Consumers turn tables against corporate defense in compelled arbitration of information privacy claims

Image via www.vpnsrus.com by Mike MacKenzie CC BY 2.0

Consumer plaintiffs turned the usual tables on corporate defense in the fall when a federal court in Illinois ordered Samsung Electronics to pay millions of dollars in arbitration fees in a biometric privacy case.

In the underlying arbitration demand, 50,000 users of Samsung mobile devices accuse the company of violating the Illinois Biometric Information Privacy Act (BIPA). BIPA is a tough state privacy law that has made trans-Atlantic waves as it fills the gap of Congress's refusal to regulate the American Wild West of consumer privacy.

Typically of American service providers, Samsung endeavored to protect itself from tort liability through terms and conditions that divert claims from the courts to arbitration. The (private) U.S. Chamber of Commerce champions the strategy. Arbitration is reliably defense-friendly. Rumor has it that arbitrators who don't see cases corporations' way don't have long careers. And companies bask in the secrecy that shields them from public accountability. (Read more.)

Resistance to compelled arbitration has been a rallying cause of consumer advocates and the plaintiff bar. For the most part, resistance has been futile. But consumer plaintiffs appear to have a new strategy. The Chamber is not happy.

In the instant case, consumers alleging BIPA violation were aiming for arbitration. Arbitration rules, endorsed by Samsung's terms, require both sides to pay toward initial filing fees, a sum that adds up when 50,000 claims are in play. The consumers' attorneys fronted their share, but Samsung refused. The company weakly asserted that it was being scammed, because some of the claimants were deceased or not Illinois residents, both BIPA disqualifiers.

Samsung must pay its share of arbitration filing fees for living Illinois residents, the district court answered, at least those living in the court's jurisdiction. Many of those consumer claimants were identified with Samsung's own customer records. A few whom Samsung challenged, the claimants dropped from their number. Even when the court pared the list to consumers in Illinois's federal Northern District, roughly 35,000 were still standing.

"Alas, Samsung was hoist with its own petard," the court wrote, quoting Shakespeare. The court opined:

Samsung was surely thinking about money when it wrote its Terms & Conditions. The company may not have expected so many would seek arbitration against it, but neither should it be allowed to “blanch[] at the cost of the filing fees it agreed to pay in the arbitration clause.” Abernathy v. Doordash, Inc., 438 F.Supp. 3d 1062, 1068 (N.D. Cal. 2020) (describing the company’s refusal to pay fees associated with its own-drafted arbitration clause as “hypocrisy” and “irony upon irony”).

The American Arbitration Association, the entity with which the claimants filed pursuant to Samsung's terms, estimated Samsung's tab at $4.125 million when the number was still 50,000 claims.

Attorneys Gerald L. Maatman, Jr., Rebecca S. Bjork, and Derek Franklin for corporate defense firm DuaneMorris warned:

As corporations who employ large numbers of individuals in their workforces know, agreements to arbitrate claims related to employment-related disputes are common. They serve the important strategic function of minimizing class action litigation risks. But corporate counsel also are aware that increasingly, plaintiffs’ attorneys have come to understand that arbitration agreements can be used to create leverage points for their clients. Mass arbitrations seek to put pressure on respondents to settle claims on behalf of large numbers of people, even though not via the procedural vehicle of filing a class or collective action lawsuit. As a result, corporate counsel should carefully review arbitration agreement language with an eye towards mitigating the risks of mass arbitrations as well as class actions.

Samsung wasted no time appealing to the Seventh Circuit. The case has drawn a spate of amici with dueling briefs from the Chamber and associates, favoring Samsung, and from Public Justice, et al., favoring the consumer claimants.

The district court case is Wallrich v. Samsung Electronics America, Inc. (N.D. Ill. Sept. 12, 2023), opinion by Senior U.S. District Judge Harry D. Leinenweber. The appeal is Wallrich v. Samsung Electronics America, Inc. (7th Cir. filed Sept. 25, 2023).

Acuerdo en inglés para arbitrar vincula al firmante de habla hispana aunque no lo entendió, tribunal concluye

(English translation by Google: Agreement in English to arbitrate binds Spanish-speaking signatory even though he did not understand it, court rules.)

Un hombre de habla hispana se comprometió a un acuerdo de arbitraje en inglés incluso si no lo entendía, dictaminó ayer el Tribunal de Apelaciones de Massachusetts.

El día de su cirugía para corregir la visión con Lasik, el demandante Lopez firmó cuatro formularios en inglés, incluido el consentimiento y el acuerdo para arbitrar cualquier disputa. Más tarde, insatisfecho con la cirugía, Lopez presentó una demanda, alegando negligencia médica.

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Revocando la decisión del Tribunal Superior, el Tribunal de Apelaciones ordenó la desestimación tras la moción del demandado de obligar al arbitraje.

Las cláusulas de arbitraje obligatorio han sido un punto de dolor para los defensores de consumidores durante décadas. Son una parte del problema de los términos de servicio densos y no negociables que son omnipresentes en las transacciones de consumo contemporáneas, tema de libros como Wrap Contracts (2013), por Nancy Kim, y Boilerplate (2012), por Margaret Jane Radin.

Los defensores de consumidores como Ralph Nader lamentan la eliminación masiva de disputas del sistema de justicia civil, un impacto en la Séptima Enmienda y una propagación democráticamente problemática de la justicia secreta. Y detrás de las puertas cerradas del arbitraje, las probabilidades favorecen a los negocios de manera tan abrumadora que alimentan dudas sobre la justicia. Los árbitros que no dictaminan la forma en que los demandados recurrentes corren el riesgo de quedarse sin trabajo.

A pesar de estos potentes motivos de preocupación, los legisladores y los tribunales se han puesto del lado de las empresas para proteger y hacer cumplir el arbitraje obligatorio, supuestamente para proteger al comercio de los intolerables costos de transacción de los litigios.

