Chris Allen (00:02):

Welcome to the second season of State AG Pulse. In this season, we will be releasing a new podcast episode every two weeks. In addition to providing a deep dive into news stories that showcase the enormous power and broad authority of state attorneys general, we’ll be talking with new AGs about their transition into office and their priorities.

(00:23):

As we did in the last season, we’ll leverage our decades of experience to provide insight and perspective to help business leaders better understand and successfully work with state AGs. Listen for new voices as co-chairs Bernie Nash and Lori Kalani share the host mic with other members of Cozen O’Connor’s State AG Group. So now let’s jump right into this week’s episode.

(00:44):

This is our seventh episode of our second season, and I am very, very excited with what we have in store for you today. We are going to be interviewing Minnesota Attorney General Keith Ellison, who is starting his second term. Before we get to that though, I hope everybody listened to our last episode on state and federal cooperation enforcement efforts.

(01:12):

If you did, you might be tired of listening to me today, which is what another reason I’m glad we have both my law partner and co-chair, Lori Kalani here, and General Ellison. And now again, my name is Chris Allen. I’m a partner in the state AG practice and I will now turn it over to Lori to introduce our guest, Lori.

Lori Kalani (01:32):

Great. Thanks Chris, and excited to be doing this with you. I’m very happy and excited to introduce Keith Ellison, who as Chris said, is serving his second term as Minnesota Attorney General and has quite the resume and breadth of experience and has done a great job with this office. So General Ellison, welcome, and thanks very much for spending the time with us today.

AG Ellison (02:00):

Well, great to be with you and Chris, Lori. You and I have talked a lot, worked on a lot of things. We’ve even traveled the world together, so it’s really fun to be on with you today and talking about AG issues.

Lori Kalani (02:13):

Well, thank you and I enjoy all my time with you and I’m forever learning. Like I said, you’ve got a really rich past and a lot of great experience that you bring to this job. But I think even more important, what you’re doing with the office today and what I think, if I had a crystal ball, what I think you’re going to be doing in the upcoming term, given some things that we’ve talked about and things that we’ve read, I think there’s a lot to talk about with respect to the future.

(02:45):

So I’d love to kick it off and if you could just spend a minute talking about your first term, and your reflections on your first term. I know I said we’re going to be talking about the future, but I think it’s important, because of the work that you did and the issues that you had to deal with and I’ll let you talk about those.

AG Ellison (03:05):

Look, talking about the past is good prologue for the future, which I think I agree on. So I tell you this, Lori and Chris, it’s hard to talk about my first term without talking about what I was doing before my first term.

(03:19):

I was in the US Congress for about 12 years. I was on the Financial Services Committee and I had a very strong interest in consumer protection and it was something that I thought a lot about. I also thought about stability in financial markets, and I was on the committee, the Financial Services Committee, in the midst of the 2008 foreclosure crisis and bank crisis. So these are things that are on my mind.

(03:48):

I helped cast votes in favor of the Wall Street reform bill and Consumer Financial Protection Bureau. I also, incidentally, helped cast votes on the Affordable Care Act and a whole lot of other things that I was really glad to be part of as a member of Congress. But I decided in 2018 to run for the attorney general’s office, because I’d spent a lot of time trying to pass legislation that I thought would help constituents, help Minnesotans, help Americans lead better lives, have a real shot at prosperity, which I think everyone should have a chance at.

(04:31):

And yet, I got frustrated, because the best law in the world is worthless unless there’s some enforcement, and you’ve got to have folks like AGs and other folks to say that the rules got to be followed.

(04:46):

If you don’t mind me taking a little diversion, when I was in Congress, I was in a meeting and I ran into a woman whose name is Nicole Smith-Holt. Her name is important because she started a group called Insulin4All. She told me a story about how her son aged off the Affordable Care Act and went from paying about 35 bucks for insulin to about $1,300. He started rationing it and his body went to ketoacidosis and he died.

(05:20):

When I was talking to her, I said, “It almost feels like your son didn’t die from type one diabetes. Feels like he died because he couldn’t afford the medication that would sustain his life.” In fact, he couldn’t afford his life because he couldn’t afford his insulin. She said, “Yeah, he couldn’t afford his life.”

(05:40):

I took that phrase, “affording your life,” and I turned it into basically my campaign slogan based on my interaction with this grieving mom who converted her pain and her sadness into action by working on trying to make insulin available for a wider number of Americans and Minnesotans. So everything we write, everything I say, whenever I talk to my staff, every staff meeting, I say, “Are we in the business of helping people afford their lives?”

