Bass, Berry & Sims attorney Chris Lazarini analyzed the decision in CFTC v. Ekasala, a case in which the Court rejected the Respondent’s efforts to quash an administrative agency subpoena. Chris provided the analysis for Securities Litigation Commentator. The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the Securities Litigation Commentator, please click here to sign up for the newsletter.
CFTC vs. Ekasala. No 14-318 (D. D.C., 7/31/14)
*A subpoena issued by an administrative agency exercising its lawful investigative powers will be enforced, where the requested documents plausibly contain information relevant to the agency’s investigation, the boundaries of which may be quite broad **The target of such a subpoena faces significant hurdles when seeking to quash or limit the agency’s reach on grounds that the subpoena seeks irrelevant information, is overly broad or is unduly burdensome.
In 2011, the CFTC issued a formal order of investigation to determine if Respondent and his limited liability company were operating in violation of the registration and other provisions of the Commodity Exchange Act. Thereafter, the CFTC served an administrative subpoena on Respondent who allowed multiple deadlines to pass without making a production. After its efforts to get a voluntary response were ignored, the CFTC initiated this subpoena enforcement action. Respondent moved to quash the subpoena on a variety of grounds, each of which the Court rejects.
The Court first re-states long standing precedent that courts afford broad deference to administrative agencies in conducting investigations, the boundaries of which may be quite broad. The Court then rejects Respondent’s relevancy argument, stating that the standard for judging relevancy in an investigatory proceeding is more relaxed than in an adjudicatory one, where the Federal Rules of Civil Procedure may limit the scope of a subpoena. The Court holds that the Federal Rules do not apply and an agency’s appraisal of relevancy is measured only against the general purposes of the investigation and will be accepted so long as it is not obviously wrong.
The Court next rejects Respondent’s argument that the subpoena is overly broad because it provides him with no guidance on potential self-incrimination. The Respondent may exercise his Fifth Amendment right, but the potential for self-incrimination does not, in and of itself, make the subpoena overly broad. The Court then rejects Respondent’s argument that the subpoena is incomplete, criticizing him for not being communicative with the CFTC and for ignoring the multiple deadlines afforded him by the agency.
Finally, the Court rejects Respondent’s argument that the subpoena is unduly burdensome because it seeks documents covering a period of time after he had ceased being an officer or agent of the company. The Court notes that supporting a claim of undue burden requires proof that compliance will unduly disrupt or seriously hinder normal business operations. In a footnote, the Court calls Respondent’s burden argument “half-hearted” because it is not supported by the evidence and orders Respondent to comply with the subpoena or produce affidavits or other evidence to support his purported inability to comply.
Even though the Federal Rules of Civil Procedure do apply in related civil litigation, the party who responds to a broad administrative subpoena faces significant, but not insurmountable, challenges in limiting the scope of the opposing party’s request for “all documents provided to the administrative/regulatory agency.”