Welcome, friends, to 2023 and to the latest newsletter from the UC Berkeley Center for Consumer Law & Economic Justice! This past fall was a busy time at the Center, as you will see. It was also a time of transition, as we bade farewell to our remarkable and wonderful inaugural staff attorney Eliza Duggan, and welcomed our wonderful and remarkable new staff attorney (and Director of the CLASS Network), David Nahmias. We also filed briefs, penned comments, organized students to work with government agencies, held a slew of conferences, helped preserve the FTC Holder Rule, and … well, I don’t want to give it all away in the first paragraph. Read on!
Center Files Amicus Brief in US Supreme Court Supporting Student Debt Cancellation
Last August, the Biden Administration announced a landmark plan to cancel up to $20,000 in federal student loan debt for millions of borrowers. The plan was hailed as a way for former students to finally get out from under an unmanageable burden of debt, allowing them to contemplate purchasing a home or starting a family. But then federal courts in two Circuits ordered the Administration to stop the plan in its tracks. With relief to up to 40 million Americans hanging in the balance, the Supreme Court granted cert in December.
Earlier this month, the Center filed an amicus brief on behalf of two Missouri consumer advocacy groups in defense of the Administration’s debt cancellation plan. Our brief argues that the six State plaintiffs who challenged the plan in one of the two lawsuits, Nebraska v. Biden, lack standing to bring their lawsuit. The States’ theory of standing relies principally on the claim that Missouri, one of the plaintiffs, will be injured by the projected loss in revenue by the Higher Education Loan Authority of the State of Missouri (MOHELA), an independent entity that services and administers federal student loans. Our brief breaks the links in the tenuous chain of assumptions underlying the States’ theory of harm and shows that any harm that debt cancellation might cause MOHELA will not be passed onto the State of Missouri. We also explain that the other States lack standing because their proffered theory, that the debt relief plan may someday result in lost general tax revenue, simply does not conform to the Supreme Court’s requirement to show an imminent harm.
Our brief has made national headlines, with our newest staff attorney David Nahmias being extensively quoted in MarketWatchandBusiness Insiderexplaining how the States’ challenge to debt cancellation relies on a “tenuous, speculative chain of events.”
US Supreme Court Declines to Review Decision Authorizing Attorneys’ Fees in Lawsuits Against Holders of Credit Contracts
Earlier this month, the U.S. Supreme Court denied certiorari in Pulliam v. HNL Automotive, meaning that the California Supreme Court’s decision in that case stands. In Pulliam, the California Supreme Court ruled that courts may award attorneys’ fees to consumers who successfully sue deceitful lenders for unfair practices under the Federal Trade Commission’s long-standing “Holder in Due Course Rule.” The Holder Rule requires that consumer credit contracts explicitly state that consumers may assert all claims and defenses against third-party financial companies that are “holders” of their credit contracts. The consumers’ recovery, however, is limited to the amount that they paid on the contract. The Center filed an amicus briefin the California Supreme Court arguingthat recovery of attorneys’ fees is a critical factor in whether consumers are able to bring lawsuits challenging deceptive conduct at all.
California Supreme Court Sides with Consumers in Significant False Advertising/First Amendment Case
The California Supreme Court has decided a significant case, Serova v. Sony, upholding the state’s consumer protection statutes against a First Amendment challenge, giving a boost to both Michael Jackson fans and advocates for honesty in advertising.
The case arose when one such fan filed a lawsuit against Sony alleging that three of the nine songs on the posthumous album Michael were not actually sung by the King of Pop. The court of appeal held that the plaintiff’s false advertising claims violated Sony’s free speech rights, a ruling that called into question the ability of consumers of entertainment to receive truthful information about the works they purchase.
The California Supreme Court, however, reversed. The state’s highest court held that neither the First Amendment nor the state’s anti-SLAPP law prevented the plaintiff’s false advertising claims from going forward.
The Supreme Court’s reasoning closely matched the argument set out in anamicus briefthat the Center filed on behalf of a broad coalition of consumer groups. The brief argued, and the Court held, that this was fundamentally a case about false advertising. Neither the product at issue – a record album – nor the niceties of the anti-SLAPP statute changed the basic truth that false advertising is not protected speech.
The Center was joined on the brief by Truth in Advertising, Inc., Public Counsel, the Legal Aid Society of San Diego, Housing & Economic Rights Advocates, the East Bay Community Law Center, Consumers for Auto Reliability & Safety, and Consumer Action.
Events
Student Loans and Debt Cancellation: What Just Happened?
