COMPANY DOE Plaintiff-Appellee - AARP€¦ · Financial, AARP Global Network, and Focalyst. AARP...
Transcript of COMPANY DOE Plaintiff-Appellee - AARP€¦ · Financial, AARP Global Network, and Focalyst. AARP...
NO. 12-2209
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
_______________
COMPANY DOE,
Plaintiff-Appellee,
v.
PUBLIC CITIZEN; CONSUMER FEDERATION OF
AMERICA; and CONSUMERS UNION,
Intervenors-Appellants,
and
INEZ TENENBAUM, in her official capacity as Chairwoman of the
Consumer Product Safety Commission; and CONSUMER
PRODUCT SAFETY COMMISSION,
Defendants.
_______________
On appeal from the U.S. District Court for the District of Maryland
(Hon. Alexander Williams, Jr., U.S. District Judge)
_______________
BRIEF AMICUS CURIAE OF AARP
JULIE NEPVEU (D.C. Bar #458305)
AARP FOUNDATION LITIGATION
MICHAEL SCHUSTER (D.C. Bar # 934133)
AARP
601 E Street, NW
Washington, DC 20049
(202) 434-2060 (telephone)
(202) 434-6424 (facsimile)
December 20, 2012
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CORPORATE DISCLOSURE STATEMENT OF AARP
The Internal Revenue Service has determined that AARP is organized and
operated exclusively for the promotion of social welfare pursuant to Section
501(c)(4) (1993) of the Internal Revenue Code and is exempt from income tax.
AARP is also organized and operated as a non-profit corporation pursuant to Title
29 of Chapter 6 of the District of Columbia Code 1951.
Other legal entities related to AARP include AARP Foundation, AARP
Services, Inc., Legal Counsel for the Elderly, AARP Experience Corps, and AARP
Financial, AARP Global Network, and Focalyst.
AARP has no parent corporation, nor has it issued shares or securities.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT OF AARP ........................................ i
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF INTEREST .................................................................................. 1
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 4
1. Public Consumer Complaint Databases Are Effective
Consumer Protection And Regulatory Tools .................................................. 4
A. Publicly Available Consumer Complaint Databases Are
Effective At Improving Marketplace Quality And Safety By
Increasing Transparency and Holding Businesses, Regulators,
And Lawmakers Accountable .................................................................... 6
1. Public Safety Reporting Incentivizes Manufacturers
To Build Safer Cars ....................................................................... 13
2. The FDA’s Consumer Complaint Databases Enhance Its
Ability To Protect Health And Safety ........................................... 14
3. Public Reporting on the Nursing Home Compare Website
Is Credited With Improving Nursing Home Quality ................... 17
4. Public Reporting Regarding Financial Services Has
Reformed Corporate Behavior and Empowered
Consumers ..................................................................................... 21
B. Consumers Embrace Internet Ratings To Improve Purchasing
Decisions And Drive Market Improvement But Social Media
Is Not An Adequate Substitute For Regulatory Agency Public
Consumer Complaint Databases .............................................................. 25
Conclusion .............................................................................................................. 30
Certificate of Compliance ....................................................................................... 31
Certificate of Service .............................................................................................. 31
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TABLE OF AUTHORITIES
Cases
Dendrite v. Doe, 342 N.J. Super. 134, 775 A.2d 756 (N.J. App. 2001) ..................29
Doe v. Cahill, 884 A.2d 451 (Del. 2005) .................................................................29
McMann v. Doe, 460 F. Supp.2d 259 (D. Mass. 2006) .......................................... 29
Highfields Capital Mgmt. v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005). ...............29
Mobilisa v. Doe, 170 P.3d 712 (Ariz. App. Div. 1 2007) ........................................29
Statutes
15 U.S.C. § 2051 -2089 ............................................................................................. 4
15 U.S.C. § 2051 (b)(4).............................................................................................. 4
12 U.S.C. § 5493(b)(3).............................................................................................22
42 U.S.C. § 1395i-3(b)(4). .......................................................................................18
42 U.S.C. § 1396r(b)(4) ...........................................................................................18
42 U.S.C. § 1396r(h). ...............................................................................................18
42 U.S.C. § 18001 et seq. .........................................................................................19
Center for Medicaid, CHIP, and Survey & Certification/Survey &
Certification Group, Memorandum to State Agency Survey Directors,
April and July 2011 Changes to Nursing Home Compare (March 18,
2011) .....................................................................................................................20
Consumer Product Safety Improvement Act, Pub. Law 110-314
(Aug. 14, 2008) ...................................................................................................2, 4
Consumer Product Safety Information Act ............................................................... 2
Nursing Home Reform Act ......................................................................................17
Omnibus Budget Reconciliation Act .......................................................................17
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Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148,
124 Stat. 119 (2010) .............................................................................................19
PPACA, Section 6103 ..............................................................................................20
Other Authorities
Avi Dan, The Story Of Brands Is About To Change, Forbes.com (Nov. 26,
2012), http://www.forbes.com/sites/avidan/2012/11/26/the-story-of-
brands-is-about-to-change/. ..................................................................................26
Steve Cocheo, Fair lending foundation for UDAAP compliance, ABA
Banking Journal (June 2012) ................................................................................24
Steve Cocheo, Science of the Complaint, Handling Consumer Complaints in
the Age Of CFPB, UDAAP and Twitter, ABA Banking Journal, 30 (June
2012) .....................................................................................................................11
CFPB, 2011 Annual Report (March 2012) ................................................. 22, 23, 24
CFPB, Consumer Response: A Snapshot of Complaints Received (June 19,
2012) .............................................................................................................. 22, 23
CFPB, Notice of Final Policy Statement (June 14, 2012). ......................................23
Cheryl Lampkin, Insights And Spending Habits Of Modern Grandparents,
AARP Research and Strategy Analysis (2012). ..................................................... 2
CMS, 2012 Action Plan for Further Improvement of Nursing Home Quality
(2012) ....................................................................................................................17
CPSC, Supp. Stmt. of Comm. Robert Adler Regarding The Publicly
Available Consumer Product Safety Information Database Rule (Jan.14,
2011), http://www.cpsc.gov/pr/adler01142011.pdf .............................................11
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010,
Public Law 111-203, July 21, 2010 ......................................................................22
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FDA News Release, FDA significantly restricts access to the diabetes drug
Avandia (Sept. 23, 2010), http://www.fda.gov/NewsEvents
/Newsroom/PressAnnouncements/2010/ucm226975.htm ...................................17
FDA, Compliance Program Guidance Manual, 7356.012 (Dec. 7, 2011) .............16
FDA, Consumer Products Complaints Systems (Jan. 12, 2009),
http://www.fda.gov/ICECI/Inspections/FieldManagement
Directives/ucm061481.htm. ................................................................................... 6
FDA, FDA 101: How to Use the Consumer Complaint System and
MedWatch, http://www.fda.gov/downloads/BiologicsBloodVaccines/
SafetyAvailability/ReportaProblem/UCM136123.pdf, last visited
Dec. 19. 2012 ............................................................................................. 8, 10, 11
FDA, Information on Adverse Event Reports and Heparin (June 18, 2009),
http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationf
orPatientsandProviders/ucm112669.htm ..............................................................16
FDA, Novartis Consumer Health Over-The-Counter Products: Recall -
Potential Presence of Foreign Tablets or Chipped or Broken Tablets or
Gelcaps including Excedrin, NoDoz, Bufferin, Gas-X Prevention (Jan. 9,
2012), http://www.fda.gov/Safety/MedWatch/SafetyInformation/
SafetyAlerts forHumanMedicalProducts/ucm286265.htm. .................................15
FDA, Press release, FDA Alerts Consumers to Unsafe, Misrepresented
Drugs Purchased Over the Internet (Feb. 16, 2007),
http://www.fda.gov/newsevents/newsroom/pressannouncements/2007/
ucm108846.htm ......................................................................................... 9, 14, 15
FDA, What Happens When a Problem is Reported?
