to look behind the commission's public statements and the administrative record," Easterbrook said. The panel said its order was justified "when a district court has authorized an inquest into the internal deliberations of the executive branch's senior officials."

Judge Frank Easterbrook. Credit: Diego M. Radzinschi /ALM

The commission's public statements at issue included remarks such as: "The $16 million penalty is approximately three times defendants' alleged gain." And: "We are pleased to bring this matter to a successful resolution, which terminated more than four years of litigation." The commission issued a separate statement that said the agency would unlikely agree to a gag provision in the future "except in limited circumstances."

Jenner partner Dean Panos, leading the push for contempt sanctions, said in court filings in the case: "The CFTC and its commissioners engaged in a deliberate, orchestrated effort to violate the court's consent order within minutes of its entry."

Berkovitz, a former Wilmer Cutler Pickering Hale and Dorr partner, and Behnam, a former aide to U.S. Sen. Debbie Stabenow, D-Michigan, issued a separate statement about the Kraft and Mondelēz deal that criticized the gag order. "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," they said.

Blakey has defended his move to question individual CFTC members and staff, including the enforcement director, about the agency's public statements.

"Obviously, I didn't set a hearing with the commissioners lightly (and granted continuances upon request)," Blakey told the Seventh Circuit panel. "But, under the extraordinary circumstances, where the high-ranking executive officials made some of the challenged statements and appeared to be in sole possession of the relevant information, I determined that it was the right call, at least prior to some convincing argument to the contrary by the CFTC."

A team from King & Spalding, including former U.S. Attorney Zachary Fardon, had represented the CFTC officials in the appeal challenging the contempt inquiry. It's not unusual for U.S. agency officials to retain outside counsel in scenarios, although rare, where individual sanctions—including contempt—are on the table.

Much of the contempt litigation had proceeded under seal until the Seventh Circuit ordered the docket to be opened up.

The appeals court rebuked Blakey for directing the lawyers in the case not to say anything about the contempt proceedings and to file court papers under seal. The three-judge panel said Blakey's order was "inconsistent with the law of this circuit."

Read more:

CFTC Takes Down Disputed Press Releases as Chicago Judge Mulls Sanctions

US Judge Weighs Punishing CFTC Over Statements About Settlement