Outrage forces General Mills to back down on attempt to cram pre-dispute arbitration down its customers' throats

Jeff told you on Friday about General Mills's audacious attempt to force its customers into arbitration by downloading its coupons (among other things). After intense backlash, General Mills has reversed itself, as explained in this article by Stephanie Strom. For other articles on the switcheroo, go here and here.

Can Downloading a Coupon Bind Consumers to Arbitration?

Yesterday's and today's Times have a pair of articles on General Mills's new arbitration policy (HT: Eric Levine). According to the articles, yesterday's When ‘Liking’ a Brand Online Voids the Right to Sue and today's General Mills Amends New Legal Policies, if you sign up for General Mills email alerts, download a coupon from General Mills (including in exchange for "liking" a General Mills product on Facebook), you agree that any dispute you have with the company is to be decided by binding arbitration. The Atlantic offers its perspective here. The Sunday Times Magazine also has an arbitration piece, How Payday Lenders Prey Upon the Poor — and the Courts Don’t Help in its It's the Economy column.

Revised List of Schools Teaching Consumer Law This Year

by Jeff Sovern

A few weeks ago, I posted a list of schools offering consumer law courses this year, prepared by my research assistant, Preston Postlethwaite. Because the list was drawn from law school web sites, it omitted some such courses as some web sites were not up-to-date or were inaccessible. A number of people wrote in with additions, and Preston has now prepared a more complete list. It appears below the fold.  As before, if you spot an inaccuracy, please let me know by posting a comment.  Altogether, 53 schools offer the basic course, 21 have a consumer law clinic, and 12 have both a clinic and a basic course. That leaves about two-thirds of the ABA-accredited law school with neither.

Federal appeals court orders records in the "Company Doe" case unsealed

In a resounding victory for both the First Amendment right of access to court records and for consumers, the U.S. Court of Appeals for the Fourth Circuit held today in Company Doe v. Public Citizen that a district court erred in sealing records and allowing the use of a pseudonym in a challenge to the inclusion of a product safety report in a federal consumer product safety database. The district court had adjudicated the case entirely in secret, with secret facts, secret proceedings and a secret plaintiff; in ordering today that the record of the litigation be unsealed and the name of the company revealed, the Fourth Circuit sent a strong message disapproving of secret litigation.

By way of background, in the fall of 2011, a company sued the Consumer Product Safety Commission to keep a complaint about one of the company's product out of the terrific product safety database the CPSC created to help consumers learn about product hazards, pursuant to the Consumer Product Safety Information Act. When it filed its suit, the company also moved to seal the case and proceed under a pseudonym. A year later, the district court granted the seal and pseudonym, along with summary judgment for the company; as it turns out, the court had been holding hearings with no public knowledge or participation for months. The court's 73-page redacted decision contains large blocks of blacked-out text that at times make it nearly unreadable. (Sample analysis from the opinion: “[T]he report states that [REDACTED]. But the report does not indicate how [REDACTED] is connected to [REDACTED].”) Public Citizen, along with our allies Consumer Federation of America and Consumers Union (the publisher of Consumer Reports), appealed.

Today's unanimous decision from the Fourth Circuit reversed the district court and held that:

-Injury to corporate reputation is not enough to justify sealing court records under the First Amendment;

-The right to exclude a report from the CPSC database doesn’t include the right to litigate the entire matter in secret;

-Judicial opinions, summary judgment materials and docket sheets are protected by the First Amendment right of access to courts;

-Permitting a company to use a pseudonym to challenge the inclusion of a report in the CPSC database was an abuse of discretion in light of the public interest in the database; and

-District courts must act expeditiously on sealing requests.

Not only will the decision stand as a bulwark against the type of secret litigation that occurred in this case, it will also help ensure the efficacy of the CPSC database by preventing companies from litigating challenges to individual CPSC reports through years of secret litigation — a practice that, if permitted, would have undermined the goal of providing timely information to consumers through the database.

The public will learn the identity of Company Doe once the case is sent back to district court.

Rates of uninsured dropping faster -- way faster -- in states that are making nice with the Affordable Care Act (as opposed to states that are not)

As this article by Jason Millman explains, a new Gallup report finds, among other things, that "states which fully embraced the [Affordable Care Act] by setting up their own exchanges and expanding their Medicaid programs saw their uninsured rate drop this year three times faster than the states that didn’t."

