The Seventh Circuit Court of Appeals has vacated the summary contempt citation and sentence imposed by U.S. District Judge Robert Gettleman after his court e-mail account was inundated with messages after infomercial pitchman Kevin Trudeau urged his supporters to e-mail the judge. FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010).

The appeals court vacated Judge Gettleman's summary citation of Trudeau for contempt, and the imposition of a 30-day sentance, concluding that such summary contempt proceedings were limited to interference with court proceedings that a judge personally observes, and occurs within the physical boundaries of the court room.  The Court noted that the goal of such a summary procedure, in which the judge simply declares someone in contempt and imposes a penalty, is to quickly resolve the disruption and proceed with the court's business.

The record in this case is devoid of any suggestion that Trudeau’s summary punishment was necessary to restore the court’s ability to resume its duties. "No trial was being disrupted by a failure to comply with a court order."  And, while we credit the judge’s determination that the e-mails "imped[ed] [the court’s] means of communication and caus[ed] the necessity of a threat assessment," he made no finding that immediate and summary punishment for Trudeau was necessary to solve his communication problems. . .

FTC v. Trudeau, slip op. at 12 (internal citation omitted).

Judge Gettleman was hearing a civil case brought by the Federal Trade Commission over Trudeau's weight loss book, the latest round in a long battle between the two, and was considering what penalty to impose after finding that Trudeau had used deceptive advertising to sell his book "The Weight Loss Cure 'They' Don't Want You to Know About," in violation of a 2004 consent decree with the FTC.  Gettleman had imposed a $37.6 million fine and banned Trudeau from any infomercials for three years, but this was reversed and remanded by the Seventh Circuit. See FTC v. Trudeau, No. 08-4249, slip op. (7th Cir. Aug. 27, 2009). 

On February 10, Trudeau posted a message to his website with the headline "Kevin needs your voice," giving the judge's email address and asking supporters to tell Gettleman how Trudeau had improved their lives.  He repeated the request on his online radio program.  After the judge called the contempt hearing, Trudeau posted a new message stating that his previous request was "a mistake."  "Please do not under any circumstances communicate with the court or Judge Gettleman," he said.

The contempt citation by Judge Gettleman was issued under the authority of Fed. R. Civ. Pro. 42(b), which allows a judge to "summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies."

The judge found the “presence” condition satisfied in this case because he could read the e-mails on the court’s computers (including the computer in the courtroom) and his PDA which he carried with him so that he was “always in communication” with the court. Neither finding is sufficient to satisfy Rule 42’s “presence” requirement.

FTC v. Trudeau, slip op. at 7.

While the appeals court held that Gettleman's use of summary contempt under Fed. R. Civ. Pro. 42(b) was improper, the appeals court did hold that the judge could request that the U.S. Attorney prosecute Trudeau under the federal criminal contempt statute, 18 U.S.C. § 401, which provides for contempt for "Misbehavior of any person in [a court's] presence or so near thereto as to obstruct the administration of justice," § 401(1), and which is prosecuted using the usual criminal procedures and protections.

Trudeau's underlying conviction for criminal contempt, involving advertising for his book, remains. So the hearing on what punishment to impose for that contempt will contine.