June 22, 2022
Friends:
Here is a look at what the Center has been up to this past semester. It’s been a busy one.
As always, please let us know if — and how — you would like to get involved in the fun.
-Ted Mermin
Celebrating the Consumer Law Class of '22
The Center gathered students, family, friends, and professors at the end of April to celebrate our graduating 3Ls and to recognize this year’s recipients of the Certificate in Consumer Law & Economic Justice. It is an impressive bunch! Many memories were shared and many toasts were made. Congratulations to the Class of ‘22!
Faculty Shoutouts
The American Constitution Society has awarded its inaugural Ruth Bader Ginsburg Award to none other than Berkeley’s own Abbye Atkinson. The award recognizes "an outstanding scholar in the early stages of their academic career who has demonstrated those qualities exemplified by Justice Ginsburg: scholarly excellence, the ability to imagine how society might be more just and more equal, and the determination to use the law and one’s scholarship to creatively and strategically make the imagined real," which is a pretty good way to sum up the enormous impact and tremendous promise of Professor Atkinson’s work.
Prasad Krishnamurthy was selected to serve on the first Debt Collection Advisory Board at California’s new Department of Financial Protection and Innovation. We strongly suspect that Professor K’s insights have already had an impact on the Department, given the effect of his commentary and analysis on debt-related legislation over the past half decade.Getting the Memo: Center Sends 15 Issue Briefs to the Consumer Financial Protection Bureau
Realizing that the new director of the Consumer Financial Protection Bureau might welcome academic input on current challenges facing consumers in the financial marketplace, Faculty Director Jonathan Glater organized and inspired more than a dozen of his colleagues from around the country to generate and promulgate memoranda to the CFPB on a wide array of pressing subjects. The topics of the memos ranged from algorithmic discrimination to regulating the “buy now, pay later” market to investigating overdraft protections. You can read the memos hereConsumer Law Scholars Conference (in Boston!)
We were thrilled to be able to gather (mostly) in person again for the Fourth Annual Consumer Law Scholars Conference on March 3-4. This year’s convening felt especially novel because we were on the other coast. Boston University School of Law graciously welcomed nearly 100 in-person and virtual attendees over the course of two days for a total of eighteen workshops. The cutting-edge papers touched on topics as varied as discrimination in retail and lending, the regulation of contaminated foods, price gouging during the pandemic, and the potential benefits of public banking. We were joined by keynote speakers Shennan Kavanagh (Chief of the MA Attorney General’s Consumer Protection Division) and Seth Frotman (General Counsel at the Consumer Financial Protection Bureau).
Here is what participants had to say about this year’s gathering:
- “The topics/papers were fabulous.”
- “I learned a lot, met wonderful people, had lots of fun – tremendous time.”
- “Bravo. My favorite conference ever!”
Many thanks are owed to conference organizers Kathleen Engel, Manisha Padi, Lauren Willis, and especially our Boston host Rory Van Loo; the BU events and media staff; the authors and discussants; the speakers; and everyone else who participated and made this conference such a success.
Next year we will be back in Berkeley: March 2-3, 2023!
Spring Classes!
This spring the Center supported seven (7!) consumer law & economic justice courses:
- The first-ever Consumer Law & Economic Justice Workshop, taught by the remarkable Abbye Atkinson (feat. Ted Mermin), enrolled almost 50 students to discuss scholarly papers in law and sociology (and maybe even an appellate brief or two). The topics ranged from sovereign immunity and student loans, to greenwashing and the First Amendment, to neighborhood impacts of legal financial obligations, to credit reporting and Section 230.
- The redoubtable Erika Heath offered Credit Reporting & Economic Justice for the first time, to rave reviews.
- The marvelous Marice Ashe brought back Public Health Law (with a cavalcade of guest stars from within and outside the law school) for another hit run.
- The proceleusmatic Michael Bracamontes (‘05) debuted Housing Litigation & Policy, to great acclaim.
- Professor Atkinson reprised her enormously successful seminar on Debt, Discrimination & Inequality
- Professor Shauhin Talesh of UC Irvine (JSP 2009) returned to the scene of his doctoral education to introduce Insurance, Regulation & Inequality as this year’s specifically-requested-by-students visiting professor of Insurance Law; and
- The incomparable Suzanne Martindale (‘10) starred in Student Loan Law in its fourth season.
