Trends In State Attorney General Litigation

State attorneys general have become increasingly aggressive in bringing multifaceted, multi-state lawsuits against a broad array of companies and industries, resulting in multimillion dollar verdicts and settlements. Reasons for that aggressiveness include expansions of their powers to enforce federal law and recent Supreme Court rulings limiting federal preemption.

In almost every state, the attorney general is an elected position. Therefore, politics is a contributing factor to every decision. Legislative compromises that leave ambiguities in regulatory schemes are another factor, with the AG attempting to fill gaps through litigation and settlements that govern future conduct. Such agreements are often reflective of the particular AG’s political views, not that of Congress or the state legislature. This phenomenon, often referred to as “legislation through litigation,” is facilitated in part by the attorney general’s unique ability to prosecute claims on behalf of its citizens under each state’s parens patriae doctrine. This doctrine allows the attorney general to bring representative claims, similar to class actions, on behalf of a group of citizens (including individuals and corporations), while avoiding many of the procedural hurdles associated with a class action. The tobacco litigations of the 1990s provide a model for these litigations.

Every investigation or litigation spearheaded by a state AG’s office is unique, and has the potential to grow in both the number and type of plaintiffs and claims. The authors provide a list of tactical considerations and issues to be addressed when confronting such suits.