New York Federal Judge Declares Structure of Consumer Financial Protection Bureau Unconstitutional
- The U.S. District Court for the Southern District of New York held in Consumer Financial Protection Bureau v. RP Legal Funding, LLC that the structure of the Consumer Financial Protection Bureau (“CFPB”), as established by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), is unconstitutional.
- Senior Judge Loretta Preska’s opinion and order held in relevant part that Title X of Dodd-Frank, which authorizes the creation of the CFPB, is unconstitutional because it creates an independent agency that exercises substantial executive power and is headed by a single director. Judge Preska also held that because the unconstitutional portion of Title X is at the “heart” of the statute, Title X should be struck down in its entirety.
- This ruling contrasts with the January 2018 ruling by the U.S. Court of Appeals for the District of Columbia Circuit finding the CFPB structure constitutional. If Judge Preska’s decision is appealed and upheld by the U.S. Court of Appeals for the Second Circuit, it would lead to a circuit split and the possibility that the U.S. Supreme Court may be petitioned to resolve the constitutionality of the CFPB’s authorizing legislation.
2018 AG Elections
Democratic Incumbent Karl Racine Secures Party Nomination for District of Columbia Attorney General
- Democratic incumbent AG Karl Racine secured his party’s nomination for District of Columbia AG in 2018 and will run unopposed in the November 6, 2018 general election.
- Prior to his election in 2014, Racine was the managing partner of the Washington, D.C. office of an international law firm, and previously served in the Public Defender Service for the District of Columbia and as an Associate White House Counsel.
- AG Racine is the District of Columbia’s first elected AG. Prior to Racine’s election, the AG was appointed by the Mayor.
South Dakota Democratic Party Selects Randy Seiler as Candidate for Attorney General
- The South Dakota Democratic Party voted at its state convention to nominate Randy Seiler for AG in 2018.
- Seiler, the former U.S. Attorney for the District of South Dakota, previously served in the U.S. Air Force.
- As previously reported, incumbent AG Marty Jackley, a Republican, is term-limited.
- The South Dakota Republican Party will nominate its candidate for the open AG seat at its state convention on June 23, 2018.
Consumer Financial Protection Bureau
Kathy Kraninger Selected by President as Director of the Consumer Financial Protection Bureau
- President Donald Trump has announced he will nominate Kathy Kraninger, a program associate director at the federal Office of Management and Budget (“OMB”), as the next Director of the Consumer Financial Protection Bureau (“CFPB”).
- Kraninger previously worked for the Department of Homeland Security and the Senate Appropriations Committee before joining the OMB.
- If confirmed by the Senate, Kraninger will replace current Acting Director of the CFPB Mick Mulvaney.
- Separately, Acting Director Mulvaney has proposed referring to the agency as the “Bureau of Consumer Financial Protection,” or “BCFP,” in accordance with the text of the Dodd-Frank Act that establishes the agency, and agency press releases such as that announcing Kraninger’s appointment have begun using the new acronym, although the agency’s website and other materials continue to refer to the “CFPB.”
Connecticut and New York Attorneys General Secure Summary Judgment Against Environmental Protection Agency in Dispute Over Clean Air Act Implementation Plans
- Connecticut AG George Jepsen and New York AG Barbara Underwood secured summary judgment in a federal lawsuit against the U.S. Environmental Protection Agency (“EPA”) that sought to compel the EPA to develop federal implementation plans (“FIPs”) that the AGs argue are required under the “Good Neighbor” provision of the federal Clean Air Act (the “Act”) to control the interstate spread of ozone pollution.
- According to the AGs’ January 2018 complaint, the EPA has allegedly failed to promulgate FIPs that the AGs allege should have been issued in August 2017 to help prevent the spread of ozone pollution from certain upwind states into downwind states that bear the environmental consequences of the pollution.
- According to the order granting summary judgment, the EPA is declared in violation of the Act and is enjoined to promulgate FIPs consistent with the Act.
42 Attorneys General Reach Settlement with Global Financial Institution Over Alleged Interest Rate Manipulation
- 42 AGs, led by NY AG Underwood, reached a settlement with Citibank, N.A. (“Citibank”) over allegations Citibank allegedly violated state and federal antitrust laws, consumer protection laws, false claims statutes, securities laws, fraud statutes, and the common law by misrepresenting the integrity of the London Interbank Offered Rate (“LIBOR”), a benchmark interest rate used in international financial markets.
- According to the AGs, Citibank allegedly misrepresented the credibility of LIBOR to state and local governmental, not-for-profit, private, and institutional trading partners by concealing, misrepresenting, or failing to disclose its alleged efforts to manipulate the rate to improve its relative trading position, enhance its public image, and profit from financial contracts secured from governmental and not-for-profit entities.
- Under the terms of the settlement agreement, Citibank must pay $100 million to the AGs, $95 million of which will be used to make restitution to those affected by Citibank’s alleged conduct.
