Using Data to Create An Effective Advocacy Campaign

NLADA ConferenceNew Orleans, LANovember 7, 2015

Rachel GoodmanStaff AttorneyAmerican Civil Liberties Union

Elizabeth M. LynchSupervising AttorneyMFY Legal Services, Inc.

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I. The Power of Data

II. Data in Action: Here We Go Again

III. The Process of Data-Based Advocacy

IV. Sharpening Your Swords: Break Out Session

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Can demonstrate a widespread injustice

Can be used to effect change on a larger scale than a lawsuit

Certain entities need data: journalists, policy makers, legislatures, even the courts◦ Data in the courts – often used to mark a sea

change. Brown v. Board of Education (the doll study)

Our society responds to data analysis

Pictures are worth 1,000 words◦ Data, through graphs and charts, can visualize

injustice in a powerful way4

Here We Go Again: Communities of Color, the Foreclosure Crisis and Loan Servicing

Failures

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Are Mortgage Modification Programs Failing Communities of Color More Than White Communities?

Modification application complaints are rampant. But some complaints are more costly than others. ◦ Denial of a permanent modification (you will lose your home) vs.

problems with reaching the customer service representative (a problem, but does not necessarily mean you will lose your home)

Are these more costly, immediate home-losing complaints spread out equally or are they more prevalent in certain communities?

Are some mortgage servicers worse than others in communities of color?

These questions arose from MFY’s attorneys’ on-the-ground experience indicating that there might be a disproportionate

benefit of the various modification programs

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Data Analysis

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Our client data was insufficient◦ Not enough long-term clients to draw conclusions◦ Our outreach is targeted in communities of color

No public data that identified the mortgage servicers, the race of the homeowners and the type of complaint

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Consumer Financial Protection Bureau’s (CFPB) Public Complaint Database◦ Identified the five-digit zip code of the complaint,

the mortgage servicer New York State had 5,985 complaints about

mortgage servicing ◦ But the narratives are not on the public database

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April 5, 2013, MFY submits FOIA request for complaint narratives for NYS homeowners

April 24, 2013, CFPB provides more data but withholds the narratives on privacy grounds

MFY retains ACLU, which filed an appeal on June 7, 2013

July 3, 2014 MFY, ACLU, CFPB settle the appeal where CFPB would analyze the complaint narratives and code them with categories that MFY defined

ACLU paid the cost of the review

September 15, 2014 CFPB produced the coded complaint database

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Creation of coded category chart was based on MFY’s direct representation of hundreds of New York homeowners

Our internal coded category chart delineated which categories were “immediate home-losing” and which were not

ACLU used STATA to analyze the data and find patterns based on zip codes◦ Obtained the racial makeup of each zip code from census

filings (American Factfinder)◦ Preexisting STATA expertise was not necessary

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Our universe was NYS homeowners who complained to CFPB about the modification process – this is a limited universe

Received advice from the NYU’s Furman Center for Real Estate and Urban Policy on how to analyze

Focused on unexpected disproportionalities within the complaints, rather than trying to compare to the whole universe of homeowners

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Immediate Home-Losing Complaints make up a larger share of complaints from communities of color than from predominately white communities.

Increased as neighborhood became more segregated.

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Identified those banks that had significant racial disparities in the number of complaints that were immediate home-losing:

◦Nationstar

◦Wells Fargo

◦Ocwen

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Decided to Publish a White Paper◦ Needed space to explain the data in an easy to

understand way◦ Pie charts and bar graphs made data more accessible◦ Included individual stories

Launched a media campaign◦ Was picked up by the N.Y. Post, Housing Wire,

National Mortgage Professional Magazine, Naked Capitalism blog

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Media coverage was more limited than anticipated◦ Limitations on the data◦ Pointed more to the need to release the consumers’

narratives than to the discrimination

Changed the CFPB’s narrative policy◦ CFPB used our request and settlement to propose a

policy to permit complainants to “opt-in” to releasing their narratives

Used by other advocates to try to affect change◦ California Reinvestment Coalition’s efforts to amend

HMDA policy to include modification data◦ New Economy Project cited it in testimony to City

Board on Banking 17

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What patterns are you seeing on the ground?

