LSN: Enforcement of Consumer Laws (Topic)最新文献

{"title":"Redesigning Widespread Insurance Coverage Disputes: A Case Study of the British and American Approaches to Pandemic Business Interruption Coverage","authors":"D. Schwarcz","doi":"10.2139/ssrn.3930299","DOIUrl":"https://doi.org/10.2139/ssrn.3930299","url":null,"abstract":"In the 18 months since the pandemic’s onset in March 2020, businesses have filed approximately 2,000 different lawsuits in state and federal courts seeking insurance coverage under their business interruption policies. Notwithstanding this “nationwide flood of insurance-related litigation,” clear answers regarding insurers’ coverage obligations remain elusive: although courts have dismissed many of these cases, policyholders have scored a meaningful number of victories in federal, and especially state, courts. The United States’ chaotic and costly process for resolving pandemic-related business interruption coverage disputes contrasts sharply with the experience of the United Kingdom. Within eight months of the pandemic’s onset, the legal obligations of British business interruption insurers had been definitively resolved through a novel “test case scheme” led by the country’s primary market conduct regulator for financial firms, the Financial Conduct Authority (FCA). Focusing on these divergent experiences, this Article suggests that the U.S. can substantially improve its process for resolving future widespread insurance coverage disputes by adopting a limited reform that is inspired by the British test case scheme. In particular, the Article proposes that states should consider empowering their insurance department and attorney general to request that federal courts adjudicating cases raising novel coverage questions implicated in emerging and widespread coverage disputes certify those questions to the state’s supreme court.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114866959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rent-a-Bank: Bank Partnerships and the Evasion of Usury Laws","authors":"Adam J. Levitin","doi":"10.2139/ssrn.3684244","DOIUrl":"https://doi.org/10.2139/ssrn.3684244","url":null,"abstract":"“Rent-a-bank” arrangements are the vehicle of choice for subprime lenders seeking to avoid state usury, licensure, and other consumer protection laws. In a rent-a-bank arrangement, a non-bank lender contracts with a bank to make loans per its specifications and then buys the loans from the bank. The non-bank lender then claims to shelter in the bank’s federal statutory exemptions from state regulation. The validity of such arrangements has been the most bitterly contested — and still unresolved — legal question in consumer finance for nearly two decades. \u0000 \u0000The rent-a-bank phenomenon is a function of a binary, entity-based regulatory approach that treats banks differently than non-banks and that treats bank safety-and-soundness regulation as a substitute for usury laws. The entity-based regulatory system is based on the dated assumption that transactions align with entities, such that a single entity will perform an entire transaction. Consumer lending, however, has become “dis-aggregated,” such that the discrete parts of lending — marketing, underwriting, funding, servicing, and holding of risk — are frequently split up among multiple, unaffiliated entities. \u0000 \u0000The binary, entity-based regulatory system is a mismatch for such dis-aggregated transactions involving a mosaic of entities, some bank and some non-bank. The mismatch facilitates regulatory arbitrage of usury laws through rent-a-bank arrangements, as non-banks claim favorable regulatory treatment by virtue of the marginal involvement of a bank in a transaction. \u0000 \u0000The vitality of rent-a-bank arrangements depends on legal doctrine. This Article shows that the so-called “valid-when-made” doctrine used to support rent-a-bank arrangements, is not, as claimed, a well-established, centuries old, “cardinal rule” of banking law. It is a modern fabrication, entirely unknown historically. The doctrine is not valid, but made up. Because the doctrine never existed historically, it cannot be essential for the smooth functioning of credit markets. The better approach to dis-aggregated transactions is a presumption that bank regulation does not extend beyond banks, coupled with an anti-evasion principle that looks to substance over form. Such an approach would create greater certainty about the legality of transactions, while effectuating both state consumer protection laws and federal bank regulation policy.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132749228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Commercial Arbitration in India","authors":"Kamshad Mohsin","doi":"10.2139/ssrn.3552146","DOIUrl":"https://doi.org/10.2139/ssrn.3552146","url":null,"abstract":"The Indian arbitral regime has witnessed its share of ups and downs with the constantly over-looming air of criticism, scrutiny and widely expressed aversion towards the mechanism for resolving ICAs. In the past, there have innumerable circumstances when international parties have been victims of the excessive intervention of the court and the enormous delay in reaching a conclusive determination of their disputes through arbitration. Such arbitrations in the past were marred with the procedural and substantive lacunas present at every step on the way in the 1996 Act.<br><br>Due to such experiences, the arbitral regime in India seemed more and more unattractive with most of such international commercial disputes being centered outside India only to avoid all the hurdles and barriers that 1996 presented. This can be corroborated from the Annual Report released by the Singapore International Arbitration Centre (hereinafter referred to as “SIAC”), which shows that the highest number of filings came from parties with Indian nationality with a total of 91 cases filed. This shows that India was not a preferred destination to carry out arbitration due to the shortcomings of the 1996 Act.