Following up on record enforcement actions against the tobacco industry in the 1990s, state Attorneys General have assumed a significant role in investigating and regulating businesses and industries. Aided by broad ranging consumer protection laws, the enactment of state false claims statutes and other legislative initiatives, state Attorneys General now aggressively investigate and pursue claims against companies, often under novel theories or industry-wide sweeps. Moreover, state Attorneys General now routinely combining efforts and resources on multistate investigations—often working hand in hand with the Department of Justice or other federal agencies such as the Federal Trade Commission—or employing high-profile private practitioners to serve as special assistant Attorneys General for certain matters. The collective effect is that state Attorneys General have raised the stakes for companies and entire industries, both in terms of the level of activity and potential risks and damages.
King & Spalding’s State Attorneys General Practice is jointly led by our firm’s government investigations and public policy groups, and is supported by our strategic alliance with former Wisconsin Attorney General J.B. Van Hollen. The former U.S. Attorney for the Western District of Wisconsin, Van Hollen was first elected in 2006 and reelected by an overwhelming majority in 2010, serving two terms as Wisconsin’s 43rd attorney general. In 2013, Van Hollen was elected by his peers to serve as president of the bipartisan National Association of Attorneys General (NAAG).
King & Spalding has been at the forefront in representing clients who have found themselves the targets of state Attorney General investigations or claims for almost 30 years. Our experience began in the 1980s with our representation of Brown and Williamson Tobacco Company and continues through to today with our representation of clients facing myriad issues: including consumer protection and financial institution fraud matters; state False Claims Act investigations and qui tam litigation; Medicaid fraud, medical device, biotechnology and drug pricing investigations and litigation; antitrust litigation; and data security breach matters. King & Spalding lawyers have represented and assisted clients in investigations, litigation, and regulatory matters involving all 50 states and the District of Columbia.
King & Spalding lawyers have significant experience in serving as “national” or “coordinating” counsel in multiparty, multistate investigations and are veterans of the document production and discovery wars that frequently accompany such investigations. In fact, for more than 20 years, we have been at the forefront of developing high-quality, cost-effective solutions to the challenges of collecting, reviewing, and producing documents in complex investigations and litigation.
We always do what we can to help clients avoid or minimize the impact of state Attorneys General investigations and litigation whenever possible, but we are not afraid to vigorously contest those investigations when appropriate or to try cases when necessary. We offer the unusual combination of big firm litigation resources and lawyers who routinely try high-exposure and mission-critical cases.
Lawyers in our eight domestic offices have experience in state Attorneys General investigations across a wide range of industries and subject areas. Following is a short but representative sample of specific matters we have handled:
- Pharmaceutical/Biotechnology/Medical Device:
- We currently represent a major international pharmaceutical and biotechnology manufacturer in ongoing, parallel state and federal investigations by multiple state attorneys general, Medicaid Fraud Control Units (MFCUs), and five U.S. Attorney’s office into the promotion of one of the manufacturer’s products.
- We also represent a multinational pharmaceutical company in an ongoing state attorney general consumer protection investigation against a 50 state consortium arising out the record complied during the course of an earlier federal investigation.
- We represented Johnson & Johnson and Janssen Pharmaceuticals in a $2.2 billion global resolution of federal criminal, federal civil, and state civil liability regarding the promotion of its antipsychotic product Risperdal and other products. As part of our representation, we defended and favorably resolved an investigation brought by a consortium of more than 45 state MFCUs, negotiating state false claims act settlements with representatives of the National Association of Medicaid Fraud Control Units (NAMFCU), including the co-chair of the Global Case Committee of NAMFCU. We also represented Johnson & Johnson and Janssen Pharmaceuticals in the defense of a separate consumer protection investigation pursued by a working group of 11 states on behalf of a combined group of more than 35 states.
- We have defended major pharmaceutical companies in multiple suits brought by the New York Attorney General related to issues surrounding the disclosure of clinical trial results, and a case brought by the Kentucky Attorney General seeking injunctive relief and damages for alleged excessive prescription costs.
- We represented a global pharmaceutical manufacturer at trial in drug pricing litigation brought on behalf of the Alabama Attorney General’s office by that state’s highest profile plaintiff’s lawyer.
- We routinely provide strategic advice and counseling to pharmaceutical, medical device, and biotechnology companies in connection with the risks of follow-on and stand-alone attorney general investigations and litigation.
- Data, Privacy & Security: Having handled one of the first multistate Attorneys General data security breach investigations in the mid-2000s, our experience in this area runs deep. Today, we currently represent numerous clients in state and multistate Attorneys General investigations involving data privacy and cybersecurity issues. This has recently included negotiating the settlement of a series of related state and multi-state investigations of an FCRA regulated publicly traded corporation. Additionally, we regularly represent clients across the United States in responding to data security breach incidents, advising on state breach notice requirements and assisting in responding to state Attorneys General inquiries and investigations.
- Consumer Fraud/Financial Services/Insurance: We have defended large banks and a major accounting firm in state Attorneys General actions, including actions and investigations related to subprime lending. In other areas, we have successfully represented financial services institutions, insurance companies, accounting firms, and other entities with respect to state Attorney General investigations involving credit reporting, securities and insurance issues. We have handled (and are currently handling) a wide variety of state Attorney General matters for financial and professional services firms across the United States. This includes a matter that involves parallel federal and state investigations connected to home mortgage lending programs, as well as having represented a major bank in connection with a 20 state Attorneys General task force on municipal derivatives. We also successfully represented financial services institutions in matters related to subprime lending in Georgia and credit reporting in West Virginia. We have also represented companies in numerous state Attorneys General investigations involving securities and insurance claims.
- We have represented numerous hospital systems, academic medical centers, national pharmacy companies, and other healthcare providers and suppliers in the defense of state (and parallel federal) False Claims Act investigations, licensure actions/sanctions, Public Information Requests, and other healthcare investigations.
- We represented a number of major pharmacy chains in parallel state and federal False Claims Act investigations and lawsuits filed around the country alleging overbilling to Medicaid.
- We have represented multiple healthcare providers in state attorney general reviews of dispositions of nonprofit hospitals and/or assets of non-profit corporations and intramural disputes between non-profit private universities and affiliated teaching hospitals.
- We have handled numerous healthcare provider self-disclosures of potential healthcare regulatory violations to federal and state enforcement officials.
- Energy: Our experience representing energy companies before state Attorneys General is extensive, and crosses over a wide variety of subject areas. For instance, we are currently representing a major publicly traded energy company in series of investigations in over a dozen states focused on environmental remediation and insurance issues. We have also successfully represented both Chevron U.S.A. Inc. and Shell Oil Company in multistate Attorneys General price-gouging investigations in the wake of Hurricane Katrina, none of which uncovered evidence of illegal conduct. Furthermore, we also successfully represented Chevron U.S.A. Inc. in cases brought by the Attorneys General in New Mexico, New Jersey, New Hampshire, and Puerto Rico alleging MTBE groundwater contamination.
- Tobacco: In addition to our trial work for Brown & Williamson, we handled the complex discovery phase of the Minnesota state Attorneys General tobacco case from 1994 to 2000, including preparing motions and conferring on case strategy . We also handled all discovery matters, both document production and written discovery responses, for two of the six major tobacco companies in all 50 states.