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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2016-0199

THE STATE OF NEW HAMPSHIRE

v.

ACTAVIS PHARMA, INC. & a.

Argued: March 1, 2017

Opinion Issued: June 30, 2017

Joseph 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.

Preti Flaherty, PLLP, of Concord (Brian M. Quirk on the joint brief), for 

defendant Actavis Pharma, Inc.

McLane 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.
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Boutin & Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on the joint 

brief), for defendant Janssen Pharmaceuticals, Inc.

Nixon 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.

DALIANIS, C.J. The 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.

I

The 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.)

In 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 
3

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.

In 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, 

asserting that “an objection to the Attorney General’s use of outside counsel is 

not an appropriate justification for refusing to comply with lawful subpoenas” 

and that the defendants “lack standing to raise that complaint at all in this 

proceeding.”

Following a hearing, the trial court denied the State’s motion to enforce 

the subpoenas and granted the defendants’ motion for a protective order “to the 

extent that the OAG and Cohen Milstein’s contingency fee agreement is 

invalid.” The trial court determined that the defendants had demonstrated 

standing to bring their claims. Construing RSA 7:12 and :6-f, the court

concluded that “in executing the contingency fee agreement without the 

approval of joint legislative fiscal committee and the governor and council, . . .

the OAG acted outside the scope of its statutory authority to hire and 

compensate outside counsel,” and, therefore, “the contingency fee agreement 

between the OAG and Cohen Milstein is ultra vires and void.”

The trial court rejected the defendants’ ethics violations arguments, 

finding that because Cohen Milstein is not a “public employee” under the 

Executive Branch Code of Ethics (Ethics Code), see RSA 21-G:21-:27 (2012) 

(amended 2016), or a “public attorney” under the common law or the New 

Hampshire Rules of Professional Conduct, the contingency fee arrangement 

“does not create a conflict of interest.” The court also rejected the defendants’ 

claim that the contingency fee arrangement violates their due process rights, 

agreeing with “the greater weight of judicial precedent finding no violation of 

due process by contingency fee arrangements in certain civil litigation where 

the OAG supervises outside counsel and retains control over all critical
4

decisions such that the outside counsel’s personal interest is neutralized.” 

This appeal followed.

II

The State appeals the trial court’s finding that the defendants have 

standing “to make an ultra vires challenge to a government contract that they 

are not a party to and that is predicated upon the [OAG’s] alleged failure to 

follow claimed state contract formalities.” The State asserts that the 

defendants “failed to make the requisite showing of ‘actual harm.’” Further, 

the State argues that, “even if speculative risk did amount to a cognizable 

harm, the [defendants] have failed to show the alleged risk of future harm is in 

any way linked to the challenged conduct—namely the OAG’s decision to enter 

into a contingency fee agreement without seeking approval from the fiscal 

committee or the [Governor and Council].”

The defendants counter that the trial court “did not find standing based 

on any ‘hypothetical’ or ‘future’ harm,” but correctly found that “the 

contingency-fee agreement presently taints the investigation in a manner 

adverse” to them, “because the State’s investigation of [them] is inherently 

biased by Cohen Milstein’s conflict of interest.” (Quotations omitted.) In 

addition, the defendants argue that the trial court “properly found that this 

injury is personal to [them] because they are the direct targets of subpoenas 

issued in an investigation that . . . exceeds an executive agency’s authority.” 

(Quotations omitted.)

When the relevant facts are not in dispute, we review de novo the trial 

court’s determination on standing. Lynch v. Town of Pelham, 167 N.H. 14, 20 

(2014). “[S]tanding under the New Hampshire Constitution requires parties to 

have personal legal or equitable rights that are adverse to one another, with 

regard to an actual, not hypothetical, dispute, which is capable of judicial 

redress.” Duncan v. State, 166 N.H. 630, 642-43 (2014) (citations omitted). 

“In evaluating whether a party has standing to sue, we focus on whether the 

party suffered a legal injury against which the law was designed to protect.” 