<br><br>In light of these prevailing facts and circumstances coupled with the new policy regime concentrating on foreign trade and investment, it became imperative that an amendment is brought about to cure all the deficiencies that were prevalent in the arbitral regime in India regulated by the 1996 Act. It was with this in light that several changes were introduced through the 2015 Act, which has changed the entire landscape of ICAs and its conduct under the Indian arbitral regime.<br><br>This paper takes strides towards highlighting the amendments and their impact on ICA with seat in India. The amendments will be analyzed through an in-depth study into the legislative idea behind each of them along with their present-day scope and applicability. Since this paper will be delving into aspects of ICA with seat in India, it will be provisions of Part I of the 2015 Act that will be scrutinized.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121523582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Saudi Arabian E-commerce Law. A Step towards Consumer Protection","authors":"Asif Iqbal","doi":"10.2139/ssrn.3450302","DOIUrl":"https://doi.org/10.2139/ssrn.3450302","url":null,"abstract":"Consumer protection is a widely debated issue in the E-Commerce and this is because the practical issues consumer face in online transactions are different from offline transactions. The remote interaction between a buyer and seller is based on the trust, and a consumer dealing with cross-border seller is always prone to risk of fraud and/or misleading conduct. The delivery of accurate product in accordance with agreed specifications as advertised on E-Commerce platform, the security of financial transactions, and the ease to return defective products are some of the challenges in E-Commerce from consumer perspective. The dynamics of pre-purchase and post-purchase issues in E-Commerce could be challenging for consumers in the absence of a clear and reliable policy and legal framework. \u0000 \u0000With the changes in mechanics of business transactions also comes a wider challenge to the legal system. E-Commerce requires a lex-specialis to cope with the challenges. The law should not only protect the consumer but also increase the level of certainty for sellers in terms of rights, liabilities and obligations. \u0000 \u0000In order to regulate the E-Commerce, Saudi Arabia has taken a significant step by issuing an E-Commerce law that will regulate the E-Commerce in Saudi Arabia.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133952849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Enforcement as a Deterrence Tool: A Blind Spot in the Omnibus-directive","authors":"Charlotte Pavillon","doi":"10.2139/SSRN.3418907","DOIUrl":"https://doi.org/10.2139/SSRN.3418907","url":null,"abstract":"The Directive on better enforcement and modernization of EU consumer protection rules or Omnibus-directive does not acknowledge the deterrence function of private enforcement of EU consumer law. The article demonstrates that the balancing of the principles of effectiveness, proportionality and dissuasiveness requires more attention when it comes to ‘civil remedies’. Indeed, the Court of Justice of the European Union (CJEU) has in recent years put a clear emphasis on the deterrence function of the nonbinding effect of unfair contract terms, a civil sanction imposed by civil courts. These courts, however, are struggling with the implications of this function. They are actively searching for direction by referring new preliminary questions to the CJEU. Empirical research conducted in the Netherlands shows that Dutch district courts largely recognize their role as enforcer of EU consumer law. It also reveals that these courts consider the proportionality and the dissuasiveness of the sanction to be at odds when the gap left after the removal of an unfair contract term is not filled with national law.\u0000European consumer law, sanctions, civil law, unfair contract terms, civil courts","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130623872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Evolution and Consolidation of External Dispute Resolution Schemes in the Financial Sector: From the Banking Ombudsman to the Australian Financial Complaints Authority","authors":"I. Ramsay, M. Webster","doi":"10.2139/ssrn.3490354","DOIUrl":"https://doi.org/10.2139/ssrn.3490354","url":null,"abstract":"The Australian Banking Industry Ombudsman (‘ABIO’) was the first external dispute resolution (‘EDR’) scheme set up and funded by industry members at a national level in Australia. It came into operation in 1990. The ABIO was a significant first step in the development of EDR schemes to resolve disputes between financial service providers and consumers. At one stage there were seven different industry-funded EDR schemes in existence in the financial sector. However, the existence of multiple schemes proved to be problematic. Several of the EDR schemes merged in 2008 to create the Financial Ombudsman Service (‘FOS’), and in November 2018, FOS, the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal were replaced by a single body, the Australian Financial Complaints Authority. This article examines the establishment of the ABIO, outlines the expansion of industry-established EDR schemes operating in the financial sector, and then considers the arguments for the consolidation of the schemes.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127933751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Evidence-Based Approach to Class Action Reform in Australia: Common Fund Orders, Funding Fees and Reimbursement Payments","authors":"V. Morabito","doi":"10.2139/SSRN.3326303","DOIUrl":"https://doi.org/10.2139/SSRN.3326303","url":null,"abstract":"The public release of the ALRC’s final report on class actions and litigation in late January 2019 was accompanied by the announcement by the Federal Attorney-General that, over the next two months or so, he will seek the views of stakeholders with respect to the 24 recommendations contained in this report. It is, of course, important that these consultations and assessments of the ALRC’s recommendations be based on an accurate understanding of the actual, as opposed to perceived, operation of Australia’s class action regimes. \u0000 \u0000One of the two aims of this third report - in the An Evidence-Based Approach to Class Action Reform in Australia series - is to secure this desirable scenario with respect to two of the most controversial aspects of Australian class actions: (a) the percentages of class action settlements that are paid to commercial litigation funders with respect to their commissions or funding fees; and (b) the impact that the ground-breaking common fund doctrine enunciated by the Full Federal Court in October 2016 has had on the remuneration received by funders in successful class actions. \u0000 \u0000The other purpose of this report is to provide data with respect to what are rapidly becoming common features of class action settlement agreements: what are generally-referred to as reimbursement payments to lead plaintiffs and occasionally to sub-group representatives and active/sample class members.