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Friday, July 20, 2012

Medical device approval and an FDA "enemies list"

Both the New York Times [here and here] and the blog Pharmalot [here] have been reporting this week details about the Food and Drug Administration monitoring the emails of employee scientists who expressed concern to Congress that the FDA was forcing employees to approve medical devices that posed unacceptable risks. The monitoring was first reported in a Washington Post story in January, when the employees sued the FDA. According to the NYT, the agency surveilled five of own scientists beginning in 2010, resulting in “80,000 pages of intercepted e-mails and other documents, along with what amounted to an enemies list of 21 ‘actors’ at the agency, in Congress, the news media and academia who were thought to be collaborating to put out confidential information damaging to the reputation of the FDA’s medical device reviews.” The software used by the agency “tracked keystrokes, intercepted personal e-mails, copied documents on personal thumb drives and followed line-by-line messages as they were drafted.” The FDA’s Office of Chief Counsel reportedly approved the surveillance, which was run out of the agency’s “information security section.” As for the scientists' claims about the approved devices, the NYT reports that a “confidential government review in May by the Office of Special Counsel, which deals with the grievances of government workers, found that the scientists’ medical claims were valid enough to warrant a full investigation into what it termed “a substantial and specific danger to public safety.”

Posted by Allison Zieve on Friday, July 20, 2012 at 11:45 AM | Permalink | Comments (1) | TrackBack (0)

Do bars and restaurants increase the noise level to make more money?

by Paul Alan Levy

Today's New York Times carries a long article about noise levels in bars and restaurants, and their health impact on their employees, that suggests some places deliberately keep noise levels high because customers drink more and chew faster when the place is loud, and hence spend more, and because high noise levels chase away older customers and hence create that youthful image.

Posted by Paul Levy on Friday, July 20, 2012 at 09:20 AM | Permalink | Comments (0) | TrackBack (0)

Law School Student Loan Debt

Jean Braucher over at Credit Slips has posted this interesting discussion of the topic.

Posted by Brian Wolfman on Friday, July 20, 2012 at 09:00 AM | Permalink | Comments (1) | TrackBack (0)

More on Baughman v. Walt Disney

We blogged yesterday on what may turn out to be a landmark disability-rights decision, Baughman v. Walt Disney. Amanda Bronstad has written this informative article about the decision.

Posted by Brian Wolfman on Friday, July 20, 2012 at 08:49 AM | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2012

Google Search Results as Protected Opinion -- Another Angle

by Paul Alan Levy

I recently blogged here about the controversy about the extent to which the First Amendment protects Google's search algorithm and the search results that it produces; one aspect of that analysis turns on whether they are opinion or fact, and in discussing that point I drew from libel litigation treating the protected status of ratings and rankings.  A recent piece by James Grimmelman, scholarly but at the same time somewhat playful, addresses whether ratings are opinion or fact from an entirely different perspective, their copyrightability.  Thanks to Rebecca Tushnet for pointing me to this article. 

Posted by Paul Levy on Thursday, July 19, 2012 at 10:35 PM | Permalink | Comments (0) | TrackBack (0)

Excellent decision on public access for the disabled

    In Baughman v. Walt Disney World, decided yesterday by the Ninth Circuit, the issue was whether a disabled woman who previously had used (and sued for her right to use) a motorized wheelchair could claim that Disney violated the ADA by permitting to use a motorized wheelchair but denying her the right to visit using a Segway, a technology that is better for her condition than a motorized wheelchair.

    The panel held that even assuming the plaintiff was judicially estopped from arguing she couldn't use the wheelchair, her ADA claim was viable because the Segway was better for her. Chief Judge Kozinski's opinion is a strong affirmation of businesses' responsibilities under the ADA to improve access for the disabled on a contining basis that evolves with the times:

 

Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience. . . . In deciding what’s reasonable, facilities may consider the costs of such accommodations, disruption of their business and safety. But they must also take into account evolving technology that might make it cheaper and easier to ameliorate the plight of the disabled. In the past, it might have been enough for a theme park to permit only non-powered wheelchairs. As technology made motorized wheelchairs and scooters cheaper, safer and more reliable, our expectations of what is reasonable changed—as Disney recognizes. But technological advances didn’t end with the powered wheelchair. As new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of non-disabled guests.

