Consumer Protection Law Commons^™

Digital Platform Safety And The Problem Of Variable Costs, Margaret O'Grady, Fiona Scott Morton

Richmond Journal of Law & Technology

Because the United States has no digital regulator to set minimum quality or safety standards for digital products, dominant platforms have both the ability and permission to harm consumers, a trend which will accelerate. Digital platforms with market power have no incentive to shoulder the expense of providing safe, high-quality services, because the marginal costs of providing increased quality and safety—often human beings engaged in content moderation or fact-checking—are so high. If providing better quality would increase profits, digital platforms would have done so already. Instead, digital platforms act like automobile manufacturers before regulators required seatbelts: they will insist that …

Brief Of Amici Curiae In Support Of Reversal On Question One, James Gibson

Law Faculty Publications

The Fourth Circuit’s decision to impose contributory liability Cox Communications, Inc. rests on a fundamental misapprehension of Cox’s role as a “conduit” Internet Service Provider. Conduits merely transmit data between endpoints; unlike content-hosting platforms like YouTube or search engines like Google, conduits do not store, curate, or control user content. They merely transmit data on behalf of third parties, and they have no ability to monitor the data they transmit. By treating Cox’s passive provision of Internet access and data transmission as a knowing, material contribution to infringement, the Fourth Circuit collapsed the crucial legal distinction between conduits and hosts, …

Walled Gardens & Forbidden Apples: Software Access Amid Antimonopoly Resurgence, Jake A. Evinger

Richmond Journal of Law & Technology

As consumer technology markets mature, one must question why the ways we use our devices are so restrictive. Some landmark legal cases, such as Epic Games, Inc. v. Apple, Inc., have sought to address that question. Additionally, regulators have recognized the need for better software distribution. The European Union recently forced Apple to open its iPhone to third-party application stores via the Digital Markets Act. The Department of Justice attacked the closed nature of the iPhone. This shift in sentiments, however, is not restricted to smartphones and will become more critical as emerging technologies vie for consumer attention. Almost every …

Regulating Uncertainty: Loot Boxes In The Gaming Metaverse, Anthony Chen

Richmond Journal of Law & Technology

Loot boxes are an increasingly widespread monetization model in video games that utilize random chance when dispensing items. Their implementation and use may result in significant harm to consumers. At the same time, loot boxes confer many benefits to game companies and gamers that should factor into their regulation. These harms and benefits may not be apparent at first glance, so it is necessary to consider loot boxes contextually within their game and the broader community to have a proper holistic analysis of their effects. Their unique and varying design makes them a challenge to place within a single established …

With A Wink And A Nod: How Politicians, Regulators, And Corrupt Coal Companies Exploited Appalachia, Patrick C. Mcginley

University of Richmond Law Review

Environmental regulators treated America’s leading coal companies like Wall Street’s mismanaged banks leading to the “Great Recession”—big coal companies that produced millions of tons of coal were simply too big to fail. With a wink and a nod, federal and state regulators ignored a core provision of federal law that was intended to prevent coal companies from continuing their past practices of plundering Appalachia’s mineral wealth while ravaging her environment.

This Article examines how the coal industry successfully evaded compliance with that law. The consequences of this evasion include mass bankruptcies, thousands of acres of mined land laying unclaimed, …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

University of Richmond Law Review

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Opioid Litigation Panel, Rick Mountcastle, Paul Farrell, Eric Eyre, Patrick C. Mcginley

University of Richmond Law Review

On February 17, 2023, the University of Richmond Law Review hosted a symposium entitled Overlooked America: Addressing Legal Issues in Rural America. A portion of the event focused on the ongoing opioid epidemic in the United States, including the causes and effects of certain actions taken by players in the pharmaceutical industry. The Opioid Litigation Panel, transcribed below, brought together four of the most prominent leaders in the fight for justice in the opioid epidemic: Mr. Rick Mountcastle, Mr. Paul Farrell, Mr. Eric Eyre, and Professor Patrick McGinley. The University of Richmond Law Review was so honored to have …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

Law Student Publications

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Make Some Sense Of Scent Trademarks: The United States Needs A Graphical Representation Requirement, Gabrielle E. Brill

