Role of Attorneys General in Multitstate Litigation, Jason Lynch, 101 Colum L R 1998 (2001) (Edited for Class)
101 Colum. L. Rev. 1998, * Copyright (c) 2001 The Columbia Law Review Columbia Law Review December, 2001 101 Colum. L. Rev. 1998 NOTE: FEDERALISM, SEPARATION OF POWERS, AND THE ROLE OF STATE ATTORNEYS GENERAL IN MULTISTATE LITIGATION Jason Lynch SUMMARY ... Over the past two decades, state attorneys general have developed and refined the practice of multistate litigation as a powerful law enforcement tool. ... Part I reviews the powers and duties of state attorneys general and describes the rise of the multistate litigation phenomenon. ... Part III then identifies a facet of multistate litigation that may be relevant to a separation of powers analysis but which critics have yet to consider: namely the enforcement of federal law by state attorneys general. While this facet of multistate litigation is the one most vulnerable to criticism on constitutional grounds, Part III argues that several considerations minimize the concerns raised by a separation of powers challenge to enforcement of federal law by state attorneys general. ... I. State Attorneys General and Multistate Litigation ... This type of cooperative law enforcement activity among state attorneys general became known as multistate litigation. ... Whether filed pursuant to state or federal law, multistate litigation is the product of close cooperation among the attorneys general who are parties to the lawsuit. ... This is an inversion of the more commonly expressed federalism concern, which is illustrated by the content of the Supreme Court's docket. ... Large, wealthy, and well lawyered corporations often have far greater financial and legal personnel resources than even a large state attorney general's office. Faced with the daunting prospect of investigating and prosecuting such defendants, state attorneys general began in the early 1980s to coordinate their prosecutions and share litigation resources. This practice became known as multistate litigation, and it magnified the power and institutional resources that attorneys general could direct toward targets of their investigations. Critics challenge this practice and, by arguing that multistate litigation expands the power of attorneys general in violation of fundamental principles of federalism and separation of powers, seek to undermine its legitimacy. This Note analyzes those criticisms and argues that multistate litigation fully comports with the requirements of federalism and separation of powers. TEXT: [*1998] Introduction "Who do these people think they are?" -U.S. Senator John McCain .lnfootnotes 1 Over the past two decades, state attorneys general have developed and refined the practice of multistate litigation as a powerful law enforcement tool. In groups ranging from two states to all fifty, the attorneys general now routinely prosecute cases jointly, closely coordinating with each other and sharing legal theories, discovery materials, court filings, litigation expenses, and even staff. The approach has been strikingly effective, and prominent corporations that might otherwise have evaded liability in individual state lawsuits - companies like America Online, Bausch & Lomb, Sears, General Motors, and the major tobacco manufacturers - have been forced to change their business practices and pay significant settlements when faced with the combined power and institutional resources that a multistate lawsuit brings to bear upon them. Critics, in response, have raised alarms and attacked the legitimacy of multistate litigation. This Note analyzes an important aspect of those criticisms - that in pressing multistate cases, state attorneys general violate fundamental principles of federalism and separation of powers. Opponents of multistate litigation have been unrestrained in their attacks. One critic of multistate cases, himself an attorney general, has [*1999] called the phenomenon "the greatest threat to the rule of law today," 2 and opponents of multistate litigation have begun calling on state legislatures and Congress to restrict the powers of state attorneys general to pursue these cases. 3 Critics of multistate litigation believe the practice is objectionable on a number of grounds, among which is that multistate cases impermissibly increase the power of state attorneys general in violation of principles of federalism and separation of powers. 4 In the words of one critic, through multistate litigation the states "get together and by agreement create a new government or regime among themselves, replacing the prerogatives and powers of the constitutionally created federal government." 5 Another says: Recent abuses in government litigation have undermined both federalism and the separation of powers. The purpose of the tobacco litigation ... was to establish through the action of several states a national policy that is properly reserved first to each [*2000] state legislature and then to Congress in the exercise of its enumerated powers. 