Consumer Law & Policy Blog

Food Deserts and Obesity

You've probably heard about food deserts -- the idea that low-income neighborhoods have few if any grocery stores selling healthy foods like fruits and vegetables, leading to obesity and poor health among poor people. And, as the chart below shows, there is a fairly strong relationship in urban America between the poverty rate and the obesity rate:

 But that doesn't necessarily mean that eliminating the food deserts -- that is, bringing healthier foods to poor neighborhoods -- will begin to solve the problem. Food habits have to change, and the healthy foods need to be affordable. The problem is quite complex, as this article from Sunday's Washington Post shows. Go here as well.

Eric Goldman on Privacy Class Actions

 

Eric Goldman

 of Santa Clara has written The Irony of Privacy Class Action Litigation, 10 Journal of Telecommunications and High Technology Law (2012).  Here is the abstract:

In the past few years, publicized privacy violations have regularly spawned class action lawsuits in the United States, even when the company made a good faith mistake and no victim suffered any quantifiable harm. Privacy advocates often cheer these lawsuits because they generally favor vigorous enforcement of privacy violations, but this essay encourages privacy advocates to reconsider their support for privacy class action litigation. By its nature, class action litigation uses tactics that privacy advocates disavow. Thus, using class action litigation to remediate privacy violations proves to be unintentionally ironic. 

States Delaying ACA Implementation

Many states are delaying implementation of the Affordable Care Act as they await the Supreme Court's decision on its constitutionality. Read about it here.

Texas Supreme Court Rules on Class Action Standing and Mootness

by Leah Nicholls

Today, in Heckman v. Williamson County, No. 10-0671, the Texas Supreme Court followed federal standing and mootness doctrine in permitting a 1983 class action alleging that a Texas county routinely fails to appoint counsel to represent indigent defendants to go forward. First, the Court held that not every named plaintiff must have standing at the time of suit as to every claim---as long as the plaintiffs, taken together, have standing as to each claim, the case can proceed. Second, the Court rejected the county’s argument that the suit was moot because all the named plaintiffs eventually obtained counsel and their criminal proceedings are complete. The Court reasoned that the claims were inherently transitory, and, thus, even though the named plaintiffs’ claims were now moot, that did not make the class action moot. The county also argued that it had changed its policies in the interim, and, for that reason also, the case was moot. The Court remanded for a determination of whether the changed policies actually changed the facts on the ground or whether the problems persist despite the new policies.

New Polls Says Public Approval of Supreme Court Has Declined

As public approval of institutions like Congress and the Presidency have plummeted, the public's view of the Supreme Court remained high. A new poll indicates that the public's esteem for the Supreme Court is slipping too. The poll says only 44 percent of Americans approve the court's work (compared to the high 60s in the late 1980s), with 75 percent saying that the Justices' are influenced by their personal politics. 60% disagree with the constitution's requirement that a justice serve for life (absent impeachment). (The constitution, I should add, does not necessarily demand life appointment as a Supreme Court justice. It's possible that the constitutional requirement would be met if Justices served for a term of years, so long as they were permitted to serve elsewhere in the federal judiciary after their terms expired.)

The Market for New Lawyers is Very Bad

We've been covering the legal job market and efforts to make law schools more transparent about their graduates' employment. Now, this story says

New statistics from [the National Association for Law Placement] paint a bleak picture of the job market for 2011 law grads. The overall employment rate nine months after graduation was 85.6 percent, the lowest it has been since 1994, according to a NALP press release. But the employment rate doesn’t tell the whole, dismal story. Among law grads whose employment status was known, only 65.4 percent were in jobs requiring bar passage, the lowest percentage ever measured by NALP. The number has fallen nine percentage points since 2008. Only 60 percent were working full-time as lawyers in jobs that required bar passage. (emphasis added)

For more information on transparency in the legal job market and consumer-oriented legal education policy, go to Law School Transparency. Go here for another story on the new NALP data.

More on Concepcion One Year After

Read this report.

Bank Overdraft Fees on the Rise

We have kept you informed about efforts to regulate bank overdraft fees, for instance, here, here, and here. Now, the Washington Post reports that "[c]hecking account overdraft fees have jumped during the past two years, despite an effort by regulators to rein in aggressive practices by banks, according to reports by two nonprofit groups." One of the two reports was authored by the Consumer Federation of America. Its report is here and is summarized here.

Fair Use Prevails on Motion to Dismiss

by Paul Alan Levy

The Seventh Circuit today issued an important decision confirming that fair use can be determined at an early stage of a copyright case, based on nothing more than a side-by-side comparison of the copyrighted work and the later work claimed to infringe.  Recognizing that baseless intellectual property claims may be brought in an effort to run up the costs of a critic (as I have discussed on this blog previously), a unanimous panel upheld dismissal of a lawsuit brought by the creator of the viral Internet What What (in the Butt) video over a parody episode on South Park.  The court actually puts to one side the issue whether the district court properly ruled on a motion to dismiss, using the doctrine that a complaint can be dismissed under Rule 12(b)(6) based on a document referenced in the complaint but attached only to a motion to dismiss, but upholds the dismissal as proper under Rule 56 even though the motion was not captioned that way.  (See this discussion of why 12(b)(6) is procedurally superior)

Having resolved the procedural issues, the court required a mere three pages (10 to 12 of the slip opinion) to breeze through the four statutory fair use factors and uphold judgment in favor of the defendant.  And the court brushed aside the plaintiff's assertion in a reply brief that it should have been had the opportunity to take discovery into such matters as the defendant's intent:  "We noted during oral argument that such a broad discovery request, surely entailing expensive ediscovery of emails or other internal communications, gives Brownmark the appearance of a 'copyright troll.'"  So far as my (admittedly cursory) research shows, this is the first time the "copyright troll" term has been used in a federal appellate decision.

Thanks to the inimitable Fred von Lohmann for drawing my attention to this ruling, but also to Stacia Lay's IP Law Chat for posting the affirmed decision of the district court as well as the somewhat reluctant decision awarding attorney fees to the prevailing defendant.  The reluctance was based on the fact that plaintiff is a small company, while the defendant is a huge one; the court was worried about discouraging small copyright holders from taking on the behemoths of the entertainment industry.  In the end, though, the court was persuaded that the fact that the suit was brought over clearly protected parodic speech, and the need to protect such speech against abusive litigation, militated in favor of a fee award.

Abusive IP owners, beware.

William Black on Examining Lending Discrimination Practices and Foreclosure Abuses

 

William K. Black

 of University of Missouri at Kansas City has written Examining Lending Discrimination Practices and Foreclosure Abuses.  Here's the abstract:

The incidence of fraud in stated income loans is 90 percent. It is overwhelmingly the lenders and their agents that prompted these frauds. Over two million fraudulent mortgage loans were made in 2006 alone. It was overwhelmingly fraudulent loans to borrowers who lacked any ability to repay their loans out of their income that caused the housing bubble to hyper-inflate. Endemic accounting control fraud in the origination of mortgages led to creation of 'echo' fraud epidemics in other contexts, including widespread appraisal fraud, endemic fraud in the sale of mortgages and mortgage derivatives, widespread predatory lending targeting Latinos, blacks and the elderly, and endemic foreclosure fraud. Fraudulent lenders use compensation to create perverse incentives in which bad ethics drives good ethics out of the marketplace. Fraud begets fraud. The federal government, California, and dozens of financial firms have sued the largest banks for fraud, yet the Justice Department refuses to even conduct a meaningful criminal investigation of the largest banks. Absent vigorous financial regulators that understand control fraud and make reducing and sanctioning such frauds their top priority the prosecutors cannot succeed against an epidemic of accounting control fraud. Financial regulators who make the necessary criminal referrals and provide the FBI with the expertise to identify and investigate accounting control fraud mechanisms are essential if we are to prevent or prosecute an epidemic of such frauds. Effective financial 'regulatory cops on the beat' are essential to our ability to prosecute elite white-collar criminals.