Benoliel & Becher paper on form contracts that allow firms to end contracts without explanation

Uri Benoliel of Ramat Gan Law School and Shmuel I. Becher of Victoria University of Wellington have written Termination Without Explanation Contracts. Here is the abstract:

Firms routinely terminate their contractual relationship with consumers. During 2019-2020, for example, Facebook terminated 5.4 billion accounts that were supposedly fake; WhatsApp announced that it is terminating 2 million user accounts per month for apparently spreading fake news; and Discord, an online communication platform, terminated 5.2 million user accounts for allegedly publishing spam and exploitative content.

Terminating accounts that facilitate and promote fake profiles, fake news, spam, hatred, improper content or cheating makes sense. However, past incidents and consumer complaints indicate that firms often terminate their relationship with consumers without explanation, which is socially undesirable. First, if firms fail to explain to consumers the cause for termination, a hasty, unfounded, and erroneous termination is more likely to occur. Second, erroneous contract termination, fueled by lack of explanation, may generate significant costs to consumers. These may include the loss of sunk investments, emotional costs, and switching costs. Third, termination without explanation may be based on discriminatory, yet non-transparent factors. Such terminations may disproportionately target and harm vulnerable consumers, while eroding imperative societal values.

Given these risks and costs, this Article marks the first attempt to systematically and empirically study the phenomenon we dub "termination without explanation contracts"; i.e., consumer agreements that allow firms to terminate their contract without disclosing the reason for termination. In doing so, the Article examines the contractual termination mechanisms of 500 sign-in-wrap contracts of the most popular websites in the United States. The results of our study show, inter alia, that the vast majority of these contracts are non-transparent termination without explanation contracts. We therefore propose to impose a duty to explain on firms. We also present a transparency index that captures key aggravating factors and can help tackle the issue from a holistic approach.

Phony IP claims advanced to block Medicare pricing transparency

by Paul Alan Levy

A couple of months ago, South Carolina lawyer B. Craig Killough advanced vague intellectual property claims in objecting to a blog post by a California health policy expert who commented on some aspects of the pricing policies being followed by Palmetto GBA, one of the companies retained by the federal Centers on Medicare and Medicaid Services to process Medicare claims by health providers in several states. Responding to Killough’s demand letter, blog author Bruce Quinn initially took down both the specific billing codes, replacing them with hyperlinks to the demand letter, and also removed his hyperlink to the underlying spreadsheet showing the full range of billing codes and reimbursement prices, which had been obtained from CMS and from Palmetto itself under the Freedom of Information Act. Feeling its oats, Palmetto appears to have been encouraged by Quinn’s apparent retreat to reach out to CMS to get it to send Quinn a letter seeking to  "claw back" the FOIA disclosures.

But Killough ducked both emails and phone calls seeking to elicit an explanation for his intellectual property claims. Unlike Killough, a FOIA staffer at CMS was at least courteous enough to respond to inquiry, but was unwilling to be specific about the basis for seeking return of the FOIA disclosures. Consequently, we have now pushed back against both demands, first explaining to Killough why its Palmetto''s claims are nonsensical, and then telling CMS that Quinn is not willing to give back the document that was released to him under the FOIA.

Quinn observed that Killough’s demand letter and the subsequent coverage of the demand (here, subject to paywall, and here) had brought his blog post far more page views than it had originally received. Once Quinn restores the link to the spreadsheet itself, Palmetto’s botched demand letter is likely to prove far more counterproductive to its claimed interests.

Tort liability and Covid-19

Law prof Betsy Grey and law student Samantha Orwoll have written Tort Immunity in the Pandemic. Here is the abstract:

A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.