En el ley común de daños, el consentimiento y la asunción expresa del riesgo niegan la responsabilidad, porque se debe permitir que dos personas establezcan los términos de su propia relación. Podrán apartarse del contrato social siempre que los términos que fijen no violen el orden público; es posible que, por ejemplo, no acepten cometer una herida. En teoría, ambas defensas se basan en el acuerdo voluntario y consciente del demandante.

El demandante que firma un contrato sin leerlo cuestiona esta teoría. La firma evidencia el acuerdo subjetivo del demandante. De hecho, no existe ningún acuerdo subjetivo; el conocimiento y la comprensión de los términos acordados no se pueden encontrar en la mente del demandante.

La regla general es que la firma vincula de todos modos. Y en gran medida, esta regla es necesaria, incluso si significa que las personas están obligadas a cumplir términos que no habrían aceptado si los hubieran entendido. El comercio depende de la fiabilidad de los contratos. Si una parte del contrato  siempre pudiera impugnar la aplicabilidad basándose en testimonios interesados de malentendidos, entonces el litigio sería tan gravoso que paralizaría los negocios.

Un malentendido subjetivo puede causar un incumplimiento del contrato en el derecho de daños si mitiga la evidencia de la aquiescencia del demandante. Así, por ejemplo, las empresas a veces buscan establecer la asunción expresa del riesgo por parte de los clientes con un cartel que diga que "cualquiera que proceda más allá de este punto asume el riesgo de sufrir daños por negligencia." (A veces, tales carteles son exigibles por ley.) En tal caso, el demandante puede al menos argumentar que no vio el cartel, o, mejor, no lo entendió debido al lenguaje.

Desafortunadamente para Lopez, no conocía esos datos. El tribunal relató: "Lopez testificó que había vivido en Massachusetts durante doce años en el momento de su cirugía y había aprendido 'un poco' de inglés 'en las calles.'" (Las opiniones de los tribunales y el testimonio citado están en inglés; todas las traducciones aquí son mias.) El Tribunal Superior había determinado que "Lopez no tenía un comprensión suficiente del inglés para permitirle leer el Acuerdo de Arbitraje." Al mismo tiempo, la oficina de cirugía tenía un traductor de español disponible; Lopez no pidió ayuda. El hecho de su firma era inequívoco.

El tribunal razonó:

"Los contratos escritos tienen como objetivo preservar los términos exactos de las obligaciones asumidas, de modo que no estén sujetos a la posibilidad de una falta de recuerdo o una declaración errónea intencionada." [Grace v. Adams (Mass. 1868).] Esta regla de larga data 'se basa en la necesidad fundamental de seguridad en las transacciones comerciales." [Williston on Contracts (4a ed. 2022).] Estos principios legales subrayan que existe una "solemnidad [para] firmar físicamente un contrato escrito" que hace que una firma sea algo más que un simple adorno elegante en un documento. [Kauders v. Uber Techs., Inc. (Mass. 2021).]

Lopez testificó que no habría firmado el acuerdo de arbitraje si hubiera podido entenderlo. El mayor problema político para la protección del consumidor en Estados Unidos es que esta afirmación probablemente sea falsa, sin el beneficio de la retrospectiva. Es prácticamente imposible vivir en el mundo moderno—tarjetas de crédito, teléfonos móviles, sitios web, servicios públicos, viajes—sin aceptar un arbitraje obligatorio todos los días.

El caso es Lopez Rivera v. Stetson, No. 22-P-904 (Mass. App. Ct. Aug. 31, 2023). El juez Christopher P. Hodgens redactó la opinión del panel unánime, en el que también estaban los jueces Wolohojian y Shin.

Can Arsenal supporter be impartial in football inquiry?

A curious story of lawyering ethics and football allegiance broke in mid-May, just after I went off contract with UMass Law and left the States for a chunk of the summer.

Manchester City Football Club (City, or MCFC), my team, won a historic "treble" over the summer, topping the Premier League, FA Cup, and UEFA Champions League.

Thomas Jefferson, me, and a City kit
at Hofstra University, 2016
Morgan Steele CC BY-NC-SA 4.0

While City was on its spring tear, a modest shadow was cast by allegations of violations of "fair play" financial regulations in the Premier League for transactions dating to 2009 to 2018. From as much as is publicly known, the allegations focus on financial transparency requirements. Any ultimate finding of violation can have consequences going forward, ranging from fines to relegation from top-tier play.

City denies any misfeasance. In 2020, the Court of Arbitration for Sport (CAS) reversed a UEFA suspension of City for alleged violation of the financial regulations related to transactions from 2012 to 2016. The CAS decision was based principally on the exclusion of dated evidence, so the matter was not resolved on the merits. City then also denied any wrongdoing.

The present allegations, which themselves are reported to arise from a four-year investigation, have been referred to an independent commission. Its behind-closed-doors work will take a while. And City can be expected to litigate any adverse result.

The piece of the story that caused me to scratch my chin in May was the report that City had filed objection to the appointment of an Arsenal FC supporter, Murray Rosen KC, as chair of the independent commission.

Under rules of professional conduct in American law practice, being a fan of a sport team would not preclude a lawyer from representing a competitor. American Bar Association (ABA) Model Rule 1.7 focuses on conflicts in legal representation, not matters of social affiliation. Of course, the question comes down to the lawyer's ability to do the job "competent[ly]" and "diligent[ly]," so it's always possible for a lawyer to be compromised by sporting fervor. The best course is disclosure and client consent.

For a judge, ABA Model Code of Judicial Conduct Rule 2.11 similarly, probably, would not demand a sport-fan judge's recusal from a matter involving a competitor. The requisite "personal bias or prejudice" is usually indicated by concrete evidence such as financial interest, familial affiliation, or former representation, not social preference.

More than lawyer ethics, the judicial canons give weight to public perception, testing expressly for objective perception of impartiality. But being a sport fan, absent economic investment, doesn't move that needle.

For example, in a fraud lawsuit settled confidentially five years ago, plaintiffs accused the New York Giants and players, including quarterback Eli Manning, of American football, of passing off memorabilia falsely as game worn. The plaintiffs asked New Jersey Superior Court Judge James J. DeLuca to recuse, because he was a Giants fan and, with his son, owned professional seat licenses—that's something, economically—to attend Giants games. DeLuca declined to recuse and pledged on the record his ability to remain impartial. All good, legal commentators opined. (E.g., NJ.com.)