- As previously reported, other financial institutions reached similar settlements with similar multistate coalitions of AGs in 2016 and 2017 over allegations of LIBOR manipulation.
Labor & Employment
New York Attorney General Reaches Settlement with Global Shoe and Accessory Retailer Over Allegedly Discriminatory Hiring Practices
- New York AG Underwood reached a settlement with global shoe and accessory retailer Aldo Group, Inc. (“Aldo”) over allegations it violated the New York City Fair Chance Act (“FCA”), a local “Ban the Box” law that prohibits criminal record information from being solicited in initial screening applications.
- According to the AG’s office, the initial job applications distributed by Aldo among its New York City stores asked prospective employees to provide information about their criminal histories in violation of the FCA.
- According to the AG’s office, the settlement requires Aldo to pay $120,000 in penalties and costs and to come into compliance with the law.
Kentucky Attorney General Files Suit Against Nationwide Pharmacy Chain Over Alleged Distribution and Dispensing of Prescription Opioids
- Kentucky AG Andy Beshear filed suit against Walgreens Boots Alliance, Inc. and four related entities (collectively, “Walgreens”) over allegations they distributed and dispensed excessive amounts of prescription opioids.
- According to the complaint, Walgreens allegedly knew or should have known that it was receiving a suspiciously high number of opioid orders, but failed to properly monitor, halt, and report suspicious opioid orders and allowed excessive numbers of opioids to be dispensed from local Walgreens pharmacies.
- The complaint seeks, among other relief, a declaratory judgment, injunctive relief, compensatory and punitive damages, civil penalties, restitution, and attorneys’ fees and costs.
State AGs in the News
Maine Attorney General Wins Democratic Nomination for Governor Following Ranked-Choice Primary Election
- Maine AG Janet Mills won the Democratic nomination for Governor and will face the Republican gubernatorial candidate, businessman Shawn Moody, in the general election on November 6, 2018.
- As previously reported, Maine’s primary elections were the first “ranked-choice” elections in recent U.S. history. Under a ranked-choice system, voters rank the candidates in order of preference, and the votes for the candidate in last place are redistributed to those voters’ next choice candidate until a candidate reaches 50%.
- AG Mills’ successor will be elected by secret ballot at a joint session of the Maine State Legislature; Maine is the only state in the nation that selects its Attorney General in this manner.
Kim Berger Appointed as Chief of Bureau of Internet and Technology for the Office of the New York Attorney General
- New York AG Underwood has appointed Kim Berger as the new Chief of the Bureau of Internet and Technology (“BIT”), a part of the Economic Justice Division.
- Prior to her appointment, Berger worked in private practice as a partner at a law firm and previously held various public and private legal positions, including Assistant U.S. Attorney for the Northern District of California and Managing Counsel for Tesla, Inc.
- The BIT investigates and enforces internet- and technology-related matters and seeks to keep the New York public informed regarding emerging internet- and technology-related issues and threats.
Democrat Renato Mariotti Declares Bid for Illinois Attorney General
- Democrat Renato Mariotti, a cable news commentator and a former Assistant U.S. Attorney in the U.S. Attorney’s Office in Chicago, announced his candidacy for Illinois Attorney General in 2018.
- Mariotti joins state Representative Scott Drury, Sharon Fairley, Aaron Goldstein, state Senator Kwame Raoul, Highland Park Mayor Nancy Rotering, and Jesse Ruiz in seeking the Democratic nomination for AG. Erika Harold is the sole Republican to announce her candidacy to date.
- As previously reported, Democratic incumbent Illinois AG Lisa Madigan will not run for re-election in 2018.
Consumer Financial Protection Bureau
12 AGs File Amicus Brief Challenging the Constitutionality of the CFPB and Arbitration Rule
- 12 Republican AGs, led by Texas AG Ken Paxton, filed an amicus brief in the U.S. District Court for the Northern District of Texas challenging the constitutionality of the Consumer Financial Protection Bureau (“CFPB”) and its Final Rule on arbitration agreements (“Arbitration Rule”).
- The AGs’ brief argues that the CFPB’s structure violates constitutional separation of powers by concentrating “unchecked authority in a sole, unaccountable director of an administrative agency,” such that all rules promulgated by the agency, including the Arbitration Rule, are similarly unconstitutional.
- President Donald Trump on Wednesday signed a Congressional Review Act resolution repealing the Arbitration Rule, which prohibited certain financial service providers from blocking consumer participation in class action lawsuits through arbitration agreements and required providers to disclose arbitral records to the CFPB.
Illinois Attorney General Sues Payday Lender for Allegedly Unlawful Use of Non-Compete Agreements
- Illinois AG Madigan filed a lawsuit against payday lender Check Into Cash of Illinois, LLC (“Check Into Cash”) for allegedly violating the state’s Freedom to Work Act by imposing non-compete agreements on low-wage customer service employees.
