Consumer Law & Policy Blog

The next coronavirus relief bill and tort deform

Law prof Daniel Hemel (@DanielJHemel) has posted a detailed series of tweets skewering the tort-deform provisions in the Republican-sponsored coronavirus relief bill. I recommend reading these tweets. Hemel begins with the statement that "[t]he liability provisions in McConnell’s 'HEALS Act' do not reflect a serious attempt to address problems with the tort system" and then goes on to demolish any justification for each provision. Go here to read Hemel's tweets.

I have a question. The readers of this blog will generally agree that the liability provisions in the Republican bill stink. But let's say there's a compromise bill that adopts all (or most) of the much more generous Covid relief measures that the House Democrats want but also includes the tort-deform proposals championed by the Republicans. The alternatives might be no bill at all (or no bill for quite a while) or a bill that has considerably less relief for people who desperately need it. Should the compromise bill be adopted?

MCConnell's Orwellian attempt to block a non-existent tidal wave of litigation by consumers against businesses by contributing to a tidal wave that does exist--of cases by businesses against consumers

by Jeff Sovern

Not only does McConnell's coronavirus bill make it much harder for consumers to sue businesses that carelessly infect them with the virus, it also makes it much easier for businesses to sue consumers suffering from COVID. Suppose a consumer sends a letter asking for help with medical bills to a business that infected her with the virus, and says she won't sue the business if she gets that help. If she wouldn't have been able to bring a valid case because she couldn't satisfy the draconian standards established by the bill, the business can sue the consumer for compensatory damages (would there be any?), collect attorney's fees, and in some cases punitive damages. The consumer would be liable even if she never sued, but only sent a letter. That's under section 164. That will certainly give businesses that cavalierly sicken consumers a weapon in case the consumers want to seek help from the companies that injured them. How Orwellian for Republicans to pretend to prevent a tidal wave of litigation that doesn't exist while contributing to another--suits by businesses against consumers--that does.

New study: Vaccines are "remarkably safe"

As the world races to find a safe and effective vaccine against COVID-19, note a study published today in the Annals of Internal Medicine. The study reviewed all vaccines approved by the Food & Drug Administration for the 20-year period ending December 31, 2015. The study's finding:

Over a 20-year period, vaccines were found to be remarkably safe. A large proportion of safety issues were identified through existing postmarketing surveillance programs and were of limited clinical significance. These findings confirm the robustness of the vaccine approval system and postmarketing surveillance.

Read the whole study here.

Online Event Open to All: Racism, Renting, and Redlining: A Conversation on Housing Discrimination & Its Impact on Economic Injustice

In solidarity with the protests that have initiated a national conversation on institutional racism, the St. John’s Law School Student Chapter of the National Association of Consumer Advocates is hosting a two-part online discussion on discrimination in the context of economic justice. Our first conversation will focus on the housing discrimination that continues to harm POC as it perpetuates structural inequality in education, financial services, and wealth-building. The conversation will include the following panelists:

• Fred Freiberg, Executive Director at the Fair Housing Justice Center

• Lisa Darden, Board Member and former undercover tester at the Fair Housing Justice Center; and

• Makedah K. Salmond, Esq., Supervising Attorney at the Tenants’ Rights Unit of NYLAG

Date: July 30th, 2020
Time: 7:00 pm
Co-sponsoring Organizations:
• Black Law Students Association
• Public Interest Center
• Dispute Resolution Society
• New York Real Property Law Journal
• Real Property Law Society
• Mattone Institute
• Coalition of Social Justice

Attendance is free but registration is required. Register at https://docs.google.com/forms/d/e/1FAIpQLSes7mRRGrhnAYsDaypgIyUkqGIfKr0RHGJ66J6xDimuTmhuIA/viewform

OT: Recommendations for Online Teaching

by Jeff Sovern

I served on a faculty committee this summer that prepared a report with tips for online teaching. The report, which may be useful to law professors, is available here. Here's the abstract:

This is a collection of recommendations drawn from a variety of sources, including our colleagues, students, webinars, books, articles, podcasts, and our own experimentation. It is not our expectation that any individual professor would adopt all of these suggestions and indeed no one of us intends to. Instead, we hope that some of these are helpful to you. Some suggestions deal with the nuts and bolts of teaching online while others with how to accomplish broader goals.

The general recommendations are broadly applicable to all courses taught online, while the individual class-type recommendations are intended to complement and augment the general recommendations. Additionally, these recommendations will be revised as we continue to learn from our experiences in online instruction.

The tidal wave of lawsuits is not consumers suing businesses--it's businesses suing consumers

by Jeff Sovern

The argument that businesses should not be liable to consumers whom they carelessly infect with the coronavirus is based on the claim that if Congress does not outlaw such cases, we will see a tidal wave of lawsuits. Thus far, that argument has no basis in reality. In fact, if anything, consumer claims are getting lost in the undertow. A recent Pew study found that the "[c]ivil caseloads dropped more than 18 percent from 2009 to 2017" even though "more than half of all U.S. households experienced one or more legal issues that could have gone to court. . . ."  But there is a tidal wave of litigation going on--only it's a tidal wave of businesses suing consumers. According to the same Pew study, the available data indicate that debt claims now "dominate" state courts, to the point that about a quarter of state civil cases consist of debt collection claims.  It looks as if businesses are winning the fight over access to courts while trying to create the illusion that they are losing.

