Friday, April 3, 2015
In New Zealand, a ban on unfair terms in consumer contracts has taken effect and will, according to the Commerce Commission, will be enforced starting immediately. The regulation forms part of the 2013 Fair Trading Act. Australia introduced a similar ban in 2010.
The Consumer Organization “Consumer NZ” has launched its “Play Fair” campaign to increase awareness of the new law and related consumer issues. According to Consumer NZ, companies had been given plenty of notice of the upcoming ban and thus to review their contracts in order to remove unfair terms, but had to a large extent failed to do so.
The Act will apply to standard-form consumer contracts often used by electricity retailers, gyms, TV service providers and many others.
But what makes a term “unfair”? The Act defines a term as unfair if it would “would cause a significant imbalance between the rights of the company and the consumer, is not reasonably necessary to protect the legitimate interests of the company, [or] would cause detriment, whether financial or otherwise, to the consumer if it were to be applied or relied on.” The Act contains a list of terms that courts are likely to regard as unfair. This covers terms that would allow a company to unilaterally vary the terms of the contract, renew or terminate it, penalize consumers for breaching or terminating the contract, vary the price without giving consumers the right to terminate the contract, or vary the characteristics of the goods or services to be supplied.
After intense lobbying by the insurance industry, that industry was exempted from the ban.
Even though this Act is a consumer protection device, only the New Zealand Commerce Commission can, for now, enforce it. The contemplated fine for violations is $600,000.
In the USA, there are, of course, various statutory and common law protections against unfair terms such as those contained in the UCC as well as fraud protections. However, the deterrence effect of these does not seem effective in relation to at least some industries. Alternatively, perhaps the protections are not broad enough, sufficiently well-known, or sufficiently easy to enforce. Or perhaps people just give up and deal with other companies, or pay what they are asked to do by the companies.
I personally just spent no less than two hours chatting online with a major health care provider over their sudden allegation that a certain doctor I had used was “not in network” (with me thus allegedly owing a few thousand dollars to the insurance company) despite that particular provider being listed on the provider’s own website as “in network” and the doctor having confirmed this. Eventually and after numerous contractual and factual arguments, I was able to persuade provider that I was right. But how many others in my situation would simply give up and cave in to, as was the case, the provider’s repeated bootstrapping arguments that “their ultimate price was fair”?
Only two days later, I heard from a moving company that had agreed to move a car for me for $500 (and confirmed this twice) that the “price is actually $600.” When I told them no, it is not, they repeated their allegation that “we did not have a contract.” After telling them a few things about contract formation and modification principles and after declining listening to their attempted, time-consuming warnings about using other companies that were “scam artists,” I am now looking for a new contract another vendor.
Despite whatever legal protections we may officially have in this country against consumer fraud, it is still rampant. New Zealand’s government enforcement system is interesting, but time will tell if they have more success preventing consumer fraud than we do here.
Monday, March 30, 2015
Earlier this month, Los Angeles-area media reported a somewhat humorous of a valet service that gave away a relatively expensive new car to a random guy claiming that he had "lost the [valet] ticket." Yup, the valet service actually just gave the car to the man who was sporting an Ohio state tattoo. (Of course, this story is not funny for the frustrated car owner).
But wait, the story gets weirder than that (it is, after all, LA, where we worry a lot about our cars...): the valet service sent the responsible employee home and referred the customer to his insurance company. Initial reports indicated that the insurance company did not want to pay for this loss as no theft had occurred... as is always the case, however, the media did not follow up on the end of this story, to the best of my knowledge.
Another valet contract that you must read and that was shared today on the AALS listserv for Contract Professors reminded me of this story. Hat tip to Professor Davis!
Valet companies may have to brush up on their contract writing skills soon...
Writing for Forbes.com, Santa Clara Law Prof Eric Goldman (pictured) reports on a recent SDNY case, Galland v. Johnston. The case is similar to others about which we have blogged recently. Plaintiffs rent out their apartment in Paris through a website. The rental agreement associated with the property provides that defendants would “not to use blogs or websites for complaints, anonymously or not." Notwithstanding this clause, defendants posted reviews of the apartment that were not entirely positive. In one case, plaintiffs offered a defendant $300 to remove a three-star review from a website. The defendant refused and complained to the website. Plaintiff then sued defendants for, among other things, breach of contract, extortion and defamation.
The magistrate judge dismissed all of the claims except the breach of contract claim. Plaintiffs objected to this disposition. Defendants did not, which may be a good reason why the District Court let the breach of contract claim stand while upholding the Magistrate's dismissal of the remaining claims. Indeed, the District Court's opinion did not address the breach of contract claim.
Professor Goldman expresses surprise that the Magistrate allowed the breach of contract claim to stand. Other New York courts have found that contracts clauses that prohibit customer reviews are a deceptive business violate New York's consumer protection laws. Professor Goldman also points out that they violate public policy regardless of New York law.