6 Their federalism argument is noteworthy in that it is based on the assertion that through multistate cases the states are encroaching on federal power. Federalism concerns have arisen more commonly, at least recently, in the context of protecting state sovereignty from encroachment by the federal government. 7 The critics thus far have made their claims primarily in speeches, policy papers, remarks during panel discussions at think tank conferences, and in newspaper opinion pieces. 8 Their analyses are often framed in overheated terms such as, "our forefathers understood the dangers of unchecked power ... [and the] free market and the cause of human liberty cannot survive much more of this litigation madness." 9 Despite this inflammatory mode of argument, these claims should be taken seriously because constitutional arguments against features of multistate litigation are beginning to be made in federal courts. 10 Moreover, [*2001] among those making the arguments publicly are prominent current and former public officials who are likely to wield influence in convincing state legislatures and Congress to consider imposing restraints on the ability of attorneys general to pursue these cases. 11 The time is ripe, therefore, for a systematic review of these federalism and separation of powers critiques. Using the decisions of the United States Supreme Court as the benchmark articulation of federalism and separation of powers principles, this Note evaluates critiques of multistate litigation and argues that the prosecution of multistate cases comports with the strictures of federalism and separation of powers. In evaluating the claims made by critics of multistate litigation, this Note also develops and considers a constitutional argument that could be, but has not been, made by them. Part I reviews the powers and duties of state attorneys general and describes the rise of the multistate litigation phenomenon. This Part emphasizes that what is novel about multistate cases is the degree and quality of interstate cooperation being used to enforce the law. Part II evaluates the claim that multistate litigation violates principles of federalism by examining two types of federalism based limits on state action: permanent limits and contingent limits. Permanent limits on state action, as the label implies, are unchanging and include those expressly stated in the text of the Constitution and those that have been inferred by the Supreme Court from the structure of the constitutional plan. Contingent limits on state action - the boundaries of which may shift as a result of action by Congress - include constitutional prohibitions on state action that may be waived by Congress and limits, such as preemption and the Dormant Commerce Clause doctrine, in areas where there is concurrent federal and state authority. Part III considers the claim that multistate litigation violates principles of separation of powers. This Part finds that critics of multistate litigation have misconstrued separation of powers doctrine in an attempt to apply it to multistate cases. In fact, separation of powers doctrine has little to say about most multistate litigation. Part III then identifies a facet of multistate litigation that may be relevant to a separation of powers analysis but which critics have yet to consider: namely the enforcement of federal law by state attorneys general. While this facet of multistate litigation is the one most vulnerable to criticism on constitutional grounds, Part III argues that several considerations minimize the concerns raised [*2002] by a separation of powers challenge to enforcement of federal law by state attorneys general. I. State Attorneys General and Multistate Litigation A. Role and Powers of State Attorneys General The office of attorney general originated in English legal history where the attorney general was the appointed representative of the sovereign before the courts. 12 Today, state attorneys general are independent executive officers popularly elected in forty-three states. 13 In five of the remaining states, attorneys general are appointed by the governor (Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming); in Maine the selection is made by secret ballot of the legislature; and in Tennessee it is made by the state supreme court. 14 The powers and responsibilities of state attorneys general are defined, often in broad terms, by state constitutions and statutes 15 - commonly directing attorneys general no more specifically than to "perform duties 'prescribed by law'" - and in most states attorneys general are recognized as possessing all powers exercised by the office at common law. 16 The modern attorney general is the chief legal officer of the state, controlling litigation involving the state and performing a range of other functions, including provision of legal counsel to the governor and state agencies, oversight of criminal law enforcement, engagement in public advocacy through the initiation of civil enforcement [*2003] litigation, and the exercise of investigative authority in the prosecution of government misconduct. 