This week, Utah Attorney General Sean D. Reyes co-signed a letter to U.S. Senate Leaders Chuck Schumer and Mitch McConnell, encouraging them to support and pass the HALT Fentanyl Act (HR 467 / SB 1141). The letter was led by Virginia Attorney General Jason Miyares and Florida Attorney General Ashley Moody. 

As the letter highlights, the fentanyl issues across the United States of America have been exacerbated by the ongoing and heightened crisis at the southern border, where federal policies have allowed international cartels to smuggle countless loads of deadly drugs into our homeland. Those drugs, fentanyl, and other dangerous substances have spread into almost every community from coast to coast, wreaking havoc and destruction inside families and schools. The attorneys general write that “drug overdoses (in 2022) killed more than 100,000 Americans” and that “synthetic opioids like fentanyl caused 66% of those overdose deaths.” 

The HALT Fentanyl Act was recently passed by the U.S. House of Representatives with significant bipartisan support, and it is now pending in the U.S. Senate. The proposal would permanently enshrine all current and future fentanyl analogues as Schedule I drugs, ensuring “that law enforcement can continue to prosecute the sale and use of illicit fentanyl analogues.” The House bill was sponsored by U.S. Representative H. Morgan Griffith from West Virginia, and the Senate bill by U.S. Senator Bill Cassidy from Louisiana.  

General Reyes said: “The proliferation of fentanyl is one of the nation’s most serious issues, and governments across all jurisdictions must use every tool at their disposal to protect innocent Americans from this scourge. Passage of the HALT Fentanyl Act would give attorneys general greater abilities and resources to combat the rampant transmission of this drug and to defend our communities. I encourage all members of the U.S. Senate to consider this piece of legislation quickly.”  

In their letter, the attorneys general state, “The federal government’s response to this existential threat has been woefully deficient. As fentanyl has poured over the United States-Mexico border, the Department of Homeland Security chose to eliminate the very program designed to prevent transnational criminal organizations and gangs from exploiting migrants ‘to bring drugs, violence, and illicit goods into American communities.’ Indeed, the current Administration’s abject refusal to secure our border—one of the basic duties of any government—is a direct cause of this crisis.” 

Joining Miyares, Moody, and Reyes on the letter were the attorneys general of Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, West Virginia, and Wyoming. 

Read the letter here.

June 2, 2023

Today, Utah Attorney General Sean D. Reyes announced that 42 states, led by Wisconsin, have negotiated a nationwide $102.5 million settlement with Indivior, the maker of Suboxone.  Utah will receive about $3.4 million from the settlement.

Suboxone treats drug addiction.  In 2016 the States sued Indivior, alleging that it illegally switched the Suboxone market from tablets to an ingestible film format with new patent protection just before the orphan drug protection expired while attempting to destroy the tablet market to preserve its drug monopoly. A trial had been set for September 2023.

“Patent and orphan drug protection is important to encourage investment in new drugs,” said Attorney General Reyes, adding, “But when a company abuses those protections to prevent timely competition from generic drugs, we will take action to preserve the best choices for consumers and competition in the marketplace.” 

Indivior must pay the states $102.5 million under the agreement, which the Eastern District of Pennsylvania will submit for approval. In addition, Indivior is required to comply with negotiated injunctive terms, which include disclosures to the States of all citizen petitions to the FDA, the introduction of new products, or any change in corporate control, to ensure that Indivior does not engage in the same kind of conduct alleged in the complaint.

Wisconsin’s Assistant Attorney General for Antitrust, Gwendolyn Lindsay Cooley, is the lead attorney for the forty-two States, including Alabama, Alaska, Arkansas, California, Colorado, District of Columbia, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.  Utah is represented by Deputy Attorney General David Sonnenreich, Assistant Attorney General Marie W.L. Martin, and other members of the Antitrust and Data Privacy Section of the Utah Attorney General’s Office.

Read the details of the settlement here.

June 1, 2023

Today, the Utah Supreme Court upheld convictions against Torrey J. Green, who filed an appeal after a jury convicted him of sexual assault, rape, forcible sexual abuse, sexual battery, and object rape against six different women. In his appeal, Green claimed that each of the six cases should have been tried separately—without informing jurors of Green’s previous convictions. In addition, Green claimed that the trial court improperly admitted hearsay evidence and that his trial attorney performed ineffectively.

The Utah Supreme Court rejected Green’s arguments, concluding that Green’s trial was fair and that the six victims’ cases were tried correctly together. The court’s landmark ruling will also make it easier for prosecutors to admit evidence of similar acts of sexual against multiple victims in future sexual assault prosecutions.

Green was a football player at Utah State University and subsequently left USU to attend the Atlanta Falcons training camp. The victims came forward in 2016, citing similar stories of meeting Green online, dating, and then being forced into having sex.

