Juice maker POM Wonderful has been under investigation by the Federal Trade Commission, a fact that is contained in publicly available court records that until late Friday The National Law Journal was barred by a judge from publishing.
At POM’s request, a District of Columbia Superior Court judge issued a restraining order against the NLJ, prohibiting the paper from disclosing the identity of the agency and the substance of the investigation. The NLJ filed an emergency appeal July 28.
On July 30, just hours after a group of media companies filed an amicus brief in support of the NLJ in the D.C. Court of Appeals, POM’s lawyer moved to have the restraining order withdrawn. Judge Judith Bartnoff lifted the temporary restraining order about 4:30 p.m. Friday.
“Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue,” POM’s counsel, Barry Coburn of Washington’s Coburn & Coffman, said in a statement. “POM is, and always has been, fervent supporters of and believers in the freedom of the press, and takes very seriously its commitment to transparency in all aspects of our business.”
A reporter for the NLJ legally obtained the FTC information from court records in a pending suit that Hogan Lovells filed against POM in an attempt to recoup more than $666,200 in attorney fees and expenses.
According to the court papers, in February 2009 Hogan was brought in to help respond to the FTC probe. The FTC’s investigation has been a headache for POM’s lawyers, according to court papers. In-house counsel Kristina Diaz wrote in a court declaration that her office exchanged hundreds of e-mails with Hogan lawyers. A California-based vice president of scientific and regulatory affairs for POM was the primary author of the company’s response to the FTC, with “significant supervision, editing and revision” by Hogan lawyers, Diaz wrote.
At one point, Diaz wrote, one of Hogan’s Washington lawyers and a Los Angeles paralegal “conducted a several day stint at POM’s California offices.” Diaz didn’t name the lawyer or paralegal.
There was an emphasis on secrecy, according to Diaz’s declaration. Hogan lawyers and the in-house staff kept custodian lists and electronically stored the documents for review by “no less than 5-10 contract attorneys in California.”
POM also writes in court records that Hogan helped the company prepare a written submission to the FTC. “During the last month of Hogan’s representation of POM, an attorney and a paralegal from Hogan’s Los Angeles office conducted a several-day stint at POM’s California offices, in which many of the major document custodians were interviewed, hardcopy documents collected, and a re-check of the electronic document collection was performed.”
POM removed Hogan from the FTC matter and hired Covington & Burling in October 2009.
In the fee dispute, Bartnoff issued an oral ruling on July 9, followed by a July 20 written order, sealing certain records. An NLJ editor first viewed the docket weeks before the sealing order and a reporter printed copies of publicly available documents on July 15. In an affidavit filed with the appeal, NLJ reporter Jeff Jeffrey said the documents were not marked as being sealed and he had no idea the material he copied was subject to the sealing order.
Lawyers for the NLJ and its parent company, ALM Media, filed an emergency appeal on July 28.
“The public interest lies in dissolving the temporary restraining order and permitting The National Law Journal to continue to do what it and other publications covering the legal system do on a daily basis — provide their readers with information about the important business of the nation’s courts,” the brief said.
On July 30, Williams & Connolly filed an amicus brief supporting the NLJ’s appeal on behalf of The Washington Post, The New York Times, the Reporters Committee for Freedom of the Press, the American Society of News Editors, the Society of Professional Journalists, the Associated Press, Dow Jones, Gannett and National Public Radio.
Mike Scarcella can be contacted at firstname.lastname@example.org. Reporters Jeff Jeffrey and David Ingram contributed to this article.