Responding to an FTC Civil Investigative Demand (CID)
We Have Significant Experience Helping Companies Respond to Civil Investigative Demands (CIDs) from the U.S. Federal Trade Commission (FTC)
The U.S. Federal Trade Commission (FTC) has several investigative tools at its disposal. One of these tools is the civil investigative demand (CID). The FTC routinely issues CIDs to suspects, targets, and witnesses. But, while the FTC may issue CIDs as a matter of course, responding to a CID is far from a routine matter.
Responding to an FTC civil investigative demand presents several risks. This includes risks related to compliance with the CID as well as risks related to voluntarily sharing information with the Commission. While failing to duly comply with a CID can lead to a finding of contempt, unnecessarily sharing information with the FTC can lead to substantive charges for a broad range of statutory and regulatory offenses.
Former Federal Prosecutors and Career Federal Defense Attorneys Experienced in FTC Civil Investigative Demand Response
At Oberheiden P.C., we rely on extensive experience on both sides of high-stakes federal investigations to assist companies with responding to FTC civil investigative demands. Several of our lawyers are former federal prosecutors who oversaw federal investigations at the U.S. Department of Justice (DOJ) before entering private practice. Our federal defense team includes several career defense lawyers as well, and our lawyers have advised companies across the country during FTC investigations.
As a result of this experience, we are well-versed in all aspects of FTC civil investigative demand response. We take a comprehensive approach that begins with evaluating the CID itself. What information is the CID requesting? Is the CID legally enforceable? How feasible is timely compliance? These are all crucial questions that CID recipients need to have answered as soon as possible.
Once we evaluate the CID and address any concerns regarding its legality or scope with the FTC (or in court, if necessary), we then work alongside our client to prepare an appropriate response. This includes preserving and collecting all responsive documents as well as preparing testimony and preserving the attorney-client privilege. Responding to an FTC civil investigative demand is a complex, time-consuming, and high-risk process, and it is a process that requires the advice and representation of experienced counsel every step of the way.
What to Know About the FTC’s Advice on Civil Investigative Demand Response
Due to the risks involved, it is imperative that company leaders make informed decisions when responding to FTC civil investigative demands. But, while the FTC provides guidance on its website, company leaders must not rely on this guidance exclusively. This guidance does not necessarily reflect CID recipients’ best interests; and, as discussed below, unnecessarily sharing information with the federal government in any capacity can be dangerous.
Here are some of the FTC’s tips—along with our lawyers’ additional insights on responding carefully and strategically to a civil investigative demand:
- “Respond promptly to FTC staff upon receipt of a subpoena or CID.” While it is important to respond to an FTC CID promptly, this does not necessarily mean immediately engaging with the Commission. Prior to contacting FTC staff, CID recipients should consult with their counsel to assess the risks involved and determine the most appropriate path forward.
- “Take advantage of meet-and-confer opportunities and be forthcoming about any concerns that you have about your ability to comply on time and in full.” While taking advantage of the FTC’s meet-and-confer process can be an effective way to address concerns with the burdens of complying with a civil investigative demand, being “forthcoming” with the FTC about compliance-related concerns isn’t necessarily the best approach. When a CID recipient cannot timely comply with the FTC’s demand, the recipient must make informed and strategic decisions about how to approach the FTC based on the advice of experienced FTC defense counsel.
- “If you run into problems meeting deadlines, call staff immediately. Keep them apprised so they can work with you.” Here, too, following the FTC’s advice can potentially do more harm than good. There are right and wrong ways to deal with challenges during the CID response process, and immediately contacting FTC staff without a strategy in place is rarely—if ever—the best approach.
- “Understand that the FTC and its staff need to move investigations forward expeditiously.” This is sound advice, and it is advice that CID recipients should keep in mind throughout the response process. When conducting investigations, the FTC moves quickly, and it does not give leeway to companies that submit delinquent or deficient CID responses. In this respect, working with (rather than against) the FTC can be an effective strategy for steering the Commission’s investigation toward a favorable outcome.
