Consumer Law & Policy Blog

Berkeley Consumer Law Scholars Conference 2019 Opens This Thursday

The Berkeley Center for Consumer Law & Economic Justice is holding its Consumer Law Scholars Conference on Thursday and Friday. More information, including the papers to be discussed, here.  The Conference has an impressive list of participants and it promises to be a terrific event.

Sarin study finds interventions in credit and overdraft markets increased consumer welfare but interventions in debit market decreased it

Natasha Sarin of Penn has written Making Consumer Finance Work. Here's the abstract:

The financial crisis exposed major faultlines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency—the CFPB—and changed the structure and function of these markets. 

Consumer advocates cheered reforms as welfare-enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now available, this Article presents the first empirical examination of the successes and failures of the consumer finance reform agenda. Specifically, I marshal data from every zip code and bank in the United States to test the efficacy of three of the most significant post-crisis reforms: in the debit, credit, and overdraft markets. 

The results of my analysis are surprising. Despite cosmetic similarities, these reforms had very different outcomes. Two (changes in the credit and overdraft markets) increase consumer welfare, while the other (in the debit market) decreases it. These findings run counter to prior work by prominent legal scholars and push us to reevaluate our (mis)conceptions about the efficacy of regulation. 

The empirical evidence leads me to novel insights for regulatory design. First, banks regularly levy hidden fees on consumers, obscuring the true cost of financial products. Regulators should restrict such practices. Second, consumer finance markets are regressive: low-income customers pay higher prices than their higher-income counterparts. Regulators should address this inequity. Finally, profit-maximizing banks will always discourage regulation by promising its costs will be passed through to consumers. Regulators should not be overly swayed by their dire warnings.

New Report from U.S. PIRG Education Fund and the Frontier Group on Auto Lending

Today, my colleagues at U.S. PIRG Education Fund and the Frontier Group released a new report, “Driving Into Debt: The Hidden Cost of Risky Auto Loans to Consumers and Our Communities.”

According to the executive summary (emphasis in original):

In much of America, access to a car is all but required to hold a job or lead a full and vibrant life. Generations of car-centric transportation policies – including lavish spending on roads, sprawl-inducing land use policies, and meager support for other modes of transportation – have left millions of Americans fully dependent on cars for daily living.

Car ownership is costly and often requires households to take on debt. In the wake of the Great Recession, Americans rapidly took on debt for car purchases. Since the end of 2009, the amount of money Americans owe on their cars has increased by 75 percent. A significant share of that debt has been incurred by borrowers with lower credit scores, who are particularly vulnerable to predatory loans with high interest rates and inflated costs.

Americans’ rising indebtedness for cars raises concerns for the financial future of millions of households. It also demonstrates the real costs and risks imposed by our car-dependent transportation system. Americans deserve protection from predatory loans and unfair practices in auto lending. Americans also deserve a transportation system that provides more people with the freedom to choose to live without owning a car.

The full report is available here. The full executive summary is available here. The news release is available here.

FTC reports increase in romance scams

Scammers who use love to target consumers can take both an emotional and a financial toll on their victims. New complaint data from the Federal Trade Commission shows romance scams generated more reported losses than any other consumer fraud type reported to the agency in 2018.

The FTC reports that romance scammers "often find their victims online through a dating site or app or via social media. These scammers create phony profiles that often involve the use of a stranger’s photo they have found online. The goals of these scams are often the same: to gain the victim’s trust and love in order to get them to send money through a wire transfer, gift card, or other means."

The number of romance scams reported to the FTC exceeded 21,000 in 2018, representing losses totaling $143 million. The median reported loss was $2,600; for people 70 and over, the median loss was $10,000.

The FTC's report is here.

Study finds increase in people behind on auto loans

Seven million Americans are at least 90 days behind on payments for automobile loans, according to a study by the Federal Reserve Bank of New York. According to the study, more people are now delinquent or late on loan payments than at the height of the 2008 financial crisis.

A blog post by the study's authors is here. The Hill summarizes the report, here.

NYT: "Trump’s Payback for Payday Lenders"

A New York Times editorial today addresses the proposal by the Consumer Financial protection Bureau to gut the Bureau's own rule protecting low-income borrowers from predatory practices of payday lenders. As the NYT put it, "The federal Consumer Financial Protection Bureau betrayed financially vulnerable Americans last week by proposing to gut rules conceived during the Obama era that shield borrowers from predatory loans carrying interest rates of 400 percent or more."

