---
url: 'https://www.fmjlaw.com/the-minnesota-court-of-appeals-potentially-expands-the-scope-of-the-private-ag-statute-but-limits-its-applicability-in-the-health-care-context/'
title: The Minnesota Court of Appeals Potentially Expands the Scope of the Private AG Statute But Limits Its Applicability in the Health Care Context
author:
  name: Dan Ruzicka
  url: 'https://www.fmjlaw.com/author/druzicka/'
date: '2022-08-23T20:40:59+00:00'
modified: '2023-12-06T17:10:56+00:00'
type: post
categories:
  - Legal Alert
  - Newsroom
image: 'https://www.fmjlaw.com/wp-content/uploads/2015/05/litigation-1.jpg'
published: true
---

# The Minnesota Court of Appeals Potentially Expands the Scope of the Private AG Statute But Limits Its Applicability in the Health Care Context

The Minnesota Court of Appeals recently issued a decision in a putative class action lawsuit related to the Minnesota Health Records Act (“*HRA Class Action Litigation*”) (A21-1518, 1527, 1528, 1530) that addresses an individual’s ability to independently sue parties, without the involvement of the Attorney General, under Minnesota’s Private Attorney General Statute. As a general matter, the court’s decision may open the door for creative plaintiffs to assert new claims against Minnesota businesses under the Statute. However, the decision also clarifies that plaintiffs may not use the Statute to sue health care providers under the Minnesota Health Records Act.

**Patients bring “underdisclosure” claims against health care providers for allegedly failing to respond to requests for health care records.**

The *HRA Class Action Litigation* arises from disputes over patients’ legal rights to their health care records. In early 2021, four patients filed separate lawsuits against local hospitals and health care systems. Having allegedly received substandard health care from the providers, these patients formally requested copies of their health care records from the providers. In response, the providers allegedly failed to fully produce the records within 30 days, as required by the Minnesota Health Records Act (“HRA”).

To enforce their rights of access to their health care records, the patients sued the providers under the Minnesota Private Attorney General Statute (the “Private AG Statute”)[[1]](#_ftn1) alleging “underdisclosure” violations of the HRA. Because the patients utilized the Private AG Statute as the vehicle for their HRA claims, they also sought to recover their attorney’s fees. Shortly after consolidating the patients’ lawsuits, the court dismissed them, ruling that the patients could not use the Private AG Statute to enforce alleged HRA violations.

The patients appealed. They argued that, although the HRA does not create a private right of action specifically for underdisclosure claims, the Private AG Statute supplied a private right of action for their claims. Their appeal raised two key questions: can Minnesota citizens enforce statutes not expressly listed in Minnesota Statutes § 8.31 through private litigation? If so, is the HRA one of those statutes?

**The Private AG Statute incentivizes plaintiffs to address unfair and unlawful business practices through private litigation.**

The *HRA Class Action Litigation* court’s first ruling deals with the scope of private plaintiffs’ enforcement power under the Private AG Statute. To start, Subdivision 1 of Minnesota Statutes § 8.31 requires the Minnesota Attorney General to investigate violations of Minnesota laws “respecting unfair, discriminatory, and other unlawful practices in business, commerce, or trade . . . ,”[[2]](#_ftn2) and it contains an enumerated list of such laws. Notably, the HRA is not identified on that list. Subdivision 1 expressly states, however, that the list is not “exclusive[].”[[3]](#_ftn3) For that reason, and because the Attorney General has broad constitutional authority, it is widely accepted that the Attorney General’s enforcement authority stretches far beyond the short list of statutes in Subdivision 1.

Subdivision 3a of Section 8.31—known as the Private AG Statute—grants *some* of the Attorney General’s enforcement power to private citizens. That provision permits plaintiffs to file lawsuits in the public interest to address violations of Minnesota law, even where the law allegedly violated grants no right to sue.[[4]](#_ftn4) The Private AG Statute also permits plaintiffs to recover their investigation costs and attorney’s fees, making it a source of significant potential liability for businesses that may be exposed to Private AG Statute claims.

The Private AG Statute’s reach, however, is not as broad as the Attorney General’s enforcement authority. It only authorizes suits by plaintiffs “injured by a violation of any of the laws *referred to in subdivision 1*.”[[5]](#_ftn5) This statutory language tees up the *HRA Class Action Litigation*’s first question: given that Subdivision 1 says it is not “exclusive[],” can citizens sue under the Private AG Statute to enforce laws not enumerated in Subdivision 1?

