Consumer Law & Policy Blog

Tragic News About Georgetown Consumer Law Professor Anne Fleming

Anne died Tuesday night of an embolism. Those of us who knew Anne know what a loss this is.  Those who weren't lucky enough to have met her may know her through her work or may have seen her activities described on this blog here, here, and here. More about her here. Anne's death is a painful blow to the community of consumer law professors.

CFP on Racial Capitalism

We've received the following Call for Papers, which overlaps with consumer law issues:

Racial Capitalism:

An Elaboration in Legal Scholarship

As a journal dedicated to social, racial, and economic justice, the Journal of Civil Rights & Economic Development (JCRED) is soliciting articles for Racial Capitalism, an Elaboration in Legal Scholarship, our forthcoming symposium issue. This issue will explore the legal dimensions of our capitalist political economy and its systemically racist nature.  

We are in a moment which calls for a legal analysis that grapples with the reality of Racial Capitalism in our society. From the racially disparate harms of the COVID-19 pandemic to the calls from the Black Lives Matter Movement to #DefundPolice, the racialized nature of our capitalist political economy has become impossible to overlook.

To advance this conversation in legal scholarship, the Journal seeks to publish the work of scholars, practitioners, and advocates, who creatively and incisively explore the legal dimensions of Racial Capitalism and what lies beyond its horizon.

The deadline to submit an abstract for consideration is October 1st, 2020, with full length articles from selected authors to be due January 6th, 2021. Along with publication in this symposium issue, a handful of authors will be selected to each receive a $500 honorarium and participate in a virtual panel discussion on Racial Capitalism in the Spring. For additional details and instructions for submission, please visit https://www.jcred.org/news-and-events/racial-capitalism.

If you have any questions about this call for papers or the Journal, please contact the Research & Symposium Director, Jay Hedges, jay.hedges18@stjohns.edu.

Why "the FDA just had the worst day in its history."

LA Times columnist Michael Hiltzik explains why "the FDA just had the worst day in its history." Hiltzik says:

During a White House event Sunday, FDA Commissioner Stephen Hahn stood by silently in the face of an unsupported attack on his agency from the worst threat to public health in the U.S. today, President Trump. The event was held to mark Hahn’s capitulation to a political directive from the Trump White House, in approving an emergency use authorization for the use of convalescent plasma to treat COVID-19 patients. In doing so, Hahn utterly misrepresented the findings of the Mayo Clinic trial of convalescent plasma treatment. Hahn, parroting Trump and Health and Human Services Secretary Alex Azar, said the study demonstrated a 35% reduction of mortality from the transfusion of convalescent plasma. That’s a gross misrepresentation of its results. Nevertheless, an inaccurate description of the results was repeated in a tweet by the FDA’s official spokesperson, Emily Miller, a former correspondent for the far-right, conspiracy-mongering One America News Network, OANN.

 

New 9th circuit arbitration decision

Last Wednesday, the Ninth Circuit issued a 2-to-1 decision in Rittman v. Amazon, holding that Amazon "last-mile" delivery drivers are transportation workers engaged in interstate commerce under 9 U.S.C. § 1 and, therefore, are exempt from the Federal Arbitration Act's enforcement provisions. As law prof Adam Steinman explains here, Rittman follows a recent decision from the First Circuit, Waithaka v. Amazon.

States challenge FDIC rule that allows lenders to bypass state interest-rate caps

Eight state attorneys general today filed a lawsuit challenging a new Federal Deposit Insurance Corporation rule that creates a loophole allowing predatory lenders to evade state laws that forbid excessive interest-rate charges.

From the California attorney general's press release: "These caps on interest rates play a critical role in regulating payday loans and other high-cost lending throughout the state. Under existing federal law, federally insured state-chartered banks are exempt from state interest-rate caps. The FDIC’s final rule extends these exemptions to any non-bank lender that buys loans originated by an exempt bank. The final rule virtually invites predatory lenders to 'rent a bank' — use a federally insured bank — to do its dirty work of issuing loans with interest rates that exceed state law which the bank then transfers to the predatory lender. The complicit bank washes its hands of the usurious loan, the predatory lender escapes the reach of state laws prohibiting such loans, and consumers pay the price."

