Consumer Protection Law Commons^™

Redefining Prey And Predator In Class Actions, Christine P. Bartholomew

Journal Articles

Aggregate litigation’s potential as a tool for the disempowered is not being realized. Class actions have come under serious attack in the last decade as critics have successfully worked to change traditional notions of victimhood. The leading narrative identifies big businesses as the vulnerable prey needing protection from large class claims and the greedy class actions attorneys who bring them. Relying on this narrative, courts and Congress have made class actions harder to pursue, from filing and class certification to settlement approval.

Vulnerability theory offers an alternative framework to rehabilitate class actions. From this perspective, the legal system currently disadvantages …

The Bomb Keeps The Lights On: The Use Of Final-Offer Arbitration In Failed Retransmission Consent Negotiations, Daniel J. Weiss

Cardozo Journal of Conflict Resolution

This Note will consider the imposition of binding arbitration in instances of failed retransmission consent negotiations between broadcasters and cable companies. It will first consider the FCC's authority to do so under the Communication Act of 1934 and the ADRA. Central to this discussion will be the debate and legislative history surrounding the 1992 Act and the way that mandatory binding arbitration has been used other contexts by the Commission. Further, this Note will explore the specific type of arbitration to be employed by the FCC in event the Commission finds they have the authority to mandate such a procedure. …

"Pay-For-Delay" Settlements Post-Actavis: Why Mediation Can Tackle The "Unreasonable" Antitrust Settlements, Sheena Ching

Cardozo Journal of Conflict Resolution

This Note discusses the benefits that mediation can have on the reverse payment settlement and antitrust debate, and how it can satisfy the "rule of reason" requirement post-Actavis. Accordingly, Section II discusses the legislative history and policy of the Hatch-Waxman Act. It elaborates on the pioneer drug development process and how the combination of legislation and the inherent nature of drug development resulted in "pay-for-delay" settlements. Section III discusses majority and dissenting opinions in the landmark Supreme Court case FTC v. Actavis as well as the circuit split decisions that led up to the Court's ultimate ruling and …

High Technology, Consumer Privacy, And U.S. National Security, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Documents released over the past year detailing the National Security Agency’s (“NSA”) telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. corporations, the economy, and U.S. national security.

The first Snowden documents, printed on June 5, 2013, revealed that the government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had …

Internet Protocol Television And The Challenge Of "Mission Critical" Bits, Rob Frieden

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introduction: Data Breaches: Moving Forward, Practically, Cindy E. Zuniga

Cardozo Law Review de•novo

Cardozo Law Review de•novo’s online symposium: Data Breaches: Moving Forward, Practically focuses on proactive steps that policymakers, regulators, the judiciary, and businesses can take to address the array of issues arising from data breaches. The online symposium features articles from Lauren Henry, Adam Lamparello, Peter Yu, and David Thaw.

A Legislative Pendency Proposal To Address The Consumer Harm Caused By The Broken Retransmission System, Marla S. Merchut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

Publications

A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

Who Regulates The Robots, Margot Kaminski

Publications

No abstract provided.

Information Privacy Law Scholars' Brief In Spokeo, Inc. V. Robins, Neil M. Richards, Julie E. Cohen, Chris Jay Hoofnagle, William Mcgeveran, Paul Ohm, Joel R. Reidenberg, David Thaw, Lauren E. Willis

Scholarship@WashULaw

This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and …

Putting Disclosure To The Test: Toward Better Evidence-Based Policy, Talia B. Gillis

Faculty Scholarship

Financial disclosures no longer enjoy the immunity from criticism they once had. While disclosures remain the hallmark of numerous areas of regulation, there is increasing skepticism as to whether disclosures are understood by consumers and do in fact improve consumer welfare. Debates on the virtues of disclosures overlook the process by which regulators continue to mandate disclosures. This article fills this gap by analyzing the testing of proposed disclosures, which is an increasingly popular way for regulators to establish the benefits of disclosure. If the testing methodology is misguided then the premise on which disclosures are adopted is flawed, leaving …

Heuristics, Biases, And Consumer Litigation Funding At The Bargaining Table, Jean Xiao

Vanderbilt Law Review

Imagine three plaintiffs. The first incurred serious back injuries as a passenger in an automobile collision.' The second suffered permanent head injuries as a day laborer in a construction accident. The third experienced a debilitating asthma attack, caused by exposure to floor-cleaning chemicals at her workplace. You now have the chance to advance money to the plaintiff that you believe has the lawsuit with the highest expected value. If the selected plaintiff settles or wins at trial, then you receive the money you gave the plaintiff plus interest that approaches 200% a year. Here is the catch: if the plaintiff …

4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci

Touro Law Review

No abstract provided.

