Emails detail interactions between the office of Attorney Pam Bondi of Florida and a law firm trying to sway her.Credit
Alex Wong/Getty Images
When
the executives who distribute 5-Hour Energy, the popular caffeinated
drinks, learned that attorneys in more than 30 states were
investigating allegations of deceptive advertising — a serious financial
threat to the company — they moved quickly to shut the investigations
down, one state at a time.
But success did not come in court or at a negotiating table.
Instead,
it came at the opulent Loews Santa Monica Beach Hotel in California,
with its panoramic ocean views, where more than a dozen state attorneys
had gathered last year for cocktails, dinners and fund-raisers
organized by the Democratic Attorneys Association. A lawyer for
5-Hour Energy roamed the event, setting her sights on Attorney
Chris Koster of Missouri, whose office was one of those investigating
the company.
“My client just received notification that Missouri is on this,” the lawyer, Lori Kalani, told him
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The
quick reversal, confirmed by Mr. Koster and Ms. Kalani, was part of a
pattern of successful lobbying of Mr. Koster by the law firm on behalf
of clients like Pfizer and AT&T — and evidence of a largely hidden
dynamic at work in state attorneys offices across the country.
Attorneys
are now the object of aggressive pursuit by lobbyists and
lawyers who use campaign contributions, personal appeals at lavish
corporate-sponsored conferences and other means to push them to drop
investigations, change policies, negotiate favorable settlements or
pressure federal regulators, an investigation by The New York Times has
found.
A
robust industry of lobbyists and lawyers has blossomed as attorneys
have joined to conduct multistate investigations and pushed into
areas as diverse as securities fraud and Internet crimes.
But
unlike the lobbying rules covering other elected officials, there are
few revolving-door restrictions or disclosure requirements governing
state attorneys , who serve as “the people’s lawyers” by
protecting consumers and individual citizens.
A
result is that the routine lobbying and deal-making occur largely out
of view. But the extent of the cause and effect is laid bare in The
Times’s review of more than 6,000 emails obtained through open records
laws in more than two dozen states, interviews with dozens of
participants in cases and attendance at several conferences where
corporate representatives had easy access to attorneys .
Often,
the corporate representative is a former colleague. Four months after
leaving office as chief deputy attorney in Washington State, Brian T. Moran wrote
to his replacement on behalf of a client, T-Mobile, which was pressing
federal officials to prevent competitors from grabbing too much of the
available wireless spectrum.
“As
promised when we met the A.G. last week, I am attaching a draft letter
for Bob to consider circulating to the other states,” he wrote late last
year, referring to the attorney , Bob Ferguson.
A
short while later, Mr. Moran wrote again to his replacement, David
Horn. “Dave: Anything you can tell me about that letter?” he said.
“Working
on it sir,” came the answer. “Stay tuned.” By January, the letter was
issued by the attorney largely as drafted by the industry
lawyers.
The
exchange was not unusual. Emails obtained from more than 20 states
reveal a level of lobbying by representatives of private interests that
had been more typical with lawmakers than with attorneys .
“The
current and increasing level of the lobbying of attorneys
creates, at the minimum, the appearance of undue influence, and is
therefore unseemly,” said James E. Tierney, a former attorney of
Maine, who now runs a program at Columbia University that studies state
attorneys . “It is undermining the credibility of the office of
attorney .”
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Private
lawyers also have written drafts of legal filings that attorneys
have used almost verbatim. In some cases, they have become an
adjunct to the office by providing much of the legal work, including
bearing the cost of litigation, in exchange for up to 20 percent of any
settlement.
Money
gathered through events like the one in February 2013 at the Loews
hotel is flooding the political campaigns of attorneys and
flowing to party organizations that can take unlimited corporate
contributions and then funnel money to individual candidates. The
Republican Attorneys Association alone has pulled in $11.7 million since January.
It
is a self-perpetuating network that includes a group of former
attorneys called SAGE, or the Society of Attorneys
Emeritus, most of whom are now on retainer to corporate clients.
Giant
energy producers and service companies like Devon Energy of Oklahoma,
the Southern Company of Georgia and TransCanada have retained their own
teams of attorney specialists, including Andrew P. Miller, a
former attorney of Virginia.
