Consumer Law & Policy Blog

New Report on Serious Surgical Errors

Today, the Washington Post reported on a new study quantifying how often surgeons make "never" mistakes, i.e., mistakes that should never happen, such as leaving an object in a patient, performing the wrong procedure, or performing the procedure on the wrong body part. Apparently, between 1990 and 2010, about 500 "never" events were reported to malpractice insurers annually.

The Post article notes that other studies have shown that implementing things like checklists can reduce these types of mistakes.

Post coverage is here (with charts), and the study press release is here.

Industry Opposition to the FTC's Nutrition Facts Privacy Label

by Jeff Sovern

According to an article in Evan Hendricks's Privacy Times from October 24 (I'm behind in my reading), the FTC is working on a standardized privacy label akin to the nutrition facts labeling on food.  The label is to focus on five main items.  Not so readable as a single grade, but it still sounds more readable than what we have now (though I have on my pile of things to get to a study that shows that consumers won't read standardized privacy tables, but maybe this is a different kind of label; as I say, I haven't gotten to that study yet, so I just don't know).  In any event, how does the industry react?  Well, the headline of the Privacy Times story tells it all: "Leibowitz's 'Nutrition Labels' Sparks Pushback from Industry."  And what is the basis of this pushback?  Concern for the consumer.  One big firm lawyer is quoted as saying that she isn't certain that five elements are going to tell consumers any more information than they already have.  Another is concerned that nuances will be lost.  Very thoughtful of them.  But given that it appears that most consumers already don't read privacy policies, could it be that many consumers are not getting any information, much less picking up on nuances?  Could it also be that some businesses benefit when consumers don't read privacy policies because it allows the businesses to do what they want with consumer information--and that businesses that have that freedom don't want to lose it by having consumers understand privacy policies and take them into account in deciding which businesses to patronize?  Might that be a reason for businesses to oppose simpler disclosures--one that businesses dare not acknowledge?

Do Consumers Want a Do-Not-Mail List?

Chris Jay Hoofnagle and Jennifer M. Urban, both of Berkeley Law, and Su Li of Berkely's Center for the Study of Law and Society, have written Privacy and Advertising Mail.  Here's the abstract:

In this paper, we consider why Americans may frame the generation and receipt of unsolicited advertising mail as a privacy violation. We then present data from our nationwide survey showing that a very large majority of Americans, across all ideologies, educational attainment levels, age, and income levels, support the creation of a do-not-mail mechanism similar to the popular Telemarketing Do Not Call Registry. We discuss our results in light of the fact that direct advertising mail now makes up more than half of all mailpieces sent by the United States Postal Service (USPS).

 

 

A Contrarian Historical Perspective on Robert Bork

by Paul Alan Levy

The death of Robert Bork today has revived the old debate about the defeat of his nomination to the Supreme Court, but I am sorry to see many of the ordinarily reliable sources missing the boat in their discussions.  The New York Times, for example, talks about how liberals opposed him because of "their sense that he cared more about abstract legal reasoning than the people affected by it."  Jeffrey Rosen writes in The New Republic about Mr. Bork's "ideological open-mindedness" and how unfairly his record was portrayed by those darn liberals.

I lived through that fight, and although I saw some of those arguments made, the recollection of Mr. Bork that is being perpetuated in such reports is much too kind to him.

If You Violate Your Employer's No-Personal-Use-of-Workplace-Computers Rule Have You Committed a Crime?

Read this article on that topic by Stephanie Greene and Christine O'Brien. Here is the abstract:

If you spend time at work checking Facebook or shopping online you might be violating your employer’s computer policy. But you might also be committing a federal crime. For the past decade or so, courts have disagreed over the scope of the Computer Fraud and Abuse Act. Some courts have found that an employee who violates a workplace policy, breaches a contract, or breaches a duty of loyalty to his employer may be both civilly and criminally liable under this Act. Computers provide new opportunities for distraction at work; they also provide opportunities for dishonest behavior. While some behavior is clearly criminal, it is not always clear what type of behavior should be criminal under the Act, particularly as social norms about workplace habits and computer use are constantly evolving.

This article focuses on the variety of ways courts construe the Computer Fraud and Abuse Act which criminalizes some types of access to computers, detailing how courts continue to struggle with an accepted interpretation of what is, and what is not, criminal. A recent highly anticipated case, the Ninth Circuit’s en banc United States v. Nosal decision, reflects this discord. In a 9-2 decision, the court held that the ambiguous criminal statute should be given limited applicability because its general purpose is to punish hacking rather than acts such as misappropriation of confidential information. The decision expresses concern that a broad interpretation of the statute would criminalize a range of acts we all engage in on employer networks. The Ninth Circuit’s interpretation creates a notable split of opinion with the First, Fifth, Seventh and Eleventh circuit courts of appeal. More recently, the Fourth Circuit followed the reasoning of the Ninth Circuit’s narrow interpretation theory thereby furthering the division of opinion on this issue.

Mortgage relief could become taxable if we jump off the cliff

This NYT story, though published in October, seems increasingly relevant as the fiscal cliff talks grind on without resolution. The takeaway: a 2007 tax break to exempt mortgage debt relief from being taxed as income is about to expire. Like everything else in the budget, its fate is at stake in the current fiscal negotiations.

Do the Airlines Mislead Consumers in Paying Extra for Seats?

Ever make a plane reservation well in advance, try to pick a seat on-line (which the airline suggests that you do), and find out that the only "free" seats are a few crappy middle seats? All the others are "grayed out," indicating that they have already been reserved. Hmm. That's funny, I just bought that ticket, and the plane doesn't leave for a month. Oh, I see, not all the seats are grayed out. There are a few "premium" seats available if I want to fork over some more money. Double hmm. And, did you ever check back shortly before the flight and find that, magically, a few decent seats have opened back up? Triple hmm. Maybe they are just trying to get my money by pretending that seats are taken when they really aren't. Read David Lazarus's article on the topic, which focuses on the shenanigans of American Airlines.

Times: Banks Seek a Shield in Mortgage Rules

Here.  It's about the CFPB's forthcoming qualified mortgage rules. An excerpt:

The rules are meant to help bolster the housing market. By shielding banks from potential litigation, policy makers contend that the industry will have a powerful incentive to make higher quality home loans.

But some banking and housing specialists worry that borrowers are losing a critical safeguard. Industries rarely get broad protection from consumer lawsuits, and banks would seem unlikely candidates given the range of abuses revealed during the housing bust.

Infographic on Things People Do That Increase the Risk of Identity Theft

Here. 

Developments in Libel Suit Against Yelp Reviewer

by Paul Alan Levy

Earlier this month, Brian Wolfman and I both wrote about an impending preliminary injunction hearing in a libel suit over a consumer's review of a local contractor who, she said, had botched his work on her home.  The trial judge largely denied relief, but orally ordered the homeowner to revise her comments in two respects.  The homeowner has sought reconsideration of the order, specifically raising First Amendment arguments about prior restraint as well as citing a Virginia case that appears to align Virginia with other states where "equity will not enjoin a libel."