How to Handle FTC Information Requests and Subpoenas

| by Max Soni

Last Updated on: 18th September 2023, 05:21 pm

Dealing With FTC Requests: A Guide for the Perplexed

Getting hit with an information request or subpoena from the FTC can make anyone feel anxious. But try to stay calm – with the right help, you can handle it. This article explains FTC demands and provides some practical tips on responding.

FTC Requests: An Overview

The FTC is empowered to investigate potential violations of consumer and antitrust laws. To get information, they may send your company either an information request or a subpoena.

An information request, or Civil Investigative Demand (CID), is a formal demand for documents, data, or other materials relevant to an FTC probe. A subpoena requires you to hand over information and testify under oath. Subpoenas can be enforced by federal courts.

Both CIDs and subpoenas are powerful tools – you have to comply or else face penalties. But don’t panic! Work methodically with experienced counsel to respond properly.

Handling FTC Information Requests

If you get a CID from the FTC, here are some tips that may help:

• Carefully review the CID to understand what they want.
• Get your legal team together ASAP to coordinate response.
• Start gathering the requested documents and data quickly.
• Ask for more time if you need it to respond fully.
• Object if the CID seems overly broad or burdensome.
• Work with FTC cooperatively to provide information.
• Don’t destroy anything relevant.

Even if you disagree with the investigation, respond promptly and completely. Stonewalling can lead to court-ordered enforcement and penalties.

Complying With FTC Subpoenas

Subpoenas also require careful handling. Tips if you get one:

• Talk to a lawyer immediately about obligations.
• Get your response team together.
• Preserve all relevant materials.
• Start gathering responsive documents.
• Try negotiating if subpoena seems too broad.
• Prep witnesses thoroughly for testimony.
• Comply fully or risk contempt sanctions.

Don’t mess around with subpoenas – noncompliance can spur court action and steep fines.

Modifying Overbroad Requests

If an FTC request seems overly broad or vague, you can petition to limit or clarify it. Explain your specific concerns and propose reasonable modifications.

For instance, ask them to narrow the timeline, exclude certain docs, or clarify ambiguous instructions. Support your argument with legal citations.

The FTC may negotiate if you have a valid case. But they often resist attempts to restrict their investigative authority. Experienced counsel improves your odds of success.

Risks of Noncompliance

Not fully complying with FTC requests can spur enforcement litigation. For CIDs, they can seek a court order to compel compliance. Violating the order can trigger contempt sanctions like fines or even jail.

For subpoenas, the FTC can ask a federal court to hold you in contempt, imposing steep daily fines until you comply. Continued refusal may lead to imprisonment.

They can also refer noncompliance for criminal prosecution, potentially resulting in fines or incarceration.

FTC’s Formidable Enforcement Powers

The FTC often succeeds in getting federal courts to enforce their demands, thanks to broad authority. Lately they’ve aggressively pursued those not fully complying.

For instance, in 2022 they got court orders forcing two tech firms to comply with CIDs. And in 2021, a firm faced $50,000 daily fines for defying an FTC subpoena.

Moral of the story: Work to comply fully or modify requests, rather than flat out resisting. The consequences are severe.

Strategies for Resisting Subpoenas

If you decide to fight an FTC subpoena, understand they wield significant leverage. But some potential defenses to explore with experienced counsel:

• File a motion to quash based on privilege or undue burden.
• Claim trade secret protection for sensitive biz info.
• Dispute relevance of tangential requests.
• Argue constitutional rights violations.
• Seek a stay from a federal appeals court.

While uphill battles, skilled lawyers may succeed in narrowing or quashing overbroad subpoenas.

Negotiating in Good Faith

Before legal war, try negotiating cooperatively with the FTC. While protecting rights, seek to accommodate valid needs. Maintaining professional communications with staff is key.

Explain concerns and offer reasonable alternatives that still provide required info. Maybe negotiate rolling document productions. Mutually agreeable solutions tend to work out better for all than courtroom clashes.

Key Takeaways

In summary, tips for handling FTC requests:

• • Get experienced legal help immediately.
  • Assemble an efficient response team.
  • Act in good faith to comply with valid demands.
  • Petition to modify overbroad requests.
  • Act reasonably and transparently to comply with valid FTC demands.
  • Petition respectfully to modify overbroad or unreasonable requests.

When responding to an FTC information request or subpoena, it’s important to act in good faith while also protecting your rights. Seek to provide the FTC with information relevant to legitimate investigative needs, without compromising privileged or confidential materials.

If a request seems overly broad or unduly burdensome, petition the FTC politely to narrow or clarify it. Explain your specific concerns and propose reasonable modifications. Offer alternatives that still give them required information without imposing an unfair burden.

Cite relevant laws, regulations and legal precedents that support modifying the request. Point to previous instances where the FTC negotiated the scope of demands. Maintain a constructive, professional tone.

For example, if asked for 50 years of records, you might petition to reduce it to 10 years, providing legal and practical arguments. Or if the request encompasses sensitive trade secrets, propose excluding those while offering other data.

The goal should be complying with the spirit and intent of FTC demands, not evading them entirely. Demonstrating a willingness to cooperate fully with valid requests can help persuade the FTC to compromise on marginal or ambiguous ones. Keep communication open and above-board.

Asserting Privileges and Protections

If certain FTC requests implicate legal privileges or protections, raise objections cautiously and in good faith:

• • • Cite attorney-client privilege for confidential communications.
    • Note attorney work product covers litigation preparations.
    • Claim trade secret protection for highly sensitive business information.

Support objections with specifics on how the material falls under privilege. Provide detailed privilege logs. Offer alternatives like data anonymization or redaction that allow disclosure without waiving the privilege.

The goal is not to obstruct but to act ethically and legally. Transparency and cooperation will serve you better than hostility. With care and experienced counsel, you can respond properly to FTC demands.