Consumer Law & Policy Blog

Trolling for Copyright Claims Against Online Hosts

by Paul Alan Levy

Those who have been following the issue of copyright trolls for many years may remember that one of the prime features of the Righthaven technique for shaking down unwitting bloggers for payments was to concentrate its litigation campaign on those who made the mistake of failing to register with the Copyright Office their DMCA agent for the receipt of takedown notices. Registration is, in fact, a technical requirement for enjoying DMCA immunity, and those who had not registered paid a heavy price until some enterprising litigants found other ways to put that copyright troll out of business.

Higbee and Associates Has a New Angle for Demanding Payments

This spring, I was been able to identify Higbee and Associates as the newest operator working from the Righthaven playbook. This discovery came about as a result of my blog post a few months ago stemming from my representation of Homeless United for Friendship and Freedom, opposing a copyright infringement demand letter that the Higbee firm sent on behalf of Agence France Presse. Following that post, I have received a steady stream of requests from targets of his demand letters. For many of these targets, the best I could do was tell them that they had infringed a copyright, and to suggest approaches that they might take in dealing with the demand.  When the damages demand was high enough to warrant hiring counsel, on some occasions I have helped them find good copyright counsel to negotiate a resolution;the Higbee firm's reputation is bad enough that a number of lawyers are glad to take these cases. In schmoozing with some of the targets, I got wind of bargaining strategies that they were using with Higbee, and I have shared those around.

But one pattern has emerged recently — demands against people who hosted discussion sites on a variety of topics, where photos copyrighted by Higbee clients, or links to such photographs, had been posted by their users, and where the host had not learned that DMCA immunity depends on registration of the DMCA agent with the copyright office.

Timothy D. Lytton Book: Outbreak: Foodborne Illness and the Struggle for Food Safety

Tim Lytton  at Georgia State has written Outbreak: Foodborne Illness and the Struggle for Food Safety. Here's the blurb:

Foodborne illness is a big problem. Wash those chicken breasts, and you’re likely to spread Salmonella to your countertops, kitchen towels, and other foods nearby. Even salad greens can become biohazards when toxic strains of E. coli inhabit the water used to irrigate crops. All told, contaminated food causes 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths each year in the United States.
           
With Outbreak, Timothy D. Lytton provides an up-to-date history and analysis of the US food safety system. He pays particular attention to important but frequently overlooked elements of the system, including private audits and liability insurance.
Lytton chronicles efforts dating back to the 1800s to combat widespread contamination by pathogens such as E. coli and salmonella that have become frighteningly familiar to consumers. Over time, deadly foodborne illness outbreaks caused by infected milk, poison hamburgers, and tainted spinach have spurred steady scientific and technological advances in food safety. Nevertheless, problems persist. Inadequate agency budgets restrict the reach of government regulation. Pressure from consumers to keep prices down constrains industry investments in safety. The limits of scientific knowledge leave experts unable to assess policies’ effectiveness and whether measures designed to reduce contamination have actually improved public health. Outbreak offers practical reforms that will strengthen the food safety system’s capacity to learn from its mistakes and identify cost-effective food safety efforts capable of producing measurable public health benefits.

More information and purchase information here. (HT: Ray Brescia) 

Did the AG-Credit Bureau Settlement Requiring Employees with Discretion to Review Consumer Disputes Change Things?

by Jeff Sovern

Until 2015, when consumers submitted disputes to credit bureaus, the credit bureaus submitted the dispute to the creditor which had furnished the information, and if the creditor verified that the information was correct, the credit bureau reportedly would nearly always continue reporting the information in the consumer's credit report, despite the Fair Credit Reporting Act's direction to credit bureaus to conduct a reasonable reinvestigation in such circumstances.  In 2015, various attorneys general reached a settlement with the big credit bureaus that provides that when consumers submit documents supporting their position in a dispute, a credit bureau employee with discretion to revise the consumer’s credit file must review the documents before the bureau can report the original information as verified. Now that it's been four years, I'm wondering if the consumers' experiences when they submit disputes to credit bureaus have changed.  Does anybody know? If so, please post a comment.

Attack on Consumer Free Speech in Texas

by Paul Alan Levy

The spring, an unusual coalition of forces made a serious run at gutting the Texas Citizens’ Participation Act, the Texas version of state anti-SLAPP suits that protects consumers and citizen activists from baseless lawsuits intended to stop them from voicing criticisms of businesses and powerful political figure in their communities. A significant battle remains – enduring that the law continues to protect the ability of consumer critics of business to obtain afforable legal representation to fight SLAPP suits.

