Pound Civil Justice Institute Announces $10,000 Award for Civil Justice Scholarship

We have received the following announcement:

The Pound Civil Justice Institute will make a Civil Justice Scholarship Award, bi-annually as possible, to recognize current scholarly legal research and writing focused on topics in civil justice, including access to justice and the benefits of the U.S. civil justice system, as well as the right to trial by jury in civil cases.  Nomination deadline is September 17, 2018. More information here.

Piché Paper on the Effectiveness of Class Action e-Notices

Catherine Piché of the University of Montreal has written The Coming Revolution in Class Action Notices: Reaching the Universe of Claimants Through Technologies. Here's the abstract:

This paper will address whether a correlation may be drawn between the types and modalities of notices sent to class action members and the rate of compensation of these members, based on data collected in 854 class action court files in Quebec superior court over a twenty year period (1997-2017). Notices are essential to fair procedure in all class action regimes, but it is difficult to know whether these notices have reached their intended addressee in such a way as to make them aware of the case and its potential distributions, and eventually allow for this distribution to be completed. If a collective approach to compensation is favored, class notices should aim to compensate at least 50% of the members. My hypothesis is that technologies will help doing just that. In this paper, I ask whether this hypothesis is supported by the data, and which forms of technological notices are actually most effective at reaching and compensating members. I argue that we have come to a revolution in class action noticing, a digital revolution. In traditional forms of notice, reduced cost has almost always meant reduced probability of achieving actual notice. By contrast, properly designed e-notices are potentially transformative because they serve to lower the cost of notice while increasing reach rates in time and space. With the support of empirical data, I demonstrate that cases making use of technological noticing serve to compensate members more efficaciously than those who rely upon traditional noticing (mail, newspaper notices), with a distribution (or take-up) rate of 69%.

Senate votes to overturn FCC's repeal of net neutrality rule

The Senate today approved a resolution to nullify the Federal Communications Commission's decision to undo the net neutrality rule.The House, however, is not expected to take up the resolution.

NPR has the story, here.

“The surprising return of the repo man”

The Washington Post has a story today about the growing problem of car repossessions in the United States and the ways that technology is being used to make repossessions “ruthlessly efficient.” The full article is here and is worth the read, but here are some highlights:

“No longer tethered to a tow truck and able to use big data to find targets, the repossession industry is booming at an unexpected time. Although the U.S. economy recently entered its second-longest-ever period of expansion, the auto loan delinquency rate last year reached its highest point since 2012, driven by souring subprime auto loans. It’s evidence of how the economic recovery has not been evenly felt, with some of Americans’ biggest purchases — automobiles — being fueled by unsustainable borrowing rather than rising wages.”

“The company’s goal is to capture every plate in Ohio and use that information to reveal patterns. A plate shot outside an apartment at 5 a.m. tells you that’s probably where the driver spends the night, no matter their listed home address. So when a repo order comes in for a car, the agent already knows where to look. ‘It’s kind of scary, but it’s amazing,’ said Alana Ferrante, chief executive of Relentless.”

“Although there are no national auto repossession statistics, other measures point to a growing problem. More than 4 percent of auto loans were at least 90 days late at the end of 2017 — the highest rate in five years. That number jumps to almost 10 percent for subprime auto loans alone, according to a report by the Federal Reserve Bank of New York.”

More on litigation funding disclosure proposals

Following up on yesterday's post on whether Congress will demand disclosure of plaintiffs'-side outside litigation funding in class actions and MDLs, Amanda Bronstad has this piece collecting various opinions from litigators, experts, and the like on the topic more generally.  

Will Congress demand disclosure of litigation-funding sources?

Many of our readers are consumer class-action litigators or interested in litigation more generally. So I thought it was worth mentioning Senator Chuck Grassley's legislation, introduced last week, that would require disclosure of outside litigation funding in multi-district litigation and in class actions generally (that is, in class actions both inside and outside multi-district litigation).

Senator Grassley's bill, entitled the Litigation Funding Transparency Act of 2018, is short and simple. It would require plaintiffs' lawyers to

[1] disclose in writing to the court and all other named parties to the ... action the identity of any commercial enterprise, other than a class member or ... counsel of record, that has a right to receive payment that is contingent on the receipt of monetary relief in the ... action by settlement, judgment, or otherwise; and [2] produce for inspection and copying, except as otherwise stipulated or ordered by the court, any agreement creating the contingent right.

This post provides our readers links to materials that may be helpful in assessing the legislation and analyzing the issue of litigation funding more generally. So read . . .