http://www.fda.gov/Safety/ReportaProblem/QuestionsandAnswersProble
m Reporting/ucm056069.htm, last visited Dec. 19, 2012 ....................................15
Federal Trade Commission (FTC), Before you submit a complaint (Aug. 1,
2012), https://www.ftccomplaintassistant.gov/, last visited Dec. 19, 2012 ........... 7
Financial Crisis Inquiry Commission Report, xxii (Feb. 25, 2011). .......................21
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FTC, Consumer Sentinel Network,
http://www.ftc.gov/sentinel/factsheet.pdf, last accessed Dec. 19, 2012. ............... 7
Dan Frosch, Venting Online, Consumers Can Find Themselves in Court,
N.Y. Times, May 31, 2010, http://www.nytimes.com/2010/06/01/us/01
slapp.html?pagewanted= all&_r=0 ..................................................................... 28
Alyssa Gerace, CMS Redesigns Nursing Home Compare Website, Adds
More Facility Data, Senior Housing News (July 19, 2012) ...............................21
Intervenor Op. Br ....................................................................................................... 5
Justin Jouvenal, Virginia woman is sued over her Yelp review, Wash. Post,
Dec. 4, 2012, http://articles.washingtonpost.com/2012-1204/local/3562
5084_1_yelp-online-reviews-defamation .............................................................28
Jennifer Taggart, The CPSIA and Social Media Make Product Issues
Public, ABA Litigation News (May 17, 2010) ................................. 12, 25, 27, 28
Meskell, Darlene, Transparency in Government, Intergovernmental
Solutions Newsletter (Spring 2009) ....................................................................... 5
Michael Luca, Reviews, Reputation and Revenue: The Case of Yelp.com,
Harvard Business School Working Paper 12-016 (September 16, 2011). ...........26
NHTSA, Firestone Update. NHTSA.gov, Firestone Recalls (Oct. 4, 2001),
http://www.nhtsa.gov/nhtsa/announce/press/Firestone/Update.html ..................... 8
NHTSA, The New Car Assessment Program, Suggested Approaches for
Future Program Enhancements (Jan. 2007). Available at http://www.
safercar.gov/staticfiles/safercar/pdf/810698.pdf. ................................................14
NHTSA, Presentations and Speeches: 2011 Presentations, Office of Defects
Investigation, Gregory Magno, 2011 SAE Government Industry Meeting
Presentation (Jan. 27, 2011), http://www.nhtsa.gov/Speeches?
presentationYear=2011&presentationPage=1. ....................................................... 7
Pichler, Rufus, The Online-Marketplace: Shaking the Foundations of
Consumer Confidence, Stanford Law School 67 (May 2000), available at
http://law.stanford.edu/library/biblio/rufus.pdf ....................................................10
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Prepared Testimony of The FTC on Financial Literacy and Consumer
Education, Sen. Comm. on Banking, Housing and Urban Aff., (July 29,
2003) (Stmt. of Joel Winston), available at
http://www.ftc.gov/os/2003/07/financialliteracytest.htm ....................................... 9
Press Release: Global Consumers' Trust in 'Earned' Advertising Grows in
Importance, Nielsen (April 2012), http://www.nielsen.com/us/en/insights/
press-room/2012/nielsen-global-consumers-trust-in-earned-advertising-
grows.html. ...........................................................................................................25
Report, Comm. on Banking, Housing, and Urban Aff., S. Rep. 111–176, 1
(Ap. 30, 2010) .......................................................................................................22
Safercar.gov, Frequently Asked Questions,5 Star Safety Ratings,
http://wwwodi.nhtsa.dot.gov/cars/problems/complain/complaintsearch.
cfm, then follow “Frequently Asked Questions,” last visited Dec. 19, 2012 ......13
Safercar.gov, Vehicle Owners: News and Information to Help Keep You and
Your Vehicle Safe, 2012, http://www.safercar.gov/Vehicle+Owners, last
visited Dec. 19, 2012 ............................................................................................14
Testimony of CMS before the U.S. House of Reps. Comm. on Energy and
Commerce, Subcomm. on Oversight and Investigations (May 15, 2008)
(Stmt. of Kerry Weems, CMS Acting Admin.),
http://www.hhs.gov/asl/testify/2008/05/ t20080515a.html ........................... 18, 19
U.S. Food and Drug Administration. What Happens When A Problem is
Reported? http://www.fda.gov/Safety/ReportaProblem/
QuestionsandAnswersProblemReporting/ucm056069.htm, last visited
Dec. 19, 2012. .....................................................................................................6, 7
U.S. Government General Accounting Office, Consumer Product Safety
Commission, Better Data Needed to Help Identify and Analyze Potential
Hazards (Sept., 1997) ...........................................................................................12
U.S. Government Office of Management and Budget, Speeches,
OIRA Administrator Addresses “The Power of Open Government,”
(March 10, 2010), http://www.whitehouse.gov/omb/
oira_speech_03102010/ ........................................................................................12
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Vincent Mor, et al., Changes in the Quality of Nursing Homes in the US: A
review and data update (Aug. 15, 2009). .............................................................19
Werner R.M. et al., Do consumers respond to publicly reported quality
information? Evidence from nursing homes, J Health Econ. 50-61 (Jan. 31,
2012) .....................................................................................................................10
Werner, R.M. et al., Impact of Public Reporting on Quality of Postacute
Care,1170-71, Health Services Research 44:4 (Aug. 2009) ................................18
Rules
Federal Rule of Appellate Procedure 29(c)(5) ........................................................... 1
Regulations
Consumer Product Safety Commission, Publicly Available Consumer
Product Safety Information Database, Final Rule, 75 Fed. Reg. 76,832,
76,832 (Dec. 9, 2010) .......................................................................................4, 27
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STATEMENT OF INTEREST
AARP1 is a non-partisan, non-profit organization with a membership that
helps people 50+ have independence, choice and control in ways that are beneficial
and affordable to them and society as a whole. As the leading organization
representing the interests of people aged 50 and older, AARP advocates to protect
the health, safety and financial security of older people.
