Insights

On May 22, 2025, the U.S. Department of Justice and the Federal Trade Commission (the “U.S. Antitrust Agencies”) filed a Statement of Interest supporting thirteen states’ claims that asset managers violated antitrust and consumer protection law through their environmental, social, and governance (“ESG”) activities. The Statement, which opposes the asset managers’ motion to dismiss the antitrust claims, indicates the federal antitrust agencies support antitrust theories favored by anti-ESG activists, which may lead to federal investigations and lawsuits based on such theories.

Foreign Corrupt Practices Act (“FCPA”) enforcement has been fairly predictable for many years as the Fraud Section of the Department of Justice (“DOJ”) has maintained exclusive authority over investigating claims and bringing enforcement actions in federal courts across the country. President Trump’s recent pause on FCPA enforcement, the first of its kind since the statute was passed in 1977, has created significant uncertainty for individuals and businesses operating internationally regarding the future of FCPA enforcement. While DOJ is in the process of assessing what the future of FCPA enforcement, state attorneys general are stepping in. On April 2, California Attorney General Rob Bonta issued a Legal Advisory (the “Advisory”) to California businesses explaining that violations of the FCPA are actionable under California’s Unfair Competition Law (UCL). The announcement signals a shift in FCPA enforcement where states may take the lead and pursue FCPA enforcement through their state unfair competition laws.

On February 13, 2025, a coalition of sixteen state attorneys general issued a “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” (the Guidance). Led by Attorney General Andrea Campbell of Massachusetts and Attorney General Kwame Raoul of Illinois, and joined by the Attorneys General of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont, the Guidance is a direct response to concerns from the private sector in the aftermath of President Trump’s recent Executive Order 14173, which  directed federal agencies “to encourage the private sector to end illegal discrimination and preferences, including DEI.” The Guidance clarifies “the state of the law for businesses, nonprofits, and other organizations operating” in their respective states.

Artificial intelligence is now a mainstay in our daily lives. It’s in our phones and computers. It helps us draft emails and learn math. It recommends purchases and guides our online searches. It’s everywhere—and every sign suggests that it’s here to stay.

Democratic State Attorneys General took a series of actions to defend Biden Administration Rules on the environment, firearms, and immigration, in the final days before President Trump returned to the White House. While these State AGs argue that the rules at issue protect the public health and safety of their constituents and the nation, the incoming Administration has indicated that it may withdraw its support from some or all of these regulations. Notably, many of the Rules in question face legal challenges from Republican State Attorneys General. A look at the Democratic AGs’ actions is below.

On December 17, 2024, the Federal Trade Commission (“FTC”) and the Illinois Attorney General (“AG”) announced a $140 million settlement with Grubhub to resolve charges involving an array of allegedly unlawful and deceptive business practices. Even though the FTC’s proposed final rule on junk fees (also announced on December 17, 2024) is limited to hotels, live events, and short-term rentals, this settlement demonstrates that the FTC will use its broad enforcement powers to pursue companies imposing junk fees online, and that both federal and state consumer protection regulators will formulate 2025 enforcement priorities with junk fees and click-to-cancel in mind. Indeed, this $140 million settlement, of which Grubhub will pay $25 million based on its demonstrated inability to pay the full amount, is the first of its kind in that it is a joint action by the FTC and state regulators to pursue both junk fees and click-to-cancel violations.

Ten states held elections for state attorney general last month. Those states include: Indiana, Missouri, Montana, North Carolina, Oregon, Pennsylvania, Utah, Vermont, Washington and West Virginia. Of the ten elections, there was only one change in political party—Pennsylvania, from Democrat to Republican. Additionally, six states elected new attorneys general—North Carolina, Oregon, Pennsylvania, Utah, Washington and West Virginia. Notably, three attorneys general were elected governor of their respective states. Those incoming governors include Josh Stein of North Carolina, Bob Ferguson of Washington, and Patrick Morrisey of West Virginia. A summary of each new attorney general and attorney general turned governor is below, listed alphabetically.

On October 3, 2024, a group of twenty-two state attorneys general sent a letter to Nasdaq Chair Adena Friedman inquiring into the listing company’s “commitment to ensuring federal and State anti-discrimination laws are followed.”[1] The letter, penned by Iowa Attorney General Brenna Bird, stems from a rule change Nasdaq promulgated in 2020 in an effort to increase diversity within boardrooms.

California Governor Gavin Newsom announced his plans to sign Senate Bill 1037, a bill designed in response to the “statewide housing shortage crisis” that will give Attorney General Rob Bonta new civil penalty authority to hold municipalities accountable from the moment they purportedly first violate the state’s housing laws. This marks a significant change in the law.

On Monday, July 15, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division of Consumer Affairs released proposed rules (the “Proposed Rules”) which require certain New Jersey healthcare providers (i.e., physician assistants, physicians, nurses, and midwives) who provide perinatal treatment and care to pregnant persons to undergo bias training. The training is designed to root out prejudices and stereotypes that may negatively impact the quality of care delivered by these providers to patients during pregnancy, labor, delivery, postpartum, and neonatal periods.  The Proposed Rules were promulgated in an effort “to address pronounced racial disparities in maternal and infant health outcomes in New Jersey.”

With the increase in state-federal collaboration, now is the time to ensure that your company is in the best position to engage with and address potential regulatory enforcement actions. In light of the uptick in intergovernmental investigative and enforcement collaboration, namely among federal agencies such as the Department of Justice (DOJ), and individual state authorities like state attorneys general offices (AGs), AGs are growing their enforcement capacity and increasing their activity in areas that have historically been left to federal agencies.

