The Office of the Attorney General for D.C. filed a lawsuit against e-cigarette giant Juul in November 2019, saying the company knowingly marketed to kids.

The Office of the Attorney General for D.C. filed a lawsuit against e-cigarette giant Juul in November 2019, saying the company knowingly marketed to kids.

State attorneys general serve as chief legal advisors to the state government. They also serve the people directly, in part by investigating consumer complaints and filing suits against businesses.

Since Karl Racine took office in 2015 as the first elected attorney general for D.C., he’s made consumer protection a priority. Now, the OAG’s Office of Consumer Protection is pursuing lawsuits against a handful of major corporations, suing Facebook over its privacy practices, Marriott for charging hidden fees, Juul for marketing its products to teenagers, and more.

We’ll hear from the director of the Office of Consumer Protection at the OAG, Benjamin Wiseman, about its approach to high-profile cases. And we’ll find out about the role attorneys general play in regulating these large companies. Heidi Li Feldman, a professor of law at the Georgetown University Law Center, joins us.

Produced by Cydney Grannan

Guests

  • Benjamin Wiseman Director, Office of Consumer Protection at Office of the Attorney General for the District of Columbia
  • Heidi Li Feldman Professor of Law, Georgetown University Law Center; Professor of Philosophy, Georgetown University; @HeidiLiFeldman

Transcript

  • 12:00:10

    SASHA-ANN SIMONSYou're tuned in to The Kojo Nnamdi Show. I'm Sasha-Ann Simons, sitting in for Kojo, welcome. Later in the hour, Step Afrika turns 25. We'll sit down with members of the percussive dance company to talk about their history in D.C. and their new production. But first the Attorney General for D.C. has made headlines for targeting big name companies in consumer protection lawsuits. Here to talk about consumer protection in the Office of the Attorney General for D.C. is Benjamin Wiseman. He's the Director of the Office of Consumer Protection at the Office of the Attorney General for the District of Columbia. Hi, Benjamin.

  • 12:00:44

    BENJAMIN WISEMANHi, Sasha-Ann.

  • 12:00:45

    SIMONSHeidi Li Feldman is a Professor of Law at Georgetown University Law Center. She's also a Professor of Philosophy at Georgetown University. Hi, Heidi.

  • 12:00:54

    HEIDI LI FELDMANHello, Sasha.

  • 12:00:55

    SIMONSThanks for joining us. I'll start with you, Heidi. I find this really interesting. You actually teach a class at Georgetown Law School called, "The Role of the State Attorney General," which is fitting, because that's my first question. What is the role of the state and -- or in this case the District Attorney General and how does consumer protection actually fit into their scope?

  • 12:01:15

    FELDMANSo I will keep talking about the State Attorney General, because now the District has with an elected Attorney General, who's building out the office -- an AG's office that functions comparably to a state. Maybe someday we'll be a state. So the State AG sits in a really interesting locust in state government and in the American federalist system of government. So the State AG has responsibilities that are essentially inward looking focused on matters that fall right within the state concerns and the concerns of the residents. So the District's resident's concerns, but the State AG also represents the state as a player in our larger federalist system. So many state AGs are involved in working with the federal government sometimes on matters related to consumer protection.

  • 12:02:17

    FELDMANSo sometimes State AGs are coordinating with the Federal Trade Commission. Sometimes they are coordinating with each other across state lines. And I'm sure Ben will talk about some of that. But what the State AG's Office is charged with fundamentally is protecting the public good of the residents of the District, in this case, through a wide grant of legal authority. And so there are many -- not only many different areas that State AGs can work in. When they work in an area they can be very creative, work very widely and in the consumer protection area that's quite important, because consumers interact with merchants in so many different ways.

  • 12:03:09

    SIMONSAnd we'll touch on that with Ben a little bit more, because I want to know more about D.C.'s specialties as well. But just to sort of give us a primer here, Karl Racine became the first elected Attorney General in D.C. in 2015. So he's been involved with the development of the Attorney General Office. Tell us a bit about the Office of Consumer Protection, Ben. And why did the Attorney General start it and how is it actually structured?

  • 12:03:32

    WISEMANGreat. Yeah, sure. So when the Attorney General Racine was elected in 2015 one of his first priorities was to establish a standalone Office of Consumer Protection. And the goal behind that was not only just to better protect the District residents, but also to align us with other State AG offices across the country where consumer protection work is really the bread and butter of what State AGs do as the boots on the ground in their local jurisdictions.

