The Florida Attorney General Sent Us a Civil Investigative Demand: What Now?

If the Florida Attorney General sent your company a civil investigative demand, treat it as a legal order, not a courtesy request. Depending on the statute, it can require your business to produce documents, give sworn written answers, or testify under oath, and some statutes allow it before any lawsuit is filed. For every recipient, the clock to challenge it starts the day it is served.

What Is a Civil Investigative Demand From the Florida Attorney General?

A civil investigative demand is a written, compulsory request for documents, sworn answers, or testimony that the Attorney General issues during an investigation, often before filing suit. Florida law uses different names for it: the antitrust statute says “civil investigative demand,” while the consumer protection and false claims statutes say “subpoena.”

Has your company been served with a demand from the Attorney General? Talk with a Jimerson Birr lawsuit defense attorney before you send anything back.

Under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), the enforcing authority is a state attorney for a violation in one judicial circuit, and the Department of Legal Affairs, which the Attorney General heads, when a violation affects more than one circuit or the state attorney defers in writing. Once an enforcing authority has reason to believe a violation occurred, it may subpoena witnesses and records under section 501.206, Florida Statutes.

The Attorney General’s office has parallel tools under Florida’s antitrust statute and the Florida False Claims Act.

How Much Time Does Our Company Have to Respond?

The deadline depends on which statute the demand invokes, and under one of them it can be as short as five days. Identify the statute first, then calendar the date of service.

• Consumer protection (subpoena): You have five days, excluding weekends and legal holidays, after service, or until the return date if that is later, to petition the circuit court in the county where you reside or transact business to modify or set aside the subpoena. Compliance is still required unless a court orders otherwise.
• Antitrust (civil investigative demand): Under section 542.28, the return date cannot be earlier than 30 days after service. You have 30 days after service, or until the return date if that is later, to petition the circuit court in the county where you reside or transact business.
• False claims (subpoena): Under section 68.0831, you have 30 days after service, or until the return date if that is later, to petition, and the petition goes to the circuit court in Leon County. Compliance time does not run while the petition is pending.

Ignoring a demand does not end it. The Attorney General can ask a circuit court to order compliance, and under the antitrust and false claims statutes, disobeying that order is punishable as contempt of court. Our subpoena response page explains why businesses should object to a defective subpoena rather than ignore it, and choosing a response strategy is the first decision to make.

Can We Object to the Demand or Protect Privileged Records?

Yes. Under the consumer protection statute, a petition to modify or set aside can raise any objection or privilege that would be available in a civil action, and the antitrust and false claims statutes bar demands for material protected from disclosure under the standards for grand jury subpoenas or civil discovery requests. Raise scope and privilege objections through a timely petition, not by holding records back on your own.

The antitrust statute adds protections for witnesses and records:

• A witness may be accompanied, represented, and advised by counsel.
• The Attorney General must keep the evidence secret, with limited exceptions for courts and certain other law enforcement authorities.
• The Attorney General may stipulate to protective orders for documents and information produced. The false claims statute gives the Department of Legal Affairs the same authority.

See how we approach protecting confidential and privileged materials in a subpoena response.

What Must Our Company Preserve Immediately?

Preserve every document and data source that could be responsive, and suspend routine deletion now. Destroying or hiding records after a demand arrives can create liability that is separate from the investigation itself.

The penalties vary by statute:

• Consumer protection: A person who acts with intent to avoid, evade, or prevent compliance, including by concealing, altering, or destroying subpoenaed records, faces a civil penalty of not more than $5,000, plus reasonable attorney’s fees and costs.
• Antitrust: A person who knows or has reason to believe a demand is pending and alters, destroys, conceals, or removes records to impair their availability commits a third-degree felony.
• False claims: The same conduct while a subpoena is pending carries a civil penalty of not more than $1 million for a company or $100,000 for an individual, plus reasonable attorney fees and costs.

A written hold, a pause on automatic deletion, and a list of people who hold records are the starting point. Our pages on issuing a litigation hold and litigation hold implementation and management cover the details, as do our posts on when Florida companies must start preserving electronic evidence and honoring a litigation hold. Review your insurance policies too, since receiving a subpoena may implicate coverage.

How Does a Civil Investigative Demand Affect a Regulated Business?

It depends on the statute behind the demand and on which regulator oversees your operations. FDUTPA reaches unfair or deceptive acts in the conduct of any trade or commerce, but it does not apply to some regulated activity.

Under section 501.212, the exclusions include activity regulated under laws administered by the Office of Insurance Regulation, banks, credit unions, and savings and loan associations regulated by the Office of Financial Regulation or by federal agencies, and activity regulated by the Public Service Commission. Whether an exclusion covers the practice under investigation is a legal question for counsel to answer early, but it does not excuse a response: under the consumer protection statute, compliance is required unless a court orders otherwise.

Exposure matters too. Under section 501.2075, a willful FDUTPA violation carries a civil penalty of up to $10,000 per violation, and willful means the company knew or should have known its conduct was unfair or deceptive. The enforcing authority may end an investigation by agreement to pay a stipulated penalty, and the department or a court may waive the penalty if the company already made full restitution or paid actual damages.

Related issues often follow a demand:

• False Claims Act enforcement has expanded beyond healthcare and defense contracting.
• Licensing compliance and business litigation can overlap, and our post on defending your professional license covers the regulatory side.
• If an investigation leads to a lawsuit, see how businesses respond when a government agency files a civil case.

Our page on disruptive regulatory or governmental investigations describes how businesses respond to agency inquiries, audits, and inspections, and Charles Jimerson’s attorney profile includes a representative matter combining regulatory advocacy and consumer protection strategy.

What Should You Check Before You Respond?

Five facts change how a response should be built:

• Which statute the demand invokes, and the date it was served.
• The return date, and whether it calls for documents, written answers, or sworn testimony, for what time period.
• Whether the demand names the company, its owners, or its managers individually.
• Whether any part of the business operates under a regulator listed in the FDUTPA exclusions, or faces other agency inquiries.
• Whether a litigation hold is already in place and who controls the records.

These facts decide how your company should respond, and an attorney needs to review them along with the demand itself.

Not sure which statute’s clock applies to your company? Request a free consultation with Jimerson Birr so an attorney can review the demand.

How Can Jimerson Birr Help When the Florida Attorney General Sends a Civil Investigative Demand?

When the Florida Attorney General sends your company a civil investigative demand, the response is a legal decision, not an administrative chore. Our lawsuit defense work includes defense against state agency proceedings, administrative enforcement actions, and government investigations. Call (904) 389-0050 or request a free consultation. Under the consumer protection statute, the window to challenge a subpoena can be as short as five days, excluding weekends and legal holidays, after service.