Marketers that have received a Civil Investigative Demand (CID) from the Federal Trade Commission or a state attorney general related to a consumer protection matter typically have a number of questions about the process and what to expect. The following are some of the questions most commonly asked of FTC CID defense attorneys, followed by general answers that have been prepared by Hinch Newman in order to shed some light on the FTC’s consumer protection CID procedures. Hinch Newman's deep skill set across the digital marketing industry gives the firm a unique ability to address clients’ legal and business concerns, distinguishing it from other law firms.
Q: What is a Civil Investigative Demand?
- A: A CID is a kind of subpoena – a compulsory legal document enforceable in court that seeks documents or other information related to an FTC investigation.
Q: Why Does the FTC Issue CIDs?
- A: The FTC issues CIDs to obtain information from companies it thinks may have violated the law. The FTC also sometimes sends CIDs to obtain information from others who are not the subjects of investigation, but who may have information related to the subjects of ongoing investigations. A CID can be used to obtain documents and testimony. A qualified FTC defense attorney can communicate with FTC staff to determine the nature and purpose of the investigation.
Q: What are Investigation Triggers?
- A: Some common triggers that can lead to an investigation include consumer complaints on social media and/or with the BBB, state attorney general investigations, media reports, requests from consumer advocacy groups, requests from competitors and direct observation by the FTC.
Q: What is the First Thing You Should Do Upon Receipt of a CID?
- A: Consult with an FTC CID attorney. Do not attempt to liaise with FTC staff on your own. Your attorney will contact the FTC to arrange what is referred to as a “meet and confer” – an initial meeting to set the schedule for responding to the CID, preserve applicable objections and privileges, negotiate the scope of the CID, explain applicable burdens, obtain information regarding the FTC’s intentions and address other preliminary issues. Hinch Newman possesses considerable FTC investigation advocacy experience and has successfully navigated numerous government investigations on behalf of digital marketers.
Q: When Must the “Meet and Confer” Take Place?
- A: The “meet and confer” must take place no more than 14 days after you receive the CID.
Q: Does Receipt of a CID Mean That the FTC is Suing You?
- A: No. Some that receive CIDs are not the subjects of FTC investigation, but instead are third parties that have documents or other information that relate to others that are subjects of FTC investigations. Even if you are the subject of an FTC investigation, a CID is the first step in an investigation. In some instances, once FTC staff has reviewed the documents a company provides in response to a CID, and experienced FTC CID lawyer may be able to persuade the agency to close the investigation without further action. In other instances, FTC staff may approach the company about negotiating a possible legal settlement. If a company does not reach a settlement agreement, the FTC may decide to file a lawsuit. Because of the firm's extensive experience in regulatory matters, Hinch Newman is often able to resolve issues quickly and prevent them from becoming formal enforcement lawsuits. In the event that an enforcement action is initiated, the firm is uniquely qualified to provide strategic and aggressive defense.
Q: What Law Does the FTC Think Your Company Has Violated?
- A: The CID will identify the subject matter of the investigation and describe the nature of the conduct the FTC staff is investigating. In addition, the CID will cite the Federal Trade Commission Act or other laws or rules that may have been violated.
Q: What are the FTC’s Rules of Practice?
- A: The FTC’s Rules of Practice are published in the Code of Federal Regulations. Part 2 of the Rules, which deal with investigations and CIDs, is available online.
Q: How Can You Learn More About the Nature of the FTC’s Investigation?
- A: The first paragraph of the CID cover letter includes a description of the investigation. The nature of the investigation also is something that can be discussed at the “meet and confer.” Qualified defense counsel will help you respond appropriately, deliberately and strategically while seeking to position the matter for the best possible outcome.
Q: What Does the FTC Act Prohibit?
- A: Section 5(a) of the FTC Act provides that unfair or deceptive acts or practices in or affecting commerce are unlawful. Generally speaking, “deceptive” practices are defined as involving a material representation, omission or practice that is likely to mislead a consumer acting reasonably in the circumstances. An act or practice may be considered “unfair” if they cause or are likely to cause substantial injury to consumers which are not reasonably avoidable and not outweighed by countervailing benefits. The FTC enforces a number of other consumer protection statutes that prohibit specifically defined practices. These statutes generally specify that violations are to be treated as if they were “unfair or deceptive” acts or practices under Section 5(a) of the FTC Act.
Q: What if You Prefer Not to Respond to the CID?
- A: The FTC can go to court to ask a judge to require that you turn over documents or information. If you do not intend to comply with the CID, the FTC Rules of Practice provide that within 20 days of service you may file a petition to limit or quash. In other words, may ask that the CID be narrowed or withdrawn altogether. One of the FTC Commissioners will review your petition and will either grant the petition and limit or quash the CID, or deny the petition. The procedure is explained in the FTC’s Rules of Practice at 16 C.F.R. § 2.10. The FTC will not consider a petition to limit or quash unless you have already discussed your concerns at the “meet and confer.” If you plan to file a petition to limit or quash certain portions of the CID, you still must file a response to the other portions of the CID by the deadline. Petitions to limit or quash a CID – and the FTC decision – are public documents that will be placed on the FTC’s public record.
Q: Will the FTC Agree to Modify the CID?
- A: Potentially, yes. If handled properly and timely, the FTC may be agreeable to negotiating response deadlines and the scope of information requested. While strategically advocating for why enforcement is not warranted, Hinch Newman can assist with negotiating extensions of time so as to cause the least amount of business disruption. In addition to negotiating a "rolling" production schedule, the firm is often able to narrow, or even eliminate, various requests. On occasion, the FTC agrees to accepting narrative written responses, rather than documents. Issues such as overbreadth, indefiniteness, undue burden, business disruption and cost, relevance and privilege may also be useful when negotiating the scope of a CID. Be prepared to set forth how such objections satisfy applicable legal thresholds.
