Recent Case Briefs: Attorney General Powers and Duties

The fourth edition of the most authoritative and complete source for information about state attorney general offices.

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Recent Decisions Upholding Attorney General Prosecutorial Discretion In Cases Alleging Retaliatory Prosecution

Several recent decisions, in state courts in Massachusetts and New York and in federal courts in New York, have clarified that statements made by the attorney general in connection with investigations and enforcement actions do not necessarily indicate improper bias on the part of the attorney general and do not warrant dismissal of the lawsuits….

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Attorney General’s Civil Subpoenas Upheld by State Trial and Appellate Courts and Federal Court In Parallel Civil/Criminal Proceedings

New York courts recently issued decisions involving the interplay between criminal and civil investigations. In People v. Trump Organization, No. 451685/2020 (N.Y. Sup.Ct. Feb. 17, 2022), the court denied a motion to quash subpoenas issued in a civil investigation while a parallel criminal investigation was occurring. The attorney general initiated a civil investigation into whether…

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Massachusetts “anti-SLAPP” Statute Does Not Apply to Attorney General Actions

The Supreme Judicial Court of Massachusetts has ruled that the state’s “anti-SLAPP”1 statute does not apply to actions by the attorney general. Commonwealth v. Exxon-Mobil, No. 13211 (Mass. May 24, 2022). Anti-SLAPP statutes “provide defendants a way to quickly dismiss meritless lawsuits —filed against them for exercising their First Amendment rights. These laws aim to…

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DC Court of Appeals Defines Qualifications for Candidates for DC Attorney General

In a rare case addressing the qualifications for the office of attorney general, the District of Columbia Court of Appeals held that a candidate’s tenure as a city councilmember did not satisfy the D.C. Code’s requirement that the District of Columbia attorney general must have “(5) . . . been actively engaged, for at least…

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Texas Court of Criminal Appeals Rules that Attorney General May Not Prosecute Election Law Violations

The Texas Court of Criminal Appeals recently ruled, on separation of powers grounds, that the attorney general of Texas does not have authority to prosecute violations of Texas’ election laws, and that a statute purporting to give the attorney general that power is unconstitutional. Texas v. Stephens, No. PD-1033-20 (Tex. Crim. App. Dec. 15, 2021)….

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Kansas Attorney General May Appeal Trial Court Decision After Intervening

The Kansas supreme court recently issued a decision on mask mandates which addressed the attorney general’s right to appeal after having intervened in the case. Butler v. Shawnee Mission Sch. Dist. Bd. of Educ., 2022 Kan. LEXIS 4 (Kan. Jan. 7, 2022). The school board of Shawnee Mission, Kansas adopted a mask mandate to address…

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Recent Decisions on the Common Interest Doctrine and Multistate Cases

State courts in Minnesota and Vermont have reached different conclusions about whether documents produced and exchanged by state attorneys general, working together on investigations, are protected by the common interest doctrine from release under state public records acts. In each case, Energy Policy Advocates (EPA) made requests under the Minnesota and Vermont public records statutes…

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Tennessee Attorney General Use of Investigative Demands Approved

A recent decision in Tennessee reaffirmed that attorney general’s civil investigative authority and upheld sanctions against a company who failed to produce the requested material. In In re Investigation of Wall and Assocs. 2021 Tenn. App. LEXIS 449 (Tenn. Ct. App. Nov. 12. 2021), the defendant was a provider of taxpayer services.  The Tennessee attorney…

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State Attorneys General May Obtain Disgorgement of Profits Obtained Outside the State

A New York district court recently reaffirmed the right of state attorneys general to seek disgorgement on a national level from defendants in antitrust cases brought by the states. The decision  in FTC et al. v. Vyera Pharmaceuticals, No. 20cv00706 (S.D.N.Y. Sept. 24, 2021) is particularly noteworthy because the Supreme Court recently limited the FTC’s…

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