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G CLE Program: The Powers and Duties of Attorneys General April 24, 2008

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G

CLE Program: The Powers and Duties of

Attorneys General

April 24, 2008

The Powers and Duties of Attorneys General: A Program for the Association of Corporate Counsel, Central Ohio Chapter

Session II How State Attorneys General Have Asserted Their Power to Regulate Businesses Speaker: Brian J. Laliberte, Baker Hostetler In this program, a former senior legal and policy advisor to the Ohio Attorney General, now in private practice, will share his insights on how state attorneys general are having a practical effect on the legal and regulatory issues facing companies. Topics for discussion will focus on both the national and Ohio-specific implications of regulatory and enforcement activity initiated by state attorneys general in a variety of areas, including securities, antitrust, health care and the environment. Additionally, the session will address practical e-discovery issues that businesses face when dealing with state attorney general investigations. The speaker will provide fundamental approaches designed to help in-house counsel address these issues.

10235818, Corp Counsel Program Session II Course Description_April 24 2008

© 2008 Baker & Hostetler LLP

How State Attorneys General Have Asserted Their Power to Regulate

Businesses

Brian J. Laliberte

Baker Hostetler2 Counsel to Market Leaders

Baker Hostetler3 Counsel to Market Leaders

What Motivates State AGs?

• Law/Law Enforcement• Policy• Politics

Baker Hostetler4 Counsel to Market Leaders

Factors State AGs Consider When Evaluating Potential Action

• Severity of harm to the public• Severity of harm to the state• Likelihood of success• Deterrence

Baker Hostetler5 Counsel to Market Leaders

Factors State AGs Consider When Evaluating Potential Action (cont’d)

• Punishment• Public exposure• Impact on the State of Ohio and its

citizens• Legal, policy and political risk or reward to

the State AG

Baker Hostetler6 Counsel to Market Leaders

Law

• State AGs are the “chief law officers” or “chief law enforcement officers” of their states.

• Ohio Revised Code Section 109.02 confers the “chief law officer” designation upon the Ohio AG.

• No state officeholder, department or agency may have counsel other than the Ohio AG – unless the Ohio AG appoints them.

Baker Hostetler7 Counsel to Market Leaders

Policy

• Overriding policy initiative is protecting the public from harm.

• Prevailing belief that federal regulation and enforcement in a number of sectors has lapsed, giving corporations a blank check to act badly.

• State AGs now see themselves as regulators. • Regulation occurs through often very public

investigations and litigation.

Baker Hostetler8 Counsel to Market Leaders

Baker Hostetler9 Counsel to Market Leaders

State AGs – Tools

• Expansive statutory authority to bring any and all claims on behalf of state office holders, departments and agencies.

• Independent authority to enforce the law in many contexts – e.g., consumer, environmental, antitrust, health care fraud, etc.

Baker Hostetler10 Counsel to Market Leaders

State AGs – Tools cont’d

• Use common law powers if necessary to advance claims on behalf of the people of the state.

• Exploit the bully pulpit and use mass media effectively.

• Outside or “special” counsel often are retained to bring large, complex cases –although the trend is toward exercising greater controls on such counsel.

Baker Hostetler11 Counsel to Market Leaders

Public Harms of Concern to State AGs

• Harm to Consumers• Harm to State Coffers • Harm to the Environment• Harm to Civil Rights• Harm to Public Health, Safety and Welfare

Baker Hostetler12 Counsel to Market Leaders

Baker Hostetler13 Counsel to Market Leaders

Protect Consumers from Harm

• State AGs have broad consumer protection powers.

• Ohio Revised Code Chapter 1345 contains the Ohio Consumer Sales Practices Act.

• Subpoena power – R.C. 1345.06.• Investigations are confidential until made

public by consent, waiver, conclusion or litigation.

Baker Hostetler14 Counsel to Market Leaders

Representative Consumer Protection Investigations, Litigation and Settlements

Corporate Overreaching – Student Loan Investigation– Sub-Prime Lending

Consumer Product Safety – Lead in Toys

Baker Hostetler15 Counsel to Market Leaders

Representative Consumer Protection Investigations, Litigation and Settlements cont’d

Prescription and Non-Prescription Drug Safety– False or Misleading Marketing– Off-Label Marketing– General Product Liability

Baker Hostetler16 Counsel to Market Leaders

Representative Consumer Protection Investigations, Litigation and Settlements cont’d

Antitrust Enforcement– Hoover Vacuum Plant Acquisition by Foreign

Hedge Fund– Forum Health-Akron Children’s Hospital Asset

Purchase– Sirius-XM Merger

Baker Hostetler17 Counsel to Market Leaders

Representative Consumer Protection Investigations, Litigation and Settlements cont’d

Internet Safety– Social Networking – MySpace and Facebook

Baker Hostetler18 Counsel to Market Leaders

Baker Hostetler19 Counsel to Market Leaders

Harm to State Coffers

Generally, state AGs represent the state office holders, departments and agencies, and therefore have considerable jurisdiction and authority to pursue civil fraud committed against the State in a variety of contexts.

Baker Hostetler20 Counsel to Market Leaders

Medicaid Fraud –Representative Cases

• Merck • Bristol Myers Squib • PurduePharma• CVS/CareMark

Baker Hostetler21 Counsel to Market Leaders

Securities Fraud –Representative Cases

AOL/Time Warner– Notable because of the size of the settlement:

$175 million

Freddie Mac– Notable because of its subject: sub-prime

lending

Baker Hostetler22 Counsel to Market Leaders

Protect the Environment

• Ohio EPA is the lead agency charged with environmental protection.

• Ohio EPA has the power to conduct administrative investigations and proceedings.

• The Ohio AG represents the Ohio EPA in litigation.

• The Ohio AG can file criminal charges in environmental matters.

Baker Hostetler23 Counsel to Market Leaders

Environmental Protection –Representative Cases

• Clean Air

• Clean Water

• Solid Waste/Clean Soil

Baker Hostetler24 Counsel to Market Leaders

Defending Civil Rights

• Fair Employment Practices

• Fair Housing Practices

Baker Hostetler25 Counsel to Market Leaders

Baker Hostetler26 Counsel to Market Leaders

Protecting Public Health, Safety and Welfare

• Ensuring Health Care Affordability

• Regulating and Enforcing Charitable Trust Obligations

Baker Hostetler27 Counsel to Market Leaders

Charitable Trusts and Non-profit Health Care Entities: Legal and Policy Objective

• Hold charitable trusts and non-profit health care organizations accountable if they are not fulfilling their “charitable purpose.”