  • 12:03:58

    WISEMANSo our office has four main tasks. You know, first, we mediate consumer complaints. If consumers have any complaints, no complaint is too small, they can call our office. We have a hotline that they can call. We'll try to mediate and resolve their complaints. Second, we bring enforcement actions when companies violate the District's laws. In the District under our consumer protection laws companies have to be truthful with information to consumers. They can't make misrepresentations, and consumers have a right to truthful and honest information from the companies that they deal with. When companies violate the law there's large or small companies we bring appropriate reinforcement cases.

  • 12:04:33

    WISEMANThird, we do community outreach and education making sure that consumers know their rights and know how to protect themselves. And fourth, we work closely with the Council and our legislative staff at the AGs office to make sure that the laws are sufficiently protective of consumers in the District.

  • 12:04:48

    SIMONSI just want to mention for listeners if you do want to get in touch with the Office of Consumer Protection at the Office of the Attorney General for D.C. we have included a link to their website on our website kojoshow.org. Heidi, before 2013 the AG position was appointed by the mayor. A few states still do this. They still appoint their Attorneys General. How does that change the nature of an Attorney General position to be elected instead of appointed as its done here?

  • 12:05:15

    FELDMANSo historically the State Attorney General position is a very old office in the United States of America. And it predates in fact the formation of the U.S. Colonies had Attorney Generals. When the Colonies became states many of them wrote the office into their constitution. And many of them wrote the office in as an elected office. And this was an assertion of state sovereignty while ensuring that the people had a lawyer, who was not directly answerable to the governor.

  • 12:05:53

    FELDMANWhen you empower an elected State AG you are giving the people an officer who is directly interested in their legal welfare. And much of what Ben was saying about the different activities offered by the Office of Consumer Protection shows this responsiveness of the State AG to the direct concerns of the people living here. Prior to having an elected official the model that the District used was more what is used in municipalities rather than in states where a town or a city might have council that is primarily concerned with matters not so much connected to the population of the jurisdiction, but more related to the business of government.

  • 12:06:47

    SIMONSI see. Benjamin, your office has made headlines with high profile lawsuits against well-known national companies. So we're talking Facebook. We're talking Juul, for instance. What do you consider when you're bringing a consumer protection lawsuit against one of these big name companies. I imagine there's a lot to factor in here.

  • 12:07:06

    WISEMANSure. So I think, you know, first of all regardless if a company is a big company like a Facebook or Marriot or a small company that's just doing business in the District, the same rules of the road apply.

  • 12:07:15

    SIMONSThe same responsibilities, right?

  • 12:07:17

    WISEMANYeah. You have to be honest and upfront with consumers. You can't fail to tell them things that are material to their purchase of goods or services, and those rules apply to all companies. So that's really the concept and the structure that we look at in all of our cases. You know, but one thing that's very important for the District and you mentioned those cases is the scope of the harm to District residents. So if you look at our Facebook litigation that was a case where we have alleged that their privacy violations and their failure to protect users' privacy affected half of the District's population.

  • 12:07:45

    WISEMANIn terms of our Marriott litigation tens of thousands of District residents went to Marriott properties. And in our complaint we have alleged that spent hundreds of millions of dollars in resort fees that weren't properly disclosed. So, you know, one category of issue that we look at when we're deciding whether or not to bring a lawsuit is the scope of the harm. You know, another issue is is this affecting our most vulnerable residents in the District? You look at our lawsuit against Juul, underage users, teenagers, youth in schools, who become addicted to a product. These are all factors we consider both in our big cases as well as, you know, our more locally oriented cases.

  • 12:08:24

    SIMONSYeah. And so you have already touched on the Marriott case, but, you know, just to recap. So your office filed a lawsuit against the hotel chain. This was back in July for charging hidden fees and quote, "hiding the true price of hotel rooms." So if you can, just sort of unpack that just a little bit more and tell us why you consider that the hotel chain's conduct was unlawful and how it affected D.C. residents in particular.

  • 12:08:50

    WISEMANSure. So, you know, our biggest concern with Marriott as we put out in our complaint is that the price they list for a hotel room should be the price that consumers pay. Instead of doing that Marriott's website advertised one price and then as a consumer went through a transaction there was a deceptively hidden resort fee, an additional charge that was mandatory in all cases that consumers ultimately had to pay, but wasn't actually reflected in the price that was upfront that the consumers saw. So when consumers are looking for hotel rooms people are often comparison shopping looking at rates against one another. And Marriott's conduct made it very difficult for consumers to do so as we've alleged in our complaint. And how this has harmed District residents, again, District residents were using Marriott's properties throughout the country.

  • 12:09:34

    SIMONSRight.

  • 12:09:35

    WISEMANAnd we've alleged our complaint after we conducted an investigation that hundreds of millions of dollars were collected by Marriott from District residents. Now I want to note that this lawsuit actually arose out of a 50 state multistate investigation that was looking at the industry more broadly where we have collaborated with other states throughout the country to try to address this on a more global and national scale.

