State Attorneys General Newsletter – October 2021

Orrick, Herrington & Sutcliffe LLP

  1. New York Attorney General Enters into Settlement Prohibiting “No-Poach” Pacts in Title Insurance Industry
  2. Attorneys General Antitrust Lawsuit Against American Airlines and JetBlue
  3. Vermont Attorney General Latest State AG to File Climate Change Lawsuit
  4. New York Attorney General Enters Settlement with Opioid Manufacturer for $50 Million
  5. Washington Attorney General Enters Settlement with Debt Collector for Alleged Deceptive Letters
  6. Massachusetts Attorney General Reaches Settlement with National Debt Collector
  7. State Attorneys General Submit Comments Urging EPA to Adopt More Stringent GHG Standards for Light-Duty Vehicles
  8. Virginia Attorney General Race Enters Final Stretch with Polls Showing a Close Race
  9. State Attorney General Spotlight – Arizona Attorney General Mark Brnovich
  10. Washington, D.C. Attorney General Racine to Not Seek Office in 2022
  11. Pennsylvania Attorney General Josh Shapiro to Run for Governor

1. New York Attorney General Enters into Settlement Prohibiting “No-Poach” Pacts in Title Insurance Industry 

New York Attorney General Letitia James recently entered into a settlement agreement with a national insurance company to end so-called “no poach” agreements. According to the settlement agreement, a “no-poach” involves an agreement among two or more companies not to solicit, recruit, or hire each other’s employees. The Attorney General argued that no-poach agreements reduce competition for employees and disrupts normal compensation-setting mechanisms.

This is not the first time the New York Attorney General has gone after companies over alleged unlawful no-poach agreements. In March 2019, Attorney General James, along with other state AGs, entered into an agreement with four national fast-food franchisors for similar alleged violations.

Under the most recent agreement with the title insurance company, the company will pay $1 million in penalties and has agreed to end no-poach agreements going forward.

2. Attorneys General Antitrust Lawsuit Against American Airlines and JetBlue 

Six AGs, from Arizona, Florida, Massachusetts, Pennsylvania, Virginia, and the District of Columbia, along with the U.S. Department of Justice, have filed a lawsuit against American Airlines and JetBlue over alleged anticompetitive behavior. The complaint alleges the agreements between the companies would consolidate operations in key markets and, as a result, hurt competition and consumers at various airports along the East Coast. 

The complaint alleges the agreements will create a monopoly for flights between Boston and Washington, D.C.’s Reagan National Airport that will give consumers fewer choices. The states further allege the agreements allow the airlines to coordinate flights in and out of four Northeast airports, resulting in less competition on affected routes and fewer options for consumers.

3. Vermont Attorney General is the Latest State AG to File Climate Change Lawsuit  

Vermont Attorney General T.J. Donovan filed a lawsuit against a number of oil companies for allegedly violating the state’s consumer protection statute. According to the complaint, “through deceptive acts and practices, including multiple misrepresentations and knowing failures to disclose material facts, Defendants have sought to mislead Vermont consumers about the risks and dangers of their products, including the causal connection between the sale and use of their products and climate change, and thereby deny Vermont consumers their opportunity to make informed and different decisions regarding fossil fuel purchases and consumption.”

Unlike other climate change lawsuits filed by state attorneys general and local municipalities, the Vermont complaint does not include claims for public nuisance or trespass but instead focuses solely on the state’s consumer protection statute. The complaint also seeks a permanent injunction requiring the oil companies to take “appropriate steps” to rectify their “prior and ongoing deceptive acts and practices.” The complaint also seeks a judgment requiring the companies to “disgorge all funds acquired or retained” as a result of any acts determined to be unlawful. The complaint further seeks statutory civil penalties and costs.

4. New York Attorney General Enters Settlement with Opioid Manufacturer for $50 Million 

New York Attorney General Letitia James entered into a $50 million settlement with a large opioid manufacturer. The Attorney General alleged the company “falsely marketed” prescription opioids, failed to monitor and report suspicious opioid prescriptions, and failed to implement measures to prevent dispersion of prescription opioids. This is the latest settlement in the ongoing series of opioid cases brought by Attorney General James and other state attorneys general.

