Juice maker POM Wonderful has been under investigation by the Federal Trade Commission, a fact that is contained in publicly available court records that The National Law Journal was barred by a judge from publishing. Until now.
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an amicus brief in support of the NLJ in the D.C. Court of Appeals, POM's lawyer moved to have the restraining order withdrawn.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, Jeff Jeffrey, legally obtained the 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. The bulk of the money that is allegedly owed stems from Hogan's representation of POM before the FTC.
According to the court papers, in February 2009 Hogan was brought in to work on responding 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 the 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.
FTC spokeswoman Betsy Lordan said she could not confirm or deny the existence of an investigation.
Compiled by NLJ reporters David Ingram, Jeff Jeffrey and Mike Scarcella.