Nielson Paper Asks What Happens If the FTC Becomes a Serious Rulemaker?

Aaron L. Nielson of Brigham Young has written What Happens If the FTC Becomes a Serious Rulemaker? forthcoming in FTC's Rᴜʟᴇᴍᴀᴋɪɴɢ Aᴜᴛʜᴏʀɪᴛʏ (Concurrences 2022). Here's the abstract:

The Federal Trade Commission (FTC) is no one’s idea of a serious rulemaker. To the contrary, the FTC is in many respects a law enforcement agency that operates through litigation and consent decrees. There are understandable reasons for this absence of FTC rulemaking. Not only has Congress imposed heightened procedural obligations on the FTC’s ability to promulgate consumer protection rules, but it is far from clear that the FTC even has statutory authority to promulgate substantive rules relating to unfair methods of competition (UMC). Yet things may be changing. It appears that the FTC is preparing to begin using rulemaking more aggressively, including for substantive UMC regulations. The FTC’s ability to use rulemaking this way will undoubtedly prompt sharp and important legal challenges.

This short essay, however, considers the question of the FTC rulemaking’s authority from a different angle: What if the FTC has broad rulemaking authority? And what if the FTC begins to use that authority for controversial policies? Traditionally, the FTC operates in a case-by-case fashion that generally attempts to apply familiar principles to the facts of individual matters. Should the FTC begin making broader policy choices through rulemaking, however, it should be prepared for at least three unintended consequences: (i) more ossification, complete with judicial challenges and perhaps even White House oversight; (ii) more zigzagging policy as new FTC leadership, in response to changes in presidential control, moves to undo what the agency has done; and (iii) to more often be the target of what has been called “administrative law as blood sport,” by which political actors make it more difficult for the agency to function, for example by delaying the confirmation process. The upshot would be an agency that could in theory (and sometimes no doubt in fact) regulate more broadly than the FTC does now, but also one with a different character. In short, the more the FTC becomes a serious rulemaker, the more it will change as an institution.

CFP: Symposium on AI, Consumer Credit, and Discrimination

We received the following call for papers:

Nikita Aggarwal, Matt Bruckner, Kathleen Engel and Cre Johnson are putting together proposals for a symposium on AI, Consumer Credit, and Discrimination. They are applying to multiple law reviews on a rolling basis. If you have a project that fits within the proposed topic and are interested in participating in the symposium, please send a short abstract to Nikita at nikita_aggarwal@hks.harvard.edu as soon as possible. Until a law review accepts the proposal, it is not possible to provide details on the symposium's structure or location. Furthermore, submitting a proposal does not represent an absolute commitment to participate. The organizers hope that, if the proposal is accepted, you will be interested in attending the symposium even if you do not submit an abstract.

CFP for Hybrid International Consumer Protection Law Conference

 

 

Virtual Conference: Multilevel Marketing: The Consumer Protection Challenge 2022

Hosted by The College of New Jersey School of Business on June 10th / 11th 2022. From the conference website: "This virtual conference brings together expertise from regulators, prosecutors, former MLM distributors, social media consumer advocates, researchers, educators, and journalists to discuss ways to improve consumer protection and reduce consumer harm within the multi-level marketing (MLM) industry." More information here. (HT: Robin Boyle)

Watch Tower Drops Its Effort to Identify a Dissident Blogger Based on Spurious Copyright Claims

by Paul Alan Levy

The effort by the Watch Tower Bible and Tract Society (a/k/a Jehovah’s Witnesses) to identify a dissident member, "Kevin McFree," through a spurious claim of copyright infringement has ended with a whimper rather than a bang as Watch Tower agreed to dismiss its copyright lawsuit with prejudice to avoid a possible claim for attorney fees. But the facts revealed by its conduct of the case, and its failure to pursue other cases, casts even further doubt on the bona fides of its extensive use of DMCA subpoenas to identify critics who uses its print and video works as the subjects of discussion

I wrote about this case after we first told the Court why Watch Tower could not prevail on an infringement action, or on a motion for leave to identify our client for the purpose of pursuing an infringement action, because it had already lost its DMCA section 512(h) subpoena action based on a holding of fair use, and it had allowed that ruling to become final by not pursuing an appeal. In that article, I noted that Watch Tower had filed more than seventy DMCA subpoenas, obtaining enforcement by default, but had never once filed an infringement action against a Doe thus identified. In fact, the only DMCA subpoena target it ever sued was the one target whom it had FAILED to identify – because the DMCA subpoena to identify McFree had been quashed. This casts doubt on the assertion that Watch Tower has to make to get DMCA subpoenas issued: that it will use the information only for the purpose of enforcing its rights under copyright law.