Thursday, March 26, 2015
Some weeks ago, I blogged here about water rights and shortages in drought-ridden California. Of course, California is not the only state where contractual water rights interface with development and public health concerns.
In Ohio, shale driller Gulfport Energy recently filed suit against the town of Barnesville for rights to extract water for Gulfport’s fracking operations. Gulfport had a contract with Barnesville entitling it to draw water from a local reservoir at one cent per gallon. Under the contract, Gulfport would be able to draw the water unless the village determined that such action would endanger public health. Water rights were subsequently also issued to another driller. In the fall of 2014, the village told Gulfport to stop drawing water from the reservoir because of too low water levels. Gulfport’s suit now asks for adequate assurances of performance of the water contract to ensure that it can continue its fracking operations.
Whether that is a good idea is another story. From a short-term perspective: yes, we need energy preferably domestically sourced to avoid international supply interruptions and the geopolitical problems that are associated with importing energy raw materials. But fracking and fossil fuel production in general are associated with other severe problems including heavy water usage in the case of fracking. Such water, the argument goes, is better used for other things such as farming and household consumption.
Business as usual for fracking companies may not be the best idea seen from a societal point of view. Contracts rights are only a small part of this much bigger problem. However, time seems to have come for governments to incorporate escape clauses not only for “public health concerns” into water contracts, but also for drought concerns. This is not always done, as the above case shows, but such a relatively easy step could help solve at least some contractual disputes. In times of increasing temperatures and decreasing rainfall in some areas, such contract drafting may well make sense.
Today's New York Times reports that Microsoft will require the companies with which it partners, its contractors and vendors who employ more than 50 workers, to provide their employees who do work for Microsoft with 15 days of annual paid sick leave and vacation time. Microsoft expects that it will have to increase its pay to these partners to help them with the added expense of the policy.
As the Times points out, it is a very American approach to the protection of workers' rights. Congress will not act and only a few state legislatures have done so. Microsoft, like other large technology companies, can afford to provide decent wages and benefits to its workers. However, companies increasingly prefer to contract work out to small companies that do not treat their workers nearly as well.
The Times notes that the gap is not only between skilled computer programmers and unskilled or semi-skilled janitors or groundskeepers but also between whites and African Americans and Latinos. While the latter, traditionally-underrepresented minorities account for our 3-4% of tech workers, they account for 75% of janitorial and maintenance workers. Eschewing Google's and Facebook's approaches of replacing contract workers with its own employees, entitled to company benefits, Microsoft has explained its move in a manner also consistent with the great American tradition of enlightened self interest. Microsoft general counsel explained that: 1) happy workers are more productive; and 2) sick workers who come to work can infect others.
This move can have a big impact, especially if other major companies follow Microsoft's lead, but I'm not sure that the effects will all be good for workers. If a contractor has some workers that work for Microsoft and some that don't, the Microsoft jobs suddenly become highly sought-after. A company may try to stay below the 50-employee threshold to avoid the private regulation. Or it may divide Microsoft work among its staff (in the interests of internal morale), which might dilute the effects of the regulation. If you do only 20% of your work for Microsoft, do you only qualify for three days of vacation/sick leave? It may take a few years (and a few contracts disputes) to work out the kinks.
Wednesday, March 11, 2015
We all know the feeling of having to pay twice as much - or more - for food and drink in airports compared to most other places. Two vendors at the Los Angeles International Airport (“LAX”) are now taking this practice to the next level: they are suing each other for alleged contracts violations and price gouging.
Boutique retailer Kitson Stores runs two stores at LAX. It apparently charges around $2.55 for a liter of water (roughly a quart) at those stores. Competitor Hudson Group charges $5 a bottle (size unknown, but presumably roughly the same and expensive at any rate). Kitson is alleging that Hudson is gouging passengers with its “hugely inflated” water prices and is trying to force Kitson out of business at the airport. Hudson is countering that Kitson is hardly concerned about consumer price protections, but that this lawsuit is really a diversion from Kitson’s alleged contractual violations.
Whichever turns out to be the case, airport prices are well known to be very high for everything from chewing gum to dinner. Perhaps higher-than-usual rent prices are to blame, at least in part. Of course, airport retailers also enjoy a captive market (almost literally). Consumers are, however, still allowed to bring an empty bottle to the airport and fill it with free water from, for example, the increasing number of “bottle filling stations” that are thankfully also appearing in more and more airports. This does seem to be a case of fake altruism, but is nonetheless a lawsuit that may resolve an important issue.
Thursday, March 5, 2015
The official portrait of former President Bill Clinton has been completed. See it here. It was painted in the “conservative realistic style” … maybe a little too realistic and not sufficiently conservative?
