Oct. 3, 2008
Legislature Needs to Reign in Attorney General
Greear Wants to Balance Business and Consumer Obligations
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) -- Incumbent Attorney General Darrell McGraw has developed a continuing philosophy of utilizing the powers of his office in the name of consumer protection to initiate and settle large class action lawsuits.
Most recently, the state settled with Visa and MasterCard for utilization of illegal business practices that ran up the cost of accepting credit or debit cards by businesses who in turn passed the amount on to consumers. However, Republican challenger Dan Greear challenges not necessarily the outcome but McGraw’s practice of hiring outside special attorneys general, who then split the 33% contingency fee.
Similarly, McGraw won a $10 million settlement from the pharmaceutical company that makes OxyContin. They agreed to designate the money for the state Consumer Protection Office. That’s the second aspect of the current AG’s office with which candidate Greear disagrees. He believes that settlement proceeds should go to the legislature for decision making on expenditures, not left up to McGraw to parcel out the money to charities of his choice.
HNN: Why did you decide to run for WV attorney general?
GREEAR: I really think that’s an office where there could be so much change made in a short period of time that would have a significant impact on the state. That office is so anti-business, so antagonistic and adversarial to the business community, you could change that office and send a signal [to business] that there’s somebody there willing to talk and look at the concerns of the business community. Immediately, you make sure all settlement money is returned to the state legislature for appropriation. And, ending the practice of hiring outside attorneys who are generally political contributors… that will save the state millions of dollars. I’m going to ask the legislature to put in place a procedure that if outside lawyers are hired , they are hired on a competitive bid process [not] who donated to the last campaign. Get rid of the good ole’ boy system, the payback, and end the political feast in there.
It can be a positive change for the business community and allow us to [bring] growth and opportunity [to the state]. At the same time, we can still provide the consumer protection aspects and protect the rights of our citizens.
HNN: Mr. McGraw has been aggressive in Consumer Protection Activities, how would you balance the more business friendly climate with Consumer Protection?
GREEAR: You balance it by being willing to have a dialogue with the business community. The business community is not always right, but it is not always wrong. I see a distinction in businesses . There are some that are trying to do the right thing, trying to make a living, trying to make money, trying to abide by the rules and play fair. They are all humans and when there are humans involved there are going to be mistakes. If they are willing to work with us and abide by the rules, we’ll work with them.
There are other businesses that their goal is to rip people off and make money however they can. When you deal with those kind of businesses , you’ve got to be aggressive, you’ve got to sue them, and let’s get it on, if that’s how we are going to do it. I’m going to give businesses an opportunity to work with my office; if they will work with my office , we’ll work with them. Once they make clear , they are just here to get away with whatever they can get away with and rip people off, then we will do what is necessary to protect consumers.
HNN: From what you understand about the accident at Bayer CropScience about a month ago, is that something that the AG’s office should have involvement?
GREEAR: I certainly think there’s possibly a concern there. I would have to look at the statutes and [what] might be implicated [since it appears] they are not giving the information that they are required to do. I do not have the whole set of facts to that incident so I’m not prepared to render a final judgment. Certainly, there’s a role [for the AG] in looking in to things like that and making sure that the business is doing what they are supposed to do. I’d be happy to listen to their side, as well. It should be looked in to.
HNN: I believe you advocate that the AG’s office have prosecutorial powers for oversight investigations…
GREEAR: I’m not coming in asking for prosecutorial powers right away. I think on charges of political corruption prosecutorial power needs to be in the AG’s office. Right now, I think the AG’s office is in such a state that the legislature is not going to consider changing the law to give them prosecutorial power. The legislature takes power away from the attorney general every chance they get because of the adversarial relationship between the legislature and the attorney general.
My priority will be to get that office back to where it can work with the different branches of government. There’s mutual respect. They realize that we just trying to do our job, not infringe on their territory. After you establish that [mutual respect], on down the road prosecutorial powers may be beneficial. My short term goal is to get in there and get the office straightened out how I view it should be functioning.
HNN: When you advocate letting the legislature determine the expenditure of class action settlements, would there be a threshold amount necessary BEFORE it went to the legislature for disbursal?
GREEAR: The way I read the Constitution and the statutes, the legislature appropriates state funds. There’s no distinction of the funding source. There are some statutory fines and violations that result in payment made directly to the attorney general’s office. Obviously, that’s not what I’m talking about. When there is a law suit filed on behalf of the State of West Virginia and there is settlement funds to resolve a lawsuit, not a statutory fine, I think all of that money should go back to the legislature for appropriation.
