Consumer Protection Law Commons^™

Another Bite At The Apple For Trade Secret Protection: Why Stronger Federal Laws Are Needed To Protect A Corporation's Most Valuable Property, Alissa Cardillo

Brooklyn Journal of Corporate, Financial & Commercial Law

Trade secrets are one of a corporation’s most valuable assets. However, they lack adequate protection under federal law, leaving them vulnerable to theft and misappropriation. As technology advances, it becomes easier and less time consuming for individuals and entities to access and steal trade secrets to a corporation’s detriment. Most often these thefts involve stealing trade secrets in an intangible form. Current legislation fails to adequately protect intangible trade secrets, leaving them vulnerable to theft. An amendment to the National Stolen Property Act that encompasses intangible trade secrets would close a loophole that currently exists relating to intangible assets, allowing …

Switch Hitters: How League Involvement In Daily Fantasy Sports Could End The Prohibition Of Sports Gambling, Jordan Meddy

Brooklyn Journal of Corporate, Financial & Commercial Law

Whether in the form of lotto tickets or casino table games, gambling is legally permitted in some way in virtually every U.S. state. Yet, in all but a handful of jurisdictions, federal law prohibits wagering on sporting events or professional athletes in any form. Several economically challenged states, particularly New Jersey, have been trying to authorize sports gambling within their borders as a way to raise tax revenues and support their local gambling industries. While these attempts have thus far been unsuccessful, Daily Fantasy Sports have simultaneously experienced a meteoric rise, becoming a multi-billion dollar industry. This Note examines the …

The Sixth Pillar Of Anti-Money Laundering Compliance: Balancing Effective Enforcement With Financial Privacy, Maria A. De Dios

Brooklyn Journal of Corporate, Financial & Commercial Law

The U.S. government has responded to the increase of financial crimes, including money laundering and terrorist financing, by requiring that financial institutions implement anti-money laundering compliance programs within their institutions. Most recently, the Financial Crimes Enforcement Network exercised its regulatory powers, as authorized by the Treasury Department, by proposing regulations that now explicitly add customer due diligence to the preexisting anti-money laundering regime. The policy behind the government’s legislative and regulatory measures is clear—financial institutions must ensure that they are protected from and not aiding in the illegal efforts of criminals. The complexity and insidiousness of these financial crimes makes …

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …

Share And Share Dislike: The Rise Of Uber And Airbnb And How New York City Should Play Nice, Alexandra Jonas

Journal of Law and Policy

Uber and Airbnb are two companies in the emerging “sharing economy” that provide individuals with a means to become entrepreneurs and benefit from a laissez-faire business model. The problem, however, is that while the benefits to users are great, so too are the risks. The dangers of operating without restraint and circumventing existing law are not only potentially harmful to unapprised users, but also adversely affect the continued use of these businesses. Every aggrieved user complaint has the potential for a lawsuit and every violation creates an opportunity for penalties. Left over are attempts by the courts and city government …

The User Principle: Rashomon Effect Or Much Ado About Nothing?, Kelvin F. K. Low

Research Collection Yong Pung How School Of Law

No abstract provided.

Persistent Threats To Commercial Speech, Jonathan H. Adler

Faculty Publications

The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This article briefly examines two: the use of commercial speech restrictions as a form of rent-seeking, and compelled commercial speech. Regulation of commercial speech is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have also been unduly deferential to claims of a consumer “right to know” as a basis for mandated labeling and disclosure. Greater and …

Compelled Commercial Speech And The Consumer "Right To Know", Jonathan H. Adler

Faculty Publications

Compelled commercial speech, including mandatory labeling and the disclosure of factually true information, should not be seen as a separate category of speech under the First Amendment. Rather, compelled commercial speech should be understood as a type of commercial speech and be subject to the same level of protection as commercial speech generally. Accordingly, commercial speech compulsions, such as mandatory disclosures and labeling requirements, must be supported by a substantial government interest under the Central Hudson framework. The assertion of a consumer “right to know” does not constitute such an interest and cannot, by itself, justify compelled commercial speech within …

When The Default Is No Penalty: Negotiating Privacy At The Ntia, Margot E. Kaminski

Publications

Consumer privacy protection is largely within the purview of the Federal Trade Commission. In recent years, however, the National Telecommunications and Information Administration (NTIA) at the Department of Commerce has hosted multistakeholder negotiations on consumer privacy issues. The NTIA process has addressed mobile apps, facial recognition, and most recently, drones. It is meant to serve as a venue for industry self-regulation. Drawing on the literature on co-regulation and on penalty defaults, I suggest that the NTIA process struggles to successfully extract industry expertise and participation against a dearth of federal data privacy law and enforcement. This problem is most exacerbated …

