It was the end of the week when Jamie Hine heard from a private lawyer he’d worked with several times through his career at Federal Trade Commission.
The lawyer did not have all the facts but wanted to alert Hine, a senior attorney in the FTC’s division of privacy and identity protection, about a client’s data breach. Recounting the phone call at a conference in Washington on Wednesday, Hine said the lawyer passed along “high-level” bullet points on the breach, outlined the steps the company had taken in response and asked to schedule a follow-up call for the following week.
“When Monday came along, they said, ‘Listen, we have a better sense of information. I’ve got someone on the phone with me who’s our director of security that can answer a couple preliminary questions.’ That was fantastic,” said Hine, speaking at the Privacy and Security Forum in Washington. “And frankly, by the end of that week, I had actually received several binders of information, already organized, because this attorney knew—knew that I wasn’t going to give a pass on it. I was going to have more questions. And they pretty much knew what those questions were going to be.”
The episode, Hine said, was a prime example of a company making the “regulator’s job easy,” building goodwill by saving staff “a lot of time and effort.”
“This is not just an FTC thing, but in particular, I would say that one of the things I appreciate the most is having a strong working relationship and not having to engage in extraneous work,” Hine said.
For companies that take the opposite tack—digging in and deluging regulators with documents—the results of an investigation or settlement negotiation can be less than pretty. Some lawyers, Hine said, “just don’t make life easy.”
“That’s just a strategy. It’s not worth it, I have to be honest,” he said. More from Hine:
“For folks that are not in law firms, or folks that are in law firms, your clients are retaining you and expecting you to provide them value. By dumping, you’re just—you’re increasing the bill. We can play that game or we can go back and forth and we can have long meetings. Your attorney can charge $1,000 an hour in a meeting and we’ll keep them there all day until we get the answers. Just make it organized on the front end. It just makes life better for everybody. The longer things get carried out and the more irritated staff get, the worse your chances are, I think, to resolve something amicably.”
Hogan Lovells privacy and security partner Tim Tobin, who appeared alongside Hine on Wednesday’s panel, said some attorneys accustomed to litigating civil cases can sometimes bring their instinct to “fight over every single thing that might be asked of you” amid an FTC enforcement matter.
“I think that, in our experience, that’s probably not the best way to go when you’re dealing with an agency like the FTC or even other agencies where you’re not fighting over every little thing because you’re just setting it up for the subsequent litigation,” Tobin said. “I think you have to be mindful of the way the FTC operates and think about the interests of your clients and how you’re going to advance their interests best. And sometimes that does not require going in with such a hard-edged attitude as you might in civil litigation.”
Hine also cautioned against going over the heads of FTC staff and making appeals for leniency to managers or even the commissioners themselves. One company, Hine told the crowd, “went up the chain and basically realized the commission was not going to back down and that they needed to settle their matter.”
The company came back to staff and said it wanted to accept their settlement offer. By then, the civil penalty that had been discussed previously was off the table. The staff said the commission had directed them to seek the full civil penalty, which Hine remembered as being a “multiple” of what the company had expected to pay.
“The situation,” he said, “often doesn’t get better up the chain unless it’s a very substantive issue. But on the margins, if you think you’re going to get a better deal with someone more senior, no.”