United States: State AGs In The News - December 17th, 2015

Antitrust

Texas Medical Board Suffers Blow to Immunity

  • A federal judge for the Western District of Texas denied the Texas Medical Board's (TMB) motion to dismiss an antitrust lawsuit filed by Teladoc, Inc. Judge Pitman indicated that because Texas does not maintain "active supervision" over TMB—which comprises mostly private practice physicians—TMB could not rely on sovereign immunity to support its motion to dismiss.
  • In April, after years of litigation in state court on this issue, TMB created a new rule that requires a face-to-face visit with a patient before a physician is allowed to issue a prescription. Since Teledoc offers health care consultations with a physician for non-emergency conditions over the Internet, or secure video, the new rule effectively prevented Teledoc from operating in Texas. Teledoc sued TMB alleging that it was violating federal antitrust laws and limiting interstate commerce.
  • The facts mirror those in N.C. State Bd. of Dental Examiners v F.T.C., a case decided in February by the U.S. Supreme Court, which ruled that a professional oversight board can only claim state-action immunity from antitrust claims if it is actively supervised by the state. The Supreme Court held that professional boards must either contain less than a majority of market participants, or be actively reviewed by a state supervisor with the authority to review and, where necessary, overrule or modify the board's actions. Following up on the N.C. State Board decision, the Federal Trade Commission recently provided guidance on this issue.

Consumer Protection

West Virginia AG Settles Frontier

  • West Virginia AG Patrick Morrisey reached an agreement with Frontier Communications resolving allegations that the television and Internet provider had violated the West Virginia Consumer Credit and Protection Act by providing access to the Internet at speeds significantly slower than advertised.
  • The AG alleged that Frontier advertised connection speeds of 6 Mbps, but consumers complained that their Internet service was slow or failed entirely. The AG claimed the that consumers frequently achieved no more than 1.5 Mbps.
  • The Assurance of Voluntary Compliance requires Frontier to pay $500,000 for the AG's investigative costs, and to drop the fee on its Internet services to $9.99 per month until it can provide the advertised speeds. In addition, Frontier agreed to invest $150 million over the next three years to increase broadband speeds in West Virginia. According to AG Morrisey, the agreement with Frontier is the largest independently negotiated consumer protection settlement in the state's history. Moreover, the settlement may bring additional scrutiny of Frontier, triggering other AG investigations.

Consumer Financial Protection Bureau

CFPB Nabs an EZ Settlement

  • The Consumer Financial Protection Bureau (CFPB) entered into a Consent Order with EZCORP, Inc., including numerous wholly-owned subsidiaries, to resolve claims that the payday and installment lender violated the Consumer Financial Protection Act and the Electronic Fund Transfer Act.
  • The CFPB alleged that EZCORP and its subsidiaries violated the law in the following ways:
    • Making in-person collection visits to consumers' homes and workplaces, as well as calls to credit references, supervisors, and landlords while ignoring consumers' requests to stop;
    • Claiming in advertisements that it would not conduct credit checks on loan applicants, while routinely running credit checks;
    • Requiring consumers to repay loans through ACH bank withdrawals, and deceiving consumers that they were not permitted to stop the ACH withdrawals or repay the loans early; and
    • Making multiple simultaneous attempts to withdraw money from a consumer's bank account, or making withdrawals earlier than promised, resulting in consumers incurring unnecessary bank fees.
  • The Consent Order requires EZCORP to submit to the CFPB a Redress and Remediation Plan outlining how EZCORP will return $7.5 million to the consumers involved. It also calls for a $3 million civil penalty. In addition, EZCORP is precluded from collecting on a portfolio of defaulted loans and must request that relevant credit reporting agencies remove any negative information that pertains to those debts.

Employment

Seattle Creates Roadmap for Drivers to Unionize

  • The Seattle City Council has passed an ordinance giving professional drivers—whether they drive for taxi, for-hire, or app-dispatch companies—the ability to unionize. The ordinance outlines a process through which drivers using the same company for generating customers can form a nonprofit organization to bargain on the drivers' behalf.
  • The ordinance, however, requires the nonprofit organization to be supported by a majority of a company's drivers before it can be recognized by the city as the bargaining representative. Once the organization is recognized, the city will provide a list of drivers using each driving company. The company is then expected to negotiate with the organization. The ordinance allows the city to issue fines for noncompliance, but not to revoke a company's business license.
  • Yet, as some commentators have noted, federal antitrust law generally prevents independent contractors from entering into agreements with each other regarding their business relationships with third parties. In addition, there is concern over the cost of implementation. Seattle mayor Ed Murray indicated that he would not sign the ordinance, but under the city's governance structure, it still goes into effect without his signature.

False Claims Act

Regulators See False Claims Liability in the Dirt

  • New Jersey Acting AG John Hoffman settled his investigation into whether Accutest Laboratories violated the New Jersey and U.S. False Claims Acts, as well as state regulations on scientific testing, when it allegedly failed to follow proper protocols while conducting soil and water tests under contract for the state Department of Environmental Protection (DEP).
  • The complaint was filed by relator, and former Accutest employee, Koroush Vaziri, in federal court for the District of New Jersey. The complaint alleged that technicians in Accutest's laboratories did not fully comply with the EPA's Standard Operating Procedures by failing to wait the required amount of time between stages of the extraction process, and by failing to properly implement quality control measures. It also alleged that Accutest did not properly calibrate the gas chromatography and mass spectrometry instruments, and thus knowingly presented or caused to be presented false claims to the State DEP.
  • The New Jersey settlement requires Accutest to pay $2 million to the state, to conduct an internal investigation, and to notify any of its clients that could have been impacted by the alleged failure to use standard protocols. Accutest had previously agreed to pay $3 million to the U.S. Department of Justice in a separate settlement involving the same core facts.

Securities

SEC Unearths New Rule for Mining Industry Disclosure

  • The Securities and Exchange Commission (SEC) proposed a new rule that would require companies operating in a mining or extractive industry to provide detailed disclosures regarding payments made to the U.S. and foreign governments in order to secure permission to commercially develop oil, gas, and mineral resources.
  • The Proposed Rule would apply to all U.S. and foreign companies that are required to file annual reports under Section 13 or 15(d) of the Exchange Act—even when the payment is made by a subsidiary or controlled entity. The Rule defines "development" as including exploration, extraction, processing, export, and the acquisition of a license. The term "payment" includes taxes, royalties, fees, production entitlements, and bonuses. The SEC also proposes to include dividends and payments for infrastructure improvements in the definition.
  • This is the SEC's second attempt to comply with Section 1504 of the Dodd-Frank Act. A variety of plaintiffs challenged the SEC's first rule in 2012. In 2013, the District Court for the District of Columbia ruled in favor of the plaintiffs, and held that the SEC had misinterpreted the statute by requiring public disclosure, and that the rule was arbitrary and capricious for lacking any exemption for payments made in countries that prohibited disclosure of such payments.
  • Initial comments on the Proposed Rule are due by January 25, 2016, and comments responding to issues raised in the initial comment period must be submitted by February 16, 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions