Federal Trade Commission v. Response Makers, LLC

Filing 12

ORDER: The (Doc. 10 ) Report and Recommendation is adopted. No later than 10 days after the date this Order is filed, Petitioner shall serve a certified copy of this Order on Respondent or its counsel by personal service, or by certified or register ed mail with return receipt requested, or by overnight express delivery service. Petitioner shall file proof of service no later than 14 days after the date this Order is filed. No later than 10 days after service of this Order, Respondent Response M akers, LLC shall comply in full with Petitioner's Civil Investigative Demand and produce to Petitioner all responsive documents and information in compliance with the Civil Investigative Demand. Signed by Judge William Q. Hayes on 11/19/2010. (Per Order, a certified copy of this Order was sent to Petitioner; the certified copy was sent to AUSA Raven M Norris.) (mdc)

-BLM Federal Trade Commission v. Response Makers, LLC

Doc. 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 HAYES, Judge: 16 The matter before the Court is the Report and Recommendation for Order Requiring 17 Respondent to Fully Comply with Petitioner's Civil Investigative Demand ("Report and 18 Recommendation"), issued by Magistrate Judge Barbara L. Major. (ECF No. 10). 19 20 BACKGROUND On August 24, 2010, Petitioner Federal Trade Commission initiated this action by filing FEDERAL TRADE COMMISSION, vs. RESPONSE MAKERS, LLC, Petitioner, CASE NO. 10cv1768-WQH-BLM ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondent.

21 a "Petition of the Federal Trade Commission for an Order to Enforce a Civil Investigative 22 Demand" ("Petition"). (ECF No. 1). Petitioner seeks to enforce an administrative subpoena 23 against Respondent, Response Makers, LLC, pursuant to 15 U.S.C. §§ 56 and 57b-1, 28 U.S.C. 24 §§ 1337 and 1345, and Federal Rule of Civil Procedure 81(a)(5). Petitioner states that on July 25 28, 2010, it served a civil investigative demand on Respondent, which directed Respondent to 26 submit the response materials by August 4, 2010. Petitioner states that Respondent failed to 27 submit responses by the deadline or to object or petition the Petitioner to quash or limit the 28 civil investigative demand, as provided in 16 C.F.R. § 2.7(d)(1).
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Dockets.Justia.com

1

On August 31, 2010, the Magistrate Judge issued an Order to Show Cause Why

2 Respondent Should Not Fully Comply with Petitioner's Civil Investigative Demand. (ECF No. 3 7). The Order to Show Cause required Respondent to appear for a hearing on September 30, 4 2010 and to file, on or before September 16, 2010, "a brief providing legal and factual support 5 for its failure to comply with the FTC's civil investigative demand and/or the FTC's 6 procedures for seeking to quash or limit the civil investigative demand and explaining why this 7 Order To Show Cause should not be granted." Id. at 2. 8 On September 9, 2010, Petitioner filed a Declaration of Service, indicating that, on

9 September 3, 2010, Respondent was personally served with the Order to Show Cause and the 10 Petition. (ECF No. 8). 11 The docket reflects that Respondent failed to respond to the Order to Show Cause and

12 failed to appear for the September 30, 2010 hearing before the Magistrate Judge. 13 On October 5, 2010, the Magistrate Judge issued the Report and Recommendation.

14 (ECF No. 10). The Magistrate Judge stated: 15 16 17 18 19 20 21 22 IT IS HEREBY RECOMMENDED that the District Judge issue an order: (1) approving and adopting this Report and Recommendation, and (2) ordering Respondent Response Makers, LLC to comply in full with Petitioner's civil investigative demand and produce to Petitioner, within ten days of the date of the District Judge's final order, all responsive documents and information in compliance with the civil investigative demand.... IT IS FURTHER ORDERED that no later than October 29, 2010, any party to this action may file written objections with the Court and serve a copy on all parties.... IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later that November 5, 2010. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order.

23 Id. at 2-3 (citation omitted). 24 On October 15, 2010, Petitioner filed a Declaration of Service, indicating that

25 Respondent was personally served with the Report and Recommendation on October 12, 2010. 26 (ECF No. 11). 27 The docket reflects that Respondent failed to object or otherwise respond to the Report

28 and Recommendation.
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DISCUSSION The duties of the district court in connection with a report and recommendation of a

3 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). 4 The district judge must "make a de novo determination of those portions of the report ... to 5 which objection is made," and "may accept, reject, or modify, in whole or in part, the findings 6 or recommendations made by the magistrate." 28 U.S.C. § 636(b). 7 "The scope of the judicial inquiry in an ... agency subpoena enforcement proceeding is

8 quite narrow. The critical questions are: (1) whether Congress has granted the authority to 9 investigate; (2) whether procedural requirements have been followed; and (3) whether the 10 evidence is relevant and material to the investigation." E.E.O.C. v. Children's Hosp. Med. Ctr. 11 of N. Cal., 719 F.2d 1426, 1428 (9th Cir. 1983) (citations omitted). "If these factors are shown 12 by the agency, the subpoena should be enforced unless the party being investigated proves the 13 inquiry is unreasonable because it is overbroad or unduly burdensome." Id. (citations omitted). 14 Petitioner has authority to issue civil investigative demands or subpoenas, see 15 U.S.C.

15 § 57b-1(c)(1), and this Court has jurisdiction to enforce them, see 15 U.S.C. § 57b-1(e), (h). 16 Petitioner states that it is investigating whether Respondent "has engaged in acts or practices 17 in violation of ... the Fair Credit Reporting Act ..., or ... the [Federal Trade Commission Act] 18 ..., in connection with [Respondent's] marketing of `prescreened lists' containing, inter alia, 19 the names and contact information of consumers who meet certain criteria." (ECF No. 1-1 at 20 2). It is within Petitioner's authority to investigate acts and practices that may violate the 21 Federal Trade Commission Act. See F.T.C. v. Ken Roberts Co., 276 F.3d 583, 586-87 (D.C. 22 Cir. 2001). Petitioner has made a sufficient showing that its procedural requirements were 23 followed and that the materials sought would be relevant and material to Petitioner's 24 investigation. Respondent has failed to object to the Civil Investigative Demand, the Petition, 25 or the Report and Recommendation. After review of the Petition and the Report and 26 Recommendation, the Court finds that the Report and Recommendation should be adopted. 27 // 28 //
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CONCLUSION IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED. (ECF

3 No. 10). 4 IT IS FURTHER ORDERED that, no later than ten (10) days after the date this Order

5 is filed, Petitioner shall serve a certified copy of this Order on Respondent or its counsel by 6 personal service, or by certified or registered mail with return receipt requested, or by 7 overnight express delivery service. Petitioner shall file proof of service no later than fourteen 8 (14) days after the date this Order is filed. The Clerk of the Court shall send a certified copy 9 of this Order to Petitioner. 10 IT IS FURTHER ORDERED that, no later than ten (10) days after service of this Order,

11 Respondent Response Makers, LLC shall comply in full with Petitioner's Civil Investigative 12 Demand and produce to Petitioner all responsive documents and information in compliance 13 with the Civil Investigative Demand. 14 DATED: November 19, 2010 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge