Consumer Product Safety Commission issues guidance on court secrecy

Hat tip to Arthur Bryant who tells us that the U.S. Consumer Product Safety Commission has issued a guidance urging judges and litigants to ensure that every protective order and agreement in litigation “specifically allow for disclosure” to the “CPSC and other government public health and safety agencies.” The CPSC guidance is here. Arthur has blogged about it here.  

How the FTC Demonstrates Why We Need a Strong, Independent, Pro-Consumer CFPB

by Jeff Sovern

The FTC is a terrific agency that has done a lot of good for consumers.  Every FTC staffer I've ever met has impressed me as dedicated to consumer welfare, hard-working, and talented.  And yet, the FTC could do more if it weren't hamstrung by precisely the limits the financial industry and the House Financial Services want to impose on the CFPB.  Two examples of what more it could do: first, though the Dodd-Frank Act gave the FTC the power to issue regulations governing auto dealer in section 1029, the FTC hasn't used that power.  In contrast, during the six years since that Act was enacted, the CFPB started up and has issued many regulations protecting consumers. Second, the FTC continues to reach consent decrees that permit sellers to describe used cars as "certified" even though the cars have been recalled and the recall repair has not been done.  I wrote about this here, and it happened again last week. Personally, I think it's crazy to expect consumers to check to see if their certified car has been recalled or even to read disclosures closely enough to discover that certified does not mean the car is safe; surely consumers paying extra for a certified car are doing it at least in part because they think they are getting a safe car.

So why doesn't the FTC do more?  I suspect it's because the FTC is saddled with a commission-structure--which is often a recipe for gridlock--and is subject to the congressional appropriations process.  That gives industry lobbyists a lot of power to urge members of Congress to cut the FTC's budget if it doesn't do what the lobbyists want--and much of that is too much "inside baseball" to draw the attention of the media or voters, with the result that countervailing arguments are not given enough attention.  Congress has shown a willingness to whack the FTC when it thought the FTC was protecting consumers too aggressively.  Commissioners would be wise to eschew battles with Congress over controversial items and devote Commission resources to attacking practices that are universally-condemned, rather than draw industry ire and risk being deprived of any resources to aid consumers.  But the result is that the FTC is less protective of consumers than it could be.

The CFPB could still help consumers even if it starts to look like the FTC.  But consumers would be far better off if the FTC started to look more like the CFPB.

House "Freedom Caucus" Asks Trump to Kill CFPB Proposed Arbitration Rule; Is Freedom Just Another Word for Tricking/Trapping Consumers?

WSJ report here (behind paywall). The Caucus consists of 40 members.  The article reports that they seek rollback of 200 rules, but they anticipate that the number will rise. 

Klonoff: A Respite from the Decline in Class Actions

Robert H. Klonoff of Lewis & Clark has written Class Actions Part II: A Respite from the Decline.  Here is the abstract:

In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs' ability to bring class actions. As I explain in the present article, that trend has subsided. First, the Supreme Court has denied certiorari in several high profile cases. Second, the Court's most recent class action rulings have been narrow and fact specific. Third, the federal circuits have likewise adopted narrow and fact specific approaches to class actions. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back.

Federal Statute Barring Non-disparagement Clauses Is Enacted

by Paul Alan Levy

An announcement from the White House today listed the Consumer Review Fairness Act as one of several bills that President Obama signed into law yesterday.   Here is my public statement on the development.

And today I learned of a significant development: DC United is breaking with the forces at the headquarters of Major League Soccer which, I have been hearing, was the reason why the team put out language in a new form contract for season ticket holders. That document, read literally, would have forced fans to agree not to describe games or post photos or short video clips of games. As I explained last week, although the Consumer Review bill was designed to get at non-disparagement clauses, the language is broader and forbids any form contractual limits on consumers posting a “written . . . or pictorial review, performance assessment of, or other similar analysis of. . .  the goods, services, or conduct of a person . . ..” I have yet to see DC United's new language, but from what I have been told by the team there is reason to be optimistic.  It will be now up to soccer fans in other cities to press for changes — and fans of other sports, because language like this has been cropping up in teams in the National Football League, National Basketball Association and elsewhere.  It was on the way to becoming industry standard, but can no longer be.

