The State AG Report Weekly Update October 2018 #3

Cozen O'Connor

2018 State AG Elections

Cozen O’Connor’s State AG Election Tracker Updates 2018 Election Prediction for Nevada Attorney General Race

  • With 19 days to go before election day, Cozen O’Connor’s State AG Election Tracker has updated its 2018 AG race prediction in Nevada’s open race from Toss-up to Lean Republican.
  • For further daily coverage of AG election news, insights, and polls, visit Cozen O’Connor’s State AG Election Tracker.


Bipartisan Coalition of 5 Attorneys General and the U.S. Department of Justice Impose Conditions on Proposed Merger between Pharmacy Chain and Health Insurer

  • A bipartisan coalition of 5 AGs and the U.S. Department of Justice reached a settlement that imposes conditions on the proposed merger between pharmacy chain CVS Health Corporation (“CVS”) and health insurer Aetna Inc. (“Aetna”) in order to satisfy alleged concerns that the merger would reduce competition in the market for individual prescription drug plans.
  • According to the complaint, the proposed merger between CVS and Aetna—two of the leading sellers of individual prescription drug plans nationwide—would reduce or eliminate competition in the sale of prescription drug plans, increase costs, reduce quality of service, and result in less innovation across as many as 22 states.
  • Under the terms of the proposed settlement, Aetna is required, among other things, to divest its Medicare individual Part D prescription drug plan business to health insurer WellCare Health Plans, Inc..

Bureau of Consumer Financial Protection

Coalition of 12 Democratic Attorneys General Sends Letter to BCFP Urging Withdrawal of Its “Disclosure Sandbox” Proposal for FinTech Companies

  • A coalition of 12 Democratic AGs led by Illinois AG Lisa Madigan submitted a comment to the Bureau of Consumer Financial Protection (“BCFP”) urging the Bureau to withdraw or substantially modify its proposed “Disclosure Sandbox,” a program intended to encourage financial services companies to test new disclosure systems by exempting them from compliance with certain federal disclosure laws.
  • In the comment, the AGs warn that the proposed Disclosure Sandbox would decrease transparency, potentially enable financial services companies to evade compliance with important consumer protections, and enable the BCFP to issue open-ended disclosure waivers with minimal consumer safeguards.
  • As previously reported, the BCFP’s Office of Innovation, led by former Arizona AG’s Civil Litigation Division Chief Counsel Paul Watkins, announced its proposed Disclosure Sandbox policy last month.

Consumer Protection

Washington Attorney General Files Lawsuit Against Fast Food Franchisor Over Alleged “No Poach” Provisions in Franchise Agreements

  • Washington AG Bob Ferguson filed a lawsuit against fast food franchisor Jersey Mike’s Franchise Systems, Inc. and several affiliated entities (collectively, “Jersey Mike’s”) over their alleged use of “no-poach” provisions—franchise agreement terms that prevent franchisees within the same chain from hiring away each other’s employees—in violation of the antitrust provisions of the state’s Consumer Protection Act (“CPA”).
  • According to the complaint, Jersey Mike’s allegedly previously agreed to remove no-poach provisions from its standard franchise agreements and not to include such provisions in future franchise agreements, but refused to remove no-poach clauses from existing franchise agreements nationwide, creating a risk that Jersey Mike’s may continue to enforce these provisions.
  • The complaint seeks a judicial declaration that Jersey Mike’s violated the CPA, injunctive relief, civil penalties, costs, and attorney’s fees, among other things.
  • As previously reported, AG Ferguson reached a related settlement with Jersey Mike’s and several other fast food franchisors in July

Data Privacy

New Jersey Attorney General Reaches Settlement with Health Insurer to Resolve Alleged Health Privacy Violations

  • New Jersey AG Gurbir Grewal reached a settlement with Aetna Inc. (“Aetna”) to resolve allegations that it violated the New Jersey Consumer Fraud Act and the federal Health Insurance Portability and Accountability Act (“HIPAA”) by allegedly improperly disclosing personal health information (“PHI”).
  • According to the AG’s office, Aetna allegedly inadvertently disclosed the HIV status and the atrial fibrillation conditions of New Jersey residents by including that information on the envelopes of two mailings sent to consumers in July and September 2017, thus exposing this PHI to public view.
  • Under the terms of the assurance of voluntary compliance, Aetna will pay a $365,000 civil penalty, implement training reforms, ensure confidentiality of mailings containing PHI consistent with HIPAA standards, and hire an independent auditor to evaluate and monitor Aetna’s future compliance.
  • As previously reported, Aetna entered into an assurance of discontinuance in January 2018 with former New York AG Eric Schneiderman arising from similar allegations.

