New consumer watchdog on duty

Many state attorneys general, finding strength in numbers, revel in role as an unofficial Justice Department.

There's a tough new lawman in town - champion of consumers, watchdog of corporations. It's not Ralph Nader. It's not even the US Justice Department. It's the state attorneys general, who are combining forces to become a kind of supercop for consumers - one who's not afraid to take on the big boys.

First they ganged up on Big Tobacco, winning a mega-settlement for 46 states. Then came the Microsoft antitrust suit, which 19 attorneys general initiated. Now it's the gun industry, hunted by only six states so far, but that number could easily grow.

Behind these high-profile cases is a new unity among the top law officers in the 50 states. The cooperative trend has been building for a decade, resulting now in aggressive lawsuits that are unprecedented in scope and number.

While state attorneys general have long been activists, "being involved with multistate cases is now a core responsibility" of the office, says James Tierney, Maine's former attorney general. A more-integrated national economy, not to mention the advent of e-mail, gives them a reason and a means for getting involved on a collective basis, he says.

But America already has a trust-busting advocate for consumers, called the Justice Department. Does it need another?

Business leaders and some state attorneys general don't think so. They argue that the states' top cops are using the lawsuits, in effect, to regulate industries and circumvent regional and national legislators.

"Interstate cooperation is a good thing if the purpose is to enforce the law. But when litigation against business is brought to bypass the legislative process,... it can be dangerous," says Delaware Attorney General M. Jane Brady.

The collective activism, in fact, has produced something of a backlash. The Republican Attorneys General Association, chaired by Ms. Brady, is a small group that vehemently opposes the national zeal of their colleagues.

Possible action against the gun industry is a case in point, says Robert Levy, a constitutional scholar at the libertarian Cato Institute here. Six states are investigating whether the gun industry is illegally trying to punish handgun manufacturer Smith & Wesson for agreeing to restrict its distribution network and make its guns more childproof.

"They have taken the outrageous ... step of saying if you don't sign on to the gun settlement like Smith & Wesson did, we are going to look at bringing an antitrust suit against you, presumably because you coordinated some boycott of some Smith & Wesson products," he says. But the lead attorneys general, from New York and Connecticut, "admit they have no evidence of such coordination, so they're just fishing."

The trend is worrisome to the US business community, which asks which unpopular industry might be the next target.

"Everybody's talking about alcohol being next," says Lawrence Fineran, spokesman for the National Association of Manufacturers. NAM is also watching a Rhode Island suit against the paint industry. Although manufacturers stopped adding lead to paint years ago, Rhode Island is suing the industry for damages then and now. While it is the only state in the suit, attorneys general elsewhere have been in touch.

Mr. Tierney, a behind-the-scenes coordinator of the state AGs from his home in tiny Lisbon Falls, Maine, calls the fears of big business "irrational."

"Attorneys general do not get up in the morning ... and look to see who they can sue. They have a lot to do, and they only respond to real problems. Handguns are a real problem. Tobacco, real problem," he says. On the horizon, privacy rights, not alcohol, loom as a big issue, he says.

On the other hand, Tierney says his state colleagues are much more coordinated - and thus more powerful - than they used to be. Republican and Democratic attorneys general query one another via e-mail about trends they notice, and stay in close touch with the Justice Department and the Federal Trade Commission.

He also is no apologist for this broader activism.

On guns, for example, critics "can ... hold their breath 'til they turn blue, but people want child locks on guns." If Congress and the state legislatures don't act, "an AG is going to see if there's a creative way to do it through regulation or through litigation."

Mark Tushnet, a constitutional law professor at Georgetown University here, says most attorneys general are elected to office, so voters can turn them out if they don't like what they're doing.

"Attorneys general are pretty good politicians.... They're going to do what the people of their state want," says Mr. Tushnet.

And if AGs keep bringing home $206 billion settlements, as they did with tobacco, or even last week's $30 million settlement with a direct-mail sweepstakes company, it doesn't appear the public will object.

* Guillaume Debr in New York contributed to this report.

(c) Copyright 2000. The Christian Science Publishing Society

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