FTC Commissioner Chopra & Samuel Levine: why the FTC should resurrect its penalty offense authority

FTC Commissioner Rohit Chopra and his attorney-advisor Samuel A.A. Levine have wiritten The Case for Resurrecting the FTC Act’s Penalty Offense Authority. Here is the abstract:

This article details why the Federal Trade Commission should resurrect one of the key authorities it abandoned in the 1980s: Section 5(m)(1)(B) of the FTC Act, the Penalty Offense Authority. The Penalty Offense Authority is a unique tool in commercial regulation. Typically, first-time offenses involving unfair or deceptive practices do not lead to civil penalties. However, if the Commission formally condemns these practices in a cease-and-desist order, they can become what we call “Penalty Offenses.” Other parties that commit these offenses with knowledge that they have been condemned by the Commission face financial penalties that can add up to a multiple of their illegal profits, rather than a fraction.

Using this authority, the Commission can substantially increase deterrence and reduce litigation risk by noticing whole industries of Penalty Offenses, exposing violators to significant civil penalties, while helping to ensure fairness for honest firms. This would dramatically improve the FTC’s effectiveness relative to our current approach, which relies almost entirely on another authority, Section 13(b). Section 13(b) does not allow the Commission to seek penalties against wrongdoers, and it is now under threat in the Supreme Court.

We demonstrate in this article that in a number of key areas, including urgent concerns like online disinformation, the Commission can deploy the Penalty Offense Authority immediately. This can increase deterrence, since firms will pay a significant price for engaging in unfair or deceptive practices previously condemned by the Commission. We also outline how the Commission can deploy this authority to combat emerging harms, including illegal targeted marketing and deceptive data harvesting.

We close with a call for a broader rethinking of the Commission’s approach to combatting corporate misconduct. By inventorying its existing tools and deploying them strategically, the Commission can begin to turn the page on its checkered record and regain the public’s confidence.

The continuing role of state courts in the age of CAFA

That's the topic of The (Surprisingly) Prevalent Role of States in an Era of Federalized Class Actions by law prof Linda Mullenix. Here is the abstract:

In enacting the Class Action Fairness Act of 2005, Congress intended to expand access to federal courts for interstate class actions by creating minimal diversity and removal jurisdiction. Congress stated that a purpose of CAFA was to “restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction.”

Despite CAFA, states have retained a role in addressing complex litigation aided by Supreme Court decisions recognizing the independent role of state courts in enforcing local legal norms.

Peacock Terms of Use include arbitration clause and cake recipe

by Jeff Sovern

Here. Which one do you think consumers are more likely to read? To understand? (HT: ContractsProf Blog)

Consumer law mask

Widman article examines whether state agencies changed their UDAP enforcement in the age of Trump

Amy Widman of Rutgers has written Protecting Consumer Protection: Filling the Federal Enforcement Gap, 69 Buffalo Law Review __ (2021) (Forthcoming). Here is the abstract: 

Since 2014, when a first-of-its-kind empirical study looked at how public enforcers use their authority under UDAP laws, the enforcement landscape has changed. Most notably, the Trump Administration has weakened enforcement on the federal level. In the wake of this political shift, many state enforcers rushed to fill the gap left by weak federal enforcement. At the same time, the state enforcers themselves experienced changes both internal (including changes to budgets and stated policy priorities) and external (electoral changes regarding state Attorneys General, changes to statutory authority, and other changes governing the enforcer’s authority).

This article presents findings from a follow-up study examining the public UDAP enforcement landscape in 2018. The principal finding from 2018 is that states employed substantially the same strategies toward UDAP enforcement as they did in 2014. This finding validates the central observation of both years’ studies of state UDAP enforcement: states can be characterized by distinct strategies of consumer protection enforcement.

This information alone offers insight into the remarkable stability of state UDAP enforcement, even across varied strategies and a changing landscape. Other findings also begin to shed light on how states might react to extreme changes in enforcement on the federal level. For example, even though six states have made public statements backed by concrete actions to attempt to fill an enforcement gap left by the absence of federal action, state enforcement case volume was up among all states. Public compensation, however, was down among all types of enforcement actions in 2018.