(06:11):

And that means just basically helping America be a country where it really is a country of opportunity. It really is a country of possibility. It really is a place where people can aspire and dream and you work hard and get there. As opposed to one where, if you’re not born to institutional wealth, you just have very little chance of making it.

(06:37):

I tell you, our country used to be the leading country in the world when it came to pulling yourself up by your bootstraps. But now, given the last 40 years and the economic landscape of the last 40 years, there are many countries that have greater generational economic mobility than ours.

(06:58):

I ran for attorney general, because I want to make sure that markets are fair, the environment is protected, consumers are treated with fairness, small businesses, all businesses, are treated with fairness. So that’s really how I see my role, helping people afford their lives, helping to make sure that people have dignity, safety, and respect. That’s really what it’s all about.

(07:26):

So my first term, we had a lot of really crazy things happen. Lori, let’s start with the pandemic. The pandemic, I’m going to tell you this, I don’t think Americans in general have really sat back and reflected on the meaning of the pandemic. I mean… I mean the psycho-social effects of it, aside from the death, aside from the illness, aside from the fact that we went from like 99% working in the office to 99% working not in the office within a few days. Aside from all that, there’s been more people reporting depression, more people using opioids, more people using alcohol, more people reporting domestic violence.

(08:12):

I mean, it’s just been this rash of measures of human welfare that have gone in the wrong direction, and we’re now living through the inflationary backlash, and so that has been quite a catastrophic moment. A lot of things that I did that I didn’t want to do that I felt I had to do, but still were unpopular. In the beginning, before we had a vaccine, all we had is social distancing.

(08:40):

The governor issued executive orders and I had to try to enforce them. It was not easy because you had bar owners who were saying, “Well, how come the Target gets stay open, but I have to only have 12 people in my bar at a time.” And I’m like, “Well, because first of all, because it’s a bigger more open space, more ventilation, and we got to find a way for people to get groceries.”

(09:08):

But they were like, “Well, wait a minute, this is treating me unfair.” I’m like, “We’re not deliberately trying to treat you unfair.” In fact, we want to help you stay afloat and get through this, but still, people feel strongly about it. Then of course we went through the George Floyd matter in Minnesota, and that resonated throughout the entire country.

(09:28):

That had massive effect. I didn’t really get this job because I wanted to do a lot of criminal prosecution. We do it, but we don’t do a ton of it. Most of the people who do it are county attorneys. We have 87 county attorneys and they’re elected to prosecute crime. I’m the backup prosecutor in Minnesota. But we ended up having to do that, and I’m still trying to help members of law enforcement understand that I really respect and admire them and me prosecuting this officer is no reflection on them.

(10:03):

But I make it an effort to go around and talk to different law enforcement associations just so they see me and know me and understand that I’m a friend. My predecessor, who is a good friend and a wonderful person – everybody gets to do the job different – she decided, “I’m just going to concentrate my energies in Minnesota.” I’ve decided, “Well, I respect that point of view, but I’m going to be more a part of the AG community.”

(10:30):

So that’s why I’ve been involved with various things, and Lori, you and I have gotten to know each other. But that’s an important part of it, and it does take up time. So we’ve been busy on DAGA, NAAG, AGA, various things.

Lori Kalani (10:47):

I was going to say that. I was going to say, your style of running the office is very different than when Lori Swanson was there. I think the effort and the time that you put out there and spend with the AG community and with businesses can only inure to your benefit, because sometimes those relationships help you get to a result faster. But they also help you just get to a person faster.

(11:18):

I remember once an AG said to me, “If I have a problem with a company, I can’t just call the toll free number. That would just take me forever.” And I thought, “It’s a really good point, sometimes all you really need is a solid point of contact who you can get you in the right direction.” So it’s-

AG Ellison (11:35):

So true.

Lori Kalani (11:37):

So I think there’s a lot of benefit, and you talked about the criminal prosecutions. There was just a bill passed in Minnesota that will give you additional funding, because I thought it was incredible that, I think I read there’s only three criminal prosecutors in the office.

AG Ellison (11:58):

Well, there’s only three full-time, so we do draw people from other places to help out when we need to. So when I got there, there was only one full-time.

Lori Kalani (12:11):

Wow.

AG Ellison (12:14):

But there were a bunch of appellate criminal lawyers, but only one person who goes to district court and prosecuted cases, and that’s all they did. And we had other folks who did some of this and some of that. Now, then I boosted up to three, because the community just needed it, and now we’re going to be up to around 11 or 12, plus paralegals. I’m real happy with the direction that has gone in.