Comment On The Cfpb's Policy On No-Action Letters, Jeffrey Lederman, K. Sabeel Rahman, David J. Reiss

Cornell Law Faculty Working Papers

A No-Action Letter reduces uncertainty for Businesses that are attempting to bring legitimate and innovative Products to market. Businesses will rely on these letters and shape their behavior based on them.

At the same time, issuing a No-Action Letter risks encouraging the development of abusive Products if granted with insufficient analysis. Perhaps as importantly, but not as obviously, failing to issue a No-Action Letter at all can also damage consumers by failing to incentivize the development of innovative Products that help consumers. The goal of the Policy should be to balance the promotion of innovation with consumer protection.

Meaningful Involvement In Collections: Should Ethics Or The Fdcpa Govern?, Jeffrey S. Peters

Pace Law Review

This Note will explain and analyze the Fair Debt Collection Practices Act (FDCPA) and its case law. It will also discuss the interplay between the FDCPA case law and its ethical overtones. To understand the basis of this issue, Part II of this Note will begin by briefly developing the history and background of the FDCPA and discuss specific sections of the law designed to protect debtors from abusive debt collection practices. Notably, these sections relate to the prevention of improper practices for misleading debtors, and are the focus of the lawsuits that this Note will discuss. Accordingly, Part III …

Potential Competitive Effects Of Vertical Mergers: A How-To Guide For Practitioners, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

The purpose of this short article is to aid practitioners in analyzing the competitive effects of vertical and complementary product mergers. It is also intended to assist the agencies if and when they undertake revision of the 1984 U.S. Vertical Merger Guidelines. Those Guidelines are out of date and do not reflect current enforcement or economic thinking about the potential competitive effects of vertical mergers. Nor do they provide the tools needed to carry out a modern competitive effects analysis. This article is intended to partially fill the gap by summarizing the various potential competitive harms and benefits that can …

The Volcker Rule, Banking Entities, And Covered Funds Activities, Jeffrey Koh, Kyle Gaughan

Michigan Business & Entrepreneurial Law Review

With the passage of the 2010 Dodd-Frank Act, Congress instituted a host of new laws attempting to protect consumers from the types of risky trading that led to the 2008 economic crisis. However, many of the new rules and regulations, including the Volcker Rule, are yet to fully take effect. Among other restrictions, the Volcker Rule attempts to curtail risky trading by limiting banking entity investments in private equity and venture capital funds. As the Volcker Rule nears its implementation deadline, banking entities are concerned that they will face substantial losses in having to comply with the Volcker Rule by …

Coming Up Short: The United States' Second-Best Strategies For Corralling Purely Speculative Derivatives, Timothy E. Lynch

Faculty Works

Purely speculative derivatives (PSDs) are derivatives in which neither counterparty is engaged in hedging. Unless used for entertainment purposes, PSDs are irrational, less-than-zero-sum transactions. Entities that engage in PSDs jeopardize their stakeholders and increase systemic risk. PSDs can also increase moral hazard, be used for regulatory arbitrage, and redirect resources away from efficient allocation of market capital. PSDs should be unenforceable, void for public policy reasons, except where expressly permitted to provide gambling entertainment, enhance price discovery, or increase liquidity for hedgers. In the U.S., however, PSDs are often legal and enforceable, even after the financial crisis of 2008 that …

Broker-Dealers And Investment Advisers: A Behaviorial-Economics Analysis Of Competing Suggestions For Reform, Polina Demina

