Argued: March 1, 2017
A. Foster, attorney general (Lisa M. English, senior
assistant attorney general, and Francis C. Fredericks,
assistant attorney general, on the brief, and Ms. English
orally), for the State.
Flaherty, PLLP, of Concord (Brian M. Quirk on the joint
brief), for defendant Actavis Pharma, Inc.
Middleton, Professional Association, of Manchester (Wilbur A.
Glahn, III and Michael A. Delaney on the joint brief, and Mr.
Glahn orally), for defendant Endo Pharmaceuticals, Inc.
& Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on
the joint brief), for defendant Janssen Pharmaceuticals, Inc.
Peabody LLP, of Manchester (David A. Vicinanzo, Gordon J.
MacDonald, Holly J. Barcroft, and Anthony J. Galdieri on the
joint brief), for defendant Purdue Pharma L.P.
Hinckley Allen, of Concord (Michael J. Connolly and
Christopher H.M. Carter on the joint brief), for defendant
Teva Pharmaceuticals USA, Inc.
State appeals, and the defendants, Actavis Pharma, Inc., Endo
Pharmaceuticals, Inc., Janssen Pharmaceuticals, Inc., Purdue
Pharma L.P., and Teva Pharmaceuticals USA, Inc.,
cross-appeal, an order of the Superior Court
(Nicolosi, J.) denying the State's motion to
enforce administrative subpoenas issued to the defendants
under the Consumer Protection Act (CPA), RSA chapter 358-A
(2009 & Supp. 2016), and granting the defendants'
motion for a protective order. We reverse and remand.
relevant facts follow. In June 2015, the Office of the
Attorney General (OAG) retained the law firm of Cohen
Milstein Sellers & Toll PLLC (Cohen Milstein) on a
contingency fee basis "to represent [the OAG]
in an investigation and litigation of potential claims
regarding fraudulent marketing of opioid drugs."
(Emphasis added.) In September, the OAG and Cohen Milstein
entered into a second retainer agreement that
"supersedes the initial retainer agreement, executed
June 15, 2015, and is effective as of that date." The
September retainer agreement states that Cohen Milstein is
retained "to assist [the OAG] in an
investigation and litigation of potential claims regarding
fraudulent marketing of opioid drugs." (Emphasis added.)
August 2015, pursuant to RSA 358-A:8 (2009), the OAG
subpoenaed the defendants, with return dates of September 15,
"to produce for examination by the Attorney
General" specified "information and documentary
material because the Attorney General has reason to believe
that [the defendants] have engaged in or have information
about unfair trade practices and methods of
competition." The subpoenas seek documents and
information related to each defendant's opioid sales
volume in New Hampshire, the nature and scope of each
defendant's plans and efforts to market opioids for
chronic pain, the nature of and basis for representations
made to prescribers and consumers about the use of opioids
for chronic pain, and each defendant's role in causing
health care providers to prescribe opioids to treat chronic
pain. Although the defendants initially stated that they
intended to comply with the subpoenas, they subsequently
refused to do so, citing their objection to the OAG's
retention of Cohen Milstein to assist in the investigation on
a contingency fee basis.
October, the State moved to enforce the administrative
subpoenas. The defendants answered the State's complaint
and counterclaimed that the OAG's engagement of outside
counsel is unlawful. In addition, the defendants moved for a
protective order, seeking to "bar the Attorney General
from engaging contingent fee counsel to: (a) participate in
or assume responsibility for any aspect of the State's
investigation of alleged violations of the CPA . . .; or (b)
participate in or assume responsibility for any subsequent
enforcement action pertaining to alleged CPA
violations." The defendants argued that the OAG's
fee agreements with Cohen Milstein: (1) violate RSA 21-G:22
and:23 (2012) (amended 2016); (2) violate New Hampshire
common law; (3) are ultra vires because the OAG did
not comply with RSA 7:12 (2013) (amended 2016) or:6-f (Supp.
2016); (4) violate the doctrine of separation of powers; (5)
violate the New Hampshire Rules of Professional Conduct; and
(6) violate due process under the New Hampshire and United
States Constitutions. The State replied, ...