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STAGE NETWORK RETROSPECTIVE OF 2012 STATE AG
ENFORCEMENT ACTIONS AND OUTLOOK FOR 2013
A REVIEW OF 2012
Last year marked a period of aggressive enforcement activity for state attorneys general. In 2012, state attorneys general (AGs) brought enforcement actions that yielded settlements that totaled in the billions of dollars. This retrospective reviews the most significant enforcement actions of 2012. These actions primarily were related to mortgage fraud, deceptive practices by pharmaceutical companies, and price fixing and deceptive marketing in consumer products.
NATIONAL MORTGAGE FRAUD SETTLEMENT
State AGs reach settlement with the country’s five largest mortgage servicers.
On February 9,
2012, forty-nine states and the federal government reached a $25 billiwith the nation’s five
largest mortgage servicers to address mortgage loan servicing and foreclosure abuses. The five
mortgage servicers agreed to commit $20 billion in financial relief for borrowers and to pay $5 billion in
cash to the federal and state governments to resolve violations of state and federal law. These violations
included the servicers’ use of “robo-signed” affidavits in foreclosure proceedings, deceptive practices in
the offering of loan modifications, failures to offer non-foreclosure alternatives before foreclosing on
borrowers with federally-insured mortgages, and the filing of improper documentation in federal
bankruptcy court. As part of the settlement, the mortgage servicers agreed to implement comprehensive
new mortgage loan servicing standards.
The settlement expressly permitted state and federal authorities to pursue criminal prosecutions against the servicers and to pursue actions related to securitization, which will be the focus of the new Residential Mortgage-Backed Securities Working Group. In the settlement, state attorneys general also preserved the ability to bring claims against the Mortgage Electronic Registration Systems (MERS) and claims by borrowers.
PHARMACEUTICAL ENFORCEMENT ACTIONS
The state attorneys general were active in 2012 in pursuing pharmaceutical companies for the deceptive marketing, pricing, and promotion of off-label uses of prescription drugs. State attorneys general reached settlements with Abbott Laboratories, GlaxoSmithKline, Janssen Pharmaceuticals, Boehringer-Ingelheim Pharmaceuticals, Pfizer, and Amgen.
$1.5 billion civil and criminal settlement with Abbott Laboratories.
On May 7, 2012, forty-nine states
and the federal government entered into two settlements with Abbott Laboratories related to the off-label
marketing of the drug Depakote. The first settlement was a $1.5 billion civil and criminal settlement
related to the illegal off-label marketing of the drug and false claims made by Abbott Laboratories to
Medicaid and other federal healthcare programs. Abbott Laboratories agreed to pay the states and the
federal government $800 million in civil damages and penalties to compensate Medicaid, Medicare, and
various federal healthcare programs for harm suffered as a result of its conduct. Abbott Laboratories also
pled guilty to a violation of the Food, Drug, and Cosmetic Act (FDCA) and agreed to pay $700 million in criminal fines.
The second settlement was a $100 million civil consumer protection settlement with forty-five states to resolve allegations that Abbott Laboratories engaged in unfair and deceptive practices when it marketed Depakote for off-label uses. The settlement was the largest consumer protection settlement ever reached with a pharmaceutical company at the time.
$3 billion civil and criminal settlement with GlaxoSmithKline.
In the largest pharmaceutical
settlement of the year, GlaxoSmithKline (GSK) entered into a $3 billion settlement on July 3, 2012 with
forty-five states and tto resolve allegations that the company engaged in various
illegal schemes related to the marketing and pricing of drugs it manufactured.
The $3 billion settlement included payment of $2 billion in damages and civil penalties to compensate state and federal healthcare programs for harm allegedly suffered as a result of the illegal conduct. In addition, GSK agreed to plead guilty to federal criminal charges related to drug labeling and FDA reporting and to pay a $1 billion criminal fine.
The state attorneys general involved and the federal government alleged that GSK engaged in a pattern of unlawful marketing of certain drugs for uses unapproved by the Food and Drug Administration (FDA), making false representations regarding the safety and efficacy of certain drugs, offering kickbacks to medical professionals, and underpaying rebates owed to government programs for various drugs paid for by Medicaid and other federally-funded healthcare programs.
$181 million civil settlement with Janssen Pharmaceuticals.
On August 30, 2012, Janssen
Pharmaceuticals, Inc. and its parent company Johnson & Johnson entered into a $181 million settlement
to resolve charges that they engaged in deceptive and misleading practices when they marketed anti-
psychotic drugs Risperdal and Invega for off-label uses. The settlement involved thirty-seven states,
includiand and represented the largest multi-state consumer protection-
based pharmaceutical settlement in history.
$95 million civil settlement with Boehringer-Ingelheim Pharmaceuticals.