Finally, comparisons of enforcement case volumes and strategy across states that experienced other changes over the time period -- changes in leadership and statutory authority, for example -- mirrored the overall trend of an increase in enforcement coupled with a general strategic stability. Strategies as a whole do not seem closely aligned with partisan politics.

This study creates a needed point of comparison to the 2014 data, allowing stakeholders to ask deeper questions about how public enforcers should wield their discretion and authority to resolve consumer protection cases. With debt levels in America at an all-time high, and federal enforcement of consumer law at an all-time low, research-based action is urgently needed to sharpen our understanding of the role and potential effectiveness of institutions tasked with protecting consumers from fraudulent lending schemes and oppressive debt collection strategies as well as the myriad other types of consumer scams that lead Americans toward more debt. The data here give state officials and state-based reformers the information needed to maximize enforcement in a way that makes consumers’ lives better. 

New York adopts strong anti-SLAPP statute

by Paul Alan Levy

With a signature last week from Governor Cuomo, New York has become the latest state to enact a strong anti-SLAPP law.   Addressing flaws that came to the fore in our recent defense of Richard Robbins, the new statute considerably broadens the scope of speech covered by anti-SLAPP protections, and, requires a stay of discovery upon the filing of an anti-SLAPP motion, provides for the consideration of affidavits as well as pleadings in assessing whether there is “a substantial basis in law” for actions directed at protected speech, and requires, rather than simply permitting, awards of attorney fees when an anti-SLAPP motion is granted.

Unlike the anti-SLAPP laws in most states with such broad coverage, the New York statute does not contain exceptions for lawsuits aimed at commercial speech, suits filed in the public interest, or suits filed on behalf of state or local governments. It remains to be seen whether such amendments prove to be needed to prevent the application of the statute to cases far removed from the sort of oppressive lawsuits at which the sponsors were aiming, as enactment of such exceptions proved necessary in California after its pioneering anti-SLAPP law was enacted without those safeguards.

Do We Have To Tax Student Debt Forgiveness?

Student debt forgiveness is gaining traction among Democrats, with Senate Minority Leader Chuck Schumer calling on Joe Biden to forgive $50,000 of student debt via executive action during the first 100 days of his Presidency — that is, to adopt Senator Warren's plan from the primary.

Last night, Jason Furman—one of President Obama's top economists—tweeted that he opposed student debt forgiveness largely because debt forgiveness could be taxable income, undermining its goals. But, as others pointed out, Biden's Treasury Department would have authority over whether or not debt cancellation would be taxable income. Treasury has already provided a safe harbor for student loans that are cancelled through lawsuits or borrower defense to repayment (like when students were defrauded by predatory, for-profit colleges). You can read a paper by Georgetown Law Professor John R. Brooks arguing that Treasury has the statutory authority to exclude student debt cancellation from taxable income here.

Washington Supreme Court holds that it violates the state constitution to exclude certain workers from overtime pay

On the potential importance of state constitutional law: The Supreme Court of Washington has just held that the statutory exclusion of dairy workers from state overtime protections violates the state constitution. Read Martinez-Cuevas v. Deruyter Brothers Dairy. HT to Charlotte Garden.

Industry's first reactions to the CFPB FDCPA rules: "More treat than trick"

On Saturday, we posted links to consumer advocates' reactions to the CFPB's new debt collection rules. Want to know how the industry sees the regulations, at least at first? Go here, to AccountsRecovery.net. Here's a hint: "there appeared to be no provisions or restrictions in the rule that should cause collection agencies to lose a lot of sleep, if any."

CFPB new debt collection rules less bad than as proposed but still insufficiently protective of consumers

The new rules are here. NACA and other groups, calling the rules a "mixed bag for consumers," comment here. Consumer Reports ("CFPB rules fail to protect consumers from abusive debt collection harassment") comments here. The Bureau said it intends to issue more rules in December.