NCLC warns that OCC proposal would allow banks to evade state usury laws

Today, the Office of the Comptroller of the Currency issued a proposed rule to overturns the “true lender” rule that courts have used since the early 1800s to prevent evasions of state usury laws. The deadline to submit comments on the OCC’s proposal is September 3, 2020.

In a statement, the National Consumer Law Center warned that the proposal would turn state usury laws into a "dead letter" and eviscerate power that states have had since the time of the American Revolution to protect people from high interest rates and predatory lending.

At least 45 states and the District of Columbia have interest rate caps on installment loans. Under the proposal, NCLC explained, "a payday lender or other nonbank lender could ignore state interest rate limits as long as either a bank ‘[i]s named as the lender in the loan agreement,’ or the bank ‘[f]unds the loan’ -- that is, the payday lender launders the loan through the bank. This proposal would allow payday lenders to resume the rent-a-bank schemes that were shut down by bank regulators in the mid-2000s, and would embolden today’s high-cost predatory rent-a-bank lending by online installment lenders.

“The proposed rule would purport to overturn the ‘true lender’ doctrine, which allows courts to prevent evasions of usury laws by looking beyond the technical form or fine print of a loan transaction to examine which party has the predominant economic interest in the loan. The true lender doctrine has long been used to prevent payday lenders and other high-cost lenders from laundering their loans through banks, which are not subject to state interest rate caps.

The OCC proposal is here. The NCLC statement is here.

McConnell bill would give businesses immunity from liability if they follow limited guidelines, all to avoid a flood of cases that don't exist

by Jeff Sovern

Politico has a summary of the McConnell bill here. It immunizes schools, colleges, charities, and businesses that follow public health guidelines from liability for negligently infecting consumers with the virus. But many public health guidelines are written in terms of what is feasible or possible, meaning that the entities subject to the bill could argue that protections are not possible or feasible (e.g., "Modify the alignment of workstations, including along processing lines, if feasible, so that workers are at least six feet apart in all directions . . . when possible . . . ."). Meanwhile, businesses justify the bill to prevent a flood of lawsuits that hasn't materialized. And it's not as if no one has been injured by the virus: more than 3.7 million Americans have caught the virus and more than 140,000 have died. Oh, and businesses have a long history of predicting floods of lawsuits that haven't materialized.  If businesses don't want to be liable for carelessness, they should simply be careful. For more specifically on immunity for universities, go here. 

Becher & Dadush paper on relationships as consumer products

Shmuel I. Becher of Victoria University of Wellington and Sarah Dadush of Rutgers have written Relationship as Product: Transacting in the Age of Loneliness. Here's the abstract:

Behavioral economists and social psychologists distinguish between two main types of relationships. One type is “exchange relationships,” which are based on mutual benefit and economics principles. The second type is “communal relationships,” which are based on caring, kindness, support, and affection.

The law has been slow to incorporate this imperative distinction. Importantly, it overlooks the reality in which businesses are selling consumers not only products or services, but also “communal” or “social” relationships. We dub this phenomenon “relationship as product.”

Relationship as product leads to various negative outcomes. It makes consumers more likely to behave emotionally rather than rationally, and to lower their guards. It encourages consumers to spend more money, time, and attention-energy on products and services. It can also contribute to a biased and unhealthy perception of human relationships. At a societal level, relationship as product damages trust and decreases overall well-being, and has negative effects on workers, the environment, and a competitive economy. By selling relationship as product, firms also undermine the solidarity ties that bind communities.

This Article marks a first attempt to explore the problematic aspects of relationship as product from a legal and policy perspective. Part I of this Article illustrates how firms have made relationships a product. Part II explains the forces that account for the rise of relationship as product, including loneliness and social isolation, deteriorating levels of trust, the pursuit of well-being, and exploitation of cognitive biases. Part III explains why relationship as product can be viewed as a defective product, which harms individual consumers and society at large. Part IV makes recommendations for expanding consumer law and policy to address these challenges.

More on the failure of disclosure laws: Chen paper explores how Australian payday lenders obscure mandatory warnings

Vivien Chen of the Monash University - Department of Business Law & Taxation has written Online Payday Lenders: Trusted Friends or Debt Traps? 43 University of New South Wales Law Journal (Advance 2020). Here's the abstract:

The recent Senate inquiry into credit and hardship underscored the prevalence of predatory conduct in the payday lending industry. The rise of digitalisation has increased consumer access to high-cost payday loans and the ensuing risk of debt spirals. The article examines the marketing strategies of online payday lenders, revealing that the effect of mandatory warnings on the risk of harm are often diminished through website layouts. At the same time, lenders commonly offer fast, convenient cash in tandem with blogs that provide advice on managing finances and living well on a budget, obfuscating the distinction between advertising and altruistism. The findings highlight the need for regulatory enforcement of laws aimed at safeguarding vulnerable financial consumers. Emerging challenges from the increasing digitalisation of payday lending and social media marketing raise the need for reforms to address gaps in the regulatory framework.