- According to the complaint, Check Into Cash allegedly used non-compete agreements to restrict low-wage employees—those earning less than $13 per hour—from working for any other business in a broad range of consumer lending services for one year after leaving Check Into Cash.
- The lawsuit seeks, among other things, a judgment declaring the non-compete agreements unenforceable and void, enjoining Check Into Cash from using such agreements in the future, and requiring the company to notify impacted employees.
45 AGs Settle with Global Financial Institution Over Alleged Interest Rate Manipulation
- 45 AGs, led by New York AG Eric Schneiderman and California AG Xavier Becerra, reached a settlement with German banking and financial services company Deutsche Bank AG (“Deutsche Bank”) for allegedly violating state and federal statutes governing antitrust, unfair and deceptive acts and practices, false claims, securities, and fraud, as well as common law principles, by manipulating the London Interbank Offered Rate (“LIBOR”), a benchmark interest rate used in international financial markets.
- According to the AGs, Deutsche Bank allegedly defrauded consumers by making false or misleading LIBOR submissions, attempting to influence other banks’ LIBOR submissions to benefit its own trading positions, and intentionally concealing its fraudulent actions from consumers.
- Under the terms of the settlement, Deutsche Bank must pay $220 million to the AGs, $213 million of which will be distributed to entities that suffered losses from the bank’s alleged manipulation.
Virginia Attorney General Reaches Settlement with Internet Lender Over Alleged Consumer Protection Violations
- Virginia AG Mark Herring settled with Internet lender Mr. Amazing Loans for allegedly violating the Virginia Consumer Protection Act (“VCPA”) by engaging in misleading advertising and charging an annual percentage rate (“APR”) that exceeded state limits.
- According to the AG’s office, Mr. Amazing Loans allegedly advertised that it was licensed by the state’s Bureau of Financial Institutions (“BFI”) to offer installment loans over the Internet at 29.9% APR, yet was neither licensed by BFI nor granted an exception to the state’s general APR limit of 12%.
- Under the terms of the settlement, Mr. Amazing Loans must stop misrepresenting its BFI licensing status and its ability to collect interest in excess of state usury limits. Additionally, Mr. Amazing Loans must refund $31,000 to consumers who paid off more than their principal plus 12% APR, refund $235,000 in interest forgiveness to consumers with open accounts, and pay $50,000 in civil penalties and court costs.
New Mexico Attorney General Settles with Healthcare Network Over Alleged Failure to Pay Medicaid Premium Taxes
- New Mexico AG Hector Balderas reached a settlement with Presbyterian Health Plan, Inc., Presbyterian Network, Inc., and Presbyterian Insurance Company, Inc. (collectively “Presbyterian”) for allegedly violating the state’s Fraud Against Taxpayers Act by failing to pay owed Medicaid premium taxes.
- According to the AG’s office, Presbyterian allegedly failed to pay $14.6 million in Medicaid premium taxes in 2003 and 2004.
- Under the terms of the settlement, Presbyterian will pay $18.5 million, 20 percent of which will go to the plaintiffs who originally brought a qui tam action related to the conduct.
Alaska and New Jersey Attorneys General File Lawsuits Against Opioid Manufacturers, Distributors
- New Jersey AG Christopher Porrino and Alaska AG Jahna Lindemuth filed separate lawsuits against prescription opioid manufacturer Purdue Pharma L.P., Purdue Pharma Inc., and the Purdue Frederick Company (collectively “Purdue Pharma”) for allegedly violating the states’ consumer protection laws and false claims acts, as well as creating a public nuisance by engaging in false, deceptive, and unfair marketing of prescription opioids.
- According to the New Jersey and Alaska lawsuits, Purdue Pharma allegedly sought to increase profits by misrepresenting the addictive risks of opioids to doctors and the public through selectively disclosing research to exaggerate the benefits of its opioid products and conceal the risks of addiction.
- The lawsuit seeks to enjoin Purdue Pharma from engaging in unfair or deceptive marketing practices, disgorge any profits the corporations made through such practices, impose maximum statutory civil penalties, and recover restitution on behalf of affected consumers, attorneys’ fees, and investigation costs.
- As previously reported, Washington AG Bob Ferguson filed a similar lawsuit against Purdue Pharma in September.
State AGs in the News
Nevada Attorney General Announces Bid for Governor in 2018
- Nevada AG Adam Laxalt has announced his intent to seek the Republican Party’s nomination for the Governor of Nevada in 2018.
- AG Laxalt, first elected AG in 2014, previously served as a Lieutenant and Judge Advocate General in the U.S. Navy.
- AG Laxalt joins state Treasurer Dan Schwartz in competing for the Republican nomination for Governor. Vying for the Democratic nomination are Clark County Commissioners Chris Giunchigliani and Stephen Sisolak. Republican incumbent Governor Brian Sandoval cannot run for re-election due to term limits.