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114145813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The EU’s Competition Investigation into Amazon’s Marketplace","authors":"Thomas Hoppner, Philipp Westerhoff","doi":"10.2139/ssrn.3495203","DOIUrl":"https://doi.org/10.2139/ssrn.3495203","url":null,"abstract":"In September 2018, the European Commission sent out formal requests for information to investigate allegations of an anticompetitive conduct by Amazon. The investigation relates to the interdependencies between Amazon’s third-party sales platform for retailers (“Amazon Marketplace”) and Amazon’s own online retail operations. Operating both on an upstream intermediation market for businesses (“merchants”) and downstream retail markets vis-a-vis its end customers (“shoppers”) has created a strong conflict of interest for Amazon. This article outlines the background to the EC’s investigation and the current focus and likely theories of harm regarding Amazon’s conduct involved in the investigation.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116730866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ICLE Comments, Whether the U.S. Economy Has Become More Concentrated and Less Competitive","authors":"Dirk Auer, J. Hurwitz, Geoffrey A. Manne, Julian Morris, Kristian Stout","doi":"10.2139/ssrn.3384400","DOIUrl":"https://doi.org/10.2139/ssrn.3384400","url":null,"abstract":"These comments were submitted to the FTC as part of its hearings on “Competition and Consumer Protection in the 21st Century.” In these comments, we note three high level points: (1) Antitrust policy must avoid the simplistic inference of competitive effects from market structure; (2) HHIs are insufficient to guide decisions regarding the likely competitive effects of mergers; and (3) that simplistic inferences of competitive effects based on theoretical or econometric evidence from other industries are inappropriate and unpersuasive.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121743306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arbitration Nation: Data from Four Providers","authors":"A. Chandrasekher, David M. Horton","doi":"10.15779/Z384F1MJ54","DOIUrl":"https://doi.org/10.15779/Z384F1MJ54","url":null,"abstract":"Forced arbitration has long been controversial. In the 1980s, the Supreme Court expanded the Federal Arbitration Act (FAA), sparking debate about whether private dispute resolution is an elegant alternative to litigation or a rigged system that favors repeat-playing corporations. Recently, these issues have resurfaced, as the Court has decided a rash of cases mandating that lower courts enforce class arbitration waivers in almost all circumstances. Critics argue that abolishing the class action insulates companies from wrongdoing, but businesses have predicted that pro se plaintiffs will flood the arbitral forum with their own low-value claims. The Obama administration responded to the Court’s FAA jurisprudence by regulating arbitration clauses in the employment, financial services, and healthcare fields. However, after the balance of power shifted in 2017, Republicans have repealed many of these rules. \u0000 \u0000Despite this policymaking frenzy, we know little about what happens inside the confidential world of arbitration. This Article sharpens our understanding of this pervasive and polarizing institution by reporting the results of an empirical study of 40,775 cases filed in four major arbitration providers between 2010 and 2016. It highlights three main points. First, a wave of reforms has made arbitration surprisingly affordable for consumers, employees, and medical patients. Indeed, in leading arbitration providers such as the American Arbitration Association, JAMS, and the Kaiser Office of the Independent Administrator, a majority of plaintiffs pay no arbitration fees. Second, enterprising plaintiffs’ lawyers — not pro se litigants — have taken advantage of arbitration’s open doors. In fact, some attorneys have filed class action-style cases, bringing dozens or even hundreds of related arbitrations against the same company. Third, although arbitration does indeed favor repeat playing businesses, that is just half of the repeat player story. Repeat playing plaintiff’s law firms also fare well. In fact, in a variety of settings, no variable affects win rates as dramatically as whether a plaintiff hires attorneys with arbitration experience. \u0000 \u0000The Article then uses these findings to propose reform. For decades, state lawmakers have tried to protect substantive rights by exempting claims from arbitration. Yet because the FAA prohibits state law from discriminating against arbitration, these efforts have failed. Accordingly, this Article urges policymakers to reverse course and create incentives for plaintiffs’ lawyers to arbitrate. Specifically, jurisdictions should create an “arbitration multiplier”: a bounty for winning a case in arbitration. By encouraging skilled plaintiffs’ lawyers to capitalize on arbitration’s accessibility, this approach would counteract the corporate repeat player advantage. In addition, because the multiplier actually encourages arbitration, it would not be preempted.","PeriodicalId":246136,"journal":{"name":"LSN: Enforcement of Consumer Laws (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130065371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}