  • 12:09:58

    SIMONSSo it wasn't just here in the District then?

  • 12:10:00

    WISEMANYeah, our lawsuit is focused on the District's residents and Marriott in particular, but it rose out of a larger investigation.

  • 12:10:07

    SIMONSMarriott had to answer a lot of other folks too it sounds like. A spokesperson from Marriott did provide us with a statement. It says in quote, "While we will not comment on the specifics of the lawsuit, we do plan to continue our vigorous fight against this case, because we believe it has no merit. Marriott's policy is to disclose any resort fee during the booking process so that it is clearly reflected in the total price shown before the guest completes the reservation process." Interested in what you have to add to this here, Heidi.

  • 12:10:35

    FELDMANTwo thoughts. This litigation is a perfect example of how a State Attorney General's Office differs from the role let's say of a private lawyer who you would hire if you felt that Marriott didn't charge you appropriate fees. On a total hotel bill the hidden fees or the allegedly hidden fees aren't big enough for an individual consumer necessarily to go to the trouble of hiring a lawyer. But in aggregate there's a huge potential here for people to be misled on the scale of millions of dollars. So ranging from litigation like this to services such as a hotline for mediation the State AG's Office is doing a public service that isn't done by any other part of government.

  • 12:11:32

    FELDMANWith regard to the hotel litigation, the practice that Ben is alluding to or is discussing is sometimes referred to as drip pricing. And I think that's a great phrase for people to understand what the wrongdoing is here. If you put in big bold letters one price and then threw the booking process slip in little inputs of information about other fees, the number that's in a consumer's mind is that big price.

  • 12:12:06

    SIMONSThat first number, yeah.

  • 12:12:07

    FELDMANAnd that's an example of a deceptive trade practice. It's misleading. It plants the wrong idea in the consumer's head. And you cannot have a fair and efficient market without accurate price information being actually communicated to consumers. So that sort of lawsuit is a way of making sure and incentivizing merchants to state the real true cost of their goods and services.

  • 12:12:37

    SIMONSAbsolutely. We are talking with Heidi Li Feldman, she's a Professor of Law at Georgetown University Law Center, and Benjamin Wiseman who's the Director of the Office of Consumer Protection at the Office of the Attorney General for the District of Columbia. Ben, your office is also pursuing a lawsuit against e-cigarette company Juul. What's the basis for this lawsuit and what's the status of it now?

  • 12:12:58

    WISEMANSo, you know, we've heard from consumers, from teachers, from parents over the past year about the prevalence and the epidemic that e-cigarettes have become. And it's really been reported across the country and it was alarming to us. And the basis of our lawsuit is that Juul unfairly and really unconscionably marketed what is a very highly addictive nicotine product to children. And that has led to hooking kids across the country and here in the District of Columbia. Specifically we alleged in our lawsuit that they aimed its product specifically towards kids with a design, with specific flavors, and that was an unfair and unconscionable practice under the District's law.

  • 12:13:40

    SIMONSJuul also provide us a statement. A spokesperson for Juul said, quote, "We remain focused on resetting the vapor category in the U.S. and earning the trust of society by working cooperatively with Attorneys General, regulators, public health officials and other stakeholders to combat underage use and convert adult smokers from combustible cigarettes. As part of that process we recently stopped accepting orders for our mint Juul pods in the U.S., suspended all broadcast, print and digital product advertising in the U.S. and our investing, pardon me, in scientific research to ensure the quality of our FDA pre-market tobacco product application and expanding our commitment to develop new technology to reduce youth use."

  • 12:14:25

    SIMONSSo that's a statement there from Juul. Now, Ben, you mentioned, you know, when we spoke about the Marriott case. Now also with the Juul case working with other states on these different lawsuits. Heidi, these cases -- you know, these companies, these corporations don't just operate in D.C. They do operate nationally as well as internationally. And none of these companies are headquartered in D.C. So can you unpack for us how a jurisdiction -- how it works for these consumer protection cases.

  • 12:14:54

    FELDMANSo I mean, I'll start really simple. Anybody who does major business in the District has enough contact with the District for the District's Attorney General to have legal authority to investigate or cover their conduct. If you want to sell e-cigarettes you don't have to sell them in the District. If you choose to you are making yourself amenable to the authority of the District's Attorney General and the Attorneys General of all the places where you do business in any significant measure. When State's Attorneys General are perfectly aware, as we all are, that many companies operate nationwide, so I think that they pay attention to not only what suits each other is bringing, but they're perfectly free to coordinate and collaborate.