The Need for Anti-SLAPP Laws

Well-written anti-SLAPP laws protect individuals who have been targeted by baseless litigation over things they say to government officials or during government proceedings, or more generally their speech on issues of public interest.  Such speakers can get the suit thrown out at an early stage, without having to run up the expense of paying a lawyer to bear the burdens of litigation including discovery, by forcing the plaintiff to show both a factual and a legal basis for believing that the suit has a realistic chance of success on the merits. And, if the suit proves to be baseless in that the plaintiff cannot show that it has a genuine claim, not only is the case dismissed, but thet SLAPP’d defendant gets an award of attorney fees.

Because, in this kind of case, the reason for suing is often to suppress future criticism rather than to win in the case in the conventional manner — that is, by securing a judgment or a monetary settlement — anti-SLAPP laws provide a valuable protection against the chilling effect that can suppress fair criticisms.  At the same time, knowing that the tactic of bringing baseless suits over speech won't succeed (and can be costly), the laws discourage the filing of baseless lawsuits against speech.  Moreover, the provision for awards of attorney fees means that even ordinary citizens who otherwise couldn’t afford to hire a lawyer to protect her legal rights can often get the case taken by a lawyer on a contingent fee basis, hoping to be paid though an attorney fee award.  In states with strong anti-SLAPP laws, lawyers can specialize in anti-SLAPP work just as the provisions for fee awards in discrimination suits, consumer suits, and other kinds of suits fostered the emergence of a specialize bar representing the impecunious in such cases.

A holistic view of food safety and its regulation

That's the topic of The New Food Safety by law profs Emily Leib and Margot Pollans. Here is the abstract:

A safe food supply is essential for a healthy society. Our food system is replete with different types of risk, yet food safety is understood as encompassing only foodborne illness and other risks related directly to food ingestion. This Article argues for a more comprehensive definition of food safety, one that includes not just acute, ingestion-related risks, but also whole-diet cumulative ingestion risks, and cradle-to-grave risks of food production and disposal. This broader definition, which we call “Food System Safety,” draws under the header of food safety a variety of historically siloed, and often under-regulated, food system issues including nutrition, environmental protection, and workplace safety. The current approach to food safety is inadequate. First, it contributes to irrational resource allocation among food system risks. Second, it has collateral consequences for nutrition, environmental protection, and workplace safety, and, third, its limited focus can undermine efforts to achieve narrow food safety. A comprehensive understanding of food safety illuminates the complex interactions between narrow food safety and other areas of food system health risks. We argue that such an understanding could facilitate improved allocation of resources and assessment of tradeoffs, and ultimately support better health and safety outcomes for more people. We offer a variety of structural and institutional mechanisms for embedding this approach into agency action.

Report on restoring individuals' access to the civil justice system

The Center for American Progress today released a report discussing structural reforms to the court system and suggesting reforms to restore access to the courts -- two topics that are discussed separately in the report but are surely related. The reforms suggested to restore individuals' access to the civil justice are not new ideas but remain important.

• Restoring plaintiffs’ ability to bring class action suits
• Prohibiting forced arbitration in all consumer and employment contracts
• Restricting secret settlements and record sealing in cases affecting public safety
• Restoring the power of private attorneys general to enforce federal law
• Restoring simpler pleading standards

The report does a nice job of explaining the issues and the need for change. The full report is here.

CFPB proposes new rule on calls, texts, and emails from debt collectors

The Consumer Financial Protection Bureau is proposing a new rule that would allow debt collectors to send consumers an unlimited number of texts and emails.

The agency says that its rule would be good for consumers. The Washington Post reports, however, that consumer advocates worry the CFPB is giving the industry a new way to violate consumers’ privacy. "While many Americans understand how to deal with a pesky creditor calling their landline, their texts, emails and social media are new, more personal territory."

The proposed rule would also cap a debt collector's calls to a consumer at seven calls each week, and provide that the debt collector could not call again for one week after reaching the consumer.

The proposed rule is here. The Washington Post article is here.

Ninth Circuit upholds constitutionality of CFPB

This morning, in a unanimous opinion in a case is called CFPB v. Seila Law, Inc., the Ninth Circuit decided a challenge to the CFPB's structure.

The CFPB is headed by a single Director who exercises substantial executive power but can be removed by the President only for cause. Relying on the Supreme Court’s separation-of-powers decisions in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Morrison v. Olson, 487 U.S. 654 (1988), the court held that the CFPB’s structure is constitutionally permissible.

The panel also rejected defendant Seila Law’s challenge to the CFPB's civil investigative demand.

The court's decision is here.