But matters continued to get worse for Watch Tower, and both its inability to be straightforward in explaining its actions, including making misleading statements to the court. and the likely ulterior motives for its actions, became increasingly clear.

Whither Arbitration Regulation?

by Jeff Sovern

Every six months, the CFPB director testifies before the Senate Banking Committee and the House Financial Services Committee. Each committee member gets five minutes to question the director, a process that collectively takes hours and this last time covered a wide variety of topics, including topics over which the CFPB lacks power, like non-payment aspects of digital currency. But somehow, no one asked Director Rohit Chopra during the most recent hearings (here and here) about what plans, if any, he has for arbitration regulation, something that the Bureau actually has jurisdiction over. I guess we will have to wait until the Bureau publishes its next regulatory agenda to see if arbitration is on its mind.

CLASS Network Directorship Position Deadline for Applications Extended to 5/22

Here's the job posting:

Director of the CLASS Network - Center for Consumer Law & Economic Justice

Do you want to work every day to advance the rights of low-income consumers? Do you want to help create a national network of law school programs dedicated to building equity and economic justice?

Well, then, perhaps this is the job for you.

The UC Berkeley Center for Consumer Law & Economic Justice seeks a director for the CLASS Network, a new consortium dedicated to promoting racial and economic justice programs in law schools around the United States and beyond. A partnership between the UC Berkeley Center and the National Association of Consumer Advocates, the CLASS (Consumer Law Advocates, Scholars, & Students) Network works to increase the number of relevant courses offered at law schools, to develop and foster new clinics and student organizations, and to offer the chance for law students and faculty around the country to come together on shared projects like amicus briefs in high-profile cases and filings in significant regulatory proceedings.

So, if you want to

• create something new
• be part of a national effort to work with law students and faculty to increase racial and economic justice
• work on groundbreaking legal cases with students and practitioners from around the nation
• be a part of Berkeley Law, and
• help train and inspire the next generation of economic justice lawyers and advocates

you might want to send in your application.

The Director will also be involved with the full range of the Center’s other activities, from arranging conferences to delivering presentations and testimony to spurring the development of consumer protection laws across the country and around the world.

Apply by May 22 (anticipated start date ~ July 1)- Please visit this link to apply.

Report: "Consumers Lured Into Predatory Car Repair Loans"

Consumer Reports writes today:

Auto repair shops affiliated with well-known brands—including AAMCO, Big O Tires, Grease Monkey, Jiffy Lube, Meineke, Midas, and Precision Tune Auto Care—are steering unsuspecting customers into loans charging up to 189 percent interest, according to a study by consumer advocacy groups including Consumer Reports.

While most states have interest-rate limits to stop lending practices such as this, a company can evade state regulations by teaming up with a bank in a state where no such rate-cap laws exist. This practice, known as “rent-a-bank,” exists in a legal gray area. In this case, the auto repair shops are offering the loans through EasyPay Finance, which runs the loans through Transportation Alliance Bank (TAB,) based in Ogden, Utah, where high-interest rate-caps don’t exist.

Emergency auto repairs can be expensive. One in 3 U.S. drivers isn’t able to pay the average $500 to $600 cost, according to a 2017 survey by the AAA automotive group. The consumer advocates say that questionable business practices by EasyPay Finance and high interest rates make those payments even worse.

The full article, which also includes suggestions for consumers, is here.

CFPB advisory opinion on coverage of fair lending laws

The Consumer Financial Protection Bureau yesterday published an advisory opinion affirming that the Equal Credit Opportunity Act—a federal civil rights law that protects individuals and businesses against discrimination in accessing and using credit—bars lenders from discriminating against customers after they have received a loan, not just during the application process. Read the press release and access the advisory opinion here.

CFP: Beyond Fresh Start: Fixing the Broken Student Loan Default and Collection System

We received the following Call for Papers:

On April 6, 2022, in addition to announcing an extension of the federal student loan payment pause, the White House announced that the U.S. Department of Education is taking steps to  give a fresh start to millions of struggling borrowers who are currently in default on their federal student loans, protecting them from the harsh consequences of default if payments resume in the future. For too long, defaulted borrowers have slipped through the cracks, experienced ruined credit, and been made to suffer at the hands of the Department of Education’s punitive collection system, which seizes their wages, social security benefits, and Earned Income Tax Credits in retaliation for these borrowers defaulting on their federal loans.

