Published By: Maxwell S. Kennerly, Esquire

Consumer Fraud

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As everyone knows by now, Volkswagen admitted that nearly 482,000 of its “clean diesel” cars were actually pollution monsters equipped with special software designed to evade government emissions testing. As The Guardian reported, an analysis suggests that the amount of pollution caused was “roughly the same as the UK’s combined emissions for all power stations, vehicles, industry and agriculture.”

BuzzFeed rounded up news on the many class action lawsuits that have been filed, quoting me as saying, “the car you own is not the car you thought you bought. … Whenever you sell these things, you’re going to lose some value.” At the moment, it’s hard to know where to start on that value. Certainly, the cars will lose value when the fixes imposed by the recall are installed, because they’ll likely have worse mileage and lower horsepower. But there might be even greater economic harm than that, and the answer depends on why Volkswagen embarked on such a massive fraud.

As ThinkProgress notes,

The most likely answer is that the pollution controls probably had a negative impact on the car’s overall durability — they made the engines run hotter, made the cars wear out faster, and caused the car to get worse gas mileage than it would have without the pollution controls.

If that’s the case, then the damage is even greater than just a loss in horsepower or mileage. The cars just won’t be as durable and reliable as they should be. It’s difficult to imagine what could be more harmful to the resale value of a car than a generalized loss of reliability. Nobody buys a diesel Volkswagen to race it on the track with a maintenance crew on hand; consumers buy them for everyday use.

The most incredible part of this story is just how blatant the scam was, and how Volkswagen was able to do it for six years without anyone being the wiser. The scam wasn’t even exposed by a whistleblower, but by West Virginia University’s Center for Alternative Fuels, Engines and Emissions, which discovered the problem while actually trying to show the benefits of diesel passenger vehicles by way of testing a BMW, a VW Passat, and a VW Jetta.
Continue Reading Volkswagen’s TDI Recall And The Epidemic Of Corporate Secrecy

Since its creation in 2010, certain members of Congress have been desperate to thwart the Consumer Financial Protection Bureau (CFPB)  by repeatedly passing bills to limit the CFPB’s power.  Generally throwing a fit, these congressmen claim that the CFPB is a “run-away regulator unlike any other in American history.”

A case decided last week by the Ninth Circuit Court of Appeals, Gutierrez v. Wells Fargo Bank, shows why the CFPB is so important, how its predecessor (the Office of the Comptroller of the Currency) failed the American public, and why we should view anyone opposed to the CFPB with deep suspicion.

The Gutierrez case arises from a change Wells Fargo made to the processing of debit card transactions back in 2001. Wells Fargo claimed in its brochures that, when a consumer used a debit card, the money was “immediately” and “automatically” deducted from their accounts, and admonished customers — with the type of blatant hypocrisy only a true scoundrel can muster — “remember that whenever you use your debit-card, the money is immediately withdrawn from your checking account.  If you don’t have enough money in your account to cover the withdrawal, your purchase won’t be approved.”

In reality, Wells Fargo waited until the end of each day, when it would re-order the transactions to create as many overdrafts as theoretically possible, and then charge the customer a fee for each bank-manufactured overdraft. 
Continue Reading Rampant Bank Fraud Shows Why We Need The Consumer Financial Protection Bureau

Every day, billions of dollars changes hands based on the myth that people actually read, and agree to, every word in every contract they’ve ever signed. Ever read your cell phone contract? Your cable contract? Judge Posner famously admitted that he didn’t read the contract that came with his home equity loan.

Truth is, who has the time or energy to scrutinize every line? And what power do you have to negotiate it? Try negotiating your cell phone contract some time. See if you can even find a person at the company with the authority to negotiate.

Decades ago, thoughtful jurists like federal Judge J. Skelly Wright and California Justice Mathew Tobriner analyzed the issue carefully in cases like Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445, 449-450 (1965) and Steven v. Fidelity & Casualty Co. of New York, 58 Cal. 2d 862, 883, 377 P. 2d 284, 298 (1962) and came to sensible conclusions like Skelly Wright’s statement of the law of contracts of adhesion in Williams:

Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.

That was then, this is now. Now, when the United States Supreme Court thinks that might makes right, so much so that it routinely ignores constitutional limits on special interest legislation for copyright holders while vigorously enforcing the “free speech” rights of pharmaceutical companies to go fishing through your prescription medication records, it’s all just a question of how consumers, patients, employees, and family members will lose in front of the Supreme Court, not if they will. 
Continue Reading One-Sided Arbitration: How To Tell If A Company Expects To Hurt Or Cheat You

Jason Kottke summarizes the situation:

So, LCD Soundsystem is retiring and to see off their fans, they decided to perform one last show at Madison Square Garden. Except that they didn’t think they’d sell the place out and didn’t pay too much attention to how the tickets were being sold. When the tickets went

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