- within Real Estate and Construction topic(s)
Earlier this month, Kelley Drye's State AG team was in attendance for the National Association of Attorneys General 2025 Capital Forum – technically the last "Capital Forum" to take place in December in D.C., but certainly not the last important NAAG conference. The topics at the Forum included youth safety related to digital manipulation and AI, antitrust enforcement, preemption and ethical implications when local governments retain outside counsel, and predictive markets. The conference also provided a preview of the NAAG Presidential Initiative for 2026 from incoming President Connecticut Attorney General William Tong – "Driving Down Costs for American Families." We cover some of the highlights below.
Preemption by Local Governments
As we covered earlier this year, Kansas intervened in a Missouri case to prevent one of its counties for claiming to represent the State of Kansas. The panelists discussed updates to this case, including that Kansas' motion to dismiss was granted on the basis that the county could not speak for all people of Kansas – rather parens patriae is only available to the state. They explained that the public nuisance claims were a "fig leaf" of parens patriae, serving as a pretext to justify asserting authority the county did not legally possess. It was noted that Ford County may not have initially understood their claims were inappropriate, especially as the outside counsel they hired were from another state and may not have appropriately explained the impacts. In addition to addressing the complexities of state political subdivisions using outside counsel, one panelist noted that engaging outside counsel can be appropriate for attorneys general, who represent the entire state, particularly when navigating highly specialized practice areas.
Antitrust Enforcement
Tennessee Attorney General Skrmetti, Colorado Deputy Attorney General for Consumer Protection Nathan Blake, and Minnesota Assistant Attorney General Elizabeth Odette discussed antitrust enforcement priorities. AG Skrmetti outlined his antitrust priorities, explaining that concentration of power often leads to abuses that may harm consumers and advocating for a level playing field where consumer choice is not artificially constrained. Noting the current period of significant consolidation, he highlighted that antitrust enforcement has risen to a high level of prominence and should be viewed as a pro-consumer tool rather than anti-business, framing it as an approach that allows for bipartisan alignment. He stressed that antitrust enforcers need to go back to basics and streamline narratives, rather than making impenetrable arguments. His view is not to target companies just because they are big, but rather make arguments accessible to a broad range of the public about how antitrust law prevents improperly constraining the market. Blake agreed that there are opportunities to communicate with the community – for example, with recent proposed grocery mergers, people can understand the impacts on their local stores.
Odette asked how states can continue to take on antitrust cases where resources are a challenge. AG Skrmetti touted the need for good state laws, like Tennessee recently obtained, and dedicated staff. He said federal cooperation can assist with having more in-house experts, for example, where states may not have the resources, and states can provide additional legitimacy during an administration change to a case and even outside counsel expertise. Blake echoed that states have strapped resources, but that in some instances, states filing cases separately from the federal government allowed states to be more of an equal partner on the issue. He noted that filing a case with a federal agency under one administration can lead to uncertainty if priorities shift under a new administration, and therefore states should ensure they can continue on with their initiatives should this priority change occur. Odette later described that each state makes individual decisions about priorities, resources, and staffing. AG Skrmetti added that the change in federal administration is similar to when new AGs come into office – where some AGs might see resource expenditures differently – as it is the role of the principal to set the priorities.
The panelists also discussed how antitrust laws and enforcement can keep up with new technology. For example, Blake said that where data has been obtained through a monopoly, coming up with a remedy is a challenge. AG Skrmetti commented that the tech sector is the most important place to receive scrutiny because it is extraordinarily powerful, with as much power as the "pre-Reformation church," influencing everyday lives. When it comes to AI, he wants to ensure the U.S. can spur innovation in a way that American AI prevails over Chinese AI, while maintaining oversight and avoiding abuse of power. Blake agreed that the states don't want to stymie innovation with potentially uniformed policymaking and need to stay on top of the technology to protect consumers. AG Skrmetti explained that when there is not real competition, everything stagnates, and consumers lose benefits. He referenced the Live Nation case as an example of how consumers were adversely affected, highlighting a specific incident involving Taylor Swift ticket sales that resulted in stories of frustration from all levels of consumers, illustrating how monopoly power made things worse.
