Compliance enforcement for sale?

Trial lawyer Reuben Guttman questions how America’s attorney generals and the political organisations with which they associate raise funds.

Sometimes the press has a way of seeing the tip of the iceberg without enquiring into the breadth and depth of the whole mass. Such is the case with Pam Bondi, Florida’s attorney general. Amidst her purported investigation of Trump University, she took a $25,000 campaign contribution from Donald Trump’s Foundation. On the face of it, the payment violated federal law because charitable foundations cannot use their money for political campaign contributions. To make matters worse, while the New York State attorney general embarked on litigation against Trump University, Bondi chose not to jump into the fray. While it does not look good, this is perhaps the tip of the iceberg. So what’s underneath the tip?

Compliance enforcement at the state level is either for sale or has the appearance of being for sale. And as lawyers are taught in law school, even the appearance of impropriety has the capacity to impact confidence in the rule of law.

State attorney generals control the enforcement spigot. They make threshold decisions about whether to enforce a law, whether a set of facts even constitutes a violation, and whether enforcement should be privatised through retention of outside law firms.

Given their roles in making critical decisions about law enforcement, one would think that efforts would be taken to ensure that attorney general decision making is not tainted by the appearance of impropriety. Curiously, rather than steer clear of that appearance, attorney generals have institutionalised it through creation of the Republican Attorney Generals Association (RAGA) and the Democratic Attorney Generals Association (DAGA). These organisations – the officers of which are elected attorney generals – raise funds from some of the very individuals and corporations who are within the orbit of the attorney general enforcement authority.

Through various functions, RAGA and DAGA arrange settings for regulators to mingle with the regulated. This year, RAGA has events scheduled at the Broadmoor Resort in Colorado, a retreat at Pebble Beach, California and a meeting at Omni Barton Creek in Austin, Texas.  Meanwhile DAGA will be holding a reception and dinner at the Four Seasons Hotel in Washington, DC, a 2017 winter conference in Fort Lauderdale and a spring 2017 conference at the Nines Hotel in Portland, Oregon.

A glance at information gathered by the Center for Responsive Politics provides insight into DAGA’s funders and a hint at with whom the Democratic AG’s mingle. Funders range from large pharmaceutical companies – some of which have been the target of investigations and compliance enforcement – to a range of law firms, some of which have represented state agencies and even the offices of attorney generals.

A 2014 membership benefits breakdown by RAGA, disclosed by the New York Times, lists benefits accorded to those whose annual contribution is $125,000. Members of the “Edmund Randolph Club” get a “quarterly call with a featured attorney general,” the “opportunity to submit issue briefing topics and to be a panellist at a RAGA National Meeting,” and “Access to the annual RAGA (2014) retreat in San Diego.” For the record, Edmund Randolph was the first attorney general of the United States.

For its part, the DAGA website makes no bones about selling access to the offices of the attorney general the website claims to be the “second most powerful in state government.” The website states that as a supporter of DAGA, you will enjoy a list of benefits including “Issue conferences,” “AG roundtables,” “political updates,” and a “Democratic AG Directory” where “DAGA members receive a comprehensive directory of all Democratic Attorney Generals and their key staff and office contacts.” The description of the AG Roundtables makes clear that they are designed to “provide a unique opportunity for focused conversation with specific AG’s in small settings.”

The RAGA website is clear about its mission: to get Republicans elected as attorney generals. This year RAGA has focused its efforts on the race for North Carolina’s attorney general. Rather than merely promoting the qualifications of the Republican candidate, RAGA has gone one step further and launched a website dedicated to the Democratic candidate, Josh Stein. The site is called ExtremeHarvardRadical.com.  This so-called “extreme radical” is a North Carolina state senator who spent seven years as senior deputy attorney general of North Carolina and was honoured by both Mothers Against Drunk Driving and the American Association of Retired Persons. Yes, Stein is guilty of securing degrees from Harvard Law School and Harvard’s Kennedy School of Government. His campaign website also discloses that he is Jewish and that he and his wife belong to a Synagogue, which makes one wonder if calling him a “Harvard radical” is a dog whistle for something else?

The DAGA site has a more vanilla message about elections: there are 27 Republican AG’s and 24 Democratic AG’s with key races in nine states this year, including North Carolina.

Placed in context, here is a message for those nine new AG’s: Maybe you should make a clean break from accepting campaign funding from those whom you regulate? And maybe membership in DAGA or RAGA is not something to brag about?

And what about Pam Bondi?  It turns out that she is the immediate past chair of RAGA’s Executive Committee.

Reuben Guttman is a trial lawyer and founding partner at Guttman, Buschner & Brooks.