While the relief the White House announced in April is critically needed for people living in or close to poverty, it is not a long-term solution to a crisis decades in the making. The Department now has an opportunity to fix the broken student loan default and collection system.

According to the regulatory agenda, the Department is planning on undertaking a rulemaking on student loan debt collection issues. This is an opportunity to influence the Department and encourage it to end its punitive collection practices and ensure meaningful pathways for borrowers to get out of debt.

In 2020, the Student Borrower Protection Center, in partnership with the Student Loan Law Initiative at the University of California, Irvine School of Law, released a roadmap for the Biden Administration to use existing authority to cancel student loan debt for servicemembers, public service workers, defrauded borrowers, borrowers facing total and permanent disabilities, and other vulnerable groups who have been forced to shoulder debts that should have been canceled under the law. Over a year on from these papers, the ideas laid out in our initial roadmap have animated policies providing relief for millions of struggling borrowers across the country. As we continue to hold the Administration accountable for canceling the debt of everyone who is entitled to relief under the law, we are also working tirelessly to fix our broken default and collection system. 

In August 2022, the Student Borrower Protection Center will hold a virtual panel series on issues related to debt collection titled Beyond Fresh Start. We call on all academics, practitioners, and any other advocates to submit abstracts for papers to be presented at this panel series, which will involve conversations with top scholars moderated by key participants in the student loan ecosystem such as journalists and leading advocates.

We are currently inviting short (7-10 page) papers for the following themes:
● Harm of the current collection system
● Racial disparities in student loan default and collection
● Ideas for reforming debt collection
● Existing legal authority for administrative fixes
● Role of states
Please submit paper abstracts to Mark Huelsman (mark@protectborrowers.org) by May 15, 2022.
If selected, first drafts will be due on July 20, 2022, and final papers will be due on August 1, 2022.

FTC says credit repair operation was a scam

The Federal Trade Commission filed a complaint last Friday against a company called The Credit Game, which claimed it could boost credit scores through “credit piggybacking” and other credit repair services. The FTC's complaint against the operators of The Credit Game (formerly called Wholesale Tradelines) says that the services were a scam and that the defendants engaged in illegal practices to bilk cash-strapped people out of hundreds or thousands of dollars for repair services that were ineffective, undeliverable, or illegal. Details are here.

CFPB orders Bank of America to pay $10 million penalty for illegal garnishments

The Consumer Financial Protection Bureau has finalized an enforcement action against Bank of America for processing illegal, out-of-state garnishment orders against customers’ bank accounts.

The CFPB's press release, with links to relevant documents, is here.

En Banc Fifth Circuit "Express[es] No View" in CFPB v. All American Check Cashing

    After many months and multiple rounds of supplemental briefing in the wake of the Supreme Court’s decisions in Seila Law v. CFPB (2020) and Collins v. Yellen (2021), the en banc Fifth Circuit in CFPB v. All American Check Cashing finally decided—well, nothing. According to the 3-page, unsigned per curiam opinion issued by the court, the Supreme Court’s decision in Seila Law already said everything necessary to decide the “pure question of law” posed by the appeal: whether the tenure protection conferred on the CFPB’s director by the Dodd-Frank Act was unconstitutional. Seila Law, of course, held that the statutory provision preventing the President from firing the CFPB director without cause was unconstitutional, but severable, nearly two years ago. The Firth Circuit concluded that that holding required it to answer the “pure question” before it by vacating the district court’s pre-Seila Law holding that the CFPB’s structure was constitutional but allowing the CFPB to proceed with the enforcement action that gave rise to the appeal—subject to any further defenses (including constitutional challenges) the defendant, All American Check Cashing, might assert. The court “place[d] no limitation on the matters that [the district] court may consider” and “express[ed] no view on the actions it should take in accordance with this opinion or otherwise.”

    Five “concurring” judges, including Judge Edith Jones and three of the court’s Trump appointees, disagreed with the court’s disposition of the appeal and would have held the CFPB’s structure unconstitutional for another reason not addressed in Seila Law—the “budgetary independence” the CFPB enjoys under statutory provisions funding it through the Federal Reserve rather than annual appropriations. Those judges would have also held that the separation-of-powers violation they saw in the CFPB’s funding mechanism required dismissal of the CFPB’s enforcement action because, in their view, the CFPB lacked authority to do anything requiring the expenditure of funds—that is, anything at all.

