Federal Trade Commission v. Church & Dwight Co.
747 F. Supp. 2d 3
D.D.C.2010Background
- FTC petitioned for an order enforcing a subpoena and CID issued in a nonpublic antitrust investigation of Church & Dwight regarding potential monopoly conduct in condoms.
- Investigation scope defined to determine exclusionary practices, including discounts/rebates linked to shelf space for Trojan condoms and other Church & Dwight products.
- C&D initially did not comply with the subpoena/CID deadlines and later produced a written response in September 2009.
- FTC notified deficiencies in C&D's response and set new deadlines; C&D sought to limit/quash to exclude Canada and confidential non-condom products.
- FTC denied the Canada and confidentiality limitations, and the petition to enforce was filed February 26, 2010.
- Court must decide whether Canadian documents are relevant and, if so, whether production is unduly burdensome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Canadian documents reasonably relevant to the FTC investigation? | FTC argues Canadian data illuminate factors affecting US market share. | C&D contends Canadian materials are outside the scope and burdensome. | Canadian documents deemed reasonably relevant; burden not shown to be undue. |
| Is production of Canadian documents unduly burdensome? | Burden minimal with search technologies; documents reasonably relevant. | Different Canadian systems and burdens of review make production onerous. | Burden not shown; propose proportionality and collaborative search approaches. |
| Should non-condom product information redacted from documents be treated differently? | Redactions should still yield reasonably relevant information about the investigation. | Non-condom product data irrelevant and should be redacted. | Redacted materials deemed sufficiently relevant; broad relevance to the investigation allowed. |
| Is FTC’s relevancy standard at pre-complaint stage same as post-complaint litigation? | FTC inquiry should not be limited by post-complaint standards. | Relevancy should be narrowly construed as in litigation. | FTC operates under broader scope; pre-complaint inquiry allowed with reasonably relevant materials. |
| Is C&D’s proposed in-camera review alternative appropriate? | Court should not adopt a complex in-camera scheme at this stage. | In-camera review is a reasonable mechanism to protect confidentiality. | Rejected; would inappropriately shift burden and delay investigation. |
Key Cases Cited
- FTC v. Texaco, 555 F.2d 862 (D.C. Cir. 1977) (scope of FTC subpoenas subject to 'reasonable relevance'; broad agency inquiry allowed)
- Morton Salt Co. v. United States, 338 U.S. 632 (U.S. 1949) (administrative investigation power differs from judicial enforcement; broad information gathering allowed)
- Invention Submission Corp. v. FTC, 965 F.2d 1086 (D.C. Cir. 1992) (agency language controls scope; deference to investigatory purpose)