Is it difficult to convince decision makers and/or the public that one of these problems is really happening?

Is it difficult to get people to pay attention to the problem?

Is there any place that the information about the problem might be aggregated?

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Existing data sets

Freedom of Information Act or state analogue ◦ Information in federal, state, or local gov’t records ◦ May not be in “data” form

Securities filings

Court filings or dockets

Your own practice

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Many government agencies and other organizations maintain data that is public but has not been analyzed◦ Home Mortgage Disclosure Act Data◦ Census◦ Civil Rights Data Collection (education)

Sometimes reading this data is sufficient; just needs to be re-packaged◦ i.e. National Mortgage Settlement data showed that

second mortgage forgiveness were outpacing first mortgage mods. Just no one had looked at this data.

◦ Might just need to be “mapped” to show the data21

Every federal government agency is subject to FOIA; states have an equivalent law◦ State laws vary greatly in strength and coverage, but

exist in all 50 states. See www.nfoic.org

Can request more than just numbers. Can request regulator data, budgets, government contracts, prison rolls, etc.◦ Center for Constitutional Rights & Detention Watch

Network, Banking on Detention: Local Lockup Quotas and the Immigrant Dragnet (Dec. 2014) (examined government contracts with prison companies)

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Can draft a letter to the agency FOIA address or make a request through their website◦ FOIA contact info for various agencies:

http://www.foia.gov/report-makerequest.html

In your request you should:◦ “reasonably describe” the records you seek◦ If sending a letter, state that it is being made pursuant to the

Freedom of Information Act (5 U.S.C.§ 552) ◦ Request fee waiver if not for commercial use and if disclosure

is in the public interest and contributes significantly to public understanding.

Agency’s deadline to respond: 20 business days (generally) but usually requests more time

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Most FOIA requests do not end as successfully as Here We Go Again

FOIA denials: must appeal to the agency first before litigating in the courts. Usually have 30 days to file an appeal◦ At denial stage look to see if there are entities that can

help you – your local ACLU affiliate, partner law firms, etc.

Think about cost issues – many states allow agencies to pass on costs of search/reproduction.

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If you are targeting a publically-traded private company (e.g. private prison or prison services, bank, etc.), SEC filings accessible on EDGAR can be helpful

Mainly financial data: profit and loss from particular aspects of the business, growth, etc.

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Who has been sued and where can often be used to show patterns◦ Paul Kiel & Annie Waldman: The Color of Debt: How Collection

Suits Squeeze Black Neighborhoods, Pro Publica (Oct. 15, 2015)◦ MFY, Justice Deceived: How Large Foreclosure Firms Subvert

State Regulations Protecting Homeowners (2011)

Amount of court data needed depends on the number of filings and how definitive are the conclusions◦ Ensure that you devise a collection plan that gives you a proper

sampling◦ Justice Deceived examined residential foreclosure filings in

Brooklyn and Queens in for three months: March 2010 (before rule change), November 2010, and March 2011.Total cases reviewed: 1,786. The data was so conclusive (87% rate) that we did not need a larger data set

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ACLU has used municipal court dockets, online or through FOIA, to find hearings relating to debt-jailing

In some cases, looking at dockets and jail rolls together shows who’s been jailed

Possible to create statistics as well as allegations about unwritten policies

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Your own files contain data that can be analyzed◦ Speak to your case management company, but should

be able to push data into excel and then analyze

Can also change intake and your file management system to collect data

Can target your practice◦ MFY’s Housing Unit, through weekly intake meetings,

began seeing baseless lawsuits from the same landlord. Decided to take all tenant cases from that landlord. Collected data and presented to NYS Dep’t of Homes & Community Renewal's Tenant Protection Unit.