HNN: I guess a prime example was the OxyContin settlement…
GREEAR: McGraw’s office used outside counsel for the OxyContin case, settled it for $10 million and his outside attorneys got 33.3 off the top and he parceled the rest out to different organizations, all of which may be good causes, but I do not view that as within his authority dolling out the public money.
HNN: Correct me if I’m wrong, but the AG is the head law enforcement officer for the state and WV has bad press concerning corrupt county courts. How would you deal with issues of that nature?
GREEAR: The attorney general does not have any direct authority over prosecutors, for example, there’s no authority for us to have any say if a prosecutor is doing a good job or not. The interaction of the AG with prosecutors is we handle the appeals of convictions and offer advice to prosecutors when needed. If a prosecutor is not doing his job right, there’s not much the AG can do. I think where he get in the picture in terms of whether there’s fairness are these corruption cases. Long term, I think it would be helpful to consider giving the AG more responsibility and prosecutorial power to clean up the county. Some of these counties down in the southern part of West Virginia, if the judge is on the take, if the prosecutor is on the take, and the sheriff on the take, nobody’s going to do anything down there, the way it’s set up right now there’s nobody in the state with the authority to go clean things up. We have to wait for the federal government to come in and take care of our mess.
HNN: Since the AG hires special prosecutors for specialized class action suits, what do the assistant AG’s do?
GREEAR: The way it’s operated now these large class action or tort cases, they bring in special assistant attorneys generals. I do not think there’s statutory authorization for that. The statute talks about assistant attorney genera to be paid out of the regular budget of that office. We have an AG giving his authority to these guys he hires , there’s no criteria . He can hire whomever he wants for whatever reason he wants. I think the legislature needs to clarify when and how this should be done.
HNN: The state’s unfriendly business climate comes from the court system’s large punitive damage awards. Do you think non-partisan Supreme Court elections and an intermediate court --- with an automatic appeal --- would be helpful?
GREEAR: I totally agree with the non-partisan election of judges. Partisan elections for the court have not served us well. I think there would be benefits to an intermediate court. It’s unfortunate in our system that no matter what happens in circuit court, you’re not guaranteed for anybody to take a look at that. I can see an intermediate court to see that everything at least gets looked at. Obviously, that’s going to involve expense and money’s not something we have a whole lot of. I think instead of sitting around we should figure out a way to do that in an economical way.
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Legislature Needs to Reign in Attorney General
Greear Wants to Balance Business and Consumer Obligations
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) -- Incumbent Attorney General Darrell McGraw has developed a continuing philosophy of utilizing the powers of his office in the name of consumer protection to initiate and settle large class action lawsuits.
Most recently, the state settled with Visa and MasterCard for utilization of illegal business practices that ran up the cost of accepting credit or debit cards by businesses who in turn passed the amount on to consumers. However, Republican challenger Dan Greear challenges not necessarily the outcome but McGraw’s practice of hiring outside special attorneys general, who then split the 33% contingency fee.
Similarly, McGraw won a $10 million settlement from the pharmaceutical company that makes OxyContin. They agreed to designate the money for the state Consumer Protection Office. That’s the second aspect of the current AG’s office with which candidate Greear disagrees. He believes that settlement proceeds should go to the legislature for decision making on expenditures, not left up to McGraw to parcel out the money to charities of his choice.
HNN: Why did you decide to run for WV attorney general?
GREEAR: I really think that’s an office where there could be so much change made in a short period of time that would have a significant impact on the state. That office is so anti-business, so antagonistic and adversarial to the business community, you could change that office and send a signal [to business] that there’s somebody there willing to talk and look at the concerns of the business community. Immediately, you make sure all settlement money is returned to the state legislature for appropriation. And, ending the practice of hiring outside attorneys who are generally political contributors… that will save the state millions of dollars. I’m going to ask the legislature to put in place a procedure that if outside lawyers are hired , they are hired on a competitive bid process [not] who donated to the last campaign. Get rid of the good ole’ boy system, the payback, and end the political feast in there.
It can be a positive change for the business community and allow us to [bring] growth and opportunity [to the state]. At the same time, we can still provide the consumer protection aspects and protect the rights of our citizens.
HNN: Mr. McGraw has been aggressive in Consumer Protection Activities, how would you balance the more business friendly climate with Consumer Protection?
GREEAR: You balance it by being willing to have a dialogue with the business community. The business community is not always right, but it is not always wrong. I see a distinction in businesses . There are some that are trying to do the right thing, trying to make a living, trying to make money, trying to abide by the rules and play fair. They are all humans and when there are humans involved there are going to be mistakes. If they are willing to work with us and abide by the rules, we’ll work with them.