• The Ohio AG has broad powers to define “charitable purpose” under his rule-making authority.

• The Ohio AG also has considerable authority to investigate and assess whether a charitable trust is fulfilling its charitable purpose.

Baker Hostetler28 Counsel to Market Leaders

Health Care Affordability –A National Issue

• Are non-profit health care entities providing enough low or no cost care to the poor and uninsured?

• Are such entities providing care to the poor and uninsured at the same billing rates applicable to insured patients.

• If not, they may not be fulfilling their charitable purpose.

Baker Hostetler29 Counsel to Market Leaders

Charitable Trusts

Are charitable trusts fulfilling their charitable purpose?– Charter schools– Bingo games

Baker Hostetler30 Counsel to Market Leaders

Common Law Powers of State AGs

Where there is a will, there is a way.

Or,

In case of emergency, break glass.

Baker Hostetler31 Counsel to Market Leaders

Common Law Powers of State AGs cont’d

• State AGs can exercise common law, or parens patriae, powers on behalf of the people of the state so long as the action is consistent with the state’s interests and provided the AG is not expressly prohibited from acting.

• Few statutory limitations on the Ohio AG’s common law powers.

Baker Hostetler32 Counsel to Market Leaders

Politics

• State AGs are politicians.• Underestimating a state AG’s political motivation

is a mistake.• Certain constituencies help drive policy

decisions in an AG’s office just like in any other elected office.

• Understanding the political context in which a state AG operates is a key to successful engagement with that office holder.

© 2008 Baker & Hostetler LLP

Cincinnati • Cleveland • Columbus • Costa Mesa • DenverHouston • Los Angeles • New York • Orlando • Washington, DC

www.bakerlaw.com

The Ohio Attorney General Has Broad Powers to Shape Business Conduct

By Brian J. Laliberte*

In the first year of his administration, Ohio Attorney General Marc Dann (D-OH) has

used and extended his powers to proactively shape, deter, and punish corporate conduct that adversely impacts Ohioans and the state’s coffers. He has launched major investigations, regulatory inquiries and litigation in a variety of areas, but all of his actions share the same public policy foundation: corporations that harm the public, the public interest or the state will be punished. This effort reflects a much broader public policy agenda than any single investigation, regulatory action, prosecution or case, and demonstrates his desire to assert a dominant role in regulating business conduct.

The attorney general’s designation as the chief law officer of the State of Ohio confers

great power upon him. See Ohio Rev. Code 109.02. He is principally responsible for representing and advising the State of Ohio, its officers, agencies and institutions in all legal matters. The attorney general also has very broad statutory and common law powers to initiate investigations and litigation to protect the public interest. And, he works consistently with other attorneys general through the National Association of Attorneys General (NAAG) to bring multi-jurisdictional investigations and cases that he otherwise may not have the resources to pursue himself. Other state actors generally do not have the power to act with such independence. This makes the Ohio Attorney General, and in particular a pro-consumer attorney general like Marc Dann, a very powerful regulatory force.

Consequently, businesses must proactively engage the attorney general’s office early

and often when they are faced with investigations and litigation, and in some cases even before a formal inquiry or case commences. They must do so with an understanding of the legal claims, public policy and politics underlying or driving the investigation or case. And, most importantly, they must respect the power the attorney general wields to scrutinize and expose their alleged misconduct. Underestimating any state attorney general’s office, the office holder, or the staff can be costly and embarrassing.

Securities Litigation on Behalf of the State Pension Funds

One of the most active areas for Attorney General Dann has been his representation of Ohio’s pension funds in securities class action litigation. Ohio’s pension funds are among the

* Mr. Laliberte is an attorney in the Columbus, Ohio office of Baker Hostetler practicing in the litigation and government policy areas. He recently served as a senior legal and policy advisor to Ohio Attorney General Marc Dann, and was responsible for managing significant, high-profile policy and litigation initiatives. This article was prepared using only publicly available information.

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008

largest in the nation and they manage billions in investments for current and retired state workers. The size and scope of the holdings in Ohio’s pension funds provide the attorney general with a significant stake in major, national class action securities litigation in almost any industry sector. They also provide him with a national platform for making public policy through the companies he chooses to sue, the claims he is the first to file, and the cases in which he seeks class certification and lead plaintiff status.

The securities cases the Ohio Attorney General initiates typically have a high profile and

draw considerable public attention. Attorney General Dann has used that attention to drive a broader public policy agenda of corporate responsibility. He routinely couples his legal and damages claims with public demands for changes in corporate controls and culture that allow allegedly fraudulent conduct to occur. Attorney General Dann can advance this agenda in part because he has hired extremely talented securities lawyers into his office from large, private law firms, and in part because he routinely engages some of the best securities litigators in the country to assist him. The combination of skilled counsel and a motivated policy-maker presents considerable challenges to businesses served with a securities fraud complaint by the Ohio Attorney General.

Several significant examples illustrate Attorney General Dann’s capacity to bring and

favorably resolve complex securities cases. In the first one hundred days of his administration, Attorney General Dann personally brokered a $175 million settlement with AOL/Time Warner on behalf of several of Ohio’s pension funds, and simultaneously audited and slashed the fees and costs charged by outside counsel handling the suit. At about the same time, Attorney General Dann’s office co-authored a United States Supreme Court amicus brief in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., Case No. 06-43, arguing for a scheme liability standard in securities fraud cases that would have allowed investors to hold active participants in the scheme liable regardless whether they made material, public statements upon which investors relied to their detriment. In addition to co-author Attorney General Greg Abbott (R-TX), thirty other state attorneys general signed onto the amicus brief. The broad support for the amicus brief clearly evidences the importance state attorneys general of both political parties place on protecting pension funds from alleged corporate fraud and abuse.

After the United States Solicitor General filed the federal government’s amicus brief in

Stoneridge rejecting a broad scheme liability standard in securities fraud cases, Attorney General Dann openly and harshly criticized the Bush administration for taking an anti-investor stance. In the amicus brief and in his subsequent criticism of the Bush administration, Attorney General Dann asserted the growing power of state attorneys general as indirect regulators of corporations allegedly engaged in securities fraud. He has acted consistently in this capacity since taking office in January 2007 based upon his firm belief that a void has been left by a less rigorous federal securities regulatory and enforcement regime.

