This week was the Retail Industry Leaders Association (RILA) Retail Law Conference in Austin, Texas. For the first General Session, Foley Hoag’s Martha Coakley, who chairs our State Attorney General Practice, spoke with Tim Cheatham, Senior Vice President and General Counsel of Wal-Mart, about exploring collaboration between Attorneys General and General Counsel. Martha, a former Attorney General of Massachusetts, and Tim, the General Counsel of America’s largest retailer, were uniquely positioned to discuss ways in which state AGs and corporate GCs can cooperate, not only to resolve legal issues, but to address social problems and work to benefit states and America.
Much of the conversation was about forming relationships. Martha and Tim urged the retailers in the audience to pick up the phone and call Attorneys General in the key states where they do business, whether they are newly elected/appointed or veterans in the office, to introduce their companies and learn the AG’s priorities. Tim said that, whether the company has a current issue with the AG or not, he has found great benefit in traveling to a state AG’s office and meeting over coffee. Martha stressed that the outreach should be personal, but also substantive. From the AG’s web site, press releases, and conversations with staff, it’s often possible to identify key interests, such as human trafficking, the opioid crisis, or cyber scamming, where the AG’s priorities align with the company’s, and where private sector partnership can further the goals of both.
Of course, there are times with the relationship between a state Attorney General and a company turn oppositional. When the AG sends the company an investigatory letter or Civil Investigative Demand, Martha and Tim agreed, the best strategy is rapid and active engagement. Tim noted that the AG may have been listening to a whistle-blower or other source for some time, and it is important for the company to correct inaccurate information that the AG may have received as soon as possible after the company and its counsel have ascertained what the facts are. Martha recommended that the subject of an investigation learn what are the AG’s priorities in the case: Is the AG primarily concerned with stopping some conduct, getting monetary restitution, or generating publicity around the case? The trend of some AGs to conduct investigations openly, Tim said, creates issues with alerting class-action plaintiffs’ lawyers, who often present the greatest financial threat associated with the issue. When a company understands the Attorney General’s goals and objectives, it can pave the way to efficient resolution of the matter with minimal collateral consequences for the company.
Day Two of the Retail Law Conference has many more panels on advertising and marketing law issues, labor and employment, privacy issues under new EU and California regulations, intellectual property, and much more. If you’re at the conference, keep an eye out for Martha and for Foley Hoag partners Kevin Conroy and August Horvath. We’re here through tomorrow.