D.C. Circuit foils challenge to the Senate filibuster rule

Over the years, people have filed a number of suits challenging the Senate filibuster rule -- the rule that effectively means that much key legislation needs 60 votes to pass the Senate (not just a bare majority). The courts have not reached the merits in those cases, instead bumping them on various non-merits grounds such as a lack of standing. That happened again today in the D.C. Circuit in Common Cause v. Joseph Biden, Jr. The court said that the plaintiffs (the good-government group Common Cause and others) lacked standing because they had not sued defendants who could provide them relief that would redress their alleged injuries. They sued the Vice-President and three Senate functionaries. Why didn't the plaintiffs sue the Senators themselves or the Senate itself? As the D.C. Circuit explained, because a suit against those defendants likely would have been barred by the Constitution's Speech or Debate Clause.

Social Security Administration does the right thing, halts collections on decades-old "overpayments"

As the Post explains,

The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.

The action comes after The Washington Post reported that the government was seizing state and federal tax refunds that were on their way to about 400,000 Americans who had relatives who owed money to the Social Security agency. In many cases, the people whose refunds were intercepted had never heard of any debt, and the debts dated as far back as the middle of the past century.

The article goes on to note that a lawsuit was also filed last week. The Social Security Administration's action is a good reminder of the power of both public outcry and litigation. In a week where the Post is being celebrated (rightly) for its reporting on privacy and national security, we shouldn't forget the other contexts in which good muckraking journalism can make a difference, including issues affecting some of the most economically vulnerable individuals. (The D.C. tax lien issue covered by the Post last fall is another good recent example.)

Read the CFPB's 2013 Consumer Response Annual Report

Read the Consumer Financial Protection Bureau's 2013 Consumer Reponse Annual Report, which is the agency's name for its comprehensive report on consumer complaints to the agency. Among other things, it explains how the CFPB handles complaints and then reviews complaints by type, including, for instance, debt collection, mortgages, credit cards, and payday loans. CFPB director Richard Cordray's instroduction to the report is reproduced after the jump.

New article on failure-to-warn tort liability in drug cases

Should assessment of a drug's labeling be the bottom line in deciding whether a drug manufacturer has failed adequately to warn doctors of a drug's hazards? Or should tort law take into account marketing by the manufacturer's drug reps, who may soft-pedal those hazards. These issues are taken up Failure to Warn: Facing Up to the Real Impact of Pharmaceutical Marketing on the Physician's Decision to Prescribe by law professor Katherine Vukadin. Here is the abstract:

Pharmaceutical side effects cause more than 100,000 deaths per year. Because pharmaceuticals pose serious risks, the Food and Drug Administration carefully vets the written warnings that physicians receive about each drug. But alongside these official warnings, attractive pharmaceutical representatives offer slick sales pitches in what amounts to a billion-dollar campaign aimed at influencing the physician’s judgment. Pharmaceutical representatives are known to downplay the package insert’s warnings. Based on social science research, the marketing operates at a subconscious level, so targeted physicians are often unaware of its surreptitious effects. Nonetheless, pharmaceutical company defendants in failure-to-warn lawsuits can often obtain summary judgment based purely on the package insert, while the pervasive — and effective — warning-diluting marketing information is ignored. This article proposes that the failure-to-warn inquiry face up to pharmaceutical marketing’s potent role in many prescribing decisions. Courts assessing a warning’s adequacy cannot stop at the package insert but must consider the warning-diluting marketing information as well. And when causation is the question, the physician’s testimony should not be conclusive as to the marketing information’s effects. Failure-to-warn jurisprudence should stop relying on empty paper compliance and recognize present-day pharmaceutical marketing as a compelling and driving force in the decision to prescribe.

Ninth Circuit Procedures Take Secrecy to Silly Extremes

by Paul Alan Levy

Over at Techdirt, Tim Cushing points us to a bizzare situation in the Ninth Circuit rule in which the Reporters Committee for Freedom of the Press was required to file its amicus brief supporting EFF’s position in litigation over National Security Letters under seal.  The Reporters Committee’s announcement of its brief describes its arguments in general terms but does not link to its brief (given the fact that it has been filed under seal).