According to the artist, Nelson Shanks, the bluish shadow of a person that you see on the mantelpiece next to Clinton is that of Monica Lewinski in her infamous blue dress. You got that right: the artist himself has admitted that he purposefully scarred the picture just as the Lewinsky scandal scarred Clinton’s second term. The artist has apparently caught quite some flak for having done this. Regardless of artistic freedom and setting aside all thoughts about the scandal per se, what is, after all, at issue here is a contract for artwork depicting a former President of the United States of America. A bit more respect may have been in order. This was not any regular client having a portrait done; it’s in effect the entire nation that commissioned this work. Perhaps a subjective satisfaction clause would have been in order here. Even if it had been any “regular” client, deliberately depicting one’s paying client in a highly controversial light seems to me to be in questionable taste.
On the other hand, the argument has been made that if the artist had been held to certain contractual stipulations, the portrait of the 42nd President would have been “stiff and untrue.”
That’s not the case? Take a look and judge for yourself. While much has been made of Clinton holding an actual, gash, newspaper – so retro – the strange positioning of his fingers on his hip looks more bizarre to me. An indication of his alleged two-sided look at what constituted “the truth” in certain contexts? To me, it looks more like the V sign for, perhaps, Clinton’s ultimate victory over at least some of the political and other challenges he faced.
Tuesday, March 3, 2015
Last year, Starbucks announced a new corporate-supported educational program that one year later is still viable: Starbucks will reimburse its full-time workers for taking online classes with Arizona State University. Partial tuition (58%) will be offered to freshmen and sophomores and full tuition for juniors and seniors as long as credits are earned within the past 18 months so as to keep students on track.
As you may have noticed if you are a Starbucks customer, very many of its employees appear to be college-aged. In fact, 70% of Starbucks’ workforce are either in school already or have had to drop out because of various personal difficulties.
This program seems to be a benefit to employees who cannot afford to go to school full time (or even part time), but who desire and education. What is remarkable is also how few “strings” are attached to the program. For example, the employees do not even have to stay with Starbucks after the completion of their degree. Said CEO Howard Schultz (still the CEO): "We want to attract and retain great people. We want to provide [our employees] with new tools and new resources to have advancements in the company.”
What is in it for ASU? This has been said to be a coup for the university, which already has one of the nation’s largest and most highly regarded online programs. Of course, Starbucks has a large amount of employees with, presumably, many coming and going, so ASU now has access to a large database of potential students, something many universities – private and public - are craving in these competitive times.
For the students and the university, rates may be discounted. This is normal in this type of situation. What would truly make a difference would be if the rates could become so reduced for students that they would, in effect, have no out-of-pocket costs altogether.
What, to me, is interesting about this situation is that a public university has found out workable model for online classes and cooperation with a private business venture when many private universities have not.
The somewhat strange catch here is that ASU cannot enter into any other arrangement with a for-profit business for four years, but that Starbucks is free to advertise its partnerships with a few other schools.
See the contract at issue here.
See Starbucks’ description of the program here.
Monday, February 23, 2015
2012 American Idol winner Phillip Phillips has lodged a “bombshell petition” with the California Labor Commissioner seeking to void contracts that Phillips now finds manipulative, oppressive, and “fatally conflicted.”
Before winning season 11 of “American Idol,” Phillips signed a series of contracts with show producer “19 Entertainment” governing such issues as his management, recording and merchandising activities. These contracts are allegedly very favorable to 19 Entertainment, for example allowing the company as much as a 40% share of any moneys made from endorsements, withholding information from Phillips about aspects of his contractual performance such as the name of his album before it was announced publicly, and requiring Phillips to (once) perform a live show once without compensation. 19 Entertainment has also lined up such gigs for Phillips as performing at a World Series Game, appearing on “Ellen,” the “Today Show,” and “The View.”
It is apparently not unusual for those on successful TV reality shows to renegotiate deals at some point once their career gets underway. Phillips claims that he too frequently requested this, but that 19 Entertainment turned his requests down. Can he really expect them to agree to post-hoc contract modifications?
Very arguably not. Under the notion of a pre-existing legal duty, a party simply cannot expect that the other party to a contract should have to or, much less, should be willing to change the contractually expected exchange of performances. This seems to be especially so in relation to TV reality shows where the entire risk/benefit analysis to the producer is that the “stars” may or may not hit it big. For hopeful stars, the same considerations apply: their contracts may lead them to fame and fortune… or not. That’s the whole idea behind these types of contracts. Of course, if industry practice is to change the contracts along the way and if both parties are willing to do so, they are free to do so. Otherwise, the standards for contractual modifications are probably the same for entertainment stars as for “regular” contractual parties.
