Florida AG Prevails Against CDC Over COVID-19-Related Framework for Resumption of Cruise Industry

• Florida AG Ashley Moody obtained a preliminary injunction from the United States District Court for the Middle District of Florida against the U.S. Department of Health and Human Services and the U.S. Centers for Disease Control and Prevention (“CDC”), which prevents the CDC from enforcing its October 30, 2020 “Framework for Conditional Sailing and Initial Phase COVID-19 Testing Requirements for Protection of Crew” (“Framework”)—part of a phased resumption of cruise ship passenger operations in U.S. waters—against a cruise ship arriving in, within, or departing from a port in Florida.
• As previously reported, the complaint alleged, among other things, that the four-phased Framework, effective until November 1, 2021, imposed onerous requirements on cruise ships prior to allowing them to sail in U.S. waters. The complaint argued that the Framework was arbitrary and capricious because it singled out the cruise industry for heightened safety measures even though airlines, hotels, and other tourism industries were allowed to open with reasonable safety measures. In addition, the complaint alleged that the CDC exceeded its authority in issuing the Framework and that it did not reassess the Framework in view of new developments such as the rollout of the vaccination program.
• In its order, the court found that Florida is highly likely to prevail on the merits of its claim that the Framework exceeds the authority delegated to the CDC, or alternatively that the Framework likely constitutes an unconstitutional delegation of legislative power to the CDC because the delegation fails to convey any “intelligible principle” to guide the CDC’s exercise of authority, among other things. The order converts the binding Framework to a non-binding guideline, which has the same level of authority as CDC’s communications to other industries in the hospitality, transport, and entertainment sectors.

New Republican Candidate Joins the Race for Arizona Attorney General’s Open Seat

• Former prosecutor and Border Patrol section chief for the U.S. Attorney’s Office Lacy Cooper announced her candidacy for the Republican nomination in the 2022 race for Arizona attorney general.
• As previously reported, private-practice attorney and cotton farmer Tiffany Shedd is also seeking the Republican nomination. Incumbent AG Mark Brnovich is term-limited from seeking reelection and is running for the U.S. Senate against Democrat Mark Kelly.
• To “meet” the state AGs across the nation and read more AG election news and insights, visit The State AG Report.

Full Slate of State Attorneys General Urges Congress to Strengthen State Antitrust Enforcement Abilities

• The National Association of Attorneys General (“NAAG”) sent a letter to Congress, signed by a bipartisan group of 52 AGs, calling on legislators to provide state AGs with the same venue selection rights as federal agencies by passing the State Antitrust Enforcement Venue Act of 2021.
• The letter notes that, under current law, state antitrust enforcement actions may be transferred to a multidistrict litigation at defendant’s request, causing significant delays and potential joinder with other lawsuits brought by private plaintiffs. But enforcement actions filed by the federal government cannot be transferred to a multidistrict litigation, thus avoiding its inefficiencies. The letter argues that state antitrust enforcement actions should be subject to the same protections from transfer as those brought by the federal government because states play an essential role in enforcing competition laws in the United States and should have the same freedom as federal enforcers in deciding where, when, and how to prosecute their cases.
• As previously reported, NAAG also recently urged Congress to provide funding needed to enhance state antitrust capabilities so that state AG offices can keep pace with the growth of the national economy, which has resulted in a greater number of complex and resource-intensive antitrust enforcement actions requiring additional staffing and financing.

Gold-Mining Companies Fail to Persuade Court that Washington Attorney General’s Clean Water Act Jurisdiction Is Limited

• Washington AG Bob Ferguson obtained a summary judgment from the United States District Court for the Eastern District of Washington against gold-mining companies Crown Resources Corporation and Kinross Gold U.S.A., Inc. (collectively “Mining Companies”) dismissing some of the Mining Companies’ defenses to allegations that they are responsible for years of water pollution from the Buckhorn Mountain gold mine in violation of the Clean Water Act.
• The complaint alleged that the Mining Companies operated an underground gold mine where extraction operations were primarily done below the water table and from which illegal levels of contaminants and pollutants were released into creeks that flowed into the Kettle River. The mine allegedly released toxic chemicals like aluminum, ammonia, arsenic, lead, and nitrates, that are harmful to people, water ecosystems, and fish species like trout. The water quality permit for the Buckhorn Mountain gold mine requires the Mining Companies to capture and treat water impacted by the mine’s operations.
• In its decision, the court dismissed two of the Mining Companies’ defenses, which asserted that the AG’s claims under the Clean Water Act that the companies violated the conditions of their water discharge permit were barred because there had been no discharge of a pollutant from a point source to navigable waters, nor an addition of a pollutant, as required to establish jurisdiction under the Clean Water Act. The court found no support for the Mining Companies’ assertion on the limited establishment of jurisdiction under the Clean Water Act. The case will now focus on how much the Mining Companies owe for their Clean Water Act violations.

Republican Attorneys General Urge SEC to Refrain from Requiring Additional Climate Change Disclosures

• A group of 16 Republican AGs, led by West Virginia AG Patrick Morrisey, sent a comment letter to the U.S. Securities and Exchange Commission (“SEC”) in response to the SEC’s call for input from the public about updating its rules governing climate change disclosures.
• The letter argues that that SEC’s authority is limited to mandating required reporting that is necessary and appropriate for the protection of markets and investors, and that it does not possess broad powers to require public companies to make statements on any topic for which there may be investor demand. The letter also argues that mandating additional climate change disclosures may be unconstitutional because it attempts to regulate speech. According to the letter, in order to pass scrutiny under the First Amendment, such regulations must advance a constitutionally sufficient government interest, and be adequately related to advancing that end, but the purported public demand for increased climate change information is not a sufficient government interest to compel speech.
• The letter urges the SEC not to expand its congressional mandate into unrelated social matters, especially because companies are already taking the lead on climate change disclosures voluntarily. The letter follows on the heels of a separate letter, as reported last week, by 12 Democratic urging the SEC to require U.S. companies to disclose financial risks related to by climate change.

Teva Settles Mississippi Allegations of Price-Fixing Collusion in the Generic Drugs Market

• Mississippi AG Lynn Finch reached a settlement with Teva Pharmaceuticals USA, Inc. (“Teva”) to resolve allegations of price fixing and market allocation for numerous generic drugs in violation of the Sherman Act.
• The settlement stems from a 2019 complaint by 43 state AGs, and the Puerto Rico AG, against Teva and more than a dozen rivals, as well as related individual pharmaceutical executives, alleging that they colluded to divide the generic pharmaceutical customer base to artificially inflate prices in a coordinated manner for drugs used to treat numerous conditions, including multiple sclerosis, HIV, ADHD, kidney disease, and cancer, among other things.
• Under the terms of the settlement, Teva will pay $925,000 to Mississippi for the voluntary dismissal of Mississippi’s claims in the 2019 case and other related cases.