Thurbert Baker

PRESIDENTIAL PREVIEW: The Battle for 1600 Pennsylvania Ave

With a weekend to go before election day, the Dentons Public Policy team looks at the political climate, the polling, the battlegrounds and how and when the nation could learn the winner in our presidential preview, “The Battle for 1600 Pennsylvania Ave Report.” We believe the outcome of the presidential election will depend, to a significant degree, on whether voters view the race as a choice between two alternatives, each with positive and negative factors, or as a referendum on the President’s leadership. Pre-pandemic, President Trump was prepared to run hard on his record. But the pandemic robbed him of his strongest argument for re-election—a booming economy—leaving him no choice but to focus on Joe Biden’s flaws. 

Whether the American people are buying this line of attack remains to be seen, but recent polls suggest it is not working.

On Wednesday morning, November 4, our Public Policy team will be issuing a detailed report on the election results that are then available. We will be updating this report later in the day, and on succeeding days as necessary, to provide not only the presidential results but a comprehensive picture of what the next US House and Senate will look like. 

Whatever the outcome of the elections, once it becomes clear who will be taking the oath of office on January 20, 2021, and who will control the Congress, we also will be releasing additional reports that profile many of the people who are expected to play key roles in the next administration and that explore the central elements of, and prospects for, the legislative agenda of the winning presidential candidate.   

US HOUSE AND SENATE ELECTIONS PREVIEW – The Battle For Control Of Congress

Dentons’ Public Policy team has developed a US House and Senate Elections Preview to provide the latest developments as we approach the November elections.

A VIEW FROM THE STATES: Dentons 50 State Network review of the political landscape

Dentons’ Public Policy group has provided a synopsis of the political landscape for each state prepared by members of our Dentons 50 network — experts from all 50 state capitols with a pulse on federal, state and local races in their respective states. We also highlight the states with governors races, attorneys general races and the 22 state chambers considered “battle grounds” with their current majorities.

Labor Day 2020 Election Primer: A Look Ahead to November

As the saying goes, “Eight weeks before an election is a lifetime in politics.” If you have any doubts about the truth of this adage, we suggest speaking with “Presidents” Michael Dukakis or Hillary Clinton! Simply put, there are few, if any, slam dunks in politics. Elections continue to have the capacity to surprise and confound. When the Democratic primary process began with over 25 candidates, who would ever have thought that we would end up with an election between two of the oldest candidates ever to run for the office?

Current polling indicates that, if the election were held today, Vice President Biden is near or above the 270 electoral votes he needs to win election. These same polls say the Senate would flip, ever so narrowly, to Democratic control and the House Democratic majority would be relatively unchanged.

However Labor Day is certainly not Election Day (see Dukakis and Hillary mentions above). And now is, historically, when the race officially begins.

This Election Primer, the first in Dentons’ Election Series, sets the stage for the race to November. From the “top of the ticket” to the down-ballot congressional and state house contests across the country, we track the races that could change majorities in November. More detailed reports will be released as we get closer to election day. We hope this 10,000-foot view helps get you up to speed.

Download the Labor Day 2020 Election Primer

State Attorneys General and Unfair or Deceptive Acts or Practices (UDAP): What to expect in the wake of COVID-19

Almost every state has its own deceptive and unfair trade practices law (UDAP), enforced by that state’s attorney general (AG). No fraud need be involved. The enforcement is civil, not criminal, but the statutory civil fines can be steep. The Federal Trade Commission (FTC) has ceded much of the enforcement to the states. In the wake of COVD-19, in addition to price-gouging, there will likely be many new enforcement actions against corporations who are alleged to have participated in unfair, deceptive or misleading acts that draw the attention of AGs. 

In some instances, these enforcement actions will involve multistate investigations in which sizeable numbers of attorneys general join together to investigate and possibly litigate. Some examples of areas that may face scrutiny include the following:

Health Care: Off-Label Drug Use

Off-label prescriptions, or the use of pharmaceutical drugs for an unapproved indication or in an unapproved dosage, dosage form or age group, is generally legal and frequently used by healthcare providers.

While in general there is nothing illegal in the off-label use of prescription drugs by doctors, marketing of pharmaceuticals or use of a drug for purposes outside of regulatory approvals is prohibited in most cases, and pharmaceutical companies have frequently been the subject of state AG investigations for doing so. As the race to find treatments for COVID-19 continues to accelerate, it is likely that representatives of some pharmaceutical companies will face scrutiny for promoting off-label use with hospitals and doctors.

Hotels and Leisure

Norwegian Cruise Lines is already being investigated under UDAP based on alleged communications from company employees to customers who prepaid for cruises, to the effect that the Norwegian Cruise Line ships had been sanitized, and so there was nothing to fear from COVID-19 in taking the planned cruise. The company allegedly had ample notice that its “sanitation” was insufficient to prevent the spread of the virus.

