Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 89 • Actively monitor consumer complaints on company or social media sites, including so-called gripe sites, and the company’s Better Business Bureau web page. This applies to the company’s toll‑free number as well. Resolve complaints immediately. AGs regularly receive consumer complaints directly from their constituents, and complaints are also referred to them by other law enforcers like the Federal Trade Commission. AGs are more likely to act when there are numerous consumers complaining, especially if the company does not address the concerns. In addition, AGs often compare notes with colleagues in other states to find trends and identify potential multistate investigations, which can be tremendously expensive for companies to defend against. • Monitor the AGs to understand their enforcement priorities and their views on what conduct is prohibited by the statutes they enforce. AGs will very often be transparent about which conduct they are seeking to stop. Proactive engagement with the AGs can also be warranted, so that they understand your business practices and the steps you take to protect consumers. Preparing for and responding to an AG inquiry • Do your best to retain documents that demonstrate you are complying with state law and resolving consumer complaints diligently. • The moment you receive a state AG inquiry, begin preparing for litigation. Preserve relevant documents: distribute a document hold to all those in your company who may have responsive documents and to the company’s IT department. Clarify with the AG’s office your responsibilities for things such as document collection, electronically stored information (ESI) issues, custodians, search terms, document review, and timelines for completing production of documents. Increasingly, state AG offices question the use of computer‑assisted review. • Many AG offices expect a privilege log to be prepared and provided at the end of the document production. Treating the AG investigation like litigation can ultimately save time and money. • Know the state’s open record laws and negotiate a confidentiality agreement with the AG’s office to protect the company’s sensitive information. Also be aware that many states limit the time during which the recipient of a subpoena from an AG can initiate proceedings to quash. • If the request for documents is overbroad, negotiate a narrower scope. This will reduce the company’s response burden and may lower the cost of defending against and resolving the investigation. Experienced and well-connected state AG counsel can assist from the outset. • If your company faces a multi-state action, avoid playing “whack-a-mole” with potentially dozens of states (and the FTC, too). Multi-state actions are typically led by a smaller executive committee of state AGs who represent the other enforcers – focus your efforts there. Again, counsel with multi-state experience can be helpful to your company.