Consumer Protection Law Commons^™

Take The Airwaves And Run: How A Loophole In The Copyright Laws Is Helping Competitors Gain An Advantage In The Name Of Public Interest, Mario Romero

FIU Law Review

No abstract provided.

Circuit Courts Split: Victim Of A Data Breach? Can You “Stand” And Sue In Federal Court?, Darlyn De La Rosa

FIU Law Review

No abstract provided.

Fixing What’S Broken: The Outdated Guidelines Of The Sca And Its Application To Modern Information Platforms, Lutfi Barakat

Touro Law Review

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to afford privacy protections to electronic communications and it has not changed since its inception. The ECPA has proven problematic as technology has advanced, but Congress has not modified the law to reflect this change. Courts have struggled to apply the law to both old technologies that have been updated and new technologies that have emerged. The ECPA needs to be revised to reflect the new advances in technology or be repealed and replaced with a new approach. This will ensure that consumer data will be safeguarded while in the …

The Price Of Prime—Consumer Privacy In The Age Of Amazon, Ariana Aboulafia, Greg Fritzius, Tessa Mears, Macy Nix

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Six Scandals: Why We Need Consumer Protection Laws Instead Of Just Markets, Jeff Sovern

Faculty Publications

Markets are powerful mechanisms for serving consumers. Some critics of regulation have suggested that markets also provide consumer protection. For example, Nobel Prize-winning economist Milton Friedman said “Consumers don’t have to be hemmed in by rules and regulations. They’re protected by the market itself.” This Article’s first goal is to test the claim that the market provides consumer protection by examining several recent incidents in which companies mistreated consumers and then explores whether consumers stopped patronizing the companies, which would deter misconduct. The issue also has normative implications because if markets consistently protected consumers, society would need fewer regulations and …

An Overview Of Brokercheck And The Central Registration Depository, Christine Lazaro, Albert Copeland

Faculty Publications

(Excerpt)

Securities brokers are governed by a unique regulatory framework, subject to both extensive state and federal statutory and regulatory regimes. The vast bulk of federal regulation and oversight of brokers and brokerage firms has been delegated to the Financial Industry Regulatory Authority (“FINRA”), a self-regulatory organization with the power to govern its members’ conduct. FINRA operates under the oversight of the Securities and Exchange Commission (the “SEC”), a federal agency established by the federal securities laws.

FINRA was created on July 26, 2007 through the consolidation of the National Association of Securities Dealers (“NASD”) and the member regulation, enforcement …

A Rising Tide Lifts All Consumers: Penumbras Of Foreign Data Protection Laws In The United States, Michael Goodyear

Articles & Chapters

With the growth of collecting, processing, and transferring personal information to third parties, consumers’ data is increasingly exposed to a myriad of risks. Perhaps chief among these are the data protection practices of data collectors themselves. Yet despite the risk to consumers, U.S. data protection law has remained fragmented, focused on individual industries at the federal law and only made comprehensive, occasionally, at the state level. This lack of a comprehensive data protection law in the United States is a significant detriment to the security of U.S. consumers. International law also offers no such path that could comprehensively protect U.S. …

Providing Relief After A Natural Disaster Through Credit Reports, Katherine Wecker

Seattle University Law Review

The COVID-19 pandemic forced the world to re-think systems that have been in place for decades, quickly adapting—at least temporarily— to the new normal. Among those systems was the credit reporting system. In response to the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act; an act that, among other things, amends the Fair Credit Reporting Act in regard to how credit reporting agencies should respond to delinquencies resulting from the pandemic.

This Note argues that to adapt to the increasing occurrence of natural disasters, the U.S. government must implement a system in which a consumer can …

Opening Remarks, Anna Antonova, Michael Burstein

Cardozo Arts & Entertainment Law Journal

The article celebrates the 75th anniversary of the Lanham Act, reflecting on its enduring influence on trademark law while addressing its evolution in response to new legal and technological challenges. It highlights the symposium's exploration of the Act's history, its adaptation to modern issues such as internet-related disputes and First Amendment concerns, and its continued relevance in shaping intellectual property law. The piece also underscores the role of the Cardozo Arts & Entertainment Law Journal as a leading platform for scholarly discourse in intellectual property and related fields.

