Consumer Law & Policy Blog

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Wednesday, March 11, 2015

In DC, parity for consumers in arbitration appeals

The D.C. Court of Appeals has ruled that under District law, a decision enforcing an arbitration clause is immediately appealable. This ruling, based on a D.C. arbitration reform law from 2007, corrects a pro-arbitration imbalance that had previously existed in the District and continues to exist in most jurisdictions: the denial of a motion to compel arbitration is immediately appealable, but if arbitration is granted, the consumer has to go all the way through the arbitration to which they are objecting before exercising a right to appeal.

The right to appeal early is a powerful one, because timing can effect the parties' incentives to settle and what costs they have to pay while waiting for their appellate rights to ripen.

In this case, the D.C. court "recognized the potential for widespread use of adhesion contracts containing arbitration agreements to deprive consumers of any meaningful choice, which raises serious questions about the fairness of enforcing the terms of those contracts against consumers." Thus, forcing consumers into arbitration is a significant step with potentially deleterious consequences:

[A]rbitration can be costly and time-consuming, and does not afford the consumer the same process as the courts. . . . [J]udicial review of arbitration agreements—including the substantive fairness of those agreements—is extremely limited, both at the trial court level as well as on appellate review. Thus, we are satisfied that the current and frequent inclusion of arbitration clauses in consumer contracts of adhesion justifies our conclusion that a consumer compelled to arbitrate with a commercial entity pursuant to such a clause suffers significant injury . . . such that an order compelling arbitration in this context operates as an order granting an injunction and necessitates our immediate, interlocutory review . . . .

(citations and footnote omitted).

Let's hope other jurisdictions follow D.C.'s lead.

Posted by Scott Michelman on Wednesday, March 11, 2015 at 10:48 AM | Permalink | Comments (0)

Tuesday, March 10, 2015

Philadelphia Inquirer's Jeff Gelles on Yesterday's Credit Bureau Settlement

Here.  My favorite part:

I've written a lot over the years about the need for government to step in when markets fail to protect consumers.* * * Nearly every time, I get angry push-back from tea-party types and libertarians who question any intervention - even against monopolists or near-monopolists. Among the rare exceptions: the nation's three main credit-reporting agencies, which generate anger that crosses all political and ideological bounds. 

Posted by Jeff Sovern on Tuesday, March 10, 2015 at 07:07 PM in Credit Reporting & Discrimination | Permalink | Comments (0)

Fifth Circuit Upholds Dismissal of HIV Denialist's Trademark Claim – But Will Fees Be Awarded?

by Paul Alan Levy

In a two-page per curiam ruling, the Fifth Circuit has affirmed the decision of Judge Sam Cummings of the Northern District of Texas to dismiss, on the face of the complaint, Lanham Act claims brought by Clark Baker and his “Office of Scientific and Medical Justice” against a blogger who created a critical web site about the plaintiffs' "HIV Innocence Project" using the domain names “hivinnocencegrouptruth.com” and “hivinnocenceprojecttruth.com.”  Although the appellate decision itself is not very illuminating, the fact that the court indicated that its reasoning was the same as that of the trial judge helps illuminate the ruling as well as reinforcing the important precedent that it set — that when a defamation plaintiff throws in a trademark claim to justify suing in federal court, as well as hoping to make the whole proceedings more intimidating to the defendant, it really is possible to get the case thrown out at the pleading stage.  

This possibility should give heart to bloggers and their hosts who want to use, indeed, need to use trademarked names. Because trademark litigation tends to be very expensive, being able to get out based on motion to dismiss is vital, especially if the lawyers are not working pro bono.

Continue reading "Fifth Circuit Upholds Dismissal of HIV Denialist's Trademark Claim – But Will Fees Be Awarded?" »

Posted by Paul Levy on Tuesday, March 10, 2015 at 04:27 PM | Permalink | Comments (1)

Wikimedia sues NSA for spying on all internet traffic

Today a broad group of educational, legal, human rights, and media organizations sued the NSA over what it calls "Upstream surveillance," under which, the complaint alleges, the NSA vacuums up for review all data that travels across the internet, regardless of whether that data comes from or to a specific NSA target.

Key allegations from the complaint, filed by the ACLU in federal district court in Maryland, include:

Upstream surveillance involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en masse as those communications travel across the internet “backbone” in the United States. The internet backbone is the network of high-capacity cables , switches, and routers that facilitates both domestic and international communication via the internet. (Compl. Paragraph 41)

Upstream surveillance is not limited to communications sent or received by the NSA’s targets. Rather, it involves the surveillance of essentially everyone’s communications. The NSA systematically examines the full content of substantially all international text-based communications (and many domestic ones) for references to its search terms. In other words, the NSA copies and reviews the communications of millions of innocent people to determine whether they are discussing or reading anything containing the NSA’s search terms. (Compl. Paragraph 44)

To read the whole complaint, go here.

