Consumer Law & Policy Blog

Post-Argument Coverage of AT&T v. Concepcion

by Deepak Gupta

Because I don't have a crystal ball, I'll leave to others the task of making predictions based on yesterday's oral arguments before the U.S. Supreme Court in AT&T v. Concepcion.  (By the way, here's some of the latest scholarship on such prediction-making.)

If you want to play along at home, you can come up with your own prognostication based on the transcript, one of the excellent summaries by Professors Lawrence Cunningham or Jean Sternlight, or some of the press coverage:

• "Overall," according to SCOTUSblog, "post-argument predictions about the case’s outcome tilt toward a victory by respondents Vincent and Liza Concepcion, but not everyone was willing to make predictions based on the argument." 

• "Recent Supreme Court decisions have generally favored the enforcement of arbitration agreements and have been wary of aspects of class-action litigations. But it was hardly clear at Tuesday’s arguments that those two trends would continue in the latest case." Adam Liptak, Supreme Court Weighs Class-Action Suits, New York Times

• "A victory for consumers and class action litigators seemed possible on Tuesday as the Supreme Court heard arguments in a high-stakes dispute over clauses that block class actions as a way of resolving contract disputes." Tony Mauro, Class actions on the ropes? Not likely, National Law Journal

• "My sense tells me that the anti-consumer, anti-class action bias will win this one. Not so much on the merits, but because of the politics." Steve Berk, AT&T v. Concepcion: Almost live from the Supreme Court,The Corporate Observer

• "[I]t doesn't look as though there are too many votes at the high court to do away with the right of consumers to band together to sue the great American manufacturers of fine print." Dahlia Lithwick, Can You Hear Them Now? The Supreme Court reads the fine print on your cell phone contract, Slate

• "Based on what was said during the argument, I predict a 8-1 or 7-2 vote for the consumers and California, with Alito dissenting and Roberts a toss up. Thomas, who never speaks at oral argument, will vote for the consumers and state on federalism grounds, as he always does in FAA cases." Lawrence Cunningham, Argument in Class Waiver Case Favors Consumers, States, Concurring Opinions

• "The Supreme Court seemed disinclined to let companies use legal fine print to block class actions, with several justices suggesting they might defer to state courts that ruled in favor of consumers." Jess Bravin, Justices Question Contracts That Block Class Actions, Wall Street Journal

• "AT&T's odds are mixed: ... Justices Clarence Thomas and Antonin Scalia are sympathetic to these cases due to their states' rights ideology. But no one will be surprised if AT&T and its big business backers prevail." Stephanie Mencimer, Consumer Protection's Citizens United, Mother Jones

• "In sum, I think Respondents have to be pleased with how the argument went.  A significant number of Justices seemed to recognize that some arbitration provisions are unconscionable, and that second-guessing lower courts’ unconscionability rulings can raise some difficult federalism and administrative issues." Jean Sternlight, ADR Prof Blog

• "While Chief Justice John Roberts and Justice Samuel Alito appeared this morning to join Mr. Pincus in trying to come up with support for preemption in this case, it appears that they may come up a few votes short (with the usual caveat that it is always a risky business to predict how the Court will rule based on oral argument)." Elizabeth Wydra, ACSblog.

For you ultrawonks out there, here's even more coverage:

• David Savage, Supreme Court weighs whether consumers' small suits can be combined, Los Angeles Times
• Robert Barnes, Justices hear case on class-action arbitration, Washington Post
• Jeremy Hobson, Is banning class action lawsuits unconstitutional?, NPR Marketplace (interviewing David Lazarus of the L.A. TImes)
• Ashby Jones, Class-Action Lawyers Breathing Easier After High Court Argument, Wall Street Journal
• Bill Mears, High court to decide dispute over taxes on 'free cell phone,' CNN
• Mark Sherman, Court hears dispute over 'free' phone, Associated Press
• Joan Biskupic, Supreme Court hears sales tax case on 'free' phone, USA Today
• Jon Hood, The End of Class Actions?, Consumer Affairs
• Greg Stohr, Consumer Arbitration case divides U.S. Supreme Court, Businessweek
• Lawyers USA, Supreme Court hears AT&T class action waiver dispute, Daily Record
• Brendan Fischer, Supreme Court Considers Corporate Right to Mandatory Arbitration, Center for Media and Democracy
• David Heath, High Court Ponders If Companies Can Force Consumers to Sign Away Right to Class-Action Suits, Center for Public Integrity
• Erika Morphy, A lot hinges on SC's ruling in $30 cellphone sales case, E-Commerce Times
• Scott Lemieux, Consumer Protection at the Supreme Court, The American Prospect
• Nan Aron, Will the Supreme Court Grant Big Business a License to Steal
• Ian Milhiser, The Supreme Court's One Thousandth Cut Against Consumers, Center for American Progress

We posted some of the pre-argument coverage here -- most notably these columns by David Lazarus in the LA Times and Prof. Brian Fitzpatrick (Vanderbilt Law) in the SF Chronicle.  An archive, including all of the briefs, is available here.

Times Coverage of AT&T Mobility Oral Argument

Here.

Property Outlaws

In fine American property tradition, squatters are taking matters into their own hands to respond to the huge inventory of foreclosed, bank-owned homes.  Hernando de Soto reminds us that the origins of many U.S. property titles derived from squatters, and professors Penalver and Katyal have educated us on the important expressive and reformist functions that property outlaws perform.

Would You Take Out A Mortgage To Pay The Lawyer Who Got You Out of Foreclosure?

