Benco Dental Supply Co.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF BENCO DENTAL SUPPLY CO., HENRY SCHEIN, INC., AND PATTERSON COMPANIES, INC.

Docket No. 9379. Order, December 28, 2018 Order staying proceedings and extending deadlines in the event of a lapse in appropriations. ORDER REGARDING SCHEDULING In the event that a lapse in appropriations results in a shutdown of most Commission operations, the Commission hereby directs that this proceeding be fully stayed for the duration of the shutdown and for an additional five business days thereafter. The Administrative Law Judge shall have the discretion to adjust any applicable deadlines as warranted. Accordingly, IT IS SO ORDERED.

By the Commission.

RESPONSES TO PETITIONS TO QUASH OR LIMIT COMPULSORY PROCESS PHYSICIAN’S TECHNOLOGY, LLC FTC File No. 172 3129 – Decision, July 10, 2018 RESPONSE TO MARK YOUNG, SR.’S PETITION TO QUASH A CIVIL INVESTIGATIVE DEMAND DATED MAY 8, 2018 By SLAUGHTER, Commissioner:

Mark Young, Sr. (“Young”) has petitioned to quash a civil investigative demand for his testimony. For the reasons stated below, the Commission grants the petition in part with respect to Mr. Young’s first claim for relief and will modify the CID accordingly. In all other respects, the petition is denied.

I. Background On May 8, 2018, the Commission issued a civil investigative demand to Mr. Young as part of an investigation into the advertising and marketing of a product known as Willow Curve. Advertising for Willow Curve represents that it uses low levels of laser light to relieve pain, reduce inflammation in the body, and heal damaged joints. Mr. Young serves as the CEO of Western Communication. Western Communication is a full-service advertising agency that from 2013 to 2016 was involved in advertising Willow Curve on behalf of its primary distributor, a company called Physician’s Technology. Although the Commission previously issued a CID to Western Communication seeking documents and interrogatory responses, the CID at issue to Mr. Young calls solely for his testimony.

Mr. Young raises two objections. See Pet. at 7. First, he claims that four of the CID specifications are overbroad because they lack limiting date ranges or nexus to the acts and practices being investigated. Pet. at 8-9. Second, Mr. Young contends that he is entitled to respond fully to any questions that could potentially elicit “his understanding of legal advice provided to Physician’s Technology by its attorneys” and that he will “immediately end any investigative hearing” if the FTC staff attempts to prevent him from responding “truthfully and completely” about the circumstances of his communications with Physician’s Technology and its counsel. Id. at 6, 10; see also Pet. Ex. B at 3.

II. Analysis A. The Challenged Specifications Are Relevant To The Subject-Matter Of The Investigation.

Mr. Young challenges Specifications 1, 2, 3.f., and 12, claiming they lack limiting date periods or are not tied to the marketing of Willow Curve. Pet. at 8-9; see also Pet. Ex. A at 3-5 VOLUME 166 Responses to Petitions to Quash (CID specifications). In summary, Specification 1 asks Mr. Young to testify about the history and business of his company, Western Communication. Specification 2 calls for testimony about the roles and responsibilities of Western Communication employees. Specification 3 asks him about his or Western Communication’s relationships with several identified individuals and entities. One of these individuals is Mark Young, II, Mr. Young’s son, who ran a telephone call center that marketed Willow Curve. Finally, Specification 12 asks Mr. Young about government or consumer complaints. Each of these specifications contains the preface that the topic is “[w]without regard to time period.” Pet. Ex. A at 3-5.