The Center presented a panel on student loans at Alumni Weekend this year, assembled by our own Ted Mermin and featuring Center Faculty Director Jonathan Glater (pictured right), Sophia Wang of EBCLC, and Amanda Prasuhn of the Berkeley Law’s Financial Aid Office.
The panel explored how we got into the student debt crisis, how we’ve managed to stay in it for so long, and what is finally being done to try to get us out.
Student Loan Cancellation, Mortgage Discrimination & Faulty Fintech: A Conversation with the General Counsel of the CFPB
Seth Frotman, general counsel and senior adviser to the Consumer Financial Protection Bureau, joined the Center and CAPS for a lunchtime discussion in September. The founding director of the Student Borrower Protection Center, Mr. Frotman is one of the nation’s leading experts on student loan law (and cancellation). He is also a gifted conversationalist who engrossed a packed room with tales of the issues confronted by the Bureau and the prospect of the paths students might take with their own careers.
Financial Inclusion, Consumer Protection, and the Forefront of Fintech: A Talk with the Commissioner of California’s New Department of Financial Protection and Innovation
The Center had the pleasure of hosting a lunchtime discussionwith Cloey Hewlett ‘79, the new Commissioner of the California Department of Financial Protection and Innovation. Commissioner Hewlett, a double Bear, has enjoyed a remarkable career of public and private service which has included – among many other distinctions – serving as the first person of color ever to direct the California Alumni Association. The Commissioner engaged a rapt audience as she discussed her focus on leveling the playing field for communities of color and low-income consumers — including helping homeowners avoid foreclosure and increasing access to basic financial services. The discussion continued well into – and beyond – the lunch after her talk, with students reluctant to end the conversation with the Commissioner (and vice-versa).
What the American Data Privacy and Protection Act Means for the California Privacy Rights Act
In October, the Center and co-sponsors PrivLab, BCLT and CAPS brought together a remarkable panel of experts on consumer privacy: Professor Jennifer Urban ‘00 (Chair of the California Privacy Protection Agency), Stacey Schesser ‘06 (Supervising Deputy Attorney General of the California AG’s Privacy Unit), and Professor Chris Hoofnagle shared their thoughts on the current state of the California Consumer Privacy Act, the proposed federal American Data Privacy and Protection Act, and the future of privacy in California. Attendees leaving the event were seen shaking their heads in disbelief that they had been able to hear from three people so deeply involved in matters so central to many students’ passions – and career plans.
Arbitration Victories in the Supreme Court: A Talk with Jennifer Bennett and Karla Gilbride
On November 1st, the Center hosted a conversation with preeminent consumer appellate attorneys Jennifer Bennett (Gupta Wessler) and Karla Gilbride (Public Justice). Both speakers, remarkably, won pro-plaintiff arbitration decisions in the U.S. Supreme Court last term: Southwest Airlines v. Saxonand Morgan v. Sundance. The advocates’ presentation to a filled room was riveting – so compelling, in fact, that several students in attendance immediately changed the subject of research papers they were working on to arbitration. Other attendees were heard stating that they had just met two new career role models. The event was co-sponsored with CAPS and, for the first time, Berkeley Law’s new Center for Law & Work.
Berkeley Law Makes Strong Showing at NCLC Consumer Litigation Conference!
The national Consumer Rights Litigation Conference took place on November 10-12 in Seattle with a great group of Center staff and Berkeley Law students in attendance. Organized by the National Consumer Law Center, the conference brought together more than 700 consumer justice attorneys working in academia, government, legal services, policy advocacy, and private practice. Berkeley students MacKenna Alvarez, Grace Choi, Jackie Cope, Jordi Hefcart, and Anna Judson, joined by the Center’s Ted Mermin, Ben Hiebert, and David Nahmias, had the opportunity to learn about critical issues in consumer law from prominent advocates in the field, hear from national leaders like Congresswoman Pramila Jayapal (D-WA) and Consumer Financial Protection Bureau Director Rohit Chopra, and mingle with other lawyers and law students. Ted presented a session with Prof. Prentiss Cox of the University of Minnesota Law School on a topic currently under discussion by the Uniform Law Commission: using consumer protection laws to mitigate the harms of auto-renew subscriptions, a topic everyone found particularly relevant to their daily lives – especially Professor Cox, who is the Reporter for the project. The students – and staff – returned inspired and energized.
C3PO Projects
This fall’s batch of C3PO (Consumer Protection Public Policy Order) students took on an impressive suite of projects.