Is It Really A #Ad? An Increase In Rising Influencers Posting Fake Sponsored Content, Amanda Guzman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Cardozo Arts & Entertainment Law Journal

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one's trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on increasing …

Putting Money Back Into Consumers' Pockets: An Emperical Study Of The Cfpb's Civil Penalty Fund, Craig Cowie

Faculty Law Review Articles

One of the Consumer Financial Protection Bureau’s (“CFPB”) primary goals is to protect consumers. Protecting consumers necessarily means ensuring that companies and individuals stop violating the consumer laws. But stopping illegal conduct in the future does not help the consumers who have already been harmed. In many of the cases prosecuted by the CFPB, the defendants illegally took money out of the pockets of consumers: they charged fees that were expressly illegal; they charged consumers more than the consumers owed or more than the defendants had disclosed; and they deceived consumers about what the consumers were buying or how much …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Looking Beyond The Profit And Into The Light: Consumer Financial Protection And The Common Good, Veryl Victoria Miles

Scholarly Articles

The intention of this Article is to review the various statements of Catholic Social Teaching that are fundamental in describing economic justice and that are most pertinent to any consideration of consumer financial protection as essential to the common good. This review will begin with Pope Leo XIII's 1891 encyclical Rerum Novarum and other encyclicals that followed Rerum Novarum as a continuum of Church teaching regarding social and economic justice; the pastoral letter from the United States Conference of Catholic Bishops entitled Economic Justice for All (1986); and the Pontifical Council of Justice and Peace's handbook on the Vocation of …

Cybersecurity Leaders: Knowledge Driving Human Capital Development, Sharon L. Burton

Publications

Cybersecurity leaders must be able to use critical reading and thinking skills, exercise judgment when policies are not distinct and precise, and have the knowledge, skills, and abilities to tailor technical and planning data to diverse customers’ levels of understanding. Ninety-three percent of cybersecurity leaders do not report directly to the chief operating officer. While status differences influence interactions amid groups, attackers are smarter. With the aim of protecting organizations and reducing risk, knowledge about security must increase. Understanding voids are costly and increased breach chances are imminent. Burning questions exist. What are needed technological learnings for cybersecurity leaders to …

Understanding University Fee Litigation: A Few Lessons About The Perils Of Imprudence For Higher Ed Plan Sponsors, Maria O'Brien, Calvin Utter

Faculty Scholarship

Beginning in August 2016, a series of class action lawsuits were filed on behalf of participants and beneficiaries of 403(b) employee retirement plans sponsored by major American colleges and universities. These plans are regulated by the 1974 Employee Retirement Income Security Act (“ERISA”), which sets minimum standards to protect the participants and beneficiaries of voluntarily established retirement and health plans. The allegations in the several lawsuits have centered primarily around breaches of fiduciary duties by those charged with administering the plan.

These cases are all class action lawsuits brought on behalf of the participants and beneficiaries of the plans in …

A General Defense Of Information Fiduciaries, Andrew F. Tuch

Scholarship@WashULaw

Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties of care, confidentiality, and loyalty on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information fiduciary concept flies in the face of fundamental corporate law principles that require firms to prioritize shareholder interests over those of users. Second, it is said that the overwhelming self-interest of digital companies makes fiduciary loyalty impossible as a …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Equality And Access To Credit: A Social Contract Framework, John Linarelli

Scholarly Works

The problems governments face in regulating consumer finance fall into two categories: normative and cognitive. The normative problems have to do with the way that some governments, particularly those adhering to an American model of household finance, have financed social mobility and intergenerational welfare through debt, a tenuous and socially risky policy choice. Credit has a substantial social aspect to it in the United States, where the federal government has in some way engaged in subsidizing about 1/3 of consumer credit, particularly in the residential mortgage market, feeding into a substantial capital markets dimension through government-guaranteed securitization. Most Americans think …

A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.

Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, …

Error-Resilient Consumer Contracts, Danielle D'Onfro

Scholarship@WashULaw

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into kafkaesqe customer-service queues and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms’ innovations in their contracts, shifting regulations, and unpredictable consumer behavior. Given the complexity of servicing, the technology will inevitably produce mistakes even when firms invest in technology. When firms skimp …

Sneak In Contracts, Shmuel I. Becher, Uri Benoliel

Georgia Law Review

Consumer contracts are a pervasive legal tool that govern
many of our daily activities. Yet, consumer contracts are
routinely modified by businesses after customers accept them.
Common modifications include, for example, a change in fees,
alteration of a dispute resolution clause, or revision to the firm’s
privacy policy. In fact, unilateral modifications can affect
virtually every aspect of a contract.
While the literature widely discusses the problem of ex ante
consent to consumer contracts, it does not adequately address
the problem of ex post consent to unilateral modifications. But
the practice of unilateral changes to consumer form contracts
comes with …

Inclusive And Implementable Legal Rules For E-Commerce: A Comparative Study Of Indonesia And Vietnam, Ngoc Nguyen Thi Bich, Phan Quoc Nguyen