There are other businesses that their goal is to rip people off and make money however they can. When you deal with those kind of businesses , you’ve got to be aggressive, you’ve got to sue them, and let’s get it on, if that’s how we are going to do it. I’m going to give businesses an opportunity to work with my office; if they will work with my office , we’ll work with them. Once they make clear , they are just here to get away with whatever they can get away with and rip people off, then we will do what is necessary to protect consumers.
HNN: From what you understand about the accident at Bayer CropScience about a month ago, is that something that the AG’s office should have involvement?
GREEAR: I certainly think there’s possibly a concern there. I would have to look at the statutes and [what] might be implicated [since it appears] they are not giving the information that they are required to do. I do not have the whole set of facts to that incident so I’m not prepared to render a final judgment. Certainly, there’s a role [for the AG] in looking in to things like that and making sure that the business is doing what they are supposed to do. I’d be happy to listen to their side, as well. It should be looked in to.
HNN: I believe you advocate that the AG’s office have prosecutorial powers for oversight investigations…
GREEAR: I’m not coming in asking for prosecutorial powers right away. I think on charges of political corruption prosecutorial power needs to be in the AG’s office. Right now, I think the AG’s office is in such a state that the legislature is not going to consider changing the law to give them prosecutorial power. The legislature takes power away from the attorney general every chance they get because of the adversarial relationship between the legislature and the attorney general.
My priority will be to get that office back to where it can work with the different branches of government. There’s mutual respect. They realize that we just trying to do our job, not infringe on their territory. After you establish that [mutual respect], on down the road prosecutorial powers may be beneficial. My short term goal is to get in there and get the office straightened out how I view it should be functioning.
HNN: When you advocate letting the legislature determine the expenditure of class action settlements, would there be a threshold amount necessary BEFORE it went to the legislature for disbursal?
GREEAR: The way I read the Constitution and the statutes, the legislature appropriates state funds. There’s no distinction of the funding source. There are some statutory fines and violations that result in payment made directly to the attorney general’s office. Obviously, that’s not what I’m talking about. When there is a law suit filed on behalf of the State of West Virginia and there is settlement funds to resolve a lawsuit, not a statutory fine, I think all of that money should go back to the legislature for appropriation.
HNN: I guess a prime example was the OxyContin settlement…
GREEAR: McGraw’s office used outside counsel for the OxyContin case, settled it for $10 million and his outside attorneys got 33.3 off the top and he parceled the rest out to different organizations, all of which may be good causes, but I do not view that as within his authority dolling out the public money.
HNN: Correct me if I’m wrong, but the AG is the head law enforcement officer for the state and WV has bad press concerning corrupt county courts. How would you deal with issues of that nature?
GREEAR: The attorney general does not have any direct authority over prosecutors, for example, there’s no authority for us to have any say if a prosecutor is doing a good job or not. The interaction of the AG with prosecutors is we handle the appeals of convictions and offer advice to prosecutors when needed. If a prosecutor is not doing his job right, there’s not much the AG can do. I think where he get in the picture in terms of whether there’s fairness are these corruption cases. Long term, I think it would be helpful to consider giving the AG more responsibility and prosecutorial power to clean up the county. Some of these counties down in the southern part of West Virginia, if the judge is on the take, if the prosecutor is on the take, and the sheriff on the take, nobody’s going to do anything down there, the way it’s set up right now there’s nobody in the state with the authority to go clean things up. We have to wait for the federal government to come in and take care of our mess.
HNN: Since the AG hires special prosecutors for specialized class action suits, what do the assistant AG’s do?
GREEAR: The way it’s operated now these large class action or tort cases, they bring in special assistant attorneys generals. I do not think there’s statutory authorization for that. The statute talks about assistant attorney genera to be paid out of the regular budget of that office. We have an AG giving his authority to these guys he hires , there’s no criteria . He can hire whomever he wants for whatever reason he wants. I think the legislature needs to clarify when and how this should be done.
HNN: The state’s unfriendly business climate comes from the court system’s large punitive damage awards. Do you think non-partisan Supreme Court elections and an intermediate court --- with an automatic appeal --- would be helpful?
GREEAR: I totally agree with the non-partisan election of judges. Partisan elections for the court have not served us well. I think there would be benefits to an intermediate court. It’s unfortunate in our system that no matter what happens in circuit court, you’re not guaranteed for anybody to take a look at that. I can see an intermediate court to see that everything at least gets looked at. Obviously, that’s going to involve expense and money’s not something we have a whole lot of. I think instead of sitting around we should figure out a way to do that in an economical way.
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