- “Abide by Commission orders promptly.” Not all orders issued by the FTC are legally enforceable. When facing orders from the FTC, company leaders must promptly consult with outside counsel to assess their options and determine their next steps. While compliance will be necessary in some cases, the damage that results from unnecessarily complying with an FTC order cannot necessarily be undone.
When we represent FTC civil investigative demand recipients, we help our clients make informed and strategic decisions about dealing with the Commission and preparing and submitting their responses. As your company’s FTC defense firm, we will:
- Explain your company’s obligation to comply with the FTC’s CID. Our lawyers will thoroughly review your company’s CID in light of the FTC’s administrative authority to assess the demand’s legality. We will also assess the burdens of compliance and identify opportunities for negotiation.
- Assist with document retention, document collection, and preservation of the attorney-client privilege. Upon receiving an FTC civil investigative demand, it is critical to promptly preserve all responsive documents. In addition to assisting with document retention, we also assist our clients with document collection while also ensuring preservation of the attorney-client privilege.
- Communicate with FTC staff on your company’s behalf, and challenge the FTC’s actions as necessary. Our lawyers will deal with the FTC on your company’s behalf, working to appropriately limit the CID’s scope through the meet-and-confer process. If necessary, our lawyers will also dispute the validity of the FTC’s civil investigative demand in court.
- Prepare and submit a compliant CID response on your company’s behalf. We will work with your company’s personnel to prepare a compliant response to the FTC’s civil investigative demand based upon any concessions or limitations we have secured. We will then submit the response to the FTC on your company’s behalf and handle any follow-up communications with the Commission.
- Formulate and execute a custom-tailored defense strategy as necessary. If your company is at risk in the FTC’s investigation, we will formulate and execute a custom-tailored defense strategy. We have extensive experience handling FTC investigations, and we can use this experience to steer the investigation toward an efficient and favorable resolution.
FAQs: Responding to an FTC Civil Investigative Demand
What are Some of the Most Important Facts to Know About FTC Civil Investigative Demands?
If the FTC has served your company with a civil investigative demand, there are several important facts you need to know. For example:
- The FTC serves civil investigative demands on suspects, targets, and witnesses. After receiving a CID, one of your first priorities should be to determine your company’s posture in the FTC’s investigation.
- Responding to an FTC CID is a time-consuming and resource-intensive process. As a result, it is important to begin your company’s response efforts immediately.
- Non-compliance with an FTC CID can have significant consequences. These include facing contempt of court proceedings which can lead to fines and possible jail time.
What Should I Do if the FTC has Served My Company with a Civil Investigative Demand?
If the FTC has served your company with a civil investigative demand, you should engage outside counsel promptly. You will need to work closely with outside counsel throughout the response process, and you will need to rely on your company’s counsel to make informed and strategic decisions.
Is it Possible to Challenge a Civil Investigative Demand from the FTC?
It is possible to challenge a civil investigative demand from the FTC in some cases. However, the grounds for challenging an FTC CID are limited; and, in most cases, a successful challenge will result in a reduction in the scope of the CID rather than quashing the CID entirely.
Can My Company Handle an FTC Civil Investigative Demand In-House?
Due to the challenges and risks involved, we do not recommend that companies handle FTC civil investigative demands in-house. Effective FTC CID response requires a comprehensive understanding of all pertinent substantive and procedural considerations, and this requires extensive experience in the areas of FTC compliance and FTC investigation defense.
Do I Need to Hire a Law Firm for FTC Civil Investigative Demand Response?
Engaging a law firm to represent your company during the FTC civil investigative demand response process is strongly recommended. Experienced counsel will be able to assist with managing document retention and collection, interfacing with the FTC, challenging the CID as warranted, and submitting a timely and compliant response without creating unnecessary risk exposure.
Contact Us for More Information
Our former federal prosecutors and career federal defense lawyers are available to assist companies nationwide with FTC civil investigative demand response. To get started with a complimentary initial consultation, call 888-680-1745 or request an appointment online today.