Consumer Law & Policy Blog

House Republicans jump into net neutrality debate

We've written before about the FCC's most recent (and troubling) proposal for net neutrality.

Now comes this letter to FCC Chair Tom Wheeler, signed by the four top House Republicans, opposing any attempt to reclassify the internet in such a way as to promote net neutrality. Doing so, the letter argues, "threatens to slow job creation and jeopardizes our economic recovery." As the Legal Times notes, the issue is already dividing the FCC along partisan lines. Meanwhile, the story explains, "Consumer advocates such as Free Press urge the FCC to reclassify broadband as a more heavily regulated Title II service, akin to a telephone company."

 

New Pew study on student debt: "Young Adults, Student Debt and Economic Well-Being"

The Pew Research Center has just issued a report called Young Adults, Student Debt and Economic Well-Being. Among other things, it finds that

Student debt burdens are weighing on the economic fortunes of younger Americans, as households headed by young adults owing student debt lag far behind their peers in terms of wealth accumulation, according to a new Pew Research Center analysis of government data. About four-in-ten U.S. households (37%) headed by an adult younger than 40 currently have some student debt—the highest share on record, with the median outstanding student debt load standing at about $13,000.

Read the whole report, and note what Pew calls its 5 key findings on student debt:

1 - College-educated households with student loans to repay have a lower net worth than those with no student debt.

2 - While taking on debt to finance a college education is associated with lower net worth, it doesn’t seem to have an impact on income.

3 - Young households with student debt are much more likely to have car loans and credit card debt, too.

4 - Debts are growing for households that have student loans to repay.

5 - Young households that borrowed for college are less satisfied with their personal financial situation than those who didn’t and are less likely to say their education has paid off.

Check out a couple of Pew's illustrative charts:

Click on the chart below to enlarge it.

How does the Obama administration's civil-rights enforcement record compare to the Bush II administration's civil-rights enforcement record?

That's what law professor Michael Selmi is talking about in his new article, The Obama Administration's Civil Rights Record: The Difference an Administration Makes. Here is the abstract:

This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on the Civil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior Bush Administration, and with a few exceptions (mortgage discrimination and voting) the Administration has brought very few major cases. One interesting development is that the EEOC has become a far more aggressive enforcement agency than the Justice Department’s Civil Rights Division, as the EEOC has pursued a number of important and innovative issues that would move the law forward. At the same time, the EEOC’s actual number of cases filed has dropped significantly for the EEOC, as it is now bringing fewer claims than the agency did under the Bush Administration. Finally, the essay concludes that, while civil rights has not been a priority, the path it has taken follows the principles of the Democratic Party.

California Court of Appeals Creates New Argument for Protecting Anonymous Online Speech

by Paul Alan Levy

In a decision issued today, the California Second District Court of Appeal has created an additional way for anonymous speakers, and for web operators who host anonymous comments, to protect the right to speak anonymously.   Instead of invoking the First Amendment as courts in other states, and indeed other appellate courts in California have done, the Court of Appeal reversed an order compelling the identification of an anonymous speaker because the discovery order violated the state constitutional right of privacy.

NACA adopts Third Edition of its Standards and Guidelines for Litigating and Settling Class Actions

by Stephen Gardner

The Board of Directors of the National Association of Consumer Advocates adopted the Third Edition of its Standards and Guidelines for Litigating and Settling Class Actions on May 13 (Download here), continuing a tradition of setting high standards for the ways consumer class actions are handled that began with the first Guidelines adopted in 1997 and published at 176 F.R.D. 370. (NACA issued the Second Edition of the Guidelines in 2006, published at 255 F.R.D. 215)

A number of courts have referred to the Guidelines, including Boyle v, Giral, 820 A.2d 561, 569 fn. 8 (D.C.C.A. 2003); Braud v. Transport Service Co. of Illinois, 2010 WL 3283398 (2010 E.D. La.); Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1308 (S.D. Fla. 2007); Henderson v. Eaton, 2002 WL 31415728, *6 (E.D.La. 2002); In re Compact Disc Minimum Advertised Price Antitrust Litigation, 216 F.R.D. 197, 204 (D.Me. 2003); In re Educational Testing Service Praxis Principles of Learning and Teaching, Grades 7-12 Litigation, 447 F.Supp.2d 612, (E.D.La. 2006); In re Mexico Money Transfer Litigation (Western Union and Valuta), 164 F.Supp.2d 1002, 1028-1030 (N.D.Il. 2000); In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 278 F.3d 175, 194 fn. 1 (3rd Cir. 2002); Milkman v. American Travellers Life Ins. Co., 2002 WL 778272, *7-9  (Pa.Com.Pl. 2002); Moody v. Sears, 2007 WL 2582193 (N.C. Super. 2007);State v. Homeside Lending, Inc.,  826 A.2d 997, 1009-1011 (Vt. 2003); Wilson v. DirectBuy, Inc., 2011 WL 2050537 (D. Conn. 2011).

Because things have changed in the class action world since 2006, NACA’s Executive Director Ira Rheingold appointed a committee consisting of some of the most principled and experienced class action lawyers in the country (Rob Bramson, Seth Lesser, Mike Quirk, Stuart Rossman, and Brian Wolfman) and asked me to chair the committee. I’d had the privilege of helping draft the prior two editions of the Guidelines (together with committee member Rob Bramson), and was happy to coordinate the efforts of this excellent set of drafters.