Another issue in this case is whether an “agent” is a company or a physical person. Under the California Talent Agencies Act (“TAA”), only licensed “talent agents” can procure employment for clients. Phillips is attempting to apply the TAA to entertainment companies like 19 Entertainment. If Phillips is successful, the ramifications may be significant for the entertainment industry in which companies very often negotiate deals with performers without taking the TAA into account. In Citizens United v. Federal Election Commission, the United States Supreme Court famously gave personal rights to corporations, albeit only in the election context. Time will tell how California looks at the issue of corporate personhood and responsibilities in the entertainment context.
Adjudications under the controversial TAA are notoriously slow and could leave contractual parites in “limbo” for a very long time. Time and patience is not what Hollywood parties are known to have a lot of, so stay tuned for the outcome of this dispute.
Tuesday, February 17, 2015
I've been away from the submission process for a few years. In the meantime, Scholastica has entered the picture, which from an author's view is simply an expensive headache, and more journals are encouraging authors to submit directly through either e-mail or their own online submissions process.
Having been a historian before becoming a law professor, I am still grateful for the advantages of student-edited law journals and authors' ability to submit to scores of journals simultaneously. I still believe that this process is better for authors and not significantly less arbitrary that double-blind peer review. Lots of scholarship gets published that does not end up getting used or cited under both systems, but the peer review process banishes lots of possibly meritorious scholarship to the dung-heap of history based on the opinions of two people whose reasoning might be insufficient to justify such a heavy penalty.
That said, I do find a new feature of online submission processes disquieting. At least one journal that encourages authors to submit through their online submission form features a Submission Agreement that includes a link to a separate page containing the journal's "attribution and usage policies." The latter are incorporated by reference, and thus one must agree to them in advance before submitting the article. There is nothing particularly onerous in the Submission Agreement or the usage policies, but the problem is that authors submit to dozens or scores of journals. The journals cannot really expect authors (or their administrative assistants who submit on their behalves) to read through boilerplate terms. So there we have it -- forms that purport to bind law professors to terms to which they have not meaningfully consented. This is especially ironic if, like me, you have been writing about the dangers of form contracts and the degraded version of "consent" in this context.
The practice is especially irksome as the submission process does not otherwise involve a contract. When I submit my article to multiple journals for publication, I am submitting an invitation for offers. I have no obligation to the journals, and they have no obligation to me. They don't even have to read my piece before rejecting it, nor do they have to respond in any way to me. And if they do offer to accept my piece (which, note, is typically described as an "offer to publish" not as an "acceptance"), I can reject that offer and go merrily on my way.
The introduction of form contracts at the submission state -- a point at which the parties have no legal relationship -- is simply unnecessary.
Tuesday, January 27, 2015
A young Norwegian man has been fined $1,300 for accepting a contract to kill without the intent to follow up on it. Yes, you read that right: all the authorities could charge this man with was contractual fraud. Another 21-year old man ordered the killing of a teenage girl who had rejected the man’s romantic advances. The punishment for the “offeror”? Two years in prison with most of the sentence suspended because the suspect confessed.
Good thing that these men were caught and convicted of something… sort of a gruesome twist on the old, classic Al Capone story (of course, Capone only pled guilty to tax evasion and prohibition charges). I know that the Scandinavian countries do not believe in the rehabilitative effects of relatively severe sentences such as those often dished out in the USA, but still... Two years and $1,300 for an attempted contract on a teenage girl’s head? That seems too lenient to me.
Wednesday, December 31, 2014
Last month, United Airlines and Orbitz filed a by-now famous lawsuit against the 22-year-old computer specialist who created the website Skiplagged.com. This website helps consumers find the cheapest round-trip airfare possible by buying tickets to a destination to which the traveler does not actually intend to travel, but instead getting off at a layover point which is the truly intended destination and discarding the last portion of the ticket. Roundtrip tickets to certain popular destinations are often much cheaper than to other destinations sought by fewer passengers even though the more popular destinations are further away from one’s point of origin.
To not cause the airline and other passengers undue trouble and delays, this practice, of course, requires not checking in luggage which, it seems, fewer and fewer travelers do anyway (next time you fly, notice the rush to get on board first with suitcases often much bigger than officially allowed and airline personnel deliberately ignoring this for reasons of “competition”).
The cause of action for this lawsuit? “Unfair competition,” and breach of contract because of “strictly prohibited travel,” and tortuous interference with contract.
Unfair competition? I admit that I have not yet read the rather long complaint, but I look forward to doing so very soon. At first blush, however, how can “unfair” can it really be to assist consumers in finding airfare that they want at the best prices available? United Airlines recognizes that there is a discrepancy between its prices to very popular destinations and others on the way, but claims [cite] that if many people “take advantage” of that price differential, it could “hurt the airlines.” Come again? Does it really matter that a customer – with no checked-in luggage – pays whatever price the airline itself has set but simply decides not to use up the entire item purchased? Doesn’t that simply let the airline save gas and potentially give the empty seat to potential stand-by customers? Does it matter to a newspaper that I choose to not read the sports pages? Must I eat the heal of my bread even though I don't like it? What if I really don't like my bread and would rather eat a donut instead, as I thought might be the case?