Recently, Attorney General Dann sued Freddie Mac for more than $27.2 million in

damages on behalf of the Ohio Public Employees Retirement Fund. See Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corp., et al., Case No. 4:08CV00160. The suit generally concerns Freddie Mac’s alleged role in the sub-prime mortgage crisis. It should allow Attorney General Dann to probe the sub-prime mortgage industry, albeit under the supervision of a federal judge, at the same time he is protecting a state pension fund’s narrower interest in recovering its alleged losses. The Freddie Mac case likely is but the opening salvo in a much larger litigation initiative against the sub-prime mortgage lending industry. The primary public policy objective here, of course, is to expose alleged corporate misconduct that facilitated the mortgage meltdown. Given the depth and

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008 2

breadth of the current credit crisis, this and other similar litigation could have lasting effects on the global economy.

Attorney General Dann clearly has considerable authority to punish, deter and indirectly

regulate corporate conduct through securities fraud litigation. No other state actor enjoys the freedom to take such action without engaging in the legislative process, making the attorney general an extremely powerful adversary to engage in this context. This is especially true given the belief among state attorneys general, including Attorney General Dann, that they stand as a bulwark against corporate fraud, abuse and overreaching in the absence of rigorous federal regulatory enforcement. Publicly traded companies that have stock held by public pension funds must be prepared to engage state attorneys general in the securities litigation context, especially given the broader public policy agenda that some of those attorneys general may try to advance through the securities fraud cases they choose to pursue.

Consumer Protection

The Ohio Attorney General’s advocacy has not been limited to taking on Wall Street. He has aggressively pursued a pro-consumer agenda by enforcing Ohio’s Consumer Sales Practices Act (CSPA). See generally Rev. Code Ch. 1345. The CSPA authorizes the attorney general to investigate and initiate civil actions against businesses that engage in unfair, deceptive or unconscionable acts or practices in transactions with consumers. See Rev. Code 1345.02 and 1345.03. He has independent subpoena power under the CSPA. See Rev. Code 1345.06. Consumer protection is yet another area where the federal government – through its failure to adequately fund and staff the Consumer Product Safety Commission – has allowed a critical enforcement regime to lapse. In the absence of a rigorous federal pro-consumer enforcement regime, Attorney General Dann – among other state attorneys general – has stepped in to fill the void.

Attorney General Dann has undertaken a variety of consumer protection investigations

and litigation in the past year. He has publicly announced investigations into the sub-prime mortgage industry, the student loan industry, and social networking sites such as MySpace. His consumer protection office initiates numerous other lower profile, non-public investigations and cases daily. He also has initiated consumer litigation against companies that allegedly supply dangerous products to Ohio consumers; engage in telemarketing fraud; improperly abandon or disclose consumer financial information; improperly solicit credit card applications; and, fail to disclose hidden charges associated with vehicle purchases. And, he routinely issues consumer alerts such as his recent warning to college students about misleading spring break travel promotions. This is just a small, representative sample of Attorney General Dann’s consumer protection initiatives. His powers in this area are expansive, and must be proactively considered by businesses that provide products and services to Ohio consumers.

Consumer protection is a core agenda item for Attorney General Dann. He is deeply

and personally committed to ensuring that the public is protected from unfair, deceptive or fraudulent business practices and dangerous products. Consumer protection typically is an agenda item that most state attorneys general vigorously pursue. It has, however, become even more significant in the last seven years because of the decline in federal consumer protection efforts.

Charitable Trusts and Non-Profit Health Care Organizations

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008 3

The Ohio Attorney General’s power to regulate charitable trusts and non-profit health care entities has been little used in recent memory, but it is clear that Attorney General Dann intends to use and expand it. The public policy issue is whether charitable trusts and non-profit health care entities are fulfilling their charitable purpose.

The Ohio Attorney General has statutory authority to regulate charitable trusts and non-

profit health care organizations. See Rev. Code 109.23 et seq. and 109.34 et seq. The attorney general can, in his discretion, investigate and prosecute civil actions against trustees who improperly use trust funds, breach fiduciary duties, or otherwise misappropriate or misuse their authority. The Ohio Attorney General also may promulgate administrative rules that govern charitable trusts, and thereby directly regulate and shape their conduct.

In this policy context, Attorney General Dann has sued four non-profit charter schools for

their alleged failure to fulfill their mission to provide quality educational services to Ohio children. These charter schools receive millions of dollars in state education funds, and, according to the attorney general, have provided little in return. Attorney General Dann wants to close these charter schools and have them declared “failed charitable trusts.” This litigation is in its early stages, and there is a heated legal dispute as to whether the attorney general has the power to seek closure of these schools. Regardless, the cases likely will shape the scope of the Ohio Attorney General’s powers in the charitable trust context. The mere fact that Attorney General Dann has initiated this litigation evidences a broader public policy of ensuring that charitable trusts, especially those that receive public money, do not misuse their funds and are operating in the public interest.

Attorney General Dann also has asserted his considerable powers in the non-profit

health care sector. He has authority to review and regulate business transactions involving the sale or disposition of non-profit health care entities’ assets. Public policy drives Attorney General Dann to exercise his power in this context as well. His clear objective is to ensure that Ohio’s communities have access to adequate health care services, and that costs are not driven up by merger or acquisition of health care entities operating in smaller or less economically stable areas of the state. Consistent with this policy objective, Attorney General Dann has involved himself in labor disputes to assure continuity of care and financial stability at a Northeast Ohio hospital system. He has investigated potential antitrust implications of a hospital merger.

Furthermore, Attorney General Dann recently announced a desire to examine the

quantity and cost of “charity care” non-profit health care entities provide to the poor and uninsured in their communities. This is a significant policy initiative that attempts to take full advantage of the attorney general’s regulatory power over non-profit health care entities. Attorney General Dann apparently intends to quantify the amount of health care services that non-profits provide to poor and uninsured patients and then measure it against certain benchmarks. He also apparently intends to require non-profit health care entities to provide health care services to the poor and uninsured at the same cost they provide it to insured patients. This policy initiative likely is a response to repeated failures by the state and federal government to enact a comprehensive health care reform program that covers all citizens, especially the poor and uninsured.

The attorney general’s charity care initiative likely will shape the debate in Ohio, and

perhaps nationally, about obligations non-profit health care organizations may have to fill gaps left by market forces and by government. The overriding public policy considerations, among others, seem to be health care availability, access, quality and cost – especially in poor or

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008 4

underserved urban and rural areas. Attorney General Dann’s use of his statutory powers, again, clearly reflects a much broader public policy that has thrust him into a broader policy-making role.