Dee Pridgen authors new edition of Consumer Protection Law in a Nutshell

West has published the fifth edition of Dee Pridgen's Consumer Protection Law in a Nutshell, the best short introduction to consumer protection law and an extremely useful volume for students and practitioners alike (disclosure: I commented on the manuscript of the fourth edition and coauthor a casebook with Dee). Here are some of the bigger changes from the fourth edition, which is also a review of the changes in consumer protection law over the four years since the last edition:

 

• Seila Law Firm v. CFPB, 2020 S. Ct. ruling on constitutionality of CFPB structure, single director terminable only for cause
• Pullback of Payday Lending Rule by CFPB
• New CFPB stored value/prepaid account rule, bringing these newer forms of consumer payment under the protection of Regulation E, requiring pre-purchase fee disclosures and other safeguards for combined prepaid/credit cards. Campus cards, used to distribute financial aid, receive some special protections as well under a Department of Education regulation.  
• Discussion of newer forms of electronic consumer payments, including Internet based peer-to-peer systems, mobile based systems, and so-called virtual or crypto currency.
• Details on the proposed CFPB rule implementing FDCPA, including provisions on collection of debts past the applicable statute of limitations, limits on telephone calls, and use of email and text messages for debt collection,
• 2017 U.S. Supreme Court case, Henson v. Santander Consumer USA, Inc., holding that debt buyers who are collecting their own purchased debts are not considered to be “debt collectors” under the FDCPA, and thus not subject to its requirements.
• Congressional veto of CFPB Rule banning class action waivers in arbitration clauses
• Regulatory status of “Fintech” (internet based) lenders, “earned wage advances,” and use of expanded creditworthiness factors by fintech lenders potentially resulting in discrimination
• Regulation of “native” ads and consumer reviews on social media
• FTC enforcement of the Restore Online Shoppers’ Confidence Act (ROSCA), which regulates negative option marketing on the Internet.
• FTC settlement with major multi-level marketer Herbalife, seller of dietary supplements
• New developments in enforceability of online contract terms, including proposed ALI Restatement of the Law of Consumer Contracts
• FTC’s record-breaking privacy enforcement action against tech giant Facebook
• New California comprehensive consumer privacy legislation.
• Historic multi-agency settlement with Equifax, to settle charges related to massive data breach involving consumers’ personal financial information
• Effect of constitutional Article III standing requirement for private lawsuits in federal court in cases involving federal consumer protection statutes, stemming from landmark U.S. Supreme Court decision involving FCRA, Spokeo, Inc. v. Robins (2016)
• New federal law requires Consumer Reporting Agencies to provide all consumers with an option to place a “security freeze” on their credit records, free of charge.
• Recent developments in TILA enforcement
• 2018 amendments to FTC Used Car Rule Buyers Guide

Adar & Becher paper proposes administrative oversight of consumer form contracts

Yehuda Adar of the University of Haifa and Shmuel I. Becher of the Victoria University of Wellington have written Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts. Here's the abstract:

This Article calls for a conceptual shift toward the scrutiny of exploitative consumer standard form contracts. Current approaches to consumer standard form contracts assume that imbalanced and unfair terms can be adequately challenged by aggrieved consumers and effectively scrutinized by vigilant courts. Some even believe that market forces and reputational constraints can deter firms from employing exploitative terms in their form contracts or dissuade them from actually relying on such terms. Criticizing these assumptions, the Article suggests supplementing the current means of addressing opportunistic exploitation in standard consumer contracts with a dynamic preventive machinery.

Specifically, we propose a professional system of administrative oversight over the content of consumer form contracts. The Article demonstrates how such a machinery can efficiently tackle the widespread use of unfair practices as well as unconscionable and plainly illegal terms. While not a panacea, such a regime has the promise of shifting the burden of confronting exploitation in consumer contracts from a feeble and ineffective system of private enforcement to a sophisticated and robust system of public oversight.

