Colin Marks Study of the Prevalence of Disclaimers in Online Sales

Colin P. Marks of St. Mary's has written Online and As Is.  Here is the abstract:

Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in a way that would surprise many shoppers. In particular, many online retailers are using these terms to limit implied warranties, selling the goods “as is,” and limiting remedies, as well as adding a host of other limitations. This article does not discuss the effects of online terms and conditions, but rather starts with exploring a very basic question: How prevalent are certain terms and conditions? While these terms and conditions may seem to be ever-present in online transactions, there have been few attempts thus far to empirically record the frequency of their use in retail transactions involving goods. This article remedies the situation by exploring the mode by which consumers assent, the prevalence of warranty and liability limitation clauses, and the prevalence of other common clauses used by the largest retailers in the United States.

Bloomberg: Dismantling Dodd-Frank May Have to Wait

Here.  Excerpt:

Hensarling does already have a bill in the House, the Financial Choice Act, that’s being given long odds. “We think the chances that the bill becomes law are less than 20 percent—maybe as low as 10 percent,” Brian Gardner, Washington analyst at the investment bank Keefe, Bruyette & Woods, wrote to clients on Feb. 16.

* * *

With Obamacare, taxes, and the budget consuming all the oxygen in Washington, Congress may not get around to Dodd-Frank until 2018 or beyond. Even then the changes could be limited, such as regulatory relief for smaller banks that don’t pose systemic risks, says KBW’s Gardner.

Will Obamacare Survive?

by Jeff Sovern

I was talking to someone yesterday who pointed out that even if Obamacare can be repealed through the reconciliation process--meaning a simple majority is enough to get it through the Senate--the Republicans may not have enough votes.  If they don't pick up any Democratic votes, they can afford to lose only two Republican senators on a vote to repeal.  But some Republicans may balk at repealing the Affordable Care Act without a replacement as it will mean some of their constituents will lose healthcare.  Consequently, they may vote against repeal without a simultaneous replacement. But the Republicans are split on what to replace Obamacare with, meaning that they may not be able to repeal and simultaneously replace it without Democratic votes--which they are unlikely to get for a repeal.  In addition, replacement could not be done through reconciliation, as I understand it, meaning that it could be stymied by a filibuster unless the rules change (though whether Democrats would filibuster a replacement remains to be seen). The result would be Obamacare stays.  I don't see how senators who vowed to repeal Obamacare could return home and say they voted to keep it, but stranger things have happened. See "Read my lips."

Bloomberg's Articles on Trump and the Pending Class Action Bills

Trump to Weigh Litigation Changes Long Coveted by Business

Trump Seen as Supportive of Business-Backed Litigation Bills

 

FTC releases annual summary of consumer complaints

Imposter scam complaints surpassed identity theft for the first time as the second most common category of consumer complaints received by the Federal Trade Commission’s Consumer Sentinel Network in 2016, according to the agency’s new Data Book.

Although debt collection complaints declined slightly between 2015 and 2016, they remained the top consumer complaint category, comprising 28 percent of all complaints. The high number of reported debt collection complaints was due in part to complaints submitted by a data contributor who collects complaints via a mobile app.

The rise in impostor scam reports is due to an increase in complaints about government imposters. Imposter scams come in many varieties, but work the same way: a scammer pretends to be someone trustworthy, such as a government official or computer technician to convince a consumer to send money. Imposter scams also topped the list of complaints from military consumers followed by identity theft complaints.

The FTC's press release is here.

CFPB report on credit reporting problems

The Consumer Financial Protection Bureau has released a report detailing the problems in the credit reporting industry that the CFPB uncovered and corrected through its oversight work. The report identifies significant issues with the quality of the credit information being provided by furnishers and maintained by credit reporting companies, and it outlines the actions that the CFPB has taken to address these ongoing problems such as fixing data accuracy at credit reporting companies, repairing the broken dispute process, and cleaning up information being reported.

The CFPB press release, with a link to the report, is here.

