Federal Trade Commission (FTC) Defense
The Federal Trade Commission (FTC) investigates a broad range of civil and criminal offenses involving unfair, deceptive, and anti-competitive commercial practices. Our federal defense lawyers bring centuries of combined experience to representing clients in FTC matters nationwide.
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.
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 experienced federal defense counsel when facing scrutiny from the FTC.
Federal Defense Lawyers for FTC Investigations, Cases, and Proceedings
At Oberheiden P.C., our federal defense 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.
Counsel for Informal and Formal FTC Investigations Targeting All Types of Offenses
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.
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.
Generally speaking, however, FTC investigations tend to focus on a handful of specific types of allegations. Recently, the FTC has been particularly active in pursuing cases involving:
Unfair, Deceptive, and Fraudulent Practices
As the nation’s chief consumer protection agency, much of the FTC’s effort is devoted to combatting unfair, deceptive, and fraudulent practices. The FTC routinely pursues investigations targeting allegations of relying on misinformation to mislead consumers. In particular, as the result of a high volume of activity, the FTC is currently targeting allegations of:
- Imposter Scams
- Collections Scams
- Telephone and Mobile Services Fraud (Phishing and Cold Call Scams)
- Financial and Investment Fraud Scams
- COVID-19 Scams
When pursuing companies, company owners, executives, and other individuals suspected of defrauding consumers, the FTC brings the full weight of its resources to bear. It also frequently works with other agencies such as the DOJ and the FBI to swiftly collect evidence and pursue legal action in order to put a stop to alleged fraudulent activities.
According to the FTC’s data, identity theft is the most-common complaint filed with the agency. As such, combatting identity theft is a top agency priority; and, here too, the FTC acts swiftly to investigate and prosecute individuals and companies suspected of engaging in unlawful activities.
Under federal law, aggravated identity theft (which is defined as identity theft committed in connection with wire fraud or another federal offense) is a crime that carries a mandatory consecutive prison sentence of two years. Aggravated identity theft can be charged under a broad range of circumstances, and individuals and companies targeted in FTC investigations must critically assess whether an aggravated identity theft charge may be on the table.
Consumer Data Privacy and Security
Consumer data privacy and security breaches also fall within the FTC’s jurisdiction, and they can lead to charges for both entities that commit breaches and companies that fail to take adequate steps to prevent them. For companies that experience data privacy and security breaches resulting in the exposure of consumer information, mitigating potential liability requires a swift and all-encompassing defense strategy.
Anticompetitive Mergers and Acquisitions
Corporate mergers and acquisitions that limit the number of competitive options that are available to consumers can – and often do – lead to FTC inquiries. When not planned and structured appropriately, mergers and acquisitions that raise antitrust concerns can expose companies and their owners and executives to substantial liability. We handle federal antitrust matters on behalf of public and private companies of all sizes, working directly with the FTC on behalf of our clients to achieve favorable resolutions.
Other Antitrust Violations
In addition to mergers and acquisitions, various other transactional and commercial activities can raise antitrust concerns as well. In addition to serving as antitrust compliance counsel to companies throughout the United States, we provide representation for FTC investigations, cases, and proceedings involving alleged antitrust violations as well.
Frequently-Asked Questions (FAQs): Facing an Investigation or Charges from the FTC
Q: What are the risks involved with facing an FTC investigation?
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.
Q: Should my company hire outside counsel to handle its FTC investigation?
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.
Q: Why is my company (or why am I personally) being targeted by the FTC?
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.
Q: What are possible defense strategies in FTC investigations, cases, and proceedings?
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.
Q: What are the possible outcomes of an FTC investigation?
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.
Schedule a Complimentary Consultation with an FTC Defense Lawyer at Oberheiden P.C.
If you need FTC defense counsel, we encourage you to contact us promptly for a complimentary consultation. To discuss our attorneys’ experience and your (or your company’s) possible defense strategies in confidence, call 888-680-1745 or get in touch with us online now.