The State AG Report Weekly Update June 2018 #2

by Cozen O'Connor
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2018 AG Elections

Nevada, North Dakota, and South Carolina Hold Primary Elections; South Carolina to Hold Runoff Election for Republican Attorney General Primary Race

  • Nevada, North Dakota, and South Carolina held primary elections on June 12, 2018 and will hold general elections on November 6, 2018.
  • In Nevada, Democrat state Senate Majority Leader Aaron Ford and Republican Wes Duncan, who previously served as First Assistant AG and as a member of the Nevada Assembly, secured their respective parties’ nominations.
  • In North Dakota, Democrat David Thompson, an attorney in private practice, and Republican incumbent AG Wayne Stenehjem, both unopposed, secured their respective parties’ nominations.
  • In South Carolina, Democrat Constance Anastopoulo, a law professor, secured her party’s nomination unopposed. Incumbent AG Alan Wilson and State Representative Todd Atwater—the top two vote-getters in the Republican primary—will face each other in a runoff election on June 26, 2018, as neither candidate received a majority (50%) of the vote required to secure the nomination.

Charities

New York Attorney General Sues to Dissolve Donald J. Trump Foundation for Allegedly Illegal Conduct

  • New York AG Barbara Underwood filed a lawsuit against the Donald J. Trump Foundation and its directors, Donald J. Trump, Donald J. Trump Jr., Ivanka Trump, and Eric Trump (collectively, “Trump Foundation”) over alleged violations of the state’s Not-for Profit Corporation Law, Estates Powers and Trusts Law, Executive Law, and other state laws governing charities.
  • The petition filed by the AG’s office alleges that the Trump Foundation engaged in “improper and extensive political activity” and improperly entered into self-dealing transactions, and that its directors breached their fiduciary duties, among other things.
  • The lawsuit seeks, inter alia, to dissolve the Trump Foundation, enjoin President Trump from serving in any leadership position in a charitable organization in the state for a period of ten years, and recover restitution and penalties.
  • The AG’s office also sent referral letters to the Internal Revenue Service and the Federal Election Commission regarding potential violations of federal law.

Consumer Protection

Oklahoma Attorney General Settles Consumer Protection Claims Against Vehicle Manufacturers

  • Oklahoma AG Mike Hunter reached a settlement with Volkswagen AG, Volkswagen Group of America, Inc., Audi AG, Audi of America, LLC, Dr. Ing. H.c. F. Porsche AG, Porsche Card of North America, Inc., and Martin Winterkorn (collectively, “the VW Group”) over allegations that they violated state consumer protection laws by allegedly using software that manipulated data produced during emissions standards testing.
  • According to the AG’s office, the VW Group allegedly sold certain diesel vehicles equipped with “defeat device” software intended to circumvent applicable emissions standards for certain air pollutants, actively concealed the existence of the defeat device from regulators and the public, and misrepresented their vehicles as environmentally friendly and compliant with federal and state emissions standards.
  • Under the terms of the consent judgment, the VW Group will pay the state $8.5 million.
  • As previously reported, the VW Group has resolved similar allegations with individual states, as well as with multi-state coalitions.

Health Care

New Jersey Attorney General Reaches Settlement with Ambulatory Care Facilities Over Alleged Underpayments to State Subsidy Fund

  • New Jersey AG Gurbir Grewal settled with ambulatory care facilities AP Surgery Center, LLC and AP Diagnostics, Inc. and their owner Harshad Patel (collectively, “AP Surgery & Diagnostics”) over allegations they unlawfully defrauded the state’s Charity Care Fund by misrepresenting the amount they owed to the fund as part of a required yearly assessment.
  • According to the AG’s office, AP Surgery & Diagnostics under-reported annual gross receipts, which are used to determine the amount of funds ambulatory care facilities must contribute to the Charity Care Fund, which funds medical care for uninsured persons who cannot afford to pay. According to the AG’s office, AP Surgery & Diagnostics’ under-reporting led to the evasion of more than $1 million in required contributions to the fund.
  • According to the AG’s office, the terms of the settlement require AP Surgery & Diagnostics to pay $502,600 to the New Jersey Department of Health, and $215,400 to the relators who raised concerns regarding the alleged false claims conduct.

Labor & Employment

Massachusetts Attorney General Takes Action Against Multiple Companies Under “Ban the Box” Law

  • Massachusetts AG Maura Healey announced that an investigation into employer compliance with the state “ban the box” law resulted in settlement agreements with four national employers—Edible Arrangements, LLC, Five Guys Enterprises LLC, L’Occitane en Provence, and The Walking Company, Inc.—and warnings issued to seventeen additional employers for allegedly requesting information regarding job applicants’ criminal history in violation of state law.
  • According to the AG’s office, the employers allegedly asked about criminal record information on initial job applications in violation of the Massachusetts “ban the box” law.  The law, which was enacted in 2010, was recently amended to ban inquiries into lesser offenses and is designed to address high unemployment and barriers to reintegration for individuals with criminal records.
  • According to the AG’s office, the settlements reached with Edible Arrangements, LLC, Five Guys Enterprises LLC, and L’Occitane en Provence require the companies to each pay $5,000 in fines and come into compliance with the law.  The settlement with The Walking Company, Inc.—which has filed for bankruptcy—requires the company to come into compliance with the law.

State AGs in the News

Nevada Attorney General Secures Party Nomination; Maine Attorney General Leading in Respective Gubernatorial Primaries

  • Nevada AG Adam Laxalt secured the Republican nomination for Governor in the June 12 primary election. AG Laxalt will face off against Democratic nominee Clark County Commission Chairman Steve Sisolak in the general election on November 6, 2018.
  • Maine conducted the nation’s first ranked-choice election in recent history, in which voters rank the candidates in order of preference, and the votes for the candidate in last place are redistributed to those voters’ next choice candidate until a candidate reached 50%. Governor LePage has stated that he probably will not certify the results of the primary under the new ranked-choice system, but the results will take effect regardless of the Governor’s certification.
  • Maine AG Janet Mills is currently leading in the race to be the Democratic nominee for Governor, but is closely followed by Adam Cote, a U.S. Army veteran and attorney in private practice. The winner will face Republican businessman Shawn Moody in the general election on November 6, 2018.

State v. Federal

16 Democratic Attorneys General Pen Letter Opposing Delay of Rule Requiring State Authorization of Online Higher Education Programs

  • 16 Democratic AGs, led by New York AG Barbara Underwood, sent a letter to U.S. Education Secretary Betsy DeVos opposing the U.S. Department of Education’s recent decision to delay the effective date of the “Program Integrity and Improvement Rule” (“Program Integrity Rule”) for two years.
  • The Program Integrity Rule, published in December 2016 with an effective date of July 1, 2018, would require postsecondary distance education providers to obtain authorization from states in which the institution operates prior to enrolling student in those states, and disclose certain information to prospective students, among other things.
  • According to the letter, delay of the Program Integrity Rule deprives students of critical consumer protections, as the Rule would increase the transparency and accountability of distance education programs.

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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