The issue of breach of contract is arguably a closer one. If airlines “strictly prohibit” the practice of only using part of a ticket, it may be promissory fraud to buy a ticket if one intends at the time of purchase to only use part of it. This could also relate to the purchase of a round-trip ticket only to use it one-way as that too is often cheaper than a one-way ticket, as Justice Scalia found out himself recently.
The Skiplagged.com creator argues that he is only taking advantage of “inefficiencies” in airline travel that travelers have known about for a long time. To me, it seems that airline contracting should work both ways as other types of contracting: airlines take advantage of their bargaining positions as well as their sophisticated knowledge of current and future air travel supply and demand structures. They should do so! I applaud them for that. Jet travel has certainly made my personal and professional life much better than without relatively cheap air travel. But every first year contracts law student also knows (or should know!) that contracting is not and should not be a one-way street. Consumers too are getting more and more sophisticated when it comes to airline travel and other types of online contracting. Websites enable us to inform ourselves about what we wish to spend our money on. As long as consumers do not break the laws or violate established contracting principles, that does not strike me as “unfair competition,” that is simply informed consumerism in a modern capitalist society from which airlines and others have already benefited greatly.
Airlines, wake up: how about working with your customers instead of trying to fight them and modern purchasing trends? How’s this for a thought: start offering one-way tickets for about half of a round-trip ticket just like other transportation vendors (trains, buses, subways) do. Don’t you think that could set you apart from your competition and thus even earn you more customers? If you can fly for a certain amount of money to a certain city, let people pay that only and then simply sell a second ticket for the remaining leg to the more popular end destination where the same plane is headed anyway. Let people off the bus if they want to! Let some one else on instead. It doesn’t seem that hard to figure out how to work with current purchasing trends and your customers instead of resisting the inevitable.
For another grotesquely inappropriate lawsuit by United Airlines against its own customer, see Jeremy’s blog here.
I will blog more on this issue over the days to come. For now, I’m glad I don’t have to head to an airport. Happy New Year!
Tuesday, December 9, 2014
In what seemed an inevitable turn of events, the Los Angeles and San Francisco district attorneys filed a consumer protection lawsuit on 12/9/2010 against Uber for making false and misleading statements about Uber’s background checks of its drivers. George Gascon, the district attorney for San Francisco, calls these checks “completely worthless” because Uber does not fingerprint its drivers. Uber successfully fought state legislation that would have subjected the company’s drivers to the same rules as those required of taxi drivers. Allegedly, Uber has also defrauded its customers for charging its passengers an “airport fee toll” even though no tolls were paid for rides to and from SFO, and charging a “$1 safe ride fee” for Uber’s background check process. California laws up to $2,500 per violation. There are “tens of thousands” of alleged violations by Uber. However, even that will likely put only a small dent in Uber’s economy as it is now valued at $40 billion (yes, with a “b”).
Lyft has settled in relation to similar charges and has agreed to submit information to the state to verify the accuracy of its fares (although not its background checks). It has also agreed to stop picking up passengers at airports until it has obtained necessary permits. Prosecutors are continuing talks with Sidecar.
Time will tell what prosecutors around the nation decide to do against these and similar start-ups such as airbnb and vrbo.com, which are also said to bend or outright ignore existing rules.
The Los Angeles Times comments that the so-called “sharing economy” companies face growing pains that “start-ups in the past didn’t – dealing with municipalities around the world, each with their own local, regional and countrywide laws.” It is hard to feel too sorry for the start-ups on this account. First, all companies obviously have to observe the law, whether a start-up or not. Today’s regulations may or may not be more complex than what start-ups have had to deal with before. However, these companies should not be unfamiliar with complex modern-day challenges as that is precisely what they benefit from themselves, albeit in a more technological way. Finally, there is something these companies can do about the legal complexity they face: hire savvy attorneys! There are enough of them out there who can help out. But perhaps these companies don’t care to “share” their profits all that much? One has to wonder. Sometimes, it seems that technological innovation and building up companies as fast as possible takes priority over observing the law.
Friday, November 21, 2014
A student shared with me this flyer that her father received. I have provided a large reproduction so that readers can read the fine print, which is really the focus of this post.
On my reading, the meaning of this is as follows: if
- You made the mistake of having previously subscribed to the newspaper; and
- You have the temerity to continue living at the same address; and
- You do nothing else,
A newspaper will be delivered to you on Thanksgiving.
Regardless of what you do with it, your inaction will be deemed consent to future deliveries and you will be charged unless you call the newspaper and put a stop to it.
This "offer" is a turkey, and those receiving it should tell the newspaper to stuff it.
