Ronald Mann on the SCOTUS Oral Argument in Midland Funding v. Johnson Dealing with the FDCPA Act and Bankruptcy

At SCOTUS blog. The headline: Justices appear divided over treatment of stale claims in consumer bankruptcies

"Student debt now affects a staggering number of elderly Americans"

The Washington Post reports:

The number of older Americans taking on student debt on behalf of their children and grandchildren has quadrupled in the past decade, with consumers over 60 now holding $66.7 billion in student loan debt, according to a new report by the Consumer Financial Protection Bureau.

The skyrocketing cost of college has placed a particular burden on older Americans, many of whom are struggling to pay back growing debts in their retirement years, according to the report. Nearly 40 percent of federal student loan borrowers over age 65 are in default, the highest rate for any age group, the data show.

The full article is here.

The Hill: Dem senators to Trump: Don't tell consumer bureau chief 'you're fired'

Here. Excerpt:

Schumer said Trump’s decision to “govern as a hard-right Republican” and possibly replace Cordray breaks his campaign promise to “drain the swamp” by fighting corporate interests on behalf of middle-class Americans.

* * *

The CFPB is currently finalizing rules on arbitration clauses, payday lending and debt collecting. Warren said the push to remove Cordray is spearheaded by industries affected by those rules with the goal of eliminating the pending regulations.

* * *

Democrats say the push for a commission would make the agency effectively powerless. They point to other federal regulatory commissions that lack members because Senate Republicans refuse to approve many of President Obama’s nominees.

Guest Post by Norman I. Silber: Consumer Protection in a Trump Administration: The CPSC and the FCC

Earlier today, in an American Bar Association Antitrust Section webinar chaired by Harvey Saferstein, and with panelists Deborah Goldstein, Center for Responsible Lending, and Daniel D. Sokol, Professor of Law, University of Florida Levin College of Law, Hofstra's Norman I. Silber delivered the remarks that appear below about the Consumer Product Safety Commission and the Federal Communications Commission.  Norm has graciously consented to allow posting of his notes for his talk to the blog. He cautions that this was designed for verbal presentation and that he did not record his sources and therefore can’t footnote but indicated by quotations lines that are taken from others. He is grateful for conversations with many individuals who helped provide him information which he has privately acknowledged.

Weakening the Consumer Product Safety Commission.

As consumer affairs professionals know, the CPSC regulates the sale and manufacture of more than 15,000 different consumer product lines, from cribs to all-terrain vehicles. It fulfills its mission by banning dangerous consumer products, establishing safety requirements for other consumer products, issuing recalls of products already on the market, and researching potential hazards associated with consumer products.  Showcase recalls in the last few years, among hundreds of recalls, include the dangerous flaming Samsung Galaxy smartphones, exploding hover-boards, and IKEA bookcases that tip over. A number of consumer affairs professionals believe that the recall approach is a poor substitute for pre-market clearance and better inspection. The chief problem the Agency has faced is the glacial pace of rule-making, which has stalled rules that by most experts estimation can save many lives without imposing undue expense on consumers and businesses.

In 2008, in a show of strong consumer bipartisanship, connected to tragedies in connection with lead residues, the CPSC was granted extensive new regulatory authorities and mandates to improve consumer product safety through the Consumer Product Safety Improvement Act (CPSIA); new tools and building new capabilities, such as a new public information database and a world-class testing laboratory. Then Senator Obama took a leading role, but it was an accomplishment President Bush took pride in.

Among other things, the 2008 Safety Improvement Act upped the agency’s penalties for failing to comply with recall rules and for permitting unsafe products to enter the market rose to an aggregate limit of $15 million, with adjustments for inflation. Over the past two years, the CPSC has reached multimillion-dollar settlements under its elevated penalty authority.

Now comes the election. There is currently a Democratic majority but President Trump can remove Elliot F. Kaye as chair. But if he does he can’t turn around and appoint another chair because CPSC chairs must be confirmed by Senate and so the chair will remain vacant for some time; likely the commissioners will on their own vote one of two Republicans to be vice chair, and when Kaye is removed, a Republican vice chair will be acting chair. But there will be 3 Democrats until Oct 2017, when a Democratic majority is lost. At that point one can anticipate a de-emphasis on collecting all of the penalties already assessed, and perhaps more permissive attitude about consumer risk-taking.