Poor quality and unsafe consumer products, financial services, and health
care products, providers, and facilities pose significant threats to the health, safety,
and financial security of older people. They are extremely vulnerable to such
threats because they tend to have low and fixed incomes as they age and they
consume a disproportionate share of health care products and services. As people
advance to older age, their financial decision-making capacity wanes, making older
people increasingly vulnerable to deceptive practices and fraud. Similarly,
advanced age heightens one’s susceptibility to physical injury and illness from
unsafe food and consumer and health care products and services.
Moreover, older people seek to protect their children and grandchildren
from unsafe products and services. AARP research indicates that approximately
1 Pursuant to Federal Rule of Appellate Procedure 29(c)(5), AARP states that this
brief was not authored in whole or in part by any party or its counsel, and that no
person other than AARP, its members, or its counsel contributed any money that
was intended to fund the preparation and submission of this brief.
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95 percent of older people with grandchildren purchase gifts and other items for
grandchildren. Approximately 34 percent of grandparents reported being interested
in obtaining information about gifts for their grandchildren. Cheryl Lampkin,
Insights And Spending Habits Of Modern Grandparents, 18, AARP Research and
Strategy Analysis (2012).
AARP is interested in the outcome of this case because public access to
consumer complaint databases is extremely valuable to protect the interests of
older people and their loved ones. AARP’s participation in the case will assist the
court in understanding the issues presented by this case.
SUMMARY OF ARGUMENT
Permitting secret court proceedings by an anonymous company regarding a
consumer complaint made to the Consumer Product Safety Commission (CPSC)
undermines the important consumer protection goals Congress sought to achieve in
enacting the Consumer Product Safety Improvement Act (CPSIA). The use of
publicly reported consumer complaints as a regulatory tool is powerful and
effective because it empowers knowledgeable, proactive consumers, encourages
business competition, and assists regulators to identify problems and trends in a
timely manner so as to prevent additional harm. Together, these efforts effectively
and efficiently improve the marketplace of goods and services.
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Publicly accessible consumer complaint databases are strongly associated
with improved safety and quality outcomes in a variety of regulatory contexts. The
National Highway Transportation Safety Administration (NHTSA), Food and Drug
Administration (FDA), Centers for Medicare and Medicaid Services (CMS), and
the Consumer Financial Protection Bureau (CFPB), each rely on public consumer
complaints to advance their respective missions.
The effectiveness of public disclosure of consumer complaint data at driving
businesses to compete for customers is further demonstrated by the business
response to consumers’ overwhelming, spontaneous embrace of consumer product
rating and complaint reporting on social networking and other websites. Even
though the social networking reviews do not deliver the same consumer protection
value as those operated by regulatory agencies, the ratings are influential.
Respectfully, AARP urges the court to disclose Company Doe’s real name
and to unseal the court proceedings.
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ARGUMENT
I. Public Consumer Complaint Databases Are Effective Consumer
Protection And Regulatory Tools
In the wake of public outcry after 20 million unsafe toys were recalled in
2008, Congress enacted the Consumer Product Safety Improvement Act (CPSIA),
Pub. Law 110-314 (Aug. 14, 2008), amending the Consumer Product Safety Act,
codified at 15 U.S.C. § 2051 - 2089. The regulatory process in place prior to 2008
limited CPSC’s ability to notify the public about known dangers, defects, or other
problems by requiring notice to the manufacturer and an opportunity for them to
respond prior to public disclosure. See Consumer Product Safety Commission,
Publicly Available Consumer Product Safety Information Database, Final Rule, 75
Fed. Reg. 76,832, 76,832 (Dec. 9, 2010). Consumers and legislators alike were
outraged that toys and other products that could seriously injure—and even kill—
them, their children, and grandchildren were permitted to remain on the market
even after their defects were known, without warning consumers of the possibility
of risk.
To resolve these concerns, Congress chose to serve the interests of
consumers, regulators, and businesses by mandating creation of a public consumer
complaint database. Such databases provide adequate, helpful information in a
timely manner to help prevent harm. See 15 U.S.C. 2051 (b)(4) (one purpose of
the CPSIA is “to promote research and investigation into the causes and prevention
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of product related deaths, illnesses, and injury.”). The CPSIA database is similar to
the public complaint databases maintained by the National Highway Traffic Safety
Administration (NHTSA), and the Food and Drug Administration (FDA). These
and other similar public complaint databases, such as “Nursing Home Compare”
maintained by the Centers for Medicare and Medicaid Services (CMS), and
“Consumer Response” maintained by the Consumer Financial Protection Bureau
(CFPB), efficiently and effectively serve multiple policy goals. In particular,
public databases empower consumers to educate and protect themselves, which
drives businesses to compete by improving quality and safety in the marketplace.
Knowing their complaints will be viewable by other consumers encourages
consumer reporting, which provides regulators with unique insight into consumer
experiences with regulated products. See, e.g. Meskell, Darlene, Transparency in
Government, Intergovernmental Solutions Newsletter (Spring 2009) (discussing
public benefits including transparency, accountability, and citizen engagement that
flow from the “democratization of data”).2
As Intervenors have argued, the public reporting of complaints under the
CPSIA has been effective in providing safety information to consumers more
timely than under the previous regulatory scheme. See Intervenor Op. Br. at 4-5,
38-39 (noting CPSC is required to remove inaccurate information from complaints
2 Available at http://www.scribd.com/doc/36856677/Transparency-in-Government.
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then publish them within 20 business days, and that 11,500 complaints have been
filed since database launch). Positive outcomes resulting from similar public
consumer complaint databases further demonstrate the power and effectiveness of
disclosing consumer complaint data.