Mr. Young objects, arguing that because Western Communication was founded in 1995, a response to Specifications 1 and 2 could cover this entire period. Pet. at 9. For Specification 12, Mr. Young claims that due to the lack of a temporal limit, it could reach any monitoring of and responses to consumer or government complaints about any product at any point in time in history. Id. He also contends that Specification 3.f. would require him to testify about all aspects of his relationship with Mark Young, II over his son’s entire life span. Id. “Relevance” for purposes of an administrative investigation is broader than in district court discovery. To be relevant, a request need only relate to “the investigation,” which may be defined “generally.” FTC v. Invention Submission Corp., 965 F. 2d 1086, 1090 (D.C. Cir. 1992). Traditionally, the Commission’s resolution provides this definition. FTC v. Texaco, Inc., 555 F.2d 862, 874 & n.26 (D.C. Cir. 1977) (en banc); FTC v. Carter, 636 F.2d 781, 787-88 (D.C. Cir. 1980). As such, the resolution serves as a type of boundary, defining the subjects that relate to the investigation and thus are within the scope of a proper and enforceable inquiry. In this case, the CID provides substantial information about the nature of the conduct under investigation. It includes both the Commission’s resolution and a separate description of the subject of the investigation. Taken together, we find these statements sufficient to define the scope of information relating to, and thus relevant to, the investigation. The Commission’s resolution authorizes FTC staff to investigate whether entities that are engaged “directly or indirectly in the advertising or marketing of dietary supplements, foods, drugs, devices, or any other product or service intended to provide a health benefit” are “misrepresenting the safety or efficacy” on the grounds that such conduct could amount to “unfair or deceptive acts or practices or in the making of false advertising . . . in violation of Sections 5 and 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45 and 52.” Pet. Ex. A at 8.

The CID itself provides an even more specific description of the investigation—namely, to determine whether Physician’s Technology, Mr. Young, or his company “made false, deceptive, or unsubstantiated representations about the health benefits . . . and the diagnostic capabilities of the product known as the Willow Curve, and about the refund policies and source or commercial nature of any advertising or endorsements for this product.” Pet. Ex. A at 3; see also Pet. at 5.

To determine whether Specifications 1, 2, 3.f., and 12 request relevant information, we must interpret the challenged specifications within the context of the provided descriptions of the 581 PHYSICIAN’S TECHNOLOGY LLC Responses to Petitions to Quash investigation and the CID as a whole. FTC v. Rockefeller, 441 F. Supp. 234, 240–41 (S.D.N.Y. 1977), aff’d, 591 F.2d 182 (2d Cir. 1979) (“[R]elevance is measured by comparing the specifications of the subpoenas with the resolutions of the Commission, which announced the purpose and scope of the inquiry.”). In doing so, we reject Mr. Young’s argument with respect to Specifications 1, 2 and 12. The main thrust of his argument is that the specifications, unbounded by any date limitation, encompass irrelevant information unrelated to Western Communication’s relationship with Physician’s Technology. But even information about events or complaints that pre- or post-date Western Communication’s relationship with Physician’s Technology “may be relevant” to the subject matter of staff’s investigation. Rockefeller, 441 F. Supp. at 241 (citing SEC v. Wall Street Transcript Corp., 422 F.2d 1371, 1375 (2d Cir. 1971). For instance, testimony on Specifications 1, 2, and 12 could provide information on products similar to Willow Curve that were also marketed by Western Communication or advertising or marketing techniques that were used to promote other products, in addition to Willow Curve. The same analysis applies to Specification 3.f, which inquires about Mr. Young’s relationship with his son. In context, it appears plain that the specification is focused on the business relationship between father and son. However, to clarify its relevance to the investigation, we grant Mr. Young’s petition in part and modify Specification 3 as follows, with additional text indicated in brackets:

Specification 3: Without regard to time period, your and the Company’s [business] relationship to the following persons or entities, and any communications, interactions, and business dealings relating to the Willow Curve product between you or the Company and the following persons or entities: . . . f. Mark Young, II.

We do not modify the challenged specifications in any other respect. B. Mr. Young Must Appear At The Investigational Hearing And Comply With Commission Rules.

Mr. Young also advances the novel argument that he should be permitted to testify as to communications over which Physician’s Technology has asserted attorney-client privilege. He asserts that it would be “fundamentally unfair” for staff to prevent him from “testifying truthfully and completely” about Western Communication’s involvement in preparing advertising for Physician’s Technology because it “would deprive him of the ability to provide facts supporting his and Western Communication’s defenses that they had no prior knowledge of any alleged lack of substantiation for claims about the Willow Curve device.” Pet. at 9, 10. Mr. Young also claims that the mere prospect of being recalled for testimony after Physician’s Technology’s privilege claims are resolved presents an unreasonable burden. Pet. at 10-11. The Commission has promulgated rules that govern how an investigational hearing should be conducted and how objections should be raised in the course of such a hearing. 16 C.F.R. § 2.9 (“Rights of witnesses in investigations”); see also 16 C.F.R. §§ 2.7(f) (“Investigational hearings”); 2.7(g) (“Depositions”).

