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Challenging Overly Broad FTC Subpoenas and CIDs

March 21, 2024 Uncategorized

Challenging Overly Broad FTC Subpoenas and CIDs

The Federal Trade Commission (FTC) has broad authority to investigate potential violations of consumer protection and antitrust laws. This includes the power to issue subpoenas and civil investigative demands (CIDs) to obtain information and documents from companies and individuals. However, recipients can challenge subpoenas or CIDs that are overly broad or unduly burdensome. This article examines strategies for challenging excessive FTC demands for information.

FTC’s Investigative Powers

The FTC relies heavily on subpoenas and CIDs to conduct investigations. Subpoenas are used for antitrust inquiries, while CIDs are used for consumer protection matters [6]. Both allow the FTC to compel the production of documents, written reports, and oral testimony. Failure to fully comply can lead to court enforcement actions and penalties for contempt of court [2].

Recipients of FTC subpoenas or CIDs have the right to challenge demands that are overly broad or unduly burdensome. Common arguments include [3]:

  • The subpoena or CID seeks information beyond the scope of the FTC’s investigation
  • Compliance would be unreasonably costly or difficult
  • The time period or geographic scope is excessive
  • Definitions or instructions are vague or ambiguous

Before seeking to quash or modify a subpoena or CID in court, the best practice is to meet and confer with FTC staff to try to resolve disagreements. The FTC typically only seeks judicial enforcement after good faith negotiations fail [2].

Petitioning to Limit or Quash

If informal resolution is unsuccessful, recipients can file a petition to limit or quash the subpoena or CID. This involves submitting a formal request to the FTC and laying out legal arguments for why compliance should not be compelled. Common grounds include [4]:

  • The subpoena or CID is overbroad and seeks irrelevant information
  • Compliance would be unduly burdensome
  • Privileged information is being sought
  • The investigation exceeds the FTC’s authority

When assessing petitions to quash, courts weigh the burden on the recipient against the government’s need for the information. Parties seeking to modify or quash an FTC subpoena or CID have the burden of showing that compliance would be unreasonable or oppressive [5].

To improve the chances of success, the petition should be specific about the nature and extent of the burden involved. Supporting affidavits or other evidence is helpful. It also helps to propose a reasonable modification, such as limiting the date range or narrowing document requests.

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Christine Twomey
2024-03-21
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Guerline Menard
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2024-03-18
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2024-03-15
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Taïko Beauty
2024-03-15
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!
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2024-03-12
Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.
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2024-03-12
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2024-02-28
Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.
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divesh patel
2024-02-24
I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Strategies for Challenging Overbreadth

One of the most common grounds for challenging an FTC subpoena or CID is that the requests are overbroad and seek irrelevant information. Here are some strategies for making this argument:

  • Explain how the definitions or instructions encompass information not pertinent to the investigation
  • Identify document requests that are not tailored to issues within the stated scope of the inquiry
  • Note where the geographic or time period parameters sweep in unrelated material
  • Detail the burden of searching for and producing information of limited probative value
  • Propose alternative language to narrow the requests

Pointing out these deficiencies and suggesting fixes can demonstrate overbreadth. However, courts give the FTC leeway, so the subpoena or CID must clearly exceed bounds to be quashed on this basis.

Challenging Undue Burden

Recipients can also argue that complying with the subpoena or CID would impose an undue burden. Considerations include [1]:

  • The breadth of information sought
  • The time period covered
  • The accessibility of records
  • The types of analysis required
  • The business disruptions compliance would cause

The petition should explain these factors and provide supporting evidence, like affidavits, specific cost estimates, or examples of business impacts. Proposing a reasonable modification, such as additional time, can also help.

Other Defenses

In addition to overbreadth and undue burden, other potential defenses include:

  • Privileged information: Subpoenas and CIDs cannot compel the disclosure of information protected by attorney-client privilege or work product doctrine. Recipients can file a petition arguing that certain requests or definitions improperly sweep in privileged material. However, blanket claims of privilege without supporting evidence are disfavored. The petition should identify specific privileged documents and explain why privilege applies [4]. Proactively engaging with FTC staff to clarify scope and work out privilege issues is recommended [5].
  • Confidential business information: Recipients can argue that complying would force the disclosure of sensitive confidential business information that could aid competitors. However, this is difficult to establish unless the requests target core trade secrets with no relevance to the investigation [6].
  • Outside the statute of limitations: Seeking documents or information from too far in the past can potentially exceed the FTC’s authority. But limits are often tolled or difficult to establish definitively at the investigative stage.
  • Lack of jurisdiction: The recipient can argue that the FTC lacks jurisdiction over them or the subject matter. However, the FTC is usually given deference on jurisdictional questions at the pre-complaint phase.
  • Unreasonable duplication: If the FTC issues multiple subpoenas or CIDs seeking the same information from different parties, recipients can petition to quash duplicative requests.
  • Procedural deficiencies: Failure to follow proper procedures, such as not allowing reasonable time for compliance, may provide grounds for a successful petition.

While these defenses can potentially limit subpoenas and CIDs, the FTC has broad investigative authority. Courts tend to err on the side of allowing the FTC access to information. As a result, quashing demands in their entirety is very difficult. The best approach is usually to narrow the requests rather than rejecting them outright.

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