FTC Subpoena Defense
Our Federal Defense Lawyers Explain What You Need to Know if You’ve Received an FTC Subpoena
If you have received a subpoena from the U.S. Federal Trade Commission (FTC), it is important to understand what this means—and what it doesn’t. Responding to an FTC subpoena requires a strategic approach, and formulating an effective strategy starts with understanding your (or your company’s) posture in the FTC’s investigation.
But, regardless of whether the FTC has subpoenaed you (or your company) as a suspect, target, or witness, you need to take the Commission’s subpoena seriously. Failure to comply can lead to enforcement action, while providing too much information can lead to unnecessary risks. At Oberheiden P.C., we have extensive experience in the area of FTC subpoena defense. We can help you make informed decisions, deal with the FTC on your behalf, assist with preparing your (or your company’s) subpoena response, and serve as defense counsel in the FTC’s investigation if necessary.
What To Know When You Receive an FTC Subpoena
Being served with an FTC subpoena is a serious matter—and the FTC wants you to know it. In an article titled, The FTC takes its subpoenas and CIDs seriously – and you should, too, the Commission writes:
“The FTC’s ability to obtain information through subpoenas and civil investigative demands (CIDs) is critical to the task of investigating potential law violations. . . . These requests are legally enforceable demands, and recipients of subpoenas or CIDs need to take their obligation to comply seriously. We expect all companies and individuals who receive compulsory process to respond completely and in a timely manner, or to disclose quickly and candidly any obstacles to full compliance.”
As the article goes on to explain, subpoena recipients that fail to respond appropriately can face swift action and severe penalties. These, of course, are in addition to any penalties that may apply based on the allegations in the underlying FTC investigation. In the event of non-compliance, “the FTC’s Office of General Counsel may get involved in order to obtain judicial enforcement of the Commission’s process,” and this can ultimately lead to a finding of contempt (which can carry criminal penalties).
Based on its desire to conduct efficient investigations, the FTC offers these “tips” to subpoena recipients:
- “Respond promptly to FTC staff upon receipt of a subpoena or CID.” While this is generally good advice, FTC subpoena recipients must work with their counsel to formulate their defense strategies, assess their compliance burdens, and carefully craft their responses before communicating with the FTC.
- “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.” Meeting and conferring with FTC staff can be an effective strategy for minimizing the burdens of complying with an FTC subpoena. With that said, subpoena recipients should be cautious about being “forthcoming about any concerns,” as doing so could potentially lead to unnecessary problems.
- “If you run into problems meeting deadlines, call staff immediately.” Here, too, while it is important to maintain a dialogue with the FTC, contacting the Commission’s staff without a specific goal and without a clear understanding of the risks involved is not advisable.
- “Understand that the FTC and its staff need to move investigations forward expeditiously.” This is important, and it is also telling of the FTC’s approach to subpoena enforcement. If a subpoena recipient does not either fully comply or negotiate a mutually agreeable revision to the subpoena’s timeline or scope (or successfully challenge the subpoena in court), the FTC’s response can be immediate and severe.
- “Abide by Commission orders promptly.” While subpoena recipients should promptly comply with the FTC’s lawful orders, it is imperative to seek counsel and make informed decisions based on the advice of an experienced FTC defense lawyer.
What To Do After Receiving an FTC Subpoena
Given that responding to an FTC subpoena and failing to comply with a subpoena from the Commission both present risks, subpoena recipients need to engage defense counsel promptly. An informed and strategic response is critical, and FTC subpoena recipients must begin their response efforts immediately.
At Oberheiden P.C., we guide our clients through the entire FTC subpoena response process—from assessing the subpoena’s enforceability to executing a strategy to submit a timely response. Some of the key steps during this process include:
- Determining Our Client’s Role in the FTC’s Investigation – While all FTC subpoena recipients must be careful during the response process, recipients that are also suspects or targets have additional risks to consider. We work quickly to determine our client’s role in the FTC’s investigation so that we can advise and represent our client accordingly.