VOLUME 166 Responses to Petitions to Quash We start with Rule 2.9(b)(5), which provides that the Commission’s hearing official shall conduct the hearing “in a manner that avoids unnecessary delay, and prevents and restrains disorderly or obstructionist conduct.” 16 C.F.R. § 2.9(b)(5). In turn, Rules 2.9(b)(1) and (b)(2) set expectations for conduct by the witness and counsel. For instance, objections may be raised but only “in a nonargumentative and nonsuggestive manner,” after which the witness must still answer the question. 16 C.F.R. § 2.9(b)(2). The Rules also include explicit protections for material subject to claims of “protected status;” that is to say, privileged material. See 16 C.F.R. § 2.7(a)(4). The hearing official shall not require a witness to testify to such information and counsel “may instruct a witness not to answer only when necessary to preserve a claim of protected status.” 16 C.F.R. § 2.9(b)(2).

Here, there is an “unresolved” assertion of privilege by an entity that will not be present at the investigational hearing. Pet. at 2. Given the special protections afforded to privileged material, it is not unreasonable if the hearing officer desires to avoid disclosure of communications that are arguably subject to a valid privilege. For instance, the hearing officer can formulate questions in a way intended to avoid such disclosures and stop the witness from providing a response if it appears the answer will potentially reveal privileged material. Counsel could lodge an objection, but the witness would still be required to answer, following any instruction from the hearing officer not to divulge information protected by a potentially valid claim of privilege. See 16 C.F.R. § 2.9(b)(2) (“Following an objection, the examination shall proceed and the testimony shall be taken, except for testimony requiring the witness to divulge information protected by the claim of protected status.”). FTC staff may make clear on the record that it is not soliciting purportedly protected information through this hearing. The fact that a witness may have a mix of protected and unprotected material that is relevant to an investigation does not make testifying at a hearing designed to elicit the unprotected information unfair.

If, at the end of the hearing, counsel believes clarification of any answer is necessary as a result of the witness being unable to share privileged information, he or she could request permission from the hearing officer to allow the witness to provide such clarification. 16 C.F.R. § 2.9(b)(4). The hearing officer would be required to explain his or her decision on such a request on the record and allow counsel the opportunity to respond. Id. It is true that Mr. Young may be recalled to testify once any privilege issues are resolved. See 16 C.F.R. § 2.9(b)(3). Should that happen, the hearing official must provide written notice of the date of the reconvened hearing, after which the witness has five days to file a petition to limit or quash the hearing. Id.; see also 16 C.F.R. § 2.10(a)(3). A failure to file such a petition or to reappear are grounds for the Commission to seek judicial enforcement. 16 C.F.R. § 2.9(b)(3). As such, Mr. Young’s claim that the potential of being recalled imposes an undue burden on him is premature, resting as it does on multiple assumptions about events that have not yet occurred. Pet. at 10-11. If Mr. Young is in fact recalled to testify, he may file a petition to limit or quash at that time.

For these reasons, we conclude Mr. Young must appear at the hearing and comply with Commission rules.

583 PHYSICIAN’S TECHNOLOGY LLC Responses to Petitions to Quash III. CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED THAT Mark Young, Sr.’s Petition to Quash Civil Investigative Demand be, and hereby is, GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED THAT Mark Young, Sr., shall comply in full with the Commission’s Civil Investigative Demand, as modified herein, and shall appear ready to testify on the specified topics at the designated location on July 20, 2018, at 8:30 a.m., or other such date, time, and location as staff may determine.

By the Commission.