Odette asked the panelists for their antitrust enforcement predictions. Blake and AG Skrmetti both flagged tech cases, agriculture, and entertainment as potential areas of scrutiny. AG Skrmetti described structural issues with entertainment including the fact that people spend more time on their phones or consoles, and Blake pointed to TV station mergers and other recent mergers impacting the sector. Odette pointed to interoperability issues, noting the John Deere case should also be viewed through a technology lens.
Driving Down Costs for American Families
NAAG President and Connecticut AG Tong launched his presidential initiative with a panel discussion on pricing and the impact of rising costs on families nationwide. Missouri Attorney General Catherine Hanaway and New Hampshire Attorney General and outgoing NAAG President John Formella joined AG Tong on the panel. The AGs discussed cases their offices were pursuing to keep prices fair and protect consumers from harmful practices.
AG Tong opened the panel by addressing the escalating costs not just consumers but whole families face, citing examples such as internet, energy, water, cellular service, and healthcare. To illustrate how attorneys general can help reduce costs, he referenced Connecticut's generic drug price-fixing cases, initiated by his predecessor, Attorney General George Jepsen, calling these players the "largest corporate cartel in American history." These cases involved major manufacturers of generic drugs allegedly colluding to set prices far above competitive levels.
AG Hanaway discussed Missouri's lawsuit against Dollar General over pricing discrepancies between shelf prices and point-of-sale charges, with a trial scheduled for 2026. In another Missouri matter, AG Hanaway highlighted a consent judgment with Florida-based real estate brokerage firm MV Realty Holdings, LLC, stemming from allegations that the company violated state law by paying homeowners a small percentage of their home's value in exchange for a 40-year commitment to use the company as their broker, a provision that extended to heirs.
AG Formella addressed pricing and service challenges stemming from healthcare consolidation in New Hampshire. He cited examples of community hospitals being acquired, stripped of resources, and ultimately driven into bankruptcy, leaving communities without adequate care. He noted that while some acquisitions were made with good intentions, others involved bad actors. The resulting lack of nearby healthcare forces consumers to travel long distances for medical services, increasing costs through added time and transportation expenses. AG Formella talked about the need for AGs to get aggressive and creative about remedies in this space, mentioning the establishment of a healthcare consumer protection trust fund in the state to help alleviate some of the problems caused by consolidation, and to not forget about the powerful tools states have through their charitable trust and nonprofit laws since many healthcare institutions are charities.
"Junk fees" continue to be on the minds of attorneys general. General Tong discussed fees, citing an action against a Connecticut cable provider that charged a "network enhancement fee" despite allegedly providing no actual enhancements. AG Formella commented that in last couple of years, with consumer struggling with rising inflation and prices consumers, they are starting to notice pricing issues more and AG offices are getting more complaints. He said though some businesses blamed inflation, in reality, he felt "junk fees" were to blame in some sectors of the economy.
AG Tong emphasized growing consumer frustration over rising costs and noted the challenge of finding sufficient authority to address these issues. He highlighted concerns about "shrinkflation," explaining that products often appear unchanged while containing less, such as peanut butter jars with hidden dimples or chip bags with fewer chips despite higher prices.
The AGs also discussed price gouging authority. While AG Formella said New Hampshire's authority was fairly limited, AG Tong noted that Connecticut is currently looking into grocery pricing including a focus at the distributor level.
Onward to 2026
While this may be the last December Capital Forum in Washington D.C. for the foreseeable future, the issues discussed will remain a priority throughout the new year. NAAG and General Tong will host a Presidential Summit this summer in Connecticut to further explore pricing concerns. Before that, NAAG will convene its new 2026 Annual Conference in April, with topics to be announced, alongside its regular Spring and Fall Consumer Protection Conferences. With approximately 30 AG elections slated for 2026, the year promises to be an exceptionally busy one.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
