Understanding the Meet and Confer Process for an FTC Civil Investigative Demand

Understanding the Meet and Confer Process for an FTC Civil Investigative Demand

When a company receives a civil investigative demand (CID) from the Federal Trade Commission (FTC), it triggers a legal obligation to respond. Failing to properly respond can lead to court-ordered enforcement and penalties. Therefore, it is critical for companies to understand the meet and confer process, which is a key part of appropriately responding to an FTC CID.

What is a Civil Investigative Demand?

A CID is an administrative subpoena used by the FTC to obtain information during investigations into potentially unfair or deceptive trade practices. CIDs allow the FTC to gather documents, written reports, answers to interrogatories, and oral testimony related to the investigation [22].

Purpose of the Meet and Confer

Recipients of an FTC CID are required to participate in a “meet and confer” with FTC staff within 14 days of receiving the CID. The meet and confer provides an opportunity to [6]:

  • Ask questions and get clarification about the investigation
  • Discuss objections to the CID
  • Propose modifications to reduce cost and burden
  • Negotiate the response schedule

Engaging with the FTC early is important for demonstrating good faith and can help reduce liability exposure [9].

What Gets Discussed

There are several key things that typically get discussed during the CID meet and confer [11]:

  • Nature of the investigation – The FTC may provide background on what practices or conduct triggered the investigation.
  • CID recipient’s role – Whether the recipient is a witness, suspect, or investigation target.
  • Legal protections – Discuss protections like attorney-client privilege or trade secrets that apply to any requested information.
  • Electronically stored information – Coordinate on the format and process for producing electronically stored documents and data.
  • Extensions or modifications – Propose narrowing requests or extending deadlines to reduce burden.
  • Production schedule – Agree on timeline for responding to the various CID specifications.

Preparing for the Meet and Confer

Properly preparing for the meet and confer is essential for making the most out of the opportunity. Important preparatory steps include [16]:

  • Assessing areas of internal concern related to the investigation
  • Identifying potentially burdensome CID requests
  • Developing an overall negotiation strategy
  • Crafting proposals to narrow requests or extend deadlines
  • Coordinating with legal, IT, and other internal teams to discuss responses

Working with an experienced FTC investigations attorney is highly recommended when preparing for a meet and confer.

After the Meet and Confer

Once the meet and confer is complete, the next steps are

  • Finalizing the production schedule
  • Collecting and reviewing potentially responsive documents
  • Producing documents and information on the agreed timeline
  • Answering any supplemental FTC requests
  • Submitting a white paper summarizing the production and advocating the company’s position

The meet and confer sets the framework, but fully responding to the substance of the CID remains critically important.

Consequences of Non-Compliance

If a company fails to properly meet and confer or respond to an FTC CID, the agency can seek court-ordered enforcement. Recent FTC enforcement actions for CID non-compliance include court orders, financial penalties, and requirements to comply with the original CID [19].

Getting Help Responding to an FTC CID

Given the complexity of FTC investigations and potential penalties, working with an attorney experienced in handling CIDs is highly advisable. Counsel can help with [24]:

  • Organizing a response team
  • Assessing areas of internal risk
  • Crafting negotiation positions
  • Avoiding non-compliance pitfalls

Navigating an FTC investigation can be complex, but taking advantage of the meet and confer and working with experienced counsel can help lead to the most favorable outcome.

For additional information on responding to an FTC CID, check out these helpful resources: