Consumer Law & Policy Blog

Ed Mierzwinski: What Congress Should Do About Data Breaches

Here. A look at the bigger picture, and a lot of sage advice.

Anti-fracking advocate moves to vacate injunction barring her from large swaths of her home county

As reported by the Guardian and other news outlets, Cabot Oil and Gas Corporation is going to great lengths to keep Pennsylvania environmental activist Vera Scroggins out of sight and out of earshot. So much so that the company obtained an injunction barring Scroggins not only from Cabot-owned properties but also all properties in the county where Cabot has a lease to extract gas from under the surface of the land – a category that includes the homes of some of Ms. Scroggins friends; her grocery store, auto mechanic, rehabilitation center, and recycling center; and even the hospital closest to her home.

Does a gas company’s right to extract gas from under the surface of the land give it the right to dictate who comes on the surface, even for properties where the company has no active drilling operations? No, it doesn’t, asserts Public Citizen in a brief filed today in cooperation with Sayre, Pa., lawyer Gerald A. Kinchy and the ACLU of Pennsylvania. Furthermore, we argue, the injunction against Scroggins is overbroad and violates her constitutional rights to freedom of speech and freedom of movement.

Discrimination against obese people in employment

The number of obese people has skyrocketed in recent years, which has focused some lawmakers on discrimination against obese people, including in employment. Some jurisdictions have enacted laws against this type of employment discrimination. In Legal Largesse or Big, Fat Failure: Do Weight Discrimination Laws Improve Employment Outcomes of the Obese?, Jennifer Shinall looks at whether these laws have been effective. Here is the abstract:

Obesity rates have more than doubled in the last two decades, and yet obese individuals continue to experience both wage and employment penalties in the labor market. This paper conducts the first in-depth review of the ten local and state laws protecting obese workers across the United States. After reviewing the legislative history, enforcement procedures, and remedies available under each law, I use empirical methods to assess each law’s efficacy in improving labor market outcomes of the obese. From this analysis, I conclude that the laws in two cities — Madison, Wisconsin and Urbana, Illinois — have been the most effective because they provide discrimination victims with swift, low-cost access to justice.

About those "opt-out" provisions in binding arbitration clauses

Last week, Brian noted that DropBox has added a forced arbitration clause with a class-action ban to its terms of use, and observed that the "opt-out" provision was a "public relations gambit," not a serious effort to allow consumers to make an informed choice about whether to give up the right to go to court. On the Public Justice blog today, Paul Bland has a longer post expanding on Brian's observation.

 

Jim Butler Chevrolet's Temporary Censorship of a Damning Consumer YouTube Video

by Paul Alan Levy

After Dwayne Cooney left his car overnight for service at Jim Butler Chevrolet in Fenton, Missouri, and was told his car had required 5-1/2 hours work, he paid the bill in full. But he was curious about what had taken to long to fix, so he checked the dash camera which, as a security professional, he had installed in the vehicle for safety reasons.  He was surprised to learn that the dealer had lied to him about the repairs performed, resulting in an substantial overbilling.

Cooney posted seventeen minute excerpt of his video on YouTube, along with captions and his own narration explaining the problem, and got several thousand views and more than two hundred comments.  Jim Butler Chevrolet responded by suing him for defamation in the Circuit Court for St. Louis County, Missouri.  Along with its complaint, the dealership filed a motion for a temporary restraining order and preliminary injunction.   The papers were served on Cooney late Friday afternoon, notifying him that a TRO hearing would be first thing Monday morning.  

"Prepaid Cards and Overdraft"

Those are topics of continuing concern to consumer advocates and the title of this paper by Sean Brian. Here is the abstract:

In the last few years, store gift certificates have matured into a diverse set of products including "open loop" prepaid cards capable of providing services traditionally reserved to banks. At the same time, tighter regulations on banks have raised the cost of bank accounts and driven many out of the banking market. Prepaid card providers including merchants like Walgreens are seeking to serve this new "unbanked" population with bank-like services including overdraft protection. Consumer groups have not given these new services a warm reception. In some cases, their concerns were warranted as prepaid programs made an end run around payday lending laws. However, recent actions have left companies in a quandary as to the precise limits of laws against deceptive and unfair practices. This paper seeks to survey regulatory actions, guidance, and current law to suggest a set of best practices that will allow companies to provide the innovative products that consumers are demanding while ensuring that they remain financially sound.

Supreme Court reads Sarbanes-Oxley whistleblower protection broadly

The question before the Court in Lawson v. FMR LLC was whether the whistleblower protection of Sarbanes-Oxley Act of 2002 applies only to employees of public corporations or also to the employees of contractors with those corporations. Contractors' employees are included, ruled the Supreme Court today, in a 6-3 decision that did not split along traditional ideological lines (Justice Ginsburg wrote the opinion of the Court, joined by Chief Justice Roberts, Justices Breyer and Kagan, and "in principal part" by Justices Scalia and Thomas). The majority concluded that its interpretation was required not only by the statutory text but also to avoid leaving a gaping hole in the statute's coverage, because many mutual funds covered by Sarbanes-Oxley (including the Fidelity funds at issue in this case) have no employees themselves and operate solely through contractors.

Dennis Hirsch Article Proposes Sectoral Global Privacy Rules

Dennis D. Hirsch of Capital has written In Search of the Holy Grail: Achieving Global Privacy Rules Through Sector-Based Codes of Conduct, 74 Ohio St. L.J. (2013). Here is the abstract:

The movement of personal data across national borders is fundamental to the Internet economy. Yet the laws that govern such data flows remain national or, at best, regional. This mismatch weakens privacy protection, increases costs and uncertainty for business, creates tension and political strife between major trading partners such as the US and the EU, and confronts global privacy managers with difficult challenges. These problems have made the harmonization of national and regional privacy laws a very hot topic in privacy law and policy today. Several initiatives have sought to achieve such harmonization, but none has proven satisfactory.

This article proposes a relatively simple and elegant solution: internationally-approved, industry codes of conduct. The European Union and the Asia-Pacific Economic Cooperation (APEC) organization have each established privacy rules for their respective region. The proposed solution would take advantage of these existing arrangements. It would work as follows. An industry sector would draft a privacy code of conduct that fulfilled the core requirements of the EU and APEC regional privacy regimes. It would then submit the same code to the relevant authority in each system. If each approved the terms of the code, then firms that met those terms could feel quite confident that their activities complied with EU and APEC-region legal requirements. The approved code would function as a nearly global set of privacy rules.

The Article provides a fuller exposition of this proposal, situates it in regulatory theory, and explains how it fits with current legal frameworks. It shows that existing privacy law regimes already contain many of the pieces needed to support the proposed approach. It identifies the legal reforms that will be required in order to make this solution work, and so to come closer to that Holy Grail of privacy law: harmonized, global privacy rules.

What is bitcoin? (And what's the difference between bitcoin and Bitcoin?)

Read this article by Kate Cox.

National Consumer Protection Week has started

March 2-8 is National Consumer Protection Week (NCPW). NCPW is a campaign of a group of non-profit organizations (including AARP and Consumers Union) and federal and state government entities (including the Federal Trade Commission and the Consumer Financial Protection Bureau), aimed at helping consumer to “take advantage of their consumer rights and make better-informed decisions.”

The NCPW website has information and links to information about a range of consumer topics, including banking, credit and debt, health and safety, identity theft, shopping and saving, scams, technology, and automobiles.

You can watch the NCPW video here.