Appellate judges have halted an attempt by Kraft Heinz and Mondelez International to haul the US commodities regulator into court to justify controversial statements about the companies’ grain trading.
The order is a new twist in an unusual case that has riveted the regulatory bar since last month, when the US Commodity Futures Trading Commission reached a $16bn deal with the companies to settle claims that their predecessor had manipulated wheat futures markets.
The agreement contained a gag order limiting what the CFTC could say about the case, a rare provision for a settlement with a government regulator. The CFTC and two of its commissioners then announced the settlement with unflattering statements that the companies said went well beyond the terms of the order.
The companies sought a ruling of civil contempt against the agency. US district judge John Robert Blakey wrote in a legal filing that the regulators were also exposed to potential charges of ethical violations or a referral for an investigation into criminal contempt.
Judge Blakey had ordered CFTC chairman Heath Tarbert and the two commissioners, Dan Berkovitz and Rostin Behnam, to testify in his Chicago courtroom at a hearing scheduled October 2.
But on Thursday, a three-judge panel from the Seventh Circuit US Court of Appeals stayed the proceedings. The suspension will continue until the panel decides whether to take over aspects of the case from the lower court, as requested by lawyers for the CFTC. Such an emergency action, known as a “writ of mandamus,” is very rarely granted, said a derivatives lawyer who has been following the case.
The appellate judges — Frank Easterbrook, Ilana Diamond Rovner and Diane Sykes — also ordered documents filed in their court to be made public. Most documents pertaining to Kraft and Mondelez’s contempt charges have been sealed in the court of Judge Blakey.
“As a procedural matter, this is truly a very extraordinary event,” said Gary DeWaal, a lawyer at Katten Muchin Rosenman in New York.
The CFTC officials are being represented by Zachary Fardon, a lawyer at the King & Spalding firm in Chicago. Mr Fardon was once US attorney in Chicago. The former prosecutor was the first to obtain a guilty verdict for “spoofing” US futures markets, a form of deceptive trading.
CFTC and Kraft Heinz declined to comment, while Mondelez International did not immediately respond to a request for comment.
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