JAMS guidelines for arbitrators are at least as permissive. Like the judicial canons, the guidelines look to both actual conflict and objective appearance of conflict. JAMS guidelines expressly condone "social or professional relationships with lawyers and members of other professions" as long as they do not "impair impartiality."

I don't know what ethics constraints pertain to Rosen, but I'm doubtful they are any more demanding. I also don't know, though, how deeply Rosen bleeds Arsenal red and white. City's filing is secret, so it's possible there's evidence of conflict that the public can't see.

Nothing in Rosen's public record raises a red flag. Based in London, he's a CAS-certified arbitrator and mediator. Any European professional, especially a Brit, and especially someone working in sport law, can be expected to favor a club or two in association football. Rosen was called to the bar in 1976. He's practiced media, sport, and art law and has served in a wide range of offices, even once chairman of the board of appeal of English Table Tennis.

A biography of Rosen at 4 Square Chambers, pre-dating the City matter, reported:

He is a strong believer in fairness and in the power and benefits of sport and has a keen appreciation of its social, political and financial aspects. He has participated in sport all his life, is a member of the MCC [I presume, Marylebone Cricket Club] and Arsenal FC, and still regularly plays real tennis and ping pong.

A 2019 biography at Herbert Smith Freehills mentioned in parentheses that Rosen "is an Arsenal season ticket holder." Arsenal of course was a contender for trophies City won in the end in its treble. But, at least upon what is publicly known, Arsenal has no direct interest in the financial regulatory matters, any more than another competing club.

The objection to Rosen might be part of a kitchen-sink litigation strategy, or, more likely, a public relations strategy. It's frustrating not being able to know the substance of the objection (or nearly anything about sport governance matters that wind up before CAS). On the public record, at least, the objection on ethics grounds doesn't seem to hold water.

In any event, the allegations against City do nothing to dampen my celebration of the treble! I wore my Erling Haaland kit to law school orientation just last week.

EEOC withholds records in arbitration matters; corporate frustration with secret justice is ironic

Janet Dhillon

According to employers' lawyers, the Equal Employment Opportunity Commission (EEOC) is denying public access to investigation files in matters committed to arbitration, even while conceding that files in litigation matters must be disclosed under the federal Freedom of Information Act (FOIA).

Yesterday the Labor and Employment Law Practice Group of the Federalist Society held a teleforum with the provocative title, "Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?" Here is the description:

The EEOC is denying employers' FOIA requests for the EEOC's charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC's justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC's basis for treating litigation and arbitration differently in responding to employers' FOIA requests?  How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC's FOIA practices and, if so, how?

Speakers included EEOC Commissioner Janet Dhillon and Jones Day attorney Eric Dreiband.

I regret, I didn't make it. My guess is that the EEOC is denying access on basis of the various exemptions for law enforcement investigation records, besides deliberative process. Without having heard either side of the debate, my inclination, probably like Dreiband's, is to doubt seriously the viability of any asserted distinction between arbitration and litigation.

What I find compelling about the case, though, is less the effort at FOIA exemption and more the irony of corporations being stymied on transparency and accountability when mandatory arbitration is a choice of their own design.

I wrote just yesterday about the problem of arbitration superseding litigation as our principal means of dispute resolution. And the fact that arbitration happens in secrecy is a big part of that problem. In litigation, the tort system achieves the important objectives of norm-setting and deterrence, besides the anti-vigilantism I mentioned yesterday. Norm-setting and deterrence, in turn, avert tortious conduct by the same respondent and other actors in the future. Secret justice undermines these objectives. Even the same bad actor can persist in its misconduct without risk of punitive consequences.

I don't approve of selective opacity by EEOC. But there's a scrumptious hypocrisy in companies wanting transparency and accountability in public enforcement mechanisms while they jealously secret their own dirty laundry against the public functions of the courts.

Grubhub drivers signed away right to sue, court rules

Haydn Blackey via Flickr CC BY-SA 2.0

Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.

Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.

I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.

Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs.  I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again.  Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.

So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.

F is likely to be the final disposition of the complaints in arbitration after remand, too.

You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted).  The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).

The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side.  The Harvard Cyberlaw Clinic was among the amici for the workers. The office of Commonwealth Attorney General Maura Healey entered an appearance as amicus, but filed no brief. Healey's office sued Grubhub one year ago, alleging the company overcharged Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.

Whitehouse laments mandatory arbitration, civil jury woes; SCOTUS-nominated Jackson does not engage

Senator Sheldon Whitehouse (D-R.I., one of my state senators) just questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson on the importance of the civil jury.

(I wrote recently about Judge Jackson's trial court record, here and here.)

Tort law does not usually figure much into U.S. Supreme Court confirmation hearings, so when it does, it's worth paying attention. While tort law can be implicated directly in the work of the U.S. Supreme Court, for example, in the application of federal common law in admiralty, tort law is more likely to make an appearance ancillarily to constitutional law, the area of senators' greatest interest in the confirmation process.  

Those appearances of tort law usually are indicative of the interests of the day.  When gun control and the Second Amendment were hot topics in the 20-aughts, tort law made cameos in questioning about the defenses of self and property.  Senators have been interested periodically in the scope of civil rights law to combat gender discrimination.  Dialog on that point has imported principles of causation, because civil rights law, especially in private remedies, borrows both procedural and substantive machinery, including limiting principles, from common law tort.

At about quarter to one in the extended morning of today's confirmation hearings, Senator Whitehouse sought Judge Jackson's endorsement, which she gave, of statements on the importance of the civil jury.  The Seventh Amendment to the U.S. Constitution guarantees a right, if qualifiedly, to a civil jury, and the mechanism was famously admired by Alexis de Tocqueville in Democracy in America (1835).  Yet the institution has been a waning feature of American civil justice, largely as an incidental function of the dramatic decline in civil trials during the 20th century, but also as a deliberate effect of corporate America's embrace of mandatory arbitration.