A. Publicly Available Consumer Complaint Databases Are Effective
At Improving Marketplace Quality And Safety By Increasing
Transparency and Holding Businesses, Regulators, And
Lawmaker Accountable
Public complaint databases, such as those maintained by NHTSA, FDA,
CMS, and the CFPB share certain features which make them invaluable regulatory
tools. First, public complaint databases provide a forum that encourages
consumers voluntarily to supply important feedback regarding their experiences
with products and services. This consumer feedback creates a unique data set
available to the regulators, businesses, and third-party researchers about how
products perform in the real world rather than merely in the laboratory. For
example, the FDA “collects information on the condition of FDA regulated
products … This information can be compiled and evaluated to highlight current
problems and long term trends.” FDA, Consumer Products Complaints Systems
(Jan. 12, 2009), http://www.fda.gov/ICECI/Inspections/FieldManagement
Directives/ucm061481.htm. Thus, “[c]onsumer product reports serve as an
important alert system.” See U.S. Food and Drug Administration. What Happens
When A Problem is Reported? http://www.fda.gov/Safety/ReportaProblem/
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QuestionsandAnswersProblemReporting/ucm056069.htm, last visited Dec. 19,
2012.
The breadth and timeliness of information collected through consumer
complaint databases helps agencies “to detect patterns of wrong-doing, and lead[s]
to investigations and prosecutions.” Federal Trade Commission (FTC), Before you
submit a complaint (Aug. 1, 2012), https://www.ftccomplaintassistant.gov/, last
visited Dec. 19, 2012. For example, complaints to FTC’s “Consumer Sentinel”
database are particularly crucial in assisting law enforcement agencies to detect
internet fraud schemes because data becomes available quickly enough to be useful
in combating transient fraud. See FTC, Consumer Sentinel Network,
http://www.ftc.gov/sentinel/factsheet.pdf, last accessed Dec. 19, 2012.3
Consumer complaints are described as NHTSA’s “most important field
data,” for prompting new defect investigations, assessing safety recall effectiveness
and targeting compliance testing.” NHTSA, Presentations and Speeches: 2011
Presentations, Office of Defects Investigation, Gregory Magno, 2011 SAE
Government Industry Meeting Presentation, 7 (Jan. 27, 2011), http://www.nhtsa.
gov/Speeches?presentationYear=2011&presentationPage=1. One notable example
is the 2000 Firestone Tire recall. Over 5,000 consumer complaints resulting in
over 800 injuries, including 271 deaths were critical in the discovery of problems
3 The FTC’s Consumer Sentinel Network is only available to law enforcement
agencies, not consumers.
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with the tires that ultimately led to the recall. See NHTSA, Firestone Update,
NHTSA.gov, Firestone Recalls (Oct. 4, 2001), http://www.nhtsa.gov
/nhtsa/announce/press/Firestone/Update.html. Public complaint databases
contribute significantly to regulatory effectiveness and consumer protection by
providing necessary data.
Active consumer participation in reporting feedback about products and
services is essential to the success of this regulatory model. Previously
unrecognized—or concealed—product defects and trends, as well as dangers that
stem from unanticipated consumer uses of products, may remain hidden or
unverifiable with a small data set. For example, “sometimes there are risks that
only come to light after a medical product gets on the market and is used in a larger
number of patients, for a longer period of time, and in patients whose health
characteristics are different from those of the patients studied before approval. So
continued monitoring of adverse events is essential and depends on reporting of
these events to FDA so they can be entered in MedWatch.” FDA, FDA 101: How
to Use the Consumer Complaint System and MedWatch, http://www.fda.gov/For
Consumers/ConsumerUpdates/ucm049087.htm, last visited Dec. 18. 2012,
(quotation omitted).
Providing the public with access to the data encourages consumers to be
proactive in protecting their own safety and financial interests. For example, FDA
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“continuously warns U.S. consumers of the possible dangers of buying prescription
drugs online and urges them to review the FDA Web site for additional
information prior to making purchases of medication over the Internet.” See FDA,
Press release, FDA Alerts Consumers to Unsafe, Misrepresented Drugs Purchased
Over the Internet (Feb. 16, 2007), http://www.fda.gov/newsevents/newsroom/
pressannouncements/2007/ucm108846.htm. Well-educated, financially literate
consumers make better purchasing decisions and are better able to protect
themselves. Knowledge about a product recall, for example, may prevent avoidable
injury or save the consumer unnecessary expense to replace or repair a product that
the manufacturer would cover. According to the Federal Trade Commission
(FTC), “consumer education is among our most important tools in the fight against
fraud and deception, because consumers are their own first line of defense.”
Prepared Testimony of The FTC on Financial Literacy and Consumer Education,
Sen. Comm. on Banking, Housing and Urban Aff., (July 29, 2003) (Stmt. of Joel
Winston), available at http://www.ftc.gov/os/2003/07/financialliteracytest.htm.
Consumers empowered with timely, useful information drive businesses to
produce safer, higher quality products and services by forcing them to compete
based on quality and value. For example, researchers have found that “[w]ithout
public reporting, consumers may have little information to help them differentiate
quality among providers, giving providers little incentive to compete on quality.
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Public reporting enables consumers to choose highly ranked providers [ ].” Werner
R.M. et al., Do consumers respond to publicly reported quality information?
Evidence from nursing homes, 1, J Health Econ. 50-61 (Jan. 31, 2012).4
The data and interactive process provided through consumer complaint
databases allows regulatory agencies to be more responsive to the needs of
consumers and to keep pace with rapidly changing conditions in the marketplace.
Pichler, Rufus, The Online-Marketplace: Shaking the Foundations of Consumer
Confidence, Stanford Law School 67 (May 2000), available at http://law.stanford
.edu/library/biblio/rufus.pdf. This responsiveness is essential to prevent avoidable
harm from products known to present a danger. “Just a few complaints can make a
difference,” says Joan Trankle, FDA’s National CCC. FDA, FDA 101: How to Use
the Consumer Complaint System and MedWatch, http://www.fda.gov/downloads/
BiologicsBloodVaccines/SafetyAvailability/ReportaProblem/UCM136123.pdf, last
visited Dec. 19. 2012. For example, product labels that fail to list known common
allergens may seriously endanger and even kill consumers. Three consumer
complaints about allergic reactions to undeclared milk protein in a type of soymilk
were sufficient to prompt an investigation and for the company to recall the
product. Id. Similarly, FDA began an investigation that resulted in a voluntary
product recall after receiving only two complaints about burns resulting from an
4 Available at http://www.ncbi.nlm.nih.gov/pubmed/22307033.
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adhesive patch that generates heat to relieve muscle and joint pain. Id. The speed at
which public consumer complaint databases can permit regulators to respond to
consumer complaints makes it possible to prevent other consumers from suffering
injury from dangerous products. Creation of the public database of consumer
complaints “puts critical knowledge about the safety of products in consumers’
hands in a timely fashion, and should save lives and reduce injuries.” CPSC, Supp.
