Consumer Law & Policy Blog

Ninth Circuit Refuses to Vacate Judgment in Bogus Copyright Suit Brought in the Name of a Monkey

by Paul Alan Levy

Last year, oral argument was held in the Ninth Circuit on the appeal filed by People for the Ethical Treatment of Animals, purportedly representing a monkey suing to assert its copyright in a photo that it supposedly deliberately took of itself by causing the operation of a camera. The trial court had rejected PETA’s claims, holding that an animal cannot own a copyright, and oral argument was a disaster for PETA.  Not long afterward, PETA and appellee David Slater told the Ninth Circuit that they had settled the case and that the appeal was to be dismissed on the condition that the judgment below be vacated. 

English v. Trump & Mulvaney Oral Argument in DC Circuit Coverage

The LA Times report is here.

CFPB requesting comment on consumer complaint database

Yesterday, the Consumer Financial Protection Bureau issued a Request for Information (RFI) on its consumer complaint database and handling of consumer complaints submitted to it:

The Bureau is seeking comments and information from interested parties to assist the Bureau in assessing its handling of consumer complaints and consumer inquiries and, consistent with law, considering whether changes to its processes would be appropriate. To date the Bureau has received 1.5 million consumer complaints. This is the 12th in a series of RFIs announced as part of Acting Director Mick Mulvaney’s call for evidence to ensure the Bureau is fulfilling its proper and appropriate functions. This RFI will provide an opportunity for the public to submit feedback and suggest ways to improve outcomes for both consumers and covered entities.

Mick Mulvaney looking for ways to "improve" the database concerns me.

Before Mulvaney stepped in, the CFPB had recovered $12 billion in relief for nearly 30 million consumers, from banks, debt collectors and student loan providers engaged in improper business practices. The database played an important role, helping the CFPB to identify fraudulent practices and patterns.

Hard to imagine any good coming of Mulvaney setting his sights on the database.

The RFI and instructions on how to submit a comment are available here.

Reports on Mulvaney's Testimony Before the House Financial Services Committee

Mulvaney's written testimony is here. InsideArm.com has detailed coverage here. The LA Times story is here. Excerpt:

Mulvaney acknowledged that although the bureau had averaged opening one new enforcement action a week under Cordray, he had launched none since taking over.

That triggered astonishment from Rep. Carolyn Maloney (D-N.Y.).

"Are you telling me that every single financial institution in America has suddenly snapped into full compliance with every single consumer financial law since you took over last November?" she said. "I'm deeply disappointed that we have essentially taken the cop off the beat in terms of initiating new actions to help the consumer."

Mulvaney responded that "we are still going after bad actors," noting the bureau still had 100 ongoing probes.

* * *

Hensarling validated Mulvaney's view that Dodd-Frank doesn't require him to answer lawmakers' questions, adding that "you could play Candy Crush for the next few hours and there would be nothing we could do about it."

Then Hensarling had Mulvaney say that there was nothing in the law to prevent him from spending $20 million a year to put the bureau's name on a Texas football stadium or "ensure that every man, woman and child in American has a CFPB, T-shirt, ball cap and [can] coozy."

 

Payday lending group sues CFPB

Earlier this week, a payday pending group, the Community Financial Services Association of America, sued the Consumer Financial Protection Bureau to challenge the payday lending rule issued last fall. The complaint also claims that the CFPB's structure is unconstitutional. The suit was filed in federal court in Texas.

The complaint is available here.

The Washington Post reported o the lawsuit here.

How Long Will Mulvaney (gulp!) Lead the CFPB?

by Jeff Sovern

According to Politico, here's what Mulvaney himself said about it:

POLITICO’s Katy O'Donnell: “The Consumer Financial Protection Bureau is planning for the likelihood that acting Director Mick Mulvaney will remain in place through the end of the year, Mulvaney said today at a banking industry conference.