VOLUME 166 Responses to Petitions to Quash FULLY ACCOUNTABLE, LLC AND ELEVATED HEALTH, LLC FTC File No. 172 3195 – Decision, November 18, 2018 RESPONSE TO FULLY ACCOUNTABLE, LLC AND ELEVATED HEALTH, LLC’S PETITION TO QUASH OR LIMIT CIVIL INVESTIGATIVE DEMANDS DATED SEPTEMBER 10, 2018 By WILSON, Commissioner:

Fully Accountable, LLC (“Fully Accountable”) and Elevated Health, LLC (“Elevated Health”) petition to quash or limit civil investigative demands (“CID”) for testimony issued by the Commission as part of the Commission’s investigation of Fully Accountable and its relationships with various internet marketers of dietary supplements and other products. Fully Accountable seeks to quash or limit a CID seeking testimony by a company representative pursuant to FTC Rule 2.7(h), 16 C.F.R. § 2.7(h). Elevated Health, an affiliate of Fully Accountable, did not receive a CID. Nonetheless, it seeks to quash or limit a CID for testimony issued to Sarah Scava, a former employee of Fully Accountable with ties to Elevated Health.1 For the reasons stated below, we deny the petitions.

I. Background The challenged CIDs arise from the Commission’s ongoing investigation of Fully Accountable, a company based in Fairlawn, Ohio. Fully Accountable provides back office services to internet marketers, including accounting, bookkeeping, and general business consulting. It also helps its clients to obtain and manage credit card payment processing accounts.

The Commission’s investigation has focused on the services Fully Accountable provides to two groups of entities and the nature of Fully Accountable’s relationships with these entities. The first group, called “Group A,” consists of clients of Fully Accountable and includes several companies that market or have marketed dietary supplements online, including a supplement that purportedly reduces cognitive decline and related conditions. The second, called “Group B,” includes several companies that appear to be affiliates of Fully Accountable. The purpose of the investigation is to determine whether, in providing services to these groups or others, Fully Accountable has engaged in unfair or deceptive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C.

1 Petitioners have not attached the challenged CIDs to their petitions. To assist the reader, we have therefore appended the CIDs hereto as Orders Exhibit 1 (CID issued to Fully Accountable) and Exhibit 2 (CID issued to Sarah Scava). Because of its relevance to resolution of the pending petitions, the CID for documents issued to Fully Accountable on September 21, 2017 is attached as Order Exhibit 3. Citations to text in these exhibits refer to Bates numbers appearing in the bottom margins.

585 FULLY ACCOUNTABLE, LLC Responses to Petitions to Quash On September 21, 2017, the Commission issued a CID to Fully Accountable seeking the production of documents and interrogatory responses. Order Ex. 3. The CID included a “Subject of Investigation,” which describes the subject of the investigation as follows: Whether Fully Accountable, the Group A Entities, or the Group B Entities . . . and related entities and individuals, have made or participated in making, in any respect, false, misleading, or unsubstantiated representations in connection with the marketing of consumer products, in violation of Sections 5 and 12 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45 and 52, or have engaged in deceptive or unfair acts or practices by charging or participating in the charging, in any respect, for consumer products without consumers' authorization, in violation of Section 5 of the FTC Act, and whether Commission action to obtain monetary relief would be in the public interest.

See Order Ex. 3 at 6 (emphasis added).

The CID defined “Fully Accountable” to include “its wholly or partially owned subsidiaries, unincorporated divisions, joint ventures, operations under assumed names, and affiliates, and all directors, officers, members, employees, agents, consultants, and other persons working for or on behalf of the foregoing, including, but not limited to, Christopher Giorgio and Rachel Scava.” Order Ex. 3 at 12. The CID similarly defined the Group A and Group B Entities to encompass several specifically identified corporate entities as well as their related entities and individuals.2 Id. at 13-14.

At Fully Accountable’s request, FTC staff modified the CID to allow the company to produce its documents and interrogatory responses on rolling deadlines spanning a four-week period in October and November 2017. Despite these modifications and extensions, Fully Accountable failed to produce any documents and its interrogatory responses omitted required details about its ownership, leadership, and organizational structure. Additionally, it provided only evasive answers to several interrogatory requests.