(12:44):

Safety is number one. You and I can talk about economics all we want to, but if a business is going to locate and make a major investment in your state, is thinking about coming there, but they’re like, “Your crime rate’s really out of control,” that is a negative. That’s going to be, “Do we want to go there or not?” So we’ve got to make sure that we get a handle on that, and as AG, I got to be a part of that solution.

Chris Allen (13:16):

I think that’s fascinating, General, because just looking at what you said a few moments ago is almost like a juxtaposition. You came in with this great slogan, “Affording your life,” and that heartbreaking story, but then all of these things between George Floyd and the pandemic, I don’t want to use the word derail, but it’s something that you certainly couldn’t have expected.

(13:40):

Thank goodness we had people like you to step up when government was basically asked to start doing things that had never been asked before, because we’d never faced this before. But now that we’re here, it sounds like you still have these residual effects of all of that.

(13:55):

Is there a sense that you’ll ever be able to get back to what you started off wanting to do? Did you have to shelve priorities that you now are looking to get back to? Or I guess is there a “going back to business” as it was before for you, or priorities as they were before for you?

AG Ellison (14:16):

Chris, there’s no going back to normal. There’s just a new normal, so we have a new normal, and the new normal does involve safety. It does involve consumer protection, environmental protection. It does involve all those things that are my job to do, but we got to do it in a new way. I did have to go to my staff and just ask them to do more work than they were doing before.

(14:44):

The demands just went up, because we couldn’t stop doing consumer protection. We couldn’t stop doing environmental protection. We had to keep doing all of it plus do some new stuff, which is why I’m so glad the legislature responded and said, “Hey, we see you’re working hard. Here’s some more money.”

(15:01):

Then, by the way, then other things change. I mean, look, I happen to be pro-choice, and so when the Dobbs decision came down, that was another big curveball we were not expecting. How many years, decades and decades of people being used to the law being a certain way, now suddenly it’s different. That has taken up a lot of my time too, just to make sure that if a woman feels she needs one, that that will be safe and legal to her and accessible.

(15:33):

So that is another kabam, and now the whole gun thing, I happen to be a gun owner. I also believe that it’s nothing wrong with government regulating safe gun use and access. I don’t have any problem with a background check. I think it’s a good idea. I have no problem with a red flag law. But just within the last few days, what we found is that the district court judge has said that the Minnesota’s law that says you got to be 21 until you can go purchase a certain section of guns is unconstitutional.

(16:07):

So now, as we are watching mass shootings happen across America on a nearly weekly basis, this judge is saying, “Well, the law says even more guns.” The good thing is my staff are folks who are super smart, they care about community, they’re dedicated. So when I say, “I need you guys to step up a little more, sorry about that,” they tend to say, “Fine.”

Lori Kalani (16:37):

I think you were ranked as second-best workplace in Minnesota, so apparently your staff respects you and doesn’t mind doing the very rewarding work that they’re doing. And speaking of staff and consumer protection, I know that recently, I think it was February, you brought on Jessica Whitney who had spent many years in Iowa.

(17:01):

And anybody who does this type of AG work would say a former Iowa attorney general was the dean of consumer protection, and his office led a lot of multistates, and in contrast to Minnesota, that didn’t lead any multistates or very few prior to your being elected. I think that sent a real message to lawyers like Chris and myself about the role that your office will likely take in the future with respect to large scale investigations. Am I right about that?

AG Ellison (17:38)

Well, I’m glad you asked about that. Let me just share a few thoughts. First of all, Jess is a remarkable talent, no doubt about it. Tom Miller is the dean of the AGs. He’s universally respected on both sides of the aisle, but I’m sad he lost. But the voters get to decide what they want to decide, and that’s what they decided. So Jess was looking around to stay in the AG’s world and she’s hitting the ground running. She’s doing a wonderful job. And honestly, my consumer guy, the guy who leads our consumer group, a very brilliant lawyer named James Canaday, had the single biggest group in the AG’s office.

What we did is we made Jessica a whole deputy in the consumer area, and so now James can focus a little bit more on the work that he has, and they’re working wonderfully together.

Chris Allen (18:20)

Not only hiring Jess, who Lori and I both known and have worked with for many years, but also I noticed in your budget request to the governor, there’s a fascinating line entry about starting a large and complex consumer litigation multistate fund, which I know some states have. Minnesota didn’t have that. And just reading the request, it’s fascinating because you’re both bringing in the personnel and also then asking for the tools for those personnel to be able to accomplish what you’re driving at. I am curious what you are driving at. But you’re certainly laying the groundwork for something.

