FTC Civil Investigative Demand (CID) Attorney

Effective FTC CID Lawyer Counsel for a Range of Investigatory Processes

If a consumer protection-related inquiry is triggered and the FTC opts not to seek immediate relief in court, it may contact a company formally to request information. A civil investigative demand (CID) or subpoena may be issued when the FTC believes that the company may be uncooperative.

While FTC CID attorneys can use either subpoenas or CIDs in antitrust matters, the agency is restricted to the use of CIDs in consumer protection matters.  A CID is similar to a subpoena in that it can be used to require the production of documentary materials or oral testimony.

A CID differs from a subpoena in that it may also require the recipient to file written reports or answers to interrogatories), and require the production of physical objects.  The FTC can also take testimony at investigational hearings, which are similar to depositions in civil litigation. The process is most often confidential.

Civil investigative demands may also be used to obtain verbal testimony from a witness.  Failing to respond to a CID can result in the initiation of formal court proceedings, including a motion to compel a response.

How Should You Respond to an FTC CID?

FTC CID attorney Richard Newman possesses years of experience defending marketers against high profile investigatory challenges asserted by regulatory agencies regarding advertising practices.  His knowledge and understanding of the internal organization of the FTC and personnel, agency policy and processes, and consumer protection laws and regulations allow him to:

• Submit white papers with supporting evidence
• Understand that nature of investigations
• Obtain information regarding the FTC's theories and concerns
• Approach FTC staff and develop relationships of trust
• Consider potential exposure
• Minimize the expense and disruption to a company’s daily operations
• Negotiate the scope and timing of requests
• Negotiate the use of sampling techniques
• Craft deliberate and persuasive responses to information requests
• Ensure that ongoing conduct does not violate the law
• Ensure that information provided remains confidential
• Protect a company’s long-term business and financial goals
• Evaluate whether to file a petition to quash

He is skilled at developing strategic alternatives to litigation and is able to quickly set the stage with the FTC for the remainder of process, including, but not limited to, laying the groundwork for why there has been no violation, providing substantive analyses of why the applicable marketing or advertising claims in question are substantiated, why laws and regulations relating to consumers’ privacy and security have been complied with, and why best practice requirements have otherwise been met.

Richard understands that each submission of information to FTC CID lawyers should be viewed as an opportunity to tell the company's story.  He possesses years of experience preparing thoughtful, persuasive and analytical responses to information requests designed to effectively communicate the lack of any wrongdoing.

What is an FTC Subpoena Attorney and How is a Subpoena Different from a CID?

Section 9 of the FTC Act provides the FTC with the authority to carry out investigations by giving the Federal Trade Commission the right to subpoena witnesses to testify and/or produce documents relating to any matter under investigation.  A subpoena is another form of compulsory process.  The scope of a CID is different from that of a subpoena.  Both may be used to obtain existing documents or verbal testimony.  However, CIDs are authorized pursuant to Section 20 of the FTC Act and may also require that the recipient “file written reports or answers to questions.”

The failure to comply with either can result in federal court intervention.  The Federal Trade Commission Act authorizes United States district courts “within the jurisdiction of which such inquiry is carried on” to enforce compliance with FTC subpoenas.  Violation of such an order is punishable as contempt of court.

Penalties for non-compliance can include, without limitation, criminal penalties and prison time can potentially be imnposed for those that fail to obey a court order enforcing compulsory process, or falsify reports or records or otherwise render erroneous or unavailable documents and information sought by FTC  compulsory process - including willfully refusing to submit documents.  Criminal prosecution is not appropriate where refusal to respond is in connection with a good faith challenge to a subpoena.

Important differences between FTC subpoenas and CID include, without limitation, the purposes and scope for which each are used, whether the parties are required to "meet and confer," and agency procedures necessary to initiate.

A seasoned FTC subpoena lawyer can provide additional informaiton regarding key diffferences and similarities between FTC subpoenas and civil investigative demands.

How a Skilled FTC Investigation Attorney Can Impact the Meet and Confer Process

Federal Trade Commisison Rule Rule 2.7 sets forth a mandatory “meet and confer” process in investigations.  In general, CIDs for the production of documentary material, including electronically stored information, must describe each class of material to be produced with sufficient definiteness and certainty as to permit such material to be fairly identified, and provide for a return date that allows the recipient a reasonable period of time within which the material demanded may be assembled and made available for inspection and copying or reproduction.  CIDs for answers to questions shall be drafted with sufficient definiteness and certainty.