"Cone of Silence on Enforcement News from U.S. Labor Department"

The online publication FairWarning has this story today about OSHA enforcement since January 20:

In November, the U.S. Occupational Safety and Health Administration announced fines against businesses with workers who were killed when they were pulled into a wood chipper, burned in a refinery fire and crushed in collapsing grain bins and construction trenches. In all, OSHA issued 33 enforcement news releases that month, and over 50 more from Dec. 1 until just before Inauguration Day on Jan. 20.

But since then, OSHA hasn’t issued a single news release about penalties or other enforcement actions by federal authorities. The same goes for a second Department of Labor division, Wage and Hour, which in previous weeks had announced the recovery of back wages for peanut processors in Georgia, hotel staffers in New York City, commercial painters in Texas and cafeteria workers at the U.S. Senate building.

Neither OSHA nor Wage and Hour officials have responded to requests for comment on why they have gone silent on enforcement news for six weeks. At issue is more than basic public relations. The Labor Department for years has used news releases to single out bad actors and to deter violations by other employers who fear that they could face penalties and damaging publicity too.

The full story is here.

Food and drug regulation history -- read about it, and then watch a cool video

In this essay, the Food and Drug Administration takes you into what the agency calls its "history vault" -- where it stores evidence of drugs and devices that demanded -- but didn't always get -- proper regulation. (The vault contains more than 10,000 artifacts.) Some examples:

• a sample of Elixir Sulfanilamide, a 1937 wonder drug that was formulated with a poisonous solvent that killed more than 100 people, including many children. The 1937 disaster spurred passage of the Federal Food, Drug, and Cosmetic Act of 1938, the basic law under which the FDA still operates.
• a can of Bon Vivant vichyssoise soup (contents removed) that sparked an outbreak of botulism in the early 1970s and significant new food protections for consumers
• the Dalkon Shield intrauterine device, an ill-designed product that left thousands of women sterile during the 1970s, and encouraged Congress to craft legislation that specifically addressed the safety and efficacy of medical devices, and,
• the Relaxicisor, a passive electric muscle stimulation “exercise” device first made famous during the 1950s, and again, more recently, thanks to the television show “Mad Men.”

The FDA says it wants to go beyond telling the public about the historical facts and "embrace[] the broader role of history: to inform, explain, and educate, so that future decisions are made with the best available knowledge and science." With that in mind, the agency is producing a series of history videos. To view the first one, click here or on the embedded video below.

 

Self-driving cars, transportation network companies (such as Uber), liability, and insurance

Jacob Walpert has written Carpooling Liability?: Applying Tort Law Principles to the Joint Emergence of Self-Driving Automobiles and Transportation Network Companies. Here's the abstract:

Self-driving automobiles have emerged as the future of vehicular travel, but this innovation is not developing in isolation. Simultaneously, the popularity of transportation network companies functioning as ride-hailing and ride-sharing services have altered traditional conceptions of personal transportation. Technology companies, conventional automakers, and start-up businesses each play significant roles in fundamentally transforming transportation methods.

These transformations raise numerous liability questions. Specifically, the emergence of self-driving vehicles and transportation network companies create uncertainty for the application of tort law’s negligence standard. This Note addresses technological innovations in vehicular transportation and their accompanying legislative and regulatory developments. Then, this Note discusses the implications for vicarious liability for vehicle owners, duties of care for vehicle operators, and corresponding insurance regimes. This Note also considers theoretical justifications for tort concepts including enterprise liability. Accounting for the inevitable uncertainty in applying tort law to new invention, this Note proposes a strict and vicarious liability regime with corresponding no-fault automobile insurance.

More on the Sterling sexual harassment case

Yesterday, I posted about Drew Harwell's powerful article on allegations of widespread sexual harassment against Sterling Jewelers (the corporate conglomerate behind the chains known as Galleria of Jewelry and Kay Jewelers). My post explained that because the case was in arbitration (on account of a pre-dispute mandatory arbitration clause foisted on Sterling's employees), not in court, the horrible allegations had been kept secret for nearly a decade. Yesterday, Harwell wrote a follow-up story focusing on the same point.