Christensen & Jensen assists companies and individuals with compliance, investigations, administrative proceedings, litigation, and appeals involving the Federal Trade Commission (“FTC”) and similar state agencies.
Knowing what the FTC expects from companies and individuals is sometimes difficult to understand. Occasionally, the FTC will issue clear guidelines, but at other times the FTC’s guidelines, while still helpful, are less than clear. In other instances the FTC opts to set case-by-case standards using expert witnesses to set forth what the FTC claims the law means. Other FTC standards can be extracted from Consent Decrees and stipulated injunctions, FTC workshops, presentations, and other conferences. Christensen & Jensen’s FTC compliance attorneys have experience in guiding companies and individuals through the FTC compliance promise and remain up to date on the latest developments in the law, so they can fully inform their clients regarding their compliance efforts.
Investigations/Responses to CIDs:
Sometimes the FTC will initiate an investigation or issue a Civil Investigative Demand (“CID) to a company or individual. An FTC investigation often begins informally, with the FTC responding to a direct inquiry from the Better Business Bureau, or perhaps performing “undercover buys” from a company or individual. However, in certain instances, an investigation may progress to a CID. A CID is similar to a subpoena, but it is more intrusive and without the court protections offered by a subpoena. Cooperation with the FTC during the CID process is very important, but remember that the FTC may use your CID responses against you, as well as your business associates, in later proceedings. Christensen & Jensen’s FTC investigations and CID attorneys have dealt directly with the FTC as part of its informal investigations and its issuance of CIDs, and have assisted companies and individuals in preparing their responses to a CID.
In certain FTC Act cases, the FTC will move for and obtain an asset freeze and appointment of a receiver. In most instances the FTC utilizes “friendly” receivers, meaning that, although the receivers are supposed to be neutral arms of the court, they are often times in the FTC’s corner. As a result, it is extremely important early on in the litigation process to oppose the appointment of a demonstrably biased receiver. This way, a company or individual can attempt to limit what businesses a receiver may shut down, or control how much a receiver is paid, which is paid by the company or individual, not the FTC. It is also important to limit the sharing of information between receivers and the FTC, which oftentimes is done outside the applicable Rules of Civil Procedure or other court protections for general civil discovery. Another area of concern for companies and individuals that have their assets frozen and a receiver appointed is determining what assets are, or are not, part of the receivership estate. In fact, receivers frequently seek orders retroactively in order to add assets to the receivership estate. Christensen & Jensen’s receivership and asset freeze attorneys have battled against a number of “friendly” receivers in seeking to make certain that the receivers comply with a court’s order setting forth the receiver’s duties, the receivers are not compensated beyond what is allowed, and that the receivership estate does not obtain assets that it is not supposed to.
Generally, most FTC disputes do not end up in court. Therefore, a company or individual that is the subject of an FTC dispute is usually best served by reaching a fair resolution with the FTC, or other state agency, and moving on. In a great number of instances, a company or individual can engage the FTC in one-on-one discussions or mediation regarding their dispute before it result in court action. Christensen & Jensen’s negotiation attorneys are adeptly skilled at negotiating with the FTC, and have extensive experience in dealing with the FTC on a one-on-one basis or through mediation to resolve disputes short of going to court.
Unfortunately, not all disputes with the FTC settle out-of-court. In these instances, the FTC may have made unreasonable demands on a company or an individual, including that the company or individual give up all of its assets, or that the FTC be granted the right to scrutinize the company or individual for the next 20 years, or that the company or individual must perform double blind studies regarding its product, which the law does not explicitly require otherwise. As a result, if negotiations with the FTC breakdown, the case must be defended. Christensen & Jensen’s litigation attorneys have vast experience litigating FTC cases, and can provide the necessary assistance as it related to cases alleging violations of FTC Act, Children’s Online Privacy Protection Act (COPPA), Telephone Consumer Protection Act (TCPA), Electronic Funds Transfer Act (EFTA), Telemarketing Sales Rule (TSR), Junk Fax Protection Act, and other laws enforced by the FTC or similar state agencies.
A separate and distinct issue involving the FTC is the FTC’s challenge to proposed mergers, especially those associated with healthcare mergers. Certain attorneys at Christensen & Jensen have experience in handling anti-trust related issues on the context of the FTC. The firm’s experience includes providing consultation and representation in matters involving the Clayton Act, Sherman Act, Hart-Scott-Rodino Act, and other laws.
FTC cases often involve numerous appealable issues, both during and after the FTC’s case, including the appeal of preliminary injunctions and their associated orders, summary judgments, and the overall amount of judgments. Christensen & Jensen has an exceptionally successful Appellate Practice Group in a wide range of areas, from commercial law to regulatory to criminal. In fact, Karra Porter is one of the leading appellate attorneys in the western United States, winning more than 80 percent of her appeals. As a result, Ms. Porter and the other appellate attorneys at Christensen & Jensen can assist with any appeal coming out of the litigation process with the FTC.
Representing “Relief Defendants”:
In addition to consulting and representing company and individuals involved in disputes with the FTC, Christensen & Jensen provides services to “relief defendants,” which the FTC has alleged received assets or money from a wrongdoer. These relief defendants often have no role in, or knowledge of, the alleged wrongdoing. Relief defendants have a legal right to defend not only their entitlement to the assets, but the underlying FTC Act violations as well. Christensen & Jensen’s relief defendant attorneys have represented a number of relief defendants that the FTC has sought to recoup assets or money from that the FTC alleges was obtained as the result of a company’s or individuals scheme to defraud or otherwise.
For more information on our FTC practice, please visit www.ftclaw.com.