Law Student Publications

When it comes to consumer loyalty, some businesses have decided to go beyond attracting the eyes. Why not keep customers via their nostrils? Accordingly, the scent marketing industry is booming. Jennifer Dublino, Vice President of Development at ScentWorld Events, remarks that “smell is one of the most unique of human senses. Scent enters the limbic system [of the brain] and bypasses all of the cognitive and logical thought processes and goes directly to the emotional and memory areas of the brain.” Companies like ScentAir have been created specifically to help stores design fragrances that best fit their image and objectives …

Swimming Up The Stream Of Commerce: How Plaintiffs In Products Liability Litigation Are Disadvantaged By Current Personal Jurisdiction Doctrine, Lily S. Smith

Law Student Publications

"“The Court must periodically intervene in the perpetual battle between plaintiffs and corporations over personal jurisdiction, especially when one side has secured a competitive advantage. The time for such intervention has likely arrived.”

Emma is a resident of Billings, Montana, and she ordered the “Whitten 10-in-1, 8 Blade Onion Mincer, Chopper, Slicer, Cutter, Dicer, with Container” on Amazon. The product is a multifunctional kitchen tool that can chop, slice, cut, and dice your vegetable of choice. By pushing down on the container’s lid, the vegetable is forced through blades, resulting in perfectly cut vegetables. Via Amazon Prime, Emma received the …

Pills, Public Nuisance, And Parens Patriae: Questioning The Propriety Of The Posture Of The Opioid Litigation, Michelle L. Richards

University of Richmond Law Review

The opioid crisis has been in litigation for almost twenty years on various fronts, including criminal prosecutions of pharmaceutical executives, civil lawsuits by individuals against drug manufacturers and physicians, class actions by those affected by opioid abuse, and criminal actions filed by the Drug Enforcement Administration (“DEA”). In the early 2000s, opioid litigation began with individual plaintiffs filing suit against manufacturers and others for damages allegedly related to opioid use. The litigation has since expanded significantly in terms of the type of plaintiffs and defendants, the nature of the claims being asserted, and the damages attributable to the crisis.

The …

The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof

Law Faculty Publications

Thanks to the proliferation of internet-connected devices that constitute the “Internet of Things” (“IoT”), companies can now remotely and automatically alter or deactivate household items. In addition to empowering industry at the expense of individuals, this remote interference can cause property damage and bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.

Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit civil remedies, IoT devices’ bundled object/service nature thwarts implied warranty claims, and contractual notice of remote interference …

The Parity Principle, Luke P. Norris

Law Faculty Publications

The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues …

Mandated Ethical Hacking—A Repackaged Solution, Corinne Moini

Law Student Publications

Hacking to prove a point or to expose technological vulnerabilities has been around since the 1960s, but it has been labeled and packaged differently as “white hacking” or “ethical hacking.” This article suggests that smart toy manufacturers, such as Mattel and VTech, should be subject to required vulnerability testing which utilizes ethical hacking under the Consumer Product Safety Improvement Act (“CPSIA”). More specifically, this article proposes to amend the Toy Safety Standard, ASTMF- 963-11, to include smart toys connected to the internet. The CPSIA and Consumer Product Safety Commission (“CPSC”) impose safety testing on all toys intended for use by …

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,” …

Bankruptcy Law, Hon. Kevin R. Huennekens, Nathan Kramer

University of Richmond Law Review

This article will cover both consumer and business bankruptcy issues, and is limited primarily to decisions by courts within the Fourth Circuit since mid-2012. Despite these general parameters, because bankruptcy is federal law, there are some cases outside the Fourth Circuit that are included due to their influential and instructive nature. The intention of this update is to provide bankruptcy practitioners in Virginia with concise, yet compre-hensive, case summaries that will prove to be a valuable researchtool.

An Expected Harm Approached To Compensating Consumers For Unauthorized Information Disclosures, Rachel Yoo

Richmond Journal of Law & Technology

On May 22, 2007, the Executive Office of the President of the United States issued a memorandum concerned with safeguarding personal information, which first defined the term “personally identifiable information” as follows:

[I]nformation which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.