17 The specific contents of an attorney general's portfolio of powers and duties vary from state to state because state legislatures may play a role in defining the office by statute and through control over the attorney general's budget. 18 State court decisions also have shaped the office differently in different jurisdictions. The power to control state litigation, for example, is often at the center of controversy. It is not uncommon for attorneys general and governors (or other state officers) to disagree over litigation posture, and while in most states the attorney general possesses ultimate authority over litigation, a few disputes have produced state case law giving final authority to the governor. 19 Generally, however, the attorney general may "exercise all such authority as the public interest requires" and "has wide discretion in making the determination as to the public interest." 20 B. The Rise of Multistate Litigation Traditionally, in exercising their broad prosecutorial powers, state attorneys general brought legal actions against private parties on an individual and intrastate basis. That is, an attorney general would act as a single plaintiff and sue private parties in the courts of that attorney general's state to enforce, for example, state consumer protection and antitrust laws. 21 In some instances, such as those involving federal antitrust law, attorneys general may pursue enforcement actions as federal claims in federal court. 22 Beginning early in the 1980s 23 and without much public attention, state attorneys general began cooperating with each other in ways they never had before. Faced with the daunting prospect of prosecuting large, [*2004] wealthy, and well lawyered corporations - defendants that often have many times the financial and legal personnel resources of even a large attorney general's office - for violations of state law, state attorneys general began to reach across state lines for help. The attorneys general began looking to other states that might be investigating similar complaints against a defendant and, in groups ranging from two states to all fifty, started to prosecute their cases jointly, sharing with each other legal theories, discovery materials, court filings, litigation expenses, and even staff. This type of cooperative law enforcement activity among state attorneys general became known as multistate litigation. In this litigation, each state is the plaintiff in its own case but the coordination among the attorneys general is close. 24 Usually, the offices are so closely coordinated that those participating in the case will choose one or two lead states and cede to them primary responsibility for negotiating with the defendant on behalf of all the states involved. Over the past two decades, multistate litigation has grown to become a powerful and commonly used law enforcement tool. The trend toward increased cooperation among state attorneys general accelerated later in the 1980s with the promulgation by the National Association of Attorneys General (NAAG) of a series of antitrust and consumer protection enforcement guidelines. 25 The guidelines informally coordinated state enforcement actions by encouraging attorneys general to follow uniform standards in the exercise of their prosecutorial discretion. 26 Around the same time as the appearance of enforcement guidelines, cooperation among attorneys general became more formal and effective as they began to coordinate their enforcement litigation on an interstate basis, simultaneously pursuing the same causes of action in different states against the same private parties. 27 [*2005] Contributing to the rise of multistate litigation were the policies of the Reagan Administration. When President Reagan took office, the Justice Department quickly terminated antitrust litigation against IBM, an action that foreshadowed the laissez faire antitrust and consumer protection enforcement guidelines that were soon promulgated by the Justice Department and the Federal Trade Commission. 28 During the Reagan years, the size of the staff of the FTC was cut in half, and the agency brought just forty-one new consumer fraud cases in 1982, fewer than half the number under President Jimmy Carter two years earlier. 29 State attorneys general stepped in to fill what they perceived to be a void in antitrust and consumer protection enforcement created by the reduced federal presence in these areas. 30 While the policies of the Reagan administration created a climate that encouraged state attorneys general to pursue cases on a multistate basis, the eventual rise of multistate litigation as a frequently used enforcement tool by state attorneys general seems in retrospect to have been inevitable. In enforcement actions against national or multinational corporations, individual attorneys general often had been outgunned. 31 For instance, New York, which has one of the largest attorney general offices in the nation, has fewer than thirty lawyers assigned to consumer fraud and antitrust cases. 