Judge Blocks CFPB Bid to Name Company Under Investigation

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By Chris Bruce

June 16 — The Consumer Financial Protection Bureau (CFPB) lost its latest bid to disclose the name of a company now under investigation ( John Doe Co. v. Cons. Fin. Protection Bureau, D.D.C., No. 15-cv-01177, 6/15/16 ).

The decision by Judge Randolph D. Moss of the U.S. District Court for the District of Columbia comes in a case that tests whether companies being probed by the CFPB may keep their identities under wraps, at least temporarily.

The company, named in court documents only as John Doe Co., wants to keep its identity confidential, saying it would be harmed if the probe were disclosed. In October, Moss ruled for the company, and agreed to seal portions of the case over the CFPB's objections.

The agency asked Moss to reconsider that ruling, but Moss ruled against the CFPB June 15. The CFPB has not yet alleged wrongdoing, and its investigation is still ongoing, according to Moss, who said disclosure likely would mean “debilitating injury” for some of the John Doe plaintiffs.

“This is not the typical case where disclosure of allegations made in litigation may cause reputational harm, but one where the CFPB has yet to make any allegations of wrongdoing — and may never do so,” Moss said. “Nor is this a case where the CFPB exercised its administrative discretion to disclose the identities of the subjects of its investigations. To the contrary, there is no basis to believe that the CFPB would have disclosed its ongoing investigation of Plaintiffs — or would have been able to identify any legitimate basis for doing so — had Plaintiffs not filed suit.”

“We are reviewing the decision and considering our next steps,” CFPB spokesperson Sam Gilford said in a June 16 e-mail to Bloomberg BNA.

FOIA Question Punted

The company's original lawsuit, filed in 2015, sought to block the CFPB from interviewing an individual that the John Doe Co. said previously served as a John Doe attorney.

That issue became moot, but the case later turned into a dispute over disclosure of the company's name and the CFPB's investigation.

Moss declined to rule on a separate question — whether his October ruling bars the CFPB from responding to a Freedom of Information Act (FOIA) request that could effectively identify the plaintiffs.

Although the CFPB asked for clarification on that point, Moss said there's no basis for him to address that question, saying the FOIA request was submitted to the CFPB, not to the court. And according to Moss, the John Doe Co. itself said the October order doesn't control the question.

“The Court agrees that it is not in a position to clarify how the Bureau should respond to a FOIA request seeking materials that were not filed in this litigation and that are not themselves subject to the Court’s sealing Order,” Moss said.

The John Doe Co. is represented by Allyson B. Baker of Venable LLP in Washington, D.C.

The CFPB is represented by Assistant General Counsel John R. Coleman and Senior Litigation Counsel Tamra T. Moore.

To contact the reporter on this story: Chris Bruce in Washington at cbruce@bna.com

To contact the editor responsible for this story: Mike Ferullo at mferullo@bna.com