Shutdown impeding consumer and worker protections

In a post yesterday, Public Citizen reported that the government shutdown is placing crucial consumer, health, and safety protections at serious risk.

The agency most impacted in the Consumer Product Safety Commission, where only 20 members of the 550-person staff are at work during the shutdown (working, but not being paid).

For information about the specific impacts due to furloughs brought on by the shutdown at eleven federal consumer and worker protection agencies, read the report here.

ABA President responds to our op-ed but ignores our main argument

by Jeff Sovern

Here, in Bloomberg. I'm afraid I didn't find it persuasive. He didn't respond to our argument that state courts often fail to discipline attorneys who violate ethical rules in debt collection matters, as well as other points we made. 

FTC during government shutdown

The following Federal Trade Commission services are NOT available during the shutdown:

• National Do Not Call Registry (For consumers)
• National Do Not Call Registry (For telemarketers)
• Consumer Sentinel Network (For law enforcement)
• Complaint Assistant (For filing consumer complaints)
• Identitytheft.gov (For consumers reporting ID theft)
• Econsumer.gov (For consumers reporting international complaints)

Public comments can be submitted, but the FTC will take no action on these comments until the government reopens.

Individuals can submit documents to be filed, but the FTC will take no action until the government reopens.

FOIA requests can be submitted, but they will not be processed until the government reopens.

The Supreme Court unanimously rejects a "wholly groundless" exception to arbitrability under the Federal Arbitration Act

The Supreme Court today decided Henry Schein Inc. v. Archer and White Sales Inc., which presented the question "whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is 'wholly groundless.'” The answer was an unanimous no. The opinion is here.

Fosamax drug preemption case argued in the Supreme Court

The Supreme Court held argument yesterday in Merck Sharp & Dohme Corp. v. Albrecht. Here's the (loaded) question presented in Merck: 

Whether a state-law failure-to-warn claim is pre-empted when the Food and Drug Administration rejected the drug manufacturer's proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning.

Some observers have speculated that the forthcoming decision in Merck could substantially narrow the Supreme Court's ruling in Wyeth v. Levine (2009). Wyeth held that state-law failure-to-warn suits over mislabeled prescription drugs generally are not preempted by federal law, and are preempted only in very limited circumstances -- where the FDA would have rejected (or, presumably, has rejected) the very warning that the plaintiff maintains would have prevented her injuries. As I read the transcript from yesterday's argument in Merck, it does not seem that an earth shattering ruling is in the offing. It appears that the Justices generally accept Wyeth's basic holding and are struggling with how it applies to the idiosyncratic facts presented in Merck.  

"The FDA is still letting doctors implant untested devices into our bodies"

That's the name of this Washington Post article by Jeanne Lenzer and Shannon Brownlee. The article explains that the FDA continues to allow critical, implanted medical devices on the market via the so-called "510(k) process." Among other serious deficiencies, the 510(k) process does not require pre-market clinical safety testing. Lenzer and Brownlee explain that the FDA's lax regulation has harmed patients and note that while dangerous devices "have received widespread coverage in the press," that publicity has "had virtually no effect on FDA policy. Even a damning 2011 report by the Institute of Medicine (requested by the FDA), which deemed the agency’s 501(k) pathway so flawed it should be thrown out, fell on deaf ears." 

CFPB Complaint Database Scores Win for Times Columnist

by Jeff Sovern

The CFPB's former acting director, Mick Mulvaney, compared the Bureau's public database to Yelp and threatened to take it private, though he never did so. Director Kraninger has not made public her plans for the database, to the best of my knowledge, and so public access to the complaints may still be at risk. We have reported before how the database has helped even a consumer law expert. Now Pulitzer-Prize winning NY Times columnist Michelle Goldberg reports how the database helped her secure an $11,000 refund after her own efforts to work things out with her bank had failed:

I’d been signed up for a dubious program that purported to protect users’ credit in certain emergency situations. My bank had been accused of fraudulent practices in connection with it and fined $700 million by the Consumer Financial Protection Bureau, * * *  I tried, maddeningly, to seek redress from the bank — cycling through phone trees, screaming at automated operators. No one could tell me how I’d been enrolled in the program, or for how long.

Eventually, I turned to the C.F.P.B. itself, filling out a simple form on its website. A few weeks later, I was notified that the bank had been deducting money from my account for years, and I was being refunded more than $11,000. 

I wonder how many consumers have a similar story to tell. House Financial Services Chair Maxine Waters has said she will focus on the Bureau. This seems like one of many topics worth congressional attention.

CFPB announces first enforcement action under Kraninger: Will there be a Kraninger discount, as there was a Mulvaney discount?

by Jeff Sovern

Regular CFPB observers will recall that after Mulvaney took over as acting CFPB director, it took many months before the Bureau announced its first enforcement action.  Well, the new director, Kathy Kraninger, has already announced her first settlement. This settlement might offer some guidance as to what kind of director Kraninger will be. It will be interesting to see if the CFPB staff had recommended a fine different from that agreed to under the settlement.  Or perhaps former Bureau staffers will comment publicly on whether they find the settlement agreement satisfactory. Will there be a Kraninger discount, as there was a Mulvaney discount? The absence of a Mulvaney-style interval between Kraninger's assuming the directorship and announcing the first settlement may signify that, as expected, Kraninger has taken over an operation from someone whose ideology is consistent with her own, and so revisiting past decisions in the case is unnecessary. Evan Weinberger at Bloomberg has a report here.

Tsesis Article: Marketplace of Ideas, Privacy, and Digital Audiences

Alexander Tsesis of Loyola of Chicago has written Marketplace of Ideas, Privacy, and Digital Audiences, forthcoming in the Notre Dame Law Review.  Here's the abstract:

The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy.

Social media companies disseminate news, advertisements, political messages, while also capitalizing on consumers’ private shopping, surfing, and travel habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash-up and scrape enormous amounts of online and otherwise available personal data to micro-target audiences. By collecting and then processing psychometric data sets, commercial and political advertisers rely on emotive advertisements to manipulate biases and vulnerabilities that impact audiences’ shopping and voting habits.

The Free Speech Clause is not an absolute bar to the regulation of commercial intermediaries who exploit private information obtained on the digital marketplace of ideas. The Commerce Clause authorizes passage of law to regulate internet companies that monetize intimate data and resell it to third parties. Rather than applying strict scrutiny to such proposed regulations as one would to pure speech, judges should rely on intermediate scrutiny to test statutes limiting the commercial marketing of data.

Legislative reforms are needed to address the substantial economic effects of massive, commercial agglomeration of data files containing histories, daily routines, medical conditions, personal habits, and the like. To address this logarithmically expanding cyber phenomenon, Congress should temporally restrict the retention and trade in private data. Internet intermediaries should not be immune from such a restriction on private data storage. For such a policy to be effective, safe harbor provisions shielding internet intermediaries should be modified to allow for civil litigation against internet companies that refuse a data subject’s request to remove personal information no longer needed to accomplish the transaction for which it was originally processed.

Sad News: FTC Crippled by Government Shutdown

by Jeff Sovern

The FTC was expected to run out of funding to conduct most of its operations at some point today, according to the Washington Post. The FTC's shutdown is obviously bad news for consumers. My understanding is that because the CFPB receives its funding from the Fed, it is not subject to the shutdown.