Tierney Blog


Uber Multistate Settlement Demonstrates the Power of State Data Breach Laws

On September 26, 2018, the attorneys general of all 50 states and the District of Columbia announced an agreement to settle allegations that Uber had exposed the data of 57 million users, and then paid hackers to cover up the breach rather than reporting it to proper authorities. Additional details on the breach can be found in the press releases issued by California, New York, or Massachusetts, each of which reportedly helped lead the settlement. Reporting from Bloomberg, which originally broke the story on the breach in November of 2017, can be found here.

As other commentators have recognized, the multistate settlement shows that the proliferation of state data breach laws has given attorneys general the power to come down hard on bad actors. The settlement included a penalty of $148 million, which has been described as the largest penalty ever imposed by state authorities for a data breach. The settlement also required Uber to take measures to prevent future data breaches and reform its corporate culture. It includes requirements that Uber report to states any data security incidents quarterly, develop a data security program with an executive officer, and set up a hotline for reporting misconduct.

State AGs Should Fill IRS Enforcement Void

In the 43 states that have a state income tax,  tax enforcement is done in close cooperation with the Internal Revenue Service (IRS) of the U.S. Department of Treasury. Because the budget of the IRS has been slashed, the number of federal audits and prosecutions have dropped dramatically leaving billions of federal and state tax dollars uncollected. 

All attorneys general have the responsibility to protect their own state tax collection process. I would suggest that because the federal government isn't doing its job that state attorneys general must step up their tax prosecutions, even if it means taking over cases from a starved IRS.  

No one wants this result, but the cuts to the IRS budget leave little choice. Subjecting taxpayers to separate state and federal audits wastes time and increases tax planning angst for all parties. But as happens in so many areas, if the federal government refuses to enforce the law, then the states have no option but to go it alone. 

IL AG Madigan & NY AG Underwood settle with WeWork over "non compete" agreements, benefiting workers

Illinois Attorney General Lisa Madigan and New York Attorney General Barbara Underwood just settled a case that will benefit up to 1400 workers by giving them the ability to move on to better jobs in their field.  The settlement was with the co-working space company WeWork (press releases here and here, media coverage herehere, and here).

Under the terms of the settlement, 1400 lower level WeWork employees nationwide (like janitorial workers or baristas) will no longer be subject to "non compete" agreements, while 1800 higher-level employees of the company will have non compete agreements that are significantly narrowed in key ways.

Non compete clauses unfairly limit workers from getting ahead as they should be free to leave their jobs and advance in their lives. The attorneys general of New York and Illinois have been working extensively on this issue (settlements with Jimmy Johns by Illinois and New York; Illinois case against a national payday lender; New York settlements with Law360 and with a medical information services company).

Because use of these restrictions has been growing in recent years — one report found that nearly 20% of workers are covered by non competes — their unfairness may put this issue on the agenda of a growing number of attorneys general in the years to come.

For more information, please see this paper co-authored by Illinois Attorney General Lisa Madigan and the Chief of her Workplace Rights Bureau, Jane Flanagan.

Delaware Attorney General Matt Denn on Criminal Justice Reform

One of the most important developments in the fight for criminal justice reform has been the rise of prosecutors who are willing to grasp the larger issues that lie in their law enforcement capacity. Delaware AG Matt Denn is wrapping up his term in office with this reflection on his solid reform accomplishments even as he calls upon his state's leaders to continue to push for more reform and progress.

The Role of State AGs in Redistricting in 2020

Virginia AG Mark Herring recently lost his motion to take his state's redistricting out of the hands of elected officials. He and his Governor had asked a federal judge to appoint an independent "map drawer." Despite the loss, Herring’s effort underscores the role that attorneys general have long played in drawing district lines.

Last spring, Professor Justin Levitt and I wrote a memo summarizing the history and the potential of attorney general involvement in the redistricting process. For those interested in legislative and federal redistricting, it’s worth a read.

State Action vs. National Norms in Developing Tech Policy

A recent article in Forbes, How state attorneys general are driving tech policy, accurately notes an increased interest on the part of state attorneys general in tech policy. It argues that, while there are times when state action makes sense, the nature of the Internet requires that state action be preempted and national norms be imposed.

Attorneys general push back on this conclusion citing the inability of the federal government to meaningfully address tech policy issues. And state legislatures are likewise taking matters into their own hands, as California's passage of a net neutrality law last week shows. 

