The State AG Report Weekly Update June 27, 2019

2020 AG Elections

Republican John Westercamp Announces Candidacy for Indiana Attorney General

  • John Westercamp, a Republican, announced his candidacy for Indiana AG in 2020.
  • Westercamp is an attorney in private practice in Indianapolis.
  • Current AG Curtis Hill, a Republican who is serving his first term, has not announced whether he is seeking reelection.

Antitrust

Colorado Attorney General, FTC Settle With Health Care Companies Over Proposed Acquisition

  • Colorado AG Phil Weiser reached a settlement with UnitedHealth Group Incorporated (“United”) and DaVita Inc. to resolve allegations that the proposed acquisition of DaVita affiliate DaVita Medical Holdings LLC (“DaVita MH”) by United subsidiary Optum would lessen competition in the market for certain insurance plans in violation of state law governing mergers and acquisitions.
  • Separately, the Federal Trade Commission (“FTC”) reached a settlement with United, DaVita, DaVita MH, and Collaborative Care Holdings, LLC—a subsidiary of United—over allegations that Optum’s acquisition of DaVita MH would lessen competition in certain Nevada insurance markets, in violation of the Clayton Act and the FTC Act.
  • According to the AG’s office and the FTC’s complaint, Optum’s acquisition of DaVita MH would allegedly allow it to increase costs for or withhold selling DaVita MH’s managed care provider organization services to United’s competitors in the Medicare Advantage insurance market, increase prices and decrease benefits of plans, and impose barriers to entry into the market.
  • According to the AG’s office, under the terms of the consent judgment, United and DaVita must not exercise certain contractual provisions with certain third-party health care providers, among other things. Under the terms of the FTC’s decision and order, the respondents must divest one of DaVita MH’s health care provider organizations to an unaffiliated nonprofit health services organization, among other things.

4 More Attorneys General Join Lawsuit to Enjoin Merger of Major Wireless Phone Companies

  • Hawaii AG Clare Connors, Massachusetts AG Maura Healey, Minnesota AG Keith Ellison, and Nevada AG Aaron Ford joined 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 amended 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.
  • As previously reported, 10 AGs filed the original action to enjoin T-Mobile’s acquisition of Sprint earlier this month.

 Consumer Financial Protection Bureau

CFPB and Federal Reserve Board Issue Final Rule Setting Inflation Adjustment Amounts For Depository Institutions

  • The Consumer Financial Protection Bureau (“CFPB”) and the Federal Reserve Board published a Final Rule that amends Regulation CC—which implements the Expedited Funds Availability Act (“EFA”) and the Check Clearing for the 21st Century Act—to set a required inflation adjustment amount and incorporate amendments to the EFA that extend the Act’s coverage.
  • The Final Rule sets inflation adjustment amounts that depository institutions must make available to their customers for purposes such as next business day withdrawal of certain check deposits and determining whether an account has been repeatedly withdrawn, and extends coverage of the EFA to American Samoa, the Commonwealth of the Northern Mariana Islands, and Guam, among other things.
  • The Final Rule will go into effect 60 days after it is published in the Federal Register, except for the portion of the rule on inflation adjustment, which will go into effect July 1, 2020.

Consumer Protection

Tennessee Amends State Consumer Protection Act, Places Enforcement Solely With Attorney General

  • Tennessee enacted a bill that amends the state’s consumer protection laws to consolidate enforcement within the AG’s office.
  • The bill, HB 948, abolishes the Division of Consumer Affairs within the state Department of Commerce and Insurance and transfers the division’s consumer protection responsibilities to the Consumer Protection Division within the AG’s office.
  • The law will go into effect on September 30, 2019.

FTC and 15 Attorneys General Announce Coordinated Crackdown on Illegal Robocalls

  • 15 AGs and the Federal Trade Commission (“FTC”) initiated a coordinated nationwide campaign of enforcement actions against illegal robocall operations that allegedly made false or deceptive claims in their calls in violation of the FTC Act, Telemarketing Sales Rule, Restore Online Shoppers’ Confidence Act (“ROSCA”), Electronic Fund Transfer Act, and state consumer protection laws.
  • The enforcement campaign, dubbed “Operation Call it Quits,” reportedly includes four new cases and three recent settlements from the FTC, and 87 civil and criminal enforcement actions taken by 25 federal, state, and local agencies.
  • In conjunction with the enforcement actions, Operation Call it Quits includes a consumer education initiative to teach consumers about illegal robocalls.

FTC Issues Final Rule Regarding Free Credit Monitoring for Active Duty Military Consumers

  • The Federal Trade Commission (“FTC”) has authorized the publication of the Free Electronic Credit Monitoring for Active Duty Military Rule (“Final Rule”) to implement the 2018 Economic Growth, Regulatory Relief, and Consumer Protection Act, which requires nationwide consumer reporting agencies (“CRAs”) to provide free electronic credit monitoring services for active duty military consumers.
  • The Final Rule defines “active duty military consumer,” specifies how and the timeframe within which CRAs must verify that an individual is an active duty military consumer, defines “material” addition or modification to a consumer’s file requiring notification, restricts secondary uses and disclosure of active duty military consumers’ personal information and communications related to their enrollment in electronic credit monitoring services, prohibits marketing during the credit monitoring services enrollment process, and prohibits CRAs from requiring active duty military consumers to agree to terms or conditions unless they are legally required to.
  • The Final Rule will go into effect three months after publication in the Federal Register.

Health Care

Pennsylvania Attorney General Agrees to Dismiss Litigation Against Non-Profit Health Care System

  • Pennsylvania AG Josh Shapiro agreed to dismiss litigation against the University of Pittsburgh Medical Center (“UPMC”) seeking an unlimited extension of a consent decree guaranteeing in-network access to customers of insurance provider Highmark, Inc.  The court in the case previously issued a ruling that limited the scope of relief that the AG could obtain.
  • The AG’s agreement to dismiss the litigation followed a UPMC and Highmark agreement to enter into a 10-year contract that will provide Highmark members in-network access to certain UPMC physicians and facilities in Pennsylvania.
  • The contract will go into effect on July 1, 2019, the day after the expiration of the consent decrees previously agreed to in 2014 among UPMC, Highmark, the AG, and state agencies regarding in-network access.

Labor & Employment

19 Democratic Attorneys General Oppose U.S. Department of Labor’s Proposed Rule to Amend Joint Employer Standard

  • 19 Democratic AGs, led by Massachusetts AG Maura Healey, New York AG Letitia James, and Pennsylvania AG Josh Shapiro, submitted a comment in opposition to the U.S. Department of Labor’s (“DOL”) proposed rule to amend the “joint employer standard,” which is used to determine when two or more employers are jointly responsible for the terms and conditions of employment for a group of employees under the Fair Labor Standards Act.
  • According to the AG’s comment, the DOL’s proposed rule, used for wage and hour enforcement, does not reflect the nature of modern workplace organizational and staffing models, would make enforcement more difficult where it allegedly allows employers to avoid liability by not exercising control they have the ability to exert, and raises substantive and procedural concerns under the Administrative Procedure Act.
  • The AGs urge the DOL to withdraw the proposed rule.
  • As previously reported, 11 Democratic AGs had submitted comments in opposition to the National Labor Relations Board’s proposed rule to similarly amend its joint employer standard under the National Labor Relations Act.
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