DOVER – The federal government should adopt rules that protect consumers from mandatory arbitration clauses in important contracts, Delaware Attorney General Beau Biden and his colleagues in 15 other states wrote in a letter sent this week to the U.S. Consumer Financial Protection Bureau.

The mandatory arbitration clauses are inserted by financial institutions into critical contracts for essential financial products, such as credit card, payday loan and checking account agreements. The language either has the effect of prohibiting the consumer from pursuing a claim against the financial institution in court or makes it prohibitively expensive by restricting the consumers’ rights to form a class-action lawsuit. Also, unlike court proceedings, arbitration matters are usually decided in secret and the decisions are not publicized.

As the chief consumer protectors of their states, the Attorneys General asked CFPB Director Richard Cordray to protect consumers’ fundamental rights to assert their claims in court in their letter.

“The need for regulations to protect the public interest has never been so great,” the Attorneys General wrote. “Over the past decade, judicial decisions and business practices have diminished consumers’ rights and bargaining power with respect to contracts for financial services. ”

The letter, which was organized by Delaware Attorney General Beau Biden, Massachusetts Attorney General Martha Coakley and Kentucky Attorney General Jack Conway, was sent to the CFPB as part of the agency’s research into mandatory arbitration clauses. The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act requires the agency to conduct extensive research before determining whether mandatory arbitration clauses are harmful to consumers before issuing any regulations.

“As Delaware’s chief consumer protector, it is my job to speak up for Delawareans and look out for their interests,” Biden said. “We have made significant progress in strengthening Delaware’s consumer protection laws. The federal government also has an important role to play in protecting consumers. These mandatory arbitration clauses can be harmful to consumers and can deprive them of important rights.”

Financial institutions tuck the arbitration into the fine print of contracts and consumers often are not even aware of what they are agreeing to. Financial institutions often make it mandatory that consumers agree to submit to the arbitration process before opening a checking account or issuing a credit card, so consumers often have no real way to negotiate or otherwise insist on protecting their rights.

“Mandatory pre-dispute arbitration is procedurally unfair to consumers, and jeopardizes one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims,” the Attorneys General wrote to Cordray, himself a former Ohio Attorney General. “These contractual requirements are neither voluntary nor readily understandable for most consumers.  Often consumers do not recognize the significance of these provisions, if they are aware of them at all. “

In addition to Delaware, Massachusetts and Kentucky, the following states also signed onto the letter: California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

A copy of the letter is available here on Attorney General Biden’s Web site:  http://1.usa.gov/1xGl6WS

Delaware Dept. of Justice, representing  DNREC Secretary O’Mara, serves Mike Davidson Enterprises, LLC with state’s first Chronic Violator Complaint

DOVER (March 21, 2014) – After repeatedly disregarding environmental compliance orders and flouting other regulatory requirements from the Delaware Department of Natural Resources and Environmental Control, Mike Davidson Enterprises, LLC, a resource recovery and recycling facility in Camden, has been served by the Delaware Department of Justice and the Attorney General’s Office with the state’s first Chronic Violator Complaint. The complaint seeks $8.3 million in restitution to cover the costs of loading, transportation, and proper disposal of the more than 100,000 tons of material on the premises at Mike Davidson Enterprises, LLC (MDE) and imposes an administrative penalty of up to $10,000 per day for each violation against MDE as a chronic violator.

The Chronic Violator Complaint was served after MDE continually “demonstrated an unwillingness to comply with a resource recovery permit issued by the Solid and Hazardous Waste Management Section, and engaged in a pattern of willful neglect and reckless disregard” for DNREC’s regulatory programs.

“Designating a facility as a chronic violator is an enforcement tool of last resort to be used when all other regulatory authorities have failed to achieve compliance,” said DNREC Secretary Collin O’Mara. “The reckless actions of MDE combined with their willful disregard for our numerous enforcement efforts to protect public health and the environment through all other available options fulfills the definition of a chronic violator. We will work with Attorney General Beau Biden to see this case to conclusion in ensuring that the citizens of Delaware are not left with an environmental and economic burden.”