The editorial explains that "voluminous data collected by the consumer protection bureau showed that the industry’s business model — in which a $500 loan could cost a borrower $75 or more in interest just two weeks later — was built on the presumption that customers would be unable to pay at the appointed time and would be forced to run up the tab by borrowing again."

The editorial suggests that the CFPB's "s abdication of its mandate to protect consumers underscores the need for state usury laws, which have passed in 16 states and offer the surest path to curtailing debt-trap lending."

The full editorial is here. The CFPB's proposed rule is here. 

Consumer Warning: Copyright Trolling by Higbee and Associates

Over the past few years, the law firm Higbee and Associates (based in Los Angeles, although it pretentiously labels itself a "National Law Firm") has become identified with a pattern of making aggressive and, in many cases, unsupportable demands for the payment of significant sums of money by individuals and nonprofits whose web sites feature copyrighted graphics, and especially photographs, that they saw online but have never tried to license. The firm’s principal, Mathew Higbee, revels in his reputation for aggressive enforcement. (The interview linked above, for example, is featured on his own firm’s web site.)

Either in concert with a specialized search firm or using his own firm’s software, this firm patrols the Internet looking for graphics (especially photographs) that have been copied improperly from online sources. The firm then sends a demand letter bearing Higbee's signature, threatening to seek up to $150,000 in statutory damages as well as attorney fees unless the target of the letter promptly agrees to pay a specified amount. Deploying a tactic that is all too familiar from the depredations of Evan Stone and Prenda Law, the specified amount is low enough – usually in the low four figures, but I have seen high three figures as well —that it is not likely to be cost-effective for the target to hire a knowledgeable copyright lawyer to litigate an infringement lawsuit, even if the claim is bunk or, at least, if there is good reason to believe that the claim can easily be defended. The letter encloses a document identifying the allegedly infringing use as well as the online location where the work was found; another document that purports to authorize the firm to represent the copyright holder in seeking damages in connection with the work; a proposed “settlement agreement”; and a credit card payment form. If the target of the letter does not respond, or responds without agreeing to pay, then the Higbee firm increases the pressure: a non-lawyer who calls herself a “claim resolution specialist” sends an email warning that the claim is going to be “escalated to the attorneys,” at which point “[t]claim gets more stressful and expensive,” and an assurance that “my goal is to not let that happen to you.”

The documents linked above all relate to a single Higbee demand to a single target, but I have seen a number of other demand letters and ensuing emails from this firm, and spoken to several other copyright lawyers who have helped clients respond to Higbee’s blustering and threats, and it appears to me that these are pretty standard exemplars. Indeed, when I was reaching out to some other copyright lawyers to try to get their sense of some of the documents I was reviewing, a number of them guessed that it was Higbee based only on what I said I wanted to ask about, based on work they had done for their clients trying to address his threats against them. Plainly, this is a copyright troll with an outsized reputation.

CFPB proposes to drop protections for low-income borrowers

In 2017, the Consumer Financial Protection Bureau issued a rule to protect borrowers from payday lending practices that harmed consumers. Today it proposed to eliminate several important protections that it earlier adopted to prevent industry practices from trapping low-income people in cycles of debt. I have not yet had a chance to read proposal in full. The CFPB's announcement, with a link to the proposed rule, is here. Coverage by the Washington Post is here.

Ninth Circuit Strikes Down San Francisco Soda Warnings

In an en banc decision late last week, the U.S. Court of Appeals for the Ninth Circuit held that a San Francisco ordinance requiring ads for sugar-sweetened beverages to warn of the link between overconsumption and obesity violates the First Amendment.

The decision indicates that the Supreme Court's decision last term in National Institute of Family and Life Advocates v. Becerra, which struck down California's disclosure requirements applicable to clinics that offer some pregnancy-related services but not others, is likely to have significant effects on cases involving more traditional commercial speech disclosure requirements.

Although the Ninth Circuit stated that Becerra did not change the law applicable to commercial speech disclosure requirements, the court held that the decision did require it to strike down San Francisco's requirements as unduly burdensome.

The decision is likely to prompt more challenges to government mandated health and safety warnings benefiting consumers.

U. of Chicago Summer Institute in Law & Economics: Regulation of Consumer Markets

It includes lectures by Omri Ben-Shahar on economic analysis of consumer protection law and Jonathan Masur on the behavioral law & economics of consumer choice. More here.