Indonesia Law Review

Both Vietnam and Indonesia have large populations that promise major markets for e-commerce. The two nations record high internet coverage and large numbers of social media users. Recently, the countries have been trying to support e-commerce with new legal rules. In November 2019, Indonesia’s government introduced Government Regulation No. 80 of 2019 on Trading through Electronic Systems (GR 80, 2019). GR 80 requires e-commerce businesses to obtain business licenses, report taxes, and preserve consumer protections and rights. Similarly, Vietnam has issued a number of resolutions and guidelines since its Decree on E-Commerce in 2013 (Decree No. 52/2013/NĐ-CP). While these legal …

Easing The Burdens Of A Patchwork Approach To Data Privacy Regulation In Favor Of A Singular Comprehensive International Solution—The International Data Privacy Agreement, Scott Resnick

Brooklyn Journal of International Law

Data privacy has become one of the premier hot-button issues in today’s increasingly digital human experience. Legislatures around the globe have attempted to act swiftly in an effort to safeguard the highly coveted personal information of their citizens and combat misuse at the hands of international businesses operating with an online presence. Since the European Union’s enactment of the General Data Protection Regulation (GDPR) in 2018, countries around the globe have been grappling with how best to replicate the EU’s leading data privacy regulation while providing the same or greater level of transparency into data collection practices. While a mere …

Warranty, Product Liability And Transaction Structure: The Problem Of Amazon, Edward J. Janger, Aaron D. Twerski

Brooklyn Journal of Corporate, Financial & Commercial Law

Amazon, and other internet sales platforms, have revolutionized the manner in which goods are purchased and sold. The obligations undertaken by Amazon in those sales are unclear, both as a matter of transparency, and as a matter of legal doctrine. Is Amazon a store? Is it a shipper? Is it a telephone? In various transactions Amazon can play some or all of these roles. Choosing the right metaphor has consequences. Amazon knows this and has done everything it can to deploy the metaphors selectively to its best legal and practical advantage, even when the chosen characterizations are inapt or even …

Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger

Brooklyn Journal of Corporate, Financial & Commercial Law

Consumer Reporting Agencies (CRAs) are the gatekeepers to the American economy. As the chief informants for prospective lenders, landlords, and employers, they exert immense power over the day-to-day decisions of who gets what. Despite these high stakes, the CRAs run consumer reporting as an automated electronic process that causes a lot of reporting errors, disqualifying consumers from essential goods, services, and opportunities. This is painfully true in the context of identity theft, where perverse incentives pollute the integrity of consumer reporting, piling undue harm onto identity theft victims. The law provides a remedy for this problem, but circuit courts are …

The Modern Pay For Play Model: Laws That Protect Student-Athletes' Fundamental Right To Commercialze Their Names, Images, And Likeness, Paul A. Schwabe Jr.

Brooklyn Journal of Corporate, Financial & Commercial Law

In O’Bannon v. NCAA, the United States District Court for the Northern District of California entered a permanent injunction against the National Collegiate Athletic Association enjoining the collegiate sports governing body from enforcing limits on student-athlete compensation derived from the use of their name, images, and likenesses rights. The court concluded that NCAA rules unreasonably restrained trade in violation of the Sherman Anti-Trust Act, however, neither the court nor the NCAA laid out a framework for lawfully implementing these new economic rights to student-athletes. Since that ruling, only one state’s legislature, California, has attempted to pass legislation to prevent the …

Cyber-Insecurity: The Reasonableness Standard In Internet Of Things Device Regulation And Why Technical Standards Are Better Equipped To Combat Cybercrime, Chynna Rose Foucek

Brooklyn Journal of Corporate, Financial & Commercial Law

While the Internet of Things (IoT) has created an interconnected world via phones, laptops, and even household devices, it is not infallible. As cyber-attacks increase in frequency, affecting companies of all sizes and industries, IoT device manufacturers have become particularly vulnerable, due in large part to the fact that many companies fail to implement adequate cybersecurity protocols. Mass data breaches occur often. However, these companies are not held accountable due to the use of the reasonableness standard in existing cybersecurity legislation, which is flexible and malleable. In 2019, the California Legislature enacted a cybersecurity law specific to IoT device manufacturers. …

Consumers' Declining Power In The Fintech Auto Loan Market, Pamela Foohey

Brooklyn Journal of Corporate, Financial & Commercial Law

Automobiles have become part of America’s infrastructure. For most people, having access to a car is crucial to their livelihoods and they will take on significant amounts of debt to purchase vehicles. Auto debt is unlike any other consumer debt, both in its structure, which allows creditors to easily seize collateral, and in its lack of regulation. The unique and lucrative nature of auto debt has not gone unnoticed by lenders or by companies leveraging fintech to offer people new ways to purchase cars and car loans. This Article assesses the evolving marketplace for auto sales, leasing, and loans to …

Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 …