The complaint is here.

Choi & Spier on the economics of class action waivers

Albert H. Choi of Michigan and Kathryn E. Spier of Harvard have written The Economics of Class Action Waivers. Here is the abstract:

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and three recent US Supreme Court cases, Concepcion, Italian Colors, and Epic Systems, have endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.

Online Program: The Racial Wealth Gap: Lending, Credit, and Other Disparities

Cheryl Wade, author of Predatory Lending and The Destruction of the African American Dream, Sarah Ludwig, Executive Director, New Economy Project, and Cathi Kim, Director, Inclusiv/Capital will speak on Thursday, August 13 at 7 pm EDT. Attendance is free but registration is required. The registration link is at https://docs.google.com/forms/d/e/1FAIpQLScxTjViodwGaNG03Q1kEqD85DvhpkNxYbpp968QVzMD9mkrTQ/viewform.

Further pursuit of trolling by Higbee and Associates

by Paul Alan Levy

In past blog posts, I have discussed our efforts to persuade the copyright enforcement law firm headed by Mathew Higbee to concentrate its efforts to pursue copyright infringement claims on behalf of its photographer clients on cases where it has reasonable claims of infringement by actual Internet users who put up his clients’ photographs (and not against the hosts of interactive web sites where the claimed infringements were committed by third parties). I have also decried the firm’s tendency to demand excessive damages payments far above what could likely be recovered in litigation.  The Higbee firm plays on the legal ignorance of its targets as well as on the fact that, generally speaking, it costs more in legal fees to get sound advice, and to defend when defense is meritorious, than to simply pay the demanded ransom.

In several past cases, when the Higbee firm found that it would have to defend its claims against parties who could afford to defend themselves, it has dropped its claims rather than defending its demand letters. We have argued, as a result, that Higbee firm clients who had stood to profit from clearly unreasonable demand letter can be subjected to attorney fee awards when the target had to file a declaratory judgment action to silence the threats. One of the firm’s clients settled our attorney fees application for $10,000; our application for fees against two other Higbee clients is still pending.

In the course of discussing these fee applications, one tack taken by the Higbee firm to discourage us from pursuing attorney fees was to represent that it had taken to heart my criticism of their seeking damages, in the manner of Righthaven, from forum operators whose operators had failed to perfect their DMCA immunity by registering an agent for the receipt of DMCA takedown notices.  Because the requirement of "volition" before an alleged infringed can be held liable provides an alternate, although for less perfect, defense in such cases, the Higbee firm  claimed said that it was no longer pursuing claims against online hosts, based on their users’ alleged infringement. I suspected at the time that the claim about changed positions was false; and in the weeks after we received these assurances, several more hosts have reached out for help addressing Higbee firm demands over hosted photos or hosted deeplinks to photos. The lawsuit that we filed on Thursday against AdLife Communications and Marketing Co. is a case in point.

 

Neil Sobol's Survey of Law Schools Offering Consumer Law Courses

Guest post by Neil Sobol:

As part of an article in which I advocate for the incorporation of consumer law issues in first-year law classes, I requested my research assistant, Spencer Lockwood, to update the consumer law offerings chart reported in  Jeff Sovern's post in 2019. Spencer surveyed 201 ABA accredited law schools via their websites. He organized the data by category: (1) "consumer-related classes," which refers to courses that historically contain consumer law topics, (2) "consumer-specific classes," which refers to course offerings that have "consumer" in their names, and (3) two similarly named and defined consumer clinic categories.

He found that, in total, accredited law schools offer 705 consumer-related classes and 100 consumer-specific classes. In sum, about 48% of them offer at least one consumer-specific class. Moreover, about 10% of schools offer at least one consumer-specific clinic. Because it is likely that some course information is outdated on schools' websites, we request the assistance of the consumer law academy. Please send any corrections to nsobol@law.tamu.edu so that I can update the chart. Any input is greatly appreciated.

Download Neil Sobol Chart_Consumer Law Offerings-Aug 6 2020