32 A state attorney general pursuing a case against a major corporation would have to commit all or significant portions of her resources to the case, thereby preventing work on other cases. 33 In addition, after the early multistate cases, the state attorneys general saw how interstate cooperation magnified their power and increased the effectiveness of their enforcement actions. As Tom Miller, the Attorney General of Iowa, has said, "What we've found is that by coming together, the dynamics of the cases change... . When a corporation [*2006] discovered it had to face 30 states, instead of one, it suddenly became much more serious about dealing with the issue." 34 Another factor that contributed to the rise of multistate litigation during the past two decades was the dramatic expansion of telecommunications technology since 1980. Fax machines only became widely used in the 1980s, and the development of e-mail allowed for more efficient sharing of information and written work product, such as pleadings and legal briefs, than had been possible before. The wide availability of fax and e-mail technology helped relatively small and overworked offices achieve the level of close cooperation required to pursue multistate cases. 35 The multistate case against the major cigarette manufacturers that was launched in 1995 was a watershed for this practice. The forty-six state, $ 206 billion settlement reached with the major tobacco companies in 1998 36 - a settlement with an industry that had never lost a lawsuit against it and that wields significant clout in Congress - underscored how powerful state attorneys general had become when they worked together and drew national attention to their activities. As one observer noted, "Before the tobacco settlement, most people were only vaguely aware of the role of their state A.G... But now the A.G.'s have a national awareness, and a positive one at that. That's a powerful tool. And you can't underestimate that." 37 In the years preceding and following the tobacco settlement, the attorneys general have won scores of significant multistate cases. As an example of their effectiveness, between 1995 and 1997 the attorneys general reached settlements in multistate cases with America Online, American Cyanamid, Bausch & Lomb, General Motors, Louisiana Pacific, Mazda, Packard Bell, and Sears, Roebuck. 38 In addition to producing agreements under which defendants promise to stop the activity targeted by the litigation, such as price fixing or deceptive advertising, multistate cases have produced significant monetary settlements. In 1987, forty-one attorneys general reached an agreement with Chrysler under which the car company paid more than $ 16 million to customers whose odometers had been tampered with before they bought their cars. 39 Sears, facing multistate litigation pressed by fifty states in 1997, agreed to pay $ 165 million in penalties, refunds, and legal fees in a case concerning the collection of credit card bills from customers who had [*2007] filed for bankruptcy protection. 40 In a multistate case alleging an unlawful tying arrangement under section 1 of the Sherman Act, the attorneys general of thirty-three states attained a settlement under which Sandoz Pharmaceuticals Corporation agreed to pay $ 20 million, including $ 10 million in credits to eligible customers and $ 4 million in attorneys' fees to the states. 41 All fifty states and the District of Columbia reached a $ 7.2 million settlement with Keds Corporation in a case involving allegations that Keds conspired to fix the resale prices of women's athletic shoes. 42 And in 2000, generic drug manufacturer Mylan Laboratories reached a settlement with thirty-three states for $ 147 million in a case that alleged Mylan had unlawfully attempted to corner the market in two drugs. 43 C. The Forms of Multistate Litigation and Methods of Cooperation Multistate cases can proceed in either state or federal court, depending upon whether the claim being pursued by the attorneys general arises under state or federal law. Multistate litigation arising under state law actually consists of multiple cases: virtual mirror images of the same complaint, adjusted if necessary to account for minor differences in state law, filed in the courts of each state participating in the litigation. In 1999 and 2000, for example, a lawsuit filed by a single state was followed by lawsuits by attorneys general in twenty-seven states accusing Publisher's Clearing House of deceptive trade practices in the advertising and promotion of its sweepstakes. 44 When Publisher's Clearing House settled most of the litigation in August 2001 for $ 34 million and a commitment to change its business practices, it was actually settling separate legal actions that had been pressed collectively by the states. 45 By way of contrast, when states file an action in federal court pursuant to authorization under federal law, the states are joint plaintiffs signing the same complaint. 