§ 57b-1. — Civil investigative demands.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC57b-1]
TITLE 15--COMMERCE AND TRADE
CHAPTER 2--FEDERAL TRADE COMMISSION; PROMOTION OF EXPORT TRADE AND
PREVENTION OF UNFAIR METHODS OF COMPETITION
SUBCHAPTER I--FEDERAL TRADE COMMISSION
Sec. 57b-1. Civil investigative demands
(a) Definitions
For purposes of this section:
(1) The terms ``civil investigative demand'' and ``demand'' mean
any demand issued by the commission under subsection (c)(1) of this
section.
(2) The term ``Commission investigation'' means any inquiry
conducted by a Commission investigator for the purpose of
ascertaining whether any person is or has been engaged in any unfair
or deceptive acts or practices in or affecting commerce (within the
meaning of section 45(a)(1) of this title) or in any antitrust
violations.
(3) The term ``Commission investigator'' means any attorney or
investigator employed by the Commission who is charged with the duty
of enforcing or carrying into effect any provisions relating to
unfair or deceptive acts or practices in or affecting commerce
(within the meaning of section 45(a)(1) of this title) or any
provisions relating to antitrust violations.
(4) The term ``custodian'' means the custodian or any deputy
custodian designated under section 57b-2(b)(2)(A) of this title.
(5) The term ``documentary material'' includes the original or
any copy of any book, record, report, memorandum, paper,
communication, tabulation, chart, or other document.
(6) The term ``person'' means any natural person, partnership,
corporation, association, or other legal entity, including any
person acting under color or authority of State law.
(7) The term ``violation'' means any act or omission
constituting an unfair or deceptive act or practice in or affecting
commerce (within the meaning of section 45(a)(1) of this title) or
any antitrust violation.
(8) The term ``antitrust violation'' means--
(A) any unfair method of competition (within the meaning of
section 45(a)(1) of this title);
(B) any violation of the Clayton Act [15 U.S.C. 12 et seq.]
or of any other Federal statute that prohibits, or makes
available to the Commission a civil remedy with respect to, any
restraint upon or monopolization of interstate or foreign trade
or commerce;
(C) with respect to the International Antitrust Enforcement
Assistance Act of 1994 [15 U.S.C. 6201 et seq.], any violation
of any of the foreign antitrust laws (as defined in section 12
of such Act [15 U.S.C. 6211]) with respect to which a request is
made under section 3 of such Act [15 U.S.C. 6202]; or
(D) any activity in preparation for a merger, acquisition,
joint venture, or similar transaction, which if consummated, may
result in any such unfair method of competition or in any such
violation.
(b) Actions conducted by Commission respecting unfair or deceptive acts
or practices in or affecting commerce
For the purpose of investigations performed pursuant to this section
with respect to unfair or deceptive acts or practices in or affecting
commerce (within the meaning of section 45(a)(1) of this title); all
actions of the Commission taken under section 46 and section 49 of this
title shall be conducted pursuant to subsection (c) of this section.
(c) Issuance of demand; contents; service; verified return; sworn
certificate; answers; taking of oral testimony
(1) Whenever the Commission has reason to believe that any person
may be in possession, custody, or control of any documentary material or
tangible things, or may have any information, relevant to unfair or
deceptive acts or practices in or affecting commerce (within the meaning
of section 45(a)(1) of this title), or to antitrust violations, the
Commission may, before the institution of any proceedings under this
subchapter, issue in writing, and cause to be served upon such person, a
civil investigative demand requiring such person to produce such
documentary material for inspection and copying or reproduction, to
submit such tangible things, to file written reports or answers to
questions, to give oral testimony concerning documentary material or
other information, or to furnish any combination of such material,
answers, or testimony.
(2) Each civil investigative demand shall state the nature of the
conduct constituting the alleged violation which is under investigation
and the provision of law applicable to such violation.
(3) Each civil investigative demand for the production of
documentary material shall--
(A) describe each class of documentary material to be produced
under the demand with such definiteness and certainty as to permit
such material to be fairly identified;
(B) prescribe a return date or dates which will provide a
reasonable period of time within which the material so demanded may
be assembled and made available for inspection and copying or
reproduction; and
(C) identify the custodian to whom such material shall be made
available.
(4) Each civil investigative demand for the submission of tangible
things shall--
(A) describe each class of tangible things to be submitted under
the demand with such definiteness and certainty as to permit such
things to be fairly identified;
(B) prescribe a return date or dates which will provide a
reasonable period of time within which the things so demanded may be
assembled and submitted; and
(C) identify the custodian to whom such things shall be
submitted.