For
some companies, the reward seems apparent, according to the documents
obtained by The Times. In Georgia, the attorney , after receiving
a request from a former attorney who had become a lobbyist,
disregarded written advice from the state’s environmental regulators,
the emails show. In Utah, the attorney dismissed a case
pending against Bank of America over the objections of his staff after
secretly meeting with a former attorney working as a Bank of
America lobbyist.
That Bank of America case was cited in July when the two most recent former attorneys in Utah were charged with granting official favors to donors in exchange for golf getaways, rides on private planes and a luxury houseboat.
While the Utah case is extreme, some participants say even the daily lobbying can corrode public trust.
“An
attorney is entrusted with the power to decide which lawsuits
to file and how to settle them, and they have great discretion in their
work,” said Anthony Johnstone, a former assistant attorney in
Montana. “It’s vitally important that people can trust that those
judgments are not subject to undue influence because of outside forces.
And from what I have seen in recent years, I am concerned and troubled
that those forces have intensified.”
Several
current and former attorneys say that while they are
disappointed by the increased lobbying, they reject the notion that the
outside representatives are powerful enough to manipulate the system.
“There
is no Mr. Fix-It out there you can hire and get the job done no matter
what the merits are,” said Attorney Tom Miller of Iowa, the
longest-serving state attorney in the country, at 19 years.
Mr. Koster said he regretted the prominence of groups like DAGA
and RAGA — as the Democratic and Republican attorneys
associations are known — saying the partisanship and increased emphasis
on money had been damaging.
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“I
wish those two organizations did not exist,” Mr. Koster said during an
interview at his office in Kansas City, even though the Democratic group
has contributed at least $1.4 million to his election campaigns, more than any other source.
But
he rejected any suggestion that his office had taken actions as a
result of the lobbying, instead blaming mistakes made by his staff for
moves that ended up benefiting Dickstein’s clients.
Some companies have come grudgingly to the influence game.
Executives
from the company that distributes 5-Hour Energy, for example, have
contributed more than $280,000 through related corporate entities in the
last two years to political funds of attorneys .
Company
executives wrote those checks after the investigation into false claims
and deceptive marketing, which initially involved 33 states, opened in
January 2013. Requests started to come in for contributions, including a phone call this year directly from Mr. Ferguson of Washington State, whose staff was involved in the inquiry.
In
a statement after the company was sued by three states in July, the
company strongly denied the allegations and compared being solicited for
contributions to being pressured to pay “ransom.” It asked, “Is it
appropriate for an attorney to ask for money from a company they
plan to sue?”
A spokesman for Mr. Ferguson first called the allegation baseless. But after being shown a copy of an invitation
to a fund-raising event that Mr. Ferguson held in May during a DAGA
conference — where 5-Hour Energy was listed as a sponsor — his spokesman confirmed that Mr. Ferguson had made a personal appeal to the company.
Secluded Access
Breakfast
was served on a patio overlooking the Pacific Ocean — a buffet of fresh
baked goods, made-to-order eggs, lox and fruit — as the Republican
attorneys , in T-shirts and shorts, assembled at Beach Village at
the Del, in Coronado, Calif.
These
top law enforcement officials from Alabama, South Carolina, Nebraska,
Wisconsin, Indiana and other states were joined by Ms. Kalani, of
Dickstein Shapiro, and representatives from the U.S. Chamber of
Commerce, Pfizer, Comcast and Altria, among other corporate giants.
The
group had gathered at the exclusive Beach Village at the Del — where
rooms go for as much as $4,500 a night and a special key card is
required to enter the private compound — for the most elite event for
Republican attorneys , a gathering of the Edmund Randolph Club (named for the first United States attorney ).
Photo
PAM BONDI
Corporate sponsors or state taxpayers ly cover airfare, hotels
and meals at conferences for the Florida attorney and her
counterparts.Credit
Steve Cannon/Associated Press
The
club, created by the Republican Attorneys Association, has a
$125,000 entry fee — money used to fund the campaigns of attorney
candidates with as much as $1 million, and to pay for the hotel
bills, airfare and meals for the attorneys who attend the
events.
As at the Democrats’ event, the agenda included panels to discuss emerging legal issues. But at least as important was the opportunity for the lobbyists, corporate executives and lawyers
to nurture relationships with the attorneys — and to lobby them
in this casual and secluded setting. (A reporter from The Times
attended this event uninvited and, once spotted, was asked to leave.)