Reuben A. Guttman

rguttmanReuben A. Guttman
Senior Founding Partner

(202) 800-3002
rguttman@gbblegal.com

Practice Areas
Consumer Law
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Complex Employment and Labor
Civil Rights

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Emory Law School (J.D., 1985)
University of Rochester (BA, 1981)

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Sitting with Ralph

Trial lawyer Reuben Guttman describes a meeting with renowned lawyer and political activist Ralph Nader.

Half a century after publishing Unsafe at Any Speed, a book exposing the hazards of General Motor’s Corvair, consumer advocate Ralph Nader is holding an anniversary celebration in the form of what he calls a “civic mobilisation.” The event will be held at Washington DC’s Daughters of the American Revolution (DAR) Constitution Hall, 26-29 September, 2016.

The DAR Hall itself is not without historic significance. Renowned African American singer Marian Anderson appeared there a number of times. But that was after 1939, when she had been denied the right to appear on the DAR stage and as a result thousands of DAR members, including First Lady Eleanor Roosevelt, resigned their membership. Anderson instead sang on the steps of the Lincoln Memorial.

Nader has himself been a slice of American history. He is not just a consumer advocate but, at least for my generation, has been “the” consumer advocate. His trajectory was made possible by his own efforts, those he assembled to work with him or for his causes, and not because of his ties to pre-existing institutions or parties. Fifty years after the publication of Unsafe at Any Speed, Ralph Nader is an American institution.

And so when Chris Nace, one of the nation’s leading trial lawyers, asked me to sit with Ralph Nader and a handful of other trial lawyers to hear about Nader’s plans for the “civic mobilisation,” I could not resist the opportunity. Our paths had crossed at a distance over the years through various interactions with his organisations, but I had never really had the opportunity to talk with him in a small group setting. Still, Nader seemed part of my orbit. Back in elementary school, I remember that our Weekly Reader had a feature story on “Nader’s Radars,” a group of young lawyers investigating corporate abuse. I was proud to raise my hand and tell my teacher that my older brother was one of them and working for Nader’s Center for Study of Responsive Law. Many years after I became a lawyer, I had the opportunity to serve as outside litigation counsel to the Oil, Chemical & Atomic Workers Union (OCAW); the union whose members or leaders included whistleblower Karen Silkwood and Tony Mazzochi, the father of the Occupational Safety and Health Act. The OCAW leadership recognised the symbiotic relationship between organised labour and the consumer movement and within the OCAW circles, Nader, or just “Ralph,” was a moral compass.

At the head of a conference table of trial lawyers at the law offices of Paulson & Nace, Nader talks about tort law under siege. His efforts and use of citizen’s suits and tort law have led to safer consumers goods, from automobiles to children’s toys, and yet Nader is mystified that the proponents of these suits are in some circles characterised as ambulance chasers while those that defend the abuses of corporate greed are deemed “white shoes” lawyers.

He talks about the compulsory arbitration which is privatising the judicial system and eliminating the published precedent that forms the backbone of the common law tradition. He muses about the ethics of corporate lawyers – as officers of the court – who bolt compulsory arbitration clauses into contracts for consumer goods and services and thus eliminate any right to adjudication in an open court of law, including trial by jury. He notes how even his Harvard Law School classmate, Professor Arthur Miller, one of the most cited experts on the Federal Rules of Civil Procedure, has written about the Supreme Court rulings on class actions, and pleading and summary judgement standards that have tipped the litigation playing field in favour of large corporations and against consumers.

At 82, Nader is still an imposing physical and intellectual presence. He is tall and trim and speaks forcefully about the way the judicial system ought to work.

Nader talking about the practice of law is like listening to an Ivy League Law School Professor from the movie The Paper Chase. And yet, ironically, Nader – who wants to address issues that impact every day consumers – may very well be too practical in terms of his goals to be a tenured professor at a contemporary American Law School. Would US News – which ranks law schools – even give bonus points to a school that placed Nader on its faculty? For his September “civic mobilisation,” Nader would welcome the attendance of law students, but hints at concern that the modern legal theorists who serve as professors in our nation’s legal institutions will not see value in encouraging students to forgo class and listen to talks from some of the nations’ leading practitioners, whistleblowers and scholars who are involved in the practical application of consumer or tort law.

For a Washington DC gathering, the sit down with Nader is an aberration. There is no discussion of compromise or even fund raising. The talk is simply about getting the word out about the “civic mobilisation” and filling the 3,500 seats at Constitution Hall. I wonder, of course, whether such a gathering will make a difference, but remind myself that change is incremental and few people in American history have driven change impacting everyday life as much as Ralph.

Insurers May Be Down on the ACA’s Exchanges . . . but they should be careful what they wish for

Last month, Aetna announced that it would drastically reduce its participation on the Affordable Care Act (ACA) exchanges in 2017 because of larger-than-expected losses: it will go from 15 states to four. This follows similar decisions by UnitedHealth Group and Humana. As a result, more than one third of the exchanges next year will have only one participating insurer, so no competition at all. As early as May, even before the insurers’ announcements, analysts were predicting double-digit premium increases in 2017.