Mandatory arbitration, removing cases from the courts upon the purported consent of consumers and victims of tortious wrongdoing and breach of contract, has been a preoccupation of consumer protection advocates and anti-tort reformers (or plaintiff-side "tort reformers"), such as Ralph Nader.  (The issue was among those addressed by the documentary Hot Coffee in 2011, particularly in the painful context of purported consent to dispute resolution in event of criminal sexual assault.  Unfortunately, because the point hardly diminishes the problem on the merits, the story highlighted in the film was later challenged as a possible fabrication.)  Among the many shortcomings of arbitration as a mechanism in the service of justice that rub me the wrong way, besides its overwhelming favoritism for corporate respondents, is the lack of transparency, which allows wrongdoers to persist in misconduct in defiance of public accountability.

Senator Whitehouse has been focused lately on what he perceives to be politicization of the judiciary through the use of "dark money," that is, money of unknown or vague origin, to influence the appointment (and in some states, election) of judges, typically to further the interests of big business.  Whitehouse wrote about the problem in the Yale Law Forum in 2021, and I recently wrote about Whitehouse writing about the problem.  He talked about that issue both in his opening remarks on the Judiciary Committee yesterday and at the start of his questioning today.  This focus is a natural extension, and broadening, of his concern over civil juries, about which he wrote also, in a law review article for William & Mary in 2014.

I created a C-SPAN clip from today's hearing.  C-SPAN has a transcript below it, but be warned, the automated system made some egregious errors, e.g., reading "civil juries" as "simple majorities."

Frankly, I didn't care for Judge Jackson's response.  Her initial reflection about citizens sitting in judgment over one another seemed to speak to the criminal trial.  She failed to acknowledge the separate, separately important and separately threatened, civil dimension on which Whitehouse was focused.  When he pressed her again on the question, in relation to the risk of jury tampering, her response, again, was painfully generic and indicated no recognition of the particular problem of the vitality of the civil jury.  On a third go, Whitehouse explicitly cited mandatory arbitration, the Seventh Amendment, the employment context, and corporate power.  Judge Jackson had no opportunity to respond.

I simply can't tell whether Judge Jackson was unclear on what it is Whitehouse is worried about, or she was simply trying, presumably upon handlers' instructions, to remain utterly bland and uncontroversial in any declaration.  Whitehouse thanked Jackson for answering his questions with clarity and expressly recognizing the importance of the civil jury.  But she had not. 

After the exchange, Senator Dick Durbin (D-Ill.) noted pending legislation that would override purported consent to mandatory arbitration in sexual assault matters.  The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed by the President on March 3: a welcome change, a long time coming (since Hot Coffee; #MeToo revived the appetite), though redressing only a sliver of the mandatory arbitration problem.  Durbin was talking about, I assume, the Forced Arbitration Injustice Repeal (FAIR) Act, which, as H.R. 963, narrowly passed in the House, 222-209, just last week.  Its companion S.505 has been long pending in the Judiciary Committee.  The FAIR Act would apply to employment and consumer disputes.

Incidentally, just before the jury discussion, Senator Whitehouse asked Judge Jackson whether it is ever appropriate for an appellate court to do fact-finding outside the record.  She said that she knew of no such occasion.  Neither of them referred to, nor, doubtless, even thought about, the latitude afforded appellate courts to research the law of foreign jurisdictions, which is treated for most purposes as a question of fact.  I note the issue only because American appellate courts' unwillingness to investigate foreign law in cases in which it is implicated often impedes the attainment of justice in the jurisdictionally transnational cases increasingly generated by globalization, not only in corporate matters such as business contract disputes, but in family law and civil rights.

The Sullivan question has come up today, too, this afternoon by Senator Klobuchar (D-Minn.).  She seemed to suggest that journalists' lives will be put at risk without the "actual malice" standard.  Never mind the reputations and careers that have been ruined in the name of protecting press negligence and blissful ignorance.  I don't have the stomach today to tackle such uninformed melodrama.  As one might expect, Judge Jackson stuck close to tried-and-true principles of stare decisis.

Uber suffers high court loss, but binding arbitration, blanket disclaimers still devastate consumer rights

Image by Mike Lang CC BY-NC-SA 3.0

Signs of life were spotted on the dead planet of consumer rights in click-wrap agreements. But don't get too excited; the life is microbial and already has been exterminated by the corporatocracy.

A blind man who was refused Uber service because he had a guide dog was successful in the Massachusetts Supreme Judicial Court last week in voiding loss of his disability discrimination claim because Uber failed to give him sufficient notice of its terms and conditions compelling defense-friendly arbitration.

Uber can easily correct its notice problem—and likely has already; this plaintiff signed up in 2014—so the rest of us are out of luck if we have an Uber problem.  But the plaintiff's rare win exposes the abject failure of federal and state law to protect consumer rights against gross overreach by online service providers.  And the case arises amid a deluge of reported ride-share sexual assaults, from which service providers have been widely successful in washing their hands of legal responsibility.

In the instant case, the Massachusetts high court followed 2018 precedent in the First Circuit, also applying Massachusetts law to the same Uber interface, to conclude that Uber's means of obtaining the plaintiff's consent to the app's terms and conditions (T&C) in 2014 fell short of the notice required to bind a consumer to a contract.

Uber required ride-share passengers to assent to the T&C by clicking "DONE" after entering payment information.  The court explained that the focus of the app's virtual page was on payment, and the language about the T&C, including the link to the terms themselves, was marginalized in page location and diminished in type size.  (The law gives the plaintiff no special treatment because of his blindness, and the case suggests no contrary argument.)  Uber knew how to do better, the Court reasoned, because drivers signing up with the app plainly must click "I AGREE" to their T&C: an easy fix for app makers.

The Court adopted for the Commonwealth what has become widely accepted as the two-part test for online T&C contract enforcement, "[1] reasonable notice of the terms[,] and [2] a reasonable manifestation of assent to those terms."  It is not necessary that a consumer actually read, or even see, the terms.  The Court acknowledged research (Ayres & Schwartz (2014); Conroy & Shope (2019)) showing that a vanishing number of consumers ever read, much less understand, T&C.  But the law requires only that the consumer be given the opportunity.