The
appeals began the moment the law enforcement officials arrived, as gift
bags were handed out, including boxes of 5-Hour Energy, wine from a
liquor wholesalers group and music CDs (Roy Orbison for the adults, the
heartthrob Hunter Hayes for their children) from the recording industry.
Andy
Abboud, a lobbyist for Las Vegas Sands, which donated $500,000 through
its chief executive to the Republican group this year, has been urging
attorneys to join an effort to ban online poker. At breakfast,
he approached Attorney Pam Bondi of Florida.
“What are you going to be doing today?” he asked.
“Sailing,” Ms. Bondi replied.
“Great, I want to go sailing, too,” Mr. Abboud said, and they agreed to connect later that day.
The
increased focus on state attorneys by corporate interests has a
simple explanation: to guard against legal exposure, potentially in the
billions of dollars, for corporations that become targets of the state
investigations.
It
can be traced back two decades, when more than 40 state attorneys
joined to challenge the tobacco industry, an inquiry that
resulted in a historic $206 billion settlement.
Microsoft became the target of a similar multistate attack, accused of engaging
in an anticompetitive scheme by bundling its Internet Explorer with the
Windows operating system. Then came the pharmaceutical industry,
accused of improperly marketing drugs, and, more recently, the financial
services industry, in a case that resulted in a $25 billion settlement in 2012 with the nation’s five largest mortgage servicing companies.
The
trend accelerated as attorneys — particularly Democrats — began
hiring outside law firms to conduct investigations and sue corporations
on a contingency basis.
Photo
CHRIS KOSTER
The office of the Missouri attorney pulled out of an inquiry
into 5-Hour Energy after he spoke with a lawyer from the law firm
Dickstein Shapiro.Credit
Whitney Curtis for The New York Times
The
widening scope of their investigations led companies to significantly
bolster efforts to influence their actions. John W. Suthers, who has
served as Colorado’s attorney for a decade, said he was not
surprised by this campaign.
“I
don’t fault for one second that corporate America is pushing back on
what has happened,” Mr. Suthers said. “Attorneys can do more
damage in a heartbeat than legislative bodies can. I think it is a
matter of self-defense, and I understand it pretty well, although I have
got to admit as an old-time prosecutor, it makes me a little queasy.”
Republican
attorneys were the first to create a party-based fund-raising
group, 14 years ago. An initial appeal for contributions to corporate
lobbyists and lawyers said that public policy was being shaped “via the
courthouse rather than the statehouse.” It urged corporate lawyers “to
round up your clients and come see what RAGA is all about.” The U.S.
Chamber of Commerce alone has contributed $2.2 million this year to the
group, making it the association’s biggest donor.
The Democrats at first fought the idea, but two years later formed a counterpart.
Dickstein,
and a handful of other law firms, moved to capitalize by offering
lobbying as well as legal assistance to deal with attorneys ,
whom Dickstein called “the new sheriffs in town.”
In
an effort to make allies rather than adversaries, Bernard Nash, the
head of the attorney practice at Dickstein and the
self-proclaimed “godfather” of the field, tells clients that it is
essential to build a personal relationship with important attorneys , part of what his firm boasts as “connections that count.”
“Through
their interaction with A.G.s, these individuals will become the ‘face’
of the company to A.G.s, who are less likely to demagogue companies they
know and respect,” said a confidential memo that Dickstein sent late last year to one prospective client, Caesars Entertainment.
Executing
this strategy means targeting the attorneys “front office,” a
reference to the handful of important decision makers.
“Front
office interest or lack of interest in an issue can come from an
assessment of media reports and potential media scrutiny; advocacy group
requests; political benefit or detriment; legislative inquiries; and
‘pitches’ made by law firms or other professionals in whom the front
office has confidence,” Dickstein said in the memo pitching business to
executives at Caesars that asked the company to pay $35,000 a month,
plus expenses, for lobbying and strategic advice, not including any
legal work.
Mr. Nash and his team build relationships through dinners at exclusive spots like the Flagler Steakhouse in Palm Beach, Fla., and Brown’s Beach House Restaurant
in Waimea, Hawaii, during attorneys conferences, as well as
with a constant stream of campaign contributions, totaling at least
$730,000 in the last five years.
Dickstein is hardly alone.
