Newly elected state AGs outline enforcement priorities

Eighteen new state attorneys general will take office in 2019. There will be new AGs in Alaska, Colorado, Connecticut, Delaware, Florida, Hawai`i, Illinois, Maine, Michigan, Minnesota, Missouri, Nevada, New York, Ohio, Rhode Island, South Dakota, Wisconsin and Wyoming. Politically speaking, the impact of the 2018 midterm elections on the AG landscape was decidedly mixed, with Democrats flipping four AG seats previously held by Republicans, and the GOP maintaining their strongholds in Florida and Ohio. Overall, the midterms shifted the balance of state AG seats nationwide to a Democratic majority. Democrats now occupy 27 AG seats (including in Washington, DC) and Republicans, 24.

Companies should be aware that the newly elected AGs are expected to be as aggressive, or more so, than their predecessors. In Connecticut, for example, AG William Tong is succeeding AG George Jepsen, who led some of the largest bipartisan multistate investigations, including into opioid manufacturing and distribution, alleged price fixing in the generic drug market, and data privacy issues. Tong has signaled his intention to continue with these efforts, recently declaring: “I’ve always been activist in the legislature and I’m going to be activist as an attorney general because that’s what you need right now.”[

Other new AGs have started identifying their enforcement priorities. Some newly elected Democratic AGs have announced plans to investigate President Trump’s various business organizations. Others are targeting the administration’s policies. Illinois AG Kwame Raoul is challenging a recent ruling by a federal judge in Texas striking down the Affordable Care Act[, while Nevada AG Aaron Ford has indicated that he will reverse the course set by his predecessor, Republican Adam Laxalt, a staunch opponent of the ACA.

In Colorado, AG Phil Weiser, a Democrat, has outlined his intention to join a lawsuit against opioid manufacturers for allegedly misleading users as to the drugs’ addictive qualities, defend against federal overreach Colorado’s right to decide how it legislates and manages marijuana use, and protect consumers against financial scams. Minnesota AG Keith Ellison, a former Democratic congressman from the state’s 5th District, has pledged to address drug-pricing issues and allegations of anti-competitive activity in the nation’s agricultural sector. “We want to stand with Minnesotans against the big entities in this world as you are trying to make a go in this economy,” he recently told his constituents. “The middle class, I believe, is hanging on barely, and I think the attorney general ought to stand up against the fraudsters, against the monopolies, against these folks who would make your life so much more difficult to afford.”

New elected Republican AGs, for their part, are expected to continue their party’s stalwart defense of the Trump administration through the filing of amicus briefs in high-profile lawsuits challenging his executive orders and final agency actions. But they will also ramp up state enforcement actions in certain areas. For example, Ohio Republican AG Ted Yost is expected to continue his scrutiny of pharmacy benefit managers (PBMs), an industry that he focused on during his time as Ohio State Auditor.

State attorneys general will continue to combine their resources in an ever-growing number of multistate and multi-defendant investigations and civil and criminal enforcement actions, raising the stakes for both individual companies and entire industries. In addition to the issues the AGs campaigned on in the midterm elections, there’s no telling what new issues they will involve themselves in, given the unpredictability of the Trump administration. More relevant to assessing and addressing a business’s regulatory risks is understanding the scope of a particular AG’s authority, its level of activity and the political dynamics framing its choices.

Wisconsin drug take back initiative nets 63,000 pounds of unused meds

The following comes by way of Dentons50 partner firm Capitol Consultants

Attorney General Brad Schimel announced Wisconsin had become the national leader in drug take backs, netting some 63,541 lbs. of unused medications as a result of its Drug Take Back events on Saturday, April 28, 2018, at nearly 390 permanent drug collection receptacles located throughout the state.

Schimel also announced Wisconsin’s Sexual Assault Kit Initiative (WiSAKI), a statewide effort to address the decades-long accumulation of previously un-submitted sexual assault kits (SAKs) that were in the possession of local law enforcement agencies and hospitals, has completed inventorying all of these kits, collected those designated for testing, and submitted them to contracted laboratories for testing. Testing will be complete by the end of 2018.

CT AG leads states in support of feds’ CFPB

The following policy dive is courtesy of Dentons50 partner Jim O’Brien

Connecticut Attorney General George Jepsen this week marshaled a group of 16 other attorneys general in support of the Consumer Financial Protection Bureau (CFPB), filing a motion to intervene in a federal appeals case considering the agency’s constitutionality.

The case–PHH Corporation, et al. v. Consumer Financial Protection Bureau–is currently before the United States Court of Appeals for the District of Columbia Circuit. In an October 2016 ruling, a divided court found the structure of the CFPB unconstitutional. The CFPB filed a petition for rehearing of the decision, and that petition is currently pending before the court. To this point, the Obama administration had vigorously defended the CFPB in the appeal.