Unless excused in writing or granted an extension, a recipient of an FTC compulsory process shall meet and confer with Commission staff within fourteen (14) days after receipt of process or before the deadline for filing a petition to quash, whichever is first, in order to discuss compliance and to address and attempt to resolve all issues, including issues relating to the CID specifications, protected status and the form and manner in which claims of protected status will be asserted.  The FTC will not consider petitions to quash or limit absent a pre-filing meet and confer session, and absent extraordinary circumstances will consider only issues raised during the meet and confer process.

When defending bet-the-company investigations, FTC investigations lawyer Richard Newman prevails in the meet and confer process using innovative procedural and legally substantive approaches designed to ease the burden on CID recipients and enhance chances of an optimal resolution, including, but not limited to, deducing whether the recipient is a target, propsing modifications, reducing the scope of overly broad and unduly burdensome agency requests, extending deadlines, simplifing the manner of production, and limiting the scope of information being sought.  Digital marketers should consider selecting an FTC investigation lawyer with both specific advertising law subject matter experience, as well as one that is capable of making logical inferences from the face of the CID.

Timely and properly approaching FTC staff counsel via an experienced FTC investigation attorney is of paramount importance when it comes to the FTC investigational process.

The first steps taken by recipients of FTC CIDs are critical t influencing ultimate resolution.  CID recipients that wish to position the investigation and response favorably should promptly consult with an FTC investigations attorney that is well-versed in federal investigations, that understands FTC practice. and the unique business models and challenges faced by digital advertisers.

Can an FTC CID Attorney Achieve Closure of Investigations?

If the FTC concludes that there has been no violation of law or that an enforcement action would not be in the public interest, the agency may close its investigation without seeking any remedy.  It may also request that the respondent modify its practices.

FTC CID lawyer Richard Newman’s unique experience advocating the position of his clientele, coupled with his ability to design and implement effective compliance procedures, have resulted in his securing the amicable and outright closure of numerous FTC investigations into the activities of marketers and lead generators - with no further action.

His experience and knowledge of the Federal Trade Commission’s fundamental thought and recommendation process when deciding to close matters without law enforcement, and ability to extract key practical lessons from recent regulatory guidance and case closures, set Richard apart from other FTC CID lawyers, and FTC compliance, investigation and defense attorneys.

How Can FTC CID Attorneys Assist With and Limit Document Production, Responses to Questions and Investigational Hearings?

In addition to the general requirements applicable to CIDs, a civil investigative demand seeking the production of documents or tangible things will set an initial "return date" for assembly and provision to FTC staff counsel.  Seasoned FTC CID attorneys such as Richard Newman are typically able to leverage knowledge of FTC investigative process policy, the law and a respondent's particular business operations in order to successfuly negotiate the scope of the FTC's requests, propose alternatives thereto, and a "rolling production" of documents and information so as to, in part, minimize operational interference and related costs associated with complying with compulsory investigative process.  Importantly, the production of documents and information must be accompanied by a sworn certificate which  states that all  documents or tangible things required by the civil investigative demand and in the possession, custody or control of the person or entity to whom the demand was directed have been produced.

Experienced FTC CID lawyers that focus on advertising law-related investigations are also well positioned to prepare witnesses for and negotiate the scope of "investigational hearings."  Investigational hearings may be conducted, without limitation, in the course of any investigation undertaken by FTC counsel, including rulemaking proceedings, inquiries initiated for the purpose of determining whether a recipient is complying with an FTC order or to monitor performance under, and compliance with, and a decree entered in lawsuits initiated by the United States under the antitrust laws.

Investigational hearings shall be conducted by one or more FTC staff counsel.  They are conducted under oath or affirmation, stenographically recorded and the transcript made a part of the record of the investigation.  Unless otherwise ordered by the FTC, investigational hearings are not be public.

CIDs requiring verbal testimony must provide a date, time and place for the taking of the testimony, as well as the topics to be inquired into.  Typically, only persons the witness, his/her attorney, FTC staff counsel taking the testimony and the stenographer may be present during the taking of testimony.

Testimony is taken under oath.  The witness or his/her attorney may object to any question and state the objection for the record when the objection is based on a right to refuse to answer under any constitutional or other legal right or privilege.  Otherwise, objections and refusals to answer are not permitted and no other participation by the witness’ attorney is allowed.  However, at the conclusion of the hearing, the witness’ counsel may request an opportunity for the witness to clarify answers for the record.  Once the transcript is prepared, the witness will be provided the opportunity to inspect the transcript and make any corrections.  The witness is entitled also to purchase a copy of the transcript unless, for good cause, the FTC decides that the witness should be limited to an inspection.