As this debate continues, the "AG Tech Forum" at the Berkman Klein Center for Internet and Society at Harvard Law School is working to "bring insights from academic and other constituencies to ensure that all sides benefit from dialogue on neutral ground" on these issues.  

The challenges of formulating tech policy will only grow in the years ahead, and the role of attorneys general has yet to be fully developed, making this an issue to watch.

 

Bipartisan State Efforts to Control Prescription Drug Costs

At the top of the agenda for the 800 state health policymakers who crowded into this year's annual conference of the National Academy for State Health Policy were bipartisan state efforts to control the costs of prescription drugs.  24 states have passed legislation designed to hold back price increases and almost all of them have been challenged by drug companies in lawsuits that will be defended by state attorneys general.

This is an issue that is only going to loom larger for all attorneys general, their legislatures, and their administrative agencies in the months ahead.

A Valuable Study of State AG Actions on Behalf of Immigrants

In a recent post on ACS Blog, Jonathan Miller, Chief of the Public Protection and Advocacy Bureau in the Office of the MA Attorney General, provides a thoughtful study of the ways in which some state attorneys general are responding on behalf of immigrants to new federal immigration policies.  

Reviewing the range of litigation, Miller points out that lawsuits tell "only a piece of the story of the work by State AGs and many of their counterparts at the local level in support of immigrant communities." His post then looks at other ways in which AGs are responding, including enforcement actions protecting immigrants against abuses from landlords, employers, and others, and connecting with groups that serve as trusted partners for immigrants.

I learned from reading Jon's post, and I think you will, too.

State AGs Taking on "No Poach" Agreements

Washington Attorney General Bob Ferguson and his staff have secured agreements with eight fast food chains to stop using “no poach” or “no hire” agreements. No-poach clauses prevent workers from switching jobs within the same chain, limiting workers’ ability to advance and depressing their wages and bargaining power.

In addition, in July, ten state attorneys general and D.C. initiated a separate inquiry into a number of fast food companies for this same practice. Since then, three additional states have joined that multi-state effort.

 

AGs Acting at the State-Level to Protect the Environment

There is more to protecting the environment than opposing the policies of the current federal administration, as Vermont Attorney General T. J. Donovan has been demonstrating. His office, working with his state agency, recently resolved two issues arising from violations of solid waste disposal.

Other states also continue to be active at the state level.

With all the furor over environmental actions taken by the federal government, it is wise to remember that AG's are carrying out their environmental protection responsibilities at home.

For an excellent compendium of state environmental action matters, see the Sabin Center's database of State Attorneys General Environmental Actions and also check out the Environment Policy Area page on our website.

Peter Brann on Kavanaugh: We’ve seen this movie before

My teaching colleague Peter Brann, former Solicitor General of Maine, has written a blog post for the American Constitution Society that is getting some serious attention. As the U.S. Senate weighs Judge Kavanaugh's assertions on precedence, Brann argues that:

“We’ve seen this movie before.… While Judge Gorsuch told Congress during his confirmation that ’precedent is the anchor of the law, ’ Justice Gorsuch had no problem immediately unmooring precedents dating back over 50 years….”

Brann's incisive catalog of Gorsuch writings speaks volumes as he urges the Senate, “[i]n evaluating Judge Kavanaugh, … [not to] be satisfied with empty platitudes about respect for precedent.” 

A Sophisticated Platform for Anti-Fraud Efforts in the Nonprofit Sphere

Media across the country have carried the story of how all 50 state attorneys general and the Federal Trade Commission came together to crack down on organizations perpetrating fraud against our veterans. This well-coordinated effort, Operation Donate with Honor, is not only a success in and of itself. It also reveals an expanding and sophisticated platform for future anti-fraud efforts in the nonprofit sphere.

The result of years of painstaking work by career prosecutors on both the state and federal level, this initiative highlights the efforts of the National Association of State Charity Officials (NASCO).  A regular visit to NASCO's improved website is in order for anyone interested in nonprofit fraud prosecutions

NJ AG Gurbir Grewal on Faith and the Law

New Jersey Attorney General Gurbir Grewal, who was recently the target of racial taunting by local radio hosts, usually (and wisely) avoids most of the interview requests he receives. But from time-to-time, he opens up, as he does in this thoughtful piece. It is worth reading.