Consumer Law & Policy Blog

FTC and DOJ Seek Views on Proposed Update of the Antitrust Guidelines for Licensing of Intellectual Property

by Jenny Hyde

The Federal Trade Commission and the Department of Justice’s Antitrust Division seek public comment on a proposed update of the Antitrust Guidelines for the Licensing of Intellectual Property, also known as the IP Licensing Guidelines. The IP Licensing Guidelines, which state the agencies’ antitrust enforcement policy with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law and of know-how, were issued in 1995 and are now being updated.

In the past 20-plus years, the IP Licensing Guidelines have served their intended purpose of providing guidance to businesses and the public regarding potential antitrust issues that may arise in the context of intellectual property licenses. In their 2007 joint report entitled Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (the “Antitrust IP Report”), the agencies reaffirmed the integral role of the IP Licensing Guidelines in their analysis of antitrust and intellectual property issues. With the IP Licensing Guidelines as an analytical tool, the agencies have accumulated additional antitrust enforcement experience and policy expertise in this area. The proposed update announced today reflects this knowledge. It is intended to modernize the IP Licensing Guidelines without changing the agencies’ enforcement approach with respect to intellectual property licensing or expanding the IP Licensing Guidelines to address other topics and areas that are addressed, for example, in the 2007 Antitrust IP Report.

Find the entire press release here.

The Conversation: Most students borrow for college, but are they financially literate?

by Jeff Sovern

Here, an op-ed by people from Ohio State, Catherine Montalto, Associate Professor of Consumer Sciences, and Anne McDaniel , Senior Associate Director there.  Excerpt:

[D]ata from our study showed over half of student loan users tried to borrow as little as possible (52 percent).

Additionally, 38 percent considered the total amount of debt that they expected to graduate with. Thirty-three percent considered the amount that had borrowed in the past when deciding how much to borrow for the school year.

But about 28 percent, almost three out of 10 students, reported borrowing the maximum amount available in their package. And about 17 percent of student loan users borrowed the maximum available without also employing a strategy to minimize overall borrowing. * * *

The SCFW included two financial knowledge questions to test whether respondents could understand the concepts of interest and inflation and had basic financial numeracy. These questions assess basic concepts of financial literacy – the knowledge and skill needed to manage financial resources effectively.

Nearly 80 percent of the college student respondents answered the interest rate question correctly. But only 59 percent answered the inflation question correctly. Just over half of the college students (53 percent) answered both questions correctly.

I'm not sure how confident we can be in a measure of financial literacy based on only two questions.  But with that caveat, it sounds as if many college students are not, in fact, financially literate.  And that in turn raises questions about whether some college students take out larger student loans than is prudent. 

Are Community Banks Perishing Under Dodd-Frank (the Statute That Created the CFPB)? Not According to White House Economists

Here.  Excerpt from the Issue Brief:

Although opponents of financial reform often claim that it has harmed community banks, a closer and more comprehensive review of the economic evidence shows that community banks remain healthy. Critics typically point to declining numbers of community banks as evidence that new regulatory requirements are too restrictive. In reality, due to bank branching patterns, the number of institutions does not provide a comprehensive picture of the health of community banks, and other indicators like lending growth and geographic reach show that community banks remain quite strong. Many community banks—particularly those with assets between $100M and $10B—have continued to grow steadily, as evident by their substantial lending growth, increasing market share in agricultural and mortgage lending, and expansion into new counties. With these trends, access to community banks and the important services that they provide has remained robust across many communities. At the same time, longer-term trends in the banking industry over the past several decades—including bank branching deregulation, merger activity, and other factors—often have created long-term challenges for community banks, particularly for the smallest ones. Macroeconomic conditions in recent years have also contributed to the lower rate of new entry by small banks. 

UPDATE: The American Bankers Association disagrees.

CONFERENCE ANNOUNCEMENT AND CALL FOR PAPERS: 25 Years of the International Association of Consumer Law

We received the following announcement:

Consumer Protection and Economic Development

July 16^th to July 19^th, 2017; Porto Alegre (UFRGS), Brazil

The Conference celebrating the 25^th year of IACL will begin an Opening Session with its Founders, on the Sunday of July 16^th, 2017, from 5PM to 8PM, and a Welcome Cocktail. The Conference will run from Monday, July 17^th, until Wednesday, July 19^th, 2017, from 09am to 06pm. The main purpose of this Conference is to provide a forum where leading international scholars, practitioners, representatives of the consumer organization, public authorities and business representatives can join to present and discuss together the fundaments, the challenges and the future of consumer protection worldwide.