How often do elite law reviews publish consumer law articles: evidence from six journals

by Jeff Sovern

I wanted to know if the law reviews in elite schools that teach consumer law have published more consumer law articles in the last five years than law reviews in elite schools that don’t offer the course.  Consequently, I asked a research assistant, Sara Krastins, to look at the articles published in law reviews of three schools that offered a consumer law course in both the 2014 and 2019 surveys—Harvard, Virginia, and Berkeley--and the law reviews of three schools that didn’t-- Stanford, Yale, and Columbia. First I will report what Sara found, and then some methodological limits. But here’s the short version: if you want to publish in one of these six journals, subject to the methodological limits described below, you had better be at one of the schools that publish the journals, be a superstar professor at Yale or Michigan, or co-author an article with one. Oh, and whether the school offers a course in consumer law doesn’t seem to make a difference. But just as with our look at what schools offer consumer law, this is just a first cut at the matter and we welcome corrections. More on that below.

As for schools that don’t offer consumer law, Sara found two consumer law articles in Stanford, both written or co-authored by Yale superstar professors (Ian Ayres and Alan Schwartz), and none in Yale or Columbia. She counted 225 articles in the three law reviews during the relevant period, meaning that less than 1% of the law review articles they published were on consumer law.  If you ignore articles authored by Yale superstars, you end up with zero.

What about at the schools that teach a consumer law course? Harvard published one, co-authored by Robin Bradley Kar of Illinois and Margaret Jane Radin of Michigan—another superstar professor (and Kar is pretty impressive too). Virginia also published one, but it was by one of their own professors. Berkeley also had one, by Ted Mermin, who as regular readers of the blog know, is the Interim Executive Director of Berkeley’s Center for Consumer Law and Economic Justice. So we have three articles out of a collective 275 or (drumroll) 1%.  And the three articles were all written or co-authored by a superstar professor or a person already at the school that published it.

And here are the totals from all six journals: five consumer law articles of 500 or 1%.  Consumer law articles not written or co-authored by a superstar professor or someone at the school publishing it: zero.

Now the methodological limits: Sara based her conclusions on reading article titles and abstracts. If she couldn’t tell from those that an article dealt with consumer law, she excluded it, so articles that dealt with consumer in their text but not in the abstract or title would not have been included.  In addition, Sara, as a 2L, probably has an incomplete understanding of what consumer law deals with (just as 2L law review editors probably don’t have a complete understanding of the value of consumer law articles), so she may have excluded articles because she didn’t realize they addressed consumer law. We also excluded pieces that appeared solely online, and pieces not described as articles, meaning that essays, reviews, and reflections were not included.  The survey considered only articles that Sara could find before April 11, 2019. If you know of an article on consumer law that appeared in one of these law reviews from 2014-2019, please let me know so we can add it.

UPDATE: David Noll of Rutgers has reminded me of his arbitration article in the California Law Review--so that makes six.

Opposition to the draft Restatement of the Law of Consumer Contracts

The members of the American Law Institute are poised to vote on May 21 on whether to adopt, for the first time, a Restatement of the Law of Consumer Contracts. That's right: A Restatement that would purport to state the law on, among other things, the take-or-leave-it contracts that we "agree to" every day and that seek to impose on us all manner of things that we know little or nothing about. [We've posted about this project several times before, including this warning posted nearly three years ago by law prof and consumer-law expert Dee Pridgen.]

The positions taken in Restatements are often highly influential with courts. For instance, most folks who litigate are aware of the influence Restatements have had on modern product-liability law. 

Over at Credits Slips, Georgetown law prof Adam Levitin has posted this critique of the draft that the members will be voting on. I recommend reading Adam's post in full and taking a look at the links contained in it. In the meantime, check out these excerpts:

The draft Restatement of Consumer Contracts is founded on a set of six quantitative empirical studies about consumer contracts.  This is a major and novel move for a Restatement; traditionally Restatements engaged in a qualitative distillation of the law.  Professor Gregory Klass of Georgetown has [found] pervasive problems in the Reporters' coding. ... A draft version of Professor Klass's study inspired me and a number of other advisors to the Restatement project to attempt our own replication study of the empirical studies of contract modification and clickwrap enforcement.  We found the same sort of pervasive problems as Professor Klass. While the ALI Council completely ignored our findings, we wrote them up into a companion article to Professor Klass's.  * * * 

For example, [the Restatement] would require findings of both procedural and substantive unconscionability for a contract to be unconscionable, while many states only require substantive unconscionability. Not surprisingly, I am unaware of any consumer law expert (other than the Reporters) who supports the project. 

But the thing that should really be a wake up call that something is very, very off with this Restatement project is the presence of outside opposition, which is virtually unheard of in the ALI process.  Every major consumer group (also here, here, and here), weighed in in opposition as well as 13 state attorneys general (and also here), and our former co-blogger (and also former ALI Vice-Chair), Senator Elizabeth Warren.  Nor has the opposition been solely from consumer-minded groups.  The US Chamber of Commerce and the major trade associations for banking, telecom, retailers, and insurers are also opposed (albeit with very different motivations).  Simply put, it's hard to find anyone other than the Reporters (and the ALI Council, which has a strong tradition of deference to Reporters) who actually likes the draft Restatement.