In this five-part podcast series, I consider the use of monitors by state Attorneys General (AGs). I am joined by Jerry Coyne, Managing Director of State Monitoring Services at Affiliated Monitors, Inc. Over the course of the series we introduce the role of state AGs as enforcers of state law and bringers of civil litigation; the reaction to the Big Tobacco settlement and the criticism of state AGs over that process; multi-state settlements in the post-tobacco era; challenges in multi-state litigation and the road ahead. 

Episode 1- The Role of State Attorneys General as Enforcers

In Part 1, we consider the role of state AGs as enforcers of civil law and in bringing litigation to enforce consumer protect and related statutes. Every US state and territory has an AG, whose role is to serve as the chief legal advisor for that state. State AGs are empowered to prosecute violations of state law, represent the state and its employees when sued, and usually to provide legal advice to state agencies and to the state legislature. But its most important and most challenging role may be the right to bring litigation – to file suit – in the name of the state.

Episode 2- Reaction to the Big Tobacco Settlement and Criticisms of State Attorneys General

In Part 2, we consider the reaction to the Big Tobacco settlement and criticisms directed at the state AGs.  In the immediate aftermath of the tobacco settlement, state AGs basked in the praise of bringing millions and millions of dollars to their states, perhaps even in perpetuity. Among those most appreciative were the nation’s governors and state legislatures, to whom the tobacco settlement represented a new and unexpected source of state revenue. For their part, the state AGs now realized that they had greater power working collectively than individually. This lesson was particularly clear to smaller states, which lacked the resources to sue a national industry on their own. But even the larger states recognized that forcing a defendant to fight against multiple states gave them leverage they had not previously enjoyed.

Episode 3- Multi-state Litigation in the Post-Tobacco Era 

In Part 3, we consider the role of state AGs in multi-state litigation in the post-tobacco era. Despite the challenges posed by the tobacco settlement, state AGs used the new-found collective power to exercise their jurisdiction in a number of areas. However, settlement of these cases became more complicated than it had been before as no defendant wanted to become “the next tobacco” or more specifically, the next potential deep-pocket for the state AGs to target. While governors and legislators certainly wanted to take advantage of this new potential revenue stream, a number of states took steps to limit the circumstances when the AG could hire outside counsel, or to regulate the selection process through which a counsel could be retained. 

Episode 4- The Challenges of Multi-state in Today’s Litigation Environment

In Part 4, we consider the challenges for state AGs in today’s litigation environment. Of the AGs who participated in the tobacco litigation leading to the Master Settlement Agreement 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.

Episode 5- The Road Ahead

In this concluding Part 5, we consider the road ahead and the use of monitors by state AGs. The current state of multi-state litigation may be summed up by acknowledging the extraordinary talents of AG staff in litigating multi-state actions,  while recognizing the extraordinary challenge of making sure that the conditions imposed as a part of virtually every settlement are carried out. Fortunately, there is a road ahead that offers a solution to the states at no cost.

For more information on Affiliated Monitors, check out their website here.