Antitrust Enforcement

Another of the specific statutory powers the Ohio Attorney General wields is his antitrust power. See Rev. Code 109.81 et seq. and Rev. Code Ch. 1331. The attorney general can initiate actions under Ohio or federal antitrust laws. Prior to ever bringing a case, the attorney general can investigate potentially anti-competitive conduct. He has independent subpoena power, and can enforce compliance with his subpoenas through the common pleas court. See Rev. Code 1331.16. One of the most notable antitrust investigations that has become public concerns Marsh & McLennan’s business practices. The attorney general has alleged that Marsh conspired with commercial casualty insurers to eliminate competition, misled customers, and inflated premiums paid by Ohio policyholders. Marsh initially refused to produce documents, but subsequently agreed to provide them after Attorney General Dann made the investigation and the company’s failure to cooperate public by seeking a court order to enforce his subpoena. At the same time the attorney general filed his motion to compel, he issued a press release and held a news conference to announce his action against Marsh. Even if Marsh’s legal objections to the attorney general’s subpoena had merit, they became useless in the court of public opinion – which Attorney General Dann dominated.

Attorney General Dann is particularly skilled at using the media to communicate his

office’s actions, and does so exceptionally well when such exposure will influence an adverse party’s responsiveness to his authority. The public aspect of the Ohio attorney general’s authority therefore adds yet another dimension to responding to investigations and litigation that he initiates.

Health Care Fraud and Abuse

Attorney General Dann also is very active in investigating and prosecuting Medicaid fraud, and has achieved monumental settlements by working with federal prosecutors and the National Association of Medicaid Fraud Control Units (commonly known as NAMFCU). See Rev. Code 109.85, 2813.40 and 5111.03. In the pharmaceutical context, for example, the Ohio Medicaid Fraud Control Unit (MFCU) actively pursues false claims, illegal kickback schemes, off-label marketing and pricing fraud and abuse among other issues that allegedly cause the Medicaid system to pay more than permitted for drugs. In 2007, the Ohio MFCU obtained more than $28 million for the state’s Medicaid fund plus millions in penalties payable directly to the attorney general’s office almost entirely from settlements with pharmaceutical companies, including among others PurduePharma and Bristol Myers Squib. The Ohio MCFU’s successful enforcement efforts in the pharmaceutical industry are indicative of the much smaller, but no less important, successes it achieves in cases of local import throughout the State of Ohio.

The Ohio MFCU’s ability to investigate and prosecute false claims likely will be

enhanced in the next year when the proposed Ohio False Claims Act (Ohio House Bill 355, 127th General Assembly) becomes law. The proposed Ohio FCA will more easily allow the Ohio MFCU to participate in large, national false claims cases where whistleblowers assert claims under both federal and state false claims acts. Currently, states without their own false claims acts have to be invited to participate by federal prosecutors or other participating states. Whistleblowers may not directly notify states that do not have a false claims act while their lawsuit is under seal. Twenty-two states currently have false claims acts. The Ohio FCA should

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008 5

enhance the Ohio MFCU’s participation in national false claims cases. It also should allow it to generate more significant home-grown investigative leads for both civil and criminal prosecution.

As with the other agenda items described here, Attorney General Dann’s efforts to

recover fraudulently obtained Medicaid payments on both the national and local levels demonstrates his commitment, as a matter of public policy, to end or deter corporate fraud and abuse committed at the public’s expense.

Environmental Enforcement

The attorney general’s authority also extends to prosecuting, in both civil and criminal actions, violations of Ohio’s environmental laws and regulations. See e.g. Rev. Code 3704.06, 3710.14, 3714.11, 3734.01 et seq., 3745.01 et seq. and 5301.91. Attorney General Dann has filed more than 60 environmental cases in his first year in office. The filings, in part, cleared a longstanding backlog of environmental cases that could not be resolved administratively. Those cases alleged violations of Ohio environmental laws governing clean air; clean water; hazardous waste disposal and landfill operations; asbestos removal; and, storage tank leakage. The attorney general also has filed seven criminal indictments against alleged polluters, most recently for the criminal disposal of hazardous waste in northwest Ohio.

The attorney general’s willingness to bring civil and criminal environmental cases should

create a more effective and comprehensive enforcement regime. At the administrative level, the Ohio EPA should be able to resolve more cases by using credible threats of litigation to prompt settlements. Those cases that do not settle clearly will be prosecuted vigorously. They will not sit on the shelf until the limitations period is about to expire.

Businesses engaged with the Ohio EPA must be mindful of this newly invigorated

enforcement regime and the inter-agency cooperation that supports it. They must carefully consider their response to administrative action that has the full support of the attorney general and his environmental protection staff to limit or mitigate civil and criminal liability for alleged violations of Ohio environmental protection laws and regulations. Attorney General Dann’s engagement in the environmental enforcement context further demonstrates the core value of his public policy agenda: protecting the public.

Prevailing Wage

The attorney general has express statutory power to enforce Ohio prevailing wage laws. See Rev. Code 4115.14. Prevailing wage laws require that employers pay a certain wage rate for work performed on publicly funded construction projects. The Ohio Department of Commerce, among other state departments, has authority to set prevailing wage rates by locality and to investigate an employer’s failure to pay those rates. The commerce department works closely with the attorney general’s Labor Section to bring enforcement proceedings against non-compliant employers. The attorney general can seek injunctive relief to stop a public contract from being awarded, or to stop work on a public works project until an employer meets its prevailing wage obligations.

In June 2007, Attorney General Dann and the commerce department settled a significant

prevailing wage case that resulted in payment of more than $566,000 in back wages and penalties. The enforcement action, which was preceded by a fifteen month commerce department investigation, targeted nineteen subcontractors that had not paid prevailing wages to workers employed for a public works project funded by state, local and federal funds. Inter-

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008 6

agency cooperation in this context creates yet another enforcement regime designed to protect the public interest, and specifically hourly construction workers.

Common Law Powers

The Ohio Constitution does not define, or limit, the attorney general’s powers, and therefore he may exercise his authority as the chief law officer of the state where the public interest requires. In addition to express statutory power, the Ohio attorney general possesses broad common law power to act in the best interest of the people of the state when those interests are consistent with state interests. This well-established and widely recognized power is known as the parens patriae power. The only limitation on the attorney general’s common law parens patriae power is state law that expressly prohibits, or limits, his authority. There are few such limitations in Ohio law. Although seemingly a lofty and ambiguous power, it is one likely to be wielded when no other express statutory power authorizes the Ohio attorney general to act.

Engaging the Ohio Attorney General’s Office

The cardinal rule when engaging any state attorney general’s office, and in particular Attorney General Dann’s office, is: do not underestimate the power or motivation of state attorneys general and their staff. Attorneys general are political actors with policy agendas designed simultaneously to protect the public interest, keep them in office, and potentially propel them to the next one. They have the power to effectuate public policy, and thereby regulate your business, through investigations and litigation. They also have dedicated and well-honed communications assets that they can deploy to coax businesses to comply with their demands or otherwise compromise potentially defensible claims. Consequently, any business engaged with a state attorney general must understand the political, policy and legal impetus for an investigation or case from the outset. Understanding all of the factors that play into a state attorney general’s decision-making, and the myriad tools at his disposal, will enhance a business’s ability to defend itself and potentially mitigate any adverse impact on it.

