Consumer Protection Law Commons^™

The Risk Of An Anti-Consumer Cfpb, Christopher L. Peterson

Utah Law Faculty Scholarship

The risks of an anti-consumer CFPB go beyond just those cases currently under investigation. America has a massive financial sector that is constantly evolving and reinventing itself. This striving for innovation and efficiency is, of course, one of the American financial system’s great advantages. Nevertheless, the Sun-Tzu-worshipping, MBA-wielding financiers that use boilerplate consumer credit contracts as weapons in their endless market-share battles are paying attention to what the agency is doing—and more importantly, to what it is not doing. A chilled CFPB law enforcement program will embolden the consumer finance industry to roll out more misleading advertising, more deceptive sales …

Rethinking Article Iii Standing In Class Action Consumer Protection Cases Following Spokeo V. Robins, Joshua Scott Olin

University of Miami Business Law Review

The Supreme Court recently handed down the landmark decision of Spokeo, Inc. v. Robins, holding that a “bare procedural violation” of a federal consumer protection statute—namely, the Fair Credit Reporting Act—was not enough to satisfy Article III standing because the injury alleged was particularized but not concrete. After Spokeo, those wishing to bring suit based on consumer protection statutes will have a much more difficult time showing that the injury suffered was “concrete” enough to confer Article III standing and, as a result, the term “consumer protection” will be rendered meaningless. Unless the Supreme Court revisits the issue …

Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis

Brooklyn Journal of International Law

At a time when the digital distribution of music is dominating the music industry, there are more music consumers than ever. This makes it vitally important for performing artists to receive the credit they are due. An inherent problem in music’s digital distribution market is that music streaming companies often fail to acquire proper licenses to expand their music libraries faster than their competitors. Performing artists who may not have the same income stream as their A-list counterparts often cannot bear the cost of litigation to pursue uncredited royalties. The U.S. class action model provides performing artists with a legal …

Video Review; Routine Data Sharing Practices Place Video-Streaming Providers In The Crosshairs Of The Video Privacy Protection Act, Jeremiah P. Ledwidge

Brooklyn Journal of Corporate, Financial & Commercial Law

The Video Privacy Protection Act of 1988 (VPPA) creates a private cause of action for any consumer whose personally identifiable information has been disclosed by a video tape service provider to a third party. The rapid growth of media companies that provide free internet-based video-streaming services, and the technologically-advanced advertising methods employed to fund this business model, have created uncertainty regarding the specific consumer segments the VPPA is designed to protect. The extensive role that third-party providers play in the collection, analysis, and segmentation of user data in the personalized advertising process raises justifiable privacy concerns for consumers. Recent VPPA …

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Peter Menell

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …

Reflections On Liability Of Air Carriers For Delay, Vernon Nase

The University of Notre Dame Australia Law Review

This paper provides an analysis of both international and Australian law on the liability of air carriers and compensation for delay. It discusses the need for States to develop standard regulatory responses to delay in international carriage. It uses the EC Regulation and the New Zealand legislation as models for developing clearer legal principles and ensuring appropriate compensation for passengers affected by delay. It concludes that domestic regulation and guidance regarding delay and overbooking of flights is required to ensure appropriate liability of air carriers and clarity for passengers.

Data Protection In Nigeria: Addressing The Multifarious Challenges Of A Deficient Legal System, Roland Akindele

Journal of International Technology and Information Management

This paper provides an overview of the current state of privacy and data protection policies and regulations in Nigeria. The paper contends that the extant legal regime in Nigeria is patently inadequate to effectively protect individuals against abuse resulting from the processing of their personal data. The view is based on the critical analysis of the current legal regime in Nigeria vis-à-vis the review of some vital data privacy issues. The paper makes some recommendations for the reform of the law.

The 2016 Amendments To Singapore’S Consumer Protection (Fair Trading) Act: A Missed Opportunity, Wee Ling Loo, Ee-Ing Ong

Research Collection Yong Pung How School Of Law

Singapore hasrecently amended its Consumer Protection (Fair Trading) Act in response to calls for tougher action against unscrupulous traders. The revisions were aimed at strengthening the government’s ability to deter and punish errant traders, witha focus on deterrence. To this end, the government introduced new investigatory powers, enhanced court powers and added one substantive consumer remedy. Despite this, the authors argue that Singapore’s consumer protection regime remains inadequate because: unfair practices have yet to attract criminalsanctions; no guidelines were issued to provide transparency and clarity on how the broad investigatory powers and harsher court powers are to be implemented; no …

Holding Investment Bankers Liable For Aiding And Abetting Corporate Directors: The Under-Deterrent, Maren Worley

Brigham Young University Journal of Public Law

No abstract provided.

Private Import Safety Regulation And Transnational New Governance, Errol E. Meidinger

Errol Meidinger

Published as Chapter 12 in Import Safety: Regulatory Governance in the Global Economy, Cary Coglianese, Adam M. Finkel & David Zaring, eds.

