Read our cover story on working with state attorneys general
When a state AG’s office launches a corporate investigation or enforcement action, it is helpful for the company in question to try to determine where in the AG’s office the case is being handled—by longterm lawyers at the office or by politically appointed lawyers who may come and go with the AG. It will inform the company’s evaluation of the case—its profile, how important it is to the AG, how it is likely to be handled, its objective.
Because most AG actions are statutory, companies should also examine the statute in question to determine what powers it grants to the AG; for instance, whether it requires scienter or it is a strict liability statute, which is common among consumer protection statutes that underpin a great deal of AG actions.
In determining whether the case is something to fight or settle quickly, companies should decide how much they’re willing to change for a settlement. Because so many AG actions are aimed at consumer protection, often a company will be able to negotiate a settlement under the agreement that they change or stop the conduct that brought them under scrutiny or they agree to make additional disclosures.
“The question is whether you can perhaps negotiate so that it’s a win-win outcome for everyone,” says Kent Sullivan, a former first AG in Texas, former Texas Court of Appeals justice, and now a partner at Sutherland Asbill & Brennan. “You can continue to engage in business you think is critical in terms of your business success and they are able to stop whatever conduct they consider to be most controversial.”