    The majority said nothing about the concurring judges’ constitutional theory other than that it was outside the scope of the issues before the court on All American’s interlocutory appeal. The concurring judges disagreed with that, too, but nonetheless chose not to label their opinions dissents—perhaps to give the views they expressed more traction in the lower courts.

    The bottom line is that, 22 months after the Supreme Court decided Seila Law, the Fifth Circuit did what its per curiam opinion suggests it could and should have done almost immediately in light of Seila Law’s holding. And now the district court will have to consider the concurring judges’ theory, which will undoubtedly give rise to another appeal—and, very likely, one or two petitions for certiorari (one now, and, if it doesn’t succeed, another after the next round of appeals).

  Why did the court take so long to do so little? In the immediate aftermath of Seila Law, the question whether its constitutional holding might require dismissal of the CFPB’s enforcement action in All American was at least a debatable one. But before the Fifth Circuit could resolve it in light of the supplemental briefs filed by the parties to address Seila Law, the Supreme Court decided Collins, which left little if anything of the argument that the tenure protection held unconstitutional in Seila Law required courts to invalidate actions taken by the agency before Seila Law struck down and severed the tenure provision.

    Nonetheless, the appellant in All American continued to argue in its post-Collins supplemental brief that Collins somehow left room for the argument that a CFPB enforcement action initiated before Seila Law had to be dismissed. Not even the five concurring judges in the Fifth Circuit appeared to give that argument any credence (see pp. 41-43 of Judge Jones’s opinion).

    As for the argument that did interest the concurring judges, All American relegated it to a two-page throwaway section of its supplemental brief, to which the CFPB responded in a similarly abbreviated fashion. Although All American devoted more space to the argument in its supplemental reply, it appears likely that the en banc court as a whole may have felt that the relatively cursory briefing of the issue (and the rejection of the argument by all other courts that have addressed the issue so far) counseled leaving it for another day.

    The result is that after nearly two years, the can has been kicked down the road, with nothing to show for that time except a concurring opinion that will serve as a roadmap for further challenges to the CFPB’s authority.

Why the CFPB is right that it can act against discrimination using its unfairness power

by Jeff Sovern

Recently the CFPB announced that in conducting supervisory operations, it takes the position that discrimination is unfair and so violates the Consumer Financial Protection Act. You might think this is pretty straightforward: most of us would think odious discrimination is unfair. Discrimination easily qualifies as unfair under the statutory requirements of unfairness, which require that "(A) the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers; and (B) such substantial injury is not outweighed by countervailing benefits to consumers or to competition." It's so obvious that offensive discrimination meets that standard that I won't take up space explaining why but if you want to know more, read this report by the Student Loan Borrower Protection Center. The statute also permits the Bureau to consider public policy in determining if conduct is unfair, as long as public policy considerations are not the primary basis for the determination of unfairness. So many statutes bar discrimination that it's clear that public policy counsels against allowing abhorrent discrimination.

But Senator Toomey disagreed during the Senate Banking Committee hearing on the CFPB on Tuesday and so do some others. Their principal argument appears to be that if discrimination is unfair, statutes explicitly prohibiting discrimination, like the Equal Credit Opportunity Act, would have been unnecessary. But, the argument goes, Congress did enact such statutes and so Congress must not have seen unfairness as reaching discrimination. This argument has at least three significant flaws.

First, ECOA does many things in addition to proscribing discrimination in credit transactions. For example, ECOA provides injured consumers a private claim, punitive damages, and attorneys’ fees. The CFPB’s determination that its unfairness power extends to discrimination does not authorize consumers to bring private claims because the CFPA does not provide for private claims. Put another way, ECOA would have been needed even if everyone agreed from the get-go that the Bureau could use its unfairness power against discriminators because Congress wanted injured consumers to have a private claim. Only Congress, not the Bureau, could have provided for that. And that is also true of other provisions of ECOA, like the requirement that creditors notify consumers of the reasons for adverse action.

Second, the argument ignores the statutory text. The argument is based on speculation as to the legislative intent. And the Supreme Court has made clear that it has no interest in speculations about congressional intent when the words of a consumer protection statute answer the question.

Third, if we are going to speculate about legislative intent, does it really make sense that Congress would not have wanted the Bureau to have the power to outlaw odious discrimination in the consumer financial industry?  Congress was concerned with the fairness of the marketplace and gave the Bureau authority to block misconduct that most of us would see as less objectionable than discrimination.  It beggars the imagination to suggest that Congress would have wanted the Bureau to allow discrimination to continue unchecked but, for example, to take action against debt collectors that put words or symbols on envelopes.