(5) Each civil investigative demand for written reports or answers
to questions shall--
(A) propound with definiteness and certainty the reports to be
produced or the questions to be answered;
(B) prescribe a date or dates at which time written reports or
answers to questions shall be submitted; and
(C) identify the custodian to whom such reports or answers shall
be submitted.
(6) Each civil investigative demand for the giving of oral testimony
shall--
(A) prescribe a date, time, and place at which oral testimony
shall be commenced; and
(B) identify a Commission investigator who shall conduct the
investigation and the custodian to whom the transcript of such
investigation shall be submitted.
(7)(A) Any civil investigative demand may be served by any
Commission investigator at any place within the territorial jurisdiction
of any court of the United States.
(B) Any such demand or any enforcement petition filed under this
section may be served upon any person who is not found within the
territorial jurisdiction of any court of the United States, in such
manner as the Federal Rules of Civil Procedure prescribe for service in
a foreign nation.
(C) To the extent that the courts of the United States have
authority to assert jurisdiction over such person consistent with due
process, the United States District Court for the District of Columbia
shall have the same jurisdiction to take any action respecting
compliance with this section by such person that such district court
would have if such person were personally within the jurisdiction of
such district court.
(8) Service of any civil investigative demand or any enforcement
petition filed under this section may be made upon a partnership,
corporation, association, or other legal entity by--
(A) delivering a duly executed copy of such demand or petition
to any partner, executive officer, managing agent, or general agent
of such partnership, corporation, association, or other legal
entity, or to any agent of such partnership, corporation,
association, or other legal entity authorized by appointment or by
law to receive service of process on behalf of such partnership,
corporation, association, or other legal entity;
(B) delivering a duly executed copy of such demand or petition
to the principal office or place of business of the partnership,
corporation, association, or other legal entity to be served; or
(C) depositing a duly executed copy in the United States mails,
by registered or certified mail, return receipt requested, duly
addressed to such partnership, corporation, association, or other
legal entity at its principal office or place of business.
(9) Service of any civil investigative demand or of any enforcement
petition filed under this section may be made upon any natural person
by--
(A) delivering a duly executed copy of such demand or petition
to the person to be served; or
(B) depositing a duly executed copy in the United States mails
by registered or certified mail, return receipt requested, duly
addressed to such person at his residence or principal office or
place of business.
(10) A verified return by the individual serving any civil
investigative demand or any enforcement petition filed under this
section setting forth the manner of such service shall be proof of such
service. In the case of service by registered or certified mail, such
return shall be accompanied by the return post office receipt of
delivery of such demand or enforcement petition.
(11) The production of documentary material in response to a civil
investigative demand shall be made under a sworn certificate, in such
form as the demand designates, by the person, if a natural person, to
whom the demand is directed or, if not a natural person, by any person
having knowledge of the facts and circumstances relating to such
production, to the effect that all of the documentary material required
by the demand and in the possession, custody, or control of the person
to whom the demand is directed has been produced and made available to
the custodian.
(12) The submission of tangible things in response to a civil
investigative demand shall be made under a sworn certificate, in such
form as the demand designates, by the person to whom the demand is
directed or, if not a natural person, by any person having knowledge of
the facts and circumstances relating to such production, to the effect
that all of the tangible things required by the demand and in the
possession, custody, or control of the person to whom the demand is
directed have been submitted to the custodian.
(13) Each reporting requirement or question in a civil investigative
demand shall be answered separately and fully in writing under oath,
unless it is objected to, in which event the reasons for the objection
shall be stated in lieu of an answer, and it shall be submitted under a
sworn certificate, in such form as the demand designates, by the person,
if a natural person, to whom the demand is directed or, if not a natural
person, by any person responsible for answering each reporting
requirement or question, to the effect that all information required by
the demand and in the possession, custody, control, or knowledge of the
person to whom the demand is directed has been submitted.
(14)(A) Any Commission investigator before whom oral testimony is to
be taken shall put the witness on oath or affirmation and shall
personally, or by any individual acting under his direction and in his
presence, record the testimony of the witness. The testimony shall be
taken stenographically and transcribed. After the testimony is fully
transcribed, the Commission investigator before whom the testimony is
taken shall promptly transmit a copy of the transcript of the testimony
to the custodian.
(B) Any Commission investigator before whom oral testimony is to be
taken shall exclude from the place where the testimony is to be taken
all other persons except the person giving the testimony, his attorney,
the officer before whom the testimony is to be taken, and any
stenographer taking such testimony.
(C) The oral testimony of any person taken pursuant to a civil
investigative demand shall be taken in the judicial district of the
United States in which such person resides, is found, or transacts
business, or in such other place as may be agreed upon by the Commission
investigator before whom the oral testimony of such person is to be
taken and such person.