NCLC report: States that Put Families at Risk of Poverty During the Covid Crisis

The National Consumer Law Center issued a report on the impact of debt-collection during the pandemic and state laws that help, or harm, struggling families. From NCLC's press release:

As millions of families suffer job loss or struggle to pay bills during COVID-19, states have an important role in protecting them from seizure of essential wages and property to pay old debts. A new state survey from the National Consumer Law Center finds that not one jurisdiction’s laws meet basic standards so that debtors can continue to work productively to support themselves and their families. No Fresh Start 2020: Will States Let Debt Collectors Push Families into Poverty in the Wake of a Pandemic? surveys the exemption laws of the 50 states, the District of Columbia (D.C.), Puerto Rico, and the Virgin Islands that protect wages, assets in a bank account, and property from seizure by creditors. “By reforming their exemption laws, states will not only protect families from destitution but will promote economic recovery by enabling families to spend their money in state and local communities,” said Carolyn Carter, National Consumer Law Center deputy director and author of the report.

The COVID-19 pandemic has exposed the enormous gaps in the states’ exemption laws. Only when stimulus checks were deposited in families’ bank accounts and garnished by debt collectors did many states realize that they had no state laws to protect a basic amount in a family’s bank account. Once the pandemic recedes, families struggling to get back on their feet are likely to face a wave of debt collector lawsuits for medical bills, back rent, credit card debt, the balance due on repossessed cars, and even utility bills.

Weak exemption laws also exacerbate the racial wealth gap. Communities of color are disproportionately burdened by debt, disproportionately subject to judgments in collection lawsuits, and disproportionately subject to wage garnishment. Because of longstanding discrimination, Black and Latinx households have less wealth and less of a safety net to draw on during challenging financial times. Communities of color have disproportionately suffered the effects of the pandemic — not just job loss and financial hardship but also illness and death.

Berkeley Law Seeks Executive Director for Center for Consumer Law and Economic Justice

Berkeley Law seeks applications for the full-time position of Executive Director (Academic Coordinator II) for the Center for Consumer Law and Economic Justice (CLEJ) with an anticipated start date of December 1, 2020. This is a two-year, full-time (100%) appointment, subject to renewal. This position is open until filled. For more information about the position, including required qualifications and application materials, please visit: https://aprecruit.berkeley.edu/JPF02079.

If you have questions about the position, please contact academicpositions@law.berkeley.edu.

The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy see:
http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct.

CNBC: Here’s who Biden would likely pick as the top financial watchdog for consumers

Here. 

Texas A&M Journal of Property Law CFP for consumer law symposium

We received the following CFP:

Texas A&M Journal of Property Law: Spring Symposium Proposal

Purpose:

The Texas A&M Journal of Property Law is currently seeking speakers and papers for its 2021 virtual Spring Symposium.  The purpose of the Symposium is to create a vibrant and useful forum for consumer law scholars, practitioners, and interested students to gather and exchange ideas.  The Symposium will likely take place via Zoom in mid-March or April, depending on speaker availability. 

Topics Under Consideration:

The Texas A&M Journal of Property Law is interested in broadly exploring recent changes and concerns in consumer law including consumer credit and debt practices, regulatory rollbacks by the Consumer Financial Bureau, consumer bankruptcy proceedings, credit reporting, data security, mortgage lending practices, and student-loan forgiveness.  In addition, the Symposium welcomes discussion over the recent decision by the Uniform Law Commission to address debt collection efforts by third-party debt collectors or buyers based on default judgments.  These topics are non-exhaustive, and the Texas A&M Journal of Property Law welcomes additional topics for consideration.

Speaker Selection:

            Interested scholars and practitioners must submit their interest in the Symposium, proposed topic idea, and current affiliations with law firms, universities, or non-government advocacy organizations to editorinchief@gmail.com by January 8, 2021.  Scholars and practitioners interested in publishing papers should express their willingness to do so and the paper’s intended subject-matter in the email.  Willingness to contribute an article for publication by the Texas A&M Journal of Property Law will be a factor for speaker selection. 

