The New York Attorney General’s Office is perhaps the most aggressive state regulatory agency in the nation when it comes to regulating ad tech. From data privacy and COPPA to FinTech and consumer fraud, the NY OAG seemingly announces investigations and enforcement actions into the digital marketing industry on a regular basis.
The New York OAG is showing no signs of slowing down in 2019. Advertisers, networks, publishers, lead generators, telemarketers and ad agencies are all on the agency’s radar.
Investigative Powers and Subpoenas
The New York Attorney General has expansive prosecutorial and investigative powers, including, but not limited, the ability to pursued civil and criminal enforcement actions under provisions of New York’s Executive Law and General Business Law.
The OAG can issue investigative subpoenas for documents and witness testimony. It can also enjoin deceptive consumer practices or initiate enforcement actions anyone that engages in deceptive acts or practices, or false advertising.
Responding to New York Attorney General Subpoenas
The information sought with an investigative subpoena must bear a reasonable relation to the subject matter under investigation and to the public purpose to be achieved. The OAG must be able to show some basis for inquisitorial action.
Even if there is a colorable factual basis for a New York Attorney General subpoena, the inquiry cannot be tantamount to an unlimited fishing expedition. In appropriate circumstances, experienced defense counsel may be able to challenge the scope of the subpoena.
If you are a digital marketer and you have received a subpoena from the OAG, you should immediately implement a hold on potentially responsive documentation. Do not attempt to liaise with the OAG on your own.
Contact an experienced state attorney general subpoena lawyer that possesses knowledge of NY OAG policy and staff in order to learn about the investigation, seek appropriate extensions of time, seek to limit or even quash an overreaching request, preserve appropriate objections, and deliberately prepare a cost-effective and strategic response plan.
Investigations Into Ad Tech Are Continuing
The New York OAG’s investigations – some confidential, some not – are continuing.
Lest there be any doubt, consider the spate of recent privacy actions or a recent report by The New York Times that the OAG planned to open an investigation into Facebook’s alleged unauthorized collection of more than 1.5 million users’ email address books. According to the report, the inquiry concerns a practice unearthed in April in which Facebook purportedly harvested the email contact lists of a portion of new users who signed up for the network after 2016. Allegedly, those lists were used to improve Facebook’s ad-targeting algorithms and other friend connections across the network.
What Does the Subpoena Mean?
Attorneys general, including the NY OAG, commence investigations for any number of reasons. Just because you received one does not necessarily mean that you are a target. For example, the OAG might be interested in a third-party marketing partner, or in the digital marketing niche in general.
Experienced counsel can provide specific information and advice, including, but not limited to, determining the actual targets of the attorney general investigation, while seeking to prevent the matter from evolving into a lawsuit.
An Internet marketing lawyer that is knowledgeable about attorney general subpoenas and the resolution of regulatory investigations may give you the best possible chances of minimizing disruption of business operations and successfully resolving such inquiries.
If you have received an attorney general subpoena from the New York Attorney General’s Office, another state attorney general or a federal regulatory agency, email the author at rnewman@hinchnewman.com.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP. Follow in on LinkedIn at FTC defense lawyer.
Attorney advertising. Informational purposes only. Not legal advice.