***HRA Class Action Litigation***** court’s first holding: private litigation under the Private AG Statute is not limited to Subdivision 1’s identified list of statutes, despite prior case law suggesting to the contrary.**

Drawing on a statement by the Minnesota Supreme Court in one prior case, the Minnesota Court of Appeals decided that a statute need not be listed in Subdivision 1 to be enforceable under the Private AG Statute. In *Morris v. Am. Fam. Mut. Ins. Co.*, 386 N.W.2d 233 (Minn. 1986), the Supreme Court considered and rejected the argument that Minnesota’s insurance trade practices laws—which are *not* listed in Subdivision 1—can be enforced using the Private AG Statute. In that context, the Supreme Court stated that that “the list of laws set out in subdivision 1 is not intended to be exclusive . . . .”[[6]](#_ftn6) The *HRA Class Action Litigation* court took that as a “clear statement” not just about Subdivision 1, but also about the Private AG Statute’s reach. Reading between the lines, the *HRA Class Action Litigation* court may also have found significance in the *Morris* court’s willingness to even consider that the insurance laws might be enforceable by Private AG Statute litigation, given that those laws are not listed in Subdivision 1. As a result, the *HRA Class Action Litigation* court was unwilling to hold as a general matter that Private AG Statute litigation is strictly limited to the list of statutes in Subdivision 1.

Interestingly, the *HRA Class Action Litigation* court’s decision on this point is arguably in tension with other Minnesota appellate decisions on the same issue. For example, in a case decided after *Morris*, the Minnesota Supreme Court stated that private plaintiffs lacked “standing to bring suit” to enforce Deceptive Trade Practices Act violations using the Private AG Statute because the DTPA was “not listed” in Subdivision 1.[[7]](#_ftn7) Following that statement, the Court of Appeals decided that the Private AG Statute provides no private right of action for DTPA claims because “[the Private AG Statute] specifically limits its relief to those statutes referred to in subdivision 1, *and the DTPA is not included in that list*.”[[8]](#_ftn8) The *HRA Class Action Litigation *court evidently found the *Morris* court’s approach to the question to be determinative and therefore disregarded these subsequent decisions.

***HRA Class Action Litigation***** court’s second holding:  the HRA is not among the unenumerated statutes that private citizens may enforce using the Private AG Statute.**

After opening the door for plaintiffs to argue that laws not listed in Subdivision 1 can be enforced using the Private AG Statute, the court quickly shut that door on the patients’ HRA underdisclosure claims. In its second key ruling, the court noted that, at its heart, the Private AG Statute is intended to permit and incentivize private litigation to remedy fraudulent or deceptive practices in business. After analyzing the legislative history of the HRA, the court determined there is no reason to think the legislature intended the HRA to be enforced through Private AG Statute litigation. The court concluded the HRA is not one of statutes that, though unenumerated, is still “referred to” in Subdivision 1, and it therefore affirmed the dismissal of the patients’ HRA claims.

Notably, the court’s decision applies narrowly to the patients’ underdisclosure claims, and not to other kinds of HRA claims. As the court stated in its opinion, the HRA expressly creates its own private right of action for patients to sue providers for improperly releasing a health record, altering a consent form, improperly accessing patient information, and other violations.[[9]](#_ftn9) A patient’s ability to sue a provider for these types of HRA violations was not at issue in the case, and the scope of potential liability that providers may face for these violations is unaffected by the court’s decision. Finally, while it denied the patients the right to assert their HRA claims through private litigation, the court reiterated that health care providers who violate the HRA may be subject to enforcement actions from the many state agencies and boards that regulate health care in Minnesota.

Ultimately, while the *HRA Class Action Litigation* court ruled that the patients’ Private AG Statute claims could not proceed, the court’s decision about the Private AG Statute’s scope is arguably even more consequential. Barring further action from the Supreme Court or the Minnesota legislature, it appears the door is now open for creative plaintiffs to argue that laws not listed in Subdivision 1 may be enforced through private litigation, thereby expanding the reach of the Private AG Statute.

**If your business is facing a lawsuit under the Minnesota Private Attorney General Statute or an enforcement action from a state agency or board, FMJ’s Litigation Group is here to help. Please contact [Brad Hutter](https://www.fmjlaw.com/professional/bradley-r-hutter/) at [brad.hutter@fmjlaw.com](mailto:brad.hutter@fmjlaw.com) with your questions.**

---

[[1]](#_ftnref1)           *See *Minn. Stat. § 8.31, subd. 3a.

[[2]](#_ftnref2)           Minn. Stat. § 8.31, subd. 1.

[[3]](#_ftnref3)           *Id.*

[[4]](#_ftnref4)           Minn. Stat. § 8.31, subd. 3a.

[[5]](#_ftnref5)           *Id. *(emphasis added).

[[6]](#_ftnref6)           *Morris*, 386 N.W.2d at 236.

[[7]](#_ftnref7)           *See* *State by Humphrey v. Philip Morris, Inc.*, 551 N.W.2d 490, 496 (Minn. 1996). However, the Supreme Court found that the UDTP itself provided standing to the plaintiffs, and it therefore permitted the plaintiffs’ UDTP claims to proceed.

[[8]](#_ftnref8)           *Simmons v. Modern Aero, Inc.*, 603 N.W.2d 336, 340 (Minn. Ct. App. 1999) (emphasis added).

[[9]](#_ftnref9)           Minn. Stat. § 144.298, subd. 2.

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