For additional information, please visit the conference website at: http://www.ufrgs.br/direitodoconsumidor/iacl2017/

We kindly invite participants from all around the world to submit an abstract (max. 500 words, until November 15th, 2016) of a paper they would like to present during the conference addressing one of its three themes:

1. Roots and fundamentals of the consumer law and policy(vulnerability, mass society and social development, competition and fairness on the market, bargaining powers, lawmaking, transparency on standard contracts, civil society and their role, individual and collective implementation of consumer law; private/public enforcement of consumer law, history, evolution and scientific bases of consumer law and policy; dialogue of consumer law with other disciplines: economy, psychology, sociology, political and ethical studies, anthropology, empirical and critical studies etc.).
2. Contemporary Challenges of the consumer protection(codification and pluralism of legal sources, consumer notion, vulnerable and disadvantage consumers, notion of products and services in a digital society, E-commerce, e-money and Internet of Things, Sharing Economy, behavioral economics perspective, Network, time life and relational contracts, access to justice and effective consumer collective and individual redress, collective action, consumer ADR and ODR, problems of arbitration, disappearing of class actions, warranties, product safety, advertising, unfair commercial practices, consumer harassment, consumer credit, over-indebtedness and bankruptcy, insurance, tourism, entertainment).
3. Future – Towards International and Sustainable Consumer Law(national, regional and international consumer protection, Double Standard, cross-border enforcement, international tourism, international e-commerce, international regulation and new fora and institutional machinery, Revision of the UNGCP, Second hand Circular Economy, Brand and Gatekeepers Liability, Sustainable Consumption, Plan Obsolescence, Digital products and intellectual property, privacy and personal data protection).

Please mail abstracts to: iacl2017@ufrgs.br (HT: Kathleen C. Engel)

Something I'm Wondering About: Are Consumers Ever Better Off by Paying Time-Barred Debts?

by Jeff Sovern

Consumers have no legal obligation to pay time-barred debts and suing on such a debt or threatening to sue on one violates the FDCPA.  But are consumers ever better off, aside from feeling better for meeting their obligations, by paying such debts?  When a statute of limitations is less than seven years, as is often the case for consumer debts, creditors are able to report a debt as unpaid after the statute of limitations has past.  My impression (which may be wrong) is that the older the debt, the less impact it has on the credit score, so conceivably a debt older than a statute of limitations does not affect a credit score, but I suspect they often do.  If a consumer pays the debt, would the consumer's credit score improve?  Or does paying such an old debt have no impact on credit scores or access to credit?  If you know, please answer in the comments.

USA Today Editorial: Rogue Debt Collectors

Here.  Excerpt:

While ACA maintains that its 3,500 members have "long been committed to making debt collection a more consumer-friendly experience," its idea of friendly stretches credulity. While the consumer bureau has proposed that collectors limit phone attempts to reach debtors to six a week, the ACA's idea was quite different — to limit "collection call attempts to no more than six times per day per unique debt.” That adds up to 42 calls a week, multiplied by however many individual debts someone owes. Does that sort of harassment sound reasonable to anyone but a debt collector?

As the first step in a lengthy review process, the consumer bureau last month outlined proposals to prohibit collection of debts that can't be substantiated, require that collectors make debt details clear to debtors, make disputing a debt easy, and limit excessive communications to debtors. Neither consumer advocates nor industry representatives have fully embraced the ideas — which might mean the consumer bureau has hit the right balance.

American Banker: Trump's Call to Freeze New Banking Regs Would Be Tough to Deliver

Here (free access).  Excerpt:

Republican presidential nominee Donald Trump called for a temporary suspension of all new federal regulations during a speech Tuesday, but even if he wins the White House, stalling or rolling back financial rules may prove to be beyond his reach.

* * *

"I don't think a full-on moratorium is even plausible," said Ian Katz, a policy analyst Capital Alpha Partners. "There are independent agencies that don't need to ask the president's permission to pass new regulations."

* * *

Still, some academics argued Trump's plan could have an impact. J.W. Verret, an associate law professor at George Mason University and senior scholar with the school's Mercatus Center, said Trump could use the Office of Management and Budget to slow down or block new regulations.

"The White House OMB's Office of Information and Regulatory Affairs has authority to review regulations and impose a temporary moratorium," Verret said. "According to many legal scholars, including former Obama OIRA head Cass Sunstein, this includes authority over independent regulatory agencies."