Stmt. of Comm. Robert Adler Regarding The Publicly Available Consumer Product
Safety Information Database Rule 1 (Jan. 14, 2011), http://www.cpsc.gov/pr/adler0
1142011.pdf.
Consumer complaints also influence and even assist businesses to learn of
product defects or dangers. “Complaints can be a good early warning system”
which offers them a “huge competitive advantage if [a business] leverage[s] them.”
Steve Cocheo, Science of the Complaint, Handling Consumer Complaints in the
Age Of CFPB, UDAAP and Twitter, ABA Banking Journal, 30 (June 2012)
(quoting, respectively, Virginia O’Neill, senior counsel in ABA’s Center for
Regulatory Compliance and Craig Stone, Managing Director at Alvarez & Marsal
Financial Industry Advisory Services).5 In the soy milk example above, for
example, a company that takes action to remove the product after being alerted to
the problem is better to avoid potentially significant liability for its labeling
5 Available at http://www.nxtbook.com/nxtbooks/sb/ababj0612/index.php#/32.
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mistake. See Jennifer Taggart, The CPSIA and Social Media Make Product Issues
Public, ABA Litigation News (May 17, 2010) (explaining failure to monitor social
media for consumer complaints may expose business to “civil and criminal
penalties up to $15 million” for “knowingly violat[ing]” the relevant portions of
[CPSA and other product safety] laws.”).6
Publicly available consumer complaint data also provides consumers with a
means of measuring the effectiveness of agencies and laws governing the
marketplace and a way to hold lawmakers, regulators, and the regulated industries
accountable if they fail to serve adequately the public interest. See U.S.
Government Office of Management and Budget, Speeches, OIRA Administrator
Addresses “The Power of Open Government,” (March 10, 2010), http://www.
whitehouse.gov/omb/oira_speech_03102010/; U.S. Government General
Accounting Office, Consumer Product Safety Commission, Better Data Needed to
Help Identify and Analyze Potential Hazards (Sept., 1997) (criticizing that
“although CPSC has described itself as ‘data driven,’ its information on product-
related injuries and deaths is often sketchy. For example, because the agency’s
measure of injuries generally includes only hospital emergency room reports,
CPSC has an incomplete picture of injuries.”).
6 Available at http://apps.americanbar.org/litigation/litigation news/practice_
areas/051710-products-liability-consumer-product-safety-commission-social-
media.html.
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Positive outcomes from the NHTSA and FDA consumer complaint
databases on which CPSIA is modeled, and other publicly reported complaint
databases including CMS’s Nursing Home Compare and CFPB’s Consumer
Response, prove that they are effective and desirable regulatory tools specifically
because they encourage the timely and open flow of information that is necessary
to empower consumers, drive quality through competition, and alert regulators and
the public to problems.
1. Public Safety Reporting Incentivizes Manufacturers
To Build Safer Cars
NHTSA maintains a database that combines consumer ratings and
complaints about vehicles with its own safety testing results of new vehicles. Since
the original implementation of NHTSA’s New Car Assessment program in 1978
“to measure the level of increased safety for vehicle occupants in frontal crashes,”
NHTSA has expanded the information the database reports to include “side crash
rating results … with 1997 model year vehicles and rollover assessments with
2001 models.” Safercar.gov, Frequently Asked Questions, 5 Star Safety Ratings,
http://www-odi.nhtsa.dot.gov/cars/problems/complain/complaintsearch.cfm, then
follow “Frequently Asked Questions,” last visited Dec. 19, 2012. “This is a
program that encourages manufacturers to voluntarily design safer vehicles by
giving them safety ratings that can be used by consumers to compare vehicles
when shopping for a new car.” Id. NHTSA asserts that the program has strongly
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influenced manufacturers to build vehicles that consistently achieve high ratings,
thereby increasing the safety of vehicles.” NHTSA, The New Car Assessment
Program, Suggested Approaches for Future Program Enhancements (Jan. 2007).7
NHTSA credits consumer feedback with “saving lives and driving the
development of safer cars.” Safercar.gov, Vehicle Owners: News and Information
to Help Keep You and Your Vehicle Safe, 2012, http://www.safercar.gov/Vehicle+
Owners, last visited Dec. 19, 2012 (urging consumers to report feedback and
asserting that “[t]oday's cars are the safest in history thanks to owner feedback and
the development of advanced safety technologies”). To encourage robust
consumer participation and ensure that sufficient data is available, NHTSA
“improved the program by adding rating programs, providing information to
consumers in a more user friendly format, and substantially increasing accessibility
to the information via the website, www.safercar.gov.” Id.
2. The FDA’s Consumer Complaint Databases Enhance Its
Ability To Protect Health And Safety
FDA acknowledges it “cannot be everywhere at all times. Therefore,
consumer product reports are an important part of FDA's monitoring system and
help ensure that the products the agency regulates are safe, properly manufactured
and stored, and correctly labeled.” FDA, Press release, FDA Alerts Consumers to
Unsafe, Misrepresented Drugs Purchased Over the Internet (Feb. 16, 2007),
7 Available at http://www.safercar.gov/staticfiles/safercar/pdf/810698.pdf.
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http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2007/ucm1088
46.htm. This is especially important because “[m]ore than 21 cents of every dollar
spent by consumers goes [toward] products [that the] FDA regulates. This amounts
to more than $1.4 trillion a year.” FDA, What Happens When a Problem is
Reported? http://www.fda.gov/Safety/ReportaProblem/QuestionsandAnswers-
ProblemReporting/ucm056069.htm, last visited Dec. 19, 2012. Reports of
unfortunate experiences of injured consumers help protect others from suffering
harm. For example, FDA initially learned about dangerous and mislabeled drugs
being sold over the internet through consumer complaints. FDA Alerts Consumers
to Unsafe, Misrepresented Drugs Purchased Over the Internet. Consumer
complaints about chipped and broken pills and inconsistent bottle packaging also
played an important role in influencing Novartis Consumer Health Inc., voluntarily
to recall several of its over-the-counter drug products in 2012. See FDA, Novartis
Consumer Health Over-The-Counter Products: Recall - Potential Presence of
Foreign Tablets or Chipped or Broken Tablets or Gelcaps including Excedrin,
NoDoz, Bufferin, Gas-X Prevention (Jan. 9, 2012), http://www.fda.gov/Safety
/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/ucm28626
5.htm.