In today’s motion to intervene in the litigation, the attorneys general argue that they have a vital interest in defending an independent and effective CFPB. They have used their authority to bring civil actions in coordination with the CFPB to protect consumers against unfair, deceptive and abusive financial practices. They argue that the court’s ruling, if permitted to stand, would undermine the power of state attorneys general to effectively protect consumers against abuse in the consumer finance industry, and significantly lessen the ability of the CFPB to withstand political pressure and act effectively and independently of the President.

Trump names picks for AG, CIA, National Security Advisor

President-elect Donald Trump tapped a trio of loyalists for senior roles Friday, offering an early blueprint of the incoming Republican administration’s policy priorities.

In a statement to the press, the president-elect said today he had named Jeff Sessions, the U.S. senator from Alabama who previously served as the state’s attorney general, as U.S. Attorney General and offered the role of director of the Central Intelligence Agency to Kansas Republican Congressman Mike Pompeo. Both nominations require confirmation by the U.S. Senate.

Separately, Trump named retired Lt. General Michael Flynn to serve as National Security Advisory, which does not require Senate consent.

The nominations mark the first public sign of progress for Mr. Trump’s transition, which had been plagued in recent days amid staff upheaval, removing New Jersey Governor Christ Christie and several of his top lieutenants from leadership positions.

Both Flynn and Sessions were early, vocal supporters of Mr. Trump’s campaign for president, often offering guidance throughout the long slog to the White House.

North Carolina barreling into recounts

The following election speed read comes by way of Dentons 50 partner Lisa D. Martin.

North Carolina found itself bracing for possibly three distinct vote recounts as the sun rose Wednesday across the election-weary state.

In the race for the governor’s mansion, Democrat Roy Cooper leads incumbent Pat McCrory by 5,001 votes or 0.11% in the most recent count, falling within the legal margin for a recount.

Other Council of State races that could result in a recount include the attorney general's contest in which Democrat Josh Stein leads Republican Buck Newton by 20,793 votes or .46% and the state auditor's race in which incumbent Democrat Beth Wood leads Republican challenger Chuck Stuber by 3,101 votes or .06%.

The how-to of North Carolina's recount law: A losing candidate may request a recount in Statewide races if their losing margin is within .5% or 10,000 votes (whichever is less) after the final vote is certified in the canvas. Canvas in North Carolina will occur on November 18th.  Candidates have until noon on the following second business day — which is November 22nd — to request a recount.

From DC to Denver

In addition to providing updates on policy, lobbying and regulatory issues in Colorado’s legislative and executive branches, Dentons’ Colorado Government Affairs team looks at political and policy developments in Washington, DC, that are pertinent to the state. Below we discuss the difficulties that California Senator Dianne Feinstein has faced mustering support on the Hill for her water policy bill, sweeping legislation that addresses recycling, storage, desalination and grants. On the home front, we look at the Colorado legislature’s difficulty crafting budgets 25 years after the state’s voters approved TABOR, arguably the most restrictive tax and spending limitation in the country.

News and legislative highlights this week


Federal news

Feinstein grappling with difficulty of water legislation

In an attempt to maximize water supply for the drought-plagued Western states, Senator Dianne Feinstein (D-CA) introduced a sweeping water policy bill that addresses recycling, storage, desalination and grants. But Feinstein admitted to the Sacramento Bee reported that she’s been having a tough time achieving buy-in from her Senate colleagues for the $1.3 billion initiative. In fact, the effort has been more challenging than her repeated attempts to renew the Federal Assault Weapons Ban that expired in 2004. The water bill, she told the publication’s editorial board, has already undergone 26 drafts, with 43 amendments in the last version alone.

Read more in the Sacramento Bee

The EPA is adjusting its priorities in the wake of criticism to their response to the Gold King Mine spill

The EPA’s top lawyer said that in the wake of the Flint, MI, lead drinking water and Gold King mine spill crises, the agency is adjusting its priorities to put greater focus on public health issues.

Read more at Law360 (subscription required)


Colorado news

Colorado legislature is budget, budget, budget, this week

The Colorado legislature debates the state budget this week and next with this year’s budget starting in the House. The $27 billion dollar budget, crafted by the Joint Budget Committee, is always a shell game of balance with the committee eliminating $59 million in taxpayer refunds under TABOR.

Read more in the Durango Herald

Colorado rain-barrel bill back on track, advances to Senate

HB 1005 by Senator Michael Merrifield advanced allowing rain barrels to capture water under the supervision of the state engineer. Three Republicans voted against the bill in the Senate committee, but the bill will advance to the full Senate floor. The bill enjoyed broad bipartisan support in the House.

Read more in the Denver Post

Colorado AG Coffman is weighing litigation in Gold King Mine spill

Addressing leaking mines throughout the state has become a priority, while Attorney General Cynthia Coffman is still looking into litigation regarding the Gold King Mine spill from August 2015.

Read more in the Denver Post