June 1, 2023

Today, Utah Attorney General Sean D. Reyes joined a bipartisan coalition supporting individuals suing Merck & Co. for injuries they suffered using Merck’s osteoporosis drug Fosamax. 

The Plaintiffs claim they suffered atypical femur fractures after using the drug between 1999 and 2010, and Merck knew about the risk before putting a warning label on it in 2012. To recover for those injuries, they have filed claims under New Jersey state law.

The plaintiffs are appealing the U.S. District Court’s ruling that the claims of failure to warn of the risk of atypical femoral fractures were preempted because the Federal Drug Administration (FDA) rejected a warning label that discussed the risks of a stress fractures—a risk totally different than the atypical femur fractures the plaintiffs suffered in this case.

Attorney General Miyares and the other state attorneys general wrote that this decision “risks undermining the core principles of federalism and could prevent states from allowing their citizens to hold pharmaceutical companies to account for their actions.” 

As long as the states are not explicitly forbidden from exercising regulatory power to protect their citizens, the Constitution allows them to do so. The Federal Food, Drug, and Cosmetic Act does not expressly preempt state tort claims regarding prescription drugs.  State consumer protection against dangerous products such As pharmaceutical drugs is crucial to recovering drug hazards as states can encourage injured people to come forward with information and compensate them.

The coalition wrote that “giving agency action the sort of sweeping preemptive effect that the District Court gave it here threatens to shrink this important body of state consumer protection law.”

The following states joined Attorney General Miyares’ Coalition: Alaska, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New Mexico, Pennsylvania, South Carolina, Texas, Vermont, and Virginia. 

Read the amicus brief here.

May 30, 2023

Last week, the U.S. Supreme Court issued an opinion in Sackett v Environmental Protection Agency, giving a more thorough and constrained definition to the Waters of the United States within the Clean Water Act. Justice Samuel Alito wrote the ruling for the Court – with Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett concurring.  

The case involved a battle between two Idaho residents (the Sacketts) and the Environmental Protection Agency (EPA). The Sacketts attempted to backfill their property with dirt as an initial step for building a home. Still, they were stymied by the EPA due to its overbearing interpretation of Waters of the United States (WOTUS). The EPA claimed unconstitutional authority and jurisdiction over the Sacketts’ actions on their property – even threatening fines of $40,000 a day – because a nearby ditch emptied into a non-navigable creek, which emptied into Priest Lake – a navigable, intrastate body of water. Both the District Court and the Court of Appeals for the Ninth Circuit agreed with the EPA’s position, leading to the arguments at the U.S. Supreme Court.  

The U.S. Supreme Court, through Justice Alito’s opinion, held that the Clean Waters Act “extends to only those ‘wetlands’ with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.” The justices determined that “the wetlands on the Sacketts’ property are distinguishable from any possibly covered waters,” reversing the decision from the Ninth Circuit. 

Last year, Utah signed an Amicus brief to the U.S. Supreme Court, led by West Virginia and joined by 25 other states. The States asked the Supreme Court to reverse the Ninth Circuit’s ruling in this matter, making the case that the recent decisions offend states’ authority, conflict with the Clean Waters Act text, present serious Constitutional concerns, and burden both states and the public.  

General Reyes said: “I am pleased to see a majority of Supreme Court Justices reining in the Environmental Protection Agency. This case is vital for all western states and the vast number of dry creek beds around us. States have primary sovereignty over our waters, and this decision recognizes the significant federalism and constitutional concerns when EPA encroaches on that authority. The Sackett decision is an important victory for Utah property owners.”

Earlier this year, General Reyes joined 23 attorneys general in a lawsuit against the Biden Administration’s WOTUS rule attempting to expand federal authority over nearly every waterway in the nation. The attorneys general argued that the EPA’s newly promulgated WOTUS rule “goes beyond the power Congress delegated in the Clean Water Act, raises serious constitutional concerns, and runs roughshod over the Administrative Procedure Act.” If this rule were enacted, the definition of “navigable waters” would be fundamentally transformed to include ponds, certain streams, ditches, and other bodies of water under the Clean Water Act – as determined by the EPA and the Army Corps of Engineers. This case is still pending in federal court. 

Read the U.S. Supreme Court opinion here.

May 30, 2023

Last week, Utah Attorney General Sean D. Reyes joined a coalition of 27 state attorneys in urging Congress to schedule a vote on a resolution involving the Bureau of Alcohol, Tobacco, Firearms and Explosives rule regarding pistol stabilizing braces.

The coalition sent a letter to House Speaker Kevin McCarthy Thursday concerning the Congressional Review Act resolution for the ATF’s final rule—Factoring Criteria for Firearms with Attached Stabilizing Braces—urging the scheduling of a vote early “enough to complete the CRA process before the rule’s May 31, 2023, registration deadline.”