Three ace C3PO students drafted a comment to the Federal Trade Commission on digital advertising to children. Supervised by Eliza Duggan, the C3PO students penned a comment emphasizing that most of the advertising to young children is inherently deceptive, and the FTC has the authority to do something about it. It has been well documented that children do not understand the persuasive nature of advertisements; however, limiting ads to kids has been an extremely challenging task. In the online landscape of stealth advertising, it can be challenging even for savvy adult consumers to identify paid promotions; for kids, it’s often impossible.
Desiree Nguyen Orth from EBCLC supervised two C3PO groups. One team collected data and designed a research project to understand the pitfalls of Buy Now, Pay Later services. Students collaborated with national partners in retrieving data and client stories, as well as mapping out possible policy solutions. The other team researched the impact of court fees on the number of debt collection cases filed and the utilization of court resources, examining ways to shift the burden to the debt collectors that most frequently regularly use the courts and away from borrowers who are generally unwilling participants.
Ted Mermin’s group worked on a research project suggested by the National Consumer Law Center to get the Consumer Financial Protection Bureau to revise regulations implementing the Fair Debt Collection Practices Act. The goal is to modernize rules on debt collection practices (Regulation F) to take into account tactics including use of email, text messages, and social media to reach debtors. The students wrote a memo examining complaints filed with the CFPB about these media, which Reg. F newly permits collectors to use, and proposing potential changes to the rule to avert problems that consumers have already experienced.
Fall EJPAC
In October, consumer policy advocates from around the nation convened for the fall Economic Justice Policy Advocates Conference to weigh bill proposals and legislative strategies, and to share answers to the question, “If you could wave a wand, how would you change consumer protection law?”
Participants discussed a wide variety of topics: how to build coalitions between consumer protection advocates and asset-building coalitions, manufactured housing and the housing crisis, student debt regulations, cryptocurrency legislation — and more.
The conference featured two dynamic keynote speakers. On the first day, Karl Racine, Attorney General for the District of Columbia, spoke about his commitment to protecting consumers from scams and abusive business practices. On the second day, retiring California State Senator (and consumer bankruptcy attorney) Bob Wieckowski discussed his career dedicated to enacting legislation to advance protections for California consumers.
Thanks to all who attended, and a special thank you to our organizing committee: Ann Baddour, Texas Appleseed; Ariel Levinson-Waldman, Tzedek DC; Beverly Brown Ruggia, New Jersey Citizen Action; Christine Hines, National Association of Consumer Advocates; Graham Downey, Alaska Public Interest Research Group; Jared Pone, Center for Responsible Lending; Lorray Brown, Michigan Poverty Law Program; Marceline White, Maryland Consumer Rights Coalition; Michael Best, National Consumer Law Center; Nicolas Cordova - NM Center on Law & Poverty; Veri di Suvero, Alaska Public Interest Research Group; and Ted.
Fall Classes - Four of ‘Em! With Another EIGHT on Order for the Spring – for a Record 12 in the 2022-23 Year
Last Fall we offered: Consumer Protection Law (Ted Mermin), Consumer Litigation: The Course of a Case (Kristen Law Sagafi), Consumer Financial Regulation (Manisha Padi), & Multidistrict Litigation: The New Reality of Class Actions and Mass Torts (Andrew Bradt & Elizabeth Cabraser).
And this Spring we are offering: the Consumer Law & Economic Justice Workshop (Abhay Aneja & Ted Mermin), Public Health Law (Marice Ashe), Consumer Bankruptcy Law (Abbye Atkinson), Housing Litigation & Policy (Michael Bracamontes), Credit Reporting & Economic Justice (Erika Heath), Student Loan Law (Suzanne Martindale), Comparative Consumer Law (Ted Mermin), & Litigating Class Actions (Anne Bloom & Jocelyn Larkin).
Welcome, David Nahmias! / CLASS Network Update
The Center is excited to welcome David Nahmias ‘18 as our newest staff attorney and director of the Consumer Law Advocates, Students, and Scholars (CLASS) Network. David is a former staff attorney and Justice Catalyst Fellow at the Impact Fund in Berkeley, where he worked on civil rights impact litigation and launched an initiative building the community of advocates for low-income LGBTQ+ workers. He recently completed a 1-year clerkship on the U.S. District Court for the Northern District of California.
David will co-lead the CLASS Network, a nationwide initiative comprising law students, professors, and advocates dedicated to developing consumer law and economic justice courses, experiential opportunities, and coordinated projects at law schools around the country. The CLASS Network currently comprises 11 law schools across the country, and is now poised to expand.