This paper examines the role of ‘private’ (non-governmental) regulatory programs in assuring the safety of imported products. Focusing particularly on food safety it argues that private regulatory institutions have great capacity to control safety hazards and to implement dynamic systems for detecting and correcting nascent risks. However, to establish the accountability and legitimacy relationships necessary for long-term effectiveness, private safety regulatory programs must devise new ways of incorporating and responding to the interests of developing country producers, laborers, …

Consumer Class Actions: Who Are The Real Winners?, Edward F. Sherman

Maine Law Review

The class action is one of the most controversial procedural devices in the American legal system. In the years since an expanded class action rule was adopted in 1966, class actions have grown in scope and number, and suits by consumers have accounted for an increasing share of class actions suits. By allowing individuals to sue not only for themselves, but also on behalf of others similarly situated, the class action “empowers plaintiffs to bring cases that otherwise either would not be possible or would only be possible in a very different form.” Business critics see this as enabling “lawyers …

Who Are The Real Cyberbullies: Hackers Or The Ftc? The Fairness Of The Ftc’S Authority In The Data Security Context, Jaclyn K. Haughom

Catholic University Law Review

As technology continues to be an integral part of daily life, there lies an ever-increasing threat of the personally identifiable information of consumers being lost, stolen, or accessed without authorization. The Federal Trade Commission (FTC) is the U.S. government’s primary consumer protection agency and the country’s lead enforcer against companies subject to data breaches. Although the FTC lacks explicit statutory authority to enforce against data breaches, the Commission has successfully relied on Section 5 of the FTC Act (FTCA) to exercise its consumer protection power in the data security context. However, as the FTC continues to take action against businesses …

Understanding The Consumer Review Fairness Act Of 2016, Eric Goldman

Michigan Telecommunications & Technology Law Review

Consumer reviews are vitally important to our modern economy. Markets become stronger and more efficient when consumers share their marketplace experiences and guide other consumers toward the best vendors and away from poor ones. Businesses recognize the importance of consumer reviews, and many businesses take numerous steps to manage how consumer reviews affect their public image. Unfortunately, in a misguided effort to control consumer reviews, some businesses have deployed contract provisions that ban or inhibit their consumers from reviewing them. I call those provisions “antireview clauses.”

Anti-review clauses distort the marketplace benefits society gets from consumer reviews by suppressing peer …

Choosing Corporations Over Consumers: The Financial Choice Act Of 2017 And The Cfpb, Christopher L. Peterson

Utah Law Faculty Scholarship

The Financial Choice Act of 2017 is appropriately named in at least one sense: its proposed restrictions on the authority of the Consumer Financial Protection Bureau reflect a choice by the House of Representatives to protect financial companies at the expense of consumers. This choice is borne out by the data. As this empirical review of CFPB enforcement cases demonstrates, nearly all of the relief provided to American consumers in CFPB enforcement cases arose where a bank, credit union, or other finance company deceived their customers about a material aspect of their product or service. Between 2012 and 2016, the …

Do We Need Help Using Yelp? Regulating Advertising On Mediated Reputation Systems, David Adam Friedman

University of Michigan Journal of Law Reform

Yelp, Angie’s List, Avvo, and similar entities enable consumers to access an incredibly useful trove of information about peer experiences with businesses and their goods and services. These “mediated reputation systems,” gatherers and disseminators of consumer peer opinions, are more trusted by consumers than traditional commercial channels. They are omnipresent, carried everywhere on mobile devices, and used by consumers ready to transact.

Though this information is valuable, a troubling conflict emerges in its presentation. Most of these reputation platforms rely heavily on advertising sales to support their business models. This reliance compels these entities to display persuasive advertising right along …

Madden V. Midland Funding Llc: Uprooting The National Bank Act’S Power Of Preemption, Andrew Silvia

Chicago-Kent Law Review

No abstract provided.

A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman

Maine Law Review

In Illinois Tool Works Inc. v. Independent Ink, Inc., an ink manufacturer sought to invalidate patents held by a printing system manufacturer by alleging that the patents resulted in illegal tying and monopolization in violation of Sections 1 and 2 of the Sherman Act. This action was preceded by an infringement action brought by Illinois Tool Works (ITW), which was dismissed for lack of personal jurisdiction. Independent Ink (Independent) responded by seeking a judgment of non-infringement and invalidity of patents against ITW. The district court granted summary judgment in favor of ITW on both counts. The court of appeals reversed …

Salmon With A Side Of Genetic Modification: The Fda’S Approval Of Aquadvantage Salmon And Why The Precautionary Principle Is Essential For Biotechnology Regulation, Kara M. Van Slyck

