12.5 Government Investigations and Civil Investigative Demands

• Library: Virginia Business Torts (Virginia CLE) (2019 Ed.)

12.5 GOVERNMENT INVESTIGATIONS AND CIVIL INVESTIGATIVE DEMANDS

12.501 Attorney General to Investigate Suspected Violations. The Act authorizes the Virginia Attorney General or his designated staff ("AG") to investigate suspected violations. To assist in these investigations, the Act also authorizes the AG to issue civil investigative demands ("CIDs"). ⁶⁵ CIDs are also authorized by federal statute, and a body of law has developed around that statute just as with the substantive federal antitrust laws. ⁶⁶

An investigation pursuant to Virginia's CID process may be initiated by complaint to the Attorney General or other means where it appears that "any person has engaged in, or is engaging in, or is about to engage in" conduct prohibited under the Act. ⁶⁷ The AG may then require the suspected person to provide a written statement, under oath, regarding all facts concerning the matter under investigation. ⁶⁸ The AG also may require any other information that is relevant to the investigation. ⁶⁹

12.502 When a CID May Issue. The CID is a powerful investigative tool made available to the AG to investigate potential violations of the Act. The AG may issue a CID to witnesses to (i) compel attendance; (ii) examine witnesses "before himself or a court of record"; (iii) require production of books and records; and (iv) issue written interrogatories to witnesses, whether individuals or public or private entities. ⁷⁰ A CID may be issued for the production of documents before or after testimony is taken from the person served. ⁷¹

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12.503 Attorney General's Authority to Issue a CID. The authority to issue CIDs is available to the AG even after an action or proceeding is brought. ⁷² The only proscription placed on the AG's authority to issue CIDs is that a CID for production of documentary material may not make any demand that would be "unreasonable or improper" if contained in a subpoena duces tecum issued by a state court. Furthermore, a CID may not require the disclosure of documents that are privileged or which could not be demanded for any other reason under a subpoena duces tecum. ⁷³

12.504 Content and Service of CID. A CID must state the subject matter of the investigation and identify the section of the Act that allegedly has been violated. It also must contain the place and date of the person's appearance, which must be at least 20 days from the date of the CID. Further, the CID must clearly indicate and specify "by class" any documents demanded. ⁷⁴ The CID may be served by personal service or by certified mail, return receipt requested, addressed to the person's principal place of business in Virginia, or if none exists, to his or her principal office. ⁷⁵

12.505 Documents in Lieu of Sworn Answers. In language virtually identical to Rule 4:8(f) of the Rules of the Supreme Court of Virginia, the Act provides a party who has been served with an interrogatory the option to answer it by providing documents from which the answers may be derived. This option is only available if "the burden of deriving or ascertaining the answer is substantially the same" for the AG as it is for the party served. ⁷⁶

12.506 Challenging a CID. The exclusive means by which a witness summoned under a CID may challenge the CID is by filing a petition in the Circuit Court for the City of Richmond requesting that the CID be modified or set aside. ⁷⁷ The petition must be filed before the CID's return date or within 20 days after service, whichever period is shorter. ⁷⁸ The petition must specify the grounds for...