10235831, Corp Counsel Program_OAG Powers and Duites Article (Laliberte)_April 24 2008 7

Overview of Multi-State Attorney General Investigations

By Brian J. Laliberte*

State attorneys general have asserted themselves as a powerful regulatory force by working together to prosecute multi-state investigations and litigation targeting alleged corporate misconduct. In many of these multi-state cases, state attorneys general are responding to perceived threats to the public or the states’ coffers. In the consumer context, state attorneys general respond most aggressively to alleged corporate misconduct that ordinary citizens can neither detect nor combat individually. Recently, for example, state attorneys general have taken an aggressive stance on mortgage fraud and sub-prime lending. They have worked together to drive reforms targeting social networking sites like Facebook and MySpace. They have opposed the merger of Sirius and XM Radio on antitrust grounds. And, they have settled multi-million dollar False Claims Act cases against Bristol Myers Squib, Merck, and CVS.

Some argue that the attorneys general have created a patchwork quilt of informal regulation that is increasingly difficult to manage. Others argue that the attorneys general have stepped into a void left by lax federal regulation and enforcement. It is clear that state attorneys general are a force to be reckoned.

Multi-state investigations typically originate in one of the many committees and related working groups organized and facilitated by the National Association of Attorneys General. They include: consumer protection, antitrust, Medicaid fraud, civil rights and tobacco. NAAG committees are comprised of state attorneys general and, in some cases, federal regulators with jurisdiction over a particular subject matter. For instance, the Federal Trade Commission and Antitrust Division of the Department of Justice each have a seat on the NAAG Antitrust Committee. These committees have a broad purview, and function like high-level think tanks for large-scale, coordinated initiatives. The day-to-day, substantive work supporting the NAAG committees happens in working groups populated by some of the best and brightest assistant attorneys general working for various states.

NAAG working groups drive multi-state investigations and litigation. They assess the most favorable jurisdictions in which to initiate investigations. They identify the information that the lead state attorneys general will request through investigative demands or subpoenas. And, they develop the legal theories – of liability, damages and potential injunctive relief – that state * Mr. Laliberte is an attorney in the Columbus, Ohio office of Baker Hostetler practicing in the litigation and government policy areas. He recently served as a senior legal and policy advisor to Ohio Attorney General Marc Dann, and was responsible for managing significant, high-profile policy and litigation initiatives. This article was prepared using only publicly available information.

10235830, Corp Counsel Program_Multi-State Investigations Article (Laliberte)_April 24 2008

attorneys general ultimately will seek in litigation. As information from an investigation is received, the working groups often function as a clearinghouse for its review and analysis. Finally, the working groups develop public strategies to enlist the media’s support for their position once an investigation becomes public or evolves into litigation.

Multi-state investigations and litigation also originate from informal relationships between and among state attorneys general. NAAG holds several conferences that allow state attorneys general to share ideas and policy initiatives that often become multi-state investigations and litigation. Furthermore, there are strong relationships among some of the state attorneys general – based upon shared public policy agendas, political agendas, or personal affinity for one another – that result in collaboration and cooperation across a multitude of topics. Three Midwestern attorneys general – Tom Miller (D-IA), Lisa Madigan (D-IL), and Marc Dann (D-OH) – seem to share the same public policy agenda, work very well together, and have collaborated on a number of initiatives. Roy Cooper (D-NC) and Richard Blumenthal (D-CT) also seem to work very well together and with other state attorneys general. Finally, Greg Abbot (R-TX) is very active in the consumer and Medicaid false claims areas. Texas has become one of the leading jurisdictions for multi-state litigation involving allegations of government fraud and abuse.

Multi-state coordination has given the state attorneys general a prominent – if not preeminent – national policy role. This role likely will grow even after the federal administration changes in 2009. The transition will cause an almost unavoidable lag in appointing new leadership throughout federal agencies, hiring staff to fill numerous vacancies that currently exist, and implementing new policy initiatives.

Consequently, the state attorneys general will continue to indirectly regulate corporate conduct through their investigations and litigation. State attorneys general are not, however, likely to give up their role even if the new administration fills the regulatory and enforcement gap that currently exists. Rather, there may be greater coordination among state attorneys general and federal regulators that results in an even more rigorous regulatory and enforcement regime across a number of industries.

10235830, Corp Counsel Program_Multi-State Investigations Article (Laliberte)_April 24 2008 2

Responding to State Attorney General Investigations

By Brian J. Laliberte*

Risk Assessment Tools

• Determine whether your company is the target or subject of a state attorney general’s investigation.

• Determine whether your company is likely to become a target or subject of an investigation as a result of responding to a third-party subpoena or civil investigative demand (CID).

• Determine whether the nature of the alleged misconduct presents civil and/or criminal issues.

• Determine whether there may be parallel civil and criminal proceedings.

• Assess the nature of the alleged misconduct and the harm to the public.

• Assess the risk or reward to the investigating state attorney general.

• Assess the impact public disclosure of an investigation and related media coverage will have on your company (and its stock price if it is publicly traded).

• Understand any public policy impetus for a state attorney general investigation.

• Determine whether other regulators or law enforcement agencies are investigating or may investigate the same.

• Determine the scope of the investigation – i.e., whether it is being conducted independently by one state attorney general or whether there is a multi-state or National Association of Attorneys General nexus.

• Determine the likelihood for a negotiated resolution, civil litigation and/or criminal charges.

* Mr. Laliberte is an attorney in the Columbus, Ohio office of Baker Hostetler practicing in the litigation and government policy areas. He recently served as a senior legal and policy advisor to Ohio Attorney General Marc Dann, and was responsible for managing significant, high-profile policy and litigation initiatives. This article was prepared using only publicly available information.

10235825, Corp Counsel Program_Helpful Hints Article (Laliberte)_April 24 2008

Practical Strategies for Responding to a State Attorney General Investigation

• Preserve potentially relevant evidence, including electronically stored information.

• Determine whether regular outside counsel or special counsel should conduct an internal investigation.

• Proactively meet with the investigating assistant attorneys general, and if possible, their section or bureau chief to discuss the investigation.

• Negotiate the scope of any subpoena or investigative demand, if possible.

