FTC report on cross-device tracking

The Federal Trade Commission has released Cross-Device Tracking: An FTC Staff Report that describes the technology used to track consumers across multiple Internet-connected devices, the benefits and challenges associated with it, and industry efforts to address those challenges. The report concludes by making recommendations to industry about how to apply traditional principles like transparency, choice, and security to this relatively new practice.

The report is linked above. and the press release is here.

David Dayen: Mnuchin Lied About His Bank’s History of Robo-Signing Foreclosure Documents

Here, in The Intercept.  Excerpt:

“Did OneWest ‘robo-sign’ documents relating to foreclosures and evictions?” Sen. Bob Casey, D-Penn., asked [Treasury Secretary Nominee Steven] Mnuchin as a “question for the record”.

Mnuchin replied that “OneWest Bank did not ‘robo-sign’ documents * * *

[Dayan reports on] a 2011 consent order issued by the federal Office of Thrift Supervision, which definitively stated that OneWest filed affidavits in state and federal courts “in which the affiant represented that the assertions in the affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not.”

* * *

* * * OneWest signed and agreed to the consent order, though it never admitted or denied the activity

However, in a Florida foreclosure case, a OneWest employee plainly admitted to robo-signing. On July 9, 2009 – four months after OneWest took over operations from IndyMac, with Mnuchin as CEO – Erica Johnson-Seck, a vice president with OneWest, gave a deposition in which she admitted to being one of eight employees who signed approximately 750 foreclosure-related documents per week.

“How long do you spend executing each document?” Johnson-Seck was asked. “I have changed my signature considerably,” Johnson-Seck replied. “It’s just an E now. So not more than 30 seconds.”

Johnson-Seck also admitted to not reading the affidavits before signing them, not knowing who inputted the information on the documents, and not being aware of how the records were generated. * * *

New York Supreme Court Judge Arthur Schack used the information provided by Johnson-Seck to invalidate OneWest foreclosure cases.

 UPDATE: Ted Frank has pointed out to me a Forbes article describing how Judge Shack has been reversed in two cases for abusing his discretion for relying on newspaper articles and the web on the matter of robo-signing. The article links to the cases in question.

 

FTC Commissioner Maureen Olhausen Designated Acting Chair

A statement appears on the FTC website here.

The Hill: Cordray: No change for consumer bureau under Trump

Here. Excerpt:

Cordray, who has helmed the CFPB as its first and only director, said Tuesday that he has no intention of stepping down early, despite pressure from Republicans eager to overhaul the 5-year-old agency.

“It really shouldn’t change the job at all,” said Cordray of Trump assuming power. “We have an independent mandate to do what we do and we’ll continue to work to protect consumers.”

* * *

“If we’re not going to enforce the law aggressively, then what are we saying?” he said. “Our pace needs to be steady and vigorous.”

NJ Assembly Passes Bill to Bar Out-of State Consumer Arbitration

Here is a report from the N.J.L.J. Excerpt:

The New Jersey Assembly has passed legislation that prohibits companies from inserting language in consumer contracts that requires arbitration of disputes in forums outside of the state.

The Assembly, on Monday, approved the bill, A1515, in a 49-20 vote. The vote was split along party lines, with Republicans opposing the bill.

The bill itself, as well as additional information, is linked to here. And here is Gregory Gauthier's comment:

I wonder whether, if the bill passes, businesses will attempt to argue that the FAA preempts New Jersey law as applied to an arbitration forum selection clause, following the (probably-now-discredited) Bradley v. Harris Research line of cases.  If those challenges are unsuccessful (as I expect them to be), I think the law will shine a light on arbitration forum selection clauses nationally, as any national business including a forum selection clause could become liable under New Jersey's TCCWNA.

