Cozen in the News

Cozen O’Connor’s State Attorneys General Practice Co-Chairs Quoted in Article About HHS Secretary Nominee

  • Bernie Nash and Lori Kalani, Co-Chairs of Cozen O’Connor’s State Attorneys General Practice, are quoted in a Healthcare Dive article discussing the expectations for California AG Xavier Becerra’s tenure if confirmed as the Secretary of the U.S. Department of Health and Human Services in the Biden administration.
  • Nash, noting that as a U.S. Congressman, Becerra sat on the Health Subcommittee of the House Ways and Means Committee, said, “[h]e’s very experienced and knowledgeable in the healthcare field.” Kalani discussed a conversation she had with AG Becerra just prior to the 2020 presidential election in which he stressed antitrust work as a top healthcare priority. Kalani added that Becerra would be likely to coordinate with the U.S. Attorney General on a more national scale, but such coordination will likely be fairly discreet.

Consumer Protection

Connecticut Attorney General Seeks to Beef Up Price Gouging Statute

  • Connecticut AG William Tong is seeking new legislation to strengthen Connecticut’s price gouging statute and has testified in favor of the proposed legislation before the General Law Committee of the Connecticut General Assembly.
  • According to the AG’s office, even though it received over 750 COVID-19-related price gouging complaints in 2020, it was unable to address some of the worst allegations of bad actors seeking to take advantage of severe shortages in protective equipment and essential goods because they did not fall under the current statute.
  • The proposed legislation aims to address three shortcomings in the current statute. First, it expands the price gouging statute beyond retail sales to include wholesale and the entire supply chain. Second, it more clearly defines price gouging behavior and prohibits the sale of certain goods and services at an “unconsciously excessive price.” Third, the new legislation will apply to rentals and leases of products and services, making it unlawful to rent or lease products and services at an unconscionable price.

Bipartisan Group of Attorneys General Fight District Court’s Reprieve for Robocallers

  • A bipartisan group of 35 AGs, led by Indiana AG Todd Rokita and North Carolina AG Josh Stein, filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit in Lindenbaum v. Realgy, LLC, arguing that the district court erred in finding that the Telephone Consumer Protection Act’s (“TCPA”) ban on robocalls was unenforceable from 2015 to 2020.
  • According to the brief, in 2015, the TCPA was amended to include a “government-debt exception” that allowed calls and texts to consumers for the purpose of collecting on debts owed to or guaranteed by the federal government, but this amendment was struck down by the U.S. Supreme Court in 2020 in Barr v. American Ass’n of Political Consultants, Inc. The district court held that the struck-down exception contaminated the TCPA in its entirety while it was in force, and that therefore, the TCPA could not be enforced against robocallers for their actions between 2015 and 2020.
  • The brief argues, among other things, that the district court’s ruling is contrary to the U.S. Supreme Court’s decision in Barr because the Supreme Court severed the struck-down exception from the rest of the Act, finding that the exception functioned independently and that the remaining provisions of the TCPA would be fully-operative without it, and further noting that the TCPA was fully operative for more than 20 years prior to the enactment of the exception. The brief also argues that the district court erred as a matter of statutory interpretation in not applying the severability decision retroactively.

Company Allegedly Promised Funding but Opened Credit Card Accounts for Consumers Instead

  • The Federal Trade Commission (“FTC”) reached a settlement with funding company Seed Consulting, LLC and a related company and individuals (collectively “Seed Consulting”) to resolve allegations that it used deceptive and unfair practices to charge consumers thousands of dollars to open credit card accounts for them in violation of the FTC Act, the Telemarketing Sales Rule, the Credit Repair Organization Act, and the Consumer Review Fairness Act.
  • The complaint alleged that Seed Consulting’s services were pitched to consumers by companies promising to teach how to make money by investing in real estate or operating an online business as a way to obtain funding for such undertakings. In reality, Seed Consulting allegedly did not provide its own funding and instead charged consumers thousands of dollars to open multiple credit card accounts, then notified the companies of the consumer’s new cards and credit limits. The complaint further alleged that Seed Consulting often inflated consumers’ income on the credit card applications.
  • Under the terms of the proposed stipulated order, among other things, Seed Consulting agreed to pay $2.1 million to the FTC to be used for consumer redress. It is also banned from selling or promoting consumer credit services and from misrepresenting or helping to misrepresent consumers’ financial information to financial institutions. Additionally, it must submit compliance reporting to the FTC.

