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Consumer Banking and Payments Law: 5.17.6.2a.1 The factual background of Ramirez

In 2021, the Supreme Court issued a second major decision—TransUnion L.L.C. v. Ramirez1623—about the application of Article III to claims under federal consumer protection laws. The case arose when TransUnion, one of the “Big Three” nationwide consumer reporting agencies, issued a report identifying a car buyer, Sergio Ramirez, as a potential terrorist.

Consumer Banking and Payments Law: 5.17.6.2b.3 The role of Congress

Spokeo holds that “the judgment of Congress” plays an “important role[]” in determining whether an intangible injury is concrete.1649 However, the majority opinion in Ramirez states that “Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suf

Consumer Arbitration Agreements: 8.6.4 Opt-Out Provisions

A number of businesses have adopted an ostensible “opt out” strategy to take advantage of the common statement that both procedural and substantive unconscionability must be proven to establish that a contract term is unconscionable and unenforceable. Under this strategy, businesses offer consumers a limited opportunity to opt out of an arbitration clause, and then argue that this opt-out option means that the contract is not a take-it-or-leave-it contract of adhesion,155 and is therefore not procedurally unconscionable.

Consumer Arbitration Agreements: 8.7.3.1 Introduction

Section § 8.7.2, supra, examines the impact of arbitration fees and other costs on the enforceability of an arbitration agreement. This subsection looks at arbitration agreements that require that the losing party in an arbitration pay the other party’s attorney fees. The prevailing rule in the United States in litigation is that each party pay their own attorney fees.

Consumer Arbitration Agreements: 8.7.4.1 Introduction

Arbitration clauses are often not mutual: the consumer must arbitrate claims, but the lender or merchant can resort to judicial or non-judicial remedies, or has the option of doing so. Such clauses can be challenged under two very different theories.

Consumer Arbitration Agreements: 8.7.5 Waiver of Substantive Rights Under Law

Arbitration provides an alternative forum to resolve the parties’ legal rights. It should not limit those legal rights. Stripping away rights to enforce federal statutes clearly prevents vindication of those rights, as does stripping away rights under state law, and both should be found unconscionable.272 Perhaps the most extreme example of such an arbitration clause is one that waives the consumer’s rights under both state and federal law, leaving only tribal law.

Consumer Arbitration Agreements: 8.7.6.3 Limitation on Statutory Attorney Fees

An essential element of many federal consumer statutes is a provision requiring courts to award attorney fees to a prevailing consumer (but not to a prevailing creditor), making it far more practical to raise claims under these statutes for small consumer damages.296 Arbitration agreements requiring each party to bear their own attorney fees and costs, regardless of which party prevails, fundamentally conflict with the congressional intent underlying these statutes.

Consumer Arbitration Agreements: 8.7.6.4 Limitation on Injunctive and Equitable Relief

When an arbitration clause or the rules of an arbitration service provider rule out injunctive relief as a consumer remedy, then an action seeking injunctive relief under federal law cannot be forced into arbitration as a matter of federal law.304 As a matter of state law, an arbitration clause that restricts a consumer’s ability to seek injunctive or other equitable relief can be found to be unconscionable, particularly when the right to that relief is explicitly granted by state statute.305 Wh

Consumer Arbitration Agreements: 8.7.6.5 Shortened Statute of Limitations

Some arbitration agreements or the rules of certain arbitration service providers require that the consumer’s claim be brought to arbitration within a set period of time, or the claim is forfeited. This period of time may be substantially shorter than the applicable limitations period for bringing the action in court. A number of federal courts have held that such a limitation is unconscionable as a matter of state law or inconsistent with the federal statutes setting out a different statute of limitations.307

Consumer Arbitration Agreements: 8.7.10.1 Introduction

Arbitration agreements may mandate confidentiality as to the arbitration proceeding and award,421 and other agreements reference arbitral rules that require confidentiality,422 including the AAA and JAMS rules.423 AAA’s Employment Arbitration Rules and Mediation Procedures state: “The arbitrator shall maintain the confidentiality of the arbitration and shall have the authority to make appropriate rulings to safeguard that confidentiality, unless th

Consumer Arbitration Agreements: 8.7.11 Excessive Limitations on Discovery

Arbitration agreements or the rules of an arbitration service provider may restrict the discovery available to the consumer, which raises the question whether such limits are unconscionable or prevent the effective vindication of federal statutory rights. Courts reach differing conclusions, in part based on the extent to which discovery is limited. A number of courts have struck down such limits as excessive,445 while other courts have not.446

Consumer Credit Regulation: 13.1 Introduction

This chapter addresses the use of a lease with a purchase option as a way of financing the purchase of consumer goods. It focuses on the use of such leases as a fringe lending product.

This chapter does not address mainstream motor vehicle leasing, which is addressed primarily in other books in this series.1 Nor does it address short-term rentals of consumer goods—transactions in which the customer seeks only temporary use of an item such as home equipment or a daily rental car.

Consumer Credit Regulation: 13.2.1 Which Is It: A Short-Term, Renewable Lease or a Long-Term Lease with an Option to Buy?

In a credit sale, ownership of the goods is transferred to the buyer at the beginning of a transaction, but the creditor retains a security interest in the property to secure payment of the purchase price plus the finance charge. By contrast, the transactions addressed in this chapter are lease transactions where the consumer is given the ability to purchase the leased goods. The customer obtains legal title to the goods only after successful completion of all the terms of the contract to establish ownership.

Consumer Credit Regulation: 13.3.1 The Nature of RTO Transactions

The RTO industry aims its marketing efforts at low-income consumers by advertising in minority media, on buses, and in public housing projects.10 Its advertisements stress features of RTO transactions that will be attractive to low-income consumers: quick delivery, weekly payments, no or small down payments, quick repair service, no credit checks, and no harm to one’s credit rating if the transaction is canceled.

Consumer Credit Regulation: 13.3.2 Evolution of the RTO Industry

As of the middle of 2017, the Association of Progressive Rental Organizations (APRO), the RTO trade association, reported that RTO is an $8.2 billion a year industry in the United States, serving about four million customers.17 Thus, the average RTO customer is spending about $2,050 per year or $170.83 a month on RTO merchandise. The industry is dominated by large national companies.18