1. Identify the Agency and the Demand
Receiving a demand does not establish an antitrust violation, and recipients may include customers, suppliers, or other third parties. The FTC uses both subpoenas and CIDs in competition investigations, with CID authority under 15 U.S.C. § 57b-1. For government investigations, first identify the instrument, requested information, and return date.
Preserve Relevant Records
Suspend deletion of relevant emails, messages, and business records held by affected employees. Identify custodians and systems, and document collection and review. Preserve the material without automatically freezing unrelated records.
2. FTC Deadlines Require Separate Checks
Under 16 C.F.R. § 2.7(k), consultation must occur within 14 days after receipt or before the petition deadline, whichever comes first. An authorized official may excuse consultation in writing or grant an extension of no more than 30 days.
Use the Conference to Support Specific Objections
Bring personnel who understand the relevant records and electronic systems. Support proposed changes to date ranges, custodians, or production formats with actual retrieval burdens. Missing the consultation deadline does not automatically eliminate all negotiation rights. However, the Commission will not consider a petition without a prefiling conference and ordinarily considers only issues raised there.
File a Petition before the Applicable Deadline
Under 16 C.F.R. § 2.10(a), a petition must reach the Secretary within 20 days after service. If the return date falls sooner, file before that date. Include supporting evidence and the required conference statement. Obtain any petition extension separately from a production extension.
A Petition Does Not Suspend Every Obligation
A timely petition stays the compliance period only for the challenged portions under § 2.10(b). Unchallenged requests remain subject to their deadlines. Petitions and orders become public records unless particular information receives confidential treatment. Address confidentiality before including sensitive supporting documents.
3. DOJ Demands Follow a Different Challenge Process
The DOJ issues civil antitrust CIDs under 15 U.S.C. § 1312. Challenges proceed in federal district court under § 1314(b), generally within 20 days after service or before the return date, whichever period is shorter. A named antitrust investigator may prescribe a longer period in writing. Negotiations do not replace deadline review.
Civil Process Does Not Resolve Criminal Exposure
The DOJ also prosecutes criminal antitrust offenses, including certain price-fixing and bid-rigging agreements. Receiving a civil CID does not guarantee that related conduct carries no criminal risk. When records suggest competitor coordination, criminal antitrust review should address interviews, potential conflicts, and disclosure risks.
4. Coordinate Privilege and State Responses
Distinguish privileged advice from responsive business information that is commercially sensitive. Trade secrets do not automatically justify withholding documents demanded by an agency. For withheld FTC material, 16 C.F.R. § 2.11 requires an adequately supported privilege claim. Investigations, compliance, and ethics review can also address records practices.
New York Subpoenas Need Their Own Analysis
The Donnelly Act's substantive antitrust prohibition appears in General Business Law § 340, while § 343 supplies the Attorney General's investigative authority. Section 343 permits subpoenas for relevant records and testimony and recognizes challenges under CPLR § 2304. Federal coordination does not replace state procedures. Track objections, production instructions, and approved changes separately for each demand.
Noncompliance Can Lead to Court Enforcement
If a company does not comply with an FTC CID, the Commission may seek a federal district court enforcement order under 15 U.S.C. § 57b-1(e). Disobeying a court order can lead to contempt consequences. Obtain written changes before relying on an altered scope or deadline.
02 Oct, 2026