“Polluters cannot be allowed to treat fines as simply a cost of doing business,” said Atty. Gen. Biden, whose office worked with legislators to update the state’s Chronic Violator law in 2011. “Those who ignore our environmental protection laws and repeatedly illegally pollute our air, water and soil will face significant financial consequences. Protecting our natural resources has a direct impact on Delawareans’ quality of life. The Department of Justice looks forward to working with Secretary O’Mara to hold chronic polluters accountable.”

The chronic violator complaint notes that compliance violations at MDE dating back to January 2010 – just two months after MDE received a resource recovery permit from DNREC – have been totally disregarded by the facility. Fourteen more compliance assessments by DNREC through May 2012 all showed continuing violations at the facility. A cease and desist order issued by Sec. O’Mara in June 2012 required that MDE take immediate action regarding contamination of the site by arsenic and chromium; it too was disregarded.

Two months later, a Secretary’s Order and Notice of Conciliation was issued by DNREC directing MDE to cease distributing its contaminated mulch product, to remove the contaminated mulch from the premises, and to provide assurance that the site was not contaminated by excessive levels of arsenic, chromium, or PCB’s. MDE declined conciliation and requested a hearing before the Environmental Appeals Board – which found in favor of DNREC.

In a Secretary’s Order issued April 29, 2013, Sec. O’Mara upheld suspension of MDE’s resource recovery permit while allowing the company three months to bring the facility into compliance with the permit requirements and applicable law, with the suspension in effect until compliance could be certified by DNREC. MDE was warned, according to the complaint served by the Attorney General’s office, that “failure to bring the facility into full compliance within three months could result in substantial daily penalties and commencement of the process to designate” Mike Davidson Enterprises LLC as the state’s first chronic violator.

Some three months later, on August 9, 2013, Secretary O’Mara revoked MDE’s permit, “due to the complete failure to comply with” DNREC’s enforcement actions. Cited in the revocation were MDE’s improper storage and failure to dispose of over 100,000 tons of waste; exceeding analytical parameters for Arsenic, Chromium, and PCBs; failure to submit periodic reports as required; storing large quantities of solid waste outside the permitted area; improper acceptance and storage of prohibited waste; and grossly inadequate financial assurance. Sec. O’Mara also observed that approximately 70,000 tons of waste had been illegally added since the notice of violation in May 2012, which detailed the existing violations and the actions required to correct them.

MDE “clearly chose to operate the facility as an unauthorized, mismanaged landfill, not the recycling facility that was intended,” Sec. O’Mara noted in the order. MDE continued over time to ignore all orders to remove the waste material and to remediate the site. Showing further disregard, MDE owner Mike Davidson abandoned the Camden facility, leaving massive piles of waste behind. Last month the waste piles caught fire and burned, then smoldered for days.

According to the chronic violator complaint, “Given the revenue generated under (MDE’s) plan of operation, there is no indication that any of the violations are attributable to inadequate capitalization or funding. Simply put, (MDE owner Mike Davidson) has had the resources to run the operation cleanly and according to his own plan and the terms of the permit, but has chosen instead to retain such funds for his own use, rather than make necessary investments in the business. Noncompliance here is not attributable to any inability to modernize or maintain the facility or its mechanical integrity, or to any lack of training or risk management; but rather an intentional refusal to respect the law.”

Delaware’s Chronic Violator Complaint law was modernized by the 146th General Assembly through Senate Bill 92 with House Amendment 1, sponsored by Senator David McBride and Representatives Michael Mulrooney, Quinn Johnson, and Debra Heffernan.

Dover – Delaware Attorney General Beau Biden announced today that his office has launched a “Freedom of Information Act Roadshow” to give presentations on Delaware’s open government laws.

The Roadshow presentations will be conducted by a Deputy Attorney General who has expertise in the Freedom of Information Act. The presentations will help educate members of the public, government officials and government employees about their rights and responsibilities under Delaware’s open government laws. Sessions will cover a wide range of FOIA topics and include a question-and-answer session.

“Upholding Delaware’s open government laws is one of the Attorney General’s Office’s most important duties,” Biden said. “We have worked over the past several years to give Delawareans more information about FOIA and to make it easier for members of the public to obtain the information the law says they should have. These FOIA Roadshow presentations will help elected officials, government employees and the public better understand their rights and responsibilities.”

