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How to Challenge Questionable FTC Investigation Tactics
How to Challenge Questionable FTC Investigation Tactics
Dealing with an FTC investigation can be stressful and intimidating. You may feel like the cards are stacked against you. However, you have rights that can help you challenge questionable tactics.
Know Your Rights
The first step is understanding your rights during an investigation. This allows you to identify when the FTC oversteps.
- You have the right to remain silent. You can refuse to answer questions or provide documents. This is your Fifth Amendment right against self-incrimination[1].
- You have the right to legal counsel. Have a lawyer review subpoenas and be present during testimony[2].
- You can negotiate the scope of requests. A subpoena or CID can be overly broad. Push back on expansive demands[3].
- You can petition to quash subpoenas. If a subpoena is improper, your lawyer can challenge it in court[4].
Knowing your rights sets the stage to identify and combat questionable tactics.
Look Out for Common Questionable Tactics
Some concerning tactics frequently arise during FTC investigations:
- Fishing expeditions with broad subpoenas. The FTC cannot go on open-ended fishing expeditions[5].
- Misrepresenting targets as subjects. There are crucial differences between targets and subjects[6].
- Threatening individual liability. Personal liability generally requires personal knowledge and participation.
- Using press releases as punishment. Adverse publicity can improperly coerce cooperation.
- Withholding exculpatory evidence. FTC must disclose evidence that weakens its case.
Watch for these tactics, object when used against you, and don’t let them bully you into cooperation.
Challenge Overreaching Demands
One of the most common questionable tactics is overbroad subpoenas. Here are ways to challenge:
- Negotiate the scope. Offer to provide info on specific issues but object to fishing expeditions.
- Get an extension. Buy time to assess subpoena validity and prepare objections.
- Limit search terms. Argue terms are vague, ambiguous, overly broad.
- Object to timeframes. Challenge unreasonably long time periods.
- Protect privileged info. Shield documents covered by attorney-client privilege.
File a petition to quash if you can’t reach an agreement. Courts will block subpoenas that are “unduly burdensome.”
Refuse Improper Oral Demands
Investigators often make oral demands that exceed their authority. You can politely but firmly refuse:
- Decline interviews. You have the right to remain silent.
- Don’t identify employees. They can get their own counsel.
- Refuse phone calls. Require written requests.
- Protect documents. Don’t hand over files without a subpoena.
Tread carefully, as some courts have required cooperation with oral requests. But don’t be bullied into anything you’re uncomfortable with.
Combat Threats of Individual Liability
FTC may threaten executives and employees with personal liability. Fight back:
- Request evidence of personal knowledge and participation. FTC must prove this.
- Argue no direct participation. Many employees simply follow orders.
- Dispute awareness of wrongdoing. Mere position doesn’t equal knowledge.
- Claim good faith reliance on counsel. Following a lawyer’s advice negates intent.
Individual liability requires proof you knowingly and actively participated. Don’t let empty threats push you into a deal.
Push Back on Premature Settlement Demands
The FTC may pressure you to settle early. You have leverage to resist:
- Dispute liability. Refuse to settle before seeing evidence against you.
- Question penalty calculations. Don’t agree to fines without justification.
- Argue mitigating factors. Highlight facts that weaken their case.
- Offer alternatives. Propose less restrictive options.
- Threaten litigation. Be ready to take the fight to court.
Settlement should be on your timeline. Don’t rush into a bad deal.
File an FTC Complaint
If talks break down, submit a formal complaint to the FTC Inspector General:
- Cite improprieties and overreach.
- Provide documentation.
- Request an investigation into the attorneys.
- Ask that improper demands be withdrawn.
- Call for personnel actions if warranted.
A complaint can lead to disciplinary action against attorneys. Don’t let misconduct go unreported.
Conclusion
Challenging questionable FTC tactics takes courage, but you have rights. Refuse improper demands, push back on overreach, and don’t be afraid to complain. With persistence, you can force investigators to play by the rules.