DC Circuit Reaffirms Judicial Deference to an Administrative Agency’s Subpoena

In a recent opinion, the DC Circuit re-affirmed the high hurdle a target of an agency subpoena must jump in order to limit or quash the subpoena. In 2009, the Federal Trade Commission (FTC) launched an investigation into Church & Dwight Co. (C&D), the makers of Trojan brand condoms (and Arm & Hammer brand products), seeking to determine whether its sales and distribution policies aided the company’s market position (70%) for the sale of condoms in the US. In marketing its condoms, C&D offers retailers a discount based upon the amount of shelf space they devote to its condoms and other products, including such products as cat litter and toothpaste.

Pursuant to its rules, the FTC issued a “Resolution Authorizing Use of Compulsory Process in Nonpublic Investigation” in which it defined the scope of its investigation as “whether Church & Dwight, Co., Inc. has attempted to acquire, acquired, or maintained a monopoly… [by] conditioning discounts or rebates to retailers on the percentage of shelf or display space dedicated to Trojan brand condoms and other products distributed or sold by C&D.” The subpoena defined the “relevant area” as including both the United States and Canada, requiring production of documents from C&D’s Canadian subsidiary. The subpoena also included the standard FTC instruction that all “documents responsive to this request...shall be produced in complete form, unredacted unless privileged.”

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