Q: Will the FTC Provide Deadline Extensions?
- A: Sometimes. CIDs have deadlines that companies are expected to meet. As long as the investigative process is moving in what the FTC considers to be a productive direction, it may, and often does, afford reasonable extensions of time.
Q: Will the FTC Consider Written Responses?
- A: Yes. In fact, an experienced FTC CID investigation and defense attorney will be able to prepare persuasive legal advocacy papers that address substantive legal issues, such as why there may have been no violation of the FTC Act and/or applicable guidelines. Such legal advocacy pieces are also critical storytelling components to responding to CIDs and establishing why there has been no wrongdoing and/or why enforcement is not warranted. Hinch Newman has achieved considerable success zealously advocating for clients that have received a CID.
Q: How Can You Minimize Disruption to Business Operations?
- A: If approached properly, qualified investigation defense counsel may be able to convince FTC staff to negotiate the scope of the requests and specifications, including the timing of production. Phased production, persuasive scope modification arguments and response limitation negotiation techniques should be deliberately addressed in order to minimize expenses and disruption to a recipient's day-to-day operations.
Q: Can You Meet With the FTC in Person to Discuss the Investigation?
- A: Yes. You and your attorney may request a meeting with the FTC to discuss the investigation and present applicable defenses. Depending upon the circumstances, meetings can take place with FTC staff, the Director of the Bureau of Consumer Protection and/or FTC commissioners.
Q: Does Receiving a CID Affect Your Document Retention Procedures?
- A: After you receive a CID, you must stop any routine procedures that would destroy documents that could reasonably relate to the investigation and you must take steps to maintain documents that are relevant to the investigation, regardless of whether you believe the documents are protected from discovery by legal privilege or some other reason.
Q: What Does the FTC do With Documents You Send?
- A: The FTC uses them to conduct its investigation and, if appropriate, in an FTC law enforcement action. It will not disclose them under the Freedom of Information Act. It will not tell consumers, competitors, private attorneys or members of the press about the investigation, although the agency may share documents where necessary with its experts and potential witnesses. And unless it uses the documents in an FTC action, it will not publicly disclose the documents – or even the existence of an investigation – without consent, except in response to a request from Congress or a Congressional committee or subcommittee, a request from a law enforcement agency for official law enforcement purposes, or as required by law. If the FTC does intend to use your documents in an FTC action, it will let you know in advance in case you decide to seek an order from a court to protect the documents from public disclosure.
Q: What Happens After You Send Documents in Response to the CID?
- A: FTC staff will review the documents and get back to your counsel after it has completed its investigation. It takes time to thoroughly evaluate the documents you sent and other information related to the investigation. The FTC officially states that it will reach out no later than six months after your responses are completed to provide a status update and to do so periodically after that.
Q: How Long Does the CID Investigation Process Take?
- A: It depends. It can take month or more than a year. It depends on a number of factors, including the scope of the investigation, third parties involved and your cooperation. Hinch Newman possesses a strong track record of resolving FTC investigations efficiently and cost-effectively so clients can get back to business.
Q: What are the Potential Outcomes of a CID Investigation?
- A: Generally speaking, the FTC will analyze the information collected during the investigation and then recommend to the Bureau of Consumer Protection that the investigation be closed or that an enforcement action is warranted. The firm has years of sophisticated, cutting-edge subject matter experience successfully resolving government investigations and enforcement actions on behalf of digital marketers.
Q: Will the FTC Close the Investigation and Walk Away?
- A: Sometimes. Experienced counsel may be able to persuade FTC staff and management, for example, that there has been no violation of applicable legal regulations, that any alleged issues were inadvertent and have been corrected, that enforcement is not in the public interest, that there exists no concrete consumer harm, and/or that the agency should exercise its prosecutorial discretion to decline to initiate a law enforcement proceeding. Hinch Newman's strong relationships with FTC staff and management, coupled with the firm's superior knowledge of substantive legal matter and procedural requirements, have successfully led to securing the outright closure of multiple investigations on behalf of clients.
Q: What if the FTC Believes That There is an Imminent Threat of Consumer Injury?
- A: When the FTC suspects that there is an imminent threat of significant consumer injury, it can seek immediate relief in court, for example, by filing a complaint for a permanent injunction, filing a motion for a temporary restraining order, requesting an asset freeze, requesting that a temporary receiver be appointed and seeking other equitable relief. In the event that FTC staff recommends that a lawsuit be pursued, it will typically send a written notification along with a draft complaint and proposed settlement agreement.
Q: How Can Hinch Newman Help?
- A: Hinch Newman is a precedent-setting FTC CID defense law firm, representing digital marketers in Federal Trade Commission investigations and litigating against the agency in deceptive advertising enforcement actions. The firm utilizes comprehensive substantive and investigative procedural knowledge to develop and implement strategic plans designed to defend companies in FTC investigations involving allegations of unfair or deceptive acts or practices, deceptive marketing practices, unfair data privacy practices and other violations of consumer privacy rights – all of which are FTC enforcement priorities. For more detailed answers to any questions you might have, to discuss state attorney general civil investigative subpoena procedures, or for an evaluation of your individual case, please contact Hinch Newman directly.
Informational purposes only. Not legal advice.