(D)(i) Any person compelled to appear under a civil investigative
demand for oral testimony pursuant to this section may be accompanied,
represented, and advised by an attorney. The attorney may advise such
person, in confidence, either upon the request of such person or upon
the initiative of the attorney, with respect to any question asked of
such person.
(ii) Such person or attorney may object on the record to any
question, in whole or in part, and shall briefly state for the record
the reason for the objection. An objection may properly be made,
received, and entered upon the record when it is claimed that such
person is entitled to refuse to answer the question on grounds of any
constitutional or other legal right or privilege, including the
privilege against self-incrimination. Such person shall not otherwise
object to or refuse to answer any question, and shall not himself or
through his attorney otherwise interrupt the oral examination. If such
person refuses to answer any question, the Commission may petition the
district court of the United States pursuant to this section for an
order compelling such person to answer such question.
(iii) If such person refuses to answer any question on grounds of
the privilege against self-incrimination, the testimony of such person
may be compelled in accordance with the provisions of section 6004 of
title 18.
(E)(i) After the testimony of any witness is fully transcribed, the
Commission investigator shall afford the witness (who may be accompanied
by an attorney) a reasonable opportunity to examine the transcript. The
transcript shall be read to or by the witness, unless such examination
and reading are waived by the witness. Any changes in form or substance
which the witness desires to make shall be entered and identified upon
the transcript by the Commission investigator with a statement of the
reasons given by the witness for making such changes. The transcript
shall then be signed by the witness, unless the witness in writing
waives the signing, is ill, cannot be found, or refuses to sign.
(ii) If the transcript is not signed by the witness during the 30-
day period following the date upon which the witness is first afforded a
reasonable opportunity to examine it, the Commission investigator shall
sign the transcript and state on the record the fact of the waiver,
illness, absence of the witness, or the refusal to sign, together with
any reasons given for the failure to sign.
(F) The Commission investigator shall certify on the transcript that
the witness was duly sworn by him and that the transcript is a true
record of the testimony given by the witness, and the Commission
investigator shall promptly deliver the transcript or send it by
registered or certified mail to the custodian.
(G) The Commission investigator shall furnish a copy of the
transcript (upon payment of reasonable charges for the transcription) to
the witness only, except that the Commission may for good cause limit
such witness to inspection of the official transcript of his testimony.
(H) Any witness appearing for the taking of oral testimony pursuant
to a civil investigative demand shall be entitled to the same fees and
mileage which are paid to witnesses in the district courts of the United
States.
(d) Procedures for demand material
Materials received as a result of a civil investigative demand shall
be subject to the procedures established in section 57b-2 of this title.
(e) Petition for enforcement
Whenever any person fails to comply with any civil investigative
demand duly served upon him under this section, or whenever satisfactory
copying or reproduction of material requested pursuant to the demand
cannot be accomplished and such person refuses to surrender such
material, the Commission, through such officers or attorneys as it may
designate, may file, in the district court of the United States for any
judicial district in which such person resides, is found, or transacts
business, and serve upon such person, a petition for an order of such
court for the enforcement of this section. All process of any court to
which application may be made as provided in this subsection may be
served in any judicial district.
(f) Petition for order modifying or setting aside demand
(1) Not later than 20 days after the service of any civil
investigative demand upon any person under subsection (c) of this
section, or at any time before the return date specified in the demand,
whichever period is shorter, or within such period exceeding 20 days
after service or in excess of such return date as may be prescribed in
writing, subsequent to service, by any Commission investigator named in
the demand, such person may file with the Commission a petition for an
order by the Commission modifying or setting aside the demand.
(2) The time permitted for compliance with the demand in whole or in
part, as deemed proper and ordered by the Commission, shall not run
during the pendency of such petition at the Commission, except that such
person shall comply with any portions of the demand not sought to be
modified or set aside. Such petition shall specify each ground upon
which the petitioner relies in seeking such relief, and may be based
upon any failure of the demand to comply with the provisions of this
section, or upon any constitutional or other legal right or privilege of
such person.
(g) Custodial control of documentary material, tangible things, reports,
etc.
At any time during which any custodian is in custody or control of
any documentary material, tangible things, reports, answers to
questions, or transcripts of oral testimony given by any person in
compliance with any civil investigative demand, such person may file, in
the district court of the United States for the judicial district within
which the office of such custodian is situated, and serve upon such
custodian, a petition for an order of such court requiring the
performance by such custodian of any duty imposed upon him by this
section or section 57b-2 of this title.
(h) Jurisdiction of court
Whenever any petition is filed in any district court of the United
States under this section, such court shall have jurisdiction to hear
and determine the matter so presented, and to enter such order or orders
as may be required to carry into effect the provisions of this section.
Any final order so entered shall be subject to appeal pursuant to
section 1291 of title 28. Any disobedience of any final order entered
under this section by any court shall be punished as a contempt of such
court.