In a recent development that underscores the ongoing debate over diversity, equity, and inclusion (DEI) initiatives in the United States, a group of 21 Republican State Attorneys General spearheaded by Tennessee Attorney General Jonathan Skrmetti has challenged the American Bar Association's (ABA) Standard 206 on Diversity and Inclusion. In a letter sent to the ABA in early June, the Republican AG group argues that the ABA Standard and its proposed revisions are unlawful due to the Supreme Court's ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA).

On August 1, 2024, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, one of the final Title IX regulations of the U.S. Department of Education released on April 19, 2024, will go into effect. The new regulations address the previous administration’s rollback of Title IX protections, and include, among other things, an expanded definition of sex discrimination that provides new protections for LGBTQ+ individuals against discrimination on the basis of sexual orientation and gender identity. For example, the new rules prohibit schools that receive federal funding from barring transgender students’ use of pronouns that correspond to their gender identities, or denying transgender students access to facilities, like locker rooms and restrooms, that match their gender identities. Other notable changes in the new regulations include the following: (1) protection from all sex-based harassment and discrimination, including that based on sex stereotypes, sexual orientation, gender identity, or pregnancy or related conditions; (2) broadening the definition of “hostile environment” harassment to include conduct that is so severe or pervasive that it limits or denies a person’s ability to participate in the education program or activity; (3) increased accountability by requiring schools to take prompt and effective action to end any sex discrimination in their education programs or activities, prevent reoccurrence, and remedy its effects; and (4) protection against retaliation for students, employees, and others who exercise their Title IX rights.

Last week the New Jersey State Attorney General (AG) Matthew J. Platkin announced the creation of a new division: the Antitrust Litigation and Competition Enforcement Section (ALCES) within the Division of Law (DOL). The permanent and stand-alone section is based out of the DOL’s Newark office and is intended to reinforce the state’s capacity for robust antitrust protection. This marks yet another effort by a state AG to increase antitrust resources and focus on both large and small antitrust issues to promote fair and competitive markets.

There are very few issues that can unite Republican and Democratic State Attorneys General in today’s polarized political environment. Aviation is one of those issues.

On Monday, December 18, Tennessee Attorney General Jonathan Skrmetti filed a consumer protection lawsuit against BlackRock, Inc., a large, worldwide asset manager.  The lawsuit alleges that BlackRock made false or misleading representations to Tennessean consumers regarding the extent to which Environmental, Social, and Governance (“ESG”) considerations affect BlackRock’s investment strategies in violation of Tennessee’s consumer protection law.  The suit boils down to BlackRock allegedly holding (and advertising) two inconsistent positions, which arguably leads to consumer confusion and misconception.  The first position is that BlackRock necessarily focuses on maximizing a return for its investors.  The second, a focus on minimizing environmental impact, Attorney General Skrmetti argues conflicts directly with the goal of maximizing profitable return.  The lawsuit argues that BlackRock has violated Tennessee’s consumer protection law by both greenwashing and greenhushing.

Artificial intelligence, and the way it affects the law and legal enforcement, is top of mind for state attorneys general. Simply put, AI is not limited to the tech industry. AI is likely to alter, and perhaps revolutionize, every sector of industry, and within the last few months has scaled in many sectors. Firms continue to implement software strategies and hire additional employees specializing in software development. And the rise of generative AI is already creating advantages and economies of scale to larger firms, but alongside the advantages, enforcers, such as attorneys general offices, appear likely to raise concerns. State attorneys general are mindful of both the advantageous uses both firms and their own offices may employ, and cautious of consumer protection issues and potential unfair or deceptive business practices that may develop either accidentally or intentionally.

A New Jersey federal judge has denied two executives’ efforts to suppress statements made during an interview conducted as part of an internal investigation of alleged bribe payments in India even though their employer was hoping to take advantage of a U.S. Department of Justice FCPA Pilot Program.

Advances in artificial intelligence have become front and center in the minds of many, including attorneys general focused on consumer protection. Although concerns exist for consumer protection, the advancement of artificial intelligence has the opportunity to add value to consumers.  This is especially true in healthcare. Recently, attorneys general gathered to discuss these issues at the Attorney General Alliance Annual Meeting, during a panel that discussed  The Value of Disruptive Healthcare. In the last few years, the growth of telemedicine has dramatically changed the delivery of healthcare. While these changes were already afoot, the pandemic highlighted the need for virtual access to healthcare and wellness tools. That disruption has added value in many ways to consumers and health care providers managing care for their patients. Similarly, in the coming years, we can expect artificial intelligence to drive even more changes in treatment, therapies, and standards of care in the healthcare sector. During these periods of major technological advancements attorneys general should consider consumers’ safety, privacy, security and consumers’ overall livelihood and health. Dramatic changes in healthcare business and technology are already challenging existing laws in unexpected ways, often creating gaps between the law and what consumers and producers need or want the law to say. This gap period, or regulatory lag, will require producers to assume some regulatory risk and for attorneys general to monitor business activities that they believe create too much risk for consumers.

On March 25, 2022, a multistate coalition of over twenty democratic attorneys general submitted a joint letter to the Consumer Financial Protection Bureau (“CFPB”) asking the Bureau to create a rule regulating providers of Buy-Now-Pay-Later (“BNPL”) financing. The joint letter was submitted in response to the CFPB’s “Notice and Request for Comment Regarding the CFPB’s Inquiry into Buy-Now-Pay-Later Providers.”