Consumer Law & Policy Blog

Max Kennerly on the Ninth Circuit's Gutierrez Decision

Here.

Shauhin Talesh Study on How Dispute Resolution Structures Affect Implementation of Consumer Law

Shauhin A. Talesh of Irvine has written How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws, 46 Law & Society Review (2012).  Here's the abstract:

This study demonstrates how the structure of dispute resolution shapes the extent to which managerial and business values influence the meaning and implementation of consumer protection law, and consequently, the extent to which repeat players are advantaged. My analysis draws from, links, and contributes to two literatures that examine the relationship between organizational governance structures and law: neo-institutional studies of law and organizations and socio-legal studies of repeat players’ advantages in disputing. Specifically, I compare an instance where powerful state consumer protection laws are resolved in private dispute resolution forums funded by automobile manufacturers but operated by independent third-party organizations (California) with one where consumer disputes are resolved in public alternative dispute resolution processes run and administered by the state (Vermont). Through in-depth interviews and participant observation in the training programs that dispute resolution arbitrators undergo in each state, I show how different dispute resolution structures operating in California and Vermont give different meanings to substantially similar lemon laws. Although my data do not allow me to establish a causal relationship, they strongly suggest that the form of the dispute resolution structure, and how business and state actors construct the meaning of lemon laws through these structures, have critical implications for the effectiveness of consumer protection laws for consumers.

Charles Carreon’s Trademark Claims End, Not With a Bang, but a Whimper

by Paul Alan Levy

Last summer, I blogged about trademark claims threatened by Charles Carreon, a California lawyer with a notorious past who maintains a private practice out of his home in Arizona.  He had threatened suit against an anonymous blogger for making fun of Carreon at a web site using the domain name charles-carreon.com, leading us to sue for a declaratory judgment of non-infringement.  His threats against the company that had sold the blogger a private registration induced that company to temporarily out the blogger, although it restored the private registration after Public Citizen interceded.

There have been several developments since I posted that story, but the bottom line is that, after doing his best to avoid being served and hence forced to defend the case, Carreon surrendered completely, serving a Rule 68 judgment that gave the blogger everything he had sued, and exposing Carreon to claims for a substantial award of attorney fees.   Bloggers at Popehat and Techdirt have followed the story in some detail, as has a recent law school graduate. Some members of the public have been deliberately visiting PACER on a regular basis, using their RECAP software to ensure that any member of the public can get free access to the entire court file.  Suffice it to say that, after ducking service for several months, Carreon was served outside a courtroom in the vary federal court in which the declaratory judgment action was filed.   Then, after demanding that the blogger accept restrictive terms on his use of the domain name, threatening to sue Public Citizen for damages if its client would not agree, Carreon simply folded his hand and submitted an offer of judgment under Rule 68, which the blogger accepted because it gave him complete relief on the merits.

Virginia Supreme Court Reverses Preliminary Injunction Against Yelp Review

by Paul Alan Levy

The Virginia Supreme Court has summarily reversed a preliminary injunction requiring the author of a consumer review criticizing a Washington DC contractor to revise her statements about the contractor.   We filed a petition for review arguing that the injunction was an impermissible prior restraint, in addition to violating the common law rule that "equity will not enjoin a libel."  Without even waiting for a response from the plaintiff, the Supreme Court invalidated the injunction first on the highly technical ground that it did not specify the time during which the injunction would be effective, but also because "the preliminay injunction was not justified and . . . the respondents have an adequate remedy at law." 

As a result of the ruling, the contractor, Christopher Dietz, will be able to pursue his claims for damages, but in the meantime, members of the public will be able to review Jane Perez's criticism and Dietz's responses, and make up their own minds.

The preliminary injunction hearing transcript (with testimony from both Dietz and Perez), the exhibits from both sides, and our petition for review to the Virginia Supreme Court as well as that court's ruling are linked from this page.

Rochelle Broboff on the Supreme Court's Nitro-Lift Decision and the Concern Over Supreme Court Unanimity in FAA Decisions

We posted in late November about the Supreme Court's unanimous per curiam Federal Arbitration Act (FAA) decision in Nitro-Lift Technologies v. Howard. There, the Justices held that, in light of an arbitration clause, only an arbitrator and not the Oklahoma courts could, in the first instance, hold contract provisions unenforceable.

Now, in this article, Rochelle Broboff of the Constitutional Accountability Center explains why the Supreme Court's decision in Nitro-Lift and, in particular, its unanimity concerns her. She doesn't argue that Nitro-Lift is at odds with any of the Court's precedents. Rather, her concern is that the current members of the Court may have accepted its recent FAA rulings, including those that, Broboff says, are at odds with the text and purpose of the 1925 act. She says that a willingness to buck the recent trend may be needed when the Court hears two more cases later this Term concerning the interaction between class actions and the FAA:

The conservative majority's forced arbitration jurisprudence — once called "an edifice of the Court's own creation" by former Justice Sandra Day O'Connor — is encountering persistent resistance from state courts and from lower federal courts. However, that fight should be far from over, even if there are presently not five votes to reverse course. In the past few weeks, the Supreme Court has granted certiorari in two FAA cases involving the availability of class-wide relief in arbitration: American Express Co. v. Italian Colors Restaurant and Oxford Health Plans LLC v. Sutter. In American Express, the plaintiffs need an expert report the cost of which dwarfs the financial interest of any individual plaintiff. If the class action remedy is not available in the mandatory arbitration proceeding, then there will be no means for injured parties to band together to pay for the expenses of the expert. The arbitration remedy will, in fact, provide no remedy at all. In Oxford, after the district court held that a mandatory arbitration clause precluded a class action claim in court, the arbitrator concluded that the class claim could proceed in arbitration, based on the term "civil action" in the arbitration agreement. The company challenges the arbitrator's interpretation of the contract, arguing that the mandatory arbitration provision completely eliminates any access to class-wide relief.

 

The Value of Cell Phones: Crime Reduction?

I often hear people complain about their cell phones and their cell-phone service providers. But even if your cell phone doesn't work too well and your cell-phone company hides fees and taxes in fine print, having a cell phone is worth it, perhaps for a reason you never contemplated. According to this article by law professor Jonathan Klick and two co-authors, there is a strong correlation (though no proof of causality) between cell-phone use and crime deterrence. Read this press release for a overview of Klick's findings. (Yes, I realize that there's no excuse for deceptive marketing by cell-phone service providers!)

Harvard offering free online courses.

If you didn't get to take all the courses you wanted while in law school, Harvard has a deal for you. Harvard Law School is now accepting applications for its first online course via edX—a new online education venture between six leading universities. The 12-week copyright course begins on January 28 and will be open to 500 students. Applications for a spot in the free class, taught by William Fisher III, director of Harvard University's Berkman Center for Internet & Society, must be received by January 3.

You won't receive any law school credit for the course, but you do receive a certificate of completion. I don't know if they have any plans for a consumer law course.

Key Details of Tax Cut Bill Passed by Senate

Here.