A New Governance Recipe For Food Safety Regulation, Alexia Brunet Marks

Publications

Although food safety is a significant and increasing global health concern, international economic law does not adequately address today’s global food safety needs. While most countries rely on a collection of formalized legal rules to protect food safety, these rules too often fall short. As fiscal constraints impede raising the number of border inspections, formal international commitments (treaties) frequently limit governmental efforts to raise food safety standards. Private companies, meanwhile, can readily adopt higher standards to meet consumer demands and supply chain needs, thus demonstrating more nimbleness and flexibility in adopting the highest food safety standards available. Can countries learn …

Disclosure 2.0: Can Technology Solve Overload, Complexity, And Other Information Failures?, Erik F. Gerding

Publications

In recent years, securities law scholars have either renewed an old attack on mandatory issuer disclosure or questioned the effectiveness of securities disclosure in the context of modern financial instruments. Some scholars argue that mandatory disclosure rules prove ineffective because investors suffer from “information overload.” Others claim that securities disclosure cannot describe adequately the complexity of modern firms and finance. These academic criticisms of mandatory securities disclosure provide some of the intellectual underpinnings for recent efforts to roll back some mandatory securities disclosure rules, such as the SEC’s Disclosure Effectiveness initiative.

This Article questions these critiques of securities disclosure, including …

The Funny Thing About Forced Arbitration And The Cfpb, Joanne Doroshow

Other Publications

No abstract provided.

Debunking Humphrey's Executor, Daniel A. Crane

Articles

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …

"What We Lose In Sales, We Make Up In Volume": The Faulty Logic Of The Financial Services Industry's Response To The Consumer Financial Protection Bureau's Proposed Rule Prohibiting Class Action Bans In Arbitration Clauses, Richard Frankel

St. Mary's Law Journal

Abstract forthcoming.

The Coming Revolution In Class Action Notices: Reaching The Universe Of Claimants Through Technologies, Catherine Piché Dr

Canadian Journal of Law and Technology

New technologies, social networking sites, blogs, and other interactive online platforms are playing an increasing part of North Americans’ lives. As of June 2017, Facebook had, on average, 1.32 billion daily active users and 2.01 billion monthly active users. Generation X spends the most time on social media, with approximately seven hours per week, while Generation Y comes in second, spending a little more than six hours per week doing the same. The heaviest users are female, who spend one quarter of their time online on social media,with males correspondingly spending 19% of their time doing so. Data on average …

The Secession Of The Successful: The Rise Of Amazon As Private Global Consumer Protection Regulator, Jane K. Winn

Articles

In 2005, the Americans for Fair Electronic Commerce Transactions (“AFFECT”) coalition issued a list of 12 principles it hoped would contribute to a new consensus about what constitutes fairness in online consumer transactions. A decade later, a cursory review of different jurisdictions indicates that, while there has been little discernable progress in the direction of the principles in the United States, other jurisdictions such as the European Union have made more progress.

However, the one jurisdiction in the world that comes closest to implementing all 12 principles across the full spectrum of consumer transactions is not a government at all, …

Saturns For Rickshaws: Lessons For Consumer Arbitration And Access To Justice, Peter B. Rutledge

Scholarly Works

Companies are increasingly requiring consumers to agree to arbitrate disputes they may have over the products or services they purchase. Pre-dispute arbitration agreements are controversial especially for consumer disputes, where, it is feared, consumers will not represent themselves and neither will lawyers come forward because of the small stakes involved in individual claims. Dean Rutledge addresses in this chapter whether consumer arbitration processes can be designed to provide greater access to justice for consumers.

Taking Trust Seriously In Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

People Analytics And The Regulation Of Information Under The Fair Credit Reporting Act, Pauline Kim, Erika Hanson

Scholarship@WashULaw

People analytics — the use of big data and computer algorithms to make personnel decisions — has been drawing increasing public and scholarly scrutiny. Concerns have been raised that the data collection intrudes on individual privacy, and that algorithms can produce unfair or discriminatory results. This symposium contribution considers whether the Fair Credit Reporting Act’s regulation of consumer information used for employment purposes can respond these concerns. The FCRA establishes certain procedural requirements, and these can sometimes help individual workers challenge inaccurate information about them. However, the statute does little to curb intrusive data collection practices or to address the …

The Global Reporting Initiative, Transnational Corporate Accountability, And Global Regulatory Counter-Currents., Cynthia A. Williams

Articles by Maurer Faculty

In this essay, the Author provides an overview in Part I of some initiatives to require or encourage companies to produce specific ESG data, authored both by governments and by private standard-setters. In Part II, one disclosure initiative in particular will be discussed as an example of a transnational legal order (TLO), as defined by Professors Shaffer and Halliday,13 and that is the Global Reporting Initiative, which has become the benchmark corporate social disclosure framework. Part III identifies a number of significant questions about our knowledge of the real power of information strategies to change corporate behavior, as the GRI …