 

Posted by Scott Michelman on Thursday, July 19, 2012 at 06:44 PM | Permalink | Comments (0) | TrackBack (0)

The times they are a changing...

For several years now, I have been teaching American consumer law at various law schools around the world. One of the things I have noticed, and often comment on, is the difference between how private and public enforcement is used. In the U.S. we rely heavily on private consumer litigation, while many other countries utilize greater public enforcement by bureaus, agencies or commissions.

 I am currently teaching in Australia, and I was surprised when I read yesterday’s newspaper.  There were two important consumer related stories. One involved a government agency challenging credit card practices, and the other was about a consumer class action arising from the drug Thalidomide.  The credit card action, brought against Capital One Bank based on deceptive marketing, resulted in an agreement to pay $210 million to settle the government charges. The class action lawsuit settled the named plaintiff’s claim for several million dollars, and should result in a settlement for the class.

As you have already guessed, the Capital One settlement is the CFPB’s case, discussed yesterday in this blog. The class action suit, however, was brought in Melbourne Australia.

 I am not sure what, if anything, this means. But it does seem that the US now has an effective consumer protection bureau that could result in less of a need for private litigation. And, maybe the rest of the world is recognizing that even with government regulation, there is still a need for private lawsuits.

 With apologies to Bob Dylan, the times they are a changin…

 

Posted by Richard Alderman on Thursday, July 19, 2012 at 06:29 PM | Permalink | Comments (1) | TrackBack (0)

Dazzling NY Times Consumer Protection Op-Ed

Here.

Posted by Jeff Sovern on Thursday, July 19, 2012 at 10:40 AM in Consumer Financial Protection Bureau, Other Debt and Credit Issues | Permalink | Comments (0) | TrackBack (0)

More on CFPB-OCC Settlement with Capital One

We blogged about it here yesterday. This Washington Post article contains some additional interesting information regarding the settlement and Capital One's practices.

Posted by Brian Wolfman on Thursday, July 19, 2012 at 07:02 AM | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

Kathleen Engel Revisits Suits by Cities Against Financial Firms

 

Kathleen C. Engel

 of Suffolk has written The State of Play in City Claims against Financial Firms.  Here's the abstract:  

In 2006, before the subprime mortgage crisis and the collapse of the financial markets, I wrote an article, “Do Cities Have Standing? Redressing the Externalities of Predatory Lending.” In the article, I addressed the possibility that cities had standing to recover for the damage that predatory lenders were inflicting on their communities. At the time, exploitative lenders were putting unsophisticated borrowers in loans they could not afford, and many of those borrowers have since lost or will lose their homes.

Municipalities were in impossible positions. They were powerless to prevent abusive lending. Only states and federal legislatures and regulators had the authority to restrict unfair loan products; yet the cities bore the burden of unaffordable loans in the form of abandoned property, displaced families, increased demands for police and fire protection, and declining tax revenues.

Six years later, we now know more about the role of lenders in exploiting borrowers. We also know more about the impact that irrational and unfair lending has had on communities. And, most importantly for this essay, several cities have brought lawsuits that test some of the theories I put forth in my original article.

Jon Entin and Shadya Yazback wrote an article in response to “Do Cities Have Standing,” in which they echoed my analysis of city standing as parens patriae and as claimants for injuries to their proprietary interests. They also explored the potential for claims under the Fair Housing Act and discussed the role that preemption has played in limiting cities’ ability to directly regulate lenders. This essay is a follow-up to both my article and the Entin and Yazback piece.

Posted by Jeff Sovern on Wednesday, July 18, 2012 at 03:34 PM in Consumer Law Scholarship, Predatory Lending | Permalink | Comments (1) | TrackBack (0)

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