This approach to "click-wrap" agreements, kin to "browse-wrap" agreements, dates back to "shrink-wrap" agreements, by which a consumer could be bound to hard-copy license terms upon opening a product box, and earlier to the simple doctrine in analog contract law that a person's mark can bind the person to a contract that she or he has not read.

The rule works well to smooth commerce.  But the problem for consumer rights is that T&C have become unspeakably onerous.  British retailer GameStation made headlines in 2010 when it was reported that 7,500 online shoppers unwittingly(?) sold their "immortal soul[s]" as a term of purchase; that demonstration is not unique.  Legendary cartoonist Robert Sakoryak turned the infamously voluminous iTunes "terms and conditions" into a graphic novel (2017) years after South Park mocked Apple mercilessly (2011).  On a more serious note, the problem has generated ample scholarship, including at least two books (Kim (2013); Radin (2014)), and has been a flashpoint of controversy in European privacy law, which, unlike American law, requires a bit more than a token click-box to signify a person's consent to process personal data, especially when the person is a child.

The Massachusetts Court recognized the scope of Uber's T&C as a factor to be weighed in the sufficiency of notice.  "Indeed," the Court wrote, "certain of the terms and conditions may literally require an individual user to sign his or her life away, as Uber may not be liable if something happened to the user during one of the rides."  Uber's terms "indemnify Uber from all injuries that riders experience in the vehicle, subject riders' data to use by Uber for purposes besides transportation pick-up, establish conduct standards for riders and other users, and require arbitration."

Though arguably subject to a rare override in the interest of public policy, such terms still can prove prohibitive of legal action when a passenger becomes a crime victim.  And that's been happening a lot.  Uber itself reported in 2019 that over the preceding two years, the company had received about 3,000 claims of sexual assault each year (NPR).  The problem is so prevalent that ride-share sex assault has become a plaintiff's-attorney tagline.  Yet recovery is easier promised than won.  Even if a consumer somehow prevails in arbitration, a process hostile to consumer rights, T&C such as Uber's also limit liability awards.

Litigants have struggled to circumvent ride-share app providers' disavowal of responsibility.  In November, the federal district court in Massachusetts rejected Uber liability as an employer, because drivers are set up as independent contractors, a convenience that has summoned some heat on app service providers in the few states where legislators worry about employment rights in the gig economy.  Lyft won a case similarly in Illinois.  Meanwhile a Jane Doe sex-assault claim filed in New York in 2020 takes aim at Uber upon a direct-negligence theory for failure to train or supervise drivers (N.Y. Post).

In 2018, Uber and Lyft relaxed enforcement of compelled arbitration clauses in sex-assault claims (NPR)—if they hadn't, they might eventually have suffered a humiliating blow to their T&C, as unconscionability doctrine is not completely extinct in contract law—so hard-to-prove direct-negligence cases such as N.Y. Doe's are hobbling along elsewhere too.  Oh, Uber also relaxed its gag on sex-assault victims who settle, allowing them to speak publicly about their experiences (NPR).  How generous.

All of this is tragic and avoidable, if routine.  But in the Massachusetts case, I saw a troubling legal maneuver that goes beyond the pale: Uber counter-sued its passenger.

In a footnote, the Massachusetts Court wrote, "In arbitration, Uber brought a counterclaim for breach of contract against the plaintiffs, alleging that they committed a breach of the terms and conditions by commencing a lawsuit and pursuing litigation in court against Uber. Through this counterclaim, Uber sought to recover the 'substantial unnecessary costs and fees' it incurred litigating the plaintiffs' lawsuit."

So it's not enough that our warped American enslavement to corporatocracy allows Uber and its ilk to impose crushing, if industry-norm, T&C on customers, depriving them of rights from Seventh Amendment juries to Fourteenth Amendment life.  Uber moreover reads its own indemnity clause with the breathtaking audacity to assert that it is entitled to recover attorney's fees from a consumer who dares to make a claim—a claim of disability discrimination, no less. This reactionary strategy to chill litigation by weaponizing transaction costs exemplifies my objection to fee-shifting in anti-SLAPP laws.  Uber here shamelessly pushed the strategy to the next level.

Nader (2008)
Photo by Brett Weinstein CC BY-SA 2.5

Compelled consumer arbitration has stuck in the craw of consumer and Seventh Amendment advocates, such as Ralph Nader, for decades.  Nader is widely quoted: "Arbitration is private. It doesn't have the tools to dig into the corporate files. It's usually controlled by arbitrators who want repeat business from corporations not from the
injured person."  As the corporatocracy is wont to do, it pushes for more and more, ultimately beyond reason.  Industry pushing got a boost when the Trump Administration set about dismantling the Consumer Finance Protection Bureau.  Make no mistake that compelled arbitration is somehow about a free market; a free market depends on a level playing field, a fair opportunity to exercise bargaining power, and transparency of transactional information.  The unilateral imposition of an absolute liability disclaimer upon penalty of fee-shifting in a secret tribunal is none of that.

I'm tempted to say something like "enough is enough," but I would have said that 20 years ago, to no avail.  So I can only shake my head in amazement as we double down on the abandonment of civil justice in favor of secret hearings to rubber-stamp rampant venality.

Full disclosure: I use Uber, and I like it.  Taxis got carried away with their market monopolization, and a correction was needed.  Now that's feeling like a Catch-22.

The case is Kauders v. Uber Technologies, Inc., No. SJC-12883 (Jan. 4, 2021) (Justia).  Justice Scott Kafker wrote the opinion for a unanimous Court.  In amicus briefs, the ever vigilant U.S. Chamber of Commerce and the "free market"-advocating New England Legal Foundation squared off against plaintiffs' lawyers and "high impact lawsuit"-driving Public Justice.

Secret civil justice undermines employee rights

Pintera Studios

A story investigated by ProPublica and featured on Planet Money highlights the problem of secret justice in perpetuating the willful abuse of at-home gig workers.