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Can conduct your own investigation◦ MFY started receiving complaints about court pro se

offices. Used an intern to test each office to uncover that certain pro se services were consistently unavailable

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What are the limitations?

How do you crunch the data?

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More than likely you will not have a complete data set

But you can still draw conclusions

Look to work with partners in your area to figure out how to analyze the data with your limitations◦ Statistics and social science departments in universities◦ NYU’s Furman Center; John Hopkin’s 21st Century Cities◦ Other organizations that have crunched data

Be careful how you phrase the data in the white paper or other form of advocacy

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Simple data analysis can be done through excel◦ i.e. how many civil court cases are default judgments

More complex data will need to be crunched with software◦ i.e. are more harmful complaints coming from

communities of color; ACLU used STATA◦ Partners can help with this; i.e. MFY’s reliance on

Furman to map the Three Quarter House problem

For more complex data, work with partners who many have this software

Keep notes on how you obtained & crunched the data for the methodology section 32

White Paper

Legislative Reform

Litigation

Public Education

Sometimes All of the Above

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Gives you space to explain complex data in easy to understand ways and to flesh out the problem

Well footnoted white paper is harder for your opponents to attack so spend time on footnotes

Graphs, pie charts, maps: “show” the impact of the data - But don’t forget client stories & photos if possible

Need to have a methodology section on how the data was obtained and then crunched

Sometimes, you might not want your name on it especially when working with an academic institution who can give an imprimatur of unbiased analysis◦ i.e. John Jay Prison Reentry Institute’s Three Quarter Houses: The

View from the Inside (Oct. 2013) 34

Set a date to release the paper; posting on your website will be sufficient

Prior to release, make a press plan◦ Make a list of those reporters who have already written about the

issue◦ Email a key & trusted reporter to give an “exclusive” (write

embargoed in the subject line)◦ Determine if a press conference would be effective

Day of Release◦ Issue a press release◦ Email those interested reporters separately◦ Have a client ready to speak to the press◦ Tweet multiple times that day/week

Release to partners who also cover that field

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City and state governments respond to data◦ Reach out to the politicians whose districts’ are most

impacted & send them written information

Work with partners to form a coalition to draft and pass legislation

Are there other agencies impacted by the problem that might support your bill?

When advocating to politicians, have a cheat sheet on the data about their districts

If you can, bring a constituent who will make the problem “real”

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Sometimes your data may be sufficient to bring a lawsuit◦ Justice Deceived was accompanied with an FDCPA

class action complaint against the biggest bad actor

Sometimes your data is not sufficient to bring a lawsuit◦ The data obtained for Here We Go Again was not

enough to bring a disparate impact claim

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Data may take you across the pleading threshold

Particularly challenging to get data bulletproof enough for a disparate impact claim under the FHA◦ Need to show statistically significant disparate

impact◦ But remember you may get more data through

litigation– first, just need to get through pleading stage.

Example: ACLU’s debtor prison litigation: https://www.aclu.org/legal-document/fuentes-v-benton-county-complaint

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Educating the judiciary◦ MFY was invited to host a training to Brooklyn housing

court judges after the publication of Three Quarter Houses: The View from the Inside

Informing the press◦ Three Quarter Houses: The View from the Inside was the

initial reason why the New York Times took an interest in the issue, eventually publishing (2 years later) a front page Sunday piece which has resulted in getting the issue on politicians’ agenda

Community Use◦ Three quarter house tenants have used Three Quarter

Houses: The View from the Inside to advocate for reform with the NYPD

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These different forms of advocacy are not mutually exclusive, can do multiple forms with one campaign

But if want to do multiple forms of advocacy look to work with partner organizations; trying to do more than one form of advocacy can overstretch a single legal services organizations◦ Justice Deceived – MFY drafted the white paper, pre-

released to partner organizations and filed a lawsuit. Partner organizations formed a coalition for legislative reforms

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