Environment

Ignoring Stormwater Control Requirements Costs Solar Panel Company $1.14 Million

  • Massachusetts AG Maura Healey reached a settlement with solar energy development company Dynamic Energy Solutions, LLC (“Dynamic”) to resolve allegations that it polluted wetlands and waterways in violation of the federal Clean Water Act, the Massachusetts Wetlands Protection Act, and the Massachusetts Clean Waters Act.
  • The complaint alleged, among other things, that Dynamic constructed a solar panel array without designing and implementing legally-required stormwater controls, thereby causing sediment-laden stormwater to be discharged in sufficient quantities to uproot trees, destroy streambeds, fill wetlands with sediment and destroy wildlife habitats, and pollute a river that is a cold-water fishery, and failed to comply with an enforcement order.
  • Under the terms of the consent decree, Dynamic will pay a $100,000 civil money penalty, $215,000 to a land trust to be used for land conservation and preservation efforts, and $80,000 in attorney’s fees and costs. In addition, Dynamic will undertake restoration and compensatory mitigation projects at an estimated cost of $740,000.

False Claims Act

Adult Day Health Centers Settle Allegations of Medicaid Program Overbilling

  • Massachusetts AG Maura Healey reached a settlement with adult day health centers Fun Life Adult Day Care and Monarch Care (collectively “Fun Life and Monarch”), to resolve allegations that the day care centers improperly billed Massachusetts’s Medicaid Program (“MassHealth”) for adult day health programs.
  • According to the AG’s office, Fun Life and Monarch allegedly billed MassHealth for more hours than the hours members actually attended adult day health programs, and improperly submitted claims in excess of MassHealth’s per diem billing requirements.
  • Under the terms of the settlement, Fun Life and Monarch will pay over $1 million and will implement a three-year compliance program that will include updated billing policies and procedures, staff training, and third-party monitoring and auditing, among other things.
  • As previously reported, AG Healey settled allegations with adult day health company Quality Life Adult Day Services to resolve allegations that it improperly billed MassHealth for full-day services for members who did not attend the facility for the entire day.

Financial Industry

Bipartisan Group of Attorneys General Objects to Settlement Regarding Mortgage Payment Processing Fees

  • A bipartisan group of 33 AGs, led by Minnesota AG Keith Ellison and New York AG Letitia James, filed an amicus brief in the U.S. District Court for the Southern District of Florida in Morris et al. v. PHH Mortgage Corp. et al., opposing a proposed class action settlement relating to mortgage payment processing fees.
  • According to the brief, PHH Mortgage Corporation and its predecessor corporation, Ocwen Loan Servicing, LLC (collectively “PHH”), allegedly charged close to one million homeowners nationwide a fee for each monthly mortgage payment made by phone or through an online account, without disclosing or seeking authorization for such fees in the mortgage contract. The proposed settlement, opposed by the AGs, would permit PHH to continue charging such fees for the remaining life of the loan in exchange for a one-time payment or credit to affected homeowners.
  • The brief argues, among other things, that the transaction fees are illegal under the laws of many states, and that the proposed settlement is in effect an attempt to authorize the unlawful fees through an unwritten amendment of the mortgages, which would violate most states’ statutes of fraud. The brief also notes that the proposed settlement would only provide account credits to homeowners with a current mortgage serviced by PHH and that that credit would be applied to the unpaid principal of the mortgage only after all late fees are paid, resulting in PHH essentially paying itself through the credit in many cases.



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