This is the fourth post in this year’s series examining important trends in white collar law and investigations. Our previous post discussed trends in tax enforcement. Up next: trends in sanctions & export controls enforcement.
2022 is shaping up to be an interesting year for the Office of the Massachusetts Attorney General. It marks Maura Healey’s final year as AG as she gears up for her run for governor. Of course, her departure means that the Commonwealth will have a new AG in 2023. This post previews what we expect to be AG Healey’s priorities in the final year of her tenure, namely:
- Active enforcement and settlement of healthcare fraud;
- Commitment to climate change, including the AG’s suit against Exxon Mobil; and,
- Creation of the Conviction Integrity Unit.
Historically, Healey’s Office has devoted significant resources to the Medicaid Fraud Unit. 2021 was no different. The Medicaid Fraud Division recovered more than $55 million last year, securing 22 civil settlements with various entities, including home health agencies, substance abuse treatment facilities, adult day health centers, adult foster care providers, skilled nursing facilities, and dental practices. This strong success rate suggests 2022 will continue the pattern of healthcare fraud enforcement
In addition, with COVID still looming large in the Commonwealth, we expect pandemic enforcement to continue, with an increased focus on identity theft, the False Claims Act, and fraud with respect to COVID-treatment and products. For example, near the end of 2021, Healey sued School Health Corporation under the Massachusetts False Claims Act for allegedly misleading Massachusetts school districts into purchasing more than $100,000 worth of fake and ineffective hand sanitizer. (This suit follows a $550,000 settlement in November 2020 with Federal Resources Supply Company for the same conduct used against the Massachusetts Bay Transportation Authority.) As time passes revealing similarly fraudulent behavior and with COVID still on the forefront of the public’s mind, we expect to see this and like cases brought by the AG’s office.
Climate Change and the Environment
Climate change and the environment more broadly have long been a priority of Healey. 2021 continued the AG’s focus in this space. For example, in September 2021, Healey settled with a New Bedford-based school bus company over allegations that its drivers excessively idled their buses at several schools. In conjunction with the settlement, Healey also launched the Clean Air Initiative, an initiative focused on tackling air pollution that disproportionately impacts environmental justice communities, and organized a new public information campaign about potential health hazards associated with illegal idling of motor vehicles. That announcement included an online tip form, making it easier for residents to report incidents, and thus making it easier for the AG to investigate and/or bring similar actions going forward.
As another example, in December 2021, Healey, in connection with the U.S. Environmental Protection Agency and the Baker-Polito Administration, reached a settlement with Barnhardt Manufacturing Company, a cotton bleaching company, requiring the company to pay almost $1.5 million to settle allegations that it spilling dozens of gallons of acid in the North River, killing more than 270,000 fish and damaging more than 14 acres of protected wetland resource areas and over 12 acres of designated habitat of two state-listed rare species.
And while there have been a variety of other climate change and environmental enforcement actions across the years, there has arguably been no bigger case than Healey’s action against Exxon Mobil, which promises to remain active in 2022. In 2019, the AG’s Office filed suit against Exxon Mobil, alleging that the company engaged in a misinformation campaign about “the catastrophic climate impacts of burning fossil fuels.” Exxon Mobil sought dismissal on the grounds that its lobbying activity is free speech and falls within the broad definition of protected “petitioning” activity. It accuses Healey of bringing the suit for political reasons. In June 2021, a judge declined to dismiss the lawsuit, a decision that Exxon Mobil appealed. The Massachusetts Supreme Judicial Court is now set to hear oral argument in March, with Exxon Mobil pushing the same arguments the Superior Court dismissed. The case not only has big implications for the environmental space; should it go forward, it carries the potential to expand theories of liability that may ultimately be applied in other contexts.
Healey is not solely concentrated on the AG Office’s past priorities; she is also expanding her focus in 2022. For example, on February 7, 2022, she announced the creation of a new Conviction Integrity Unit (CIU), further evincing that she plans to promote popular initiatives in her final year as AG. The press release describes the mandate of the CIU: “The CIU will re-investigate cases involving claims of innocence and claims that call into question the integrity of the office’s investigation and/or prosecution. Examples of potential conviction integrity concerns include police or prosecutorial misconduct, the unfairness of the process the defendant received, and newly discovered or available evidence that makes the conviction unreliable.” Look for more in this space in the coming year.