Events
This spring, the Center hosted an exciting array of events:
Fintech Regulation with the DFPI
In conjunction with the Consumer Advocacy & Protection Society (CAPS), in early February the Center hosted Christina Tetreault, Deputy Commissioner of the Office of Financial Technology & Innovation at the California DFPI for an overview of fintech.To continue the conversation, in March we were joined by Adam Wright, Senior Counsel at the DFPI’s Office of Financial Technology & Innovation, for a discussion focused on lending, fintech, and government enforcement.
Meet the Consumer Law Profs
On February 14, we were joined by the Center’s Faculty Director (Professor Jonathan Glater) and Faculty Advisors (Professors Abhay Aneja, Abbye Atkinson, Chris Hoofnagle, Prasad Krishnamurthy, & Manisha Padi) for a “Meet the Consumer Law Profs” event. Students had the chance to learn more about the professors’ backgrounds and current scholarship – as well as current research assistant opportunities.
Evening of Consumer Law Research
Later in February, the Center hosted its annual Evening of Consumer Law Research. Guests sipped wine and enjoyed fine cheeses … and engaged in conversation with last fall’s cohort of Consumer Protection Law students about the research projects the class had undertaken.
Coerced Debt: How Abusers Use Debt as a Tool of Control
On March 14, a star-studded panel of experts joined us virtually to provide an introduction to “coerced debt” – financial obligations incurred in a survivor’s name in the context of an abusive relationship. Presenters included Angela Littwin (professor at the University of Texas, who coined the term “coerced debt”), Erika Sussman (executive director of the Center for Survivor Agency and Justice), Carla Sanchez-Adams (staff attorney at the National Consumer Law Center), and Sabrina Hamm (director of state policy and advocacy at FreeFrom). The panel was moderated (and the event was planned) by our own Eliza Duggan.
Be Brave
In April, Danica Rodarmel ‘17 stopped by virtually for an event titled “Be Brave: Following Your Own Path After Graduation.” Danica discussed her post-law-school trajectory — from law school, to creating the nation’s first consumer protection bail clinic, to the recent opening of her own policy advocacy shop in Sacramento — and took questions from students eager to find work that matches their values and their passion.
Alumni/Friends/Students Mixer
On a warm, summer-esque evening in April, the Center welcomed alums, students, and friends to the Steinhart Courtyard on campus for food, drink, and conversation. It was a terrific chance to see colleagues new and old. And it reminded us how good it is to be able to see each other in person. (Watch this space for future gatherings.)
Access to Health Care for Trans People
Professor Shauhin Talesh of UC Irvine (who by student-initiated request taught a course on Insurance, Regulation & Inequality at Berkeley Law this semester) joined us virtually for a discussion of his paper, “Health Insurance Rights and Access to Health Care for Trans People: The Social Construction of Medical Necessity.” A graduate of the very first class in Consumer Protection Law at the law school, Professor Talesh is now a much-respected, broad-ranging scholar in the field.
C3PO Projects
Developing Tenants’ Rights Materials
Earlier this year, a hardy troupe of students from the Consumer Protection Public Policy Order (C3PO) developed and distributed to legal aid offices around the state a set of educational materials to inform tenants of their rights during the pandemic regarding eviction moratoria and emergency relief funds.
Proposing Ways the DFPI Can Protect Borrowers with Income-Share Agreements
The C3PO students once again teamed up with the Student Borrower Protection Center — this time to offer suggestions to the Department of Financial Protection and Innovation (DFPI) on addressing income-share agreements (ISAs).
ISAs are growing in popularity, and contributing to the student debt crisis. These products, which require students to “repay” a percentage of their future income instead of a fixed amount, are offered as an alternative to student loans. Providers have argued that ISAs are not loans, and therefore are exempt from many regulations.
In a memo to the DFPI, the C3PO students disagreed, pointing out that state and federal regulators have recently concluded that ISAs are in fact loans. The memo analyzes the potential risks and harms that ISAs create for student borrowers and proposes action that the DFPI and the California legislature can take to support effective ISA regulation.
Read the memo here
Investigating Credit Reporting Issues Facing Transgender Consumers
C3PO students this semester also drafted a report on the myriad problems that transgender and nonbinary consumers face with their credit reports after a legal name change. While the credit reporting agencies’ systems are structured to accommodate last-name changes (which occur frequently after marriage, divorce, or adoption), they are much less well equipped to handle first-name changes. Many trans and nonbinary consumers find their credit reports split into two — one with their legal name and one with their deadname — leading to erased credit history, lowered credit scores, or even an inability to access any of their credit files. As a result, these consumers may find that they cannot pass credit checks for housing, employment, or loan applications.
