Republican AGs Object to Biden Administration’s Vaccine Mandate

• A group of 24 Republican AGs, led by South Carolina AG Alan Wilson, sent a letter to President Joe Biden objecting to the Biden administration’s proposed issuance of an emergency temporary standard pursuant to the Occupational Safety and Health Act (“OSHA”) that would mandate the COVID-19 vaccination of private sector employees.
• The letter asserts both policy and legal concerns, including practical policy considerations of the potential to drive individuals out of the workforce. The letter also argues that the mandate raises fears about the expansion of a federal regulatory agency, and that courts have been skeptical of the use of OSHA emergency temporary standards because of concerns about federalism and the separation of powers. The letter further argues that the mandate is unlawful, does not take into consideration natural post-infection immunity, and does not account for differences among employees, including, for example, those who can work remotely.
• The letter warns that, unless the mandate is rescinded, the undersigned AGs will litigate and seek every available legal remedy to block it.

DOJ, Seven AGs File Antitrust Suit to Block American Airlines-JetBlue Alliance

• A bipartisan group of seven AGs, including Massachusetts AG Maura Healey, and the U.S. Department of Justice sued American Airlines Group Inc. (“American Airlines”) and JetBlue Airways Corporation (“JetBlue”) over allegations that a series of agreements between the airlines, in which they will consolidate their operations in Boston and New York City, will significantly diminish competition and consumer choice in violation of the Sherman Act.
• The complaint, filed in the United States District Court for Massachusetts, alleges that in the pursuit of a strategy of industry consolidation, American Airlines’ “Northeast Alliance” with JetBlue, through which the two airlines agreed to combine operations at four major northeastern airports, including the coordination of all aspects of network planning such as flight routes, will eliminate competition and raise prices for passengers between Boston and New York. The complaint further alleges that the Alliance will diminish the incentive for JetBlue to aggressively compete with American Airlines in other markets, thus further harming air travelers across the country.
• The complaint seeks to permanently enjoin American Airlines and JetBlue from continuing the Northeast Alliance.

Bipartisan Group of AGs Voice Support for Federal Antitrust Legislative Agenda

• A bipartisan group of 32 AGs, led by the AGs of Colorado, Nebraska, New York, and Tennessee, sent a letter to congressional leaders in support of legislative proposals that purport to modernize federal antitrust laws.
• The letter urges Congress to take up and pass a range of antitrust bills, including the Ending Platform Monopolies Act, the American Choice and Innovation Online Act, the Platform Competition and Opportunity Act, the Augmenting Compatibility and Competition by Enabling Service Switching (“ACCESS”) Act, and the Merger Filing Fee Modernization Act, as well as the State Antitrust Enforcement Venue Act, which will provide state AGs with the same venue selection rights as federal agencies in antitrust cases. The letter also recommends additional provisions to strengthen consumer protections against antitrust violators and notes that antitrust law needs to be updated in view of changing technology and decreased competition in important sectors.
• The letter also urges Congress to clarify the status of states as sovereigns on equal footing with federal enforcement agencies under federal antitrust law, including with regard to the timing of challenging anticompetitive mergers and other practices.

Democratic AGs Seek Stiffer Penalties for CAFE-Standards Violations

• A group of 13 Democratic AGs, led by California AG Rob Bonta and New York AG Letitia James, sent a letter to the National Highway Transportation Safety Administration (“NHTSA”) to restore penalties for automakers that failed to meet corporate average fuel economy (“CAFE”) standards for model years 2019-2021 vehicles.
• The letter calls on NHTSA to immediately reverse an interim final rule promulgated by the Trump administration just before President Trump left office, which reduced a 2016 inflation-adjusted penalty from $14 to $5.50 for every tenth of a mile-per-gallon that an automaker fell below the CAFE standards beginning for model year 2019 vehicles.
• The letter argues that NHTSA has no reason to delay the restoration of the $14 penalty rate because any CAFE-standard violations for model years 2019-2021 occurred after the $14 penalty was announced in 2016, thus negating any retroactivity concerns, and because automakers were aware of the $14 penalty since at least July 2016 and could not have reasonably relied on the $5.50 rate, among other things. The letter notes that the Trump-era rule was successfully challenged in the Second Circuit in 2018 and 2020.

FTC Clarifies that Health Apps Have a Duty to Report Data Security Breaches

• The Federal Trade Commission (“FTC”) issued a policy statement clarifying that health apps that collect or use consumers’ health information are subject to the Health Breach Notification Rule’s notification requirements when the consumer data they collect is subject to unauthorized access.
• The FTC’s policy statement notes that the American Recovery and Reinvestment Act of 2009 directed the FTC to ensure that web-based companies contact customers in the event of a data security breach and that, pursuant to the Act, the FTC issued the Health Breach Notification Rule (“Rule”), which requires vendors of personal health records to notify consumers and the FTC when such a breach occurs. The Rule is intended to ensure that entities who are not covered by the Health Insurance Portability and Accountability Act (“HIPAA”) are still accountable for the safety of consumers’ health information.
• According to the FTC, health apps and wearable devices, which collect such sensitive and personal data as glucose levels, sleep cycles, heart health, and fertility, are increasingly targeted by scammers and hackers, but many apps do not have adequate privacy protections in place. Therefore, the FTC provided the policy statement to clarify the scope of the Rule, such that health apps and connected devices that can draw information from multiple sources (such as a wearable device and a user’s smartphone) must also comply with the Rule, and going forward it potentially subjects violators to monetary penalties of up to $43,792 per violation per day.

Two Democrats Officially Join 2022 Attorney General Races

• Former police officer and prosecutor Chris Mann is seeking the Democratic nomination in the 2022 race for Kansas AG. As previously reported, state Senator Kellie Warren, former Secretary of State Kris Kobach, and former federal prosecutor Tony Mattivi are vying for the Republican nomination. Incumbent Republican AG Derek Schmidt is not seeking reelection and is running for governor instead.
• Incumbent Iowa Democratic AG Tom Miller, the longest-serving state AG in U.S. history, is running for another term in 2022. To date, no other candidate has officially entered the race.
• To “meet” the state AGs across the nation and read more AG election news and insights, visit The State AG Report.