In addition to encouraging consumers to report complaints, FDA has also
operated a voluntary program since the 1970’s specifically to encourage health
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care professionals to “report observed or suspected defects and problems
associated with finished drug product in the pharmaceutical supply chain.” FDA,
Compliance Program Guidance Manual, 7356.012 (Dec. 7, 2011).8 From 1988 to
1993, the program was called the “Drug Quality Reporting System (DQRS).” Id.
In June 1993, the FDA introduced the MedWatch reporting program. Id.
According to the FDA, “[t]he MedWatch program plays a vital role in the post
marketing phase of regulating all pharmaceutical products. It has a twofold
purpose: 1) to rapidly identify significant health hazards associated with the
manufacturing and packaging of pharmaceuticals, and 2) to establish a central
reporting system for capturing and identifying drug quality problem areas or trends
that may require regulatory action.” Id.
The reporting has been critical in preventing harm from medication and
medical devices. For example, heparin was recalled in 2008 due to reports of 246
deaths related to heparin since January 2007. Of those reports, 238 occurred
between Jan. 1, 2008 and May 31, 2008. FDA, Information on Adverse Event
Reports and Heparin (June 18, 2009), http://www.fda.gov/Drugs/DrugSafety
/PostmarketDrug SafetyInformationforPatientsandProviders/ucm112669.htm. In
September, 2010, the FDA significantly restricted access to Avandia, prescribed to
treat Type 2 diabetes, due to reports of elevated risk of heart attack and stroke.
8 Available at http://www.fda.gov/downloads/Drugs/GuidanceCompliance
RegulatoryInformation/UCM282847.
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FDA News Release, FDA significantly restricts access to the diabetes drug
Avandia (Sept. 23, 2010), http://www.fda.gov/NewsEvents/Newsroom/Press
Announcements/2010/ucm226975.htm.
3. Public Reporting on the Nursing Home Compare Website Is
Credited With Improving Nursing Home Quality
Healthcare regulators, among others, understand that “[t]he availability of
relevant and timely information can significantly enable individuals to be active
and informed participants in their care.” CMS, 2012 Action Plan for Further
Improvement of Nursing Home Quality, iii (2012).9 “Additionally, this information
can enable individuals to hold the health care system accountable for the quality of
services and support that should be provided. To that end, CMS seeks to provide
an increasing array of understandable information that can be readily accessed by
the public.” Id.
Public reporting of consumer complaints and quality of care ratings has been
instrumental in alleviating the decades-long concerns over pervasive, poor quality-
of-care in nursing homes. Such concerns persisted even after Congress attempted
to resolve them, in the 1987 Nursing Home Reform Act and the Omnibus Budget
Reconciliation Act, by requiring each Medicare- and Medicaid-certified nursing
home to be regularly inspected and submit regular comprehensive assessments of
9 Available at http://www.cms.gov/Medicare/Provider-Enrollment-and
Certification/CertificationandComplianc/Downloads/2012-Nursing-Home-Action-
Plan.pdf.
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each resident, and by tying Medicare and Medicaid payments directly to provision
of services where a patient or resident can “attain and maintain the highest
practicable physical, mental, and psychosocial well-being.” 42 U.S.C. §
1396r(b)(4) & 42 U.S.C. § 1395i-3(b)(4). Congress further provided that payments
would be denied for non-compliance with applicable care standards. 42 U.S.C. §
1396r(h).
Researchers attributed the “persistent problems of inadequate quality [ ] to
the lack of information about quality with which to stimulate consumer choice of
care and provider competition for high-quality care.” Werner, R.M. et al., Impact
of Public Reporting on Quality of Postacute Care,1170-71, Health Services
Research 44:4 (Aug. 2009).10
Recognizing the importance of consumer access to
information and its significant role in driving quality improvements, CMS began in
2002 to report data about nursing home facilities’ staffing levels and inspection
results, including those triggered by consumer complaints on its “Nursing Home
Compare” website. “In addition to about 16,000 comprehensive surveys [in 2006],
CMS and States conducted more than 45,000 complaint investigations in nursing
homes.” Testimony of CMS before the U.S. House of Reps. Comm. on Energy and
Commerce, Subcomm. on Oversight and Investigations (May 15, 2008) (Stmt. of
10
Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2739023
/pdf/hesr0044 -1169.pdf.
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Kerry Weems, CMS Acting Admin.), http://www.hhs.gov/asl/testify/2008/05/
t20080515a.html.
The public reporting of the data on Nursing Home Compare, where it is
readily available to consumers, has had at least two measurable impacts on nursing
home quality: it has “clearly stimulated many providers to institute quality
improvement efforts which appear to have resulted in greater improvements in
both measured and some unmeasured quality scores” and “[i]t has begun to ‘steer’
those seeking nursing home care to better performing facilities.” Id. at 3. While
some of the reported data had been available publicly for much longer, its
accessibility “is associated with independent improvements in outcomes, both
reported as well as unreported.” Vincent Mor, et al., Changes in the Quality of
Nursing Homes in the US: A review and data update, 8 (Aug. 15, 2009).11
Building on the success of Nursing Home Compare, the Patient Protection
and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (2010)
(codified at 42 U.S.C. § 18001 et seq.) (PPACA) also advances various strategies
to engender better care through the dissemination of information to consumers.
The statute includes numerous provisions that encourage or require collection,
aggregation and public reporting of quality metrics, care coordination, improved
11
Available at http://www.aqnhc.org/pdfs/changes-in-quality.pdf.
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delivery of services for people with chronic conditions, wellness, prevention, and
health promotion. Id.
CMS recently made significant changes to Nursing Home Compare to
encourage greater consumer participation in improving nursing home quality,
pursuant to Section 6103 of the PPACA. The first change was “to add information
to allow consumers to more directly file complaints about nursing homes with
State Survey Agencies…. [i]nclud[ing] adding links from Nursing Home Compare
to State complaint websites, [ ] making State phone numbers and fax numbers
more prominent on Nursing Home Compare... [and] adding a standardized
complaint form.” Center for Medicaid, CHIP, and Survey & Certification/Survey
& Certification Group, Memorandum to State Agency Survey Directors, April and
July 2011 Changes to Nursing Home Compare (March 18, 2011).12
Next, CMS
began “display[ing] information for each nursing [home] about the number of
substantiated complaints received and about the number of enforcement actions
(specifically Civil Money Penalties and Denials of Payment for New Admissions)
that have been levied.” Id.