I expected that "Call Center Call Out," reported by Planet Money's Amanda Aronczyk and ProPublica's Ariana Tobin, Ken Armstrong, and Justin Elliott, based on the ProPublica story, would be a sad and frustrating tale of work-from-home gig economy labor being exploited, principally by the misclassification of employees as independent contractors to reap savings in compensation, work conditions, and employee benefits.

Turns out, there is even worse dissimulation afoot.  And there are worrisome implications for the health of the civil justice system.

To work these call-center jobs, for intermediary contractors such as Arise Virtual Solutions, the not-quite-employees are compelled to sign non-disclosure agreements (NDAs), arbitration agreements, and class action waivers.  These all are enforceable, even when the workers do not fully understand their implications.

When a worker has the temerity to commence arbitration proceedings, challenging misclassification as an independent contractor, the worker wins.  In one example in the story, a worker easily qualified as an employee under the labor test applied by the arbiter.  A worker can win thousands of dollars in reimbursement of expenses—they have to pay out-of-pocket for the privilege of their training and then buy their own computers and telecomm equipment—and back wages to bring their compensation history up to minimum wage.  

But here's the rub: the workers already are bound by their NDAs, and the arbitration is secret, too.  So there is no public record of the misdeeds of the employer.  The arbitration-winning complainant cannot even tell other mistreated workers that their labor rights are being violated.

According to the reporters, the secret justice system of arbitration is actually part of the business model for enterprises such as Arise.  They can pay liability to a small percentage of workers while willfully exploiting most others.  Because of the NDAs, arbitration clauses, and, most importantly, class action waivers, a lawyer said in the program, she can fight this abuse only behind a veil of secrecy, one case at a time, amounting to thousands of cases, even though every case is winnable on precisely the same analysis.

There's a classic scene from Fight Club (1999) when the Narrator (Ed Norton) is telling an airliner seatmate about his car company's "formula" for issuing a recall only when it's cost effective, regardless of the cost of human life.  (Think GM ignition switch recall.)

"Which car company do you work for?" the seatmate asks.

The Narrator pauses, staring her in the eyes.  Then, nodding knowingly, he answers,

"A major one."

So what companies use these call centers to take advantage of the cheap and ill-begotten labor forces organized by companies such as Arise?

Major ones.  Ones you've talked to.

Have a magical day.

 

The stories are Amanda Aronczyk & Ariana Tobin, Call Center Call Out, Planet Money, Oct. 2, 2020; and Ken Armstrong, Justin Elliott, & Ariana Tobin, Meet the Customer Service Reps for Disney and Airbnb Who Have to Pay to Talk to You, ProPublica, Oct. 2, 2020.

Waiver of negligence precludes later suit by family, high court holds in nursing home, diving death cases

Image by edar from Pixabay

In two cases at the end of February, the Massachusetts Supreme Judicial Court made clear that a person's express disposal of a negligence claim can preclude a later wrongful death suit by family.  In other words, Massachusetts wrongful death claims are derivative, not independent, of a decedent's rights.

"Wrongful death" and "survival" actions are creatures of 19th-century statute in Anglo-American law, the historic common law having extinguished all causes of action upon death—for curious historical reasons that I won't explicate here.  Formally, "wrongful death" is an action by surviving family for their losses, upon the occasion of the decedent's passing.  "Survival" is an action by the estate on behalf of the decedent, as if the decedent had lived.  However, this distinction is often blurred in law, as the actions are brought together as "wrongful death" under Massachusetts statute, and is often blurred in fact, as a single person may stand as a family member and estate representative at the same time.  However the actions are characterized in court, wrongful death and survival have become so universally entrenched in Anglo-American tort law, often upon sparsely worded and rarely amended statutes, that they function in the courts very much like common law causes of action, subject to interpretation in deep bodies of case law.

Image by whitfieldink from Pixabay

In one of the February cases, Jackalyn Schrader, acting with power of attorney for her mother, Emma, signed a "voluntary and clearly labeled" commitment to arbitrate disputes upon admitting Emma to residence at the Golden Living Center-Heathwood, in Chestnut Hill, Mass., in February 2013.  After Emma died in December 2013, Schrader brought a wrongful death claim under Massachusetts statute, in federal court, alleging that nursing home negligence caused bedsores, leading to Emma's death.  Schrader sought to evade the effect of the arbitration agreement by pointing out that she had not signed it in her personal capacity, and state law vests a wrongful death claim in family.

Image by skeeze from Pixabay

In the second of the February cases, Margaret C. Doherty, as representative of the estate and the decedent's statutory beneficiaries, sued in wrongful death upon a 2014 diving accident that took the life of her son-in-law, 37-year-old Gregg C. O'Brien.  O'Brien "was a certified open-water scuba diver [and] drowned while participating in a promotional diving equipment event that was sponsored by [defendants] and held in Gloucester," Mass.  Before participating in the event, O'Brien had signed:

a release from liability which had several subsections that were set forth in all capital letters and underlined, including "effect of agreement," "assumption of risk," "full release," "covenant not to sue," "indemnity agreement," and "arbitration."  In capital letters under the subsection titled "effect of agreement," it said, "Diver gives up valuable rights, including the right to sue for injuries or death." It also told the decedent to read the agreement carefully and not to sign it "unless or until you understand." ... [T]he subsection titled "covenant not to sue" stated that the decedent agreed "not to sue ... for personal injury arising from scuba diving or its associated activities," and that the decedent's "heirs or executors may not sue."

Asserting defendants' negligence, Doherty sought to evade the effect of the release by pointing out that the statutory beneficiaries were not party to any agreement.

