Posted: Mar 2, 2009

The Attorneys General of D.C., Maryland and Virginia - each of whom characterized himself as "pro-business" - provided WMACCA members with a guide to dealing with their offices during an investigation.

WMACCA was honored to host a panel discussion among Peter Nickles, Attorney General for the District of Columbia, Douglas Gansler, Attorney General of the State of Maryland, and Robert McDonnell, former Attorney General for the Commonwealth of Virginia, at its signature luncheon on February 25.  Mr. McDonnell had resigned five days prior to the luncheon in order to campaign for governor of Virginia.

1. How business can best deal withg the AG's office, especially during an investigation.
2. How the state AG's offices operate vis a vis the National Association of Attorneys General.
3. How the state AG's offices relate to federal agencies on issues of regulation of business, and where the emphasis of federal agencies may be placed in the Obama Administration.
   

The AG's advised:

If an AG is investigating your company ...

• Know what the philosophy of the office is in enforcing consumer protection laws.  A lot is driven by the personality and philosophy of the AG and his or her assistants.
• Make sure you understand the time frame for the investigation and for early resolution.  Is there a statute of limitations issue?  Understanding the time frame will avoid an imbalance of expectations.
• Prepare a briefing on the issue.  If you are meeting with staff, make it a thorough review - state the issue fairly, give them the law, and tell them what they should do as a matter of law and policy.  If you are meeting with the AG, prepare a one pager and get it to the AG at least 24 hours before the meeting.
  
• Never start any meeting with the AG's office in a state of denial.  Never assume the officials you meet with don't know the facts of the investigation or the case.  And don't go into any meeting assuming a conclusion has been drawn, or that litigation or regulatory action will result.
• Be as cooperative as you can with an eye toward resolving the issue.  Ask what the officials are thinking about in terms of charges and action, and what they would be looking for in terms of early resolution.  At an early stage, resolution may be easier to achieve.

What about the National Association of Attorneys General (NAAG)?

• NAAG acts as a facilitator for the constituent Attorneys General and focuses on consumer protection, environmental and securities matters.  The level of activity in NAAG by an Attorney General depends on the AG.
• For companies, collective action by NAAG is a much more difficult matter to manage.  Generally, you will want to figure out how to rsolve the issue sooner rather than later.
• It is incumbent on companies and organizations to know what NAAG is doing.  Big cases don't just happen overnight.  Monitor the NAAG web site, attend NAAG's meetings, if possible, and - if appropriate - offer to make presentations to NAAG.

• Under the Bush administration, the federal authorities tried to preempt state action in many areas.
• Expect officials in the Obama administration and the federal agencies to cooperate more with the states, particularly in certain industries (financial services, securities, food and drug).