Nursing home trade groups acknowledge that greater public access to data is
essential to improve health care quality. “Any time you can share information that
allows our centers to adapt, innovate and improve, those are important steps
12
Available at http://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/SurveyCertificationGenInfo/downloads/SCLetter11_17.pdf.
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forward,” he says. “After all, without information and feedback, we can’t improve
at a level we all need and want.” Alyssa Gerace, CMS Redesigns Nursing Home
Compare Website, Adds More Facility Data, Senior Housing News (July 19, 2012)
(quoting Greg Crist, vice president of public policy for American Health Care
Association).13
The CMS website enhancements are working to improve consumer
access: “[t]he first half of 2012 brought about 500,000 visitors to Nursing Home
Compare, says CMS, adding that the tool is “highly popular” with patients, their
families, and caregivers.” Id.
4. Public Reporting Regarding Financial Services Has Reformed
Corporate Behavior and Empowered Consumers
The value of the role of transparency and accountability in protecting
consumers in the financial services marketplace is clear. Following the recent
financial crisis, for example, an investigation into the root causes concluded:
The integrity of our financial markets and the public’s trust in those
markets are essential to the economic well-being of our nation. The
soundness and the sustained prosperity of the financial system and our
economy rely on the notions of fair dealing, responsibility, and
transparency. In our economy, we expect businesses and individuals
to pursue profits, at the same time that they produce products and
services of quality and conduct themselves well.
Financial Crisis Inquiry Commission Report, xxii (Feb. 25, 2011).14
13Available at http://seniorhousingnews.com/2012/07/19/cms-redesigns-nursing-
home-compare-website-adds-more-facility-data/. 14
Available at http://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf.
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In response to the devastating economic losses caused by widespread
unsound banking and investment practices, which banking regulators failed to
prevent, Congress established the CFPB to increase transparency and
accountability. Dodd-Frank Wall Street Reform and Consumer Protection Act of
2010, Public Law 111-203, July 21, 2010 (Dodd-Frank); see Report, Comm. on
Banking, Housing, and Urban Aff., S. Rep. 111–176, 1 (Ap. 30, 2010) (Stmt. of
Sen. Dodd) (asserting “investment banks and other types of nonbank financial
firms operated with inadequate government oversight” during the financial
crisis).15
Among other mandates, Congress required the CFPB to establish a unit to
collect, monitor, and respond to complaints regarding consumer financial products
and services. 12 U.S.C. § 5493(b)(3).
Pursuant to this mandate, the CFPB created a “Consumer Response Team”
which began taking complaints about credit cards, mortgages, bank products and
services, and other types of consumer financial services. See CFPB, Consumer
Response: A Snapshot of Complaints Received, 2 (June 19, 2012).16
The CFPB
“uses consumer complaints to inform its work in making prices and risks clearer,
protecting consumers of financial products and services, and encouraging financial
markets to operate fairly and competitively.” CFPB, 2011 Annual Report, 10
15
Available at http://www.gpo.gov/fdsys/pkg/CRPT-111srpt176/pdf/CRPT-
111srpt176.pdf. 16
Available at http://files.consumerfinance.gov/f/201210_cfpb_consumer_
response_september-30-snapshot.pdf.
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(March 2012).17
Over time, the type of complaints and the degree of public access
it grants to the database has increased. Consumer Response, at 2. The CFPB also
created a “Tell Your Story” feature on its website that gives consumers the
opportunity to share their experiences—positive or negative—with consumer
financial products and services. These submissions, like formal complaints, are
reviewed by CFPB staff to help the Bureau understand current issues in the
financial marketplace. See CFPB Annual Report, at 4. The purpose of public
disclosure of the consumer complaints is “to provide consumers with timely and
understandable information about credit cards and to improve the functioning of
the credit card market. By enabling more informed decisions about credit card use,
the [CFPB] intends for its complaint data disclosures to improve the transparency
and efficiency of the credit card market.” CFPB, Notice of Final Policy Statement,
36 (June 14, 2012).18
Collecting and making complaint data public is producing significant results.
Between July 21 and December 31, 2011, 13,210 consumers complained about
credit cards and mortgages. CFPB Annual Report, at 10. The CFPB sent
approximately 75 percent of the complaints to companies, which responded to
approximately 88 percent of those complaints. Id. at 8. The companies closed over
17
Available at available at http://files.consumerfinance.gov/f/201204_cfpb_
ConsumerResponseAnnualReport.pdf. 18
Available at http://files.consumerfinance.gov/f/201206_cfpb_notice-of-final-
policy-statement_disclosure-of-credit-card-complaint-data.pdf.
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55 percent of these complaints with relief and approximately 31 percent without
relief. Id. at 8.
CFPB’s public complaint data process enhances its efficiency and
effectiveness because it frees the Consumer Response team to “primarily focus[ ]
its review and investigation efforts on those complaints where the consumer
disputed the response or where the company failed to provide a timely response.”
Id. at 10. “Consumer Response also periodically investigates groups of
complaints to survey product- and issue-specific trends.” Id. at 10.
The public availability of consumer complaints about financial products and
services is also clearly having its intended effect of driving improvements in
financial institutions. Bankers consider the information contained in the agency’s
consumer complaints databases as integral to their compliance, allowing them to
learn about and address issues that could lead to compliance violations. See Steve
Cocheo, Fair lending foundation for UDAAP compliance, ABA Banking Journal
(June 2012).19
“Compliance has graduated from the traditional ‘checking of the
boxes.’ Now there must be a cradle to grave view of our products. Regulators [ ]
are increasingly looking at the entire customer experience and how everything—
marketing, disclosure, pricing, and more—impacts that experience.” Id. (quoting
Nancy Sjogren of Bancorp).
19
Available at http://www.ababj.com/briefing/fair-lending-foundation-for-udaap-
compliance-3139.html.
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B. Consumers Embrace Internet Ratings To Improve Purchasing
Decisions And Drive Market Improvement But Social Media Is
Not An Adequate Substitute For Regulatory Agency Public
Consumer Complaint Databases
Internet complaint and rating databases are proliferating spontaneously
because Americans value transparency, accountability, and their collective ability
to use the free flow of information to influence business practices. Consumers have
wholeheartedly embraced their increasing access to information through public
forums, which allow them to share information and opinions about products and
services. See Taggart, The CPSIA and Social Media Make Product Issues Public.
