Pennsylvania Attorney General Josh Shapiro took the helm of the Attorney General’s Office (OAG) in January 2017. Since his election, the OAG has been extremely active in conducting investigations and filing lawsuits in matters affecting a multitude of businesses and industries. These matters include, but are certainly not limited to, the following:
- Investigation of marketing and sales practices of pharmaceutical manufacturers to reduce opioid addiction and recover public health care costs.
- Lawsuit against student loan servicer Navient alleging deceptive business practices.
- Investigation of data breaches at companies such as Facebook, Orbitz and Equifax.
- Investigation of predatory payday lending and discriminatory banking practices.
- Threats of legal action in response to a proposed change in federal labor regulations governing tipped employees.
As a result of this broad range of matters, it is crucial for corporate counsel to have an understanding of the structure and work of the OAG, how the OAG directly and indirectly affects the business community and tips for interacting with the OAG.
The modern OAG was created in 1980 by the Commonwealth Attorneys Act, see 71 P.S. Section 732-201 et seq. The executive team at the OAG is led by First Deputy Attorney General Michelle Henry, a well-respected career prosecutor from the Bucks County District Attorney’s Office. The OAG is then branched into three divisions, the criminal division, the civil law division, and the public protection division, each headed by an executive deputy attorney general. The criminal division is led by Executive Deputy Attorney General Jennifer Selber and prosecutes complex cases involving insurance and Medicaid fraud, organized crime, public corruption and environmental crimes among others. The civil law division is headed by Executive Deputy Attorney General Jonathan Goldman and represents the commonwealth in tax litigation and financial enforcement, tort claims and claims of unlawful discrimination. Finally, the public protection division is supervised by Executive Deputy Attorney General Sara Manzano-Diaz, and consists of the Bureau of Consumer Protection, health care section, antitrust section, and charitable trusts and organizations section.
The OAG directly impacts the business community in a number of ways. Businesses commonly come into contact with the OAG due to a complaint filed with the Bureau of Consumer Protection. The bureau’s primary mission is the protection of consumers through the enforcement of the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. Section 201-1 et seq. The bureau’s powers include the ability to investigate and subpoena documents, question company officials and conduct private or public hearings. The business community also encounters the OAG because of its enforcement of the commonwealth’s income and business tax laws. The OAG also reviews state contracts awarded to businesses for form and legality. Finally, although not as frequent, a business may find itself under criminal investigation for environmental or insurance-related offenses, for example, or the recipient of a subpoena from the statewide investigating grand jury. These are only a few of the ways the work of the OAG directly impacts the business community.
The OAG’s work also has an indirect—but no less powerful—effect on the business community. The OAG is required to review all new regulations for form and legality before they go into effect. For example, the OAG was one of several independent agencies that became a focal point for comments about the legality of the new environmental rules governing unconventional natural gas well development. Moreover, its decision to join other like-minded attorneys general in lawsuits against the Trump administration may also have a powerful impact on entire industries. For example, sticking with the energy industry, the OAG’s recent decision to join 15 other attorneys general and the city of Chicago in a lawsuit against the Environmental Protection Agency (EPA) could have a profound effect on one of the most promising industries in Pennsylvania.
So what is the most effective way to interact with the OAG? That is a difficult question to answer in a vacuum. However, here are three tips that corporate counsel may wish to keep in mind when dealing with attorneys from the OAG:
- Understand the office. The OAG is home to some of the savviest and experienced attorneys in government. They are not afraid to go to court and spend most of their time there. As a result, corporate counsel would be wise to treat the attorneys of the OAG like the experienced professionals that they are. However, the OAG has a history of understaffing, leading to large caseloads and the occasional delays that come with it.
- Understand the jurisdiction. The OAG is an office of limited jurisdiction, which is set forth primarily in the Commonwealth Attorneys Act and Administrative Code of 1929, see Commonwealth v. Mulholland, 702 A.2d 1027, 1037 (Pa. 1997) (“The powers of the attorney general are strictly limited and are solely a matter of legislative designation and enumeration.”). The OAG was challenged in the past on its use of the UTPCPL to enforce other statutes that are typically enforced via only a private right of action. It has also been challenged on its power to investigate and prosecute criminal offenses that are more properly within the jurisdiction of the commonwealth’s district attorneys.
- Understand the leader. The OAG is an elected office that takes on the priorities of its leader. This is clearly evident in the current administration, which has routinely joined other like-minded attorneys general in taking on the Trump administration in politically charged matters using the courts. The OAG also has a well-oiled press machine that is not shy to advertise the work of the office. As a result, when dealing with the OAG, while you should be able to expect it to act within the boundaries of the law and the facts of any given case, pay close attention to how the company will be portrayed in court and thus the media should a favorable resolution be reached.
Christopher D. Carusone is a partner in the Harrisburg office of Cohen Seglias Pallas Greenhall & Furman and is chair of the government law and regulatory affairs group. He previously served as a chief deputy attorney general in the criminal law division of the Pennsylvania Office of Attorney General.