Subpoena Duces Tecum - Federal Trade Commission Hearings in Monopoly Actions

Federal Trade Commission Hearings in Monopoly Actions

Whenever the Federal Trade Commission (FTC) has reason to believe that any person has violated 15 USC section 13, 14, 18 or 19, it must issue and serve on that person and on the Attorney General of the United States, a complaint stating its charges in that regard. The notice shall also give a date for a hearing in the matter. Delivery of the subpoena duces tecum for production of documents may be done in person, or by certified letter. Receipt of the letter is considered proof of service.

Power to issue subpoenas is extended to Robinson–Patman Act cases of price-fixing and Clayton Act cases of unlawful acquisition.

A Federal District Court lacks jurisdiction to enjoin the Federal Trade Commission from proceeding in an investigation. It cannot stay (stop) a subpoena duces tecum to produce documents in the investigative stage. An injunction by a federal court does not have the power to restrain the FTC from enforcing an order requiring corporations to furnish reports and documents un 15 USC § 49. The only relief available to stop a demand for documents is to seek an action of compliance in mandamus by the Attorney General of the United States, or under 15 USC § 50 to enforce fines and forfeitures.

If the FTC institutes an adjudicative proceeding (a hearing), the person who originated the matter by complaining to the FTC is not a party to the action and does not have any control over it. The FTC may allow the complaining person to participate in the proceeding by virtue of 15 USC, section 45. This allows participation for good cause, either by counsel (lawyer) or in person. You cannot intervene in an FTC hearing, except by demonstrating that substantial issues of law or fact would not be properly raised and argued—and that these issues are important and immediate enough to warrant additional expenditure of FTC resources. This involvement can be enhanced by subpoena duces tecum.

Pre-hearing conferences are the norm. These are useful in:

• Clarifying or simplifying isses
• Amending pleadings
• Entering stipulations, admissions of fact, and contents and authenticity of documents
• Expediting discovery and presentation of evidence, including restriction of witnesses
• Matters subject to official notice that may be resolved by further production of documents related to the case

In general, pre-hearing conferences are not public. The FTC is not restricted by a rigid rule of evidence.