The State AG Report Weekly Update October 4, 2018

Cozen in the News

Cozen O’Connor’s State Attorneys General Practice Previews Attorney General Activity in U.S. Supreme Court October Term

  • State Attorneys General Practice Member Ann-Marie Luciano and Associate Keturah Taylor have analyzed AG activity in cases granted certiorari by the U.S. Supreme Court for the October 2018 term.
  • This term there are several cases with significant state AG amici involvement that implicate important state issues.
  • The analysis provides a preview of these major cases for which certiorari has been granted to date.

Antitrust

31 Attorneys General File Amicus Brief Urging U.S. Supreme Court to Allow Indirect Purchasers to Bring Antitrust Lawsuit Against Technology Company

  • A bipartisan coalition of 31 AGs filed an amicusbrief in the U.S. Supreme Court in the matter of Apple Inc. v. Pepper, No. 17-204, urging the Court to affirm the U.S. Court of Appeals for the Ninth Circuit’s decision that consumers who make indirect purchases from applications that were downloaded through the Apple App Store may sue Apple over alleged anticompetitive conduct.
  • In their brief, the AGs argue that the Court should affirm the Ninth Circuit’s decision overturning Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which bars indirect purchasers from seeking legal remedies for antitrust violations committed by a manufacturer or service provider. The AGs argue that the states’ experiences in allowing indirect purchasers to recover under state antitrust law disproves the economic justifications underlying Illinois Brick and demonstrates that the anticipated concerns in allowing indirect purchasers to pursue antitrust remedies were not manifested in the states.

Labor & Employment

13 Democratic Attorneys General File Amicus Brief Urging Third Circuit to Uphold Ordinance Aimed at Addressing Gender Pay Gap

  • 13 Democratic AGs filed an amicus brief in the U.S. Court of Appeals for the Third Circuit in the matter of Greater Philadelphia Chamber of Commerce v. City of Philadelphia, No. 18-2175, urging the Court to reverse the S. District Court for the Eastern District of Pennsylvania’s finding that an ordinance prohibiting employers from asking a prospective employee about salary history (the “inquiry provision”) violates the First Amendment. The District Court had found that the ordinance’s provision prohibiting reliance on salary history to set wages was constitutional.
  • In their brief, the AGs argue that both provisions are constitutional. The AGs assert, in part, that the inquiry provision is constitutional because the First Amendment allows prohibitions on discriminatory conduct and limiting an employer inquiry into salary history is narrowly tailored to and directly advances the government interest in mitigating the gender wage gap.

Securities

New York Attorney General and SEC Settle with Financial Services Company Over Alleged Fraudulent Misrepresentations to Retail Investors

  • New York AG Barbara Underwood and the U.S. Securities and Exchange Commission (“SEC”) reached concurrent settlements with Credit Suisse Securities (USA) LLC (“Credit Suisse”) to resolve allegations that Credit Suisse’s Retail Execution Services (“RES”) business made fraudulent misrepresentations to retail investors in violation of state and federal securities laws.
  • The New York AG’s office and the SEC alleged that Credit Suisse treated investor orders subject to public reporting less favorably than those not subject to public reporting, failed to disclose that policy to customers, and misrepresented the liquidity its customers had access to when sending orders to RES.
  • Under the terms of the settlement agreements, Credit Suisse will pay $5 million in penalties each to the State of New York and the SEC.

State AGs in the News

Mississippi Attorney General Announces Candidacy for Mississippi Governor

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