Victoria Barnes on Anne Fleming's Scholarship

Victoria Barnes of the Max Planck Institute for Legal History and Legal Theory has written Anne Fleming’s History of Law and Consumer Finance, 22  Enterprise & Society 316 (2021). Here's the abstract:

This article has teased out Anne Flemings’s interests and the overarching themes in her research. It shows how these themes and interests influenced the direction of her research in the hope that these ideas will continue to be influential in the years to come. Her scholarship tells a compelling story of individual lives, consumerism, and the pitfalls of leaving capitalism unbowed. The significance of Anne’s scholarship is not only owing to her substantive claims but also to her approach. She mapped out elaborate histories of lending, although she primarily assessed consumer finance law and economic policy by looking at their impact on the end user. There is much to be gained by taking such an approach and from using the consumer as a lens to examine banking and financial regulation.

May Courts Order Public Records Requesters to Return Mistakenly Released Documents?

by Paul Alan Levy

In releasing documents electronically pursuant to a public records request, a local government body in New Jersey made a rookie error: using software (presumably Word) to perform redactions in a manner that was easily undone when the requester opened the provided PDF documents using his own device. The documents revealed some settlement discussions between the government body and a local developer, as well as a sleazy effort to avoid disclosure by proceeding ex parte to secure confidentiality from a local judge who was hearing a lawsuit about the development controversy. In response to a motion not served on the counsel for the requester, a known opponent, the judge gave her advance blessings to confidentiality under the Public Records Act. When the developer discovered the redaction error (because a member of the public angrily discussed the documents at a public meeting), the developer rushed into court and persuaded the judge to issue a restraining order barring the requester from disseminating the documents and demanding both return of the documents and identification of everybody to whom the requester has given copies of the documents.

In similar circumstances, some FOIA requesters reflexively cooperate when agencies promptly ask for return of inadvertently released documents, but does the First Amendment authorize courts to order a clawback if the requester refuses?

Ninth Circuit Takes the Con Out of ConAgra

by Steve Gardner

Yesterday, the Ninth Circuit issued an excellent opinion on the issue of preemption of state law claims for deception involving foods regulated by USDA. Cohen v. ConAgra Brands, Inc.

Robert Cohen sued ConAgra for violations of California consumer laws. As the Court noted:

Cohen began purchasing various frozen chicken products such as chicken nuggets and fried chicken. These chicken products are produced by ConAgra and similarly labeled, with prominent representations on the front of the packaging that read (in capital letters of varying sizes): “Made with 100% Natural White Meat Chicken”; “No Preservatives”; “No Artificial Colors”; “No Added Hormones”; “No Artificial Flavors”; and “0g Trans Fat per Serving.”

Mr. Cohen alleged that the products he bought contained three synthetic ingredients: sodium acid pyrophosphate, sodium tripolyphosphate, and modified corn starch.

ConAgra’s primary defense was that USDA had approved its claims because it had approved its labels.

The district court agreed and held that Mr. Cohen’s claims were preempted.

The Ninth Circuit disagreed, holding that preemption applied to product labels only if USDA had actually approved the labels. It refused to take ConAgra’s word that USDA had approved its labels (because, for some reason, ConAgra did not introduce any evidence of USDA approval).

And, as to claims made on ConAgra’s website, the Ninth Circuit found that USDA preemption did not apply to websites.

In a last-gasp effort, ConAgra tried that old chestnut, the primary jurisdiction doctrine, urging the Ninth Circuit to leave things to USDA because this was a complicated issue. The Ninth Circuit demurred, concluding that it could read words.

Mr. Cohen was well-represented by Gretchen Elsner, supported by amici curiae National Association of Consumer Advocates, Animal Legal Defense Fund, and Food & Water Watch Inc. (I represented NACA but others handled the great bulk of the briefing, especially Kenya J. Reddy, Morgan & Morgan Complex Litigation Group.)

CFPB orders tech giants to turn over information on their payment systems

The Consumer Financial Protection Bureau has ordered Amazon, Apple, Facebook, Google, PayPal, and Square to turn over information on their payment system plans. The orders look like this.

The agency's press release begins this way:

Today, the Consumer Financial Protection Bureau (CFPB) issued a series of orders to collect information on the business practices of large technology companies operating payments systems in the United States. The information will help the CFPB better understand how these firms use personal payments data and manage data access to users so the Bureau can ensure adequate consumer protection. “Big Tech companies are eagerly expanding their empires to gain greater control and insight into our spending habits,” said CFPB Director Rohit Chopra. “We have ordered them to produce information about their business plans and practices.”

Read the full statement of Director Chopra here.

Robert F Kennedy Jr. Sues to Identify Blogger Who Pointed Out That He Spoke at Rally Connected to Neo-Nazis

by Paul Alan Levy

Our latest effort to defend the right to speak anonymously about issues of public concern brings us up against Robert F. Kennedy Jr.