Associate Justice David A. Lowy

In Schrader's case, the First Circuit certified a question to the Supreme Judicial Court to determine whether a wrongful death action in Massachusetts is independent of a decedent's action, so Schrader would be free of the arbitration agreement, or bound by the decedent's action, so Schrader would be bound by the arbitration agreement, even though she signed it only on behalf of her mother.  Schrader might have understood that her theory under statute was weak, because she sought to play up the court's power to evolve wrongful death law beyond the text of statute.  The court agreed that it had considerable power to evolve wrongful death as a function of common law.  At the same time, though, the court insisted that its job begins with statutory interpretation.  Resorting to the text of Massachusetts's first-in-the-nation, 1840 wrongful death statute, and in accordance with the weight of authority in other states, the court found the derivative nature of a wrongful death claim inescapable.  Schrader must therefore seek relief under the arbitration agreement.

In Doherty's case, the Supreme Judicial Court cited its decision in Schrader and likewise concluded, affirming, that the claims on behalf of the decedent's statutory beneficiaries were derivative and not independent of the decedent's rights.  "Therefore ... the valid waivers signed by the decedent preclude the plaintiff, as [O'Brien's] 'executor or personal representative,' from bringing a lawsuit ... for the benefit of the statutory beneficiaries."

The cases are GGNSC Admin. Servs., LLC v. Schrader, No. SJC-12714 (Mass. Feb. 27, 2020) (Justia; Suffolk Law), and Doherty v. Diving Unlimited Int'l, Inc., No. SJC-12707 (Mass. Feb. 27, 2020) (Justia).  Justice David A. Lowy wrote both decisions for a unanimous court.

Honduran law dean joins UMass comparative law class

Speaking from UNITEC in Tegucigalpa, Dean Castro Valle explained how her 2018 English-language article on comparative tort law (featured) fit into her broader dissertation project on regional class actions for environmental justice in Central America.

#ComparativeLaw @UMassLaw (me & @PeltzSteele) today had privilege of a brilliant Zoom guest to educate us on Honduran/Central Am. civil law, as compared with EU and with US common law, and on harmonization in Central America. THANK YOU @cmcastrovalle! https://t.co/eHmGLwgMwy

— RJ Peltz-Steele (@RJPeltzSteele) October 9, 2019

UMass Law comparative law students asked about legal harmonization in Central America and asked Dean Castro Valle to assess the prospect of a supranational entity in the region, akin to the European Union, that might advance economic development. She said such a project has been in the works since the 1950s. Pointing to present discontent with President Ortega in Nicaragua, for example, she explained that not enough states have been stable and interested in pursuing the project at the same time. Meanwhile she and other legal scholars are working to harmonize civil codes and arbitration process to increase legal certainty sufficiently to attract investment from transnational business.

International arbitration, U.S. common law collide in skilled student note

I have been remiss not to mention earlier an incisive work on arbitration law by Chad Yates, '19. "Manifest Disregard in International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, or Ugly" is available online from 13:2 UMass Law Review.  Here is the abstract.

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in the United States. This Note will argue that manifest disregard should still apply to arbitration awards. However, arbitration contract clauses would be improved with the addition of language for appeals based upon manifest disregard to an arbitration appeals tribunal. The customary goal of arbitration is to provide a confidential, cost effective and expedited resolution of contract disputes. Therefore, an arbitration contract clause requiring that an appeals tribunal decide all manifest disregard questions would further these traditional arbitration goals.

Mr. Yates excelled in my 1L Torts class two years ago and also in Comparative Law (co-taught by the better regarded Dean Peltz-Steele).  I admit that my delay in reading this article is owed to my own shortcoming, as I suffer from commercial legis MEGO disorder.  I nevertheless recognize this article as well worth the, uh, investment, especially if commercial arbitration is your jam. Moreover, I am hopeful that Chad will get around to publishing some of the excellent research he's done on India in comparative law.  You can get a flavor of that work from his January entry on the UMass Law Review blog, "Comparative Law for India: The U.S. Digital Media Sales Company’s Destination for Business Process Outsourcing."  See also more on the blog.

A shout out of gratitude to Perry S. Granof, of Granof International Group, contributor of the chapter, "Introduction to Alternative Dispute Resolution in International Business Transactions," to the book, Resolving Insurance Claim Disputes Before Trial (ABA TIPS 2018).  The consummate colleague and an exceptional lawyer, Perry generously lectured my Comparative Law class via Zoom, on the subject of international arbitration, and fueled Chad's interest in the area.

UIA Congress studies global legal issues: irresponsible journalism, anti-corruption in sport, and intellectual freedom in fashion

Just this week I returned from the annual world congress of the Union Internationale des Avocats, which did not disappoint.  Lawyers from around the world gathered in Toronto to exchange experiences and ideas on a range of cutting-edge themes.

Highlights of this year’s UIA for me included the media law and sports law panels.  The media law panel was coordinated by Emmanuel Pierrat, of Cabinet Pierrat, and Jean-Yves Dupeux, of Lussan & Associés, both in Paris.  The sports law panels were coordinated by Fernando Veiga Gomes, Abreu Advogados, Lisbon; Robert J. Caldwell, Kolesar and Leatham, Las Vegas; and Emanuel Macedo de Medeiros of the International Centre for Sport Security, an NGO based in Doha.

Liability for Journalism

The media law program asked panelists to examine how "irresponsible" and "responsible" journalism are faring in today's legal systems.  Thierry Bontinck of Daldewolf SCRL in Brussels ran through recent developments in the European Court of Human Rights.

We’ve always known that the European approach to freedom of expression is characterized more by balance than the presumption-rebuttal approach of the U.S. First Amendment.  That tension goes a long way to explain U.S. reluctance to enforce foreign libel judgments over the decades, a reluctance codified in the SPEECH Act during the Obama Administration.  But Bontinck’s analysis shows a recent trend in the ECtHR to further downplay the primacy of free speech, putting it on par with competing interests, such as privacy, fair trial, and law enforcement.

It is not clear to me whether this trend will further alienate Europe from fundamental rights analysis in U.S. constitutional law, or might be running in parallel to a trending subordination of free speech in our own courts.  Frankly I would welcome the change here were rights of reputation and privacy to elbow a little more room for themselves in our First Amendment law.  But I would be less eager to embrace a free speech trade-off with more abrupt implications of state power, such as surveillance by law enforcement.

