On August 2, the U.S. Court of Appeals for the Eighth Circuit decided a case addressing Nebraska’s authority to require tribal cigarette manufacturers that are not parties to the Master Settlement Agreement (MSA) to comply with the state’s escrow statute with respect to cigarettes sold in Indian country. See HCI Distrib., Inc. v. Peterson, No. 23-2311 (8th Cir., Aug. 2, 2024).

Last week, a bipartisan coalition of 30 state attorneys general (AG), led by Florida, Illinois, New York, and Texas, reached a settlement with Cameo — an online service that allows fans to pay for customized messages from celebrities — establishing state AGs’ expectations regarding a company’s duty to include disclosures identifying the connection between a paid endorser and the business brand being endorsed. The settlement with Cameo not only demonstrates that state AGs are scrutinizing whether companies are complying with federal laws and regulations such as the Federal Trade Commission’s (FTC) endorsement guidelines, but also their willingness to establish clear, bright-line rules for compliance that other companies should heed.

Last week, Arizona Attorney General (AG) Kris Mayes filed a lawsuit against FCA (formerly Fiat Chrysler) and Cummins for alleged violations of the Arizona Consumer Fraud Act by falsely advertising that certain vehicles were “clean diesel” vehicles, when in fact the vehicles allegedly had illegal emissions defeat devices. The lawsuit constitutes another example of the state of Arizona retaining outside counsel to take action against the automobile industry regarding the alleged use of emissions defeat devices.

This blog post was republished in the October 2024 edition of Surety Bond Quarterly.

Did the 2023 update to the Davis-Bacon and Related Acts, which apply to contractors and subcontractors performing on certain federally funded or assisted contracts, appropriately modernize or unduly expand the Davis Bacon Act’s (DBA) prevailing wage rule?[1] Following the Department of Labor’s (DOL) enactment of a final resolution on August 23, 2023 (final rule),[2] interested parties immediately challenged the final rule, seeking a preliminary injunction. The parties argued that specified portions of § 5.2 and the entirety of § 5.5(e) in the final rule exceed the DOL’s authority under the DBA and will result in undue hardship and irreparable harm for government contractors in the construction industry.

Dear Mary,

Each of the 50 states has its own definition of what constitutes a reportable data breach. For some, it requires “unauthorized access” to personal information. For others, it requires “unauthorized acquisition.” And then, some states have further qualifications to their definition, such as whether that unauthorized access or acquisition “compromises” or “materially compromises” the integrity, security, or confidentiality of the data. No states (apart from New York) define access or acquisition, and no state defines compromise vs. material compromise. How would you suggest analyzing all these varying terms?

– Patchwork

In 2024, the landscape of state attorneys general (AGs) is poised for significant change, with numerous elections and regulatory actions reshaping priorities and enforcement strategies. This dynamic environment reflects the critical role AGs play in addressing key issues across various sectors, from environmental regulations and consumer protection to health care and privacy. As state AGs continue to influence policy and legal frameworks, their actions will have far-reaching implications for businesses and consumers alike. Troutman Pepper’s State AG team is pleased to provide you with this mid-year review summarizing the activities in this regulatory space over the past six months.

In an unusual move, attorneys general (AG) from 30 states and the District of Columbia filed a bipartisan amicus brief in the Ninth Circuit supporting efforts to revive a proposed class action against payment processor Shopify. The amici back plaintiff-appellant Brandon Briskin in his effort to convince the Ninth Circuit to overturn en banc a three-judge panel decision affirming the dismissal of his data privacy suit for lack of personal jurisdiction.