Will The Federal Circuit’S Eli Lilly V. Teva Decision Lead To Efforts To Abuse The Modification Provision Of The Hatch-Waxman Act?, Claire K. Comfort

Richmond Journal of Law & Technology

The Hatch-Waxman Act provides a mandatory thirty-month stay on the Food and Drug Administration’s (FDA) approval of an Abbreviated New Drug Application (ANDA) when a patent infringement suit is filed. The Act includes a provision for a district court to shorten or extend the Act’s thirty-month stay on FDA approval if “either party to the action failed to reasonably cooperate in expediting the action”

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter Nash Swisher

University of Richmond Law Review

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products.Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.

Fda Regulatory Compliance Reconsidered, Carl W. Tobias

Law Faculty Publications

Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …

The Modern Age Of Informed Consent, Barbara L. Atwell

University of Richmond Law Review

This essay explores the informed consent ramifications of the confluence of these two phenomena: developments in medical technology and emerging adulthood. In particular, it explores consent to medical treatments by emerging adults that are both elective and irreversible. In such cases, policy considerations dictate that additional safeguards be implemented to ensure that the consent given is truly informed. Part II of this essay provides an overview of the informed consent doctrine and outlines a variety of advancements in elective medical technology. Part III explores the concept of emerging adulthood. Part IV suggests that when emerging adults seek medical treatments that …

Product Liability Law, Gary J. Spahn, Brent M. Timberlake

University of Richmond Law Review

While Virginia is not typically seen as "progressive" in the field of product liability law, the Commonwealth is nonetheless a forum in which these product liability battles take place. This article summarizes selected decisions of the United States Court of Appeals for the Fourth Circuit, federal district courts in Virginia, and courts of the Commonwealth issued between July 1, 2004 and May 15, 2005. This article also includes a discussion of the most relevant legislative changes made by the Virginia General Assembly over the same time period. While a complete analysis of every decision and statute affecting product liability is …

Drug Regulations And The Constitution After Western States, Margaret Gilhooley

University of Richmond Law Review

No abstract provided.

The Search For More Fairness In The Fair Debt Collection Practices Act, Elwin Griffith

University of Richmond Law Review

No abstract provided.

Consumer Privacy, James M. Mccauley

Richmond Journal of Law & Technology

Pretty scary. This whole business of technology and privacy. I don't know about you but it makes me think about that John Grimes song where he wanted to blow up the TV, throw away the paper, and move to the country. I think that there are probably some things that we can do and that we cannot do. One of the things that comes to mind in listening to my colleagues talk about the shutdown of the dotcoms, last year Congress overhauled the 65 year prohibition against insurance companies not being permitted to get involved in financial services and banking. …

Consumer Privacy On The Internet, Andrew Shen

Richmond Journal of Law & Technology

If we do not bear the loss of this privacy then the prices would be passed along to consumers anyway. We're between a rock and a hard place there's nowhere that we can go. But I think we can be more optimistic than that and I think we can preserve privacy and I think we can further growth of electronic commerce. So let me begin with the consumer perspective. I would like to start with a trend that Mike has already done a good job of starting us out on, and that is the current popularity of personalization and customization. …

Customer Choice: What Will It Take To Do It Right?, Theresa Flaim

Richmond Journal of Law & Technology

What are the most important building blocks needed to effectively deregulate energy markets? What are the forces driving deregulation? What problems and pitfalls have occurred and how can they be avoided? Will customer choice "take off?"

Electric Choice In Pennsylvania, Brian D. Crowe

Richmond Journal of Law & Technology

Implementing Electric Choice

Brooke Group Ltd. V. Brown & Williamson Tobacco Corp.: A Victory For Consumer Welfare Under The Robinson-Patman Act, Keith Allen May

University of Richmond Law Review

The preservation of competition among business entities is vital to the success of any economy. Recognizing the importance of competition, the United States Congress has passed antitrust laws that seek to enhance productivity and protect consumers. Although the antitrust laws, like all statutes, are vulnerable to a variety of different interpretations, "[t]he language of the antitrust statutes, their legislative histories, the major structural features of the antitrust law, and considerations of the scope, nature, consistency, and ease of administration of the law all indicate that the law should be guided solely by the criterion of consumer welfare." The antitrust laws …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.