When Fully Accountable refused to address these deficiencies, the Commission instituted CID enforcement proceedings in the Northern District of Ohio. See Federal Trade Commission v. Fully Accountable, LLC, No. 5:18-mc-00054-SL (N.D. Ohio June 8, 2018). On August 13, 2018, the district court issued an order directing Fully Accountable to comply fully with the CID within 10 days. Fully Accountable made supplemental productions and submitted to the Commission a certificate of compliance. After FTC staff examined the supplemental productions, they determined that deficiencies remained. Accordingly, on September 21, 2018, the Commission filed a status report with the district court stating that the Commission does not “agree at this time that Fully Accountable has complied in full[,]” and further informed the court 2 Like the definition for “Fully Accountable” the definitions for Group A and Group B also included any “wholly or partially owned subsidiaries, unincorporated divisions, joint ventures, operations under assumed names, successors, and affiliates, and all directors, officers, members, employees, agents, consultants, and other persons” working on behalf of several specified individuals. Order Ex. 3 at 13-14. VOLUME 166 Responses to Petitions to Quash that it had “undertaken additional investigational steps to assess the completeness of the production and to move the matter forward generally.” Id., Doc. 15. The two CIDs at issue constitute part of the “additional investigational steps” referenced in the Commission’s status report. The CID issued to Fully Accountable requires the company to designate a witness to appear and testify at an FTC investigational hearing on seven topics. The designated topics include a description of the steps Fully Accountable took to comply with the earlier CID. Other topics include a description of Fully Accountable’s relationship with a former employee, Sarah Scava, and with petitioner, Elevated Health, a firm that may be affiliated with or related to Fully Accountable.3 See Order Ex. 1 at 6. A separate CID asks Sarah Scava to testify on 13 topics. Among other topics, the CID requires Ms. Scava to describe her relationship to Fully Accountable and Elevated Health as well as Elevated Health’s relationships to Fully Accountable and other entities. See Order Ex. 2 at 6-7.

As required by FTC Rule 2.7(k), 16 C.F.R. 2.7(k), FTC staff and counsel for Fully Accountable – Rachel Scava – conferred by telephone on September 24, 2018. A few days later, counsel Rachel Scava called FTC staff, and stated that she also represented Sarah Scava. In a series of telephone calls between September 28 and October 3, 2018, she conferred with staff regarding possible modifications to the CID issued to Sarah Scava. During these telephone calls, FTC staff also offered to conduct the investigational hearing on a Saturday near Sarah Scava’s personal residence, an offer that was rejected. Rachel Scava did not inform staff that she also represents Elevated Health until she filed the instant petition on behalf of that company, and did not meet or confer with staff, as required by the FTC’s Rules of Practice, at any point in connection with Elevated Health.

II. Fully Accountable’s CID is Relevant and Does Not Impose an Undue Burden A. The CID Calls for Relevant Testimony.

Fully Accountable’s principal challenge is to the relevance of the designated topics to the subject matter of the ongoing investigation. It contends that Specifications 6 and 7 – which call for testimony about the company’s relationships with Elevated Health and Sarah Scava – fall outside the scope of the Commission’s investigation. Fully Accountable Pet. 5-6. It also contends that Specifications 3, 4, and 5 – which require Fully Accountable to testify about the company’s efforts to comply with the earlier CID, its document preservation practices, and its records management systems – is “overly broad,” because, according to Fully Accountable, it provided the same information in its response to the earlier CID. Id. at 7. Fully Accountable also contends that Specifications 3, 4, and 5 fail to limit the topics to the subject matter of the inquiry and that its “business practices as a whole are not the subject of the inquiry and it’s [sic] business practices are not reasonably relevant to the investigation.” Id. As courts have long observed, the purpose of an FTC investigation is to learn whether there is reason to believe that the law has been or is being violated and, if so, to ascertain 3 A search of public records shows that Sarah Scava registered Elevated Health LLC with the Ohio Secretary of State on December 20, 2016.

587 FULLY ACCOUNTABLE, LLC Responses to Petitions to Quash whether the issuance of a complaint would be in the public interest. See FTC v. Texaco, Inc., 555 F.2d 862, 872 (D.C. Cir. 1977) (en banc) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950)). In this context, the standard for relevance of administrative compulsory process is broad and more “relaxed” than in an adjudication. FTC v. Invention Submission Corp., 965 F.2d 1086, 1090 (D.C. Cir. 1992). A CID request need not be limited to that information necessary to prove specific charges; to the contrary, it may call for documents and information that are relevant “to the investigation” – a boundary that may be broadly defined by the agency. Id.

