Washington State Attorney General's Office - Consumer Protection Division
Lexi is a 2L at the Seattle University School of Law. She is passionate about food and agricultural law and policy, from genetically engineered seed to food aid to property rights to regulation to access. She has worked previously at a small law firm helping with personal injury cases, and as a result is also an advocate of plaintiff’s rights. During the summer of 2012, Lexi is interning in the Consumer Protection Division of the Washington state Attorney General’s Office. CPD seeks to eliminate unfair and deceptive acts and practices in the marketplace. She performs research and investigations on legal issues applicable to current cases and writes comprehensive memos for the attorneys. CPD has the only High-Tech Unit in the Attorney General’s Office so she has gotten to work on some cutting-edge technology issues, in addition to doing lengthy research and writing on a medical device case. She has also been able to sit in on multi-state calls between Attorney General’s Offices across the nation, attend team meetings with many attorneys and participate in case brain-storming and discussion, and go to press conferences after case settlements and major Supreme Court decisions. Lexi plans to take the skills and knowledge she has gained in the area of consumer protection to advocate on behalf of consumers and farmers who are injured by the injustice present in our food system; learning about the strategies and avenues available to address consumer issues aligns perfectly with her passion for food law.
July 2, 2012
Thus far, my internship at CPD has been phenomenal. Challenging companies and individuals that deceive consumers and create an unfair marketplace has given me invaluable insight into how to address the problems with our food system. Because CPD is not a regulatory agency, like the USDA or FDA, nor a private organization, it has a unique perspective on consumer issues: like regulatory agencies, it seeks to protect consumers and citizens, but rather than creating regulation, it does so as a private organization would, through consumer advocacy and litigation. Consumers may not have the resources to take on deceptive or fraudulent companies in these situations; during a past internship at a private firm, I studied access to justice. While Americans pride ourselves on the fairness and equality of our legal system, there exists a huge monetary bar to even reaching that system. The economically disadvantaged depend on public offices like CPD to access our legal system at all. On their own, individual consumers may not be able to obtain justice; but as a community, consumers have the power and the voice to create change. CPD represents consumers simply because they are Washingtonians: money, status, and power are irrelevant, so everyone has access to the system.
Most of CPD’s cases begin as consumer complaints into our resource center. If we get enough complaints about an entity’s conduct, or an entity does something particularly egregious, we pursue action. The statute that we act under, RCW 19.86.020 of the Consumer Protection Act (CPA), declares “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” to be unlawful. To bring a claim under the CPA, a private citizen must show (1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) a public interest impact; (4) causation; and (5) injury; however, when the Attorney General’s Office brings a claim we must only show (1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; and (3) a public interest impact. State v. Kaiser, 161 Wn.App. 705, 719, 254 P.3d 850 (2011). In addition to having the resources to pursue claims against even major global companies, the Attorney General’s Office also has a lower bar to meet in order to prove those claims.
Additionally, attorneys at the office have told me that CPD has an excellent reputation with the courts; judges know that we would not be in court if we did not have a legitimate, well-supported case. Almost always companies choose to settle with us, rather than face us in court and fight the bad publicity of being sued by CPD. I have also been told that only twice in the past twenty-five years have companies opted to take us to court! However, as is in the media, backpage.com has recently sued the Attorney General’s Office over a law passed that would hold them accountable for child sex solicitation ads on their sites, so perhaps this number is now three.
In my own work at CPD, I have researched and written several very interesting legal memos so far. The case that I have invested the most amount of time in has been thoroughly interesting to me because it relates to all of the problems that I have seen in our food system. Medical devices are also regulated by the FDA and, to my surprise, many of the same problems exist with that regulatory system as well. CPD rarely, if ever, deals with the FDA, but it was my good fortune that a case involving FDA regulation sprang up right before I started my clerkship! I have done extensive research on preemption and the FDA’s authority in the context of medical devices, including much factual investigation.
Working to bring justice to Washington’s consumers has helped to empower me personally, to realize that I can make a difference and tackle bigger issues. Not only do I get to listen and learn from some of the best attorneys at one of the most reputable Attorney General’s Offices in the nation, but I also get to actually participate in discussion and contribute real casework. It is such an honor to have your opinions, as a 1L law student, absorbed and discussed by such accomplished and talented attorneys. Through my work at CPD I aim to bring this same empowerment to all consumers, so that they may shape their business communities to emphasize responsibility and accountability.
August 3, 2012
During the second half of my clerkship in CPD, I continued to devote many hours to investigating medical devices and the FDA. Unlike a private plaintiff, the Attorney General’s Office can issue a Civil Investigative Demand (CID) to a defendant before it actually files a case: much of the investigation and legal research that I did will be used to determine whether or not we should issue a CID and what the questions should be. Because CPD does not have “clients” in the sense that a private firm does, I found that reading blogs by people who had the devices under investigation and had experienced complications was truly emotional and really motivated me to work very hard on the case. I know that my hard work, along with the hard work of everyone on the case, will mean so much to the victims.
In other cases, I also investigated several technology issues, and the sale of an illegal drug as a violation of the Consumer Protection Act. I attended meetings with attorneys in our office and phone conferences between all of Washington and offices across the nation. Multi-state cases have an interesting dynamic because, while one or two states take the lead, there can be thirty different states all with an interest in the outcome in the case and who perhaps would like the case to take a different direction. The attorneys leading the case have to appeal to as many states as possible because the more states that are involved the more likely the company is to take the case seriously and hopefully stop their deceptive or unfair acts. The lead states often do much more work than the states that are merely a part of the case, so they take on the most risk: they either receive a larger amount of money from the case than states that merely participate or lose a lot more money if the case fails. During multi-state calls, the lead attorneys advise the others on what has occurred with the case recently and others ask questions and offer advice. Many attorneys from different states work on multiple cases together, so they are familiar with each other and typically know beforehand which states they want to get on board with new multi-state cases. These larger cases can also pay off for states that merely participate because they often result in restitution or help for consumers even though the state did not have to spend many hours or resources working on the case.
The law clerks also got to attend the oral arguments for the Backpage.com case. In this case, the website Backpage.com, which is similar to Craigslist, where people post ads for various goods and services, sued Washington because it passed a law that would require Backpage.com and similar websites to check identification for any person posting a personal ad for sex services that appeared to be underage. Backpage.com and another website, which uses an automated system to archive website pages, argued that the law violated the constitutional right to free speech. It was a great experience to see the arguments: four attorneys spoke, two for each side. The judge asked questions of the attorneys about the case and for clarification on their views of the law. Then, two days later the decision came out. Though it was disappointing for the Attorney General’s Office to lose the argument, reading the opinion after hearing the arguments and the nature of the judge’s questions was quite interesting.
Overall, my clerkship in CPD has been eye-opening. CPD is a state agency, but unlike other agencies and divisions of the Attorney General’s Office it does plaintiffs’ work rather than defense. Though it brings in a substantial amount of money for the state, it still faces the same cutbacks as the rest of the agencies. Despite the budgetary constraints, all of the members of CPD, from the attorneys to paralegals to volunteers receiving complaints in the call center, are passionate about their work. Their devotion makes the Washington Attorney General’s Office one of the best in the nation and provides true protection for consumers. Working with such skilled and dedicated attorneys has been so rewarding, and I could not have had a better clerkship experience.