Litigation against Saudi Arabia and the FBI

Also on the media law panel was Thomas Julin of Gunster Yoakley & Stewart, P.A., Miami.  Julin gave an expert overview of developments in American media law.  Yet most captivating was his update on the efforts of families to sue Saudi Arabia in S.D.N.Y. for September 11 losses, more than US$100bn in damages, under Congress’s remarkable waiver of the Saudis’ foreign sovereign immunity.

Julin represents the award-winning Florida journalist Dan Christensen in FOIA litigation against the FBI, now going to the Court of Appeals, for records related to 9-11 investigation of the Saudis.  Needless to say, plaintiffs in the New York litigation are carefully watching the collateral FOIA litigation, which could unlock a vault of evidence.

Julin pointed out that Saudi moves toward commercial and political liberalization, such as a planned IPO of the oil industry in New York and even the recent announcement that Saudi women would be allowed to drive cars, might be a function of U.S. liability exposure.

Whither Goes Sullivan?

In running down U.S. legal developments, Julin talked of course about the Hulk Hogan case, Bollea v. Gawker ($140m verdict, $31m settlement) and the Pink Slime settlement (Beef Products, Inc. v. ABC, Inc.).  Although the Pink Slime settlement was confidential, Julin said that SEC filings disclosed a $177m pay-out from ABC News parent Disney to the beef industry (on its $1.9bn claim), and that doesn’t include losses covered by insurance.  That might be the biggest defamation settlement in the world, ever, Julin noted.

From the audience, Jim Robinson of Best Hooper Lawyers, Melbourne, Australia, added to the mix Rebel Wilson’s record-setting A$4.57m win in Victoria.  All this led Julin to express some concern about whether New York Times v. Sullivan today carries waning cachet (a mixed blessing in my opinion).

Arbitration in Sport

In sports law, a first panel compared case outcomes across international dispute resolution systems.  Moderated by Caldwell, the panel comprised David Casserly of Kellerhals Carrard in Lausanne, Switzerland; Paul J. Greene of Global Sports Advocates, LLC, in Portland, Maine; Roman E. Stoykewych, senior counsel for the National Hockey League Players Association in Toronto; and Clifford J. Hendel of Araoz & Rueda in Madrid.

One case the panel examined involved the hit of NHL player Dennis Wideman on linesman Don Henderson in January 2016.  The video (e.g. SportsNet Canada) is not pretty, but it turns out there is much more than meets the eye.  In the video, at first blush, Wideman seems quite deliberately to hit the linesman from behind.


In context, however, Wideman was coming off of a concussive blow into the boards himself.  Stoykewych explained that Wideman was woozy, and what looks like a raising of his stick to strike Henderson can in fact be explained as a defensive maneuver whilst skating into an unidentifiable obstacle, if not a perceived opponent on the attack.  Casserly moreover suggested that Wideman’s plight might be likened to the exhausted fighter who inexplicably starts beating on an intervening referee.  The NHL rule on intentional strikes is all the more confounding, as it seems to define intent with an objective reasonableness test.

Ultimately the players’ union won reduction of Wideman’s heavy sanction to something like time served.  The case occasioned a vibrant discussion of evidentiary procedures, decision-making standards, and review standards in sport arbitration.  In the bigger picture, the case makes for a fascinating study of civil culpability standards and comparative dispute resolution mechanisms.

Integrity in Sport

Moderated by Macedo de Medeiros, the second sports law panel comprised Randy Aliment of Lewis Brisbois Bisgaard & Smith LLP in Seattle, Washington; Matthew Shuber of the Toronto Blue Jays Baseball Club; and Veiga Gomes.  The panel occasioned introduction of the Sport Integrity Global Alliance, a meta-organization born in 2015 to bolster integrity in global sport governance.  Not many people need to persuaded any longer, since the FIFA Sepp Blatter fiasco, of the problem of corruption in world sport.  Boston's and Hamburg’s disgruntled withdrawals from Olympic contention spoke volumes about skepticism of sporting mega-events, and I for one wonder at Eric Garcetti’s embrace of Olympic promise for Los Angeles.

Yet the corruption problem infects more than just the highest echelons of sport governance, as money filters through so many political layers and across so many social sectors.  Veiga Gomes illustrated for example:  Ninety percent of European footballs clubs do not publish their books, enjoying utter opacity in their accounting.  At the same time, 77% of European clubs are insolvent or “close to insolvent.”  Meanwhile, FIFA, UEFA, and the European football associations generate more than US$3bn in annual revenue.  So where is all that money going?  Thus, Veiga Gomes concluded, a “major transparency problem” renders football vulnerable to corruption and organized crime.

Strike a Pose

Though I was not able to spend as much time there as I liked, the UIA commissions on contract law, fashion law, and intellectual property law put on a fabulous full-day working session on “launching a fashion label business,” ranging across the areas of law practice implicated by a fashion-label client.  Sharing the helm of this ambitious program was an IP lawyer whom I admire, Gavin Llewellyn, of Stone King LLP, London. 

Taking part in the program was my friend and esteemed colleague from UMass Dartmouth Public Policy, Professor Nikolay Anguelov.  Dr. Anguelov talked essentially about the thesis of his book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society.  His talk made a vital and unusual contribution by making lawyers in the business think about the externalities of their commercial work in many dimensions, including social, economic, and environmental.  Credit to Llewellyn for bringing in Anguelov.

For every snippet of the fashion law program I was able to catch, I learned something.  My favorite takeaway was a discussion by Renata Beržanskienė, of the Sorainen law firm in Vilnius, Lithuania, about the “Jesus Jeans” case.  The case involves clothing and its advertising by the Robert Kalinkin fashion house.  Provocative images of a shirtless Jesus wearing Kalinkin jeans drew a public morals fine from the Lithuanian consumer protection authorities under national advertising law.  Presenting issues in free expression, commercial speech, and public authority to regulate morality, the case is pending before the European Court of Human Rights.

Compare Mark 4:14 (ERV) (“‘They will look and look but never really see.’”) with Jordache 1983 (“You’ve got the look.").