It’s been a long haul for us at Public Citizen, litigating these cases one by one.  Many thanks to Robert Lee for standing up to Stacy Makhnevich, to John and Jen Palmer for taking on Kleargear, and to Robert and Michelle Duchouquette for staring down a lawsuit by Prestigious Pets seeking the deliberately intimidating amount of up to a million dollars in damages.  Eric Goldman and Jason Schultz deserve credit for their web site Doctored Reviews calling attention to a sleazy company whose business model involved charging medical professionals for form contracts barring criticism by patients.  And thanks as well to Yelp which was one of the main forces lobbying for this bill to protect its users -- so active on this subject that many people were calling it the "Yelp bill."  Thanks to Eric Swalwell, the original House sponsor (whose tweet this morning provided my original notice of yesterday's signing).

We should no longer have to go state-by-state to litigate these cases.  Attention to Claude and Violane Galland!

What's in store for the Consumer Product Safety Commission?

FairWarning has an article today about the Consumer Product Safety Commission:

For decades, the federal agency largely was seen as a doormat with few resources and a toothless enforcement record. But over the past few years, under its chairman, Elliot Kaye, the CPSC has dramatically increased the penalties imposed on wayward companies, including multi-million dollar settlements with firms accused of failing to make timely disclosures of product hazards. ... But with the November 8 election of Donald Trump, who has vowed to cut business regulations, the amped up penalties could come under tough scrutiny.

Read the full article here.

"Big Banks Fight to Block Crisis-Era Lawsuits From Continuing"

The New York Times reports:

Big banks are fighting tens of billions of dollars of potential legal costs linked to at least a dozen pending lawsuits arising from the financial crisis. Now they want the Supreme Court to weigh in, arguing that regulators took too long to file their claims.

A handful of banks, including Wells Fargo, Credit Suisse and Deutsche Bank, have asked the Supreme Court to review a lower court decision that said the regulators filed their claims on time despite a Depression-era securities law that gave them only a three-year window.

The full article is here.

Whither the Community Reinvestment Act?

BuckleySandler's Warren W. Traiger has some thoughts in the American Banker here (free content).

"Education secretary ousts one of the nation’s largest college accreditors from its oversight role"

The Washington Post reports:

Education Secretary John B. King Jr. on Monday rejected an appeal from the Accrediting Council for Independent Colleges and Schools, one of the largest national accreditation agencies, to remain the gatekeeper between colleges and billions of dollars in federal financial aid.

King is siding with his staff and an independent advisory board that deemed the council incapable of rectifying years of lax oversight of troubled for-profit colleges. Advocacy groups, lawmakers and state attorneys general have accused the accrediting agency of letting schools accused of fraud or with abysmal graduation rates receive millions of dollars in federal loans and grants, despite the risks to students and taxpayers.

The council has responded to the criticism by increasing the frequency of its on-site evaluations, removing board members with conflicts of interest, bringing in new leadership and stepping up enforcement actions. Its threat to revoke the accreditation of ITT Technical Institute set in motion a chain of events that ultimately led the for-profit schools to shut down. Still, the council’s efforts have not quelled objections to its participation in the federal student aid program.

The full article is here.

Latest FDA information on drug safety and drug labeling changes

The Food and Drug Administration has announced that it "is now making it easier and faster for health care professionals and patients to get the most up-to-date drug safety information on the more than 18,000 drugs available on our website. Our improved Drug Safety Labeling Changes Program enables FDA to post the latest safety information about a medicine almost at the same time we approve a change, as opposed to once a month." Also available at that web address is other basic information about the drug -- generic equivalents (if any), FDA reviews during the approval process, etc.

In addition, the FDA is reminding patients that "[s]afety information can change multiple times over the lifetime of a drug as FDA learns about new risks, interactions with other medications and side effects. After we become aware of new safety information, changes to the drug product labeling may be required. The public can [now] access this information  ... in a searchable database."