Seattle University Law Review

This Note seeks to address the issues concerning the FDA’s approval of genetically modified salmon for consumption, arguing that the FDA did not properly vet AquAdvantage salmon, as well as relied on inappropriate criteria in their approval of its market use. Part I provides a brief history of AquAdvantage salmon’s introduction to U.S. markets and the legal actions taken in response to the FDA ruling. Part II discusses the statutes and regulations fundamentally relevant to GE products, as well as a critique of the way each regulation was used to approve AquAdvantage. Part III offers a comparison to the European …

Crossing The Line: Prime, Subprime, And Predatory Lending, Nathaniel R. Hull

Maine Law Review

The cornerstone of the “American Dream” has long been marked by the purchase of a home. Most families cannot afford to purchase a home with cash and, almost universally, need financing. Financing for a home purchase begins when a person or couple applies and is preliminarily approved for a home loan by a lender. The lender’s decision to approve is based on a number of different factors that are thought to predict how likely it is for the borrower to repay the loan according to its terms. The factors used to make this prediction have undergone drastic reformulations over the …

Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith

Maine Law Review

For decades, scholars have written about credit cards and attorney’s fees, but rarely together. This Article addresses the current financial crises of Americans, the credit card industry (including the Bankruptcy Abuse Prevention and Consumer Protection Act) and attorney’s fees—perhaps a unique combination. It is based upon an actual case that left the putative debtor in a worse financial crisis than before the lawsuit was filed. This Article addresses the current credit card industry and its detrimental impact on society, and it discusses the history and purpose of attorney’s fees, as well as the pitfalls in attorney’s fee legislation. It analyzes …

Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia

Maine Law Review

In the fall of 2010, the revelations that tens of thousands of foreclosure filings across the nation were likely fraudulent—if not outright criminal—sparked a nation-wide investigation by all fifty state attorneys general to assess the extent of the scandal and its potential impacts, but also to consider likely legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state’s Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit “unfair” and “deceptive” practices, which are described loosely in these laws, and often give …

"Fowl" Practice Of Humane Labeling: Proposed Amendments To Federal Standards Governing Chicken Welfare And Poultry Labeling Practices, Latravia Smith

Alumni Works

Chickens raised specifically for meat production are the world’s most intensively farmed land animals. Yet, the existing legal frameworks that regulate the production and labeling of poultry products in the United States allow poultry producers to mistreat chickens, falsely distinguish poultry products, and defraud conscious consumers. This article proposes unique opportunities to improve poultry welfare in the United States’ agricultural industry and offers methods to ensure the accurate labeling of poultry products.

Consumer Financial Protection And Human Rights, Chrystin Ondersma

Cornell International Law Journal

This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human …

Guardians Of The Galaxy Of Personal Data: Assessing The Threat Of Big Data And Examining Potential Corporate And Governmental Solutions, Timothy A. Asta

Florida State University Law Review

No abstract provided.

Wearables And Warranties, Rachel Landy, Jennifer M. Halbleib

Online Publications

The last few years have seen an explosion of wearable digital health products. Where a doctor’s visit used to be required for a basic check-up, now a patient’s health status is increasingly at his or her fingertips. We have the ability to track fitness levels, monitor lung and heart capacity, check skin temperature, and observe blood pressure with a simple wearable device.

Empowering Consumers Through Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

We transact online every day, hoping that no problems will occur. However, our purchases are not always perfect: goods may not arrive; products may be faulty; expectations may go unmet. When this occurs, we are often left frustrated, with no means for seeking redress. Phone calls to customer service are generally unappealing and ineffective, and traditional face-to-face or judicial processes for asserting claims are impractical after weighing costs against likely recovery. This is especially true when seeking redress requires travel, or for crossborder claims involving jurisdictional complexities. This situation has created a need for online dispute resolution (“ODR”), which brings …

The Safe Harbor Solution: Is It An Effective Mechanism For International Data Transfers Between The United States And The European Union, Alexander Zinser

Oklahoma Journal of Law and Technology

No abstract provided.

Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee

Maine Law Review

Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which the First …

When The Feds Have Taken The Field: Federal Field Preemption Of Claims Against Manufacturers Whose Medical Devices Have Received Premarket Approval By The Fda, Charles Warren

Oklahoma Journal of Law and Technology

No abstract provided.

Comments To The Federal Trade Commission On The Can-Spam Rule Review, 16 C.F.R. Part 316, Project No. R711010, Roger Allan Ford

Law Faculty Scholarship

These comments respond to the Federal Trade Commission’s request for public comment on the CAN-SPAM Rule, 16 C.F.R. Part 316.

The CAN-SPAM Act set a minimum baseline for consumer protections that senders of unsolicited commercial email must respect. These protections have been largely effective at giving consumers the ability to manage how a large group of companies uses their email addresses for marketing. At the same time, the Act has had little effect on the volume of unsolicited commercial email or on the amount of email sent by scammers and fraudsters. The Act and its implementing Rule, then, have been …