• Consider whether a quick settlement with one state attorney general might foreclose further action by other state attorneys general or federal agencies.

• Familiarize yourself with the applicable public records laws to determine whether information produced during the investigation will become public.

• Take appropriate steps to protect confidential and proprietary trade secret information.

• If your company is the target or subject of a multi-state investigation, consider a global negotiation with all investigating state attorneys general concerning the consolidation of outstanding subpoenas or CIDs to streamline the investigation, collection, review and production of responsive documents and information.

• Negotiate as many global terms with state attorneys general as possible when pursuing a settlement, corporate integrity agreement, deferred prosecution agreement, or plea agreement.

• If federal agencies are involved in the investigation, include them in global settlement discussions to ensure finality to all inquiries concerning the alleged misconduct.

10235825, Corp Counsel Program_Helpful Hints Article (Laliberte)_April 24 2008 2

Brian J. [email protected]

ColumbusCapitol Square, Suite 210065 East State StreetColumbus, OH 43215-4260

T 614.462.4710F 614.462.2616

Legislative & Regulatory:Government PolicyLegislative & Regulatory:Regulatory ProceedingsLitigation: Class ActionDefenseLitigation: CommercialLitigation: White CollarDefense & CorporateInvestigations

U.S. Court of Appeals,Sixth Circuit, 2005U.S. District Court,Southern District of Ohio,2001U.S. District Court,Northern District of Ohio,2000Ohio, 1999

J.D., Case WesternReserve University Schoolof Law, 1999B.A., University ofMichigan, 1996

Brian Laliberte represents businesses and individuals in complex civil and criminalinvestigations and litigation. Mr. Laliberte also counsels clients whose interestsintersect with government policy, legislation and regulation.

In the litigation and investigations context, Mr. Laliberte's practice focuses include:

– Fraud and Abuse Related to Government Programs and RegulatoryCompliance

– Consumer Fraud– Record Retention and Preservation– E-Discovery

In his government practice, Mr. Laliberte crafts and implements legal, political andcommunications strategies to achieve success in the policy, legislative andregulatory process. Additionally, he has significant experience with Ohio electionlaw issues, recently serving as state counsel to a presidential campaign.

In 2007, Mr. Laliberte served in the Ohio Attorney General's Office as Deputy FirstAssistant Attorney General and Chief of the Criminal Division. He directed andparticipated in significant, high-profile investigations, litigation, and prosecutions.

Just before entering government service, in 2006, Mr. Laliberte was elected to theUnited States Sentencing Commission Practitioners Advisory Group, which is astanding committee of the United States Sentencing Commission. He has advisedbusinesses and individuals concerning federal sentencing issues. And, hecounsels clients concerning the dynamic relationship between corporatecompliance programs and sentencing under the advisory United StatesSentencing Guidelines.

As a result of his professional accomplishments and community service, Mr.Laliberte was selected by his peers as an "Ohio Super Lawyer Rising Star" for2006 and 2007. Approximately 2.5 percent of the best up-and-coming attorneys inOhio are chosen annually for this award by the publishers of Law & Politics. Mr.Laliberte also has been chosen for the 2008 and 2009 editions of Marquis's Who'sWho in America.

Mr. Laliberte is actively involved in community service and is a graduate of theLeadership Columbus Class of 2006. He also is committed to pro bono service,and in private practice has represented a prisoner on Ohio's death row in a federalhabeas corpus case, disabled veterans and their families in benefits matters, andindividuals in housing, debt collection and criminal matters. He has spoken several

times on the topic of pro bono service and professionalism.

Mr. Laliberte is a member of the American Bar Association and the Columbus BarAssociation, where he is serving his second term on the Judicial ScreeningCommittee.

Prior to entering private practice, Mr. Laliberte served as a judicial clerk for UnitedStates District Judge Peter C. Economus, United States District Court for theNorthern District of Ohio. During his clerkship, Mr. Laliberte focused on federalsentencing and habeas corpus/death penalty issues in addition to his civil docketresponsibilities.

The Powers and Duties of Attorneys General: A Program for the Association of Corporate Counsel, Central Ohio Chapter

Session III Strategies for Responding to an Attorney General Investigation Panelists: Thomas L. Long and Brian J. Laliberte, attorneys, Baker Hostetler; John Guthrie, chief, health care fraud section, Ohio Attorney General’s office; and Eric Croyle, special agent, Federal Bureau of Investigation

How would your company deal with the initial shock accompanying an investigative demand or subpoena from the attorney general? In this session, Tom Long, a senior Baker Hostetler partner with considerable experience responding to state attorneys general investigations, will present a case study detailing the strategies and tactics for responding to an investigation. Tom will address topics such as organizing a company’s initial response; conducting an internal company investigation; learning to deal with the public consequences of an investigation; key steps in communicating and interfacing with the attorney general; and bringing closure to an investigation.

Brian Laliberte also will provide his perspective on how companies have responded to investigations he directed while at the Ohio Attorney General’s Office. In particular, he will identify legal strategies that worked and did not work in the context of those investigations, and describe how companies can proactively engage the state attorneys general at the outset of an investigation. Additionally, he will share his insights about political and policy dynamics involved in high profile investigations and related litigation.

10235819, Corp Counsel Program Session III Course Description_April 24 2008

Baker Hostetler1 Counsel to Market Leaders

© 2008 Baker & Hostetler LLP

Strategies for Responding to an Attorney General

Investigation

Thomas L. Long

Baker Hostetler3 Counsel to Market Leaders

The Initial Shock

• Assume the worst, there is usually some basis for the initial call.

• Immediately take steps to document your efforts to preserve hard copy documents.

• Immediately take the same documented steps to preserve electronic documents and e-mail.

Baker Hostetler4 Counsel to Market Leaders

Initial Call With AG Staff

• Important to be cooperative in tone.• Attempt to learn as much as possible:

– Is your client a target?– Any similar investigations?– Is this a national task force?– Any similar targets of subpoena or CID in your

industry?– Who will be responsible at the AG-level?

Baker Hostetler5 Counsel to Market Leaders

Initial Call With AG Staff

• If handling internal, notify the AG Staff.• Explain need to assess scope of

subpoena or CID to determine schedule and method of response.

• If using outside counsel, build in time to select and brief counsel in any schedule discussed at initial call.

• Seek time to avoid any time commitment on first call.

Baker Hostetler6 Counsel to Market Leaders

First Steps After The Call

• Contact your key executives – do not let them be surprised by an outsider.

• Contact media relations/investor relations.– Cannot ignore if public.– No comment does not work.– Better message:

• Received subpoena or CID.• Intend to cooperate or resist.