Will Political Appointees in the Department of Commerce Prevent the Trump Campaign from Registering a Trademark in Opponents' Slogan?

by Paul Alan Levy

During the 2016 election cycle, the slogan “Keep America Great” emerged as a counterweight to the Make America Great Again slogan on which candidate Donald Trump was campaigning.  A fellow named Andreas Mueller tried to capitalize on that development by reserving the slogan as his own trademark.  The Trademark Office, properly in my view, rejected Mueller’s effort on the ground that political slogans cannot be taken out of the public domain through the trademarking process. 

Its initial rejection was supported by several images showing widespread use of the slogan by various vendors of shirts, hats, and mugs -- even a cell phone case

but its subsequent action (after Mueller tried to respond to the initial rejection) was more definitive: “Registration is refused because the applied-for mark merely conveys an informational social, political, religious, or similar kind of message . . .  Slogans or terms that merely convey an informational message are not registrable. . . . [T]he applicant’s slogan is commonly used as a counter to the “Make America Great Again” phrase, and thus functions to advocate for openness and inclusiveness, among other things.  Because consumers are accustomed to seeing this slogan or term commonly used in everyday speech by many different sources, the public will not perceive the term or slogan as a trademark or service mark that identifies the source of applicant’s goods and/or services but rather only as conveying an informational message.”

Late last week, however, the Trump for President filed its own trademark application, indicating that it intends to adopt the slogan as its own (and, thus, prevent other people from using it).  Leaving aside how America became great again even before the candidate claiming that he was needed to restore its greatness took office, it remains to be seen whether Trump’s Commerce Department appointees stand up to their boss and declare that sauce for the goose is sauce for the gander.

State AG's also intervene to defend Dep't of Ed in accreditation suit

In addition to intervention in the suit mentioned by Jeff (below), 6 state attorneys general today moved to intervene in a federal district court case against the Accrediting Council for Independent Colleges and Schools (ACICS), an accreditor of for-profit colleges. The suit is a challenge by ACICS to the Department of Education decision to terminate ACICS’s recognition as an accreditor in December 2016. The states say that they are intervening "to protect consumers in their states, who rely on federally-recognized accreditors to ensure that colleges offer quality education and protect against abusive practices."

The Department's actions follwoed an investigtaion pursuant to which it concluded that ACICS failed to meet the requirements of federal recognition. ACICS has a long track record of failures of oversight. ACICS failed to identify misconduct by a number of schools and failed to take action once the misconduct came to light through investigations by state or federal agencies. 

The states moving to intervene are Massachusetts, Illinois, Maine, Maryland, and New York, along with the District Of Columbia.

The motion to intervene is here. The memorandum in support of the motion is here.

AP: Democratic state AGs move to defend consumer watchdog

Here.  The motion to intervene in the PHH case is here.

 

Ken Cuccinelli Column: Reforming CFPB isn't enough. Eliminate it. [Proposes Solution that Led to the Great Recession]

by Jeff Sovern

Here, in the American Banker (free content). Cuccinellis is general counsel to the FreedomWorks Regulatory Action Center, and former AG for Virginia. Excerpt:

Rather than tinkering with this regulatory monstrosity, let’s pursue a simpler course: simply eliminate the standalone agency. Most of the regulatory powers that the CFPB now wields were previously under the jurisdiction of other departments and agencies. These entities often specialized in the specific industry being regulated; thus, they were more capable of informed, responsible action than the CFPB.

I guess he forgot that that course led to the Great Recession. 

Trump Names as FCC Chair Ajit Pai, Critic of FCC TCPA Interpretations

Here. Pai, a Republican, has been critical of FCC interpretations of the TCPA (see here and here). Here's the perspective of ACA International, an industry organization :

Of particular importance to the credit and collection industry, Pai has fiercely objected to the FCC’s more recent interpretations of the TCPA spearheaded by Wheeler.  Authoring a hard-hitting dissent of the July 2015 TCPA Declaratory Ruling and Order, Pai highlighted the rampant litigation abuse spawned by the TCPA and laid out in detail the legal failings of the majority’s ruling.  In fact, during the oral argument for ACA’s consolidated appeal of the 2015 TCPA Ruling, Pai’s dissent was repeatedly referenced.