Tierney Blog


The Takeaway: Why Attorney General Races Draw National Attention (and Donations)

The US Supreme Court in 2006 gave the states the special right to sue the federal government when other organizations can’t. But the real reason it’s happening is because of the integration of our economy.
— James Tierney

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.

State AGs Carry Responsibility for Police Department Reform

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.

FTC Shuts Down FL-Based Health Insurance Scam

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.  

AG Prosecutions Targeting Debt Collectors

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.  

Washington AG Acts to Stop Sexual Harassment of Female Farmworkers; Record Settlement of $525,000

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.

NYAG Investigating Source of Millions of Fake Public Comments Submitted to FCC

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.

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.