In this episode of "Clearly Conspicuous," consumer protection attorney Anthony DiResta discusses strategies and techniques for defending against an investigation by a federal or state consumer protection agency in the current political landscape.
He breaks the process into five phases:
1. understanding the landscape
2. discovery and information gathering
3. communication and relationship building
4. controlling the narrative
5. strategic resolution
Mr. DiResta emphasizes the importance of strategy, credibility and advocacy throughout the process, as well as securing counsel who will protect your interests while building rapport with government staff.
Listen to more episodes of Clearly Conspicuous here.
Podcast Transcript
Anthony DiResta: Good day, and welcome to another podcast of "Clearly Conspicuous." As we've noted in previous sessions, our goal in these podcasts is to make you succeed in this current regulatory and governmental environment, make you aware of what's going on with the federal and state consumer protection agencies and give you practical tips for success. As always, it's a privilege to be with you today.
Today, we discuss strategies and techniques for defending an investigation by a federal or state consumer protection agency, and we'll discuss this topic with the current regulatory environment in mind. Indeed, these investigations can be high stakes and intimidating. The government plays the role of the judge, the jury and the prosecutor, all wrapped up into one. But with the right approach, companies and executives can not only survive, they can sometimes even come out stronger.
Phase One: Understanding the Landscape
So let's begin. Essentially, there are five stages or phases. Let's go through each phase. Phase one is understanding the landscape. Agencies like the Federal Trade Commission or state attorneys general have very broad investigative powers. The process is not litigation in the traditional sense. It's investigative with fewer procedural protections. You have to recognize the imbalance here. The government controls the process, the deadlines and the expectations. That is why it is just essential to engage experienced counsel early, right at the get-go: lawyers who understand the culture of the staff, their expectations and the unspoken rules.
Phase Two: Discovery and Information Gathering
Rule number one is to be comprehensive. Producing incomplete discovery undermines credibility, and they get sources from other parties, so they know if you're hiding something. So develop an internal action plan, assemble custodians, identify data sources and implement search terms. Use privilege reviews carefully, but don't appear to be withholding without justification. The government looks at privilege logs very closely. And timeliness matters. Rolling productions can show good faith. The first impression you give the government through your discovery responses often sets the tone for the entire investigation.
Phase Three: Communication and Relationship Building
Communication is not just about compliance, it's about tone. Be respectful, responsive and professional in every single exchange. Develop a working partnership and treat the staff attorneys and investigators as decision makers who trust you, trust you must earn. Avoid hostility or posturing. The government expects cooperation, not confrontation. Counsel's role is to act both as a shield and as a bridge, protecting the client's interests while building credibility with the staff.
Phase Four: Controlling the Narrative
Facts alone, through a data or information dump, don't speak for themselves. White papers are critical. A well-written white paper helps frame the facts, highlights the evidence of good faith and provides legal arguments for closure or leniency. Use these white papers to tell the company's scriptory, its mission, its compliance efforts, its leadership, its contribution to consumers. White papers allow you to manage what information rises to the top in the agency's decision making. Think of white papers as advocacy documents that blend law, facts and persuasion. And don't wait until the very end of the discovery process to provide a white paper. They can be submitted strategically throughout the discovery process to appropriately spin the narrative required.
Phase Five: Strategic Resolution
Not all investigations end with a lawsuit or a settlement. Many close quietly if managed well. And I've had the privilege over the years to close many investigations by both the federal and state agencies. Leverage prosecutorial discretion. Highlight cooperation, remediation and consumer benefit. And importantly, corrective action taken during an investigation can be a huge positive. Such action does not constitute an admission of liability. Rather, it demonstrates the company's commitment to consumer welfare, which is at the core of the government's mission. Sometimes negotiated remedies are better than litigation, consent decrees, assurances of voluntary compliance. Counsel must weigh risk versus reputational harm while keeping long-term business strategy in view. After all, the ultimate goal is to maximize outcome and minimize damage.
Closing Thoughts
So, folks, here's the key takeaway. Defending a consumer protection investigation requires strategy at every single step: understanding the landscape, being comprehensive in discovery, building an effective working relationship with the government, controlling the narrative throughout the white papers and negotiating a meaningful and effective resolution. After all, companies and executives must have counsel with not only the legal expertise, but also the cultural awareness and diplomatic touch to guide them through. In this arena, strategy, credibility and advocacy make all the difference. The government expects cooperation, not confrontation. Counsel's role is to act both as a shield and as a bridge, protecting the client's interests while building credibility with the staff, as I've said before.
So please stay tuned to further programs as we identify and address the key issues and developments, and provide strategies for success. I wish you continued success and a meaningful day. Thank you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
