Consumer Protection Law Commons^™

The Skeleton Of A Data Breach: The Ethical And Legal Concerns, Hilary G. Buttrick, Jason Davidson, Richard J. Mcgowan

Richmond Journal of Law & Technology

After over thirty data breaches spanning the third and fourth quarter of 2012, Forbes magazine labeled the summer of 2012 as “The Summer of the Data Breach.” Four years later, businesses across multiple industries have suffered brand-image damage and paid millions of dollars in remedial expenses; we are living in the era of the mega breach. In 2014, companies such as Target, Home Depot, JP Morgan Chase, Anthem, Sony, UPS, Jimmy John’s, Kmart, Neiman Marcus, Community Health Systems, and the White House suffered data breaches. The Home Depot breach alone resulted in the loss of “56 million credit card accounts,” …

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …

“Hello…It’S Me. [Please Don’T Sue Me!]” Examining The Fcc’S Overbroad Calling Regulations Under The Tcpa, Marissa A. Potts

Brooklyn Law Review

Americans have received unwanted telemarketing calls for decades. In response to a rapid increase in pre-recorded calls made using autodialer devices, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1992. The TCPA imposes restrictions on calls made to consumers’ residences and wireless phones using autodialer devices, even if they are not telemarketing calls. Congress appointed the Federal Communications Commission (FCC) to prescribe rules and regulations to enforce the TCPA. In 2015, the FCC released an order that defined autodialer more broadly under the statute. Consequently, devices that have the potential to become autodialers in the future, even if they …

Tightenting The Loophole: The Role Of Fee-Shifting Statutes In Resolving The Growing Problem Of Servicing America's Student Loan Debt, Katheryn E. Marcum

West Virginia Law Review

No abstract provided.

Determining The Deception Of Sexual Orientation Change Efforts, John M. Satira

William & Mary Law Review

No abstract provided.

The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman

Journal Articles

A natural consequence of employer restraints of trade that decrease wages is lower prices. Under antitrust law, courts evaluate most such restraints of trade under the rule of reason. This Note argues that the rule of reason’s focus on consumer welfare and the natural price decrease that follows from employer restraints of trade cause underenforcement of antitrust law against anticompetitive employer conduct. Such a result is anomalous, because the consumer welfare standard that permeates antitrust law should protect employees as much as customers that purchase goods.

To solve the under-enforcement problem, this Note proposes that courts analyzing a restraint of …

Consumer Preferences For Performance Defaults, Franklin G. Snyder, Ann M. Mirabito

Michigan Business & Entrepreneurial Law Review

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These “majoritarian” …

The Failed Superiority Experiment, Christine P. Bartholomew

Journal Articles

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

Consumer Preferences For Performances Defaults, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These "majoritarian" …

A Consumer Protection Perspective On Regulation For Healthier Eating, Barbara Von Tigerstrom

Dalhousie Law Journal

This article explores the potential for a consumer protection perspective to complement public health approaches in designing and justifying laws that aim to promote healthier eating, such as food labelling regulations or restrictions on marketing and advertising. Consumer protection and public health are distinct perspectives, but they share the goal of protecting health and both accept the need for regulation to protect important interests. Consumer protection objectives could be used to defend public health measures that are challenged as infringing rights or restricting trade. Insights from consumer law and scholarship could also contribute to discussions about when regulatory intervention to …

Johnson V. Wells Fargo Bank Nat’L Ass’N, 132 Nev. Adv. Op. 70 (September 29, 2016), Brittni Griffith

Nevada Supreme Court Summaries

The Court considered whether the Bank Secrecy Act prevents financial institutions from disclosing all investigative information in discovery to an adverse party. The Court held that the Bank Secrecy Act only precludes the disclosure of information relating to the existence of a suspicious activity report or the procedural nature of the suspicious activity report’s generation.

Loose Tendency Of “Pay To Be Paid” Rule Of P&I Clubs, Long Jia

World Maritime University Dissertations

No abstract provided.

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin

Nevada Law Journal

No abstract provided.

Antitrust And Intellectual Property: A Brief Introduction, Keith N. Hylton

Faculty Scholarship

Intellectual property law and antitrust have been described as conflicting bodies of law, and the reason is easy to see. Antitrust law aims to protect consumers from the consequences of monopolization. Intellectual property law seeks to enhance incentives to innovate by granting monopolies in ideas or expressions of ideas. The purpose of this chapter is to explore the purported conflict between antitrust and intellectual property. The chapter is largely descriptive, and focuses on current or developing litigation rather than historical controversies. Many of the modern examples of conflict can be attributed to problems of classification.

