Consumer Contracts Posts

Coming to Terms with Consumer Contracts

In this week’s podcast episode of Reasonably Speaking, consumer contract experts Omri Ben-Shahar and Florencia Marotta-Wurgler discuss several types of consumer contracts, enforceability of terms, and the potential consequences of agreeing to these terms without reading the fine print.

The Draft Restatement of the Law, Consumer Contracts Follows the Law

Last fall, the ALI Council approved Council Draft No. 5 of the Restatement of the Law, Consumer Contracts, for submission to the members at the ALI Annual Meeting in May 2019, subject to the discussion at the Council meeting and the usual editorial prerogatives. The Reporters are now working on the draft to be presented in May.

Empiricism and Privacy Policies in the Restatement of Consumer Contract Law and The Faulty Foundation of the Draft Restatement of Consumer Contracts

“Empiricism and Privacy Policies in the Restatement of Consumer Contract Law” (Empiricism) asks the wrong question and takes the wrong approach to answering that question. A second article in same issue of the Journal, “The Faulty Foundation of the Draft Restatement of Consumer Contracts” (Faulty Foundation) has similar flaws.  Both articles misconceive and overstate the role of “counting” in the preparation of the Restatement, as the Reporters emphasize that the Restatement follows the traditional  ALI approach, which is based on a broad review of court decisions.

October 2018 Council Updates

During its meeting in New York City on October 18 and 19, the ALI Council reviewed drafts for seven Institute projects. Drafts or portions of drafts for six projects received Council approval, subject to the meeting discussion and to the usual prerogative to make nonsubstantive editorial improvements.

First Circuit: Uber Users Did Not Give Unambiguous Assent to Terms of Service

In the defining decision, Cullilane v. Uber Technologies, the First Circuit Court of Appeals reversed a district court’s grant of Uber Technologies’s motion to compel arbitration and dismiss the complaint of a putative class action brought by users of Uber’s ride-sharing service in the Boston area. At issue in the case was the enforceability of an online contract’s arbitration clause. This decision strongly reinforces the notion that online contract processes should be designed, and the information arranged, for consumers and with extreme attention to detail and a focus on clarity of meaning.

January Council Meeting Updates

At its meeting in Philadelphia on January 18 and 19, the Council reviewed drafts for several projects, with the following outcomes:

CFPB Issues Rule Against Mandatory Arbitration

The Consumer Financial Protection Bureau has issued a final rule “governing the use of pre-dispute arbitration agreements by providers of consumer financial products and services.”

Adoption of Standard Contract Terms

This post is a presentation of information found in the Discussion Draft of the Consumer Contracts project. This will be presented at the 2017 Annual Meeting for discussion only.