“‘If it takes a year and a half to confirm [a permanent director], then I'm stuck there for a year and a half. So we don't know how long that's going to take,’ Mulvaney said. ‘I tell folks that the way the Senate is working we're just sort of assuming that I'll be there for the rest of this calendar year — that's just how we've planned. ‘It could be dramatically longer than that; it could be shorter than that,’ he added.” 

As for how long Mulvaney is permitted to serve (assuming the English case either remains undecided or results in an affirmance), according to Alan Kaplinsky at Consumer Finance Monitor, 210 days (which expires June 22 or 23) unless the president nominates a new director by that date. If the president does nominate a new director, Mulvaney can serve until the Senate acts on that nominee. If the Senate rejects the nominee, Mulvaney will get even more time.

AP Report on Absence of CFPB Enforcement Actions

by Jeff Sovern

AP is running a story, Under Trump, a Voice for the American Consumer Goes Silent, making a point that this blog has frequently noted. Excerpt:

A review of a CFPB database obtained by the AP through a Freedom of Information request shows that the bureau issued an average of two to four enforcement actions a month under former Director Richard Cordray, President Obama’s appointee. But the database shows zero enforcement actions have been taken since Nov. 21, 2017, three days before Cordray resigned.

Banks Reported to Praise CFPB Action Against Wells for Unauthorized Accounts

by Jeff Sovern

So Reuters reports here. This report is consistent with the view that businesses that behave properly suffer when competitors cut corners and so enforcement of consumer protection laws benefits not only consumers but companies with consciences.

Mulvaney Attacks CFPB Leakers--But What Was Leaked?

by Jeff Sovern

Lately, I've been thinking to myself about how so little has leaked out on what's going on at the Bureau, especially compared to the White House. But that didn't stop Acting Director Mulvaney today from attacking CFPB staff for leaking, according to Sylvan Lane in The Hill. Here's an excerpt:

Mulvaney . . . singled out “a small group of people” aligned with “the Elizabeth Warren view of the world that lending money for profit is evil.” He said those CFPB staffers have leaked misleading information with the goal of disparaging his efforts to steer the bureau in a new direction.

He didn’t specify what information the leaks revealed, but he appeared to reference media coverage of his decisions regarding CFPB probes, staffing and organizational structure.

"There's been a track record of them being wrong and we think intentionally so," Mulvaney told reporters after his remarks. “Many of the leaks that have come out of the past have been proven to be false, and I encourage everybody to consider that."

I wonder what he was thinking of when he said the leaks have been wrong. Reports that the Bureau dropped its Equifax probe? Oh and his description of Elizabeth Warren's view of the world is rather revealing, even if it is hyperbole. At least, I hope it's hyperbole.

 

A different view of section 230 of the Communications Decency Act

Law prof Benjamin Zipursky has written The Monsanto Lecture: Online Defamation, Legal Concepts, and the Good Samaritan. Here's the abstract:

Federal and state courts around the country – aided by academics on almost all sides – have completely misread the Communications Decency Act [“CDA”] § 230(c). This widely cited provision was designed to protect Internet service providers and certain Internet users from liability for the defamatory statements posted by others online. Congress did not want these actors to face a defamation-law equivalent of a duty to rescue strangers -- an affirmative duty to remove third parties’ defamatory statements about others. And it certainly did not want a service provider’s efforts to protect a stranger’s reputation to backfire by suddenly creating liability for everything the service provider failed to remove. So, like every state legislature has done for off-duty medical personnel who act as good Samaritans, Congress in 1996 created a law saying that good faith efforts to filter offensive or defamatory material do not create an affirmative duty to remove such material and do not open them up to liability. For good measure, the statute also laid down a basic rule that there is no liability simply for being the conduit of what others have posted or for failing to remove such postings from one’s own site, and it preempts any state law that does otherwise. The CDA thus ensures that states’ defamation law runs roughly parallel to duty-to-rescue doctrine in the common law of negligence as amended by good Samaritan statutes. Indeed, that is why “Good Samaritan” is in the title of CDA § 230(c).