Further Information:

The Journal of Property Law will select speakers and papers for publication by February 12, 2021.  Selected papers are due after the Symposium on June 4, 2021. 

Matt Bruckner article on the roles of the states in protecting student loan borrowers from misbehaving schools

Matthew A. Bruckner of Howard has written The Forgotten Stewards of Higher Education Quality, 11 U.C. Irvine L. Rev. 1 - 41 (2020). Here's the abstract:

A “triad” of regulators is supposed to ensure that student loan borrowers are not harmed by low-value institutions of higher education, including exploitative profiteers operating fly-by-night or predatory institutions of higher education. The triad has failed. Millions of students have borrowed billions of federal student loan dollars that they won’t ever repay, causing borrowers to suffer needless economic harm and psychological anguish. But these harms were, are, and remain mostly preventable. This Article appears to be the first law review article to consider the states’ role in policing institutional quality and ensuring that student borrowers are not preyed upon by low-value institutions of higher education. It suggests concrete steps states could take, such as adopting a state version of financial responsibility scores, the gainful employment rule, or a cohort default rate metric, to avoid being characterized as the forgotten stewards of higher education quality.

Virginia Search Warrant Seeking to Identify Peaceful Protestors

by Paul Alan Levy

Yesterday, we filed a motion to quash a search warrant seeking to obtain from Facebook the confidential files of an activist group that has been protesting the refusal of Virginia authorities to step in to protect the health of immigration detainees in a private prison in Farmville, Virginia.  The motion builds on successful work three years ago along with the ACLU in opposing the Trump Administration’s attempt to raid online files of a group that ran protests at his inauguration. The ACLU's argument back then was based on the Fourth Amendment, influenced by the First Amendment; our briefs were based entirely on the First Amendment right to speak anonymously.

Steiger Consumer Law Fellowships that pays law students $6,000 for summer work now accepting applications

Here's the announcement:

In its seventeenth year, the Janet D. Steiger Fellowship Project offers paid summer clerkships for law students to work on consumer protection issues in the offices of State Attorneys General across the country.

The Janet D. Steiger Fellowship Project provides law students the extraordinary opportunity to work in the consumer protection departments of state and territorial Offices of Attorneys General and other consumer protection agencies, including the National Association of Attorneys General and the Attorney General’s Office of the District of Columbia, throughout the United States. The eight to ten-week paid Fellowships were initiated in 2004 by the ABA Antitrust Law Section, in cooperation with the National Association of Attorneys General, as a consumer protection outreach initiative to introduce law students to the rewards of legal careers in public service. A total of 425 Steiger Fellowships have been awarded through the summer of 2020.

The law students who have served as Steiger Fellows have characterized their experiences as truly rewarding, often well beyond their expectations. A number of students have said that for the first time they are considering law careers in public service, and several have already entered public service upon graduation.

Each of the highly motivated Steiger Fellows provides tangible, meaningful assistance to states, territories and other consumer protection agencies that are in substantial need of additional resources to fulfill their consumer protection mission. Offices that have hosted Steiger Fellows in the past have characterized the Fellows’ work as exemplary and have often described the students as some of the most talented interns the offices have ever attracted.

The Council of the Section approved funding for states and other entities to participate in the 2021 Steiger Fellowship Project.  Each selected student will receive a $6,000 stipend (subject to certain federal taxes and administered through the offices of the various consumer protection agencies). This Project continues to be a tribute to the memory of the late Janet D. Steiger, one of America’s great public servants who, during her remarkable tenure as FTC Chairman, dramatically improved cooperation, communication and coordination between state and federal consumer protection and antitrust enforcement agencies.