O’Brien v. NH Democratic Party, 166 N.H. 138, 142 (2014) (quotation omitted). 

Neither an “abstract interest in ensuring that the State Constitution is 

observed” nor an injury indistinguishable from a “generalized wrong allegedly 

suffered by the public at large” is sufficient to constitute a personal, concrete 

interest. Duncan, 166 N.H. at 643, 646 (quotation omitted). Rather, the party 

must show that its “own rights have been or will be directly affected.” Eby v. 

State, 166 N.H. 321, 334 (2014) (quotation omitted).

“The requirement that a party demonstrate harm to maintain a legal 

challenge rests upon the constitutional principle that the judicial power 

ordinarily does not include the power to issue advisory opinions.” Birch Broad. 

v. Capitol Broad. Corp., 161 N.H. 192, 199 (2010). “The doctrine of standing 
5

serves to prevent the judicial process from being used to usurp the powers of 

the political branches.” O’Brien, 166 N.H. at 144 (quotation omitted). “In light 

of this overriding and time-honored concern about keeping the Judiciary’s 

power within its proper constitutional sphere, we must put aside the natural 

urge to proceed directly to the merits of an important dispute and to ‘settle’ it 

for the sake of convenience and efficiency.” Id. (quotation omitted).

As a threshold matter, the defendants argue that standing principles do 

not apply to them because “standing applies only to a plaintiff’s ability to 

initiate a lawsuit, not a defendant’s right to resist the claims against it.” 

According to the defendants, by bringing its action to enforce administrative 

subpoenas, “the State affirmatively put at issue the propriety of its 

contingency-fee agreement with Cohen Milstein,” and the defendants “seek only 

to defend themselves in a proceeding initiated by the State as part of an 

ongoing State investigation.” We disagree. Contrary to their representations 

otherwise, the defendants are themselves seeking affirmative judicial relief

unrelated to the adequacy of the subpoenas that were issued pursuant to the 

attorney general’s statutory authority. The defendants counterclaimed against 

the State, seeking a protective order that “the Attorney General’s engagement of 

outside counsel to conduct the Bureau’s investigation on a contingency fee 

basis is void and unlawful and that such outside counsel is prohibited from 

any participation in this investigation or any subsequent lawsuit arising from 

that investigation.” In doing so, the defendants raised several claims, including 

that the contingency fee agreement is ultra vires.

Under these circumstances, the defendants must establish standing to 

raise their claims. See, e.g., Federal Deposit Ins. Corp. v. Main Hurdman, 655 

F. Supp. 259, 268-69 (E.D. Cal. 1987) (reasoning that, in a case in which the 

defendant raised, as an affirmative defense, a claim that the Federal Deposit 

Insurance Company’s actions were ultra vires, “[t]here appears to be no reason 

in logic not to require a defendant who seeks to litigate the lawfulness of the 

government’s conduct in such a context to demonstrate its right to obtain 

judicial determination of its contention” and concluding that because 

“defendant raises a true affirmative defense seeking to litigate questions not 

encompassed by plaintiff’s case-in-chief,” defendant needed to show standing 

to raise its claim); United States v. Neset, 10 F. Supp. 2d 1113, 1116 (D.N.D. 

1998) (explaining that “[i]n raising an affirmative defense, a defendant is 

seeking the jurisdiction of the court to hear its claims as much as a plaintiff 

and, therefore, standing becomes an issue for the defendant as well”), aff’d on 

other grounds, 235 F.3d 415 (8th Cir. 2000).