(i) Commission authority to issue subpoenas or make demand for
information
Notwithstanding any other provision of law, the Commission shall
have no authority to issue a subpoena or make a demand for information,
under authority of this subchapter or any other provision of law, unless
such subpoena or demand for information is signed by a Commissioner
acting pursuant to a Commission resolution. The Commission shall not
delegate the power conferred by this section to sign subpoenas or
demands for information to any other person.
(j) Applicability of this section
The provisions of this section shall not--
(1) apply to any proceeding under section 45(b) of this title,
any proceeding under section 11(b) of the Clayton Act (15 U.S.C.
21(b)), or any adjudicative proceeding under any other provision of
law; or
(2) apply to or affect the jurisdiction, duties, or powers of
any agency of the Federal Government, other than the Commission,
regardless of whether such jurisdiction, duties, or powers are
derived in whole or in part, by reference to this subchapter.
(Sept. 26, 1914, ch. 311, Sec. 20, as added Pub. L. 96-252, Sec. 13, May
28, 1980, 94 Stat. 380; amended Pub. L. 103-312, Sec. 7, Aug. 26, 1994,
108 Stat. 1693; Pub. L. 103-438, Sec. 3(e)(2)(B), Nov. 2, 1994, 108
Stat. 4598.)
References in Text
The Clayton Act, referred to in subsec. (a)(8)(B), is act Oct. 15,
1914, ch. 323, 38 Stat. 730, as amended, which is classified generally
to sections 12, 13, 14 to 19, 20, 21, and 22 to 27 of this title, and
sections 52 and 53 of Title 29, Labor. For further details and complete
classification of this Act to the Code, see References in Text note set
out under section 12 of this title and Tables.
The International Antitrust Enforcement Assistance Act of 1994,
referred to in subsec. (a)(8)(C), is Pub. L. 103-438, Nov. 2, 1994, 108
Stat. 4597, which is classified principally to chapter 88 (Sec. 6201 et
seq.) of this title. For complete classification of this Act to the
Code, see Short Title note set out under section 6201 of this title and
Tables.
Prior Provisions
A prior section 20 of act Sept. 26, 1914, ch. 311, was renumbered
section 24 and is classified to section 57c of this title.
Amendments
1994--Subsec. (a)(2). Pub. L. 103-312, Sec. 7(a)(1), inserted before
period at end ``or in any antitrust violations''.
Subsec. (a)(3). Pub. L. 103-312, Sec. 7(a)(2), inserted before
period at end ``or any provisions relating to antitrust violations''.
Subsec. (a)(7). Pub. L. 103-312, Sec. 7(a)(3), inserted before
period at end ``or any antitrust violation''.
Subsec. (a)(8). Pub. L. 103-438 amended par. (8) generally. Prior to
amendment, par. (8) read as follows: ``The term `antitrust violation'
means any unfair method of competition (within the meaning of section
45(a)(1) of this title), any violation of the Clayton Act, any violation
of any other Federal statute that prohibits, or makes available to the
Commission a civil remedy with respect to, any restraint upon or
monopolization of interstate or foreign trade or commerce, or any
activity in preparation for a merger, acquisition, joint venture, or
similar transaction, which if consummated, may result in such an unfair
method of competition or violation.''
Pub. L. 103-312, Sec. 7(a)(4), added par. (8).
Subsec. (c)(1). Pub. L. 103-312, Sec. 7(b)(1), inserted ``or
tangible things'' after ``control of any documentary material'', ``or to
antitrust violations,'' after ``section 45(a)(1) of this title),'', and
``to submit such tangible things,'' after ``copying or reproduction,''.
Subsec. (c)(4) to (14). Pub. L. 103-312, Sec. 7(b)(2), added pars.
(4) and (12) and redesignated former pars. (4) to (10), (11), and (12)
as (5) to (11), (13), and (14), respectively.
Subsec. (g). Pub. L. 103-312, Sec. 7(c), inserted ``, tangible
things'' after ``documentary material''.
Subsec. (j)(1). Pub. L. 103-312, Sec. 7(d), inserted before
semicolon at end ``, any proceeding under section 11(b) of the Clayton
Act (15 U.S.C. 21(b)), or any adjudicative proceeding under any other
provision of law''.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-312 applicable only with respect to
compulsory process issued after Aug. 26, 1994, see section 15(d) of Pub.
L. 103-312, set out as a note under section 45 of this title.
Effective Date
Section effective May 28, 1980, see section 23 of Pub. L. 96-252,
set out as an Effective Date of 1980 Amendment note under section 45 of
this title.
Section Referred to in Other Sections
This section is referred to in section 57b-2 of this title; title 44
section 3518.
