The State AG Report Weekly Update June 2019 #2

Cozen O'Connor

Cozen O'ConnorAntitrust

10 Attorneys General Sue to Enjoin Merger of Major Wireless Phone Companies

  • 10 AGs, led by New York AG Letitia James and California AG Xavier Becerra, filed a lawsuit to enjoin T-Mobile US, Inc. and its parent company (collectively, “T-Mobile”) from acquiring Sprint Corporation over allegations that the acquisition would substantially lessen competition in violation of the Clayton Act.
  • According to the complaint, T-Mobile and Sprint are two of the four largest wireless phone service providers in the country, and T-Mobile’s proposed acquisition would allegedly decrease competition, increase market concentration in certain markets exceeding the threshold allowed by antitrust laws, and increase prices.
  • The complaint seeks an injunction to block the merger, declaratory relief, and attorney’s fees and costs.

Consumer Financial Protection Bureau

CFPB Settles With Mortgage Lender Over Allegedly Inaccurate Mortgage Loan Data Reporting

  • The Consumer Financial Protection Bureau (“CFPB”) reached a settlement with mortgage lender Freedom Mortgage Corporation (“Freedom”) to resolve allegations that it inaccurately reported mortgage loan data in violation of the Home Mortgage Disclosure Act (“HMDA”).
  • According to the consent order, Freedom’s loan officers allegedly entered inaccurate data when loan applicants failed to state their race or gender by inputting default entries, such as “non-Hispanic white” and “workaround,” to avoid technical blocks intended to prevent loan applications from being completed with incomplete entries.
  • Under the terms of the consent order, Freedom must pay $1.75 million in civil penalties, develop and implement a program to test HMDA data integrity, and develop and implement HDMA-compliant policies and training for employees, among other things.

Consumer Protection

Vermont Attorney General Settles With Discount Retailer Over Allegedly Deceptive Pricing

  • Vermont AG T.J. Donovan reached a settlement with discount retailer DG Retail, LLC d/b/a Dollar General (“Dollar General”) to resolve allegations that it deceptively advertised prices of its products in violation of the state’s Weights and Measures law, which requires accurate pricing for sale of goods in a retail store, and Consumer Protection Act.
  • According to the assurance of discontinuance (“AOD”), Dollar General allegedly charged higher prices for consumer goods at the register than the price displayed on the shelf.
  • Under the terms of the AOD, Dollar General must pay $1.75 million in civil penalties, $100,000 of which will be paid on a cy pres basis to the Vermont Foodbank, as well as adopt pricing accuracy policies, train employees on these policies, monitor compliance with the terms of the order, and conduct internal audits for three years, among other things.

Washington Attorney General Obtains Judgment Against Cable Company Over Allegedly Deceptive Billing Practices

  • Washington AG Bob Ferguson obtained a judgment against Comcast Corporation and its subsidiaries (collectively, “Comcast”) in a bench trial over allegations that Comcast charged customers for unauthorized Service Protection Plans (“SPPs”) in violation of the state’s Consumer Protection Act.
  • According to the complaint, Comcast’s employees allegedly added SPPs to customers’ accounts, charged customers for SPPs without their consent, and misrepresented the cost of SPPs to customers, among other things.
  • Under the terms of the findings of fact and conclusions of law, Comcast must pay nearly $9.1 million in penalties and pay restitution to affected customers, including prejudgment interest on restitution.
  • As previously reported, AG Ferguson filed the lawsuit against Comcast in August 2016.

Data Privacy & Security

Bipartisan Coalition of 43 Attorneys General Submit Comments to FTC Regarding Consumer Privacy, Data Security, Antitrust Enforcement, and Technology Platform Businesses

  • The National Association of Attorneys General (“NAAG”) submitted comments, signed by a bipartisan coalition of 43 AGs led by Texas AG Ken Paxton and Iowa AG Tom Miller, to the Federal Trade Commission (“FTC”) in response to four of the FTC’s proposed topics for its June 12, 2019 Roundtable with State AGs.
  • In the comments, the AGs argue that the market for consumer data presents new issues, such as protecting privacy in technology platform markets, the scale of data collected by “big data” companies and how this creates barriers to entry, whether the non-price aspects of competition—such as quality and privacy degradation and harm to innovation—merit renewed antitrust attention, and how big data companies are exhibiting exclusionary conduct, such as acquiring competitors and leveraging their data advantages to target rivals, among other things.
  • The AGs urge the FTC to require prior approval or prior notice for future acquisitions in technology platform markets and to give greater consideration of non-price and network effects in assessing mergers in those markets.

3 Attorneys General Initiate Investigations of Medical Testing Collections Vendor Over Alleged Data Breach

  • Connecticut AG William Tong and Illinois AG Kwame Raoul opened a joint investigation of third-party collections vendor American Medical Collection Agency (“AMCA”), which provided collections services to medical testing companies Quest Diagnostics (“Quest”) and Laboratory Corporation of America (“LabCorp”), and Michigan AG Dana Nessel announced that she will initiate her own investigation into AMCA and AMCA contractor Optum360, over a data breach at AMCA that allegedly exposed 19.7 million patients’ personal, medical, and financial information.
  • According to the AGs’ offices, AMCA allegedly experienced a data breach that allowed an unauthorized user to have access to Quest and LabCorp patients’ financial, medical, and personal information.
  • According to AGs’ offices, the Illinois and Connecticut AGs have issued letters to AMCA, Quest, and LabCorp, and the Michigan AG plans to issue letters to AMCA and Optum360, seeking information regarding the facts and circumstances surrounding the breach, including measures the companies had in place to protect patient data privacy, the total number of patients affected, the categories of personal information compromised, information describing how the companies intend to inform and protect affected patients, and plans to prevent a future breach.