FTC CID Lawyers Counsel Recipients on Court Enforcement of Civil Investigative Demands

A petition to enforce a civil investigative demand may be filed with a United States district court whenever a person fails to comply therewith, includuing but not limited to, a refusal to surrender documents and/or information, and/or a refusal to answer verbal questions upon examination.  Such "Motions to Compel" are filed by the FTC  in the district where such person/entity resides, is found and/or transacts business.  Motions to Compel are required to be served upon the respondent against whom enforcement is sought.  In the event that such respondent is not located within the territorial jurisdiction of the United States, the existence of personal jurisdiction in the United States consistent with due process, permits the United States District Court for the District of Columbia to  order compliance that it would have if such person were personally within the jurisdiction of the court.

Respondents should note that penalties for non-compliance are not imposed until the court enforcement proceeding, pre-enforcement suits for declaratory judgment and injunctive relief regarding a civil investigative demand have been held to lack the necessary ripeness for adjudication.  Thus, an enforcement proceeding defendant must have exhausted administrative remedies by having raised its objections in a motion to quash filed with the Federal Trade Commission.  Consult with experienced FTC CID lawyers when considerint whether and when to file a motion to quash.

Federal district courts are bestowed subject-matter jurisdiction to hear enforcement petitions from the FTC or lawsuits by recipients of civil investigative demands.  Such courts possess the jurisdiction to enter orders that may be required to carry out the provisions of the civil investigative demand section of the FTC Act.

What is a Petition to Limit or Set Aside (Quash)?

Recipients of a civil investigative demand or other form of FTC compulsory process are permitted to file with the FTC a petition for an order modifying or setting aside the demand.  Such petitions must be filed within twenty (20) days of service of the demand or before the return date, if it is less than twenty days.

The petition must be accompanied by a statement from counsel for the petitioner that there have been good faith "meet and confer" sessions with FTC staff counsel intended to resolve oustanding issues.  CID recipients should note that the filing of a petition to limit or quash is a public document and often how the public learns of an ongoing investigation.  Once filed, the time for complying with the portion of the demand under challenge is suspended while the FTC considers and renders a decision.  In the event that any porton of the CID is modified or set aside, a new return date will be provided to the petitioner.    A new return date will also be provided in the event that the petition is denied.  During pendency of a petition, any portions of the CID which are not challenged are required to be responded to in a timely fashion and according to the agreed upon return date.

The failure to raise an issue during meet and confer proceedings with the FTC or within a motion to limit or quash may be deemed to have waived such arguments and issues.

An FTC CID Lawyer With an Insider’s Perspective

As an FTC defense lawyer, Richard maintains strong relationships with the FTC’s staff, the Bureau of Consumer Protection and other regulatory agencies, affording him uncommon insight into how and why they pursue enforcement and investigations.  He brings value to his clients by harnessing a rare insider’s perspective and experience responding to civil investigation demands.

Where possible, Richard also assists clients to develop working relationships with regulators.  He is known for his leadership and ability to resolve such matters amicably whenever possible.

He has defended a broad range of advertising and marketing clientele, including, but not limited to, financial services, lead generators, publishers, lead aggregators, affiliate networks and technology entrepreneurs.  Richard also possesses cutting-edge experience defending privacy and data security-related FTC inquiries.

FTC CID Attorney Interaction and Advocacy Before the FTC

Richard’s representations have included interaction and advocacy before the FTC.  As a result of his wide-ranging knowledge of advertising laws and regulations, he has served as defense counsel on some of the highest-profile FTC investigations.  With his depth of experience responding to and defending FTC CIDs, FTC subpoenas and investigations, Richard can handle almost any consumer protection and related regulatory matter.  He is adept in virtually all areas of marketing and advertising and remains current on the ever-changing consumer regulatory landscape, including on such hot-button issues as:

• Lead generation
• Native advertising
• Negative-option marketing
• Endorsements and Influencers
• Disclosures
• Telemarketing
• Privacy
• Data security
• Behavioral marketing

FTC CID lawyer Richard Newman’s first-hand knowledge and experience in the complex consumer regulatory arena enables him to develop and implement strategic approaches aimed at resolving government investigations and inquiries efficiently and cost-effectively.