5. Washington Attorney General Enters Settlement with Debt Collector for Alleged Deceptive Letters 

Washington Attorney General Bob Ferguson announced recently that his office entered into a settlement with a Washington-based debt collector company over allegedly sending deceptive collection letters. According to the complaint, the company violated Washington’s consumer protection statute by pushing consumers into settlements to resolve old debts that were past the statute of limitations. Specifically, the complaint alleged that the company violated the Consumer Protection Act by sending over 75,000 “settlement offer” letters to Washington consumers. As part of the settlement, the company will provide $355,000 in restitution to recipients of the letters. The company will also pay the Washington Attorney General’s Office $1.3 million for costs and attorneys’ fees in investigating the matter, along with future monitoring and enforcement of the settlement.

6. Massachusetts Attorney General Reaches Settlement with National Debt Collector 

Massachusetts Attorney General Maura Healey entered into a settlement with a national debt collector for allegedly using unfair and deceptive practices under Massachusetts’s Consumer Protection Act and Attorney General’s Debt Collection Regulations. The Attorney General alleged the company violated the law by making high volume calls to consumers, regularly attempting to collect on time-barred debts, and using false and misleading affidavits.

Under the settlement, the company will pay $2.25 million and agreed to make a number of changes in its business practices, such as preventing excessive calls, call attempts, or voicemails to consumers. The company is to also stop collecting on time-barred debt without providing appropriate disclosures to consumers, and not use false and misleading affidavits.

7. State Attorneys General Submit Comments Urging EPA to Adopt More Stringent GHG Standards for Light-Duty Vehicles 

Twenty-two state attorneys general submitted public comments to the U.S. Environmental Protection Agency voicing support for a proposed rule adopting more stringent greenhouse gas emissions (GHGs) standards for passenger cars and light trucks. The proposed rule sets forth three alternative sets of standards, ranging from the most stringent to least stringent set of GHG emissions standards. In their letter, the Democratic state AGs urge the EPA to adopt the most stringent emissions standards.

State AGs, along with a number of cities, have filed climate change lawsuits against energy companies over the past few years. The letter is an indication that climate change continues to be a significant issue for a number of state AGs.

8. Virginia Attorney General Election Campaign Enters Final Stretch with Polls Showing a Close Race 

The only state attorney general race in 2021 is entering the final stretch with the latest polls showing a tight race. Incumbent Virginia Attorney General Mark Herring (D) is facing challenger Jason Miyares (R), who currently is a representative in the Virginia House of Delegates.

A recent poll has Herring leading Miyares – 45.6% vs. 43.7%  – with 10% of the electorate undecided. The election is Tuesday, November 2.

9. State Attorney General Spotlight – Arizona Attorney General Mark Brnovich 

Each month the Orrick State AG Newsletter highlights one state attorney general. This month we put the spotlight on Arizona Attorney General Mark Brnovich. Attorney General Brnovich was elected in 2014, reelected in 2018, and is now serving his second and last term as attorney general. (Arizona limits state AGs to two terms.) Earlier this year, he announced his candidacy for the United States Senate in 2022.  

Attorney General Brnovich began his legal career as a prosecutor at the local, state, and federal levels, including serving as Assistant United States Attorney. He left that position to serve as the Director of the Arizona Department of Gaming before running and being elected as Arizona Attorney General in 2014. To learn more about Attorney General Brnovich, click here.

10. Washington, D.C. Attorney General Racine to Not Seek Office in 2022 

Washington D.C. Attorney General Karl Racine has announced he is not seeking reelection and will not run for any office in 2022. In 2014, Attorney General Racine became the first elected attorney general for the District of Columbia. As attorney general, he has been very active, bringing numerous lawsuits against companies and suing former President Donald Trump on multiple occasions. He was reelected in 2018 and was rumored to be a candidate for positions with the Biden administration, including as a commissioner for the Federal Trade Commission. Attorney General Racine is the current President of the National Association of Attorneys General.

11. Pennsylvania Attorney General Josh Shapiro to Run for Governor  

With a little over a year to the 2022 election, Pennsylvania Attorney General Josh Shapiro has announced that he is running for governor. Attorney General Shapiro was first elected in 2016 and reelected in 2020. Shapiro previously served on the Board of Commissioners in Montgomery County and as state representative in the Pennsylvania House of Representatives.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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