We conclude that the defendants have failed to demonstrate standing 

with respect to their claims that the contingency fee agreement between the 

OAG and Cohen Milstein is ultra vires under RSA 7:12, I, and :6-f. Thus, we 

hold that the trial court’s contrary determination is erroneous.
6

RSA 7:12, I, provides that “[w]ith the approval of the joint legislative 

fiscal committee and the governor and council, the attorney general may 

employ counsel, . . . and may pay them reasonable compensation . . . out of

any money in the treasury not otherwise appropriated.” The defendants 

contend that the trial court correctly determined that they are injured “because 

the State’s investigation of [them] is inherently biased by Cohen Milstein’s 

conflict of interest.” (Quotation omitted.) However, the bias claimed has 

nothing to do with the alleged violation of the statute. The defendants concede 

that, even if the contingency fee agreement had been ratified by the joint 

legislative fiscal committee and the Governor and Council, their injury would 

not be alleviated. Because the alleged injury — an investigation allegedly

inherently biased by Cohen Milstein’s participation — cannot fairly be traced to 

the challenged violation — the State’s failure to obtain legislative and executive 

approval before retaining outside counsel on a contingency fee basis — the 

defendants have not established “an actual, not hypothetical, dispute which is 

capable of judicial redress.” Duncan, 166 N.H. at 642-43 (citation omitted); see

O’Brien, 166 N.H. at 144-45 (concluding that when plaintiff conceded that he 

had not sustained an injury attributable to the purported statutory violation, 

plaintiff failed to establish standing).

We, likewise, conclude that the defendants lack standing, at this time, to

challenge the contingency fee agreement based upon RSA 7:6-f. RSA 7:6-f

provides in part that “[a]ny funds received by the attorney general on behalf of 

the state or its citizens as a result of any . . . action under [the CPA] . . . shall 

be deposited in a consumer protection escrow account.” The defendants assert

that this provision prohibits the OAG from retaining Cohen Milstein on a 

contingency fee basis “regardless of any approvals the [OAG] seeks.” However, 

as the State argues, RSA 7:6-f “only comes into play—if at all—after a CPA 

settlement or judgment.” Further, as the State contends, there may never be 

one in this case. We agree. Any alleged violation of the statute is neither 

actual nor imminent. See Duncan, 166 N.H. at 642; see also Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992).

III

The defendants cross-appeal the trial court’s finding that the fee 

agreement between the OAG and Cohen Milstein does not violate the Ethics 

Code. Following oral argument, we requested the parties to address whether 

the Ethics Code provides a private right of action. After considering the parties’ 

memoranda, we conclude that it does not.

The determination of whether the defendants have standing to sue under 

the Ethics Code “is a matter of statutory construction.” O’Brien, 166 N.H. at 

142 (quotation omitted). The interpretation and application of a statute 

presents a question of law, which we review de novo. Id. In matters of 

statutory interpretation, we are the final arbiters of the legislature’s intent as 
7

expressed in the words of the statute considered as a whole. Id. When 

interpreting statutes, we ascribe the plain and ordinary meanings to the words 

used. Id. Our goal is to apply statutes in light of the legislature’s intent in 

enacting them and in light of the policy sought to be advanced by the entire 

statutory scheme. Id.

The Ethics Code provides that “[e]xecutive branch officials shall avoid 

conflicts of interest” and “shall not participate in any matter in which they . . . 

have a private interest which may directly or indirectly affect or influence the 

performance of their duties.” RSA 21-G:22. In addition, “[n]o executive branch 

official shall . . . [d]isclose or use confidential or privileged information acquired 

in the performance of his or her duties for the state for personal benefit or for

financial gain.” RSA 21-G:23, I. An “executive branch official” includes a 

“[p]ublic employee” defined as “any person, including but not limited to a 

classified or non-classified employee or volunteer, who conducts state business 

on behalf of the governor, any executive branch official, agency, or the general 

court.” RSA 15-B:2, IX (2012) (amended 2016).

The Ethics Code establishes an executive branch ethics committee “to 

resolve . . . issues, questions, or complaints involving executive branch officials

who are not classified employees.” RSA 21-G:29, I (2012) (amended 2016). 

The committee is authorized to “issue interpretive rulings explaining and 

clarifying any law . . . within the jurisdiction of the committee.” RSA 21-G:30, 

I(b) (2012) (amended 2016). The jurisdiction of the committee “shall consist of 

matters arising under the executive branch code of ethics, RSA 21-G:21-27.” 