In short, Director Chopra is exactly right to take steps to prevent offensive discrimination from taking place in the consumer financial industry. If the industry argues otherwise, it risks convincing consumers that the industry wants to discriminate. And that wouldn’t serve anyone.

Dept of Education approves $238 million group discharge for 28,000 Marinello Schools of Beauty borrowers

The Department of Education announced it will discharge the loans of tens of thousands of borrowers harmed by pervasive and widespread misconduct at Marinello Schools of Beauty. Borrowers who enrolled in the schools from 2009 through its closure in February 2016 will receive loan discharges totaling approximately $238 million. This group discharge includes former students who have not yet applied for a borrower defense discharge. The Department's press release is here.

FTC seeks comment on combatting tech-support scams and adding click-to-cancel requirements

The Federal Trade Commission is proposing to extending protections against telemarketing tricks and traps to small businesses and strengthening safeguards against other pernicious telemarketing tactics aimed at consumers. That notice seeks comment on whether the FTC should amend the Telemarketing Sales Rule to prohibit misrepresentations in business-to-business calls, and whether the FTC should amend the rule’s recordkeeping provisions to require telemarketers to retain information in seven new categories, such as keeping recordings of robocalls. The notice of proposed rulemaking is here.

Through a separate notice, the agency is seeking comments on updates to the Telemarketing Sales Rule that would protect small businesses against business-to-business telemarketing schemes, address tech-support scams that target seniors, and extend click-to-cancel requirements to telemarketing.The advanced notice of propose rulemaking is here.

Republicans complaining about lack of accountability of CFPB director who serves at the pleasure of the president

by Jeff Sovern

Remember how Republicans complained how the CFPB was an unaccountable agency because its director could be fired only for cause? And then the Supreme Court ruled in Seila Law that the "for cause" removal limit was unconstitutional so that the president could fire the director without a showing of cause? You might think that Republicans would no longer be complaining that the Bureau is unaccountable, but you would be wrong. According to The Hill, Senator Toomey, the ranking minority member of the Senate Banking Committee, was still singing the same old tune about the Bureau being unaccountable at today's congressional hearing. It's almost as if they object to having an agency protect consumers.

Biden considering options for forgiving federal student loan debt

President Biden is reportedly looking at options to forgive most, if not all, federal student loan debt. He shared his plans during a 90-minute White House meeting Monday with members of the Congressional Hispanic Caucus. As CBS News reports, the move could affect more than 43 million borrowers who hold more than $1.6 trillion in federal student loan debt.

The American retirement system is built for the rich

"The American retirement system is built for the rich -- Lawmakers proclaim they want to help the middle class save. But that’s not who benefits most from IRAs and 401(k) plans." Read this Washington Post essay on that topic by law prof Daniel Hemel.

Forced arbitration backfires on Uber

A cautionary tale on forced arbitration:

Uber’s platform Uber Eats allows customers to order takeout from various restaurants and have it delivered by a driver for a restaurant-specific delivery fee. Customers are required to agree to Uber's Terms of Use, which contains a provision stating that any dispute between the customer and Uber will be settled by binding arbitration administered by the American Arbitration Association in accordance with AAA's rules. After the death of George Floyd in June 2020, Uber announced that it would waive its delivery fee for orders placed at qualifying Black-owned restaurants from June 4, 2020, through December 1, 2020.

Shortly after, the law firm of Consovoy McCarthy PLLC began searching for Uber Eats customers who paid a delivery fee to a non-Black-owned restaurant during the relevant time and asking them to challenge the lawfulness of Uber's policy by claiming that it constituted unlawful reverse race discrimination. The law firm eventually filed more than 31,000 substantively identical arbitration demands with AAA against Uber.

In December 2020, AAA accepted and agreed to administer the claims according to its rules, which included a fee schedule for individual cases. According to the fee schedule, for each case, Uber would owe AAA a $500 filing fee, a $1,400 standard case management fee, and a $1,500 arbitrator fee, for a total of approximately $107 million if charged the full amount. AAA exercised its discretion as to the filing fee, and reduced it to approximately $4.3 million, which Uber paid.