You are in foreclosure. You have no money to pay a lawyer to get you out of foreclosure and keep you in your house. So, you agree that, if the lawyer succeeds in keeping you in your house, you will take out a second mortgage -- pledging your home as collateral -- to pay your legal fees on a monthly basis. Read about it here.

Pre-argument commentary on AT&T Mobility v. Concepcion

by Deepak Gupta

Here's a roundup of some of the latest commentary on the the Concepcion case, which I'll be arguing tomorrow before the U.S. Supreme Court: 

• Brian Fitzpatrick, Supreme Court case could end class-action suits, San Francisco Chronicle
  

• David Lazarus, Consumers' right to file class actions is in danger, Los Angeles Times

• Amanda Becker, Supreme Court case involving class actions could affect waitresses' suit against Hooters, The Washington Post
  

• Matthew Hathaway, Plenty at Stake in Class Action Case Before Supreme Court, St. Louis Post-Dispatch
  

• Alliance for Justice, AT&T v. Concepcion: Will the Supreme Court Give AT&T A License to Steal?
  

• Ed Mierzwinski, Next Up For the Supreme Court That Brought You Unlimited Corporate Campaign Cash: Do Consumers Have the Right to Band Together To Fight Corporate Crime?, Huffington Post

• Stephen C. Webster, AT&T pushes Supreme Court to demolish right to join class action lawsuits, The Raw Story

• David Horton, AT&T v. Concepcion, PrawfsBlawg

• American Constitution Society, 'The Stakes are High' in AT&T V. Concepcion, ACSblog

Hoofnagle Paper on Identity Theft

Chris Jay Hoofnagle University of California, Berkeley has written Internalizing Identity Theft, UCLA Journal of Law and Technology (2010). Here's the abstract:

Why has identity theft remained so prevalent, in light of the development of ever more sophisticated fraud detection tools? Identity theft remains at 2003 levels – 9.9 million Americans fell victim to the crime in 2009.

One faction explains the identity theft as a problem of a lack of control over personal information. Another argues conversely that identity theft may be caused by a lack of access to personal information by credit grantors. This article presents data from a small sample of identity theft victims to explore a different dimension of the crime, one that suggests alternative interventions.

Drawing upon victim and impostor data now accessible because of updates to the Fair Credit Reporting Act, the data show that identity theft impostors supply obviously erroneous information on applications that is accepted as valid by credit grantors. Thus, the problem does not necessarily lie in control nor in more availability of personal information, but rather in the risk tolerances of credit grantors. An analysis of incentives in credit granting elucidates the problem: identity theft remains so prevalent because it is less costly to tolerate fraud. Adopting more aggressive and expensive anti-fraud measures is extremely costly and jeopardizes customer acquisition efforts.

These business decisions leave individuals and merchants with some of the externalities of identity theft. Victims sometimes spend their own money, and more often, valuable personal time dealing with identity theft externalities. This article concludes by reviewing several approaches to internalizing these costs. Popular approaches specify prescriptive rules to address particularly problematic practices in credit granting, such as using the Social Security number as a password for authentication. These approaches may lead to compliance-oriented approaches and reification. Several commentators have suggested negligence actions as a cure to identity theft, but uncertainty surrounding the duty of care would probably leave many consumers unremunerated. A strict liability regime is suggested because credit grantors are the least cost avoiders in the identity theft context, and because consumers cannot control the credit granting process nor insure against identity theft losses efficiently.

San Francisco Bans Happy Meals

Read about it in this LA Times article. Here's an excerpt:

San Francisco's board of supervisors has voted, by a veto-proof margin, to ban most of McDonald's Happy Meals as they are now served in the restaurants.The measure will make San Francisco the first major city in the country to forbid restaurants from offering a free toy with meals that contain more than set levels of calories, sugar and fat.

And here's the Restaurant Association's response:

Daniel Conway, spokesman for the California Restaurant Assn., bemoaned the ordinance's passage and contrasted it with San Franciscans' exuberant feelings after the Giants won the world series on Monday night. "One day you're world champions, and the next day, no toys for you," Conway said.

HuffPo: Wells Fargo Repossesses Paid-Off Car

Those stories about banks foreclosing on homes for which the mortgage was paid off? Well, it doesn't happen only with homes, as HuffPo reports here.

Are Human Genes Patentable?

The U.S. Department of Justice says that unmodified human genes, even if isolated genomic DNA, are not patentable because they are not "human-made inventions." Some in the biotech industry strongly disagree. Read this New York Times article on the disagreement and DOJ's amicus brief on the topic filed last Friday in the U.S. Court of Appeals for the Federal Circuit.

Times Article: Robo-Signing Nothing New in Debt Collection

Here.  A memorable quote:

Analysts say that affidavit-signers at debt-buying companies appear to have little choice but to take at face value the few facts typically provided to them — often little more than basic account information on a computer screen.

That was made vividly clear during the deposition last year of Jay Mills, an employee of a subsidiary of SquareTwo Financial (then known as Collect America), a debt-buying company in Denver.

“So,” asked Dale Irwin, the plaintiff’s lawyer, using shorthand for Collect America, “if you see on the screen that the moon is made of green cheese, you trust that CACH has investigated that and has determined that in fact, the moon is made of green cheese?”

“Yes,” Mr. Mills replied.

Given the volume of affidavits, even perfunctory research seems impossible. Cherie Thomas, who works for Asta Funding, a debt buyer in Englewood Cliffs, N.J., said in a 2007 deposition that she had signed 2,000 affidavits a day. With a half-hour for lunch and two brief breaks, that’s roughly one affidavit every 13 seconds.