Photo
BERNARD NASH The head of Dickstein’s attorney practice and the field’s self-proclaimed “godfather.”Credit
Gabriella Demczuk/The New York Times
Other dinner invitations have come from former Attorney Thurbert E. Baker of Georgia, whose clients have included AT&T and the debt buyers industry; former Attorney Patrick C. Lynch of Rhode Island, who represents payday lenders, Comcast and makers of online video games; and former Attorney Rob McKenna of Washington State, who has been retained by Microsoft and T-Mobile.
In
several cases, these former officials are clearly acting as lobbyists.
Mr. Lynch, who declined several requests for comment, tells prospective
clients that he can guide them “through the national network of
attorneys associations and work with them to build
relationships,” yet The Times could find no record that he had
registered as a lobbyist in more than two dozen states where he has
worked.
State
lobbying laws require registration when corporations hire
someone to influence legislation, but appeals targeting attorneys are not explicitly covered, even if a company is pushing its
agenda.
The documents obtained by The Times include dozens of emails
that Mr. Lynch has sent to attorneys on behalf of clients. He
is also a regular at the attorney conferences, which include
social events like trap shooting, fitness training and
all-terrain-vehicle rides, in addition to cocktail parties and meals.
These conferences also include panels on topics like regulation of oil and natural gas pipelines.
Yet often a seat on these panels is, in effect, for sale. A large donation
can secure the right to join a panel or provide an opportunity for a
handpicked executive to make a solo presentation to a room full of
attorneys . That is what a top executive from TransCanada, the company behind the Keystone XL pipeline, did at two recent attorneys meetings in Utah and Colorado.
For
the attorneys , there is a personal benefit, too: Their airfare,
meals and hotel bills at these elite resorts are ly covered,
either by the corporate sponsors or state taxpayers.
Ms.
Bondi, the Florida attorney , for example, received nearly
$25,000 worth of airfare, hotels and meals in the past two years just
from events sponsored by the Republican Attorneys Association,
state disclosure reports show. That money came indirectly from corporate
donors.
She
has charged Florida taxpayers nearly $14,000 since 2011 to take
additional trips to meetings of the National Association of Attorneys
and the Conference of Western Attorneys , including
travel to Hawaii. Those events were also attended by dozens of
lobbyists. Ms. Bondi, in a statement, said the support she had received —
directly or through the Republican Attorneys Association — had
not had an impact on any of her actions as attorney .
But
Matthew L. Myers, the president of the nonprofit Campaign for
Tobacco-Free Kids, who was on a panel about e-cigarettes at an event in
Park City, Utah, was startled by what he saw: lobbyists from regulated
industries — financial, energy, alcohol, tobacco and pharmaceutical
companies — socializing with top state law enforcement officers.
“You
play golf with somebody, you are much less likely to see them as a
piranha that is trying to devour consumers, even if that is just what
they are,” said Mr. Myers.
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Photo
“My client just received notification that Missouri is on this.” LORI KALANI, a Dickstein partner, discussing the 5-Hour Energy case with the state’s attorney .Credit
Gabriella Demczuk/The New York Times
Mr.
Tierney, the former Maine attorney , said that lobbyists were
entitled to set up a meeting with the attorneys in their
offices. But to write a check, for as much as $125,000, to gain days’
worth of private time with the attorneys is another matter, he
said.
“When
you start to connect the actual access to money, and the access
involves law enforcement officials, you have clearly crossed a line,” he
said. “What is going on is shocking, terrible.”
An Ear in Missouri
In
Missouri, as in other states, the attorney ’s office has
provided a springboard to higher office, either to the governor’s
mansion or the Senate. So even before Mr. Koster was sworn in for his
second term, he was being mentioned as a candidate for higher office.
And that made him an ideal target for the team at Dickstein.
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The
Dickstein lawyers have donated to his campaigns, invited him and his
chief deputy to be featured speakers at law firm events and hosted Mr.
Koster at dinners, and stayed in close contact with his office in emails
that suggest unusual familiarity.
The relationship seems to have benefited some Dickstein clients.
Pfizer, the New York-based pharmaceutical giant, had hired Dickstein to help settle a case brought by at least 20 states,
which accused the company of illegally marketing two of its drugs —
Zyvox and Lyrica — for unapproved uses, or making exaggerated claims
about their effectiveness.
Instead
of participating in the unified investigation with other states — which
gives attorneys greater negotiating power — Mr. Koster’s office
worked directly with Mr. Nash and Pfizer’s assistant counsel,
Markus Green.