The parties and AAA then engaged in months of fruitless negotiations to come up with a more efficient process for dealing with the 31,500 arbitration cases. Then in April 2021, AAA told the parties that absent an agreement between them, it would administer the cases pursuant to its rules, including invoicing fees according to the fee schedule—under which Uber would owe more than $91.6 million. Uber subsequently paid a total of $667,800, for the first batch of cases. When AAA issued an invoice demanding payment of $10.879 million for case management fees for the second batch, Uber sued AAA alleging that its invoicing was unlawful.

In a decision issued last week, affirming the trial court’s denial of Uber’s motion for a preliminary injunction, the court concluded: “While Uber is trying to avoid paying the arbitration fees associated with 31,000 nearly identical cases, it made the business decision to preclude class, collective, or representative claims in its arbitration agreement with its consumers, and AAA's fees are directly attributable to that decision.”

Notably, without Uber's forced arbitration provision, the customers would have had to pay any court filing fees and surely would have filed as a single class action. The big winner from Uber's forced arbitration provision is [drumroll] AAA.

Inaugural episode of Consumer Law and Economic Justice Podcast now available

Here. The first episode features a conversation with Abbye Atkinson, professor at Berkeley Law, about her article, Borrowing Equality, published in the Columbia Law Review, and the relationship among credit, debt, social relationships, inequality, and what should be done to pave the way for a better world for borrowers.

The podcast will broadcast conversations with consumer scholars and practitioners about their work and the latest consumer and economic justice issues. The interviewers will be students. This episode's interviewer is Blair Hendricks, a third-year student at St. John's Law and president of the St. John's chapter of the National Association of Consumer Advocates.

Newsday essay calls for amending NY's UDAP law to give NY consumers the protections many red state consumers have

Here. My latest guest essay.

Study finds borrower race does not affect appraiser valuation

Brent W. Ambrose of Pennsylvania State, James Conklin of Georgia, N. Edward Coulson of California, Irvine - Paul Merage School of Business, Moussa Diop of USC, and Luis A. Lopez of the University of Illinois at Chicago have written Does Appraiser and Borrower Race Affect Valuation? Here's the abstract:

Following concerns about undervaluation of minority-owned homes, we examine the incidence of racial appraisal bias using a nationwide sample of refinanced mortgages from 2000 to 2007. A unique feature of our data is that they allow us to observe the race of the both the homeowner and the appraiser. We do not observe large, systematic differences in the ratio of appraised values to automated valuation model (AVM) estimates between Black- and White-owned homes. Moreover, the appraiser's race and its interaction with the owner's race are not related to valuations. Our findings suggest that racial appraisal bias is either uncommon in the mortgage refinance market or has a relatively minor effect on valuations, on average.

Some clothing retailers make more than half their income from their overpriced credit cards

The Conversation has an interesting piece titled Store credit cards generate corporate profits and disgruntled workers, by a pair of sociology professors, Joya Misra and Kyla Walters. Excerpt:

Major apparel companies also sell credit, often with very high fees, like The Gap’s 21.7% starting interest rate, and US$27 to $37 late payment charge. In 2019, Macy’s store credit card revenue of $771 million accounted for more than half of Macy’s operating income.

[M]any workers identified mandates to push credit card applications on customers as the worst part of their jobs. *

Why do workers find this task so troubling?

Our research shows that they know – sometimes from personal experiences – how credit cards can ruin a person’s finances.

* * *

Gabe, another American Eagle employee, refers to his store’s credit card as “a Visa that has the American Eagle logo at an extremely high interest rate,” explaining that only “gullible” customers sign up.

* * *

Tara, a shift lead at American Eagle, said she needed to sell 2.5 credit cards for every 10 transactions at the cash register.

Old Navy managers also expected cashiers like Danielle to sell two cards per shift. Special sales events intensify these goals. For example, Danielle was told to sell five to 10 credit cards during Black Friday shifts.

Meirav Furth's important article: Retail Race Discrimination

Meirav Furth of UCLA and Tel-Aviv University has written Retail Race Discrimination. Here's the abstract:

This Article investigates everyday race discrimination while shopping in clothing stores of different price ranges. It reports on an original field experiment which examines the combined effects of race and gender on consumers’ shopping experiences and outcomes. Nineteen testers—Black and white females and males, were recruited and trained to return pre-purchased, unworn clothing items (without receipts) to approximately sixty retail stores in Chicago. Overall, more than 200 audits were conducted and analyzed in this study. The findings show that, controlling for all other variables, Black customers receive worse treatment in retail stores than do comparable white customers seeking to return identical goods, and that Black females are particularly vulnerable to discrimination. Implications for law and policy are discussed.

I think this is a very important article and I hope the findings lead to changes in the law.