New federal restrictions on marketing tobacco products to people under 18

Mitch Zeller, the head of the Food and Drug Administration's Center for Tobacco Products, has posted Protecting the Public and Especially Kids from the Dangers of Tobacco Products, Including E-Cigarettes, Cigars and Hookah Tobacco. Here's an excerpt:

This month, for the first time, FDA will be able to help protect the public, and especially kids, from the dangers of all tobacco products. For years, it has been illegal under federal law to sell cigarettes and smokeless tobacco to minors. Under a rule finalized in May, federal law now prohibits retailers from selling e-cigarettes, hookah tobacco or cigars to people under age 18. Beginning [yesterday, August 8, 2016]:

It will become illegal nationwide to sell cigars, hookah tobacco, and e-cigarettes to anyone under age 18 and retailers will need to check photo ID of anyone under age 27.

Retailers will not be allowed to give away free samples of newly deemed tobacco products.

Retailers will not be allowed to sell cigars, hookah tobacco, and e-cigarettes in a vending machine where anyone under age 18 has access at any time.

 

Fed's Call for Papers: Financial Innovation: Online Lending to Households and Small Businesses

We received the following call for papers:

The Board of Governors of the Federal Reserve System is hosting a research and policy conference on Financial Innovation: Online Lending to Households and Small Businesses, to be held in Washington, DC on December 2, 2016.

The purpose of the conference is to bring together academics, industry participants, and policymakers to discuss current academic research related to innovations in online lending and its implications for borrowers, traditional lenders, the macroeconomy, financial stability, and regulatory policy.

PAPER SUBMISSION TOPICS: We invite the submission of high quality research papers in all areas related to online lending. Topics of particular interest include, but are not limited to:

- The characteristics of online borrowers and lenders

- The effects of online lending on the availability of credit to households and small businesses

- Similarities and differences between online lenders and traditional lenders in areas such as underwriting and risk standards, production processes, technology, cost structure, and profitability

- Competition and cooperation between online lenders and traditional lenders

- The substitutability/complementarity of online lending and traditional lending

- The implications of online lending for financial stability

- New regulatory challenges posed by the emergence of online lending

- Consumer protection and online lending

PAPER SUBMISSIONS AND CONFERENCE INVITATIONS: We welcome the submission of theoretical, empirical, and policy-oriented papers.  Authors should email completed papers to: <mailto:RS-OnlineLending-Conference@frb.gov>

RS-OnlineLending-Conference@frb.gov by September 16, 2016.

Papers will be reviewed and selected for presentation by the organizing committee. Authors whose papers have been accepted to the conference will be notified by October 14, 2016.

Please note that attendance at the conference is by invitation only, and capacity is limited.

Please direct all questions and correspondence, including paper submissions, to: <mailto:RS-OnlineLending-Conference@frb.gov>

RS-OnlineLending-Conference@frb.gov

ORGANIZING COMMITTEE:

Tim Dore, Board of Governors of the Federal Reserve System Geng Li, Board of Governors of the Federal Reserve System Traci Mach, Board of Governors of the Federal Reserve System Adair Morse, Haas School of Business, University of California Berkeley Robin Prager, Board of Governors of the Federal Reserve System Stephen Zeldes, Graduate School of Business, Columbia University

Article on Incentivizing Greater Data Security

Richard Warner of Chicago-Kent and Robert H. Sloan of the University of Illinois at Chicago's Computer Science Department have written Defending Our Data: The Need for Information We Do Not Have. Here's the abstract:

Data breaches occur at the rate of over two a day. The aggregate social cost is high. Security experts have long explained how to defend better. So why does society tolerate a significant loss that it has the means to avoid? Current laws are ineffective in providing an adequate incentive to avoid the loss. As Thomas Smedinghoff notes, laws — current and proposed — “obligate companies to establish and maintain ‘reasonable’ or ‘appropriate’ security measures, controls, safeguards, or procedures.” However, most the laws “simply obligate companies to establish and maintain ‘reasonable’ or ‘appropriate’ security measures, controls, safeguards, or procedures, but give no further direction or guidance.” We contend that the consequence is that the laws fail to provide an adequate incentive to improve information security. The solution is to provide better guidance about what counts as reasonable security measures. Data breach notification laws may seem like a viable alternative, but we argue they are unlikely to sufficiently improve security.