New York Attorney General Settles With Online Clothing Retailer Over Allegedly Delayed Data Breach Notification

  • New York AG Letitia James reached a settlement with online clothing retailer Bombas LLC to resolve allegations that it failed to timely notify customers about a data breach in violation of the state’s data breach notification law.
  • According to the AG’s office, Bombas allegedly failed to notify customers about a breach of its website, which allowed unauthorized users to access customer payment card information, until three years after it learned of the breach.
  • According to the AG’s office, under the terms of the settlement, Bombas must pay $65,000 in penalties, implement policies for investigating any future data breaches, and provide compliance training to employees.


FTC and FDA Issue Warning Letters to Four Flavored E-Liquid Manufacturers and Marketers

  • The Federal Trade Commission (“FTC”) and the U.S. Food and Drug Administration (“FDA”) issued warning letters to flavored e-liquid manufacturers and marketers Solace Technologies, LLC d/b/a Solace Vapor, Hype City Vapors, LLCHumble Juice Co. LLC, and Artist Liquids Laboratories LLC d/b/a Artist Liquid Labs over allegations that they failed to disclose material health or safety risks in advertising in violation of the Food, Drug, and Cosmetic Act (“FDCA”) and FTC Act.
  • In the letters, the FTC and FDA warn the companies that their flavored e-liquid products are misbranded because the social media postings by “influencer” personalities endorsing their products do not provide warnings that the products contain nicotine.
  • The letters instruct the companies to address the FTC’s concerns and FDA-related violations and to notify the agencies of specific actions taken within 15 days of receipt of the letter.

Medicaid Fraud

North Carolina Attorney General Settles With Dental Practice Over Allegedly Fraudulent Medicaid Claims

  • North Carolina AG Josh Stein reached a settlement with dental practice Complete Dental Care of Mebane and its owner (collectively, “Complete Dental Care”) over allegations that it submitted fraudulent claims to the state’s Medicaid program in violation of the state’s Medicaid laws.
  • According to the AG’s office, Complete Dental Care allegedly submitted claims to the state’s Medicaid program for procedures that were not performed, not medically necessary, or performed in violation of Medicaid’s policies, which caused it to improperly bill the state’s Medicaid program.
  • According to the AG’s office, under the terms of the settlement, Complete Dental Care must pay $728,450 in damages and penalties.


Idaho Attorney General Sues Opioid Manufacturer for Allegedly Misrepresenting Risks of Prescription Opioids

  • Idaho AG Lawrence Wasden filed a lawsuit against Purdue Pharma L.P. and Purdue Pharma Inc. and related individuals (collectively, “Purdue Pharma”) over allegations that they engaged in deceptive marketing and misrepresented the risks of prescription opioid use in violation of the state’s Consumer Protection Act and the common law.
  • According to the complaint, Purdue Pharma allegedly deceptively marketed prescription opioid products to doctors by understating risks of addiction and overstating the benefits of long-term use of prescription opioids to treat chronic pain.
  • The complaint seeks declaratory and injunctive relief, disgorgement, abatement, damages, restitution, civil penalties, attorney’s fees and costs, and pre- and post-judgment interest.


Massachusetts Attorney General Settles With Brokerage Service Provider for Allegedly Selling and Deceptively Marketing Non-FDIC Insured Securities

  • Massachusetts AG Maura Healey reached a settlement with brokerage service provider Santander Securities LLC to resolve allegations that it deceptively marketed and sold securities to seniors in violation of the state’s Consumer Protection law.
  • According to the AG’s office, Santander Securities allegedly sold non-Federal Deposit Insurance Corporation (“FDIC”) insured securities to seniors, and failed to minimize foreseeable consumer confusion caused by its sale of non-FDIC insured securities in Santander Bank locations, where FDIC-insured banking services and products were offered.
  • According to the AG’s office, under the terms of the assurance of discontinuance, Santander must pay $100,000, reimburse consumers, pay surrender charges of consumers who indicated confusion between Santander Securities and Santander Bank, and revise its practices relating to disclosures, among other things.

New Jersey Attorney General Sues Investment Firm for Allegedly Selling Unregistered Securities

  • New Jersey AG Gurbir Grewal filed a lawsuit against investment firm Northridge Holdings, Ltd., its president, and entities controlled by its president (collectively, “Northridge”) over allegations that they sold unregistered securities to investors in violation of the state’s Uniform Securities Law.
  • According to the complaint, Northridge allegedly sold and paid unregistered agents to sell unregistered securities to investors issued by entities controlled by its president, and failed to make meaningful disclosures of risk or information regarding the issuers’ financial solvency or corporate structure.
  • The complaint seeks declaratory and injunctive relief, civil penalties, and restitution and/or rescission.

State AGs in the News

New Hampshire Attorney General Delegates Duties to Deputy Attorney General Pending Nomination to New Hampshire Supreme Court

  • New Hampshire Governor John Sununu nominated New Hampshire AG Gordon MacDonald to serve as Chief Justice of the New Hampshire Supreme Court on June 5, 2019.
  • AG MacDonald designated Deputy Attorney General Jane Young as acting AG while AG MacDonald’s nomination for is pending before the state Executive Council.

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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