DC United Withdraws Repressive Season Ticket Holder Contract

Responding to widespread complaints from its consuming public, including some articles on this blog as well as a consumer gripe site, DC United has withdrawn a demand that its season ticket holders sign away the right to talk about the team or post photos of video clips.  Its newly revised proposed contact for season ticketholders is a model of simplicity with no objectionable provisions. 

Credit to the team for responding in this way, but credit also to the many fans who contacted the team to let it know that they were reason to drop their season tickets if need be.

One of the arguments DC United originally made was that its language with respect to posting on social media was standard language borrowed from other sports teams.  I argued in a recent blog post that, to the extent that other teams are maintaining such language in their standard ticket agreements, they risk violating the new federal statute barring agreements in form contracts that forbid consumers from providing "a written, oral, or pictorial review, performance assessment of, or other similar analysis of . . . the goods, services, or conduct of a person by an individual who is party to a form contract.”  Section 2(a)(2).   It won't be DC United that will have to litigate that issue in an appropriate case.

USDA set to release new "organic" standard

The Hill reports that the White House Office of Management and Budget completed its review of the organic livestock and poultry practices Wednesday, giving the Department of Agriculture’s Agricultural Marketing Service the green light to release the final rules on treatment of animals whose meat will be sold as “certified organic.” Under the rules, proposed in April, livestock and poultry have to live in environments where they can exhibit natural behaviors in order to qualify for the organic label.

 

The full article is here.

SCOTUS to Decide if NLRB Class Action Waiver Ban is Enforceable.

The U.S. Supreme Court agreed to hear three cases related to the National Labor Relations Board (NLRB) decision in D.R. Horton in which the NLRB held that companies that require employees to sign class action waivers violate their rights to act collectively under Section 7 of the National Labor Relations Act (NLRA).

The three cases to be heard by the Supreme Court are Murphy Oil, Epic Systems, and Ernst & Young. Murphy Oil is a Fifth Circuit Court of Appeals decision in which that court concluded that the NLRB was wrong in holding that required employee class action waivers violated the NLRA. The Seventh Circuit in Epic Systems and the Ninth Circuit in Ernst & Young went the other way, upholding the NLRB’s position in D.R. Horton.

"With Trump’s conflicts, corporate America wouldn’t hire him as CEO"

Read this Washington Post opinion piece by my colleague Alicia Plerhoples.

 

 

Ninth Circuit considers when debt collector enforcing a security interest is subject to FDCPA.

In Mashiri v. Epstein Grinnell & Howell, the Ninth Circuit reversed the district court’s dismissal for failure to state a cause of action under the Fair Debt Collection Practices Act (FDCPA). On appeal, Defendants argued for the first time they were merely enforcing a security interest and subject to only §1692f(6). The court rejected Defendants’ argument that it was enforcing a security interest. The court stated, “Rather than seeking to enforce an existing security interest or lien, the May Notice sought to collect Mashiri’s overdue assessment fee and to make necessary disclosures that would perfect the HOA’s security interest and permit it to record a lien at a later date.” The court also found the defendants’ interpretation of §1692a(6) incorrect. “As we recently observed “[i]f entities that enforce security interests engage in activities that constitute debt collection, they are debt collectors."

Am Banker: Trump team signals it will oust CFPB's Cordray

by Jeff Sovern

Here (behind paywall). Excerpt:

Exactly how President-elect Donald Trump intends to get rid of Cordray is unclear. Under the Dodd-Frank Act, Cordray can only be fired "for cause," and some speculate that the Trump administration is already building a case against the CFPB chief. One source with knowledge of the situation told American Banker that the Trump administration may reach out directly to Cordray to give him the opportunity to resign without being fired.

And on the subject of a possible successor, Congressman Neugebauer:

"Mr. Neugebauer is uniquely qualified to serve as CFPB Director," said J.W. Verret, an associate professor of law at George Mason University and former chief economist for the full committee. "He has an unparalleled commitment to protecting consumers and ensuring the CFPB operates more effectively and efficiently going forward."

Lots of rumors have been floating around about what the President-Elect wants to do, or will do.  Perhaps the source is pursuing his or her own agenda and hope Director Cordray will leave voluntarily and does not actually speak for Trump.