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The Federal Trade Commission (FTC) relies heavily on information requests to conduct investigations into potential violations of consumer protection and antitrust laws. The FTC has two main investigative tools at its disposal – subpoenas and civil investigative demands (CIDs). While subpoenas and CIDs serve similar functions, there are some key differences businesses should understand.
Subpoenas – Allow the FTC to compel testimony and the production of documents, tangible things, and other information. Subpoenas are issued under the FTC Act’s Section 9 authority and are used for antitrust investigations.
Civil Investigative Demands (CIDs) – Function like administrative subpoenas to collect information related to investigations. CIDs are authorized under Section 20 of the FTC Act and are used for consumer protection inquiries.
Both subpoenas and CIDs are legally enforceable demands. If the recipient fails to comply, the FTC can petition federal courts to order compliance.
1. Purpose and Scope
The purpose and scope differs between subpoenas and CIDs:
So subpoenas have a narrower purpose tied to antitrust enforcement. CIDs encompass a broader range of consumer protection issues.
2. Information Obtainable
Subpoenas and CIDs can demand similar information like documents, tangible things, and testimony.
But CIDs provide more flexibility to require:
So the FTC has expanded options when using CIDs to gather details relevant to an investigation.
3. Basis for Issuance
There is a small but meaningful difference in the basis for issuing subpoenas vs. CIDs:
So there is an extra procedural step for subpoenas that offers more oversight and accountability.
4. Meet and Confer Requirement
The FTC Act mandates a “meet and confer” process for CIDs but not for subpoenas.
CID recipients can discuss modifying the demand with staff at an informal meeting.
There is no meet and confer requirement for subpoenas.
This gives CID respondents more opportunity to narrow the scope.
5. Judicial Enforcement
Both subpoenas and CIDs are judicially enforceable if the recipient fails to comply.
For subpoenas, Section 9 expressly authorizes federal court orders to compel responses.
For CIDs, Section 20 states district courts can order compliance.
In both cases, noncompliance can spur contempt proceedings and penalties.
6. Ability to Petition to Limit/Quash
Recipients can file petitions challenging both subpoenas and CIDs to limit or quash them, but the standards differ:
So both have time limits, but courts apply different standards.
Responding to Subpoenas vs CIDs
Given the potent investigative power behind subpoenas and CIDs, targets should consult experienced legal counsel when served. Key tips include:
Meet and Confer
Conduct Internal Review
Petition to Limit, If Necessary
Submit Timely and Complete Responses
Consequences of Noncompliance
Failing to adequately respond to an FTC subpoena or CID can spur legal action in federal court leading to substantial penalties:
So while subpoenas and CIDs differ in certain respects, it is essential to take both seriously given the FTC’s broad authority to enforce these demands.
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