46 There is, in these cases, a single action proceeding before a single court. The recent antitrust suit by nineteen states and the District of Columbia against Microsoft followed this model. 47 [*2008] Whether filed pursuant to state or federal law, multistate litigation is the product of close cooperation among the attorneys general who are parties to the lawsuit. In the typical multistate case, the offices of the attorneys general participating in the litigation form a working group that includes staff from each office but is led by a designated lead state. 48 This group meets regularly by conference call to discuss strategy, share information developed through each state's investigation, and agree on how they will proceed with the case. The attorneys general also share staff and the costs incurred during the litigation, creating, in effect, a temporary law firm dedicated to a single case that has more resources available to it than any individual office could commit to the matter alone. 49 An important form of cooperation among state attorneys general in multistate cases is the sharing of discovery, pleadings, and legal memoranda. Collaboration on these matters and materials prevents redundant effort among participating states and facilitates the recruitment of other states to join litigation. 50 Moreover, even though each attorney general individually files an action in her state's court, because each action is based on the same or similar legal theories and discovery, the defendant is faced with what amounts to a single large lawsuit by multiple states and is forced to engage and negotiate with the participating states as a group. 51 Importantly, each attorney general retains the authority to end her participation in a suit or reject the terms of a settlement offer. Cooperation among the attorneys general is facilitated by the nature and activities of NAAG, which provides attorneys general with a ready-made infrastructure for pursuing multistate litigation. Historically, NAAG has been a nonpartisan organization coordinating the activities of its member attorneys general through several meetings each year. 52 In addition, NAAG facilitates the coordination of multistate cases through the efforts of its working groups, such as the active and successful NAAG Multistate Antitrust Task Force. 53 NAAG even administers a fund from which attorneys general can draw to pay for expert witnesses and other litigation related expenses. 54 [*2009] D. What Is New About Multistate Litigation At its core, multistate litigation is about interstate cooperation. Most multistate cases can rely on conventional legal theories and need not present any radical challenge to the legal status quo. 55 "What is new about these cases is the unprecedented level of cooperation and coordination between the states bringing them." 56 When states bring actions in their courts that are mirror images of actions being brought by other states, their collective enforcement powers are dramatically enhanced. 57 Multistate actions possess a critical mass, both in terms of resources poured into the case by the prosecuting states and the magnitude of potential sanctions a defendant faces, that forces defendant corporations to respond, usually in terms of a settlement correcting the behavior about which the attorneys general are complaining and a monetary payment. Cooperating states also extend the geographical reach of their enforcement powers. The attorney general of a small or mid-sized state, if she can afford to bring an action at all against a major corporation, can, at best, affect the behavior of the defendant in her state alone. Once several states band together, a litigation victory effectively imposes the settlement terms on the defendant on a national basis. If a corporation is forced to change its activities in several states, it is likely to do so in every state in which it operates. 58 Through interstate cooperation, the enforcement powers of the state attorneys general have become more potent. Where before the influence of attorneys general stopped at the borders of their states, today groups of attorneys general can affect the behavior of corporations nationally. It is this rather sudden magnification of the power of the states through the vehicle of multistate litigation that has led some to criticize multistate litigation as violating principles of federalism and separation of powers. 