My longtime friend Kathy Jennings is now the Attorney General of Delaware where her experience as a talented prosecutor and leader are serving her well. Because the Delaware AG is the only prosecutor (there are no District Attorneys), Kathy's reforms take effect immediately. I'm glad to see that her work is receiving significant praise and notice in the criminal law reform community.
State attorneys general are closing in on settling lawsuits against opioid manufacturers, distributors and the Sackler family who obscenely profited from the suffering these drugs inflicted on millions of Americans. Utilizing contingent counsel, the Attorney General of Oklahoma recently settled a case against Purdue Pharma for $270 million, $75 million of which is to come from the Sackler family.
Sadly, as I predicted in my January 2018 Op Ed in Buzz Feed that was based on the tobacco experience, Oklahoma legislators are now looking for ways to divert the money away from public health. While not a surprise, diversion of settlements from health will remain a major fight as other cases are resolved.
On a separate but vitally important development, the AG's of Massachusetts and New York, who are not using contingent counsel, are showing how the Sackler family sought to profit from both non-generic and generic opioids and, astoundingly enough, from the life saving prescriptions that are used to save lives of those who overdose on their products.
While many issues remain unclear, one unaddressed question is what the names of the law firms are who set up the complex corporate structures that led to so many deaths in so many communities. As with tobacco, unmasking the identity of those law firms is essential to justice.
Away from the headlines and worth noting: so far this year over 700 law enforcement officers in Louisiana have come together to attend sexual assault workshops hosted by the Louisiana Office of Attorney General. It is exactly the right thing to do.
The thousands of career investigators and prosecutors of the U.S. Department of Justice are often unable to defend themselves when they are hit with the kind of ferocious criticism by the President and various members of Congress. It therefore falls to those of us who admire them to send along heartfelt thanks for the important work that they do.
This website and my blog is dedicated exclusively to the actions of state attorneys general. However, the college fraud indictments announced today by the District of Massachusetts United States Attorney deserves praise from all of law enforcement. It is exactly the kind of case that no state AG or District Attorney could ever investigate or prosecute. This case serves as a prime example of the US DOJ at its best, and they deserve all of our thanks.
My co-instructor this Spring at Harvard is Jonathan Miller who is also the Chief of the Public Protection Bureau in the Massachusetts Office of Attorney General. Jon just posted on SCOTUSBlog calling for the Supreme Court to summarily reverse June Medical.
Miller argues that state "laws requiring admitting privileges do not enhance patient safety," and that the Court should reaffirm its decision in Whole Woman’s Health v. Hellerstedt.
The federal government has largely shifted away from efforts to reform police abuse and misconduct. That’s not going to change if William Barr is confirmed. But state AGs in CA and IL, among other states, are carrying on with their own efforts to reform police departments.
The CA DOJ announced the release of a report on use of force in the Sacramento Police Department. Find the report here. The Sacramento Police Department invited the CA DOJ’s involvement after public outcry over the police shooting of an unarmed black man named Stephon Clark last March. The CA DOJ’s report is not binding on the Police Department.
A federal judge in Chicago just approved a consent decree mandating reforms for the Chicago Police Department. Find the decree here. The consent decree follows from the IL AG’s lawsuit against the City of Chicago. Read more about the lawsuit here, which itself followed after former US AG Jeff Sessions abandoned efforts at reform in the city.
The initiatives in CA and IL show two different models for police reform. One involves a voluntary relationship with the AG offering advice and assistance, like the federal government used to offer through its Collaborative Reform Initiative. The other involves the AG obtaining a court order and judicial oversight, which the federal DOJ used to do following its pattern-or-practice investigations.
Most state AGs, however, do not have explicit statutory authority to obtain consent decrees to curb police misconduct. There have been calls (here, here and here) for the expansion of AG authority in this area. We think state legislatures will be seeing proposals soon, if they haven’t already.
At a time when the federal government literally has shut down, and when the media proclaims that partisanship is at an all-time high, state attorneys general continue to do extraordinary work on behalf of the public interest.
On December 28, 2018 under the leadership of Connecticut AG George Jepsen and AAG Joe Chambers, all fifty states settled with Wells Fargo for $575 million - dollars that go back to back to defrauded consumers. Connecticut led this case along with Iowa - where AAG Patrick Madigan again played a crucial role - and the entire consumer division of the Arizona OAG.
On January 4, 2019, in another $500 million 48-state settlement, and again under the leadership of Iowa AG Tom Miller and his consumer chief Jessica Whitney, almost 180,000 former students of the for-profit education company Career Education Corporation will see their debt wiped out because of CEC marketing violations.
