Editors’ Note: This is the fifth in our start-of-year series examining important trends in white collar law and investigations in the coming year. Our previous entry discussed False Claims Act trends in 2020. Up next: a look at the year ahead in cross-border compliance and sanctions. Look for additional posts throughout the month of January.
2019 marked the beginning of Maura Healey’s second term as Massachusetts Attorney General. So far, this term has seen an increased focus on issues surrounding climate change and e-cigarettes, and a continued focus on healthcare fraud. We expect to see even more focus on these areas in 2020.
Expect More Climate Change-Related Enforcement
Healey’s inaugural address listed climate change as one of the top priorities in her second term, stating in no uncertain terms that “we won’t let the federal government and the fossil fuel industry undermine our progress and wreck our planet.” 2019 didn’t disappoint on the federal government front, as the AG’s Office filed numerous environment-related federal lawsuits against the Trump administration and provided many comments on proposed rules by the EPA and other federal agencies that the Office viewed as curtailing climate change protections.
But while the year’s enforcement efforts against the fossil fuel industry might have started with a whimper, they ended with a bang: in late October, the AG’s Office filed suit against Exxon Mobil, alleging the oil giant misled both investors and consumers about “the catastrophic climate impacts of burning fossil fuels.” In particular, the office alleged that Exxon deceived its investors by misrepresenting that it factored the costs of complying with carbon regulations into its financial planning. The AG also alleged that Exxon deceived consumers by both making misleading statements that its diesel and gasoline products reduce greenhouse gas emissions and by engaging in a marketing campaign that inaccurately presented itself as a leader in clean energy research.
Given Healey’s vow to tackle the fossil fuel industry and its recent major action against Exxon Mobil, we expect to see more enforcement efforts targeting private entities in 2020.
E-Cigarette Enforcement is on the Rise
In July of 2018, the AG’s Office announced it would investigate e-cigarette retailers for possible consumer protection violations. In 2019, it sued one retailer and filed a cease-and-desist letter against another. Both the suit and the cease-and-desist letter accused the retailers of illegally directing nicotine vaping products to minors – by marketing the products on internet fora that cater to minors and by introducing sweet and fruity flavors attractive to minors – and of failing to adequately verify purchasers’ ages. In both cases, the AG emphasized that the retailers sold JUUL Labs products or products compatible with those made by JUUL Labs.
When it announced its lawsuit in May 2019, the AG’s Office noted that investigations into other e-cigarette retailers for similar conduct were ongoing. Given the public focus on the e-cigarette industry, we predict a ramp up of the AG’s enforcement activities will in 2020, potentially beyond its current focus on marketing and sales to minors.
Healthcare Fraud Remains a Top Priority
Historically, the AG has devoted significant resources to frauds against MassHealth, the Commonwealth’s Medicaid program. For instance, in fiscal year 2018 it recovered more than $45 million. That trend continued in 2019, with the AG obtaining multiple settlements and criminal convictions, often in the millions of dollars, for fraudulent billing practices. The top targets in 2019 were adult day health and home health care facilities, but the AG also secured significant amounts in restitution from a transportation company, an urgent care facility, and a genetic testing facility.
With the healthcare industry in flux due to the impending potential demise of the Affordable Care Act, it is likely the AG’s Office will intensify its focus on the government-funded healthcare industry. Expect the same or more focus on this area in 2020.