The State AG Report Weekly Update May 2, 2019

Antitrust

FTC Sues Health Information Company Over Allegedly Monopolizing Electronic Prescription Markets

  • The Federal Trade Commission (“FTC”) filed a lawsuit against health information company Surescripts, LLC, over allegations that it monopolized electronic prescription markets in violation of the FTC Act.
  • According to the complaint, Surescripts allegedly maintained monopolies over two markets for electronic prescription services—a “routing” service that allows health care providers to transmit prescriptions to pharmacies and an “eligibility” service that allows providers to determine patients’ eligibility for prescription coverage—by requiring long-term exclusivity from its customers for each service and threatening its customers for each service to ensure that its competitors could not enter the markets.
  • The complaint seeks declaratory relief that Surescript’s conduct violates the FTC Act and injunctive relief.

Consumer Protection

Michigan Attorney General Settles With Fitness Club Companies Over Allegedly Deceptive Membership Offers and Debt Collection Practices

  • Michigan AG Dana Nessel reached a settlement with fitness club companies Family Fitness 40890 Inc., Family Fitness 49345 Inc., Family Fitness 49424, Inc., Family Fitness 49445 Inc., Family Fitness 49509 Corp., Family Fitness 49534 Inc., Family Fitness at the Rec Inc., Family Fitness Byron Center Inc., Family Fitness Gull Road Inc., Family Fitness of Norton Shores Inc., and their management entity, Apex Management SGR, LLC, (collectively, “Family Fitness”) to resolve allegations that they made deceptive gym membership offers and used deceptive collection practices in violation of the state’s Consumer Protection Act and law governing contracts.
  • As previously reported, the complaint alleged that Family Fitness told consumers that they had won “free” gym memberships, but failed to disclose that those memberships included monthly costs and required a certain number of visits before cancellation, and coerced consumers with membership debts to sign new membership agreements to alleviate debt collections, among other things.
  • Under the terms of the consent judgment, Family Fitness must pay $190,000 in consumer restitution and $30,000 in attorney’s fees, and revise its business practices to comply with state law.

New Jersey Attorney General Settles With Medical Waste Disposal Company Over Allegedly Deceptive Sales and Pricing Practices

  • New Jersey AG Gurbir Grewal reached a settlement with medical waste disposal company Stericycle, Inc., to resolve allegations that it used deceptive sales and pricing practices in violation of the state’s Consumer Fraud Act, Solid Waste Utility Control Act, and advertising regulations.
  • According to the consent order, Stericycle allegedly misrepresented to dentists that they were required to purchase specific disposal programs pursuant to federal regulation when no such regulation actually exists, failed to ensure that customer contracts were signed by authorized individuals or to cancel contracts signed by unauthorized individuals, failed to respond to customer complaints, failed to timely notify customers of price increases, and included automatic renewal clauses in its agreements, among other things.
  • Under the terms of the consent order, Stericycle must pay $655,000 in penalties, $205,160 in restitution, $5,980 in attorney’s fees, and $1,820 in costs, and revise its business practices to comply with state law.

E-Cigarettes

7 Democratic Attorneys General Submit Comments to FDA Regarding Draft Guidance Proposing to Prioritize Flavored E-Cigarette Enforcement

  • 7 Democratic AGs, led by New York AG Letitia James, submitted comments in response to the U.S. Food and Drug Administration (“FDA”) March 2019 draft guidance modifying the agency’s compliance policies for certain tobacco products, including e-cigarettes.
  • In the draft guidance, as previously reported, the FDA announced its intent to prioritize enforcement of flavored e-cigarette products by, among other things, prioritizing enforcement against products that are targeted towards or promote use by minors, whose manufacturers have not submitted premarket applications to the FDA, and that do not have required FDA marketing authorization.
  • In the comment, the AGs urge the FDA to amend the guidance to also prioritize enforcement over menthol and mint-flavored products, require premarket applications for flavored e-cigarettes by August 2020 rather than 2021, and prioritize enforcement of all online sales rather than only certain sales. The AGs assert that such changes are necessary to decrease the hazards of exposure to tobacco products and promote the public health.

