Phillips Petroleum v. Shutts and Consumer Law

by Brian Wolfman

Hello.  This is my first post, and I want to begin by thanking my colleague Deepak Gupta and others who have made this blog a reality.  It’s a exciting development, and I am honored to be a part of it.

I want to use this post to elicit comments and criticisms on an article that I wrote with my former colleague Alan Morrison.  The article, entitled “What the Shutts Opt-Out Right Is and What It Ought to Be,” is published at 74 UMKC L. Rev. 729 (2006), and is attached here with permission of the publisher.

When Is the Repo Man A "Debt Collector"?

by Deepak Gupta

Today, a panel of the U.S. Court of Appeals for the Fifth Circuit weighed in on a significant Fair Debt Collection Practices Act issue that has divided the courts—the extent to which repossession and foreclosure companies and their attorneys are covered by the Act.  Perhaps surprisingly, the short precedential decision, written by conservative Judge Emilio Garza, decided this open question in favor of a pro se litigant who had lost his mobile home in a foreclosure action.  In this particular case, the consumer sued the finance company’s attorney, arguing that filing a judicial foreclosure action without first sending a collection letter was a violation of the Act.  But the issue decided by the Fifth Circuit is much broader; it implicates all of the FDCPA’s prohibitions on deceptive, harassing, and unfair practices.  The case is Kaltenbach v. Richards, No. 05-30132 (5th Cir. Sept. 11, 2006).

Pretexting and Phone Records

by Jeff Sovern

The brouhaha over the use of pretexting to obtain the phone records of Hewlett-Packard's directors has drawn new attention to the practice of pretexting.  For example, The New York Times has articles here and here.  Pretexting refers to the practice of impersonating someone, usually a customer, to obtain information (typically, information involving the customer--such as their phone records).  Pretexters can be found liable for the practice; for example, in Remsburg v. Docusearch, 149 N.H. 148, 816 A.2d 1001 (2003), the court concluded that an action for the intrusion into seclusion invasion of privacy tort would lie against the pretexter for obtaining a person's Social Security number if the intrusion would have been offensive to a person of ordinary sensibilities.  The court also found that the investigator had a duty to exercise reasonable care before disclosing a third person's infromation to a client and that the pretexting call violated the state UDAP statute.  On the other hand, the court rebuffed the plaintiff's argument that there had been a violation of the appropriation privacy tort or that obtaining the consumer's work address violated the consumer's privacy.  Telephone companies and the FTC have also filed suits against pretexters while phone companies have responded to the practice by beefing up their security practices.  All of this may seem rather dry until you learn that in Remsburg, the pretexting service provided the information to a stalker, who then drove to the victim's workplace and killed her. 

NACA Announces New Consumer Class Action Guidelines

by Deepak Gupta

The use and abuse of the consumer class action device has become a recurrent source of controversy in the United States (and, as other countries begin to consider the American-style class action, a topic of global interest).  To be sure, much of the debate is fueled by hot air and a thinly disguised deregulatory agenda.  But there are also some very real problems out there.  The biggest by far is the sellout settlement, in which a greedy lawyer who's supposed to be representing consumers places his own desire for hefty fees above his clients' interests and enters into a collusive and unfair settlement that benefits everyone but the consumers themselves.  Left unchecked, this problem undermines public confidence in what is otherwise a powerful tool for justice and gives critics an excuse to throw the baby out with the bathwater.   

With that insight in mind, in the mid-1990's, the National Association of Consumer Advocates decided to respond by developing its Guidelines for Litigating and Settling Consumer Class Actions, which were issued, after extensive internal deliberation and public comment, in 1997.  The Guidelines were published in the Federal Rules Decisions, along with a foreword by co-blogger Brian Wolfman, who described them at the time as "intelligent, balanced, and, most importantly, supportive of the interests of absent class members--the very interests that class action critics allege have been abandoned by class action lawyers."  176 F.R.D. 370, 371.  Although they certainly haven't been a panacea, the Guidelines have been successful: They have set standards that answer some very thorny ethical, legal, and practical questions.  They have also been cited in published decisions, embraced by the courts, and reflected in the recent amendments to Federal Rule of Civil Procedure 23.

Consumer Protection in Europe

by Christine Riefa

I am based in the UK teaching Consumer Law at Brunel University (West London) and my mission in this blog is to bring you some information from Europe and keep monitoring interesting developments on this other side of the pond. For my first post, I would like to present some useful sources of European consumer law and briefly go over the basis of European consumer law policy.

The EU website is a first point of call and highly recommended if you are not familiar at all with European Law. For those who already have some knowledge I suggest going directly to the consumer policy pages, where you will find a useful guide to the legal texts applying as well as some background information regarding consumer protection in the EU. In addition, this is a good source for recent developments and news.

Identity Theft Without the Theft?

by Jeff Sovern

The New York Times had an interesting article this past Monday, Sept. 4, on the uses of identity theft for purposes other than obtaining credit. 

Welcome to the CL&P Blog

Everyone is a consumer and most businesses sell things to consumers.  That makes consumer law and policy something that touches all of us in our personal lives and many of us in our working lives. 

We're a group of law professors and lawyers who teach and practice consumer law.  We have written and spoken about the legal and policy issues surrounding consumer protection in a variety of forums--including court filings, law reviews, professional conferences, and the general media.  This blog provides yet another forum, but it is one with some unique benefits, including immediacy of communication and the possibility for dialogue with people around the world.  We hope to make this blog of interest not only to people (academics, practicing lawyers, journalists, activists) who are interested primarily in consumer issues, but also to a broader audience, including consumers and the businesses and regulators that deal with them.  In keeping with that aim, we've assembled a diverse group of contributors:

Richard Alderman
Dwight Olds Chair in Law and Director of the Consumer Law Center, University of Houston

Paul Bland
Staff Attorney and Director of the Mandatory Arbitration Abuse Prevention Project, Trial Lawyers for Public Justice

Cary Flitter
Partner, Lundy Flitter Beldecos & Berger

Deepak Gupta
Staff Attorney and director of the Consumer Justice Project, Public Citizen Litigation Group

Orly Lobel
Assistant Professor of Law, University of San Diego School of Law

Felicia Monye
Senior Lecturer, University of Nigeria

Chris Peterson
Assistant Professor of Law, University of Florida Levin College of Law

Ira Rheingold
Executive Director and General Counsel, National Association of Consumer Advocates

Christine Riefa
Lecturer in Law, Brunel University School of Social Sciences and Law

Jeff Sovern
Professor of Law, St. John's University School of Law

Brian Wolfman
Director, Public Citizen Litigation Group, and Lecturer on Law, Harvard Law School

The content of postings will be left up to the individual contributors, but we expect the blog will include analysis of the latest judicial decisions, commentary on current research and scholarship in consumer law, and discussion of a wide range of topics, such as consumer class actions, mandatory binding arbitration, predatory lending, debt collection, identity theft, and the relative value of public versus private enforcement, to name just a few.  We also hope to invite additional guest contributors and stimulate debate and discussion among readers.