In February, West Virginia Attorney General Morrisey, who co-led the letter with Texas, led a coalition of 25 states and others in challenging the rule as unlawful, arbitrary, and capricious. The coalition’s motion to preliminarily enjoin the rule remains pending.

Stabilizing braces were designed to help people with disabilities use pistols. Since then, many others, including older persons, people with limited mobility, and those with smaller stature, have come to use the braces. These braces have been sold as firearms attachments for more than a decade, not subject to regulation.

The rule, however, affects almost all owners of combinations of stabilizing braces and pistols and handgun owners—many lawful gun owners use stabilizers to prevent some recoil when using firearms and to help with accuracy. An estimated 10 to 40 million pistols with stabilizing braces are presently in circulation nationwide, and the ATF’s rule requires nearly all of them to be registered with the federal government by May 31. 

“Although we generally defer to you on the schedule of the House, this issue is pressing and demands immediate action,” the coalition wrote to McCarthy.

West Virginia co-led the letter with Texas. They were joined by Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, and Wyoming.

Read a copy of the letter here.

May 29, 2023

Today, Utah Attorney General Sean D. Reyes is honoring those Americans who have not just fought for our flag but fallen for it. On Memorial Day, may we be reminded never to forget them and the ultimate price they paid for the liberty and prosperity we are blessed with.

Attorney General Reyes said: “America has lost many noble sons and daughters in the service to our nation.  One such Utahn is USMC SSgt Taylor Hoover. Taylor died in 2021 defending the Abbey Gate at Kabul airport.  After being hit by a suicide bomber, he spent the last bit of strength continuing to protect and aid others in the fight.

“We will never forget you, Marine! Watching you laid to rest in Arlington was one of the most sacred days of my life.”

May 27, 2023

After 12 years as an investigator for the Utah Attorney General’s Office, and 23 years in law enforcement, Internet Crimes Against Children (ICAC) Commander Alan White has retired.

This office congratulates Commander White and expresses a debt of thanks for his dedication and service

to the citizens of Utah in an effort to protect children from those who seek to exploit children.

Commander White has been a dedicated leader in the statewide effort to protect Utah youth from online predators at a time when the number of threats has increased significantly.   Last year, the ICAC Task Force more than 200 people with crimes related to trading online Child Sex Abuse material (CSAM), or attempting to meet minors for sex.

“It’s been an honor and a privilege to work with the professionals in the Utah Attorney General’s Office and with law enforcement around the state,” Commander White said.  “We are facing an overwhelming and disturbing problem growing rapidly.  I’m confident in the leadership facing those challenges and taking ICAC into the future.”

May 27, 2023

The Utah Attorney General’s office offers condolences to the family of Brent Burnett, a longtime employee who served 39 years in our office. (37 as an attorney and two as a clerk).

Brent worked most of his time in the Litigation Division, where he was Section Chief and is one of the first attorneys to work in the Civil Appeals Division in the office.   His wisdom and historical knowledge were invaluable and were missed after his retirement in 2021.

He was a proud father of six sons who were eagle scouts and was a leader in the Boy Scouts of America for 25 years.  Brent leaves behind his wife Terri Lee, seven children, and 20 grandchildren.

May 25, 2023

Today, in a unanimous opinion authored by Chief Justice John Roberts, the U.S. Supreme Court rendered a decision for 94-year-old Geraldine Tyler in Tyler et al, v. Hennepin County et al, reversing an earlier ruling from the United States Court of Appeals for the Eighth Circuit. 

The case arose in Hennepin County, Minnesota, after Tyler had been forced to vacate her condominium in 2010, moving into a senior community for safety concerns. Due to the relocation, she neglected to pay the property taxes on the property, which led to the County seizing her asset, foreclosing and selling the property for $40,000, and unjustly retaining all the proceeds from the sale – though the value of the property far exceeded her tax debt and associated interest and fees (which were approximately $15,000). 

Ms. Tyler argued that Hennepin County’s refusal to return the excess sale proceeds to her was a taking without just compensation as stipulated by the Fifth Amendment. The U.S. Supreme Court agreed with her position. 

Attorney General Sean D. Reyes led an Amicus Brief to the U.S. Supreme Court on behalf of Ms. Tyler for the States of Utah, Arkansas, Kansas, Kentucky, Louisiana, North Dakota, Texas, and West Virginia. The States argued that private property rights are essential to a free society, and when governments violate those rights, they destabilize the public’s trust in and respect for the system under which they live; and that the practice in a minority of states of confiscating surplus proceeds from a foreclosure sale, after the relevant delinquent taxes and fees are recouped, is just such a violation of these rights. 

As Chief Justice Roberts wrote for the Court, “The Takings Clause ‘was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ Armstrong, 364 U. S., at 49. A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more.” 

Read the opinion here.

Read Utah-led Amicus here.

Associated Press News story link here.