This op-ed was originally published by Law360. Once considered a scholarly organization that was safely above the fray in broader policy disputes, the American Law Institute has become an advocacy group, […]
The National Association of Attorneys General
A Nonprofit That Acts Like a Plaintiffs’ Firm
The National Association of Attorneys General (NAAG) was founded in 1907 as a nominally independent association as a way for state AGs to coordinate shared antitrust cases. Historically, the Association has played an influential role in managing multistate investigations and lawsuits. Over time, however, NAAG’s focus has shifted from promoting efficiency and coordination to instead promoting entrepreneurial litigation targeting a variety of industries – similar to the mission of the mass torts plaintiffs’ bar.
NAAG has had a significant role in some of the most prominent mass tort litigation over the past few decades. Its targets have included manufacturers of tobacco, and most recently, opioids. The Association fully participates in settlements reached in multistate lawsuits, just as individual states and their for-profit, contingency-fee counsel participate. Interestingly, this places what once was an independent association in a situation in which it now has profit as a main motive to help initiate and settle litigation, just as the trial bar does.
For example, in March 2021, NAAG received $15 million as part of McKinsey’s $600 million settlement for the company’s role in marketing opioid prescriptions. NAAG also received $103 million that grew to $140 million from the landmark Tobacco Master Settlement Agreement.
NAAG essentially acts as a self-sustaining litigation machine, mainly funded by two revenue sources: yearly dues from state attorneys general of approximately $70,000 per state, per year; and carveouts from multistate litigation settlements.
NAAG’s programs, operated through these funds, seem to be tailored specifically to promote litigation against business – attorneys in state AGs’ offices are trained under NAAG programming to bring more cases against other industries. These training sessions are designed to help AGs be more effective in litigation. NAAG’s targeted training and support of state AGs offices is similar to that of other activist groups looking to influence and promote litigation in AG offices. For example, the Bloomberg-funded State Energy & Environmental Impact Center at New York University School of Law is designed to further litigation by placing lawyers funded by the Center in the offices of friendly attorneys general across the country, empowering them to bring climate change litigation. However, outside influence, whether it be from NAAG or other activist organizations, creates a concerning lack of accountability and transparency in state attorneys’ general offices.
To promote coordinated mass tort litigation, NAAG members also participate in working groups that focus on potential multi-state lawsuits. Their activities include information sharing agreements between state AG offices as well as monthly phone calls to discuss ongoing investigation. NAAG then offers lead states the opportunity to recruit other states to join specific litigation.
Additionally, plaintiffs’ lawyers often hold training sessions at NAAG conferences in which they discuss best practices for pursuing mass torts. It is an excellent business development opportunity for these plaintiffs’ lawyers because many of them will later look to be hired on a contingency-fee basis once the AGs initiate lawsuits.
In the early stages of litigation, NAAG provides grants to the states to help litigation get off the ground. Currently, NAAG has more than $200 million in assets. States receive grants to fund research and other expenses needed to determine participation in a multistate lawsuit. Any state seeking NAAG funding must submit a detailed memo outlining their legal strategy, expenses, and predicted results. States are required to repay the grant if there is a settlement regardless of whether the settlement terms stipulate reimbursement to NAAG.
Utilizing this sort of funding source for litigation allows AGs to avoid using state-appropriated funds – or having to go to the legislature for more funds. This funding side-step weakens potential checks and balances a legislature may want to exercise in these situations.
NAAG continues to find new targets, from the tobacco litigation of the 1990s to the opioid lawsuits of today. While the opioid lawsuits begin to wind down, NAAG is now forming working groups on climate change and environmental issues like PFAS, eyeing a new generation of potential mass tort lawsuits. Given the new NAAG focus on mass tort profit motive, it’s only a matter of time until they move into new areas of focus.
The following report provides additional information about the innerworkings of NAAG along with supporting background and research.
 Rachel M. Cohen, “The Hour Of The Attorneys General,” The American Prospect, Spring 2017.
 O.H. Skinner, “Payouts To Victims, Not Special-Interest Groups,” Washington Times, 3/3/21; https://www.washingtontimes.com/news/2021/mar/2/payouts-victims-not-special-interest-groups/.
 Daniel Fisher, “The House Tobacco Built,” Forbes, 8/14/08.
 “Janssen Settlement Agreement,” Office Of The Texas Comptroller, 7/21/21.
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This op-ed was originally published by the Washington Examiner. The National Association of Attorneys General recently came under scrutiny for its funding sources. Outside of membership dues paid by state attorneys […]