Environment

Iowa Attorney General Settles With Equipment Manufacturer for Allegedly Exceeding Emissions Limits

  • Iowa AG Tom Miller reached a settlement with equipment manufacturer Deere & Company (“Deere”) to resolve allegations that it exceeded emissions limits in violation of Iowa Environmental Protection Commission regulations.
  • According to the petition in equity, Deere allegedly exceeded emission limitations for air pollutants—carbon monoxide, nitrogen oxides, and particulate matter—at its Product Engineering Center (“PEC”), constructed ventilation stacks without obtaining air quality permits, and failed to, among other things, remedy excess emissions and disclose emission limit non-compliance and deviations in compliance certifications.
  • According to the consent decree, Deere must pay $1 million in civil penalties and conduct annual environmental audits of its PEC, among other things.

Financial Industry

New York Attorney General Obtains Court Order Against Virtual Asset Trading Platform Operator and Issuer of Virtual Currency for Allegedly Defrauding Investors

  • New York AG Letitia James obtained a court order against iFinex Inc. and its subsidiaries operating the Bitfinex virtual asset trading platform (collectively, “Bitfinex”) and virtual currency issuers Tether Holdings Limited, Tether Operations Limited, Tether Limited, and Tether International Limited (collectively, “Tether”) over allegations that they defrauded investors in violation of the Martin Act—the state’s securities anti-fraud statute.
  • According to the AG’s office, Bitfinex allegedly failed to disclose the loss of $850 million of client and corporate funds to investors and failed to disclose Bitfinex’s use of Tether’s reserve funds to fill the gap created by the loss.
  • Under the terms of the court order, Bitfinex is enjoined from making claims on reserve funds held by Tether, and Bitfinex and Tether must produce documents in response to the AG’s subpoenas.

For-Profit Colleges

20 Democratic Attorneys General Pen Letter to U.S. House Committees Regarding Protections for Student Veterans

  • 20 Democratic AGs, led by Maryland AG Brian Frosh, sent a letter to the Chairman of the U.S. House of Representatives Committee on Education & Labor for consideration during a joint field hearing with the Committee on Veterans Affairs (collectively, “Committees”) expressing concern over protections for student veterans.
  • In the letter, the AGs warn that student veterans are disproportionately harmed by for-profit colleges because of loopholes in federal law that entice for-profit colleges to market heavily to veterans, and that the potential for harm is exacerbated when for-profit colleges convert to non-profit entities but retain for-profit business models.
  • The AGs urge the Committees to ensure protection for student veterans are considered in negotiations related to the reauthorization of the Higher Education Act.

Health Care

Massachusetts Attorney General Settles With Home Health Care Companies Over Alleged Medicaid Fraud

  • Massachusetts AG Maura Healey reached a settlement with home health care companies Amigos Homecare, LLC (“Amigos”) and Avenue Homecare Services, Inc. (“Avenue”) to resolve allegations that their billing practices violated the state’s Medicaid regulations.
  • According to the AG’s office, Amigos and Avenue allegedly submitted claims for services that had not been appropriately authorized by a physician or that were not actually performed for reimbursement from MassHealth—the state’s Medicaid system.
  • According to the AG’s office, under the terms of the settlement agreement, Amigos will pay $2,130,000 and Avenue will pay $8,305,300 to MassHealth, and Amigos and Avenue must implement multi-year compliance programs in order to provide services to MassHealth members in the future.

Washington Attorney General Settles With Hospital Over Alleged Failure to Provide Charity Care

  • Washington AG Bob Ferguson reached a settlement with Franciscan Health System d/b/a CHI-Franciscan Health d/b/a St. Joseph Medical Center (“FHS”) over allegations that it failed to provide charity care to low-income patients in violation of the state’s Consumer Protection Act.
  • According to the complaint filed against St. Joseph Medical Center, FHS allegedly demanded payments from patients before providing information about or screening for charity care eligibility, and required patients to provide more forms of income-related documentation to prove eligibility than allowed by state law.
  • Under the terms of the consent decree, FHS must pay $2.22 million in restitution to patients who received care at eight FHS hospitals in the state, pay $2.46 million in costs and attorney’s fees, forgive approximately $20 million in patient debt, rehabilitate the credit of patients who qualified for charity care but did not receive it, revise its charity care practices to comply with state law, and conduct community outreach.
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