Cozen Insight Insights

Potential for Major Shift in AG Enforcement Priorities in 2019

Kristina Howard, Cozen O'Connor's State AG Practice Sep 11, 2018

After 31 AG primary elections, of which four incumbents were contested, and three Republican AG runoff primaries, the AG primary season will officially conclude on September 13 in New York.

It was certainly an eventful seven months, with several hotly contested races and controversies that received an unprecedented amount of media attention. Now, the focus shifts to the November 6, 2018 general election. Looking ahead, the potential exists for a dramatic alteration of the AG political landscape, with the possibility of 12-19 newly elected AGs—the largest potential change since 14 new AGs took office after the 2010 election. This influx of new faces, styles, issues, and political motivations could result in a significant shift in AG enforcement priorities and activity with a jarring effect on virtually every industry, including pharmaceuticals, technology, and financial services.

As of today, the AG political breakdown is 27 Republicans, 23 Democrats, and 1 Independent (including D.C.). If Republicans maintain and/or gain AG seats, there will continue to be an emphasis on upholding the rule of law, promoting the fundamentals of limited government, and defending the Trump Administration’s policies. If there is a blue wave and Democrats maintain or pick up seats, there will be an increase in lawsuits challenging the constitutionality of the Trump Administration’s policies, as well as an uptick in AGs investigating and enforcing their states’ consumer protection, antitrust, data privacy/security, false claims, and other laws.

The potential for a shift in AG enforcement priorities is especially important for companies to consider as they plan their legal, regulatory, business, and political strategies. Generally, sophisticated and foresighted companies and industries take advantage of opportunities to educate AGs and work with them on areas of mutual interest. The large number of new AGs taking office in January 2019 amplifies the need for companies to proactively educate incoming AGs who may be unfamiliar with their business or industry, especially disruptive industries with innovative and unconventional business models. The business community should anticipate and prepare for this steep learning curve.

There is the possibility for 12-19 new AGs in 2019. Here is the mathematical breakdown:

  • As of today, there are 12 confirmed AG open seat races – Colorado (R), Connecticut (D), Delaware (D), Florida (R), Illinois (D), Michigan (R), Minnesota (D), Nevada (R), New York (D), Ohio (R), Rhode Island (D), and South Dakota (R).
  • There will probably be 1 open seat in Maine, where the state legislature elects the AG every two years. AG Janet Mills (D) is the Democratic nominee for Governor. If she wins, the legislature will elect a new AG. If AG Mills loses, the legislature could elect her AG again, but that is not likely.
  • There is the potential for up to 2 additional open seats should the AGs of Missouri (R) and West Virginia (R), both nominees for U.S. Senate, win their election in November.
  • Finally, there are elections in 4 states where the AG is appointed by the Governor – Alaska (I), Hawaii (D), New Hampshire (R), and Wyoming (R). In New Hampshire, the AG serves a four year term while the Governor serves a two year term. AG Gordon MacDonald (R) was appointed by Governor Chris Sununu (R) in early 2017 and thus, unless he resigns should Governor Sununu not win re-election, AG MacDonald would remain in office. In Hawaii, there are no term limits on the office of AG. Governor David Ige (D) will likely win re-election in the Democratic trifecta state, but it is unknown if AG Russel Suzuki (D) will be reappointed.

For daily coverage of AG election news, insights, and polls, we encourage you to visit Cozen O’Connor’s State AG Election Tracker.  This online portal will provide you with information on the candidates and allow you to sign up for election night emails and/or text messages.

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