Mr. Nash negotiated with Deputy Attorney Joseph P. Dandurand through a series of emails, followed by a visit to Missouri in April 2013.
But
both Pfizer and Dickstein had already built a relationship with Mr.
Koster. Dickstein had participated in at least four fund-raising events
for Mr. Koster, with its lawyers and the firm donating $13,500 to his
campaigns, records show.
Several of those contributions came after Mr. Nash had invited Mr. Koster to participate in an “executive briefing”
at the Park Hyatt for Dickstein’s clients. That same day, Mr. Koster
held a fund-raising event, taking in contributions from Mr. Nash and
other lawyers involved in matters that Mr. Koster would soon be, or
already was, investigating, the records show.
Photo
“The folks at Pfizer are very appreciative and excited to hear from the .” J. B. KELLY,
a Dickstein partner, writing to a Missouri official about an appearance
by the attorney at an event sponsored by Pfizer.Credit
Gabriella Demczuk/The New York Times
Pfizer
had directly donated at least $20,000 to Mr. Koster since 2009 — more
than it gave to any other state attorney , according to company
records. That does not include the $320,000 that Pfizer donated during
the same period to the Democratic Attorneys Association, which
in turn has donated to Mr. Koster’s campaigns.
Mr.
Koster said his office was forced to negotiate directly with Mr. Nash
and Pfizer because a staff lawyer missed a deadline to participate in
the multistate investigation.
“This
was an accident,” Mr. Koster said, adding that since he became attorney
in 2009, his office has participated in six cases against
Pfizer that brought a total of $26 million to Missouri.
But the emails show that just as the negotiations on the 2013 case were intensifying, Mr. Koster’s chief deputy received an unusual invitation:
Would the attorney be interested in flying to Chicago to be the
keynote speaker at a breakfast that Pfizer was sponsoring for its
political action committee?
The topic was “the importance of corporations’ building productive relationships with A.G.s,” according to an email in March from Dickstein to Mr. Dandurand.
“As
you know, these relationships are important to allow A.G.s and
corporations to work together to address important public policy issues
of concern to both the A.G. and the corporation,” the invitation said.
“The conference participants also would like to hear how these
relationships can help to efficiently address A.G.s’ questions or
concerns before they escalate into major problems (like multistate
investigations or litigation), as well as how they can carry over when
A.G.s are elected to higher offices.”
Mr. Dandurand worked to accommodate the request.
“Trying now to clear his calendar,” Mr. Dandurand wrote back to the Dickstein lawyer, before confirming that Mr. Koster would accept the invitation.
“The folks at Pfizer are very appreciative and excited to hear from the ,” J. B. Kelly, a partner at Dickstein, replied.
Five days later — and just before Mr. Koster was scheduled to give the speech — Mr. Dandurand and Mr. Nash met to discuss a settlement in the fraud investigation. They agreed that Pfizer would pay Missouri $750,000 — at least $350,000 less than it would have collected if it had been part of the multistate investigation.
“Thank you for the meeting,” Mr. Nash wrote to Mr. Dandurand, after the settlement meeting in Missouri. “Pfizer is pleased.”
Mr.
Koster said Missouri received a smaller payment from Pfizer because the
state had less leverage after missing the multistate deadline. Oregon,
the other state to negotiate directly with Pfizer on the Zyvox matter,
secured a settlement worth $3.4 million — four times what Missouri
received — even though Oregon’s population is far smaller.
Pfizer was not the only Dickstein client pleased with the firm’s representation before Mr. Koster’s office.
AT&T
was also subject to an investigation by Mr. Koster’s office, something
that Mr. Nash learned at the conference held at the Loews hotel. And
like Ms. Kalani, Mr. Nash pleaded his case directly with Mr. Koster.
Three
weeks after the conversation with Mr. Nash, Mr. Koster’s office took a
step that questioned the legal strategy of a multistate investigation of
AT&T’s billing practices, email records show. Mr. Koster did not
officially back out of the inquiry, and Missouri ultimately benefited
from a national settlement announced this month.
But
frustrating leaders of the multistate investigation, Mr. Koster decided
to join a small group of attorneys who, to the industry’s
pleasure, wanted to resolve the matter without subpoenas or the threat
of a lawsuit, the emails show.
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