If you’re interested in building the consumer law and economic justice programming at your law school or alma mater, please contact David!
Calling all lawyers seeking economic justice!
We’re looking to identify attorneys working on consumer protection issues in federal, state, and local agencies, non-profit organizations, and private plaintiffs’ firms who want to work with current law students. The Center and the CLASS Network help coordinate and supervise research and writing for public comments, amicus briefs, and legal memos on cutting-edge topics in economic justice – especially for low-income communities and communities of color. We’re also helping develop pathways for law students to embark on careers in consumer justice. Contact David Nahmiasif you or your office want to get involved!
Courts Grant Center’s Requests to Publish Two Decisions Limiting Forced Arbitration
The Published Justice Project’s latest victories, inCosta v. Road Runner Sportsand Beco v. Fast Auto Loans, advance the law in an area of great interest to consumer advocates around the nation: mandatory arbitration. Costa is the first published decision to clarify that consumers cannot be assumed to have agreed to arbitration just because their lawyers know about a company’s arbitration provision. Beco establishes that employers seeking to have an arbitrator decide whether a case goes to private arbitration must have “clearly and unmistakably” agreed to delegate that responsibility to the arbitrator.
In Costa, after being charged for several years for a membership he no longer used, the plaintiff sought relief based on California’s Automatic Renewal Law and joined a class action against Road Runner Sports. Road Runner argued that by joining the class action, the plaintiff had impliedly learned about — and implicitly agreed to — the arbitration provision through his attorneys. The Fourth District Court of Appeal disagreed, and has now made clear that attorneys’ knowledge of an arbitration provision cannot be imputed to their client.
In Beco, the Court of Appeal reinforced the heightened standards for delegating the validity of arbitration agreements to an arbitrator — particularly in employment contracts, where workers are often required to consent to arbitration or lose out on a job. First, the court explained that employers seeking to compel arbitration with their employees must meet a heightened standard: the parties must have “clearly and unmistakably” agreed to delegate the responsibility to the arbitrator. Here, the agreement’s language was too ambiguous and imprecise to meet that burden. Next, the court determined that the particular terms of the agreement were so one-sided as to be unconscionable. The arbitration provision required the employee to pay for arbitration after one day, his time to bring a claim was reduced from the statutory one year to three months, he was not guaranteed any discovery, and he could not recover attorneys’ fees. Those provisions were so unfair to the employee that the court held the entire arbitration agreement could not be enforced.
Welcome Back, and Farewell, Eliza Duggan!
It is with broad smiles that we welcomed back staff attorney Eliza Duggan (and new family addition and Center volunteer Ryan) in September. And it is with heavy heart that we bade her goodbye at the end of December.
Eliza’s gifts to the Center (and to the field) in her two years as our initial staff attorney were legion, ranging from organizing the first-ever Conference on Consumer Protection Law and Coerced Debt, to advancing the cause of justice with the NAME Coalition, to founding and running the Published Justice Project with such aplomb and such success. Nobody bats over .500 – unless it’s Eliza approaching courts to ask them to reverse their (presumably carefully considered) decision not to publish an appellate opinion. And that extends to Eliza’s work on amicus briefs, more than one of which tracked awfully closely with the approach the relevant court ultimately took in deciding the case. The colleague who recently praised Eliza’s “great work” in drafting the Center’s brief in Pulliam v. HNL Automotive, which helped preserve the FTC Holder Rule, is representative of those who have worked with Eliza since 2020. And that’s not to mention her role as the Center’s Chief DJ and Sound Engineer for every online conference (and there were many) during the pandemic….
Like all of those who have had the privilege to work with Eliza, we have been deeply impressed by her unflappability, her smarts, her master-planning, her gameness, and her skill. Thank you, enormously, Eliza, for all you’ve done these past two years for the Center, and for economic justice.
Cy Pres as You Can Get!
A shout-out of gratitude to Sophia Gold of KalielGold for suggesting the Center as recipient of residual funds from a case involving a financial institution’s allegedly unlawful overdraft fees.
The most important place for money illicitly taken from consumers to go in a class action is back into the hands of those consumers. But if the consumers can’t be found, often the next best thing is to direct the funds to a nonprofit institution that works toward the same end as the lawsuit itself.
The Center ain’t a bad place to consider, in that regard. The Old French phrase cy pres comme possible, or “as close as possible,” governs the disbursement of any such funds. As the stories in this newsletter may suggest, the aim of the Center is often quite closely aligned with the work of private consumer protection class actions.
So, you know, keep us in mind.