Why is this happening?

The Obama administration, as well as stalwart supporters in the policy community, have rushed to assure us that nothing much is happening: some bumps along the way were to be expected in such a grand experiment, and the Department of Health and Human Services (HHS), working with other stakeholders, will make it right.

Maybe.

Keep in mind that the whole point of the ACA was to placate private, for-profit health insurers, the group that destroyed Hillary-care in the 1990’s. (Remember Harry and Louise?) The companies did not want to lose their customers in the individual market — the healthy and the wealthy — and those customers, who had qualified for insurance, wanted to keep it.

But before the ACA, something like 40 million Americans had no access to health insurance, let alone healthcare; many more were underinsured. People demanded better. Centrist Democratic leaders — today we would call them the political elite — were determined to show that everyone could be adequately covered by commercial health insurers competing in a private market. So they filled the ACA with features designed specifically to make the new system attractive to commercial insurers.

First and most important, the federal government subsidized premiums for those with incomes under 400% of the federal poverty level ($97,000 for a family of four in 2016) — taxpayer funds that went directly to insurers. In addition, the ACA included three different programs to protect insurers from unusually costly patients (and simultaneously to prevent companies from cherry-picking healthy customers). These were known as the three ‘R’s: reinsurance, risk corridors, and risk adjustment. Only risk adjustment, under which insurers with a higher proportion of healthy customers compensate those with a sicker cohort, is permanent; the other two programs expire at the end of the year.

In exchange for these protections, insurers were required to offer every plan at the same price to all customers — that is, all plans were community-rated, with limited adjustments only for age and smoking status. No more pre-existing condition exclusions — patients with chronic illnesses could be charged no more than healthy customers. This is far and away the most popular feature of the ACA.

Nevertheless, 3 years in, insurers are complaining of losses, and voting with their feet. To reverse the downward momentum, HHS is tweaking risk adjustment, and adding a program to reimburse costs over $2 million for a single individual (to be shared among insurers).

ACA supporters have more ideas: greater outreach to eligible young, healthy people; higher penalties for failure to enroll; fewer required benefits; narrower networks. Insurers would like to adjust ratings upwards by, for example, charging the oldest customers five times more than younger ones, instead of three times more; or obtaining government reinsurance for especially costly patients; Hillary has suggested higher taxpayer-funded subsidies, and perhaps a “public option”.

Many of these measures would increase the cost of exchange policies and/or reduce their value. But the current policies are not great insurance: premiums are high. In 2015, 86% of enrollees received subsidies. Only 2% of eligible families who did not qualify for subsidies enrolled. Moreover, many families cannot access the benefits they have paid for because of high out-of-pocket expenses, especially deductibles.

The average deductible for a silver plan in 2015 was $2,994 — this in a country where 46% of families could not manage $400 for an emergency without borrowing the money or selling something. The federal limit next year for out-of-pocket expenses (including deductibles and co-pays, but not premiums) for a family is $14,300.

Under the ACA, the goal for insurers is to price their policies low enough to attract the healthy, but high enough to cover the costs of the sick. But even with giant computers, Big Data, and armies of actuaries, that may not be possible. It is certainly not the standard insurance business plan.

Commercial insurance works by charging individuals enough to cover their risk (with something left over for profit). High-risk people often cannot buy insurance at all. No one sells ordinary flood insurance to homeowners in a flood plain. We have Medicare for elderly and disabled people because they couldn’t get private health insurance. Insurers want to keep their healthy customers, and let someone else — high-risk pools, charity, the government — take care of anyone who gets sick.

But remember this: health insurance is not healthcare. Insurers are simply middlemen: if they disappeared — or were paid simply to track claims — and replaced by a Medicare-for-all system, everyone could still access healthcare. It is not clear that the value added by the industry is worth the cost, estimated at $350 billion. Spending that money directly on healthcare could improve our health, and eliminating public subsides to private insurers would reduce the deficit.

Insurers who are dissatisfied with the ACA: Be careful what you wish for.

Caroline Poplin, MD, JD, is an attorney and internist in Bethesda, Md. She is a former staff internist for the National Naval Medical Center, and currently practices medicine part-time at the Arlington Free Clinic in Virginia. She also Of Counsel & Medical Director at Guttman, Buschner & Brooks PLLC.

GBB Opens an Office in Wilmington, Delaware

GBB is delighted to announce the opening of its office in Wilmington, Delaware. Founding Partner Justin Brooks said: “The launch of our Delaware office will enhance our capabilities and ability to serve both institutional investors and corporate clients.” GBB also serves as Delaware local counsel in appropriate representations.