By Eric Schweibenz
On November 16, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 9 (dated August 7, 2009) in Certain Energy Drink Products (Inv. No. 337-TA-678).  In the Order, ALJ Luckern denied a motion filed by Respondents India Imports, Inc., d/b/a/ International Wholesales Club and Washington Food and Supply of D.C., Inc., d/b/a Washington Cash & Carry (collectively, “Respondents”) to order Complainants Red Bull GmbH and Red Bull North America, Inc. (collectively, “Red Bull”) to attend a mandatory settlement conference presided over by the Administrative Law Judge.

In support of their motion, Respondents argued that Red Bull had refused to respond to concrete offers for settlement proffered by Respondents, including specific monetary offers of settlement and that in the meantime, Respondents “continue to incur litigation costs imposed by a large, well-funded adversary with little apparent motivation to settle this matter.”  In opposition, Red Bull asserted that Respondents had not provided enough information for Red Bull to give adequate consideration of Respondents’ settlement offers.  The Commission Investigative Staff opposed Respondents’ motion.

In the order, ALJ Luckern noted that he “favors settlements of investigations and in fact has participated in settlement discussions in past investigations in which he has presided over.”  ALJ Luckern determined that while there is ample authority supporting the ALJ’s participation in settlement discussions, there are limitations in his involvement.  In this respect, ALJ Luckern noted that “the active encouragement of settlement by a judge who is a finder of fact can easily slip over the line into coercing a settlement, which has been universally condemned.”

According to the order, ALJ Luckern denied Respondents’ motion determining that an “exchange of information thru some discovery is helpful prior to any settlement discussions in the presence of the administrative law judge.”  In denying Respondents’ motion, ALJ Luckern noted that “it is unclear where the investigation stands with respect to discovery as it pertains to [Respondents].”