Today at the National Association of Attorneys General (NAAG) meeting in Washington, DC, Colorado Attorney General John Suthers and Missouri Attorney General Chris Koster announced suggested best practices that could significantly change the process for AG approval and oversight of multistate investigations and large-scale consumer investigations. AG Suthers outlined several important issues for AGs to consider in changing their approval policies:
- The existence of a sufficient legal and factual threshold prior to initiating an investigation or lawsuit;
- The extent to which AGs should personally consent, oversee, monitor, and control multistate investigations;
- Whether to provide advance notice to targets, unless doing so would endanger the public or risk the destruction of evidence; and
- The nature and extent to which NAAG should be involved in the multistate process, including whether NAAG should sign off on multistates after a certain state threshold, and whether to create a NAAG committee to address these issues.
AG Suthers informed the audience that although his personal approval was required prior for multistate litigation, he recently changed his office policy so that his consent is now required for the commencement of any multistate investigation. AG Suthers explained that this was necessary to ensure that any investigations start out and remain aligned with state interests.
AG Koster also announced significant policy changes at his office: approval from executive level administration is required before the commencement of any multistate investigation, or any large-scale consumer investigation of any publicly-traded company or private company with 10 or more employees. AG Koster discussed the information staff must provide in seeking approval for multistate investigations, such as an explanation of the alleged conduct, and a description of the involvement and role of other states. The AG emphasized his office always informs targets in advance of a Civil Investigative Demand (CID) or lawsuit because he believes it is important that the target is not surprised.
At the conclusion of the session, AG Koster stated that NAAG may compile a booklet for use in new AG orientation regarding different AG management structures and how they each address AG consent and oversight of multistate investigations.
The movement by AGs towards multistate reform is a significant change that will provide AGs with greater oversight and control over the actions of their staff, and will give targets sufficient time to prepare a response to the multistate.
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