Biden’s office will conduct the Roadshow presentations for county and municipal governments, other public bodies and interested organizations. If you are interested in having a FOIA Roadshow presentation for a governmental body that you serve on or a presentation for a group of which you are a member, send an email to OpenGovernment@delaware.gov. Biden’s office will give a Roadshow presentation on Feb. 12 for members of the Georgetown Town Government staff, and future presentations will be schedule soon throughout the state. Upcoming Roadshow presentations will be listed on the Attorney General’s web site.

The FOIA Roadshow initiative is the latest effort by Biden to promote knowledge of Delaware’s Freedom of Information Act and promote open government. Previous efforts include:

• Launching, in January of this year, a new interactive Web portal to increase Delawareans’ access to information about the State’s open government laws. The site, opinions.attorneygeneral.delaware.gov, contains Opinions issued by the Attorney General’s Office since 1995.
• Successfully suing the Camden-Wyoming Sewer and Water Authority in 2011 to force it to comply with the Freedom of Information Act after it denied citizens’ attempts to obtain public information about its operations.
• Championing legislation in 2010 that permits citizens to petition the Attorney General’s Office to address FOIA-related complaints against State agencies.  Under prior law, citizens with open government complaints against State agencies were required to appeal to the Courts at their own expense.

Wilmington – Attorney General Beau Biden indicated today that same-sex marriages performed in Utah are valid under Delaware law:

“Marriage equality is the law in Delaware and I strongly believe that individuals outside our State borders should be equally free to choose whom to love and whom to spend their lives with. More than 1,300 marriages of same sex couples were legally performed in Utah between December 20, 2013 and January 6, 2014 after couples received marriage licenses by Utah authorities. It is our position that these marriages are and should be recognized as valid under Delaware law.”

U.S. District Court for the District of Utah ruled on December 20, 2013 that Utah’s prohibition on same sex marriage was unconstitutional, and for the next 17 days until the U.S. Supreme Court issued a stay on performing same sex marriages in Utah, more than 1,300 same sex couples were legally married after obtaining valid marriage licenses from Utah officials.

Biden was a strong supporter of marriage equality legislation enacted last year in Delaware and, most recently, last October he and 13 State Attorneys General filed a brief in the U.S. Supreme Court arguing that bans on same-sex marriage in Hawaii and Nevada violate the federal constitution’s 14th amendment and should be struck down. State laws in Hawaii and Nevada provide many rights and protections for same-sex couples, but deny them the status of marriage. The brief argued that withholding the title of marriage consigns gay and lesbian individuals and their families to second-class status and unfairly withhold the social benefits and cultural significance associated with marriage. It was one of three Supreme Court briefs Biden signed last year supporting the freedom to marry for all couples and arguing that laws discriminating against same-sex couples are unconstitutional.

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Wilmington – Delaware Attorney General Beau Biden announced today that his office has launched a new interactive Web portal to increase Delawareans’ access to information about the State’s open government laws.

The site, at http://opinions.attorneygeneral.delaware.gov, contains Opinions issued by the Attorney General’s Office since 1995 in response to complaints that state and local governmental bodies may have violated Delaware’s Freedom of Information Act (FOIA).  While these Opinions were previously posted to the Attorney General’s website, they were not posted in a searchable format.  The new user-friendly portal may be searched by date, statutory reference, or keywords.

Biden’s office regularly receives inquiries about past FOIA Opinions from the news media, advocates, and other members of the public.

“We are committed to ensuring that Delawareans have access to the information they are guaranteed under the law,” said Biden, whose office enforces FOIA.  “Our new Web site allows members of the news media and the general public to search FOIA Opinions and find answers to their Freedom of Information Act questions quickly and easily.”

The new FOIA Opinions portal is the latest effort by Biden and his office to support transparency, access to public information, and open government.  In 2011, Biden successfully sued the Camden-Wyoming Sewer and Water Authority to force it to comply with the Freedom of Information Act after it denied citizens’ attempts to obtain public information about its operations.  In addition, in 2010, Biden championed legislation that permits citizens to petition the Attorney General’s Office to address FOIA-related complaints against State agencies.  Under prior law, citizens with open government complaints against State agencies were required to appeal to the Courts at their own expense.

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