Mark J. Levin

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Our response to Professor Sovern’s article about arbitration opt-outs and so-called “dark patterns” prompted a reply in which he poses two “challenges”: (1) “prove that opt outs benefit consumers by telling us how many consumers opt out,” and (2) “get rid of the deadline [for opting out] and allow … consumers to opt out of arbitration when they know there’s a dispute.”… Continue Reading

For the past decade, Professor Jeff Sovern has criticized companies for including opt out provisions in their consumer arbitration clauses, even though such provisions give consumers freedom of choice by allowing them to reject arbitration without affecting the other contractual terms.  Most recently, he argues that opt out provisions are actually what the FTC calls a “dark pattern”—a practice that “tricks users into making choices they would not otherwise have made and that may cause harm.” … Continue Reading

Two companion bills titled the “Consumer and Small Business Protection Act” have been introduced in the New York legislature would make sweeping changes to the provisions of the state’s general business law (Section 349) dealing with deceptive practices.  In addition to creating a new private right of action, the bills would greatly expand the powers of the New York attorney general. … Continue Reading

Recently, 37 Senators (36 Democrats, one Independent) and 84 members of the House of Representatives (all Democrats), led by Senator Richard Blumenthal of Connecticut and Congressman Hank Johnson of Georgia, reintroduced the Forced Arbitration Injustice Repeal Act (the “Fair Act”) which would amend the Federal Arbitration Act to prohibit the use of pre-dispute arbitration clauses and class action waivers in consumer, employment, civil rights and antitrust cases. … Continue Reading

The U.S. Chamber of Commerce’s recent publication of an 80-page report titled “Mass Arbitration Shakedown: Coercing Unjustified Settlements” has fanned the flames on an already heated debate between consumer advocates and industry lawyers over the propriety of mass arbitrations. 

We have addressed mass arbitration issues and potential defenses extensively in our prior blogs.… Continue Reading

In 2014, the New Jersey Supreme Court held in Atalese v. U.S. Legal Services Group, L.P. that in order to be enforceable, arbitration clauses must contain an express waiver of the parties’ right to seek relief in a court of law.  Earlier this month, in County of Passaic v. Horizon Healthcare Services, Inc.… Continue Reading

Last week, the Biden Administration released a “Blueprint for a Renters Bill of Rights” (Blueprint), which sets forth five principles intended to “create a shared baseline for fairness for renters in the housing market” and directs various federal agencies, including the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC), to take various actions to further those principles. … Continue Reading

The CFPB has issued a proposed rule to establish a system for the registration of nonbanks subject to CFPB supervision that use “certain terms or conditions that seek to waive consumer rights or other legal protections or limit the ability of consumers to enforce their rights.”  Arbitration provisions are among the terms that would trigger registration. … Continue Reading

Last week, a California federal court granted Google’s motion to compel arbitration of claims asserted by customers who alleged that their Fitbit watches burned their skin.  The opinion in Houtchens v. Google found that the company’s “clickwrap” agreement put the plaintiffs on “reasonably conspicuous notice” of the company’s terms of service when they created online accounts to purchase the watches. … Continue Reading