The locations that will receive Steiger Fellows during the summer of 2021 are:

• ^Arizona | *Arkansas | %Colorado | *Connecticut | * Delaware | *District of Columbia |%Florida |*Georgia | ^Hawaii | %Illinois | %Indiana |%Iowa | *Kansas | %Maryland | %Massachusetts |%Minnesota | % Mississippi | % Montana | % National Association of Attorneys General | * Nebraska | *Nevada | %$ New Hampshire | %New Jersey |  %New York | *Pennsylvania | *~Puerto Rico | % Rhode Island | %South Dakota | *South Carolina | %Tennessee | *Texas | *Utah | ^Vermont | ^Virginia | ^Washington | ^West Virigina | %Wisconsin |  %#Wyoming
  
  Note:    ^8 Week Term of Service           %10 Week Term of Service        *No Term of Service Preference                ~ Fluency in Spanish Required         #1L Candidates Only $2L Candidates Only

Applications and more available here.

(H?T: Leslie Fair)

Instead of Liability Waivers, Reduce the Spread of Covid-19

by Jeff Sovern

My latest Bloomberg Law Insight piece. Excerpt:

No doubt the same people who want to free businesses of accountability for sickening people would oppose the outlawing of Covid-19 liability waivers as an infringement on liberty. But practically no one reads contracts—not even consumer law professors. And if consumers do read them, they probably can’t understand them. A study I co-authored found that few consumers grasped the meaning of a clause that took away their right to sue in court.

In short, the liberty involved is almost certainly only that of the companies, not the consumers.

Covid-19 cannot be blocked by a signature on a piece of paper. Congress should make sure that the same is true of responsibility for spreading it. Otherwise, we will have lots of legal documents but more people will die of the virus.

FDA warns companies to stop misleading consumers by promoting herbal products to treat Covid-19

The FDA has issued warning letters to two companies -- Griffo Botanicals and Prairie Dawn Herbs -- telling them to stop promoting non-FDA-approved herbal products "to mitigate, prevent, treat, diagnose, or cure COVID-19." 

These letters include this language:

FDA is advising consumers not to purchase or use certain products that have not been approved, cleared, or authorized by FDA and that are being misleadingly represented as safe and/or effective for the treatment or prevention of COVID-19. Your firm will be added to a published list on FDA’s website of firms and websites that have received warning letters from FDA concerning the sale or distribution of COVID-19 related products in violation of the FD&C Act. This list can be found at http://www.fda.gov/consumers/health-fraud-scams/fraudulent-coronavirus-disease-covid-19-products.

AC Transit Counsel Goes from Bad to Worse

by Paul  Alan Levy

Last week I explained the many fallacies in a contention by Jill Sprague, General Counsel of the Alameda-Contra Costa County Transit District, that Victoria Fierce, a candidate for election to the ACT Transit Board of Directors, has unlawfully posted photographs to her campaign web site that included busses and a route sign that included AC Transit’s official logo

In response, Sprague has backed off the claim that this was an improper use of the AC Transit logo. Desperate to save face, Sprague claimed in a letter lletter late last week  late last week that Fierce as making a deliberately deceptive use of the AC Transit seal, and hence committing a misdemeanor in violation of a provision in California’s Elections Code.

Well, no. Generally speaking, a seal is a round image containing pictorial elements see for example these compendiums of state seals and of city and county seals.  And until Sprague sent her letter, there is no reason to believe that AC Transit ever deemed its logo to be a “seal.” Thus, I have explained to Sprague in a letter today why she is wrong – not only is the logo not a seal, but there is no deception and the elections provision applies to mass mailings.

But Sprague also claimed in her letter to me that she has been telling other candidates that they had to stop using the logo . . . or is she threatening them with prosecution for using the seal? That's something I'd  like to find out.  It's bad enough that she had threatened Fierce, but if she is extending her reign of error to other candidates running against her employer’s incumbent leaders, serious action may be needed. I have demanded production of all the demand letters, and will report back.

UPDATE

AC Transit has dropped its demand, while suggesting that it has in mind to review the ordinance to be clearer about its intent.