Advertising

Companies that host advertisements designed to sell products on their internet sites and take a fractional share of the sales revenue or profits garnered from the ads can be held responsible for misleading statements in the ads or misleading information about the charges to customers. This is true even in instances in which the seller/advertiser is located overseas and out of reach of a US enforcement action. Increased online sales suggest that these kinds of investigations are likely to increase. For example, with a huge surplus of used cars now on the market for the foreseeable future, AG investigations of false, misleading or deceptive advertising in online advertisements for used cars likely will increase, as well as investigations of misleading auto financing proposals – areas of traditional active UDAP enforcement.

Dentons’ State Attorney General practice is a full-service, nationwide practice to advise and assist clients when dealing with state AGs and their staff. If you have questions or an interest in more information on any of the items above and would like to discuss, please contact State AG practice co-chairs Thurbert Baker and Bill McCollum.

Related Information

Please also view Dentons’ recently published alert: “U.S. Food and Drug Administration, Federal Trade Commission Step-Up Enforcement of Product Misbranding and Efficacy Claims Related to COVID-19” for more insight on FDA and FTC actions related to COVID-19.

State AGs Tackle COVID-19 Related Issues: Some Companies Likely to Face Investigation

With the escalation of the COVID-19 pandemic and the steps taken by the federal and state governments to stem its community spread, state attorneys general (AGs) are confronting new issues that have emerged as a result of the public health emergency.

Deceptive Advertising: AGs are using state Unfair and Deceptive Acts and Practices (UDAP) statutes to investigate advertising by companies, or hosted on company websites, that may be false, deceptive or misleading to consumers about products (i.e. masks, hand sanitizer, etc.), treatments or risks associated with COVID-19. One AG recently filed a lawsuit against a televangelist for misrepresenting a product sold through his show as a cure for the novel coronavirus. Another opened an investigation of allegations a cruise line instructed staff to use scripts which may have misled customers as to COVID-19 risks. Investigations may be confined to a single state AG office or they could become part of a much wider multi-state AG investigation.

Outreach to the Lending Industry: AGs are beginning to advocate for financial relief for their consumers who are unable to pay bills due to the COVID-19 crisis. The Arizona Attorney General recently sent letters to more than 1,000 financial institutions that do business in his state, urging them to halt foreclosures, evictions, and repossessions for at least 90 days for customers who can demonstrate economic hardship due to this unforeseen crisis. The Colorado AG recently urged student loan servicers, creditors, and debt collectors to refrain from mandatory debt collection efforts from those who are unable to pay because of their financial circumstances. The AG indicated that his office would explore relevant legal avenues to protect borrowers going forward.

Price Gouging: AGs across the country have stepped up public awareness campaigns and civil enforcement efforts to crack down on reported instances of price gouging by unscrupulous sellers of items that consumers and health care workers need to protect themselves from the spread of COVID-19. Many AGs have established special hotlines to receive complaints of suspected price gouging and the AGs are issuing cease and desist letters to those sellers suspected of taking advantage of the public health crisis. 

The Dentons State Attorney General practice is a full-service, nationwide practice to advise and assist clients when dealing with state AGs and their staff. The practice features bipartisan leadership from four former state AGs along with former deputy AGs, assistant AGs, chiefs of staff from some of the most active offices in the nation and top notch litigators experienced in defending lawsuits brought by state AGs. Receipt of an AG letter of inquiry or civil investigative demand (a subpoena AGs may issue without going to court) does not mean a lawsuit is coming, but it does mean an investigation has been opened and should not be taken lightly. If you receive an AG inquiry or investigative demand, or think the nature of your business might make it at risk of AG scrutiny, or have an interest in more information on any of the COVID-19 matters above and would like to discuss with the Dentons State AG team, contact Bill McCollumThurbert Baker or Dan Gibb.  

US Policy Scan 2020

Policy Scan 2020 booklet

The Dentons US Public Policy Team is pleased to release its annual Policy Scan, our comprehensive overview of the policy and political landscape in 2020. We look to highlight movements across the spectrum of policy areas in the coming year. With our team’s unmatched reach, we not only look at issues in our nation’s capital but in every state capital in the union as well. We review the US Supreme Court docket and briefly profile the major cases of the term, both those still to be argued and those already argued with decisions pending. We look at trends across the globe and their impact on US policy. Finally, we delve into Election 2020 at the presidential, congressional, gubernatorial and state AG levels.

US Policy Scan 2020 takes deep dives into the turbulent political and policy waters swirling around health care, including drug pricing; energy and climate change; financial services regulation; tax cuts; foreign relations; trade; immigration; telecommunications, transportation and infrastructure; defense and homeland security; privacy; and other hotly-debated areas of government regulation and policy.

Other features include:

  • Year In Review
  • 2020 Congressional Calendars
  • Policy Review
  • A view from the water’s edge
  • Campaign 2020

And as in years past, we also include a review of state legislative activity in 2019, and an overview of pending legislation and the policy drivers that will shape state legislative and executive branch activity in 2020.

We hope that Policy Scan gives you the foundation to tackle obstacles and succeed in what is sure to be a chaotic and unprecedented year ahead.