In this five-part podcast series, I consider the use of monitors by state Attorneys General. I am joined in this podcast series by Jerry Coyne, the Managing Director of State Monitoring Services at Affiliated Monitors, Inc. who is the sponsor of this podcast series. In this series we introduce the role of state Attorneys Generals as enforcers of state law and bringers of civil litigation; the reaction to the big-tobacco settlement and the criticism of state Attorney Generals over that process; multi-state settlements in the post-tobacco era; challenges in multi-state litigation and the road ahead. Today, in Part 4, we consider the challenges for state Attorney Generals in today’s litigation environment.

Of the AGs who participated in the tobacco litigation leading to the Master Settlement Agreement (MSA) in 1998, only one AG, Tom Miller of Iowa, remains in office today. Most of today’s AGs never worked in an AG office before multi-state litigation was simply a fact of life. But although it may seem that multi-state litigation has been around forever, the reality is that it remains quite new, and it should come as no surprise that the processes around multi-state litigation continues to evolve.

The management of multi-state litigation is one of the biggest challenges that AGs face. Anyone who has tried to lead a group will understand some of those challenges. Decision making in a small group may be challenging, but decision making in a relatively large group of states presents different obstacles. One of those obstacles is simply how to weigh the votes of the states. “One state, one vote” may be acceptable to smaller states, but less so to larger ones. Basing votes on states’ population may yield the exact opposite result.

Just as there are differences in the size of states there are differences not only in the size of AGs offices, but in the specific functions assigned to each under state law. In addition, the specific laws giving AGs the jurisdiction to even participate in a particular multi-state action may vary as well. Some offices may be able to assign several attorneys to work full time on a particular multi-state action, while resources and workload may limit the ability of another state to do more than to participate in conference calls or otherwise monitor the status of the litigation.

The states have addressed this issue by forming Executive Committees which lead a multi-state action.  Those who participate on the Executive Committee are responsible for most decision making, managing the litigation, including assigning tasks to other participating states not on the Executive Committee, and most significantly, engaging in settlement discussions.

The members of the Executive Committee are normally senior counsel from various bureaus or divisions in an AGs office.  AGs and their respective Chief Deputy rarely, if ever, routinely participate in Executive Committee work. There are exceptions to the limited involvement of front office staff, but they are infrequent. It is assumed that the members of the committee are keeping their AGs sufficiently briefed on the multi-state litigation to ensure that major decisions reflect the AGs position.

In the case of a settlement, it is normally the Executive Committee or a group designated by it that negotiates with the defendant’s counsel. Ultimately a proposed settlement will be brought back to the Executive Committee for review and consideration, after which it will generally be put to the participating states. Nearly every settlement involves a combination of monetary damages and injunctive relief.

Until the time of a proposed settlement, there are generally three groups of states in every multi-state action: the Executive Committee of the participating states; those participating states not on the Executive Committee, and the non-participating states. Most frequently, a settling defendant wishes to settle with all states and non-participating states are usually given the opportunity to join in a settlement. As a general rule, however, non-participating states may only obtain injunctive relief, or if allowed to participate in monetary damages, will receive a smaller amount than those states whose participation in the litigation process was more involved.

It is also important to recognize that multi-state litigation, while a major part of every state AGs office, is far from the only litigation that states participate in. States enforce a multitude of statutes, including, for example, environmental laws, professional licensing decisions, securities, and civil rights. State AGs also defend the state when the state or its agents are sued, and nearly every state has at least some criminal jurisdiction. Although only three state AGs have original felony jurisdiction, many others have a role in white collar or other complex litigation. Finally, a state’s Medicaid Fraud Control Unit may be involved in virtually every type of litigation the office engages in, from criminal prosecution of a single defendant for patient abuse or neglect, to a criminal fraud prosecution, to a multi-state civil action.

In the resolution of actions in any of these areas there is a common thread: if the settlement includes specific conditions to control the defendant’s future actions, how will those conditions be enforced?

I hope you will join us tomorrow for our concluding Part 5, where we consider the road ahead for state AGs.

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