Advice to Companies Thinking About Taking on an Attorney General: Beware
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New York, June 12, 2009 — As president of the Bingham Consulting Group, part of Steve Merrill’s job is to counsel Fortune 500 companies on the best ways to deal with state attorneys general and avoid messy and costly court battles.
Merrill has some insider knowledge on how to make that happen. He was the attorney general in New Hampshire from 1984-89. It’s a job he said many companies, to their detriment, don’t fully understand.
“Companies ought to know their attorney general and ought to have a strategy,” said Merrill, during a June 11 visit to the National State Attorneys General Program at Columbia Law School. The program is a legal research, education, and policy center that examines the jurisprudence of state attorneys general.
For Merrill, getting to know attorneys general is not just a good idea, it is vital to ensure a company’s well-being as more regulatory power shifts to the states and governors, attorneys general and state legislatures become more influential.
Merrill, who also served as New Hampshire’s governor from 1993-97, said too many companies make the mistake of underestimating attorneys general, who he often tells clients are “more than likely correct” and apt to prevail in court, not to mention the court of public opinion.
“You are going to do what you don’t want to do,” he warned.
Merrill, who is also of counsel at Bingham McCutcheon, said the better approach is to not get to the point where an attorney general has the bully pulpit of an indictment or press conference. By then, it is too late. Rather, he recommends working with an attorney general to become an industry leader or establish a code of conduct that shows a company is actively addressing a problem.
Merrill noted that is especially the case when attorneys general from multiple states team up on an issue, such as curbing sexual predators on the Internet, as one of his clients, MySpace, found out.
Despite taking steps in 2007 like donating a database of convicted sex offenders to a group that helps exploited children, Connecticut Attorney General Richard Blumenthal said MySpace was merely taking “feel-good baby steps” in addressing the problem.
In response, it crafted the following year an agreement with the attorneys general from 49 states (Texas was the lone holdout) that among other things, set up independent monitoring of the site and made the default setting private for teenage users, so they couldn’t be seen by adults they did not know.
Merrill said the company had no choice but to show it was on top of the problem and essentially serve as partners with attorneys general in cracking down on predators. “You have to know how you are perceived, and how you are perceived is even more important than how the issue is perceived.”