Friday, September 12, 2014
When he famously wrote 100 years ago, “Sunlight is the best of disinfectants,” Justice Louis Brandeis began a century of disclosure law. How do we protect borrowers and investors? Disclosure! How do we help patients choose safe treatments and good health plans? Disclosure! How do we regulate websites’ privacy policies? Disclosure!
In area after area, mandated disclosure is lawmakers’ favorite way to protect people facing unfamiliar challenges. Truth in lending laws, informed consent, food labeling, conflicts-of-interests regulation, even Miranda warnings, all arose because lawmakers rightly worried that uninformed and inexperienced people might make disastrous choices.
Brandeis was wrong. True, these laws have a worthy goal – equipping us to make better decisions. But in sector after sector, studies steadily show that mandated disclosure has been almost as useless as it is ubiquitous. Financial crises have bred mandates for decades — the Securities Act of 1933, truth-in-lending laws in the 60s and 70s, Sarbanes-Oxley in 2002, and, after the 2008 crisis, the Dodd-Frank Act. But each new crisis occurred despite the old elaborate disclosure requirements.
In our new book MORE THAN YOU WANTED TO KNOW: The Failure of Mandated Disclosure, we explain that mandated disclosure has become the regulatory default. It is politically easy for legislatures and convenient for courts.
Sunlight doesn’t disinfect because mandated disclosure is so ill-suited to address the problems it faces – and, in fact, can do more harm than good. Consider one of the most heroic efforts to get disclosure right. “Know Before You Owe” is a new regulation issued by the Consumer Financial Protection Bureau, the agency responsible to reform consumer credit markets. The Bureau recognized that people took bad mortgages because they misunderstood the terms. To prevent this, the Bureau heeded the Dodd-Frank mandate to promote “comprehension, comparison, and choice.” After much intelligent work, the Bureau has a new, simpler form that has done well in laboratory tests:
Gone are the tiny fonts and the overloaded lines of the old form (on right). The new form (on left) is a masterpiece of design, declaring the dawn of a new era of smart and simplified disclosure, designed by lawmakers schooled in decision sciences and cost-benefit analysis.
But mortgage disclosure has to work in the bank, not in the regulators’ lab. When borrowers arrive at a real-world loan closing, they will get the Bureau’s new form and almost 50 other disclosure forms about issues like insurance, taxation, privacy, security, fraud, and constitutional rights. The new form is part of a stack more than 100 pages high, courtesy of many laws from many lawmakers over many years. Nobody plows through all this. And no single agency has the authority to pare down the stack.
Despite failures, disclosures are growing in number and in length. In health care, informed consent sheets now look like the fine print web users click “I Agree” to, thoughtlessly. Just reviewing the privacy disclosures received in one year would take a well-educated fast reader 76 work days, for a national total of over 50 billion hours and a cost in readers’ time greater than Florida’s GDP. In banking law, to describe the many fees in a garden variety checking account, the average disclosure is twice as long (and quite as dismaying) as Romeo and Juliet (111 pages).
In internet commerce, if you want to buy an iTunes song you are told (as the law requires) to click the agreement to the disclosed terms. Do you read before clicking? Of course not. Florencia Marotta-Wurgler and co-authors have showed that only one in a thousand software shoppers spend even one second on the terms page. And if you do print out the iTunes terms, you confront 32 feet of print in 8-point font (See Ben-Shahar’s photo with the iTunes Scroll below). Hard as you read, you can’t understand the words, what the clauses mean, or why they matter.
What about simplifying with just a few scores or letters, like A, B, and C grades for restaurant hygiene? Alas, boiling complex data down to a manageable form usually eliminates or distorts relevant factors. So a recent study by Daniel Ho at Stanford found that the volatility of restaurant cleanliness and the discretion given to inspectors make hygiene scores unreliable and even misleading – and do not detectably help public health. There is almost no evidence that the simplest of all scores – the loan’s APR – has helped people make better loan decisions, and there is plenty of evidence that it didn’t.
If disclosures are so futile, why do lawmakers keep mandating them? Because disclosure mandates look like easy solutions to hard problems. When crises occur, lawmakers must act. Regulation with bite provokes bitter battles (often stalemate); mandated disclosure wins sweet accord (near unanimity). Mandated disclosure appeals to both liberals (personal autonomy and transparency) and conservatives (efficient markets). And as one financier admitted, "I would rather disclose than be regulated."
But disclosures are not just inept. They can be harmful. Disclosure mandates spare lawmakers the pain of enacting more effective but less popular reforms. Disclosures help firms avoid liability, even when they act deceptively or dangerously. Disclosures can be inequitable, for complex language is likelier to be understood by those who are highly educated and to overwhelm and confuse those who aren’t. Mandated disclosures can crowd out better information (time spent “consenting” patients cannot be spent treating them).