E – Cigarettes

North Carolina Attorney General Initiates Investigation of E-Cigarette Manufacturer

  • North Carolina AG Josh Stein initiated an investigation of e-cigarette manufacturer JUUL Labs, Inc. (“JUUL”) over concerns about its alleged marketing of e-cigarettes and related products to under-aged individuals.
  • According to the civil investigative demand (“CID”), AG Stein requested information related to JUUL’s advertising, sales and age verification practices, safety disclosures, and social media presence.
  • As previously reported, Massachusetts AG Maura Healey recently opened an investigation of JUUL and two internet e-cigarette retailers regarding their age verification practices in internet e-cigarette sales.


Oregon Attorney General Reaches Settlement with Solar Developer and Accounting Firm to Resolve Allegations of False Claims for Solar Tax Credits

  • Oregon AG Ellen Rosenblum reached a settlement with solar developer Tesla Energy Solutions (formerly known as “SolarCity”) and its accounting firm, Novogradac & Company LLP (“Novogradac”), to resolve allegations that they violated a state energy tax credit program by falsely submitting and certifying applications for commercial solar tax credits to the Oregon Department of Energy (“ODOE”).
  • According to the AG’s office, SolarCity allegedly inflated its commercial solar project building costs in order to justify claiming over $10 million in unjustified tax credits for commercial solar projects that Novogradac allegedly certified to the ODOE.
  • According to the AG’s announcement, SolarCity and Novogradac paid $13 million to the state to settle AG Rosenblum’s claims.

For-Profit Colleges

8 Democratic Attorneys General File Amicus Brief Urging Ninth Circuit to Uphold Preliminary Injunction Against Department of Education’s Partial Relief Policy for Student Borrowers

  • 8 Democratic AGs led by California AG Xavier Becerra filed an amicus brief in U.S. Court of Appeals for the Ninth Circuit in the matter of Calvillo Manriquez v. DeVos, No. 18-16375, urging the court to affirm a lower court’s order granting a preliminary injunction barring the Department of Education (“DOE”) from implementing a new borrower-defense rule applicable to claims by former students against for-profit college Corinthian Colleges, Inc. (“Corinthian”).
  • In their brief, the AGs argue that federal law incorporates a state law standard in its borrower-defense rule and the DOE’s attempt to grant only partial relief to defrauded student borrowers is inconsistent with California law. The AGs also argue that the DOE’s partial relief process will irreparably harm borrowers whom the DOE had already determined were eligible for complete cancellation of their federal student loans.
  • As previously reported, a coalition of 19 Democratic AGs led by Massachusetts AG Healey recently secured summary judgment against the DOE from the U.S. District Court for the District of Columbia over the DOE’s allegedly delayed implementation of a Borrower Defense Rule enacted under the Obama administration.


Minnesota Attorney General Files Lawsuit Against Insulin Manufacturers Over Allegedly Artificially-Inflated Prices

  • Minnesota AG Lori Swanson filed a lawsuit against insulin manufacturers Sanofi-Aventis U.S. LLC, Novo Nordisk, Inc., and Eli Lilly and Co. (collectively, “pharmaceutical companies”) for allegedly violating the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), state laws against consumer fraud, deceptive trade practices, and false advertising, and the common law by allegedly conspiring to inflate the prices of their insulin products.
  • According to the complaint, the pharmaceutical companies allegedly artificially inflated the list prices for their insulin products, but negotiated lower net prices with pharmacy benefit managers (“PBMs”) in order to obtain favorable placement on PBMs’ health-plan-approved drug lists, resulting in the doubling and tripling of insulin prices since 2011 and 2002, respectively, and causing the drugs to be much more expensive for consumers in high-deductible health plans, the uninsured, and Medicare beneficiaries.
  • The complaint seeks injunctive relief, damages, restitution, disgorgement, civil penalties, attorneys’ fees, and costs, among other things.


Illinois Attorney General Reaches Settlement with Alternative Retail Electricity Supplier to Resolve Allegations of Deceptive Marketing Practices

  • Illinois AG Lisa Madigan announced a settlement with alternative retail electricity supplier Sperian Energy Corp. (“Sperian”) to resolve allegations that it used aggressive and deceptive tactics to enroll consumers into expensive electricity contracts.
  • According to the AG’s office, Sperian’s sales agents allegedly failed to disclose required information to consumers, including the price and duration of contracts and the fact that enrolled consumers would be charged a monthly fee, and allegedly gave consumers the false impression that they would receive cost savings by switching to Sperian from its competitor, the Commonwealth Edison Company.
  • According to the AG’s office, Sperian will provide refunds to consumers totaling $2.65 million, will give consumers the option to cancel their contracts at no charge, will be banned from marketing to Illinois consumers for two years, and will not be allowed to charge existing or new customers monthly service fees for five years.
  • As previously reported, AG Madigan originally filed suit against Sperian over these allegations in August 2018.

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.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.