8 Multistate Advocacy 8 Multistate Advocacy
The integration of our economy and the rise of technology has made it essential for attorneys general to work cooperatively across state lines if they are to engage in the traditional affirmative enforcement of state laws covering matters such as consumer protection, antitrust, charities, medicaid fraud and illegal internet related. activity Over the last thirty years AG offices have developed protocols for such cooperation and this section explores that process.
8.1. Multistate Consumer Actions and Settlements, Website of Prof. Paul Nolette, Marquette University
The best resource for tracking multistate cases is the State Litigation and AG Activity Database, a website maintained by Marquette Political Science Professor Paul Nolette. Prof. Nolette works closely with NAAG and the site is easily searchable and provides up-to-date information not found anywhere else.
This data base is augmented for past cases by The State Center Consumer Protection Report, a newsletter and website maintained by The Center for State Enforcement of Antitrust and Consumer Protection Laws.
Paul Nolette, Multistate Actions and Settlements, (Links to an external site.)
8.2. Philip Mattera and Anthony Kay Baggaley, Bipartisan Corporate Crime Fighting by the States (2019)
This is a comprehensive report on the impact of state attorney general cases based largely on the data contained in the Nolette database.
Philip Mattera and Anthony Kay Baggaley, Bipartisan Corporate Crime Fighting by the States (2019)
8.3. Jason Lynch, Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation, 101 Colum. L. Rev. 1998 (2001) (edited)
Jason Lynch, Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation, 101 Colum. L. Rev. 1998 (2001) (edited) (Links to an external site.)
8.4. "Fixing Public Consumer Protection Enforcement," O.H. Skinner, Harvard Journal of Law and Social Policy, Dec 5, 2022
8.5. "How Iowa AG Tom Miller's Career Helped Reshape the Nation's Legal Landscape," Alan Greenblat, Governing Magazine, January, 2023
8.6 Examples of multistate consumer fraud enforcement by attorneys general 8.6 Examples of multistate consumer fraud enforcement by attorneys general
These cases are examples of attorney general multistate action. They are easily found in the Nolettte data base.
8.6.1. DIRECTV Settlements Articles (1998, 2005, 2010)
DIRECTV Settlements Articles (1998, 2005, 2010) (Links to an external site.)
DIRECT TV settles with Idaho, 30 other states, Lewiston Tribune, Jan. 22, 1998
- Original: https://lmtribune.com/northwest/directv-settles-with-idaho-30-other-states/article_4c406a9c-5e17-5488-9790-466f5b1120a0.html
- Archival: https://perma.cc/9FRB-K8G9
DIRECT TV told to reform advertising, Carolina Journal, Dec. 22, 2005
- Original: https://www.carolinajournal.com/news-article/directv-told-to-reform-advertising/
- Archival: https://perma.cc/88SN-5PWN
Consumer Complaints Against DIRECTV lead to $14 million Settlement
- Live but significantly shortened article at: https://www.aol.com/2010/12/14/consumer-complaints-against-directv-lead-to-14-million-settleme/
- Archival: https://perma.cc/54HC-TSJ3
Washington Attorney General’s $1 Million Directv Settlement Sends Clear Signal
- Original: https://www.atg.wa.gov/news/news-releases/washington-attorney-general-s-1-million-directv-settlement-sends-clear-signal
- Archival: https://perma.cc/LUY6-VYRA
Kentucky Participates in Directv Settlement, Dec 17, 2010
- No link available
8.6.2. Attorney General James Announces $85 Million Multistate Settlement with Honda Over Airbag Failures | New York State Attorney General (Aug. 25, 2020)
New York Attorney General
Aug. 25, 2020
8.6.3. Ct. AG Jepsen Leads Settlement with Career Education Corp. (Jan. 3, 2019) (Links to an external site.) (Links to an external site.)
State of Connecticut Attorney General
Jan. 3, 2019
AG Release, Leads Settlement with Career Education Corp. (Jan. 3, 2019) (Links to an external site.)
8.6.4. NY AG James Release Announces Settlement with Fiat Chrysler (Jan. 2019)
New York Attorney General, Jan. 10, 2019
NY AG James Announces Settlement with Fiat Chrysler (Jan. 2019) (Links to an external site.)
8.6.5. Pa. Attorney General Josh Shapiro and 50 AGs Reach $13.5M Settlement with Pharmaceutical Company for Misleading Marketing of Four Drugs – PA Office of Attorney General, (Dec 20, 2017)
Pennsylvania Attorney General, Dec. 20, 2017
8.6.6. Federal Government and State Attorneys General Reach $25 Billion Agreement with Five Largest Mortgage Servicers to Address Mortgage Loan Servicing and Foreclosure Abuses, Department of Justice (Feb 2012)
United States Department of Justice
Feb. 9, 2012
8.6.7. The Role of the State Attorney General - Rating Agency Cases (2009 - 2015)
Link: https://www.stateag.org/policy-areas/consumer-protection
8.6.8 Multistate Case Hypothethical, Prof. Peter Brann 8.6.8 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?