Preventing FTC Intimidation Tactics During Interviews

Preventing FTC Intimidation Tactics During Interviews

The Federal Trade Commission wields strong investigative powers when probing potential antitrust, consumer protection, or data privacy violations. FTC attorneys use interviews to gather facts from witnesses, including company employees. While firms must cooperate, counsel can take steps to prevent undue intimidation or coercion of interviewees.

FTC’s Broad Interview Authority

The FTC Act authorizes the Commission to conduct wide-ranging investigations using subpoenas, document requests, and interviews. During nonpublic probes, the FTC conducts voluntary interviews. However, if witnesses refuse to appear, the FTC can issue civil investigative demands (CIDs) compelling testimony.

Interviews often occur at the FTC’s headquarters. Sessions are transcribed or recorded. FTC attorneys lead the questioning, which can turn pointed regarding sensitive or problematic issues. Interviewees face legal jeopardy if they make false statements.

Potential for Intimidation Tactics

FTC interviews frequently involve rigorous, aggressive questioning aimed at uncovering misconduct. While appropriate zeal is expected, at times FTC attorneys may veer into intimidation tactics like:

• Threatening individual liability or charges, even without basis.
• Pressuring witnesses to turn against superiors.
• Mischaracterizing statements as admissions of guilt.
• Refusing to allow private counsel to clarify ambiguities.
• Showing anger or disrespect through words or actions.

Such tactics may coerce interviewees into making damaging admissions or concessions. While the FTC defends firm questioning as needed for truth-seeking, counsel must guard against crossing lines.

Preparing Witnesses to Avoid Intimidation

Smart preparation is key to keeping interviewees focused and unintimidated:

• Explain the FTC’s role and focus on factual inquiries.
• Review compliance policies and the topics likely to arise.
• Remind witnesses to listen carefully and answer only what is asked.
• Urge being truthful, calm, respectful, and confident.
• Caution against speculating, exaggerating, or lying.
• Stress admitting lack of knowledge when unsure of answers.

Confidence comes from understanding the process and providing honest recollections. Counsel should dispel misimpressions about assertiveness equating to wrongdoing.

Securing Fair Treatment During Interviews

Counsel can take proactive steps to secure proper conduct and prevent intimidation:

• Attend all interviews to provide support and objections.
• Request breaks if the pace becomes too rapid-fire.
• Raise privilege and confidentiality concerns when needed.
• Object to abusive, misleading, or badgering questions.
• Insist on clarifying vague or ambiguous questions.
• Stop the interview if treatment becomes truly egregious.

While the FTC controls the session, counsel has tools to redirect inappropriate questioning and give interviewees a chance to respond fairly.

Seeking Limits on Scope and Duration

Counsel can also seek reasonable guardrails around interviews:

• Limiting time to avoid marathon sessions.
• Restricting questions to pertinent subject matter.
• Opposing repetitive questions answered fully already.
• Preventing expansive sessions beyond the investigation’s scope.
• Barring questions focused on embarrassing, but irrelevant, conduct.

Courts recognize that agencies’ investigative powers are not “unbridled.” Counsel should not hesitate to argue for reasonable limitations.

Filing Petitions to Quash Overbroad CIDs

If negotiations fail, recipients can challenge civil investigative demands in court. Grounds include:

• Exceeding the FTC’s statutory authority.
• Lacking a valid purpose.
• Seeking irrelevant material.
• Imposing undue burdens compared to investigative needs.

Petitions to quash CIDs do not always succeed. But credible challenges can force the FTC to narrow interview topics or provide stronger justifications.

Coordination Between Company and Individual Counsel

Navigating FTC interviews requires close coordination between counsel for the company and for individual witnesses. A united front prevents mixed messages while still protecting distinct interests. Joint defense agreements can facilitate appropriate information sharing.

Company counsel must alert individual counsel if employees become potential targets. Individual counsel must guard against company counsel disclosing privileged discussions. Regular status conferences help align strategies and objections.

Declining Interviews or Asserting Privileges

In rare cases, refusing to appear may be warranted if the FTC exceeds lawful authority. Based on counsel advice, witnesses can also selectively assert privileges against self-incrimination or confidentiality. However, the FTC may compel testimony over objections if negotiations fail.

Pursuing Post-Interview Remedies

If intimidation occurs, counsel has options after interviews conclude:

• Submitting errata sheets to correct the record.
• Filing complaints regarding misconduct.
• Seeking protective orders limiting future testimony.
• Moving to suppress illegally obtained evidence.
• Pursuing sanctions against attorneys for abuse of process.

Documenting intimidation provides grounds for post-interview remedies to mitigate harm.

Avoiding Obstruction Charges

Counsel must zealously prevent intimidation, but not cross the line into obstruction. Potential risks include:

• Instructing false testimony or document destruction.
• Concealing, altering, or falsifying evidence.
• Making false statements to investigators.
• Pressuring witnesses not to cooperate.

Maintaining truthfulness and professionalism is vital. The FTC treats obstruction seriously, so counsel must act ethically and legally.

Conclusion

FTC interviews serve legitimate investigative purposes, but occasionally include overzealous tactics. With preparation and prudence, counsel can secure fair treatment, protect rights, and prevent undue intimidation of witnesses.

Asserting objections, focusing discussions, and creating a record for potential post-interview remedies help counteract misconduct. Coordination between company and individual counsel also promotes consistency. While always cooperating with lawful FTC inquiries, counsel should not hesitate to push back against truly unwarranted intimidation.