Baker Hostetler7 Counsel to Market Leaders

Communications

• External:– Staff and spokesman, including executives, must

know that anything said will be used to by the AG staff.

– Any misstatement or criticism of the AG will have dire consequences at some point in the process.

• Internal:– Your people need to know to prevent panic;

inadvertent destruction of documents; and making of the wrong statements.

Baker Hostetler8 Counsel to Market Leaders

Selection of Outside Counsel

• Must have a working relationship with AG staff.

• Must be able to build a trust factor and it will take time.

• Must know your operations so no false promises during conversations with AG staff.

• Keep them informed of all internal developments involved in investigation.

Baker Hostetler9 Counsel to Market Leaders

Initial Steps In Investigation

• Need to determine the best internal information sources regarding subject matter.

• Begin with shorter, lay-of-the-land, risk determination interviews of best internal sources.

• May need to have separate counsel for employees.

• Initial review will often frame overall strategy.

Baker Hostetler10 Counsel to Market Leaders

Initial Interviews

• Interview Team– Use outside counsel as lead if outside

counsel are being used on the case.– Internal counsel should be present.– No notes by internal other than

documentation of the preservation of evidence uses.

– Remember: internal counsel could be a witness.

Baker Hostetler11 Counsel to Market Leaders

Initial Interviews cont’d

• Outside counsel notes are protected attorney-client privilege or work product doctrine.

• Use a checklist for preservation issues and key issues involved in the subpoena and CID.

• Make certain they understand you will back.

Baker Hostetler12 Counsel to Market Leaders

Production of Documents

• Must determine if documents will be reviewed prior to production.– May sound silly, but cost must be considered.– Scope of request must be factored.

• What happens at the AG Staff:– All the documents will be reviewed.– Initial reviews often done by interns or young

attorneys – all whom tend to be crusaders.– Generally suspicious, often take out of context.

Baker Hostetler13 Counsel to Market Leaders

Document Production Process

• Be Cooperative – but do not expect any cooperation in return.

• Expect anything produced to become a public document at some point.

• Determine scope of production and use of electronic vs. hard copy production.– AG Staffers are sophisticated in dealing with large

productions.– Electronic, limit through jointly-approved key words.

Baker Hostetler14 Counsel to Market Leaders

Document Production Process

• Produce on a rolling basis, with early production to build your credibility.

• Do not play games – produce correctly and in a sensible fashion.

• Have meetings with AG Staff, face-to-face also helps build credibility.– Include non-Lawyers, put a human face on company.

• Consider outsource vendors for storage and search, or own separate servers.

Baker Hostetler15 Counsel to Market Leaders

Multi-State Investigations

• If national taskforce, should be able to limit responses to one set.

• If non-taskforce, seek to eliminate multiple requests, produce what is provided to other states.

• Certain AG offices are more difficult to work with than others, including not only for the recipient of subpoena but also for other state AG staffs.

Baker Hostetler16 Counsel to Market Leaders

Witness Interviews

• Seek to control the selection of the interviewees.

• Determine if separate counsel necessary for witness.

• Attempt to obtain list of documents to be used in the interview.

• Determine if and how interview will be recorded.

Baker Hostetler17 Counsel to Market Leaders

Negotiating Resolution

• Remember – the AG’s goal is why is the resolution in the best interest of the citizens and not what is good for your company.

• Make certain the AG negotiator has complete authority; if not, expect tougher requests at each step.

• Get all AG’s in the same tent:– Possible use of a mediator.– Prevent inconsistent requests, outdoing each other.– Possible preventive effects on class actions.

• Don’t forget about the Feds!

DOCUMENT GATHERING INTERVIEW CHECKLIST

Hard Copy Documents 1. Where do you keep you files -Look at Office, Look for areas where files maintained -Look at Desktop 2. Do you maintain any central files -Who is responsible for filing -Where are they located 3. Any files sent to off site storage -How are files indexed -Who Responsible for sending off site 4. Any files in Home office 5. Any files in Briefcase 6. Any files in Car 7. Any other location for files -Vacation home etc. Electronic Documents 1. What type of computer -How are files arranged -Any files archived -Files on Desktop -Any memory sticks 2. Any lost computers (laptops) -Insurance Claims -Police Reports 3. What program do use for calendar and email 4. Do you have a home or personal computer -Type of Computer -Internet Service Provider

10235990, Corp Counsel Program_Document Gathering Checklist (Long)_April 24 2008

5. How do you work on items at home -Email work to home computer -Use VPN -Use memory sticks 6. Have you deleted any items from computer since notice to preserve documents 7. If files have been deleted, what is your normal practice 8. Use any other computers not owned by you or your family

10235990, Corp Counsel Program_Document Gathering Checklist (Long)_April 24 2008

INTERNAL INVESTIGATIONS

KEY PRINCIPLES

1. Determine Whether Investigation Should Be Undertaken - Once Started, Very Difficult to Stop -Under Some Circumstances, Doing Investigation May Assist with Government Response to Company’s Actions -Does Help if One Anticipates Employee Disciplinary Action -Does Help if Proceed Prior to Government Prodding or Suggestion 2. Select Who Will Conduct the Investigation -Preference for Neutral, Outside Counsel -Select Counsel Experienced in Conducting Internal Investigations or Monitorships -Best If Outside Counsel Handling Government Investigation Does Not Conduct the Internal Investigation 3. Determine Role of Corporate Counsel -Best Role is to Facilitate Interview and Document Collection -No Role if Legal Department is Subject to Investigation 4. Outline Plans and Goals at the Outset of the Investigation -Determine Who is Responsible for Investigation at Outset -Determine Scope and Goals of Investigation at Outset -Report Regularly on Progress with any Suggested Modifications to Work Plan 5. Notify Employees of Internal Investigation -Help Prevent Rumors and Unnecessary Fears and Employee Morale Issues -Do Not Give False Promises of Safety

10236039, Corp Counsel Program_Internal Investigations Checklist (Long)_April 24 2008

6. Conduct Employee Interviews -Usually the Most Crucial Element of Investigation Utilize Open-ended, Non-Adversarial Questions -Conduct as Pleasant and as Professional as Possible -Do Not Disclose What Others Have Said -Use Topic Outlines to Ensure All Key Topics Are Covered in Interview -Attempt to Schedule to Result in as Little of Interruption From Normal Duties as Possible -Do Not Record the Interviews, Rely Upon Detailed Notes Taken by Outside Counsel 7. Determine if a Written Report Should Be Produced If Written Report is Produced Likely It Will End Up Being Produced to Government or in Civil Litigation -If Written Report is Requested, No One From the Company Has the Right to Edit or Review Prior To Release

10236039, Corp Counsel Program_Internal Investigations Checklist (Long)_April 24 2008

Session III - Strategies for Responding to an Attorney General Investigation Panel Discussion Topics

Generally, what are the hot issues being examined by state attorneys general and federal law enforcement that should concern our audience of in house corporate counsel?