We are often asked what should replace mandated disclosure. If it does not work, little is lost in abandoning it. And if it cannot work, the rational response is not to search for another (doomed) panacea, but to bite the bullet and ask which social problems actually require regulation and what regulation might actually lessen the problem. We do not envy lawmakers the hard work of helping people cope with the modern consumer’s life. But persisting in mandating disclosures is, as Samuel Johnson said of second marriages, the triumph of hope over experience.
Ben-Shahar is Leo and Eileen Herzel Professor of Law, University of Chicago.
Schneider is the Chauncey Stillman Professor of Law and Professor of Internal Medicine, University of Michigan.
Wednesday, September 10, 2014
By Myanna Dellinger
Craigslist has decided to crack down on companies that use data from its websites to generate ads on competing websites.
Technically, this can be and is done by various software programs (“spiders, “crawlers,” “scrapers” and the like) that look through craigslist and automatically cull information that can be reposted outside the Craigslist sites.
Courts broadly uphold liquidated damages clauses as long as they are not punitive in nature. Some of the factors that play into this rule is whether actual damages would be difficult to calculate after the breach occurs and whether they are unreasonably large.
With today’s many links to links to links, cross postings and machines retrieving data and using it for various purposes (not only commercial ones), contractual damages calculations may be too difficult and, for a court of law, too timeconsuming to be worth the judicial hassle. Liquidated damages are known to, among other things, present greater judicial efficiencies, which is very relevant in these kinds of cases. Perhaps Contracts Law needs to move towards an even broader recognition of such clauses and not be so concerned with the potential punitive aspect, at least as regards the “difficulty in calculation” aspect of the rule. After all, damages also serve a deterrent function. Sophisticated businesses operating programs specifically designed to retrieve data from other companies’ websites should - and logically must, in 2014 - be said to be on notice that they may be violating contractual agreements if they in effect just lift data from others without paying for it and without getting a specific permission to do so.
And what about consumer rights? If a person for some reason only wants his or her information posted on one particular site, why should it be possible for other companies to override that decision and post the information on other sites as well?
One thing is unavoidable technological change. Quite another is violating reasonable consumer and corporate expectations. Some measure of “stick” seems to be in order here.
Friday, July 18, 2014
By Myanna Dellinger
A woman owes $20 to Kohl’s on a credit card. The debt collector allegedly started to “harass” the woman over the debt, calling her cell phone up to 22 times per week as early as 6 a.m. and occasionally after midnight. What would a reasonable customer do? Probably pay the debt, which the woman admits was only a “measly $20.” What did this woman do? Not to pay the small debt, telling the caller that they had “the wrong number,” and follow the great American tradition of filing suit, alleging violations of the 1991 Telephone Consumer Protection Act which, among other things, makes it illegal to call cell phones using auto dialers or prerecorded voices without the recipient’s consent.
Consumer protection rules also prohibit collection agencies from calling before 8 a.m. and after 9 p.m., calling multiple times during one day, leaving voicemail messages at a work number, or continuing to call a work phone number if told not to.
Last year, Bank of America agreed to pay $32 million to settle claims relating to allegations of illegally using robo-debt collectors. Discover also settled a claim alleging that they violated the rules by calling people’s cell phones without their consent. Just recently, a man’s recorded 20-minute call to Comcast pleading with their representative to cancel his cable and internet service went viral online.
The legal moral of these stories is that companies are not and should, of course, not be allowed to harass anyone to collect on debt owed to them or refuse to cancel services no longer wanted. However, what about companies such as Kohl’s who are presumably owed very large amounts of money although in the form of many small debts? Is it reasonable that customers such as the above can do what she admits doing, simply saying “screw it” to the company and in fact reverse the roles of debtor and creditor by hoping for a settlement via a lawsuit on a questionable background? Surely not.
I once owned a small company and can attest to the difficulty of collecting on debts even with extensive accurate documentation. The only way my debt collecting service or myself were able to collect many outstanding amounts was precisely to make repeat requests and reminders (although, of course, in a professional manner). As a matter of principle, customers should not be able to get away with simply choosing not to pay for services or products they have ordered, even if the outstanding amounts are small. If companies have followed the law, perhaps time has come for them to refuse settling to once again re-establish the roles of debtor and creditor. This, one could hope, would lead irresponsible consumers to live up to their financial obligations, as must the rest of society.
Wednesday, July 9, 2014
So I hadn't really thought about Crossfire since Jon Stewart shut them down. It was the pinnacle of Stewart's career thus far.
But I guess it's just hard to keep a terrible idea down when you have 24 hours of time to kill every day.
I don't know what CNN's little segment on sex contracts is supposed to accomplish. I guess it is intended to introduce its audience to one of its contributors, S. E. Cupp No doubt, Ms. Cupp has lots of interesting ideas and is telegenic and all that, but this segment reads like a Ms. America question gone wrong. "Ms. Louisiana, do you think colleges and universities ought to require written assent from both (or all) parties to any sexual act in which a student participates?"