RSA 21-G:29, II (Supp. 2015) (amended 2016). The committee is also 

authorized to “[r]eceive sworn complaints, investigate allegations of violations of 

this subdivision . . . by executive branch officials and make appropriate 

findings of fact and conclusions with respect to such conduct.” RSA 21-G:30, 

I(d) (2012) (amended 2016).

There is nothing in the Ethics Code to support a conclusion that the 

legislature intended to create a private right of action for its violation. 

Accordingly, we hold that the defendants do not have standing to bring claims 

under the Ethics Code. See Berry v. Watchtower Bible & Tract Soc., 152 N.H. 

407, 411 (2005) (explaining that child abuse reporting statute does not give rise 

to a civil remedy for its violation); Cross v. Brown, 148 N.H. 485, 487 (2002) 

(concluding that the Right to Privacy Act does not create a private right of 

action to seek a declaration that the statute has been violated).

The defendants also argue that “the contingency-fee agreement violates 

longstanding New Hampshire common law and ethics . . . rules.” 

(Capitalization and bolding omitted.) They assert that “[w]hen a private lawyer 

represents the State in a matter in which the lawyer has a personal interest, 

that interest compromises the ‘impartiality’ required of all government lawyers 

and creates at least the appearance of impropriety.” The trial court found that 
8

“Cohen Milstein is not a public attorney under common law or the Rules of 

Professional Conduct” and rejected the defendants’ claims to the contrary 

because they are “based on the premise that Cohen Milstein is vested with a 

governmental function and in a position of public trust where its financial 

stake will create a conflict of interest that will negatively impact the public 

trust and the fair administration of the law.”

Under the plain terms of the agreement between the OAG and Cohen 

Milstein, the OAG retains direct authority over all aspects of the investigation. 

The September agreement provides that the OAG “will maintain control of the 

investigation and . . . make all key decisions, including whether and how to 

proceed with litigation, which claims to advance and what relief to seek.” The 

agreement further provides that Cohen Milstein must “provide regular reports 

to [the] OAG on the investigation, including summaries of documents and 

interviews,” that the OAG “will review and approve all key documents,” and 

“will designate a point of contact who will supervise the investigation.” When 

the investigation has been completed, the OAG “will determine, in its sole 

discretion, whether to move forward to litigation.” Given these plain terms, we 

hold that the trial court did not err in concluding that “Cohen Milstein . . . has 

no authority to make any key administration decisions and therefore lacks the 

ability to represent the State as a substitute for the OAG.”

IV

Finally, the defendants cross-appeal the trial court’s finding that because 

the contingency fee agreement provides for the OAG to retain ultimate control 

over the investigation, the agreement does not violate due process. They argue 

that the United States Supreme Court “has categorically barred any 

arrangement that could undermine a government lawyer’s duty to pursue 

justice over personal interest.” In support, the defendants rely upon Young v. 

United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987), and Marshall v. 

Jerrico, Inc., 446 U.S. 238 (1980). These cases, however, are not pertinent to 

the issues before us. See Young, 481 U.S. at 804 (explaining that in a criminal 

case, “a private attorney appointed to prosecute a criminal contempt . . . 

should be as disinterested as a public prosecutor who undertakes such a 

prosecution”); Marshall, 446 U.S. at 239, 248-49 (in rejecting the contention 

that the penalties provision in the Fair Labor Standards Act violated due 

process “by creating an impermissible risk of bias in the Act’s enforcement and 

administration,” the Court held that the “rigid requirements of [neutrality],

designed for officials performing judicial or quasi-judicial functions, are not 

applicable to those acting in a prosecutorial or plaintiff-like capacity”).

As the appealing parties with respect to this issue, the defendants have 

the burden of demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 

740 (2014). Based upon our review of the trial court’s order, the defendants’ 

challenges to it, the relevant law, and the record submitted on appeal, we 
9

conclude that the defendants have not demonstrated reversible error as to this 

issue.

Reversed and remanded.

HICKS, CONBOY, and LYNN, JJ., concurred.