Early resolution of complaint (pre-probable cause conciliation)

Prior to, or in lieu of, investigation and before the Commission mails the respondent the OGC brief containing probable cause recommendations, the respondent may submit a written request that the matter be resolved through pre-probable cause conciliation negotiations. In some cases, the Commission proposes a written conciliation agreement to resolve the matter at the same time it notifies the respondent of the RTB finding. The respondent must reply to the General Counsel's invitation to enter into such negotiations within seven days of the receipt of the offer. Pre-probable cause discussions, which are generally limited to 60 days (absent an extension), may result in a conciliation agreement between the respondent and the Commission, thereby resolving the matter.

If the General Counsel and the respondent negotiate a conciliation agreement, the written agreement becomes effective once it is approved by the affirmative vote of at least four commissioners and signed by the respondent and the Office of General Counsel. Generally, the agreement includes a description of the facts and the law, admissions of the violations by the respondent, restrictions on future conduct or remedial actions the respondent must take and a provision for the payment of a civil penalty by the respondent. The General Counsel sends a copy of the signed agreement to the respondent and, when the case is closed, to the complainant as well.

If negotiations do not resolve the matter, however, the General Counsel may send the respondent a probable cause brief. The respondent has 15 days to submit a reply brief.

Investigation

At the beginning of an investigation, the Commission sends a letter notifying the respondent of the RTB finding and a written Factual and Legal Analysis that sets forth the basis for the Commission’s determination. The letter informs the respondent of the opportunity to submit a written reply and may include questions for the respondent to answer. As part of its investigation, the Commission may issue orders requiring sworn written answers and subpoenas requiring a person to testify to or to produce documents. If necessary, the Commission may ask a federal district court to enforce these orders and subpoenas. The investigation may also include less formal procedures, such as investigative interviews, and may involve parties other than the respondents who may have information pertinent to the complaint. The investigation may include an audit of the respondent.