59 I FOOTNOTES: n1. David J. Morrow, Transporting Lawsuits Across State Lines, N.Y. Times, Nov. 9, 1997, 3, at 1 (quoting Senator John McCain criticizing state attorneys general). n2. Alabama Attorney General William H. Pryor, Jr., Fulfilling the Reagan Revolution by Limiting Government Litigation, Address at the Reagan Forum 2 (Nov. 14, 2000) (on file with the Columbia Law Review) [hereinafter Pryor, Reagan Revolution]. n3. See John R. Wilke, Mediator in Microsoft Suit Blasts State Role in Antitrust Enforcement, Wall St. J., Sept. 19, 2000, at B15 (quoting Judge Posner); Pryor, Reagan Revolution, supra note 2, at 17-19; Alabama Attorney General William H. Pryor, Jr., Regulation by Litigation: The New Wave of Government-Sponsored Litigation, Remarks at Manhattan Institute Conference 5-6 (June 22, 1999) (on file with the Columbia Law Review) [hereinafter Pryor, Regulation by Litigation]. n4. See Thomas C. O'Brien, Constitutional and Antitrust Violations of the Multistate Tobacco Settlement, Policy Analysis (Cato Institute, Washington, D.C.) May 18, 2000, at 1, 8-10, available at http://www.cato.org/pubs/pas/pa-371es.html (on file with the Columbia Law Review); Alabama Attorney General William H. Pryor, Jr., The Law is at Risk in Tobacco Suits, N.Y. Times, Apr. 27, 1997, 4, at 15 [hereinafter Pryor, Law at Risk]; Hal Stratton, Attorneys General in State of Collusion, Wall St. J., June 10, 1988, at 22; Pryor, Reagan Revolution, supra note 2, at 14-19; Pryor, Regulation by Litigation, supra note 3, at 2-4; U.S. Attorney General Richard Thornburgh, Regulation by Litigation: The New Wave of Government-Sponsored Litigation, Remarks at Manhattan Institute Conference 26 (June 22, 1999) (on file with the Columbia Law Review); see also Smoke Screen, Wall St. J., Feb. 20, 2001, at A22 (urging "the Justice Department to challenge the very constitutionality of the tobacco settlement"). In addition to federalism and separation of powers claims, critics advance nonconstitutional arguments against multistate litigation. They argue, for example, that the retention of settlement proceeds by attorneys general infringes on the appropriations power of state legislatures by giving these officials an off-budget revenue source; that the use in some cases of private lawyers through contingency fee arrangements is unethical; and that because multistate cases pose such a significant liability threat to defendants, these cases result in "legalized extortion." See, e.g., Lester Brickman, Regulation by Litigation: The New Wave of Government-Sponsored Litigation, Remarks at Manhattan Institute Conference 27-29 (June 22, 1999) ("My thesis is simple. Partnerships between state governments and private attorneys [in multistate cases] amount to a corruption of both legal ethics and the legal process.") (on file with the Columbia Law Review). Consideration of these nonconstitutional criticisms is beyond the scope of this Note. n5. O'Brien, supra note 4, at 8. n6. Pryor, Reagan Revolution, supra note 2, at 15-16. n7. See, e.g., Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 962-63, 968-69 (2001) (holding that the Americans with Disabilities Act is not "appropriate legislation" under Section 5 of the Fourteenth Amendment and, therefore, does not abrogate states' immunity from suits by citizens for money damages); United States v. Morrison, 529 U.S. 599, 627 (2000) (holding that the civil rights remedy of the Violence Against Women Act exceeded Congress's power under both the Commerce Clause and Section 5 of the Fourteenth Amendment); Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts"); City of Boerne v. Flores, 521 U.S. 507, 529-36 (1997) (finding that the Religious Freedom Restoration Act exceeded Congress's power under Section 5 of the Fourteenth Amendment); Printz v. United States, 521 U.S. 898, 933 (1997) (holding that the federal government may not compel state executive officials to administer federal regulatory programs); United States v. Lopez, 514 U.S. 549, 567-85 (1995) (finding the Gun-Free School Zones Act to exceed Congress's power under the Commerce Clause); New York v. United States, 505 U.S. 144, 188 (1992) (holding that the federal government may not compel state legislatures to enact federal regulatory programs). But see U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 844-45 (1995) (Kennedy, J., concurring) (finding unconstitutional a term limit amendment to the Arkansas State Constitution limiting the number of terms a member of the U.S. House of Representatives or Senate may serve because it "intrudes upon [the] federal domain"). n8. See supra notes 2-4. One commentator has examined whether nonbinding national guidelines for attorney general prosecutions comport with principles of federalism. Note, To Form a More Perfect Union?: Federalism and Informal Interstate Cooperation, 102 Harv. L. Rev. 842, 842 & n.3 (1989). As of this writing, however, there has been no treatment in the academic literature of whether multistate cases violate principles of federalism or separation of powers. n9. Pryor, Regulation by Litigation, supra note 3, at 6. n10. PTI, Inc. v. Philip Morris Inc., 100 F. Supp. 2d 1179, 1187, 1197-98 (C.D. Cal. 2000); First Am. Compl., Star Scientific, Inc. v. Earley at 1, 31-47, No. 3:00CV835 (E.D. Va. filed Jan. 9, 2001) (on file with the Columbia Law Review). Two commentators, though, have observed that "whether or not the multistate enforcement investigation comports with federalism principles ... is generally only of theoretical interest." Stephen Paul Mahinka & Kathleen M. Sanzo, Multistate Antitrust and Consumer Protection Investigations: Practical Concerns, 63 Antitrust L.J. 213, 214 (1994). That may have once been the case. Today, as this Introduction describes, prominent