Applying these standards here, we conclude that Fully Accountable’s objections are meritless. Specifications 6 and 7 plainly and obviously relate to the FTC’s investigation into Fully Accountable and its relationships with its clients, affiliates, and related companies and individuals. Those topics raised in the CID will help determine the existence and extent of the relationships between and among Fully Accountable, Sarah Scava, and Elevated Health. Specifications 3, 4, and 5 are also clearly relevant to assessing Fully Accountable’s responses to the FTC’s investigation. To advance the Commission’s mission, FTC staff must be allowed latitude in taking steps to explore relevant topics by issuing supplemental process and taking testimony, particularly where, as here, a company has been lax in responding to the Commission’s informational needs. These facts have particular relevance here, where Fully Accountable’s responses to the earlier CID made its own document management a key issue and required the Commission to seek judicial intervention. Indeed, the procedures that a company has adopted – or failed to adopt – in documenting its business practices as well as its efforts to respond to process are relevant in any investigation.

Fully Accountable’s sweeping claim that “FA business practices as a whole are not the subject of the inquiry and it’s [sic] business practices are not reasonably relevant to the investigation[,]” cannot be squared with the long established standards for relevance in administrative investigations. Fully Accountable appears to claim that the FTC may not investigate a systemic or enterprise-wide practice. But the question whether a particular practice pervades an organization is independent of the question whether a request for information about that practice qualifies as legally relevant; indeed, enterprise-wide practices are often the subject of Commission investigations. To the extent that the CID here asks Fully Accountable about the company’s practices for document management, control, or disposal, these requests seek relevant information about why requested information was not provided in response to the initial CID. B. The CID Does Not Impose Undue Burden.

Fully Accountable also asserts that the CID for testimony imposes undue burden because it requires the company to duplicate its responses to the original CID. It cites Specifications 1 and 2, which call for testimony about “the Company’s responses to the Interrogatories set forth in the CID issued September 21, 2017[,]” and the “documents produced by the Company in response to the CID issued September 21, 2017.” Fully Accountable Pet. 8-9. These objections are meritless.

We acknowledge that testifying in an investigational hearing imposes burdens, including the time and expense of legal preparation, disruption of normal business operations, travel time VOLUME 166 Responses to Petitions to Quash and expense, and commitment of personal time. Every CID places some degree of burden on the recipient, and is “necessary” to further an agency’s inquiry and the public interest. See, e.g., Texaco, 555 F.2d at 882. But the standard for establishing that a CID imposes an undue burden on the recipient is a high one. Thus, to meet this standard, a CID recipient must show that a CID “threatens to unduly disrupt or seriously hinder” its normal business operations. Id.; see also EEOC v. Maryland Cup Corp., 785 F.2d 471, 479 (4th Cir. 1986). Fully Accountable has not made such a showing.

In any investigation, a CID recipient's responses to interrogatories and document production specifications may leave questions unanswered. To enable FTC staff to move an investigation forward and ultimately to make appropriate recommendations to the Commission, FTC staff may need to convene an investigational hearing to further develop the facts. For this reason, the FTC Rules of Practice lay out detailed provisions for investigational hearings, including how they are to be conducted and the rights of witnesses. See 16 C.F.R. §§ 2.7(f), 2.9. The need to convene investigational hearings is particularly important in this instance, given the questions that have been raised about the adequacy of Fully Accountable’s search for responsive materials and its document preservation practices. Because testimony provides a crucial opportunity for Commission staff to obtain information and test a company’s responses in real time, we find that the value to the Commission of investigational hearings outweighs any reasonable burdens they may impose.

III. As a Third Party, Elevated Health Is Not Entitled to File a Petition to Quash an FTC CID Elevated Health, LLC seeks to quash or limit the CID issued to Sarah Scava on September 10, 2018. As an initial matter, we note that Elevated Health is mistaken in asserting that the CID in question was issued to Elevated Health, with Sarah Scava designated as the individual to provide testimony on behalf of the entity. See Elevated Health Pet. 3-4. In fact, the Commission did not issue a CID to Elevated Health. It issued the CID to Sarah Scava personally to testify on the basis of her own knowledge of the designated topics. See Order Ex. 2 at 1, 3, 6 (specifying Sarah Scava as CID recipient).