1. Senator Grassley's legislation (co-sponsored by Senators Tillis and Cornyn) and Senator Grassley's press release
2. A Bloomberg Law piece on the legislation, which includes a critique from a litigation-funding company
3. A 2015 piece more generally discussing litigation funding
4. A comprehensive 2011 American Bar Association white paper on litigation funding. It's chock full of law-review citations, references to studies, etc. 
5. A National Law Journal piece by Ben Hancock published today entitled Study Finds Judges Mostly Reject Discovery Requests for Litigation Funding Documents. This piece notes that "[t]he conclusion of the study—that judges rarely grant discovery into litigation funding documents—helps explain why opponents of the [litigation-funding] industry are pushing for legislative and rule changes to require that funding agreements be disclosed." It's worth noting the study's small sample size. The survey "identified [only] 30 cases across the United States in which a party sought to force disclosure of the other sides’ litigation financing documents."

HT to legal reporter Perry Cooper (@PerryECooper) for pointing me to some of this information.

 

Call for Papers for Symposium on Post-Secondary Education Non-Completion and Student Loan Debt

We've received the following call for papers:

Submission Due Date:  Sunday, June 17, 2018 at midnight

The Rappaport Center for Law and Public Policy, Boston College Law School, and the National Consumer Law Center are pleased to announce a symposium on Post-Secondary Education Non-Completion and Student Loan Debt to take place at Boston College Law School on Friday, November 30, 2018.

The goal of the symposium is to bring together top experts from the nation and the region, including academics, researchers, borrower and consumer advocates, private attorneys, industry representatives, and government officials, to present research and discuss policy on post-secondary education non-completion and its relationship to student loan debt, including impact on communities of color and other protected groups.

We invite paper proposals on the theme of the symposium that are empirical, qualitative, practice-based, theoretical or policy-oriented. Topics of particular interest include:

• Causes of college and other post-secondary education non-completion:
  • Impact of college readiness
  • Financial and social constraints such as childcare
  • Relationship to predatory, proprietary, or low-quality institutions
  • Relationship to online programs
  • Relationship to the availability or lack thereof of student loan and grant sources
  • Factors related to resumption and completion by students who pause their education
• Consequences of non-completion:
  • Impact on household welfare and social mobility, including income, net worth, and household financial stability
  • Relationship to student loan distress and default, and consequences of default
  • Impact on schools
  • Community, economic, and societal impact
• Empirical studies of the relationship between non-completion and student loan default:
  • Relationship between non-completion and student loan distress and default
  • Relationship between non-completion and use of repayment options
  • Demographic variations
  • Variation by school type
  • Variation by certificate or degree type
  • Data regarding enrollment patterns of non-completers
• Equity issues raised by non-completion and student loan default
• Short-term and long-term solutions:
  • How to increase completion rates at quality institutions
  • Impact of institutional support services
  • How to lessen financial distress among borrowers without a degree
  • How to lessen negative equity impacts
  • Successful approaches

"Education Department Unwinds Unit Investigating Fraud at For-Profits"

The New York Times reports that members of a special team at the Education Department that had been investigating widespread abuses by for-profit colleges have been marginalized, reassigned or instructed to focus on other matters, according to current and former employees. The unwinding of the team has effectively killed investigations into possibly fraudulent activities at several large for-profit colleges where top hires of Betsy DeVos, the education secretary, had previously worked.

The article is here.

Will Trump Replace a Part-Time CFPB Director with One Who is Never at the CFPB?

by Jeff Sovern

Acting CFPB Director Mick Mulvaney doubles as OMB director, meaning that he is doing two full-time jobs, and that therefore the CFPB does not have a full-time director. But the next director may be at the Bureau even less often than Mulvaney.  As Allison has noted, reports indicate that the president intends to nominate J. Mark McWatters as the next CFPB director.  Though McWatters is currently the chairman of the National Credit Union Administration, the Washington Post reports that he chairs the Alexandria, Virginia-based agency from his home--in Dallas, Texas. I don't see how a federal agency can be run by someone who is seldom present. If the president does nominate Mr. McWatters, this seems likely to come up at his confirmation hearings.  Perhaps Mr. McWatters will move.

Tinder's Diabolical RETROACTIVE Arbitration Clause

by Jeff Sovern

One of my students told me about Tinder's new retroactive arbitration clause which, of course, includes a class action waiver. As with many such contracts, consumers accept it by using the service, regardless of whether they have read it or not--and we know few consumers actually read such things.  The arbitration clause, in paragraph 16, provides that it applies to past claims against Tinder, including those which are the subject of pending class actions. The clause refers by name and docket number to four class actions already brought against Tinder, charging various forms of discrimination, and states that Tinder users who accept the contract will lose the ability to participate in those class actions.   It does give existing Tinder users the right to opt out of the arbitration clause, but only if they email Tinder within thirty days, something that we know few consumers have bothered to do in the past, to the extent that consumer opt-out rates have become public (new users apparently don't have a right to opt out). No doubt Tinder concluded that there was no downside in the specificity because consumers won't read or understand the terms anyway.  I wonder how the judges before whom the class actions are pending will react to this. If you will forgive the expression, Tinder is screwing its customers.