The Third Edition is thoroughly updated on the law, and continues the spirit of demanding high ethical standards of NACA members who bring class actions. It covers a wide range of issues that arise in consumer class actions (listed below).

One significant, though regrettable, change from the Second Edition is that the Third Edition no longer has a guideline on arbitration, metaphorically marking the regrettable fact that the Supreme Court has effectively aided the business community in forcing arbitration in almost every situation covered by consumer laws.

Each Guideline is organized into three sections: A. The Issue (containing an overview of the current state of the topic of the specific Guideline), B. Discussion (discussing and addressing differing viewpoints), and C. NACA Guideline (the Guideline itself, which the Board adopted as NACA policy).

Reading any or all of these Guidelines provides a good overview of the current status of these issues, both factual and legal, and gives high standards for any lawyer who brings consumer class actions.

• Guideline 1 – The Propriety Of Class Actions When Individual Recoveries Are Small                  
• Guideline 2 – Settlements When Other Class Actions Are On File
• Guideline 3 – Class Actions Involving Homes
• Guideline 4 – Certificate Settlements
• Guideline 5 – Additional Compensation To Named Plaintiffs
• Guideline 6 – Class Member Buyoffs/Rule 68
• Guideline 7 – Cy Pres Awards
• Guideline 8 – Attorney Fee Considerations
• Guideline 9 – Class Member Releases
• Guideline 10 – Confidentiality
• Guideline 11 – Improved Notice Of Settlement
• Guideline 12 – Claim Forms
• Guideline 13 – Communications With Class Members
• Guideline 14 – Role Of Objectors
• Guideline 15 – Monitoring Settlement Compliance

 UPDATE: Brian Wolfman points out to me that it was NACA member Chandler Visher who first suggested that NACA consider revising these Guidelines, so good on ya, Chandler.

HHS Lawyer Threatens Blogger with Defamation Action

by Paul Alan Levy  

Popehat carried a story yesterday about a demand letter from a "senior attorney" for the US Department of Health and Human Services named Dale Berkeley (who pompously signed himself as "Ph.D. / J.D."), complaining about two lame parodies on a web site that opposes Alcoholic Anonymous and asserts that there is no such thing as alcohol addiction or drug addiction.  The demand letter asserts that a parody interview with an HHS official, and a parody cease-and-desist letter about the interview purporting to be from another HHS official, denouncing the interview post as a sham, might mislead readers into believing that they are real.

I suppose there is room for debate about the characterization of the interview blog post as misleading; but the parodic cease-and-desist letter itself labels the interview as a sham, so it is hard to understand why a federal agency would think it worthwhile to complain about the interview post and request either removal or a disclaimer.  The parody cease-and-desist letter is a disclaimer. 

Even worse, the letter goes on to assert that the posts are "defamatory" and could subject the blogger to liability. The propriety of this part of the letter is not at all in doubt.  The government itself cannot be defamed; that much was settled by the controversy over the Alien and Sedition Acts.  Although individual public officials can sue for defamation, assuming that they can prove actual malice, the cause of action is for them personally, so we might wonder why a government lawyer is threatening libel liability when the damages would not be payable to the government itself.

I attempted to reach Berkeley to ask such questions, but his office's secretary left me on hold for several minutes; when I called back, I found my way to his extension, but the phone was answered and then hung up.

Mandatory Arbitration Offers Bargain-Basement Justice

Note: This item is reposted from yesterday. I screwed up the link to Adam Levitin's essay in the original link. The link has now been repaired, and I want to make sure that our readers have a chance to read the essay.

"Mandatory Arbitration Offers Bargain-Basement Justice." That's the name of this thoughtul essay by law professor Adam Levitin (pictured below) in the American Banker.

A few automakers taking the lead on rear visibility safety

We've told you about the long saga to coax the DOT to issue a rear visibility safety standard, as mandated by Congress six years ago, to help prevent "backover" crashes, which primarily affect young children and the elderly. Six weeks ago, DOT finally issued the long-delayed standard, which will effectively require backup cameras in all new vehicles by 2018.

Showing that sometimes good safety practices are also good business, GM has announced that Buick will make backup cameras standard in their cars by 2015. Buick will join Honda, Acura and Infiniti in getting out ahead of the regulatory requirement, reports Automotive News this week.

Study: Romneycare saves lives

Remember Romneycare? You know, the universal health care plan in Massachusetts championed (and signed) in 2006 by then-Massachusetts governor Mitt Romney, which required individuals who could afford it to buy health insurance (or pay a tax or fine if they didn't). Yes, Romneycare, the law that provided a blueprint for key components of the national Affordable Care Act.

According to this study led by Benjamin Summers of the Harvard School of Public Health, Romneycare has saved lives in Massachusetts, particularly among low-income people. Here's a summary of the study's results:

Reform in Massachusetts was associated with a significant decrease in all-cause mortality compared with the control group (-2.9%; P = 0.003, or an absolute decrease of 8.2 deaths per 100 000 adults). Deaths from causes amenable to health care also significantly decreased (-4.5%; P < 0.001). Changes were larger in counties with lower household incomes and higher prereform uninsured rates. Secondary analyses showed significant gains in coverage, access to care, and self-reported health.

This article by Brett LoGiurato provides more details.

 

Mandatory Arbitration Offers Bargain-Basement Justice

That's the name of this thoughtul essay by law professor Adam Levitin (pictured below) in the American Banker.