What are some common and effective strategies for engaging with state attorneys general and federal law enforcement?

What are the most common mistakes lawyers make when responding to an investigation?

How has electronically stored information, such as e-mail, complicated your investigations? Has it made investigations any easier?

Under what circumstances should companies that uncover criminal conduct independently of and prior to a government investigation self-report to appropriate enforcers such as state attorneys general, regulators, and law enforcement?

Under what circumstances should companies self-report after learning that an investigation has commenced?

How does self-disclosure impact case resolution – civil settlements; criminal pleas; sentencing?

Should companies ask for deferred prosecution agreements where self-disclosure occurs? What factors do you consider in determining whether to defer prosecution?

What are your views on attorney-client privilege and work product waivers for reports and other materials prepared by outside or special counsel charged with investigating potential misconduct?

What are some best practices for handling parallel proceedings – especially given the prevailing case law that privilege and work product waivers executed in criminal, administrative or regulatory proceedings waive those protections for subsequent private civil litigation?

What are some common pitfalls for companies faced with parallel proceedings?

10235824, Corp Counsel Program Session III Panel Questions_April 24 2008

Thomas L. [email protected]

ColumbusCapitol Square, Suite 210065 East State StreetColumbus, OH 43215-4260

T 614.462.2626F 614.462.2616

Litigation: Antitrust &Trade RegulationLitigation: AppellateLitigation: Class ActionDefenseLitigation: CommercialLitigation: SecuritiesLitigation & RegulatoryEnforcementLitigation: White CollarDefense & CorporateInvestigations

U.S. Court of Appeals,Sixth Circuit, 1981U.S. District Court, EasternDistrict of Michigan, 1986U.S. District Court,Northern District of Ohio,1977U.S. District Court,Southern District of Ohio,1976Ohio, 1976

J.D., The Ohio StateUniversity Michael E.Moritz College of Law,1976, cum laudeB.A., University of NotreDame, 1973, magna cumlaude

Thomas L. Long has been involved in complex civil litigation throughout his 30years of practice. He has served as the lead trial lawyer on matters ranging fromantitrust actions, securities fraud claims, contested corporate control matters,contract disputes, motorsports disputes to trade secret matters.

He represents clients not only in Ohio courts but also in federal and state courtsthroughout the country. Because of his vast trial experience, Mr. Long is oftencalled upon to represent clients whenever a complex matter is likely to be litigated.Mr. Long has been named in the Best Lawyers in America, American Lawyer TopCommercial Lawyers, Ohio's "Super Lawyers" and Columbus Top Lawyers.

Most recently, Mr. Long represented a Fortune 20 client in a series of federalsecurities and ERISA class actions as well as numerous shareholder derivativecases alleging waste of corporate assets, breach of fiduciary duties, and themisuse of corporate share repurchase programs designed to take advantage ofmarket conditions. Through Mr. Long's efforts the client was able to use aninnovative early mediation process which resulted in the settlement of the caseson favorable terms while avoiding great litigation expense and disruption of theclient's business with the normal extensive discovery.

Mr. Long represents a client in the National Century Financial Enterprisessecurities litigation which is currently pending in federal court. He has alsorepresented certain investor defendants in the SmartTalk Securities Litigation.During his career Mr. Long has represented both offerors and targets in nearly adozen contested corporate control actions.

In addition to his recent securities litigation, Mr. Long successfully represented twoclients in different investigations by former New York Attorney General ElliotSpitzer. He recently completed the settlement of a major consumer class action, isrepresenting a client in a major DEA investigation and is representing a client inseveral "reverse payment" antitrust class actions. In addition to these civil matters,Mr. Long assists in the representation of clients and witnesses in several whitecollar criminal investigations.

During his career, Mr. Long served as one of the co-lead trial counsel in thesuccessful defense of the class action antitrust trial in the Northern District ofIllinois in the In re Brand Name Prescription Drug Antitrust Litigation. His twowholesaler clients were awarded judgment as a matter of law following a nearly10-week trial. The trial was the culmination of almost five years of pretrialproceedings and interlocutory appeals and resulted in a total victory, upheld by theSeventh Circuit Court of Appeals.

Immediately following the victory in the Brand Name case, Mr. Long served as oneof the lead trial lawyers defending a securities fraud claim in FederatedManagement Co. v. Coopers & Lybrand. Following the selection of the jury andwinning a series of evidentiary motions, his client was able to settle the case onvery favorable terms.

He also successfully represented several defendants in the UPS EVIC Insuranceclass action that was transferred to the Southern District of New York by the Panelon Multi-District Litigation. The UPS litigation involved seven class actions thatwere consolidated into a single action in New York. Again, he successfully led andcoordinated the defenses of several clients in his usual cost-efficient and effectivemanner.

In motorsports, Mr. Long has represented a major auto racing enginemanufacturer in two complex disputes, a sanctioning body in an equipmentdispute, drivers and race engineers in contract disputes and Paul Tracy and TeamGreen n/k/a Andretti Green Racing in their appeal of the results of the 2002Indianapolis 500.

Mr. Long has regularly represented employers in trade secret and non-competitionagreement cases since the early 1990s. He has taken an active role in defendingclients' interests and preventing unfair competition through the improperacquisition of valuable trade information.

Mr. Long has represented clients before a number of State of Ohio administrativeagencies, including the Department of Transportation, Department of Insurance,Department of Education, and the Department of Commerce, Division ofSecurities. For example, he successfully represented B.A.T in its contestedacquisition of the Farmers Insurance Group before the Ohio Department ofInsurance, and more recently represented State Automobile Mutual Insurance inits contested acquisition of the Meridian Insurance Group before the IndianaInsurance Commissioner. In the Ohio General Assembly, he represents on aregular basis one of the largest property and casualty insurers in the UnitedStates.

With the advent of alternative dispute resolution, Mr. Long has become one of themore experienced mediators in central Ohio. He not only represents clients inmediation matters but is requested on a regular basis by both state and federaljudges to mediate complex matters in which he does not represent any party.

Mr. Long frequently lectures on topics of current interest in the legal field. His mostrecent lecture topics include: "Trial Evidence," "Taking and Defending EffectiveDepositions," "Expert Witness Procedures," "Audit Letter Responses," and "TheLitigation of a Trade Secret Case."