Last summer, Kennedy spoke at an August 29 rally convened by the German far right to protest government restrictions aimed at corralling the COVID pandemic. Kennedy was, apparently, the third choice speaker, after appeals from a rightwing group called Querdenken to Donald Trump and Vladimir Putin went unheeded.  But when this group learned that Kennedy was coming to Germany for other reasons, it issued a public invitation and he responded. The German right waxed rhapsodic about the way in which Kennedy’s presence was lending legitimacy to their activity.

The rally and his speech were widely covered in the mainstream media, which reported that his rally was heavily attended by neo-Nazis  and that a variety of antisemitic and neo-Nazi factions  had been involved in organizing the event. Kennedy was infuriated by this coverage of the audience to whom he had become connected by speaking at the rally.  His position is that any neo-Nazis were at some other rally on the same day, and that Querdenken is a fine group unsullied by neo-Nazi or anti-Semitic ties. Our expert witness says otherwise.

The National Consumer Law Center is hiring a consumer-justice lawyer to work on predatory lending and banking

The great consumer-justice lawyers at the National Consumer Law Center are hiring a lawyer to work on predatory lending and banking issues. The job announcement is here. 

 

Traitor Joe – another big company with no sense of humor making IP threats

by Paul Alan Levy

I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly).  Last week, I sent a response to a demand letter sent on behalf of Trader Joe's from a BigLaw attorney lawyer who, considering his claim to be a "seasoned intellectual property litigator," really should have known better than to subject his client to the Streisand Effect.

Read Rohit Chopra's statement to CFPB staff and other financial regulators right after his swearing in

Here.

An open letter to Rohit Chopra: Don't forget arbitration

Dear Rohit:

Congratulations on your confirmation to serve as Director of the Consumer Financial Protection Bureau! You are an excellent choice for many reasons, not least because you bring to the CFPB helm the experience of having served as an FTC Commissioner as well as having been at the CFPB in its earliest days.

Much has been written about the matters you are likely to pursue. No doubt much is also being written and said to you about what people want you to do. This is one of those communications: I hope you will use the CFPB’s power to regulate arbitration clauses. Pre-dispute arbitration clauses remain a serious limit on consumer protection and they are made all the worse by the fact that people agree to them without even knowing that they are surrendering constitutional rights.

It may feel as if you don’t have a deadline to act on arbitration clauses and so can put it off to attend to other matters that may seem more immediate. In fact, I fear you may have such a deadline. Because we do not know how the 2024 presidential election will go, your service at the Bureau might, unfortunately, end on January 20, 2025. And because of the Congressional Review Act, it is possible that Congress could block in 2025 rules adopted during the second half of 2024. In other words, your deadline for rules, including an arbitration rule, might actually be some time during the first half of 2024—less than three years from now. Accordingly, I hope you will not delay moving on arbitration clauses.

Some argue that Congress’s use of the Congressional Review Act in 2017 would prevent you from acting. For reasons I have explained at https://pubcit.typepad.com/clpblog/2021/05/a-suggestion-to-the-cfpb-for-a-new-arbitration-rule.html, I do not think that is so. If you proceed, there will be a battle, but it is a battle worth fighting.

One final point: many disagreements between consumer advocates stem from the desire of consumer advocates to prevent consumers from making poor choices (e.g., predatory loans, payday loan debt traps, and yes, contracts with arbitration clauses) and the desire of the industry to maximize consumer ability to make choices, including very bad ones. The unnecessary deaths of unvaccinated people from Covid has brought home the consequences of allowing people to make terrible decisions in another context. Similarly, during the Great Recession, millions lost their homes because they had willingly entered into tragic transactions. You can’t save lives, but part of your job is to prevent people from entering into transactions that could blow up their lives. I look forward to watching you do so.

Jeff Sovern

Are the Authors of Consumer Reviews Protected by Anti-SLAPP Laws?

by Paul Alan Levy

Today we entered an important case that will determine whether New York’s new and improved anti-SLAPP law protects the authors of consumer reviews against being sued for defamation when they reveal publicly that they were less than thrilled with a business’s services or products.

The case arose from the horrible experience of the Sproule family in early March 2020, when they traveled from their home in the Chicago suburbs to Sarah Sproule’s hometown, Wantagh, New York, to attend her father’s funeral. They brought along their daughter’s brand-new puppy (her Christmas present!) and took him in for grooming at a local business, VIP Pet Grooming Studio.  The precise course of events is disputed, but the bottom line is that the grooming was interrupted because the puppy reacted badly; water accumulated in the dog’s lungs; and after two days on a ventilator at a local animal hospital, at a cost of more than $10,000, the dog had to be put down.

Compounding the family’s misery, the grooming outfit refused to take any responsibility for what had happened. So Robert Sproule posted reviews on both Yelp and Google, and both he and his wife sued the grooming company for negligence once the courts reopened as the pandemic eased. On the same day that it responded to the negligence complaint, VIP Pet Grooming sued for defamation. In a particularly sleazy move, the company sued both Robert and Sarah Sproule, even though only Robert Sproule had posted the reviews. Was this punishment for Sarah Sproule’s having sued for negligence? Was it just extra pressure on the family as a whole? VIP's lawyer has ignored that question so far.