commentators are criticizing the attorneys general on just this ground. n11. Former United States Attorney General Richard Thornburgh, Attorney General of Alabama William H. Pryor, Jr., and former Attorney General of New Mexico Hal Stratton have spoken out on this issue. See supra notes 2-4. The quote at the beginning of the Introduction of this Note identifies at least one United States senator, John McCain, who would appear to welcome the imposition of restraints on the activities of the attorneys general. n12. State Attorneys General: Powers and Responsibilities 15 (Lynne M. Ross ed., 1990) [hereinafter Powers & Responsibilities]. The office of attorney general is an ancient one, "older than the United States." Florida ex rel Shevin v. Exxon Corp., 526 F.2d 266, 268 (5th Cir. 1976); see Powers & Responsibilities, supra, at 3. In sixteenth-century England, the responsibility and concomitant powers of representing the sovereign as legal counsel were consolidated into a single office that became the chief representative of the crown in the courts. See VI W. S. Holdsworth, A History of English Law 457-70 (1924) (tracing the evolution of the crown's law officers). The office, though subject to the command of the crown, wielded significant power and discretion in its sphere. Not only did the attorney general provide legal counsel to and pursue legal actions on behalf of the sovereign, but by the middle of the eighteenth century the office also came to be responsible more generally for protecting the public's interests. See XII Holdsworth, supra, at 305 & n.6 (1938). "Transposition of the [office of attorney general] to this country, where governmental initiative was diffused among the officers of the executive branch and the many individuals comprising the legislative branch ... broadened this area of the attorney general's discretion," and state attorneys general historically have "enjoyed a significant degree of autonomy." Florida ex rel Shevin, 526 F.2d at 268. n13. Powers & Responsibilities, supra note 12, at 15. n14. Id. n15. Id. at 40; Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 Fla. J.L. & Pub. Pol'y 1, 3 (1993); 7A C.J.S. Attorney General 2 (1980). n16. Powers & Responsibilities, supra note 12, at 31, 35-39; see also Florida ex rel Shevin, 526 F.2d at 268 ("Their duties and powers typically are not exhaustively defined by either constitution or statute but include all those exercised at common law."). n17. Powers & Responsibilities, supra note 12, at 11-14; see, e.g., Lacy H. Thornburg, Changes in the State's Law Firm: The Powers, Duties and Operations of the Office of the Attorney General, 12 Campbell L. Rev. 343, 361-80 (1990) (describing the structure and responsibilities of North Carolina's attorney general's office). n18. Florida ex rel Shevin, 526 F.2d at 268. n19. Compare Feeney v. Commonwealth, 366 N.E.2d 1262, 1266-67 (Mass. 1977) (holding attorney general possesses ultimate authority over litigation), with People ex rel Deukmejian v. Brown, 624 P.2d 1206, 1209 (Cal. 1981) (holding governor possesses ultimate authority over litigation). n20. Florida ex rel Shevin, 526 F. 2d at 268-69 (listing cases). n21. Interview with James E. Tierney, Attorney General of Maine, 1980-1990, in New York, N.Y. (July 24, 2001) (on file with the Columbia Law Review) [hereinafter Tierney Interview]; Mahinka & Sanzo, supra note 10, at 215, 219-24. n22. States may bring actions for injunctive relief and to recover damages in their capacities as direct purchasers and on behalf of their consumers under the parens patriae provisions of federal antitrust laws. 15 U.S.C. 15c (1994); Mahinka & Sanzo, supra note 10, at 215. Injunctive relief can also be sought by the states under section 26 of the Clayton Act. 15 U.S.C. 26 (1994). n23. One of the earliest multistate cases was state enforcement of federal antitrust laws. In re Mid-Atl. Toyota Antitrust Litig., 516 F. Supp. 1287, 1289 (D. Md. 1981), settlement approved, 605 F. Supp. 440 (D. Md. 1984) (prosecuting sale of automobiles allegedly unlawfully tied to purchase of accessories). n24. In multistate cases enforcing federal law, the states act as joint plaintiffs in a single legal action. See infra Part I.C. n25. NAAG, founded in 1907, is the professional organization of state attorneys general and serves as a nonpartisan forum in which attorneys general share information and coordinate their activities. The membership of NAAG consists of the attorneys general of the fifty states, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. National Association of Attorneys General, at http://www.naag.org/about/index.cfm (last visited Aug. 13, 2001) (on file with the Columbia Law Review); Vertical Restraints Guidelines, 49 Antitrust & Trade Reg. Rep. (BNA) No. 1243, at 996 (Dec. 5, 1985); Horizontal Merger Guidelines, 52 Antitrust & Trade Reg. Rep. (BNA) No. 1306, at S-1 (Mar. 12, 1987); Guidelines for Air Travel Advertising, 53 Antitrust & Trade Reg. Rep. (BNA) No. 1345, at S-1 (Dec. 17, 1987); Report and Recommended Guidelines of NAAG's Task