On October 25, 2012,
Boehringer-Ingelheim Pharmaceuticals, Inc. entered into a $95 million settlement with all states and the
The settlement resolved allegations that Boehringer-Ingelheim engaged in a pattern
of unlawfully marketing the drugs Aggrenox, Atrovent, Combivent and Micardis for uses not approved by
the FDA, making false statements about the cost effectiveness for the drug Atrovent, and offering
kickbacks to medical professionals.
$42.9 million civil settlement with Pfizer.
On December 12, 2012, Pfizer Inc. entered into a $42.9
million settlement with thirty four states, includia to resolve allegations that the
company engaged in unfair and deceptive trade practices while promoting the drugs Zyvox and Lyrica.
As part of the consent judgment, Pfizer agreed to reform how it marketed and promoted Zyvox and
$612 million civil and criminal settlement with biotech firm Amgen.
On December 19, 2012, Amgen
Inc. entered into a $612 million agreement with all states and tto settle charges
that from 2001 to 2011 Amgen inaccurately reported and manipulated prices for the drugs Aranesp,
Enbrel, Epogen, Neulasta, Neupogen and Sensipar, promoted sales of several drugs for unapproved
uses, paid kickbacks to health care professionals, and caused the submission of false claims by doctors
for reimbursement from Medicaid and Medicare and other federal health care programs. Amgen agreed to pay an additional $150 million in fines and forfeitures to federal authorities for criminal conduct and pled guilty to a misdemeanor charge for introducing a misbranded drug into interstate commerce.
DECEPTIVE MARKETING AND PRICE FIXING
Other actions by state attorneys general involved the alleged misleading marketing of consumer products and price fixing of electronic components.
$45 million settlement with footwear manufacturer Skechers.
On May 16, 2012, Skechers, USA, Inc.
entered into a $45 million dollar settlement with forty-five states and trelated to deceptive and misleading marketing practices. The states and the FTC alleged that Skechers
engaged in deceptive and misleading practices when it marketed its line of shoe products as providing
certain health and medical benefits without scientific evidence. The settlement allocated up to $40 million
for refunds to consumers who purchased the shoes and required Skechers to pay an additional $5 million
to the states.
$571 million settlement related to Liquid Crystal Display price fixing.
On July 12, 2012, Toshiba
Corp.; LG Display Co., Ltd.; and AU Optronics Corporation entered into settlements totaling $571 million
with twenty-four states and private plaintiffs to resolve allegations that the companies engaged in price
fixing of flat screen LCD (Liquid Crystal Display) panels found in monitors, laptops, and televisions. The
settlements follow ones reached in December 2011 with seven leading LCD manufacturers, including
Hitachi, Ltd.; Samsung Electronics, Co., Ltd.; and Sharp Electronics Corporation for $553 million, bringing
the total recovery to more than $1.1 billion.
PREDICTIONS FOR 2013
State AGs continue to be focused heavily on the financial services industry and the financial crisis. This is not surprising given that many of the AGs ran on platforms to pursue aggressively persons and entities believed to have added to the financial crisis.
CREDIT RATING ENFORCEMENT ACTIONS
Federal and state actions against credit rating agencies.
On February 5, 2013, the U.S. Department
of Justice (DOJ)in the Central District of California against a major credit rating agency,
alleging that the firm defrauded investors in residential mortgage-backed securities (RMBS) and
collateralized debt obligations (CDOs) by issuing inflated ratings that misrepresented the securities’ true
credit risks, and by falsely representing that its ratings were uninfluenced by its relationships with
investment banks. According to the complaint, the ratings agency publicly represented that its ratings of
RMBS and related CDOs were objective and independent, notwithstanding the potential conflict of
interest posed by the agency being selected to rate offerings by the investment banks that also sold those
In conjunction with the DOJ’s action, several state attorneys general filed similar suits in their respective state courts. The attorneys general of South Carolina, and brought lawsuits that alleged violations of various state laws related to the same general conduct outlined in the federal complaint. In particular the attorneys general alleged that that the ratings
agency defrauded investors, including state pension funds, by inflating ratings of certain RMBS and CDOs for private gain, while publicly maintaining that the ratings were objective assessments of the risks posed by the securities. The attorneys general for New York and Massachusetts reportedly are considering pursuing actions. Three states are continuing to pursue similar, previously-filed suits against the same credit rating agency.
Depending on the outcome(s) of all of the lawsuits and investigations known to date, it is likely that other ratings agencies also may come under scrutiny from several state attorneys general and federal government agencies.
LIBOR RATE MANIPULATION ALLEGATIONS
AG inquiries and subpoenas concerning alleged LIBOR (and other) rate manipulation.
five state AGs reportedly issued document requests and subpoenas regarding alleged LIBOR
manipulation that potentially had caused injury to returns received by state pension funds. Recent
settlements between the federal government and banks relating to LIBOR likely will prompt increased
activity by state attorneys general. Private lawsuits filed by Freddie Mac and some pension funds also
may prompt actions by state AGs and other regulators.
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