  • 12:15:50

    FELDMANAnd this really took on a new chapter in the late 90s when the State Attorney Generals worked to bring about the master settlement against big tobacco. And the situation with Juul has a lot of echoes of those efforts. What's, I think, particularly interesting about the State Attorney General getting involved is I listened carefully to Juul's statement. And all of the steps that Juul is focused on are forward looking and have nothing to do with assisting communities, who have been damaged by the problems with vaping now. So if the claims of the D.C. AG's office are success there's the potential for restitutionary payments to help people deal with the harms that have been inflicted, looking backward even if Juul were to pursue all of the efforts that it hopes to according to its statement.

  • 12:16:56

    SIMONSRight. So might be too little too late then or ...

  • 12:17:00

    FELDMANIt's not necessarily too little too late. It's two different issues. So when you're thinking about regulating an industry you're looking forward. And Juul's statement is saying, "We look forward to working with federal regulators and other regulatory authorities going forward to change our conduct." What an investigation and a complaint does is say ...

  • 12:17:24

    SIMONSIt looks backwards.

  • 12:17:25

    FELDMAN... what are the damages that have already been done?

  • 12:17:26

    SIMONSHere's what you've done, yeah.

  • 12:17:28

    FELDMANAnd so, of course, there's an interplay between these two, because a company that is held to account for the damages it inflicts as it goes along is more likely to be operating in good faith with regulators going forward.

  • 12:17:42

    SIMONSSo, Ben, companies like Facebook and Door Dash, which your office is also suing for pocketing tips intended for workers. They are newer business models. So there might not be legal precedent for these types of cases. How do you approach those?

  • 12:17:56

    WISEMANSo, again, these are cases that we approach just like we would any other case. If you're -- as Professor Feldman put forth, you know, if you're a big company doing business in the District you're still subject to the District's laws. I just want to note that touching on another thing Professor Feldman raised about the emergence of the District's Attorney General as an elected position or the expansion of our office in this work is, you know, we are really here for consumers. It is a priority for our office. We will help -- no issue is really too small.

  • 12:18:24

    WISEMANWe are an office that really likes to get complaints, because when we get complaints from consumers we can try to resolve them. They inform our enforcement decisions. You know, if you go to our website at oag.dc.gov you can file a complaint with our office. And with the Council's support we've really been able to expand not just in consumer protection, but other areas that are really affecting the lives of District residents whether it's wage issues, elder financial exploitation issues, discrimination issues, we have a new civil rights section that is focused exclusively on enforcing the District's Civil Rights Laws, on our housing issues, those are a large component of what we do as a State AG, and we really want to hear from folks in the community when they're having issues.

  • 12:19:04

    SIMONSAnd it's important to note just to emphasize with these consumer protection cases not just the high profile lawsuits, but you deal with smaller local entities as well. I know that many residents may wonder how they can recognize if a company is acting unlawfully. So again just make sure it's clear for us, when should a District resident get in touch with your office?

  • 12:19:27

    WISEMANYou know, again, if you have any questions whatsoever you should feel free to contact us. Our hotline is 202-442-9828. And if you have any suspicions that you may have been treated unfairly even if it's over $20, $10, it's likely that a company if they're treating you in a specific way they're treating other people in the same way. So please contact us. We will try to help you resolve that. Be on the lookout. Just be weary of people.

  • 12:19:50

    SIMONSJust some final thoughts from you, Heidi.

  • 12:19:52

    FELDMANI just wanted to say that this is an area, the consumer protection area, where an ordinary consumer's intuitions about whether they've been treated fairly are a good guide to what the laws protecting consumers actually say. The laws are not so far removed from basic ideas that you have to be treated fairly, not misleadingly. You can't be -- shouldn't feel like you've been tricked or fooled or exploited. And so I would say that any consumer who feels that they have suffered in those ways in dealing with a merchant local or big should definitely be in touch with the District AG's office. It's not just the dollar amount that's not too small. No individual is too small to reach out to their District AG.

  • 12:20:50

    SIMONSIf it doesn't feel right just ask about it, right?

  • 12:20:53

    WISEMANThat's exactly right.

  • 12:20:54

    SIMONSAbsolutely.

  • 12:20:55

    WISEMANAnd our mediation program, you know, we're really proud of the successes that it's had. Since AG Racine took office we've mediated over 5,000 complaints. And through that process without any attorneys getting involved returned almost a million dollars to District consumers. It's a fantastic way for consumers to contact our office with concerns that are going on in their everyday lives.

  • 12:21:13

    SIMONSAnd effective, too. Listeners if you want to get in touch with the Office of Consumer Protection at the Office of the Attorney General for D.C. we've included a link to their website on our website kojoshow.org. Our thanks to Benjamin Wiseman, the Director of the Office of Consumer Protection and Heidi Li Feldman, a Professor of Law at Georgetown University Law Center. We'll return after a short break. Stay tuned.

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