Attorneys General target data privacy

The tobacco litigation of the 1990s ushered in a new era of coordination between the nation’s attorneys general. Previously, these officials had operated individually, pursuing state specific goals and lawsuits. The success of the 1998 Master Settlement Agreement changed the rules – and the stakes – of the game.

Today, significant coordination amongst the attorneys general has resulted in some of the largest and most expensive lawsuits facing private companies. The nation’s attorneys general simultaneously file identical lawsuits in their respective states, oftentimes employing the same outside counsel. By doing so, they significantly increase the exposure that the industry or company faces. The recent AWP or “average wholesale price” cases – some of which have resulted in judgments in the hundreds of millions of dollars – exemplifies the “new world” when it comes to attorneys general actions.

Predicting and preparing for the next generation of coordinated lawsuits can potentially save clients from very public and costly litigation. In an effort to assist you in avoiding this fate, we are writing to advise you that the National Association of Attorneys General appears to be focusing on data privacy. The first indication of this focus was a January 28, 2012 Resolution focusing on “national privacy day.” In the Resolution, the attorneys general noted that “data privacy issues…figure prominently in the lives of many people in the United States at work, in the health field, and in e-commerce transactions.”

The Resolution was followed by a sharply worded letter to Google on February 12, 2012 that was signed by virtually every attorney general. The letter characterized Google’s privacy policy as “troubling” and noted “on a fundamental level” that it appeared to “invade consumer privacy.” It finally noted that attorney general had an “obligation to protect consumers,” implicitly threatening legal action.

Given the posture of the National Association of Attorneys General, companies should pay special attention to data privacy issues. Being on the forefront of the best technology and procedures may save you from the next wave of litigation.