Michigan Law Review

For the average investor trying to save for retirement or a child’s college fund, the world of investing has become increasingly complex. These retail investors must turn more frequently to financial intermediaries, such as broker-dealers and investment advisers, to get sound investment advice. Such intermediaries perform different duties for their clients, however. The investment adviser owes his client a fiduciary duty of care and therefore must provide financial advice that is in the client’s best interests, while the broker-dealer must merely provide advice that is suitable to the client’s interests—a lower standard than the fiduciary duty of care. And yet …

Who's Swallowing The "Bitter Pill"?: Reforming Write-Offs In The State Of Washington, Lauren M. Martin

Seattle University Law Review

Washington’s application of the collateral source rule permits recovery for medical expenses that were never incurred and have no relationship to their market value. This application is set forth in Hayes v. Wieber Enterprises, Inc., where the plaintiff sued a restaurant for injuries she sustained from falling down the restaurant’s basement stairs. Why should the collateral source rule compel the defendant in Hayes to pay the original amount billed, $5,800, when the physician accepted $3,300 as payment in full? Is not $3,300 the reasonable or market value of the medical services provided to the plaintiff? This Comment discusses whether Washington …

Unfair And Inactionable: The Case For A Private Cause Of Action For Business And Investment Activity Under Pennsylvania's Unfair Trade Practices And Consumer Protection Law, Mark T. Wilhelm

Villanova Law Review (1956 - )

No abstract provided.

The Cost Of Protectionism: Should The Law Favor Producers Or Consumers?, Robert W. Mcgee

Georgia Journal of International & Comparative Law

No abstract provided.

Summary Of State, Dept. Of Bus. And Industry V. Check City P’Ship, 130 Nev. Adv. Op. 90, Daven Cameron

Nevada Supreme Court Summaries

The Court interpreted NRS 605A.425 and concluded that the statute unambiguously provides that a borrower’s deferred deposit loan is to be capped at 25 percent of the borrower’s expected gross monthly income. This cap includes both principal and any interest or fees charged.

Improving Agencies’ Preemption Expertise With Chevmore Codification, Kent H. Barnett

Scholarly Works

After nearly thirty years, the judicially crafted Chevron and Skidmore judicial-review doctrines have found new life as exotic, yet familiar, legislative tools. When Chevron deference applies, courts employ two steps: they consider whether the statutory provision at issue is ambiguous, and, if so, they defer to an administering agency’s reasonable interpretation. Skidmore deference, in contrast, is a less deferential regime in which courts assume interpretative primacy over statutory ambiguities but defer to agency action based on four factors — the agency’s thoroughness, reasoning, consistency, and overall persuasiveness. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directed courts …

A Fresh Look At State Asset Protection Trust Statutes, Ronald J. Mann

Vanderbilt Law Review

This Article examines the rise of state asset protection trust ('APT) statutes. It juxtaposes two apparently contrary trends: an increase in formal legal responses suggesting that the trusts created under these statutes are likely to have at best limited enforceability and an increase in the adoption and use of these statutes. After summarizing the legal background out of which these two trends arise, I analyze the characteristics of the states that have chosen to adopt them to date and conclude that the size of a state is less predictive of adoption than broader social and economic characteristics of the populace. …

A Manufacturer's Duty To Warn In A Modern Day Tower Of Babel, S. Mark Mitchell

Georgia Journal of International & Comparative Law

No abstract provided.

The Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley

Catholic University Law Review

Informal regulations defining nature, natural, and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of …

Cgmp Violations Should Not Be Used As A Basis For Fca Actions Absent Fraud, Kyle Faget

Seattle University Law Review

Since Congress amended the False Claims Act (FCA) in 1986, the statute has evolved into a seemingly boundless weapon for enforcing other statutes and regulations applicable to every industry that accepts any form of government funding. Use of the FCA by the Department of Justice (DOJ) and by private citizens bringing actions on behalf of the U.S. government to enforce other statutes and regulations is particularly evident in the field of health care. The FCA has been utilized in actions where the allegations include off-label promotion of drugs, kickbacks, and violations of current good manufacturing practices (cGMPs) by linking the …

A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi

Seattle University Law Review

The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the …