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

Sean Farhang

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

The Erosion Of Autonomy In Online Consumer Transactions, Eliza Mik

Eliza Mik

Online businesses influence consumer behaviour by means of a wide range of technologies that determine what information is displayed as well as how and when it is displayed. This creates an unprecedented power imbalance between the transacting parties, raising questions not only about the permissible levels of procedural exploitation in contract law, together with the adequacy of existing consumer protections but also about the impact of technology on consumer autonomy. There is, however, no single technology that threatens the latter. It is the combined, mutually-enforcing effect of multiple technologies that influence consumer choices at different stages in the transacting process, …

Product Intervention For Retail Structured Investment Products: A Comparison Of Rules In Singapore, Hong Kong And Taiwan, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This article compares new product intervention rules in Singapore, Hong Kong and Taiwan for complex structured investment products. Singapore’s approach is to improve firms’ internal safeguard, while Hong Kong’s approach is to require prior authorisation for new unlisted structured investment products by the securities regulator. Taiwan’s approach is to have a self regulatory body reviewing a product beforehand. This article argues that it is difficult to review the merit of a financial product in advance and thus it is difficult to have a true gatekeeper for toxic financial products. Before product intervention, we must first identify clear objectives. Regulators have …

Tort Reform: Blocking The Courthouse Door And Denying Access To Justice, Joanne Doroshow

Wilf Impact Center for Public Interest Law

No abstract provided.

"I'M Just Some Guy": Positing And Leveraging Legal Subjects In Consumer Contracts And The Global Market, Tal Kastner

Indiana Journal of Global Legal Studies

This article considers how legal frameworks shape the autonomous subject in a global economy. It makes salient the ways that different legal frameworks presume and enforce a particular subjectivity by positing certain behavioral expectations of various subjects. It does so through a focus on the underexplored rhetoric and implicit narratives of consumer contract law and transactional practice in the American and European regimes. By comparing the approach of the European Union to consumer contract, which posits the consumer as facing significant constraints on agency, to that in the United States, which elides functional limits of consumer knowledge and choice, this …

Toward An International Constitution Of Patient Rights, Alison Poklaski

Indiana Journal of Global Legal Studies

In the past decade, medical tourism-the travel of patients across borders to receive medical treatment-has undergone unprecedented growth, fueled by the globalization of health care and related industries. While medical tourism can benefit patients through increased access to treatment and cost-savings, medical travel also raises concerns about ensuring quality of care and legal redress in medical malpractice. Moreover, existing regulations fail to address these unprecedented issues. The multilateral adoption of an International Constitution of Patient Rights (ICPR) is necessary in order to more effectively preserve medical tourism's benefits and guard against its risks.

Expanding Access To Justice: Alternatives To Full Representation In New York State, Randal Jeffrey

Wilf Impact Center for Public Interest Law

No abstract provided.

Countercyclical Regulation And Its Challenges

Patricia A. McCoy

Litigating Medical Device Premarket Classification Decisions For Small Businesses: Have The Courts Given The Fda Too Much Deference? The Case For Taking The Focus Off Of Efficacy, Stephanie P. Fekete

Catholic University Law Review

The manufacturing of innovative medical devices is important for the continued success and growth of the U.S. health care system and economy. The medical device industry is almost exclusively comprised of small businesses. The U.S. Food and Drug Administration (FDA) regulates the medical device industry and employs a rigorous approval process to determine when products may enter the market. While the FDA’s goal is to authorize the sale of innovative devices that are safe for patient use, device manufacturers argue that the process to obtain FDA approval is unnecessarily expensive, burdensome, and has systemic problems. As a result of the …

The Insurability Of Claims For Restitution, Christopher French

Journal Articles

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …

The Insurability Of Claims For Restitution, Christopher French

Christopher C. French

The Insurability Of Claims For Restitution, Christopher French

Christopher C. French

Exporting Internet Law Through International Trade Agreements: Recalibrating U.S. Trade Policy In The Digital Age, Markham C. Erickson, Sarah K. Leggin

Catholic University Journal of Law and Technology

No abstract provided.

Wearable Devices As Admissible Evidence: Technology Is Killing Our Opportunity To Lie, Nicole Chauriye

Catholic University Journal of Law and Technology

No abstract provided.

Getting A Handle On Growler Laws, Adam Star

Seattle University Law Review

This Note will begin with a brief general history of growlers in the United States and the benefits they provide to consumers, retailers, and small craft brewers. Part II will provide an overview of national alcohol distribution regulation and how the present growler law exists within this larger framework. To complete the necessary background information, Part III will provide context to the competitive landscape by way of an examination of the craft beer industry’s explosive growth. The substantive portion of the Note will follow in Part IV, beginning with an outline of the various key types of growler restrictions such …

Micro-Housing In Seattle: A Case For Community Participation In Novel Land Use Decisions, Patrick Carter

Seattle University Law Review

Rather than relying solely on the formal interpretations of government regulators invited by the structure of local zoning ordinances, the City of Seattle should adopt a process that invites community-based mediation and problem-solving when a significant shift in housing density is contemplated in a developer’s proposal. Greater resident participation in development projects allows the City of Seattle to better support those residents in their reliance interests arising from zoning ordinances while simultaneously furthering the policies that underpin urban zoning. This is especially true when such development projects raise the possibility of substantial impacts on the character of a community or …