Massachusetts Supreme Judicial Court: Attorney General’s Exxon Investigation Can Proceed

On April 13, 2018, Massachusetts’ highest court ended a significant chapter in Exxon’s long-running dispute with Attorney General Maura Healey. In 2015, Healey issued a Civil Investigative Demand regarding Exxon’s knowledge of the effects of fossil fuels on climate change.  Exxon then undertook what a federal judge in New York last month called “a sprawling litigation involving four different judges, at least three lawsuits, innumerable motions and a huge waste of the [New York and Massachusetts] AGs’ time and money.”  (You can read a full analysis of that decision by my colleague Seth Jaffe here.)  Exxon’s actions in Massachusetts’ courts have been mercifully compact,… More

Supreme Court Cy Pres Update

Possibly foreshadowing the Supreme Court’s decision on a petition for certiorari we recently chronicled here, last Monday the Court declined to review two separate appeals (Tingle v. Perdue and Mandan v. Perdue) of a substantial cy pres settlement award.  The award is part of a 1999 settlement resolving a class action filed in the District of D.C.… More

ExxonMobil’s AG Claims Are Dismissed — What a Shock!

Yesterday, Judge Valerie Caproni dismissed claims brought by ExxonMobil against New York Attorney General Schneiderman and Massachusetts Attorney General Healey.  Boiled down to their essence, ExxonMobil’s claims were that investigations by Schneiderman and Healey into the possibility that ExxonMobil had committed fraud by misleading investors regarding the risks that climate change poses to ExxonMobil’s business were politically motivated and in bad faith.

The decision was not difficult. … More

Cy Pres: Benevolent Solution or Lever for Collusion?

When does a charitable contribution pique the interest of state consumer protection watchdogs?  When the contribution comes at the expense of a compensatory payment to consumers.  That is precisely the scenario prompting attorneys general from sixteen states to join in an amicus brief supporting a petition for certiorari to the Supreme Court.  At issue is whether the Supreme Court should accept a case that would enable it to provide guidance on when,… More

The Adver-series: State Attorneys General Play Increasing Role in Advertising Regulation

Every day, consumers are bombarded with advertising messages: print ads on the subway, promoted posts on social media, thirty-second spots on the radio, native ad thumbnails on the internet, email blasts from retailers, product labels touting savings and benefits, billboards along the highway, commercial breaks before the “big reveal” on reality TV, robocalls, and the Saturday morning infomercial, to name just a few.

And, for those fortunate or unfortunate enough to have an office right in the middle of Times Square,… More

States Continue to Upgrade Data Privacy Laws – A Look at North Carolina

A recent Security Breach Report published by the North Carolina Attorney General’s Office provides a snapshot of the various data security threats currently riling the state’s public and private sectors.  Since 2006, the year North Carolina businesses and government entities became statutorily obligated to report breaches to the Attorney General’s Office, reported data breaches have skyrocketed from 86 to over one thousand.  In turn, the number of affected consumers has increased ten-fold from 500,000 to well over 5 million during that same period. … More

Democratic State AGs Want Greater Power to Supervise Banking, Doubt Federal Efforts

In the last week of December 2017, Democratic senators introduced the “Accountability for Wall Street Executives Act of 2017,” which would amend the National Banking Act to allow state AGs to request a wide variety of information from nationally-chartered banks.  As the Supreme Court explained in Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519 (2009), the National Banking Act distinguishes between “visitorial powers” – such as examination of a bank’s accounts or inspection of its records – and law enforcement,… More

Cybersecurity 2018 – The Year In Preview: State Enforcement Trends

As state Attorneys General continue to flex their muscles in response to serious data security lapses nationwide, patchwork enforcement continues.  Strategies employed by state Attorneys General in response to nationwide data breaches are as diverse as the profusion of data security threats alarming consumers on a daily basis.  The recent Equifax data breach offers a prime example.  The disparate reactions of Massachusetts, California, Texas and New York reflect the various tools at the disposal of state AGs in the increasingly difficult struggle to protect consumer information,… More

Exxon Faces Skepticism in New York as SJC Arguments Loom

U.S. District Judge Valerie Caproni on Thursday, November 30, 2017 heard argument on Massachusetts Attorney General Maura Healey’s and New York Attorney General Eric Schneiderman’s motions to dismiss Exxon’s federal court challenge to their ongoing climate investigations.  Law360 has reported that Exxon faced considerable skepticism, particularly of its arguments that the investigations impinged on Exxon’s freedom to participate in the climate change debate: “You don’t have the right to lie in your securities filings,… More

Cybersecurity 2018 – The Year in Preview: HIPAA Compliance

Like many things in Washington, the HIPAA landscape in 2018 will be shaped by the shifting priorities of President Trump’s new administration.  Early signs point to less funding for the Office of Civil Rights (“OCR”) within the Department of Health and Human Services, which is responsible for enforcing HIPAA.  This is likely to lead to fewer enforcement actions, but not necessarily less aggressive enforcement within those actions,… More