AG Ellison (18:58):

When it comes to that fund, I don’t have any big plan. What we’re trying to do is just tell the legislature, “This is not really a change. We just want a budget for it and count it as a line item as opposed to just general administrative blah blah, blah.” If you understand what I mean? There’s no big case work [we’ve] got in mind. We just want to make sure that when Ms. McGillicuddy, who maybe didn’t get treated fairly by ABC Co, if they go bankrupt, then at least she’s going to be able to get some money, some pennies back on the dollar. I don’t want to be in a situation where we’ve decided that this case is important to Minnesotans, but we don’t have the cost share. And so maybe now we will be able to say, maybe we’ll be able to make a legal decision as opposed to just [a] poverty decision and go to the multistate and say, “Well, can we give you half now and half later and we’re going to dig in the cushions of the couch and see what we can find.” I just think it’s a better accounting, really, it’s an accounting thing.

Chris Allen (20:26):

It’s about having the tools and not having to ad hoc things as stuff comes up.

AG Ellison (20:30):

That’s absolutely right.

Lori Kalani (20:32):

I have to mention that I’ve been hearing a lot about multistates from various AGs, and I’ve been doing this a long time and multistates have been around as long as I’ve been doing this. And I mean, the idea is you share resources, the states, and you all act as a group because you essentially all want the same outcome.

(20:57):

But at the end of the day when there’s a payment, I think there’s been some consternation between, I would say, the large versus the small states. I just wonder are the golden days, I guess, of multistates where AGs could work together, and nobody wants to be the target of a multistate, but it certainly beats having 50 separate investigations, and are those days really gone because you have certain states that will say, “I’m not going to just sit at the kids’ table?”

(21:34):

Or you have certain states that say, “I can’t work with that other party,” which has not been the case in the past. Consumer protection really transcended politics. But I think you becoming more involved in multistates, you and your staff and your state, is probably a good thing for the future of multistates because it’s a fresh face on an executive committee that is leading and managing what could often be a multi-year complex investigation.

(22:09):

So General, I guess that’s a long way of saying or asking the question, do you believe that multistates going forward into the future are going to be utilized the way they’ve been utilized before, or are they going to be smaller? I guess three states would technically be a multistate, but are they going to be sort of the size and breadth that we’ve seen them in the past?

AG Ellison (22:34):

You know, Lori, I think that the age of the multistate is probably here, is probably going to go on for a while, but it will certainly change. But as long as business is national and international, then responses to things that might potentially violate a consumer statute are probably going to affect more than one state, which means we’re going to have multistates.

(23:00):

We all know that going it alone is not the best way to help your consumers get a fair treatment that they deserve. So we will probably continue to work together, but things are going to change. For example, I think that smaller states probably are going to start insisting to have more leadership opportunities in multistates. You might find states that feel like, “You know what, that settlement is a good one, so we’re going to join it.” Or, “I don’t like that settlement, so we’re not going to join it.” So that’s going to happen.

(23:36):

We might be at the era where that model is changing, but given the nature of business, I doubt that we’ll ever see the end of the multistate, but we’ll have to respond to some new ways of dealing with it.

Chris Allen (23:48):

General, my wife actually went to law school up in the cities, and so I’ve been up there a number of times, and what’s always struck me about Minnesota is just how diverse your state is in terms of the business community. You have world-leading healthcare, you have banks, you have agriculture and forestry, you have finance. What advice do you have for business? How do you like to talk to the companies that reside in your state and do business in your state?

AG Ellison (24:16):

Here’s the thing, here’s what I say to our business community. First of all, thank you. The people of our state go to you for jobs and they probably spend as much time with you as they do their own families. We need business to say, “What are we going to do about workforce development?” We need business to say, “What’s our environmental policy?” If we’re all burning the most toxic fossil fuel, we’re going to ruin our state.

(24:44):

There’s a lot that the business community does for our state. At the same time, what I say to them is, “Look, let’s stay in touch and let’s talk. Happy to meet with anybody, any business in our state, large or small.” Businesses are like human beings, meaning they’re not all good, they’re not all bad. And most of them are a little bit a mix of two, we talk about those things and we say, “Look, the statute says this. Please don’t do it. If you do, it’s my job to make sure that we stay within these parameters.”

(25:18):

Then there are businesses that no business could ever agree that what they’re doing is okay. I mean, there are businesses that are like, “They’re making us look bad. That’s not right. That’s not what we stand for. That’s not what we believe in.” And sometimes when that happens, I do have to step in more aggressively.

(25:40):

I just tell the business community, “Look, you can count me as a friend. If you’re obeying the law around employees, you’re obeying the law around environment, you’re obeying the law around fair competition, we’re good. I want you to keep doing what you’re doing. Hey, you’re giving my neighbors work. How could I be against that?” So that’s how it is.