Consumer’s ubiquitous use of mobile information devices allows them to
access product information and consumer ratings at the time they are making
purchasing decisions. A poll conducted by Nielsen in 2012 reported that 70
percent of global consumers trust online consumer reviews, the second most
trusted form of advertising behind word-of-mouth and family
recommendations. See Press Release: Global Consumers' Trust in 'Earned'
Advertising Grows in Importance, Nielsen (April 2012),
http://www.nielsen.com/us/en/insights/press-room/2012/nielsen-global-consumers-
trust-in-earned-advertising-grows.html. Increasing consumer demand for
information to assist them in making informed purchasing decisions has led to the
development of numerous online consumer review systems and improved tools to
sort data to make it more meaningful to consumers. See Mark S. Nadel, The
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Consumer Product Selection Process in an Internet Age: Obstacles to Maximum
Effectiveness and Policy Options, 14 Harv. J. Law & Tec 183, 185-86 (Fall
2000).
Such consumer-directed rating systems, which are analogous in some
respects to the CPSIA, NHTSA, FDA, and CMS complaint databases, have proven
to be influential over businesses. A study conducted on the impact of restaurant
reviews on Yelp.com, for example, found that a one-star increase in consumer-
reported ratings positively affected the revenue of a restaurant by 5-9 percent.
Michael Luca, Reviews, Reputation and Revenue: The Case of Yelp.com, Harvard
Business School Working Paper 12-016, 2 (September 16, 2011).20
In fact, as one
commentator describes it,
the emergence of consumers as the most powerful force in
marketing…is a revolution. It’s the first time in history that people,
rather than governments, or religious institutions, or companies,
control the media. It means a dramatic shift in the context in which
brands will connect with consumers in the near future. Consumers
will have the power to change the enterprise business model. They are
demanding and will continue to demand more transparency and
unimpeded access to information, such as the safety of ingredients, or
the labor practices in a company’s factories.
Avi Dan, The Story Of Brands Is About To Change, Forbes.com (Nov. 26, 2012),
http://www.forbes.com/sites/avidan/2012/11/26/the-story-of-brands-is-about-to-
change/.
20
Available at http://hbswk.hbs.edu/item/6833.html.
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Social media ratings are influential and useful, but they are no substitute
for the public consumer complaint databases operated by regulatory agencies
because they are not focused on reporting about regulated products and services
and they don’t necessarily include the minimum amount and type of information
required by the agency. This makes the information they provide more difficult for
agencies and researchers to interpret for purposes of identifying trends.
Moreover, the social media complaints may be less accurate because they
are not submitted with verification that the information is “true and accurate to the
best of the person’s knowledge” under penalty of the agency pursuing legal
remedies for false reporting, as they are in agency databases. See Publicly
Available Consumer Product Safety Information Database, Final Rule, 75 Fed.
Reg. at 76,832. Also, considering that the goal of social media is to alert as many
people as possible though wide proliferation of such complaints, social media
reports may be difficult to quantify accurately. Agencies, in comparison, seek to
ensure that unique complaints are included in the data set only once so as not to
overstate the incidence of harm. See id. 75 Fed. Reg. at 76,832. As a result,
compared to the complaints in the regulatory databases, social media complaints
may be wildly inaccurate and overblown. See Taggart, The CPSIA and Social
Media Make Product Issues Public (describing use of social media role in widely
perpetuating inaccurate report that “Mr. Squiggles” toy was toxic, the
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unprecedented speed at which CPSC was able to evaluate and confirm that it
violated no U.S. safety standard and was, in fact, safe, and CPSC’s use of social
media to dispel the inaccurate reports). Although businesses may monitor and
respond to consumer’s social media complaints, neither the complaints nor the
business responses have the same indicia of reliability as in the regulatory
database, as illustrated by the example of the CPSC finding clearing Mr. Squiggles.
Id.
In order to maintain control over the information publicly available about
them, some businesses have filed lawsuits against consumers for posting negative
comments on public websites. See Justin Jouvenal, Virginia woman is sued over
her Yelp review, Wash. Post, Dec. 4, 2012, http://articles.washingtonpost.com/
2012-12-04/local/35625084_1_yelp-online-reviews-defamation; Dan Frosch,
Venting Online, Consumers Can Find Themselves in Court, N.Y. Times, May 31,
2010,http://www.nytimes.com/2010/06/01/us/01slapp.html?pagewanted=all&_r=0.
The consumer is better protected, under first amendment principles, for reporting a complaint to
the regulatory database. “Companies have been willing to promote their brands
through social media in a one-sided conversation, but the vast majority have been
reluctant to participate fully in social media because they cannot control the
conversation” as they can with inherently biased paid advertising. See Taggart,
The CPSIA and Social Media Make Product Issues Public.
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Ironically, some businesses have also sued social media sites seeking to
force identification of anonymous complainants. See, e.g. Mobilisa v. Doe, 170
P.3d 712 (Ariz. App. Div. 1 2007); Doe v. Cahill, 884 A.2d 451 (Del. 2005);
Dendrite v. Doe, 342 N.J. Super. 134, 775 A.2d 756 (N.J. App. 2001); McMann v.
Doe, 460 F. Supp.2d 259 (D. Mass. 2006); Highfields Capital Mgmt. v. Doe, 385
F.Supp.2d 969 (N.D. Cal. 2005). The risk of being sued may silence some
consumers on social media rating websites. Availability of agency consumer
complaint databases guarantee that consumers who are able to verify sufficient
information will nevertheless be able to make a publicly available report to help
warn other consumers and assist in preventing injuries.
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Conclusion
Anonymity and secrecy interfere with the invaluable interactive exchange
between consumers, businesses, and regulators that is driven by public access to
consumer feedback. Respectfully, this Court should order disclosure of the name
of Company Doe and unseal the court proceedings.
Respectfully submitted
/s/ Julie Nepveu
JULIE NEPVEU (D.C. Bar #458305)
AARP FOUNDATION LITIGATION
MICHAEL SCHUSTER (D.C. Bar # 934133)
AARP
601 E Street, NW
Washington, DC 20049
(202) 434-2060 (telephone)
(202) 434-6424 (facsimile)
December 20, 2012
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CERTIFICATION OF COMPLAINCE
This brief complies with the type-volume limitation of 32(a)(7)(B) because
this brief contains 5730 words, excluding the parts of the brief exempted by FED.
R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in 14-point Times New Roman. Footnotes are in 14-point Times New Roman.
/s/Julie Nepveu
CERTIFICATION OF SERVICE
I certify that on December 20, 2012, I served this brief by ECF on all
registered counsel for appellees.
/s/Julie Nepveu
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