9 Multistate Advocacy - Role Playing Hypothetical and Related Articles: March 16 9 Multistate Advocacy - Role Playing Hypothetical and Related Articles: March 16

Please reread the articles from March 2 and the articles below to prepare for this hypothetical.

9.1 Multistate Case Hypothethical, Prof. Peter Brann 9.1 Multistate Case Hypothethical, Prof. Peter Brann

 

Nathan Levenson, a prominent class action plaintiff’s lawyer (and former Assistant Attorney General) located in the State of Connecticut, is poised to bring a private lawsuit against Cote’s Electronics, a prominent bricks and mortar retailer located in the State of Ohio that has recently expanded to become one of the nation’s largest Internet retailers. Although Cote’s claims in the terms and conditions on its website to respect its customers’ privacy, it actually has been selling customers’ personal information to third party marketers. Several Internet blogs had speculated that Cote’s was selling consumer information. The Chief of the Consumer Division of the State of New Hampshire, Cathy McFadden, knows that the speculation was well founded. Her two-person consumer division had served a confidential civil investigative demand (“CID”) seeking documents from Cote’s, and in response had not only received documents suggesting that it had sold information concerning its customers across the country, but obtained an internal email in which a Cote’s VP hoped “to turn bytes into billions.” Unfortunately, McFadden doesn’t have sufficient resources to review all of Cote’s documents, and can’t afford to hire anyone to do so. Also, her two-person consumer division rarely tries cases, and Cote’s lawyer responding to the CID, Mike Kendall, is an aggressive defense lawyer from a large Massachusetts law firm.

 

·      Should New Hampshire bring this case, partner with a private law firm, or refer it to a private law firm?

·      Is this a good case for a multistate investigation or lawsuit?

·      If other States are contacted, should all States be contacted, and if not, how should the decision be made which States to contact?

 

Assume that someone made the decision to turn this into a multistate investigation. One of the States that agreed to participate was the State of Connecticut, which wasn’t that surprising because the Chief of the Consumer Division, Jackie Glenn, frequently worked on multistate consumer cases and often served on the “Executive Committees” running such cases. Her former colleague, Sam Levenson, knew that Glenn was likely to be in the thick of things if there was a multistate investigation.

 

·      When Levenson calls Glenn, and asks if there is a multistate investigation, what does Glenn say?

·      When Levenson tells Glenn that he knows the States lack the resources to pursue this case against a multibillion dollar retailer like Cote’s, and he would like to work with the States “collaboratively,” what does Glenn say?

·      Does Glenn attempt to get any information from her former colleague about his possible class action lawsuit?

·      Should or must Glenn tell the other States about this call from Levenson?

 

The State of Ohio, where Cote’s is located, also volunteered to be on the Executive Committee. In prior calls, Joe Novick, Ohio’s longtime Assistant Attorney General handling consumer issues—who the other States’ lawyers know and trust from years of working together—represented Ohio. On the most recent conference call, Ohio’s new Chief Deputy Attorney General, Sally Grover, also participated and said that she hoped “this investigation would not turn into a witch-hunt against one of Ohio’s most prominent companies.” ·

 

·      Do any of the other States have a problem with Grover participating in the strategy call?

·      What, if anything, should the other States do concerning Grover or Ohio?

 

The State of Arizona also volunteered to be on the Executive Committee. This was interesting because the Attorney General of Arizona, Bob Bone, is very conservative and Arizona had not shown much interest in prior consumer cases. On the other hand, Arizona might simply be looking for additional “investigative costs” and attorneys’ fees that it would receive as a member of the Executive Committee. For whatever reason, Arizona’s consumer protection chief, Joan Emerson, ends up on the Executive Committee. Emerson receives a call from Jerry Hannigan, the former Attorney General of Arizona, i.e., Emerson’s former boss. Hannigan says that he is representing Cote’s, and that the word on the street is that Arizona is investigating Cote’s. He wants to know if it is true Arizona and others are “persecuting” his client, and, if so, he would like a meeting with Emerson and Bone, who he plans on calling next.

 

·      Does Emerson acknowledge the investigation to Hannigan?

·      Does Emerson and/or Bone agree to the requested meeting with Hannigan?

·      Should or must Emerson tell the other States about the call and requested meeting with Hannigan?

Assume that Emerson and Bone meet with Hannigan. Because former Attorney General Hannigan is more of a politician than a litigator, he brings Cote’s lead lawyer, Mike Kendall, to the meeting. Kendall explains that the multistate approach is seriously misguided because most States don’t have statutes that apply to privacy issues, specifically including the lead State, New Hampshire. Kendall also says that the lead lawyer for New Hampshire, Cathy McFadden, has a personal vendetta against Cote’s because she had bought a Nest “smart” thermostat that wouldn’t work in her 18th century farmhouse and Cote’s refused to take it back and refund her money. At this point, Hannigan spoke up, and mentioned that if the States cracked down on Cote’s, they might just move their operation off-shore to avoid “intrusive regulation” and that Cote’s was troubled by “activist” Attorneys General which drive businesses “to China.” Kendall returns the discussion to the law and asks Bone and Emerson for guidance on a “safe harbor” approach to these unsettled privacy issues.

·      Does the argument that the States lack privacy statutes resonate with Emerson or Bone?

·      Do Emerson or Bone have any concerns that McFadden may have a personal issue with Cote’s?

·      Does the argument that Cote’s may send its business overseas resonate with Emerson or Bone?

·      Do Emerson or Bone provide any guidance on a “safe harbor” to Cote’s counsel?

·      Should or must Emerson tell the other States about the meeting with Cote’s counsel?