Linda Singer. (Photo: Diego M. Radzinschi)
Private plaintiffs lawyers with state and local government practices could benefit from changing federal enforcement priorities that are likely to prompt state attorneys general to devote more resources to fighting consumer and financial fraud and protecting the environment. But they shouldn’t expect it to open the floodgates for more work.
As President Donald Trump approaches the end of his first month in the White House, it looks like some of the federal agencies that were active under the Obama administration—the U.S. Environmental Protection Agency and the Consumer Financial Protection Bureau, for example—might take a step back on enforcement actions.
That, in turn, is expected to open a door for state AGs to step up their enforcement efforts on consumer, financial and environmental protection, according to several private practice lawyers who have past experience in AG’s offices.
“Fighting consumer fraud is really the sweet spot for AGs across the country,” said Terry Goddard, the former Democratic attorney general of Arizona who is now of counsel at Dentons. “They have that in common.”
As a specific example, Goddard said that after the passage of the Dodd-Frank Act and the creation of the Consumer Financial Protection Bureau (CFPB), a lot of energy flowed out of Washington toward curbing financial wrongdoing. That’s likely to change under a Trump White House and a Republican-controlled Congress that’s shown an interest in rolling back the CFPB’s powers.“I think there’s going to be a much more robust state effort and a lot more responsibility coming back to the states,” said Goddard.
Foley Hoag’s Martha Coakley, who served eight years as a Democratic AG in Massachusetts, agreed that a curtailed CFPB would cause states, particularly those with a Democrat in the Attorney General’s Office, to “step up their watchfulness.” States may follow a similar path on environmental protection if the federal EPA is less active.
“I do think you will see in some states—even with Republican AGs—[that the offices will say], ‘This environmental issue really impacts my state. … To protect my state, I’m going to look at that,’ ” said Coakley.
A Role for Plaintiffs Lawyers
Beyond state AGs, a less aggressive federal government could also spell a heightened role for private plaintiffs lawyers in certain areas, said Chad Johnson, a Quinn Emanuel Urquhart & Sullivan partner and the former head of investor protection for the New York AG’s office. Johnson cited the U.S. Securities and Enforcement Commission’s enforcement priorities as one example.
“If the SEC goes soft on law enforcement, then state AGs are likely to step in to help fill the void.” he said. “The same is true of plaintiff’s firms. Otherwise, fraud on Wall Street will go unchecked.”
It is not unprecedented for private plaintiffs lawyers and states to form partnerships. This occurred, for example, during the big tobacco litigation of the 1990s, when many state AGs offices allied with private firms. More recently, New Hampshire’s AG office—supported by Kellogg, Huber, Hansen, Todd, Evans & Figel and the Massachusetts-based Pawa Law Group— secured a $236 million judgment against Exxon Mobil Corp. in a groundwater contamination case.
But while it’s not unheard of for AG offices to pair with plaintiffs lawyers, there aren’t many private firms with a practice that focuses solely on those types of partnerships, according to Linda Singer, a former District of Columbia attorney general, who recently moved to Motley Rice from rival plaintiffs firm Cohen Milstein Sellers & Toll.
Singer, who now leads Motley Rice’s public client practice, has worked with the city of Chicago, representing it in litigation alleging that opioid drugmakers engaged in deceptive marketing, and has worked with U.S. Virgin Islands AG Claude Walker in connection with a climate change investigation of ExxonMobil.She explained that the type of work involves a level of oversight from the government client that many in the private plaintiffs bar don’t typically have to confront in their cases. In addition, government agencies often place a higher priority on injunctive and other types of relief, in addition to securing financial penalties, which are often the key focus for private plaintiffs in litigation.
“Litigating with [public agencies] and for them is not about racking up the biggest number. It’s about understanding what a public entity needs. That’s why I feel very passionately that it is its own form of representation,” said Singer.
Though Singer and her team might be well positioned to jump on any new cases that state AGs choose to bring in light of changing enforcement priorities in Washington, she and other lawyers said they don’t expect it to be open season for plaintiffs firms.
“It’s really only for the unusual case that an AG will go outside of their office,” said Singer.
Other lawyers with AG experience agree. In some states, there are even legal limitations that prevent an AG’s office from hiring outside counsel, they said. And other state AGs may simply prefer to have their cases handled by lawyers on staff at the agency.
Another limitation stems from the criticism surrounding a public agency’s decision to bring in outside counsel. Companies facing allegations brought by a state have often cried foul in court, arguing that the public-private partnerships create conflicts of interest and improperly cede government authority to a private firm that may be driven, in part, by profit.
Goddard said that whenever AGs opt to bring in outside counsel, they have to expect that kind of criticism. But, he added, there are times when an AG may still choose to tap the resources of a private firm with a high-powered trial team, criticism and scrutiny aside.
“You have to be able to stand up and say, ‘Yeah it’s worth it. … The ultimate objective required these skills,” he said. “You don’t do it casually. I don’t think anyone would do it simply because a plaintiffs lawyer walked in the door and said, ‘Hey, I have a great case for you.’”
Contact Scott Flaherty at email@example.com. On Twitter: @sflaherty18.
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