Arkansas State Capitol | By Daniel Schwen - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=7053341
LITTLE ROCK, Ark. (Legal Newsline) - Arkansas Attorney General Leslie Rutledge was a vocal critic of the aggressive litigation tactics her Democratic colleagues used against the oil industry over climate change. But she’s taken a different approach toward the opioid crisis, even hiring the Seattle law firm of Hagens Berman, one of the pioneers of climate-change litigation, to investigate a possible lawsuit against opioid manufacturers and distributors.
Rutledge announced the agreement to hire private lawyers in January, saying her office had also hired attorney Mike Moore, who pioneered the public-private litigation strategy as Mississippi AG in 1994 when he sued the tobacco industry, setting in motion a wave of lawsuits that culminated in the $260 billion tobacco settlement four years later. Arkansas also hired Dover Dixon Horne of Little Rock, Davidson Bowie of Mississippi and McGowan Hood and Felder of South Carolina.
In her news release, Rutledge said the private lawyers were chosen for their “specialized expertise and resources” and will augment her staff “so as not to take away from ongoing, important cases the office handles on a daily basis.”
The hiring of Hagens Berman is particularly surprising, however, given Rutledge’s strong opposition to the legal strategy the firm helped develop to attack the oil industry. In a 2016 letter, she joined 12 of her Republican colleagues to denounce a meeting arranged by Democratic “AGs United for Clean Power” to highlight their probe into whether ExxonMobil and other companies misled investors and the public about the dangers of global warming.
“We all understand the need for a healthy environment,” the Republican AGs wrote, but “this is not a question for the courts.”
“Using law enforcement authority to resolve a public policy debate undermines the trust invested in our offices and threatens free speech,” they said in the 2016 letter. They followed up with a legal brief supporting ExxonMobil in its effort to quash investigative demands seeking its records on climate change.
Rutledge declined to comment directly on her opposition to the strategy Hagens Berman helped pursue against the oil industry. “The Attorney General is utilizing every possible resource to battle the opioid epidemic in Arkansas and has selected the firms best suited for the ongoing investigation and any possible litigation,” her office said in response to questions.
Rutledge isn’t the only GOP attorney general using private lawyers to go after the opioid industry.
Louisiana AG Jeff Landry, who also signed the 2016 letter condemning the climate change litigation, hired Moore.
South Carolina AG Alan Wilson, also a signer, hired Linda Singer of Motley Rice, and Ohio AG Mike DeWine has signed contracts with the same team as Arkansas, including Moore, Hagens Berman and Davidson Bowie. Montana AG Tim Fox also hired Singer, the former District of Columbia attorney general.
Alone among Republicans suing the opioid industry, Missouri AG Josh Hawley is using lawyers in his own office. That could save the state tens of millions of dollars depending on whether and how much it recovers from the industry. Under the Arkansas contract, private lawyers are entitled to receive statutory fees of up to $50 million plus costs and expenses.
Republican lawmakers and supporters like the U.S. Chamber Institute for Legal Reform, which owns Legal Newsline, have long criticized the use of private attorneys by state attorneys general because of potential conflicts of interest and the lack of prosecutorial discretion exercised by private lawyers seeking monetary fees.
Moore has contributed thousands of dollars to attorney general races around the nation in recent years, according to Followthemoney.org, including to Rutledge’s opponent in the 2014 election in Arkansas.
Outside plaintiff attorneys have won more than $30 million in fees from the state of Mississippi in the past three years, according to the office of AG Jim Hood. The lawyers who negotiated the tobacco settlement could collect $14 billion in fees before it is concluded.