William P. Clements State Office Building, which houses the offices for the Texas Attorney General.

State Attorneys General (AGs) are not only lawyers for their states; they are enforcers, regulators, and even public policy advocates. With broad authority, including, but not limited to, consumer protection, Medicaid fraud, and antitrust mandates, AGs have investigatory and enforcement jurisdiction over many businesses in a wide range of industries.

A series of recent multi-state AG meetings highlight significant recent developments evidencing an increase in AG activity throughout the country.

New Attorneys General

In 2018, there were 31 AG elections. There were 13 open AG seats, in addition to the seven states that appoint Attorneys General. As a result, 2019 ushered in 17 new AGs; 11 are Democrats and 6 are Republicans. There are currently 27 Democratic and 24 Republican Attorneys General, including the District of Columbia. The new AGs are perhaps the most racially and gender diverse in history. Importantly, the majority have backgrounds in legislative bodies or state agencies, rather than as prosecutors or in the judiciary. As a result, policymaking through investigation and enforcement is becoming the norm.

Heightened Priorities

Protection of the Vulnerable. The Democratic Attorneys General (DAGA) Summer Policy Conference featured an agenda panel titled “Fighting Back Against Attacks on Vulnerable Communities”.

In May, North Carolina AG Josh Stein (D) announced and Massachusetts AG Maura Healey (D) filed the first AG lawsuits against the e-cigarette industry for targeting vulnerable youth.

On June 11, 2019, 10 Democratic AGs (4 of them new AGs) announced that they had filed suit to halt the proposed merger of T-Mobile and Sprint to protect vulnerable consumers in their states.

Increased Assistance to FTC/Action Against Tech Companies. However, action is not limited to Democratic AGs, especially as the FTC's authority to seek relief has been seriously called into question. On Feb. 25, 2019, the U.S. Court of Appeals for the Third Circuit held that the FTC may now only bring a case under §13(b) of the FTC Act when it can evidence specific facts that a defendant is currently violating or is about to violate the law. FTC v. Shire Viropharma, No. 18-1807 (3d Circuit 2019). The court rejected the FTC's argument that it could merely show a “past violation and a likelihood of recurrence.” On May 8, 2019, FTC Commissioner Wilson thus took the unusual step of requesting Congressional clarification of the FTC's ability to obtain relief. FTC Chair Simons also urged Congress to enact privacy and data security legislation, enforceable by the FTC, which would grant the agency civil penalty authority, targeted APA rulemaking authority, and jurisdiction over non-profits and common carriers.

The FTC has also turned to assistance from State AGs.

On June 12, the FTC hosted a roundtable of AGs concluding the FTC's “Hearings on Competition and Consumer Protection in the 21st Century.” Iowa Attorney General Tom Miller (D) and Texas Attorney General Ken Paxton (R) lead 41 other State AGs in filing a detailed bi-partisan comment urging a renewed focus on consumer privacy and data in antitrust enforcement actions against dominant technology platforms that collect and leverage consumer data.

Texas Attorney General Ken Paxton also issued a press release accusing tech companies of violating State deceptive trade practices laws by censoring conservative postings.

On June 25, the FTC announced “Operation Call it Quits,” a major crackdown on one billion Robo-sales calls pitching credit card interest rate reduction services, moneymaking opportunities, and medical alert systems. However, the vast majority of the 94 lawsuits were filed by 15 AG offices.

Cannabis. In June, Illinois joined 10 other states and the District of Columbia in legalizing cannabis products. In addition, 33 states, including traditionally conservative states, have legalized medical marijuana. However, the products remain illegal under federal law. Therefore, this has resulted in a myriad of state legal issues involving labor and employment, banking, securities, Medicaid, pesticides, advertising, transportation, tax, processing, dispensing, telemedicine, intellectual property, etc., all of which involve AGs.

Sports Betting. The 2018 U.S. Supreme Court Murphy opinion cleared the way for states to legalize sports betting. As this is written, eight states have already legalized sports betting, with five states and the District of Columbia having legalized but not begun operations. Bills are awaiting signatures from governors in Illinois, Maine, and New Hampshire. Colorado voters will decide in November. Oregon's state lottery is working on regulations.

As with cannabis, this has resulted in a flurry of state legislative activity and increased authority for AGs. Legalization on a state-by-state basis has generated significant consumer protection issues.

Opioids and Generic Pricing. In 2017, 41 AGs launched a multistate opioid investigation by serving civil investigative demands upon five major opioid manufacturers and three distributors seeking information about how these companies marketed, sold, and distributed prescription opioids.

As of June 2019, 48 states have filed lawsuits. These lawsuits have put the AGs at odds not just with the defendants, but also with local governments in their own states. On June 24, 2019, California Attorney General Becerra (D) and Texas Attorney General Paxton (R) authored a bipartisan AG letter to the federal MDL court challenging a plan proposed by hundreds of local governments that would create a “negotiation class”.

On June 25, new Florida AG Ashley Moody (R) announced the passage of new Florida law increasing her enforcement powers.

On June 26, new Illinois Attorney General Kwame Raoul (D) announced that Illinois and 41 other states were unsealing their generic drug pricing case against 20 of the nation's largest generic drug manufacturers.

Conclusion

As AGs become more active, it is even more important to have on-the-ground local state AG experience.

Edward D. (“Ed”) Burbach and Frank Pasquesi are partners at Foley & Lardner and co-leaders of the firm's State Attorneys General Practice.