In October, I posted about the Fifth Circuit’s curious grant of rehearing en banc in a challenge to the Department of Transportation’s 2024 Rule requiring airlines to disclose ancillary fees. The panel had left a stay of the rule in place, directing the agency to address certain notice and comment issues on remand–but at the […]
Yesterday, the California Supreme Court issued a decision in Fuentes v. Empire Nissan, in which it addressed how the “tiny and unreadable print” in which a contract (here, an arbitration agreement) is printed plays into a court’s unconscionability analysis. The court held “that a contract’s format generally is irrelevant to the substantive unconscionability analysis, which […]
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President Trump is no friend of consumer arbitration. As longtime readers of the blog know, during his first term, Trump signed the Congressional Review Act resolution blocking the CFPB’s arbitration rule from going into effect. So it is intriguing to see Trump sue JPMorgan Chase over the bank’s debanking him when his contract with the […]
Myriam E. Gilles, now of Northwestern, has written Arbitration In Name Only. Here’s the abstract: Modern arbitration clauses hide a dirty secret: many aren’t arbitration at all. They masquerade as mutual commitments to fair and efficient private dispute resolution but, in truth, are mere imitations of genuine arbitration provisions. Some reserve for the drafter the power […]
Here (behind paywall but you get one article for free, and it should also turn up on Lexis soon). Excerpt: We are angry because government officials have shot an American without justification. We are angry because Americans of color have been profiled. * * * We are angry because creating fear seems itself to be […]
Here in a Maryland Daily Record editorial (behind a paywall but available on Lexis). Here’s an excerpt (disclosure: I am on the editorial board): Some consumers, enticed by BNPL, become overcommitted and can’t meet their financial obligations. You might think BNPL providers would suffer when consumers are in that situation, but the BNPL companies have […]
There are many decisions addressing whether website interactions constitute a valid and binding contract–frequently, one to arbitrate. Under California law, “scrollwrap” or “clickwrap” offers, which require a user to affirmatively agree to terms and conditions after being presented with them, are are generally held to create enforceable contracts. On the other hand, “browsewrap” offers, where […]
Mark Elliott Budnitz of Georgia State has written Big Tech and Consumer Payments: The Good, the Bad, and the Unintended Consequences, 37 Loy. Consumer L. Rev. 116 (2025). Here’s the abstract: “Each stage of the American banking industry history demonstrates the interlinkage of finance and technology…” Our era is no exception. The financial services industry […]