Ms. Cupp starts, because her brand is "smart conservative," by lashing out at a culture that "disarms" students on college campuses. Her claim is that women can't protect themselves with pepper spray because of weapons bans on campuses. Of course, most of those bans do not include defensive weapons and anyway, if a woman used her pepper spary defensively in defiance of such a ban, she would 1) escape an assault and 2) perhaps face reprimand. It's not clear that the disarmament has occurred, nor does Ms. Cupp address the very real possibility that women are safer when men can't carry weapons on campus, but I digress.
Then she seems to complain about resources going to crisis centers and hotlines rather than to rape prevention but she is careful to say that crisis centers and hotlines are a good thing (way to give a balanced perspective, Ms. Louisiana!). Then comes the segue to the University of California's consideration of sex contracts. This is not news. Antioch College did it for years. Even we blogged about the subject two years ago.
What's Cupp's take? The idea is silly, but good for California for at least trying! Alright audience. Ms. Louisiana! Isn't she a great sport?
Cupp actually makes me feel nostalgic for the days when Camille Paglia would not just strike provocative intellectual poses but would actually take provocative intellectual positions on the right. I didn't agree with Paglia, but she expressed her original and outlandish ideas with verve and panache. She challenged her readers to consider their positions and think things anew. If anyone actually watches the new Crossfire, let me know if you see any signs of an ability to do so over there.
Thursday, July 3, 2014
Such is the rhetorical power of a contract, even one that nobody reads.
They also say "your trust is important to us."
Did Facebook act in bad faith by manipulating users' data feeds? It's at least arguable that they did.
Now, about the research results - as far as what the results showed, I'm not sure that the study did prove that positive posts enhanced users moods (and vice versa). A user may have changed the nature of a post in order to conform to the prevailing mood, but that doesn't mean they actually felt happier. Positive posts from others might have forced users to "fake it" by writing more positive posts and vice versa. So I'm not convinced that the research refuted the claim that happy Facebook posts depressed some FB users...
Wednesday, July 2, 2014
Today's New York Times features a story about a new ride-sharing service called BlaBlaCar. The idea is simple -- it's just an internet ride board. Riders share with drivers the cost of travel between two cities. Drivers are forbidden from profiting from the ride share; BlaBlaCar takes a 12% cut. Cost savings over common carriers are significant, ranging according to the NY Times from 33% to 67%
The gimmick is the BlaBla part. Riders can indicate how much they want to talk en route. If you mark Bla, you want to ride in silence (or perhaps you want everyone to know that they can talk all they want but you will be hooked in to your iPod). If you mark BlaBlaBla, other riders (and the driver) are on notice that you will not shut up for six straight hours.
I don't think this would work for me. It's a question of etiquette and signaling. This might be useful if one could be more specific: e.g., BlaBla#WorldCup or BlaBlaBla#Kardashians or BlaBlaBla#MyElderlyMother'sHealthProblemsandMyRecentBreak-up would be useful to know in advance. If I were being honest, I would proclaim BlaBlaBla#HansKelsen, but that would guarantee me a train ticket. I might strategize and put Bla, because it seems more likely than not that I would not find all that much in common with my fellow passengers. But what if they turn out to be interesting? Can I BlaBlaBla, if I promised only Bla? Then, the next time I use BlaBlaCar, I might regret my misanthropy and commit to BlaBlaBla. Would I be a jerk if, after half an hour of conversations about pop stars or the best gear for rock climbing, I pulled out my iPod?
Of course, the odds are that most users of BlaBlaCar are young and interesting (to me), but I am old and boring (to them). So I should put BlaBlaBla because I am interested in hearing what 20- or 30-somethings are doing these days as they commute between European cities, but I would advise them to Bla me, because they likely do not want to hear about Hans Kelsen. This is based on my recent visit with my niece and three nephews whose BlaBlaBla fascinated me (when I could follow it) but who found my Bla, well, blah, or even bleh, but certainly nothing above meh.
But the question of legal liabilities does nag. BlaBlaCar seems rather blithe about the issues. The driver's insurance covers the possibility of injuries to passengers, and women who are wary of sharing cars with strange men can opt to ride only with other women. As for the rest, riders can rely on reviews of drivers and steer away from those who seem sketchy. This is all certainly an improvement over the level of risks assumed by, say, hitchhikers.
BlaBlaCar's terms of service put passengers on notice that the site cannot guarantee that they will be insured:
However BlaBlaCar gives no warranty or assurance in this regard and it is the Driver’s responsibility to verify that their insurance provides adequate cover.
As for other concerns, BlaBlaCar attempts to cover them under its Good Conduct Charter.