Given these circumstances, Elevated Health may not seek to limit or quash Ms. Scava’s CID. Section 20(c) of the FTC Act, 15 U.S.C 57b-1(c), authorizes the Commission to issue a CID to “any person” the Commission has reason to believe has documents, tangible things, or information relevant to unfair or deceptive acts in or affecting commerce. In turn, Section 20(f)(1) states that after being served with a CID, “such person” may file a “petition for an order by the Commission modifying or setting aside the demand.” 15 U.S.C. § 57b-1(f)(1). Section 20(f) makes no provision, however, for such a petition to be filed by any person other than the person served with the CID. Id. Because Elevated Health’s petition is not properly before the Commission, we decline to consider any of the arguments it advances in support of its petition to quash or limit.

Even if Elevated Health could file such a petition, Elevated Health’s failure to comply with the requirement that it meet and confer with FTC staff prior to filing means that its arguments are not properly before the Commission. The Commission takes this procedural 589 FULLY ACCOUNTABLE, LLC Responses to Petitions to Quash requirement seriously, as shown by two separate provisions in the Commission’s Rules. Rule 2.7(k) cautions that “[t]he Commission will not consider petitions to quash or limit absent a prefiling meet and confer session with Commission staff and, absent extraordinary circumstances, will consider only issues raised during the meet and confer process.” 16 C.F.R. § 2.7(k). Rule 2.10 then directs CID recipients to include with any petition to limit or quash a statement describing the circumstances and attendees at the conference with staff and further provides that “[f]failure to include the required statement may result in a denial of the petition.” 16 C.F.R. § 2.10(a)(2). While Rachel Scava met and conferred with FTC staff regarding the CID issued to Sarah Scava, we are informed that she stated that she was doing so on behalf of Ms. Scava, not Elevated Health. We thus understand that FTC staff was not even aware Rachel Scava represented Elevated Health until she filed the instant petition on behalf of the company. Nor has Elevated Health presented any “extraordinary circumstances” justifying a departure from these rules. Accordingly, the Commission declines to consider Elevated Health’s arguments in support of its petition to quash or limit.

In any event, the arguments advanced by Elevated Health would not call for any limitations on the scope of inquiry for testimony set forth in the CID. Elevated Health’s petition presents a number of repetitive arguments that, taken together, amount to the following objections: (1) the CID is unreasonable because Ms. Scava is no longer involved with the subject company, see, e.g., Elevated Health Pet. 7; (2) the CID is unreasonable because it seeks information about entities and individuals outside of the scope of the investigation, see id. at 8-9, 11, 14, 16, 17; and (3) the CID’s requests for testimony are unduly burdensome and Sarah Scava should be permitted to respond in writing. See id. at 10-15, 17. These objections provide no basis for limiting or quashing the CID. It is entirely permissible for Commission staff to seek testimony from individuals formerly involved with subject companies, including former employees. Moreover, for the reasons discussed above, neither Sarah Scava nor Elevated Health falls outside of the scope of the investigation, which extends to entities and individuals “related” to Fully Accountable. See, e.g., Order Ex. 2 at 1, 5-6, 10-12 (resolutions); see also Invention Submission Corp., 965 F.2d at 1090. Furthermore, the Commission is well within its rights in this instance to elect to require live testimony as an investigatory tool pursuant to the FTC Act and its implementing regulations. See 15 U.S.C. § 57b-1(c)(1); 16 C.F.R. §2.7(f).

IV. CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED THAT Fully Accountable, LLC’s Petition to Limit or Quash Civil Investigative Demand be, and hereby is, DENIED. IT IS FURTHER ORDERED THAT Elevated Health, LLC’s Petition to Limit or Quash Civil Investigative Demand is not properly before the Commission, and accordingly is DENIED.

IT IS FURTHER ORDERED THAT Sarah Scava shall comply in full with the Commission’s Civil Investigative Demand and shall appear ready to testify on the specified VOLUME 166 Responses to Petitions to Quash topics at the designated location on November 29, 2018 at 9:00 a.m., or at other such date, time, and location as FTC staff may determine.

IT IS FURTHER ORDERED THAT Fully Accountable, LLC shall comply in full with the Commission’s Civil Investigative Demand and shall appear ready to testify on the specified topics at the designated location on November 30, 2018 at 9:00 a.m., or at other such date, time, and location as FTC staff may determine.

By the Commission, Chairman Simons recused.