This new paper forthcoming in Vanderbilt Law Review sure sounds familiar to me.
Nudniks are those who call to complain, speak with managers, post online reviews, and file lawsuits. Typified by an idiosyncratic utility function and personality traits, nudniks pursue action where most consumers remain passive. Although derided in courtrooms and the court of public opinion, we show that nudniks can solve consumer collective action problems, thereby leading to broad market improvements.
Second, the Article spotlights a disconcerting development: Sellers’ growing usage of Big Data and predictive analytics allows them to identify specific consumers as potential nudniks and avoid selling to or disarm them before they can draw attention to sellers’ misconduct. The Article therefore captures an understudied problem with Big Data tools: sellers can use these tools to shield themselves from market accountability.
Finally, the Article evaluates a menu of legal strategies that would preserve the benefits of nudnik-based activism in light of these technological developments. In the process, we revisit the conventional wisdom on the desirability of form contracts, mandatory arbitration clauses, defamation law, and standing doctrines.
Subtitled “The Future of Consumer Activism and What We Can Do to Stop it” it sure sounds like it’s describing the rise and fall of the frequent flyer hobby, with squeaky wheels generating outsized benefits and both loyalty programs and their co-brand card issuing partners cracking down on customers they’ve deemed undesirables.
A nudnik, by the way, is Yiddish and approximates a pest or a nag. And the crackdown on consumers who pester for benefits and compensation is mirroring itself not just in the airline and credit card businesses but it’s harder to complain to the cable company – and just about every other business – than it used to be.
Indeed wasn’t Northwest v. Ginsberg, the Supreme Court case that established the right of frequent flyer programs to ignore any obligation of good faith or fair dealing, dubbed the case of the rabbi that complained too much? He lost.
(HT: Marginal Revolution)