In an NYT op-ed, Wikipedia founder Jimmy Wales explains the reason for the suit. Wikipedia relies on its tens of thousands of volunteer contributors around the world to expand its database of knowledge, Wales recounts, and

those volunteers discuss their work on everything from Tiananmen Square to gay rights in Uganda. Many of them prefer to work anonymously, especially those who work on controversial issues or who live in countries with repressive governments. These volunteers should be able to do their work without having to worry that the United States government is monitoring what they read and write. Unfortunately, their anonymity is far from certain because, using upstream surveillance, the N.S.A. intercepts and searches virtually all of the international text-based traffic that flows across the Internet “backbone” inside the United States. . . .

As a result, whenever someone overseas views or edits a Wikipedia page, it’s likely that the N.S.A. is tracking that activity — including the content of what was read or typed, as well as other information that can be linked to the person’s physical location and possible identity. These activities are sensitive and private: They can reveal everything from a person’s political and religious beliefs to sexual orientation and medical conditions.

Giving security cooperation between the U.S. and Egypt as an example of a context in which government surveillance is likely to chill expression based on fears of official reprisal, Wales concludes that “Pervasive surveillance has a chilling effect. It stifles freedom of expression and the free exchange of knowledge that Wikimedia was designed to enable.”

To read the whole op-ed, go here.

Posted by Scott Michelman on Tuesday, March 10, 2015 at 01:14 PM | Permalink | Comments (0)

Obama takes a little action to help with student loans

Obama this morning signed a memorandum to "clamp down" on student loan servicers, the Boston Herald reports:

More than 40 million Americans are in debt thanks to their education, and most of their loans come from Uncle Sam. So President Barack Obama is aiming to clamp down on the private companies that service federal student debt with a presidential memorandum he signed Tuesday.

Obama's policy tweaks don't require new legislation from Congress — a plus as far as the White House is concerned. But they won't be earth-shattering for student-borrowers, either. Instead, the new steps seek to tilt the student lending process more toward the student, with a particular focus on graduates struggling to make their monthly payments.

The President's memo targets third parties like Sallie Mae/Navient that contract with the government to collect on federal student debt.

The full story is posted here.

Posted by Allison Zieve on Tuesday, March 10, 2015 at 12:54 PM | Permalink | Comments (0)

What is ‘natural food?’ Even the people who make it aren’t sure.

That's the name of this article by Peter Whoriskey. Note in particular the long list of "unnatural" ingredients at the end of the article that find their way into foods advertised as "natural."

[HT to Michele Simon]

Posted by Brian Wolfman on Tuesday, March 10, 2015 at 11:57 AM | Permalink | Comments (0)

Lawsuit seeks to force carmakers to fix hacking vulnerability

by Steve Gardner

My firm, the Stanley Law Group, filed a class action today  against Toyota, Ford, and General Motors because of a defect that allows cars to be hacked and control wrested away from the driver. The Complaint was filed in the United States District Court for the Northern District of California. You can download the 2MB Complaint here. 

Senator Ed Markey issued a report that broke this story. You can download Senator Markey's report here and you can read a good Wired article on the issue here.
 
Brian Wolfman wrote about Senator Markey's report on this Blog a month ago.

Posted by Steve Gardner on Tuesday, March 10, 2015 at 11:54 AM | Permalink | Comments (0)

Early coverage of the CFPB's arbitration study

Go here, here, here, and here.

Posted by Brian Wolfman on Tuesday, March 10, 2015 at 10:06 AM | Permalink | Comments (0)

Senators introduce bill to rein in databrokers

From Consumer Watchdog:

Four Senate Democrats have re-introduced a bill that would enable consumers to wield control over how information about them is used by data brokers.

The Data Broker Accountability and Transparency Act (S. 668) empowers consumers to stop the use and sale of their personal information by data brokers. The measure also allows consumers to correct information held by data brokers, which the bill defines as companies that collect personal information in order to sell it to third parties.

The bill was introduced by Senators Senators Edward J. Markey, Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.) and Al Franken (D-Minn.).

Read the Consumer Watchdog story here. Read Senator Markey's press release here.

Posted by Allison Zieve on Tuesday, March 10, 2015 at 09:18 AM | Permalink | Comments (0)

Congressional Budget Office says that costs of the Affordable Care Act will be less than expected

This article by Max Ehrenfreund and Sandhya Somashekhar explains that, according to a new Congressional Budget Office report, the Affordable Care Act is costing taxpayers less than expected because of lower medical spending costs, which in turn will reduce the expected cost of insurance premiums, which in turn will lower the amount the government spends on subsidies for people who cannot fully afford the premiums.

Posted by Brian Wolfman on Tuesday, March 10, 2015 at 09:00 AM | Permalink | Comments (0)

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