The Center has worked with a coalition of organizations that have been advocating for reforms to help remedy some of these problems. A letter to the Big 3 credit reporting agencies that the Center helped organize featured over 100 co-signers.
The report that the C3PO students drafted will help further these advocacy efforts. To date, few research papers have addressed this topic.
Once again, the students of C3PO are contributing to important, timely advocacy projects that will help to improve the financial lives of the most vulnerable consumers.
More Newly Published Cases
The Published Justice Project is going strong. Recently, the Center successfully requested publication of an important decision upholding government agencies’ authority to investigate debt collectors and other potential wrongdoers, as well as two opinions involving arbitration agreements in residential care facilities for the elderly.
In April, the Center sought, and the court of appeal granted, publication in People v. Alorica, a rare case analyzing the investigative subpoena powers of public enforcement agencies. Several district attorneys’ offices had served Alorica, a debt collector, with a subpoena – to which Alorica objected – based on allegations of violations of the Rosenthal Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. The court rejected Alorica's argument that it should not have to comply because (it claimed) it was not a debt collector, holding that the DA did not have to take Alorica's word for it. The Court also disagreed with Alorica that its dealings with a national bank should shield it from compliance based on the National Bank Act. Publication of this opinion will help bolster future public enforcement efforts that are critical to protecting those who cannot pursue remedies on their own.
In Theresa D. v. MBK Senior Living, the court of appeal held that a senior in a residential care facility for the elderly (RCFE) is not bound by an arbitration agreement signed by a family member who was not legally authorized to enter such an agreement on her behalf. The court held that even if the plaintiff’s daughter had the authority to place her mother in the care facility, she had no power of attorney or other legal authority to sign the arbitration agreement in her mother’s stead. The opinion clarifies that, at least in these circumstances, authority to enter into binding arbitration agreements on another’s behalf must be explicit.
In Rogers v. Roseville SH, the court of appeal held that RCFE administrators should not assume that residents entering their care have given their family members authority to speak for them — or that they cannot speak for themselves. When Mr. Rogers was admitted to an RCFE, he was accompanied by his son. Mr. Rogers had mild cognitive impairments, but was able to read, understand, and sign documents. Nonetheless, the facility administrator had Mr. Rogers’ son sign the admission documents and an arbitration agreement. The court held that agreement did not bind Mr. Rogers. Like Theresa D., this now-published decision will help to protect seniors’ rights at a time when more and more people rely on residential facilities for care.
Center and Partners Work to Keep Adverse Information Off Consumer Reports of Survivors of Human Trafficking
Alongside a coalition of prominent anti-trafficking organizations, the Center helped to author a comment to the CFPB urging the Bureau to keep information related to human trafficking off survivors’ credit reports. The coalition’s comments generally agree with the CFPB’s proposed rule, while advocating for a number of improvements to make the process as smooth as possible for survivors of trafficking. The comments also advocate that the Bureau use its authority under FCRA to address coerced debt more broadly — including for survivors of domestic violence and elder abuse, and for foster youth.
The comment illustrates the Center’s core commitment to using well-established tools of consumer protection, like the FCRA, to provide protection and relief in areas – like human trafficking – where consumer laws have not previously been applied.
Victory in the California Supreme Court: Pulliam v. HNL Automotive
In a case of national importance, the California Supreme Court has decided that consumers are entitled to recover attorneys' fees (in addition to any money they may have lost) in cases brought against deceitful lenders under the FTC Holder Rule.
The Holder Rule allows consumers to bring claims and defenses against holders of their credit contracts (for example, auto finance companies), but limits consumers’ “recovery” to the amount paid under the contract. However, the question whether attorneys’ fees can also be recovered under the rule has been muddied by years of dueling appellate decisions, agency guidance, and even intervention by the legislature, so the California Supreme Court decided to step in.
The Center’s brief in the case argued that the text and history of the FTC’s original rule provide the (affirmative) answer, and that there was therefore no need for extensive preemption analysis. The brief further points out that markets and consumer expectations have evolved based on the availability of attorneys’ fees, and that the ability to obtain fees is a critical factor in determining whether defrauded consumers will be able to find any redress at all.
The Court concurred