These bipartisan successes come so regularly that they barely crack the news, but to the hundreds of thousands of victims they show that government can and does still work for them.
New York Attorney General Barbara Underwood has posted a wonderful video reflecting on her tenure as New York Attorney General. Take a minute to watch it if you can.
Thank you, Barbara!
Despite the short duration, your tenure as NY AG will go down as one of the most consequential and impactful in the history of that office. This country is safer because of you and the incredible men and women of the NY OAG.
Findings show that people in poverty and people of color are much more likely to be exposed to harmful pollution. Due to budget cuts at the EPA, some have wondered if we lost the moment for environmental justice. But AGs in at least two states have made environmental justice a priority.
In late November, the NJ AG announced that it was making environmental justice a priority, and it filed eight lawsuits targeting environmentally hazardous sites in minority and lower-income communities across the state. The NJ AG also announced the creation of an environmental justice unit.
Earlier this year, the CA OAG announced that it was creating a bureau of environmental justice. It subsequently intervened in a lawsuit dealing with the building of an industrial park in a community already suffering from some of the highest pollution in California.
For more reading on this subject, take a look at our earlier post on state-level actions to protect the environment. Also, Columbia’s Sabin Center maintains a database compiling environmental actions undertaken by state attorneys general.
Because next month 16 attorneys general will be leaving office and will be making major career choices, I thought of my friend Bill Sorrell who served as Vermont’s Attorney General for nearly 20 years. Bill was elected nine times, led many state and national initiatives - mostly in the area of public health - and won numerous awards. He even has a lecture series named for him.
Deciding not to seek reelection in 2016, Bill did not forget the responsibility we all have to make our world a better place one person at a time. This article describing Bill's work at Mercy Connections in Burlington, Vt. says it all.
There are reports of a jump in fraud against immigrants seeking immigration legal services. State AGs have been using their civil and criminal tools to combat this type of exploitation.
Following a months-long undercover operation, the NJ OAG just announced that it’s seeking civil penalties against 28 businesses for selling immigration services they weren’t authorized to provide.
Back in July, the Washington AG followed up on earlier civil actions by filing criminal charges for contempt and prohibited practices against two individuals who had repeatedly defrauded immigrants by selling immigration services they were not qualified to provide.
And earlier in 2018, the Cal DOJ filed criminal charges against three individuals who allegedly defrauded undocumented immigrants and families seeking lawful permanent residence in the US. The charges now include 32 counts of felony grand theft, conspiracy, and violations of the state’s UPL statute and immigration consultant law.
These are just three examples. For more, check the State Center’s Consumer Protection Report by searching for “notario” or “immigration” where you’ll find actions taken by other states including Nevada, Illinois, and Texas. These cases can provide a model for other AGs who are surely hearing reports of similar exploitation among vulnerable residents.
For more resources on immigration services fraud, see our earlier post on notario fraud (by Faisal Sheikh now at the ACS State AG Project), the ABA’s Fight Notario Fraud Project, or manuals, like this one, drafted by nonprofits that focus on immigration services.
From WNYC’s The Takeaway:
As the state’s “top lawyer,” attorney generals have become national players in fights over everything from the health care law and immigration, to marijuana and gay marriage. They were also responsible for bringing in close to $100 million in election donations this year. James Tierney, Former Attorney General for Maine and founder of StateAG.org, breaks down why attorney general races matter — and what they're worth.
Click the ‘play’ button below to hear this segment.
Although the US DOJ continues to abandon efforts to reform local police departments, state AGs remain active in this area.
One tool available to state AGs is the consent decree. Just last week, in a last-minute act, now Former AG Sessions signed a memo making it more difficult (some would say nearly impossible) for the federal DOJ to use consent decrees to curb civil rights violations by local police departments. But state AGs can still turn to federal courts to create oversight by the federal judiciary using consent decrees.
Chicago provides an example. When the Sessions DOJ walked away from an agreement in principle to reform Chicago’s police department, the Illinois AG stepped in to get a consent decree. You can read more about this in our earlier post about the Illinois AG’s lawsuit. The proposed consent decree, submitted by the Illinois AG and the City of Chicago, is still pending in federal court. Other AGs will be monitoring the Chicago matter with interest in following General Madigan’s lead.
State AGs have broad authority, and AGs throughout the country have been using their authority to reform police practices. They’ve taken over investigations into police shootings, taken on direct review of police department reforms, and acted to increase transparency on police use of force.
The State AG Project at ACS will continue to compile a list of efforts by state AGs to reform police departments and the criminal justice system. With the federal government creating a leadership vacuum, we’re likely to see more action by state AGs in this area.