(26:04):

Here’s one of my basic theories of the AG-business relationship. I’m helping to keep good businesses good. Give you an example, my office got an award and I’m so proud of it. The Solar Industry Association gave us an award, because we sued a solar panel company. What? How could that happen?

(26:29):

These people were ripping off consumers and the solar industry was saying like, “Look, we’ve got to be able to market our product. If those guys are out there ripping and ripping off, and then they’re going to diminish trust in our industry, and we can’t have that. So we need you to make sure that you know the difference between a mistake, a business practice and somebody who’s out there scamming and taking advantage of people.”

Chris Allen (26:58):

So it sounds like companies shouldn’t be afraid to bring that to you, to point it out.

AG Ellison (27:05):

I show up at the Chamber meetings and I let folks know who I am. I let them know I’m not anti-business at all. I think business is important. I believe in business. I’m not an ideologue. So I just tell people, “I do believe that a public sector is important too.” I’m not one who believes that the market has all the answers. I do believe the market has a lot of answers, not all of them. But I also believe that the public sector also has some too.

(27:38):

It is the mix of the two that ends up being to the best benefit of the average Minnesotan. The average Minnesotan needs a good job, and maybe that’s at a private sector employer, and they also need somebody to make sure the water’s clean so they can drink it. And that’s the government’s job. You’ll not hear me say that, “Oh, the government is bad and the government’s not any good.” I’m not that guy.

(28:04):

So there are some folks who probably would not agree with me, but I think that it is appropriate for government to do for people, for society, what they can’t do for themselves. I think businesses want a few clear rules that are written clearly enough to follow, and they want to make it so that they’re not getting screwed just because they’re not really big.

(28:31):

So you want to hear some community bankers get mad, start writing laws that they have to abide by, but are designed for Citigroup. You know what I mean? They don’t like that. They’re like, “Wait a minute, we didn’t do that. We can’t do that. We don’t do that. We’re just trying to make sure these farmers can get their crop in. That’s all we do. Don’t make us abide by stuff that’s going to cost us a lot of money and we’re not even involved in it.

(28:58):

But that’s legislative, and so that’s how I see it. The potential that we will disagree is there, but there’s no potential that we cannot talk. We can always talk. And I definitely, and I’m going to tell you, I’ve had situations where some folks were complaining about some activity of a particular business. We looked into it, the business said, “I got it, no problem.” And that’s happened a number of occasions.

(29:28):

I tell them, “I’m not looking for a lawsuit. I’m looking for compliance with the law, and I’m hoping that you understand that the success of your business does rely on goodwill, and so think about that. You might be able to squeeze that extra penny out of Ms. McGillicuddy, but is it really worth it if she kind of hates you after that?”

Lori Kalani (29:55):

Well, is it really worth it also if you’re going to make an enemy of the AG’s office, I always tell clients, “The AG’s going to be there for a long time. You can win the battle, but you’ll lose the war.” And there’s always some way to get to yes, and to resolve things, and really, I think, explain both sides, because people, our clients, they know their business really well. You know the law really well in Minnesota, and sometimes it’s just a disconnect, and because I think, at least our clients, by and large, they want to do the right thing and it just takes some communication.

AG Ellison (30:36):

I believe that to be true. I think people want to do the right thing. One thing I ask businesses to understand: I’m elected to make sure laws are complied with, and I’m the kind of person who is going to do that. And so, as long as everybody understands that, we got no problems at all.

Lori Kalani (31:00):

Well, thank you. This has been a fascinating conversation. I’m not surprised. You are a fascinating human being, and every time I talk to you, I enjoy talking to you. So thank you. And I’m going to say we’re going to have to invite you back at another time.

(31:14):

I know time is valuable, so don’t worry, we won’t be calling with a crisis anytime soon saying we need you on this podcast today. But we’d love to have you back at some point because you really are great to talk to.

AG Ellison (31:28):

Well, I’ll see, Chris and Lori, we’ll see you soon, and thanks for the invitation. I really enjoyed it.

Lori Kalani (31:34):

Thank you.

Chris Allen (31:35):

Thank you, General. You have been listening to State AG Pulse, brought to you by Cozen O’Connor’s State AG Group. Research for this podcast was provided by our associates, Ryan Bottegal, Hannah Cornett, Keturah Taylor, and Emily Yu, as well as our policy analyst, Elizabeth Hill Hodish. If you enjoyed this week’s episode, please leave us a five-star rating and review. That will help our visibility and will allow other listeners to learn about the podcast. And of course, please tune in again in two weeks for our next episode.