- Assessing the Legality of the Subpoena – While the FTC has broad authority to use subpoenas for investigative purposes, this authority is not absolute. If a subpoena oversteps the FTC’s bounds, determining appropriate next steps requires a careful assessment of all pertinent legal, factual, and practical considerations.
- Assessing the Scope of Our Client’s Compliance Burden – Along with assessing the subpoena’s legality, it is also important to assess the burdens it presents. Even if a subpoena is not unlawful, it will often be possible to work with FTC staff to gain a better understanding of the information they are seeking to collect and then limit the recipient’s response obligations accordingly.
- Working with the FTC as Warranted – In addition to negotiating the scope of the subpoena, it will often be beneficial to work with FTC staff in other ways as well. If cooperating with the FTC’s investigation is in your (or your company’s) best interests, our lawyers can serve as representatives and liaisons to steer the investigation toward an efficient and favorable resolution.
- Preparing and Submitting a Timely and Compliant Response – There are several critical steps involved in responding to an FTC subpoena. Along with identifying all relevant records, subpoena recipients must also be extremely careful to preserve the attorney-client privilege, and they must determine if any other privileges or protections apply as well. We work alongside our clients throughout the response process to ensure that they are making the right decisions and that their responses do not have unintended consequences.
FAQs: Responding to (and Defending Against) an FTC Subpoena
Can I Refuse to Comply with an FTC Subpoena?
Simply refusing to comply with an FTC subpoena is not advisable. The FTC pursues enforcement when necessary, and enforcement can lead to a finding of contempt. If you have received an FTC subpoena—whether in your individual capacity or as a corporate representative or records custodian—you should consult with a lawyer regarding your response obligation promptly.
What are the Consequences of Failing to Comply with an FTC Subpoena?
Failing to comply with an FTC subpoena can have severe consequences. The FTC can seek enforcement in federal district court, and this can lead to the issuance of a court order compelling compliance. At this stage, further non-compliance can lead to a finding of contempt—which can potentially be prosecuted as a criminal offense.
In addition, failing to fully comply with an FTC subpoena can lead to charges under 18 U.S.C. Section 1001. This federal statute prohibits willfully falsifying or concealing information during a federal investigation. Furthermore, even if the FTC does not pursue charges, non-compliance can raise red flags, and this can lead to further scrutiny and additional challenges during the investigative process.
Is it Possible to Challenge an FTC Subpoena?
It is possible to challenge an FTC subpoena in some circumstances. However, as an FTC subpoena is an administrative subpoena, the Commission has broad discretion to craft its subpoenas in support of its investigative efforts—and the federal courts will defer to the Commission’s investigative needs and expertise in most circumstances.
With that said, FTC subpoenas can go too far. For example, some of the potential grounds for challenging a subpoena from the commission include (i) showing that the subpoena seeks “protected” information; (ii) showing that the subpoena lacks a factual basis; and, (iii) asserting other objections to the subpoena’s validity. It should be noted, however, that even if a challenge is successful, this is likely to result only in a reduction in the scope of the subpoena rather than having the subpoena quashed entirely.
Do I Need a Lawyer If I Received an FTC Subpoena?
If you have received an FTC subpoena, you should consult with a lawyer as soon as possible. You will need to be very careful to protect yourself, and you will need to work with your lawyer to submit a timely and compliant response.
Do Companies Need to Engage Outside Counsel for FTC Subpoena Response?
Companies targeted with FTC subpoenas should also engage counsel promptly. The burdens of complying with an FTC subpoena can be substantial, and the risks of non-compliance can be severe. At Oberheiden P.C., we have extensive experience representing corporate subpoena recipients, and we have successfully guided numerous clients through the FTC investigation process.
Speak with an FTC Subpoena Defense Lawyer at Oberheiden P.C.
If you need to speak with an FTC subpoena defense lawyer, we encourage you to get in touch. To arrange a complimentary initial consultation as soon as possible, call 888-680-1745 or request an appointment online today.