Question 1

What is the expanded role of the Federal Trade Commission (FTC) in recent years, particularly in relation to consumer protection and preventing anti-competitive practices in the US markets, and how has the digital realm transformed its purview?

Accepted Answer

While the Federal Trade Commission (FTC) has played an important role in the federal government’s law enforcement efforts since its establishment in 1914, its role has expanded significantly in recent years. With its focus on consumer protection and preventing anti-competitive practices in the U.S. markets, the activity falling within the FTC’s law enforcement jurisdiction has spiked following the turn of the century. The digital realm has transformed the FTC’s purview, and the increasing number of new entrants into the U.S. markets combined with the rise of huge corporations with concentrated market power has forced the FTC to take an aggressive stance toward targeting all companies and individuals suspected of engaging in unfair, deceptive, and other illegal activities.

Question 2

What is the scope of the Federal Trade Commission's (FTC) law enforcement authority in relation to consumer protection and ensuring open and free competition, and why is it important for individuals and companies to hire an experienced FTC defense lawyer when facing scrutiny from the FTC?

Accepted Answer

The FTC’s law enforcement authority encompasses two extraordinarily broad areas of federal law: (i) consumer protection, and (ii) ensuring open and free competition. Within these areas, the FTC investigates individuals and companies for a multitude of different offenses—and the practicalities of the modern world mean that the goal posts are constantly shifting for both the FTC and the targets of its investigations. This makes defending against FTC investigations and allegations difficult; and, in order to mitigate their risk of facing substantial penalties, individuals and companies must engage an experienced FTC defense lawyer when facing scrutiny from the FTC.

Question 3

What are the advantages of hiring Oberheiden P.C.'s FTC lawyers, who have centuries of combined experience and a nationwide network of affiliated attorneys, to handle FTC investigations, cases, and proceedings?

Accepted Answer

At Oberheiden P.C., our FTC lawyers bring centuries of combined experience to representing individuals and companies in FTC investigations. Our practice is nationwide in scope, and we rely on a network of affiliated attorneys in major cities across the country to provide on-the-ground representation on an as-needed basis. With a defense team that includes former U.S. Attorneys, former Assistant U.S. Attorneys, and former white-collar prosecutors with the U.S. Department of Justice (DOJ), we offer deep insights into federal investigative and prosecutorial procedures, and we are able to hit the ground running when engaged to handle FTC investigations, cases, and proceedings.

Question 4

What is the process for the Federal Trade Commission's (FTC) investigations, and why is it important for individuals and companies to respond with a structured and strategic approach, even when an investigation begins informally?

Accepted Answer

The FTC conducts both informal and formal investigations. Most investigations begin informally, with the FTC typically making contact after reviewing publicly-available information or receiving a complaint from a private party (frequently a dissatisfied customer or disgruntled former employee). The FTC may also launch an investigation based on information received from another agency, such as the Federal Bureau of Investigation (FBI). In any case, although an investigation may begin informally, a structured and strategic response is necessary, as the investigation may become formal and present the risk for either civil or criminal charges.

Question 5

What methods does the Federal Trade Commission (FTC) use to gather evidence in formal investigations, and what challenges do individuals and companies face when responding to the FTC's requests for records and testimony?

Accepted Answer

In formal (or “full”) investigations, the FTC utilizes various means to gather evidence in support of civil or criminal charges. This includes the issuance of target letters, civil investigative demands (CIDs), and FTC subpoenas. The FTC may request voluminous records and testimony from multiple individuals, and it may or may not make clear specifically what allegations (or even what party or parties) are being targeted.

Question 6

What are the risks involved with facing an FTC investigation?

Accepted Answer

The risks involved with facing an FTC investigation are substantial. While the specific risks depend heavily upon the specific allegations at issue, FTC investigations can lead to both civil and criminal charges, and fines can easily climb into the hundreds of thousands, millions, or even tens of millions of dollars. In criminal cases, individuals can face multi-year prison sentences for aggravated identity theft, wire fraud, and other federal offenses.

Question 7

Should my company hire outside counsel to handle its FTC investigation?

Accepted Answer

Yes, without question. When facing an FTC investigation, it is imperative to respond with a proactive and strategic approach that is guided by experienced outside counsel. In addition to the FTC’s own highly-experienced agents, the FTC frequently collaborates with the DOJ, FBI, and other agencies in order to benefit from their resources and their agents’ expertise as well.

Question 8

Why is my company (or why am I personally) being targeted by the FTC?

Accepted Answer

There are a number of factors that can potentially trigger an FTC investigation. In many cases, the FTC launches inquiries based on information that is publicly available. In others, it relies on tips from private citizens or from other agencies. The FTC collects and analyzes an extraordinary volume of market data as well, and it also regularly initiates targeted inquiries based on the insights gained from data analytics.

Question 9

What are possible defense strategies in FTC investigations, cases, and proceedings?

Accepted Answer

Just as the potential penalties in FTC matters vary greatly depending on the specific allegations involved, possible defense strategies can vary greatly from one case to the next as well. Generally speaking, however, defenses in civil cases will need to focus on disputing the alleged unlawful activity itself—as lack of intent generally is not a defense to civil charges under federal law. In criminal cases, lack of intent may be asserted as a viable defense strategy, although it remains important to consider alternative defenses that focus on the objective elements of the allegations at hand.

Question 10

What are the possible outcomes of an FTC investigation?

Accepted Answer

Possible outcomes of FTC investigations include resolving the investigation without charges being filed, facing administrative enforcement proceedings, facing civil enforcement litigation, and facing a federal grand jury indictment as a precursor to criminal prosecution. In order to achieve a pre-charge resolution, it is necessary to engage experienced defense counsel promptly so that your (or your company’s) federal defense lawyers can engage with the FTC and work to steer the investigation toward a favorable outcome.

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John W. Sellers

Joanne Fine DeLena

Joe Brown

Amanda Marshall

Aaron L. Wiley

Roger Bach

Michael Koslow

Chris Quick

Kevin M. Sheridan

Ray Yuen

Dennis A. Wichern

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