Force on the Car Rental Industry, 55 Antitrust & Trade Reg. Rep. (BNA) No. 1395, at 1022 (Dec. 15, 1988). n26. See Note, supra note 8, at 842 n.3. n27. See Tierney Interview, supra note 21; Mahinka & Sanzo, supra note 10, at 214-16; Paul M. Barrett, Attorneys General Flex Their Muscles: State Officials Join Forces to Press Consumer and Antitrust Concerns, Wall St. J., July 13, 1988, at 25; Morrow, supra note 1; Thomas Greene et al., State Antitrust Law and Enforcement 6 (Mar. 19, 1999) (unpublished manuscript, on file with the Columbia Law Review); Jacob Weisberg, Microsuits: Why State Attorneys General Are Suddenly Suing Everybody, Slate (May 22, 1998), at http://slate.msn.com/StrangeBedfellow/98-05-22/StrangeBedfellow.asp. (on file with the Columbia Law Review). n28. Pryor, Reagan Revolution, supra note 2, at 4-5. n29. Morrow, supra note 1. n30. See, e.g., Andrew I. Gavil, Reconstructing the Jurisdictional Foundation of Antitrust Federalism, 61 Geo. Wash. L. Rev. 657, 661-62 (1993) (suggesting that increased level of state enforcement activity in antitrust and consumer protection areas was in part a response to perceived inadequacy of federal enforcement); Morrow, supra note 1 (quoting Federal Trade Commission official saying reduced enforcement by the Reagan administration "left a big hole ... which the attorneys general stepped in to fill"); Pryor, Regulation by Litigation, supra note 3, at 5 (citing NAAG antitrust guidelines as beginning of response by state attorneys general to Reagan administration policies). n31. Tierney Interview, supra note 21. n32. Morrow, supra note 1. n33. Tierney Interview, supra note 21. n34. Morrow, supra note 1; see also Barrett, supra note 27 ("By working together, the prosecutors can share the cost of investigations and wield greater clout. 'There's even more strength in numbers,' explains Oregon Attorney General David Frohnmayer. Companies pay closer attention, he says, when they face potential prosecution from several states at once."). n35. Tierney Interview, supra note 21. n36. A New Tobacco Deal, N.Y. Times, Nov. 22, 1998, 4, at 2. n37. Morrow, supra note 1 (quoting Jodie Bernstein, Director, Federal Trade Commission's Bureau of Consumer Protection). N38. Morrow, supra note 1. n39. Barrett, supra note 27. n40. Morrow, supra note 1. n41. Mahinka & Sanzo, supra note 10, at 218-19. n42. Id. at 217. n43. Teresa F. Lindeman, Mylan to Pay $ 147 Million to Settle Suits on Price Hikes, Pittsburgh Post-Gazette, July 13, 2000, at A1. n44. See Brandon Loew & Lauren Rosenberg, Publisher's Clearing House: A Case Study in Multistate Litigation by Attorneys General 16-24 (2001) (unpublished manuscript, on file with the Columbia Law Review). n45. Id. at 25; National Association of State Attorneys General, 26 Attorneys General Win $ 34 Million Settlement From Publishers Clearing House as Restitution for Consumers, at http://www.naag.org/features/pubhouseres.cfm (last visited Oct. 18, 2001) (on file with the Columbia Law Review). n46. Kevin J. O'Connor, Is the Illinois Brick Wall Crumbling?, Antitrust, Summer 2001, at 34, 36 [hereinafter O'Connor, Illinois Brick]. n47. Compl., New York v. Microsoft (D.D.C. filed May 18, 1998), http://www.naag.org/features/microsoft/court.cfm (on file with the Columbia Law Review). n48. O'Connor, Illinois Brick, supra note 46, at 36; Tierney Interview, supra note 21; Interview with State Antitrust Enforcer, Kevin J. O'Connor, Wisconsin Department of Justice, Antitrust, Spring 1999, at 35, 39 [hereinafter O'Connor Interview]. n49. See Barrett, supra note 27; Morrow, supra note 1; Tierney Interview, supra note 21. n50. Tierney Interview, supra note 21. n51. Id. n52. Id. n53. Mahinka & Sanzo, supra note 10, at 215. n54. Tierney Interview, supra note 21. This fund is called the "milk fund" by attorneys general because it was created with the proceeds of a settlement in a milk price-fixing case. Id.; O'Connor Interview, supra note 48, at 40. n55. Some believe that the tobacco litigation was an exception. Compare Pryor, Law at Risk, supra note 4 ("The state attorneys general who are suing the tobacco industry are ... trying to get around accepted legal principles."), with Attorney General Eliot Spitzer, Regulation by Litigation: The New Wave of Government-Sponsored Litigation, Remarks at Manhattan Institute Conference 7 (June 22, 1999) (stating that the tobacco cases "do not make new law" and "contain no new theories of liability") (on file with the Columbia Law Review). n56. Tierney Interview, supra note 21. n57. See supra note 34 and accompanying text. n58. Tierney Interview, supra note 21. Note, however, that states participating in a settlement cannot force a defendant to adhere to its terms within jurisdictions that are not parties to the settlement. A corporation is likely to conform its behavior nationwide to that mandated by a settlement because it is more efficient to manage a company according to a set of unified standards rather than standards that differ according to jurisdiction. n59. See supra notes 2, 4 and accompanying text.