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Vol. 2021, Issue 10
Troutman Pepper’s State Attorneys General team combines legal acumen and government experience to develop comprehensive, thoughtful strategies for clients. Our lawyers handle individual and multistate AG investigations, proactive counseling and litigation, and manage ancillary regulatory issues. Our successful approach has been recognized by Chambers USA, which ranked our practice as a leader in the industry.
By Ketan Bhirud, Rachel Buck, Chris Carlson, and Timothy McHugh
Attorneys general have been quick to compare their ongoing opioid litigation to their efforts in the late 1990s, where they led the charge to address the public health concerns resulting from tobacco use. On the heels of a $26 billion settlement offered by four companies alleged to have contributed to the opioid epidemic, it will be interesting to see what lessons states and companies have learned and where they go from here.
By Agustin Rodriguez and Christina Sava
It is widely known that trafficking in controlled substances is a crime under federal law. Traffickers and would-be traffickers be warned, however, that if you do choose to make income from trafficking in Schedule I or II controlled substances (including cannabis, cocaine, or psychedelic mushrooms), that income is fully taxable by the U.S. government. And, if you have employees helping you produce and sell federal Schedule I or II controlled substances (as many state-legal cannabis businesses do), you owe federal employment taxes as well.
By Ketan Bhirud and Matthew Fay
The House of Representatives has approved cannabis banking legislation for the fifth time. Will this be the year the Senate finally approves this legislation?
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By Ghillaine Reid, Casselle Smith, Christopher Carlson, and Namrata Kang
State regulatory agencies in Alabama, Kentucky, New Jersey, and Texas have increased their efforts to challenge digital asset-related products by issuing cease-and-desist or “show cause” orders against New Jersey-based cryptocurrency company, Celsius Network LLC (Celsius). In September, Celsius — which provides a blockchain-based cryptocurrency lending and trading platform — became the most recent target of these states’ regulatory enforcement efforts against cryptocurrency products. Two months earlier, in July 2021, each of these states filed actions against BlockFi — another New Jersey-based cryptocurrency company that offers credit cards, loans, and interest-generating accounts. These state regulators variously allege that both BlockFi and Celsius have unlawfully offered unregistered securities in the form of high interest-bearing accounts used to fund their lending operations and proprietary trading.
By Stephen Piepgrass and Mary Grace Metcalfe
Over the summer of 2021, we have seen increased attention from the U.S. Securities and Exchange Commission (SEC) toward trading in cryptocurrency and other crypto assets. In particular, public comments by SEC Chair Gary Gensler have indicated that the SEC will soon take action against what he has described as the financial “Wild West.” On September 1, the form this action would take was clarified both by further comments from Gensler and by the filing of a complaint in the matter SEC v. BitConnect. As these comments and the complaint illustrate, the SEC’s concerns about the unregistered offering of securities and fraud on investors have led to a focus on crypto asset trading platforms and potential associated securities violations.
By Namrata Kang and Daniel Waltz
On September 30 and October 1, the National Association of Attorneys General (NAAG) held its Presidential Summit. Hosted by NAAG President and District of Columbia Attorney General Karl Racine, the summit occurred as part of his 2021 NAAG presidential initiative, “The People v. Hate: Standing Up for Humanity,” which focuses on raising awareness about bias and hate; preventing (and combatting) such incidents; and promoting social and racial justice. Consequently, the summit offered a forum for attorneys general from both sides of the aisle to come together and seek solutions for successfully combatting hate. One theme permeated all conversations: Attorneys general must use their power to bring stakeholders to the table and engage communities to make progress together.
By Stephen Piepgrass and Bonnie Gill
Several state attorneys general recently signaled their interest in pursuing broader and more effective enforcement antitrust actions by urging the federal government to pass legislation that would strengthen current federal antitrust laws and solidify the states’ authority to enforce them.
By Siran Faulders and Timothy McHugh
The Department of Justice has loosened restrictions on the use of agency guidance documents to establish violations of underlying legal requirements in enforcement actions and other litigation. According to a memorandum by Attorney General Garland, DOJ attorneys may now “rely on relevant guidance documents in any appropriate and lawful circumstances, including when a guidance document may be entitled to deference or otherwise carry persuasive weight with respect to the meaning of” statutory and regulatory requirements. Related changes to the Justice Manual that guides DOJ attorneys in their daily practice, namely JM 1-19.000 and 1-20.000, are forthcoming. Where exactly regulators and DOJ will draw the line in individual cases, between using guidance documents to effectively create legal requirements for regulated parties and merely informing their meaning, remains to be seen.
By Stephen Piepgrass and Daniel Waltz
Data brokers beware, the Securities Exchange Commission (SEC) has signaled increased scrutiny into the data and privacy practices of technology-enabled companies in the financial services industry. On September 14, the SEC announced that it settled a securities fraud investigation into private technology company App Annie, Inc. and its former CEO and Chairman Bertrand Schmidt, in his private capacity, over alleged violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5. The SEC alleged that App Annie and its CEO used disaggregated company confidential data collected from a subset of its customers to increase the accuracy of models and estimates App Annie sold to trading firm customers, who paid a subscription fee for the information.
By Keith Barnett, Timothy Butler, Carlin McCrory, and Matthew White
On September 30, the Senate confirmed Rohit Chopra as the new director of the Consumer Financial Protection Bureau (CFPB). Chopra’s confirmation marks the beginning of his second stint with the CFPB — Chopra served as the CFPB assistant director between 2010 and June 2015, and had overlapping duties as the student loan ombudsman between October 2011 and June 2015. While serving as the student loan ombudsman, the CFPB sued for-profit colleges Corinthian Colleges, Inc. and ITT Educational Services, Inc. for alleged violations of the Consumer Financial Protection Act and Fair Debt Collections Practices Act based on their respective student lending practices. These lawsuits led both colleges to file for bankruptcy and liquidate. Also while acting as the student loan ombudsman, the CFPB initiated enforcement actions against debt relief servicers and their payment processors for alleged violations of Telemarketing Sales Rule that prohibit charging advanced fees. Some of these enforcement actions focused on debt relief in the student lending industry.
By Timothy Butler, Keith Barnett, Carlin McCrory, and Matthew White
On September 13, President Biden announced his intent to nominate privacy advocate Alvaro Bedoya to serve as a commissioner of the Federal Trade Commission (FTC). If confirmed, Bedoya will take the seat currently held by Rohit Chopra, who President Biden has nominated as the next director of the Consumer Financial Protection Bureau (CFPB), as we reported here.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.
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