The Federal Trade Commission swept into Florida and got a federal judge to shut down a Florida operation that was selling fraudulent or "worthless" health insurance plans. Tens of thousands of people across the country were victimized, and the operators appear to have been on the radar of at least some AGs.
Health insurance scams have been proliferating as the federal government dismantles the Affordable Care Act. And Florida is among the nation’s biggest targets when it comes to scammers using robocalls to pitch fake health insurance.
The FTC did this one without the involvement of the FL AG. But looking at the issue nationwide, this is exactly the kind of issue that the FTC and AG consumer divisions should be prosecuting together. Collaborations increase the amount of monetary penalties that can be imposed and allow the agencies to pool their resources. Read about successful collaborations here and here.
Consumer debt has become big business, and debt collectors are increasingly the subject of AG prosecutions.
Over the last decade, private equity firms have built up significant stakes in payday lenders and other subprime consumer lenders. The private equity-backed debt buying business has boomed. And consumer debt has reached an all-time high. Against this backdrop, a number of notable AG prosecutions have been brought against debt collectors.
The National Consumer Law Center just awarded its "Rising Star" award for 2018 to two Texas AAG's who won a $25 million penalty and injunction against a major debt collector. The case was litigated for four years, and the penalty was imposed by a jury following a two-week trial.
The NY AG and the FTC teamed up and just recently won a federal temporary restraining order against a NY-based debt collector. The order included an asset-freeze over all of the defendants’ assets.
A search through AG actions in this area shows that debt collectors are under scrutiny by AGs, the FTC and advocacy organizations. Consumers continue to be plagued by abusive debt collection practices, and more enforcement by state AGs is undoubtedly on the horizon.
Far from the clamor of the national headlines, Wa AG Bob Ferguson and his staff, working closely with the Northwest Justice project, has been litigating on behalf of women agricultural workers who have long been the victim of sexual harassment. Ferguson said in a statement: “No woman in this state should be forced to accept sexual harassment as a condition of her employment.”
The State filed a complaint on April 26, 2017 against Horning Brothers, LLC alleging it violated of Title VII of the federal Civil Rights Act, as well as the Washington Law Against Discrimination. Horning Brothers is an agricultural company that grows, harvests, sorts, packs, and transports vegetables and women who work in the onion packing shed were harassed by a supervisor who repeatedly asked for sex, made overt sexual gestures, and engaged in the groping and touching women.
The consent decree includes not just a $525,000 payment but also an injunction that requires Horning Brothers to take steps to end discrimination in its hiring and employment practices, create a complaint procedure for employees, and provide semi-annual reports of complaints to the AG’s office. Horning Brothers would be required to make its new policies available to its employees in English and Spanish.
In a statement, one of the victims had a message for other workers: “I’m here to tell anybody that’s going through that that they have a voice.” She also had a message for those in positions of authority: “This is a big message to all the foremen, all the people in charge, who think that they have power over women, that they don’t.”
More press coverage can be found here and here. Video of the press conference can be found here.
The NYTimes reports that the NYAG has subpoenaed more than a dozen telecommunications trade groups, lobbying contractors, and advocacy organizations in connection with the submission of millions of possibly fake comments submitted to the FCC in 2017 in connection with a decision on internet regulation.
The NYAG’s investigation dates back to mid-2017, according to this announcement. Because the fake comments used the identities of real people, the NYAG characterized these filings as a potential violation of state laws on identity theft.
In a statement reported by the Times, Attorney General Underwood said that the “F.C.C.’s public comment process was corrupted by millions of fake comments. The law protects New Yorkers from deception and the misuse of their identities. My office will get to the bottom of what happened and hold accountable those responsible for using stolen identities to distort public opinion on net neutrality.”
In addition to possible deception and identity theft issues, it’s common to have laws, like this federal law or this law in Washington state, against the making of a false statement to a public official. Other states, like Oregon and Alabama, have laws that specifically apply to false statements made to lawmakers and executive officials for the purpose of influencing legislation.
The NYAG action represents a dogged pursuit of accountability in what was potentially a massive undermining of a federal agency’s decision making process.
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.
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.
Jesse Eisinger and Paul Kiel, After Budget Cuts, the IRS’ Work Against Tax Cheats is Facing “Collapse,” Pro Publica, Oct. 1, 2018
Tanza Loudenback, What Americans pay in state income taxes, ranked from highest to lowest, Business Insider, Apr. 8, 2018
Internal Revenue Service: Tax Gap Estimates for Tax Years 2008-2010
Daniel Uria, New York tax department reviewing allegations of Trump family tax fraud, UPI Oct. 2, 2018
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 here, here, 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.