Armslist Not Liable for Allowing Searches for Private-Seller Gun Ads

Can a web site be liable for things its users post? No, the federal 47 U.S.C. § 230 statute generally provides, whether the posts are libelous, emotionally distressing, crime-promoting, or whatever else (with some exceptions, such as for federal intellectual property laws). But the sites are responsible for their own speech, and their own decisions that themselves create actionable speech.

To give an example from one leading case, the Ninth Circuit Roommates.com decision:

  • A web site that features ads for roommates isn’t liable when users themselves post ads that contain discriminatory roommate preferences (even if the law can bar such discrimination in roommate selection, which is a separate question). That’s just the users’ own choice, for which they and only they can be held liable.
  • But the site can be liable if it expressly requires subscribers to state such preferences, since then it is itself “develop[ing]” the legally punishable material.

Now say that a web site lets users post ads for gun transactions. Under § 230, it can’t be liable simply because some ad that users posted leads to an illegal transaction. But can it be liable on the theory that some of its design features, such as the ability to search for ads by private sellers, especially facilitate crimes? (Under federal law, private sellers, unlike professional gun dealers, don’t have to do a background check on their buyers; ads from such sellers might thus be especially useful to felons and others who would fail such a check.)

In Daniel v. Armlist, plaintiffs, the Wisconsin Court of Appeals, and one Justice of the Wisconsin Supreme Court (Ann Walsh Bradley), said the site could indeed be liable for this. But the majority disagreed, and said there was no liability. First, the facts and the plaintiff’s theory:

[Plaintiff Yasmeen] Daniel’s tort action [for negligence, negligent infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death] arose from a mass shooting in a Brookfield, Wisconsin spa that killed four people, including Daniel’s mother Zina Daniel Haughton. Daniel alleged that the shooter, Radcliffe Haughton, illegally purchased the firearm after responding to private seller Devin Linn’s post on Armslist’s firearm advertising website, armslist.com….

We disagree …. [Title] 47 U.S.C. § 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel’s claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1)….

Armslist.com is a classified advertising website similar to Craigslist. Prospective sellers may post advertisements for firearms and firearm-related products they wish to sell, prospective buyers may post “want advertisements” describing the firearms they wish to buy. Buyers and sellers may contact one another either through personal contact information they provide on the website, or by using armslist.com’s “contact” tool…. [T]here is no allegation that Armslist itself participates in the purchase and sale of firearms beyond allowing users to post and view advertisements and contact information on armslist.com.

According to Daniel’s allegations, Radcliffe shopped for the murder weapon exclusively on armslist.com because he recognized that the website’s design features made it easier for prohibited purchasers like him to illegally purchase firearms. Armslist.com allows potential buyers to use a “seller” search filter to specify that they want to buy firearms only from private sellers, rather than from federally licensed dealers. Private sellers, as opposed to federally licensed gun dealers, are not required to conduct background checks in Wisconsin. The website also does not require buyers or sellers to create accounts, which encourages anonymity, and displays next to each advertisement whether the account is registered or unregistered.

Armslist.com allows users to flag content for a number of different reasons, including “scam,” “miscategorized,” and “overpriced,” and uses these flags to delete certain posts. However, it does not allow users to flag content as “criminal” or “illegal” and does not take action to delete illegal content. The website contains no restrictions on who may create an account, or who may view or publish firearm advertisements using its website. The website’s lack of restrictions allows buyers to avoid state-mandated waiting periods and other requirements. Armslist does not provide private sellers with legal guidance as to federal and state laws governing the sale of firearms.

Daniel’s complaint also suggests several simple measures Armslist could have taken in order to reduce the known risk of illegal firearm sales to dangerous prohibited purchasers. Daniel alleges that Armslist could have required buyers to create accounts and provide information such as their name, address, and phone number. In states similar to Wisconsin, where there is online access to an individual’s criminal history, Armslist could have required potential buyers to upload their criminal history before their accounts were approved. She alleges Armslist could have allowed users to flag potentially illegal firearm sales. It could have prohibited users from obtaining one another’s contact information until Armslist confirmed their legal eligibility to buy and sell firearms. According to the complaint, all these measures would have reduced the risk of firearm sales to persons prohibited from owning a firearm.

Based on all these features and omissions, Daniel’s complaint alleges that Armslist knew or should have known that its website would put firearms in the hands of dangerous, prohibited purchasers, and that Armslist specifically designed its website to facilitate illegal transactions….

The court reviewed various § 230 precedents from other jurisdictions, and concluded that Armslist was immune from liability. Under § 230, the court held, Armslist could only be liable under state law for posts on its site to the extent that it actually “develop[ed] the content” of the posts by creating them or at least “materially contribut[ing]” to their illegality—and Armslist did not do so:

The concept of “neutral tools” provides a helpful analytical framework for figuring out whether a website’s design features materially contribute to the unlawfulness of third-party content. A “neutral tool” in the CDA context is a feature provided by an interactive computer service provider that can “be utilized for proper or improper purposes.” A defendant who provides a neutral tool that is subsequently used by a third party to create unlawful content will generally not be considered to have contributed to the content’s unlawfulness.

Examples of such neutral tools include a blank text box for users to describe what they are looking for in a roommate, a rating system that allows consumers to award businesses between one and five stars and write reviews, and a social media website that allows groups to create profile pages and invite members. All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.

This is true even when an interactive computer service provider knows, or should know, that its neutral tools are being used for illegal purposes…. [T]he difference between a neutral design feature and the development of unlawful content is the potential for lawful use…. [I]f a website’s design features can be used for lawful purposes, the CDA immunizes the website operator from liability when third parties use them for unlawful purposes. …

Daniel’s argument is based primarily on the assertion that Armslist’s design features make it easier for prohibited purchasers to illegally obtain firearms. She asserts that Armslist should have known, actually knew, or even intended that its website would facilitate illegal firearm sales to dangerous persons…. [But under § 230(c)(1),] the issue is not whether Armslist knew, or should have known, that its site would be used by third parties for illegal purposes. Instead, the issue is whether Armslist was an information content provider [and not solely a platform provider] with respect to Linn’s advertisement.

Armslist.com’s provision of an advertising forum and the related search functions are all “neutral tools” that can be used for lawful purposes. Sales of firearms by private sellers are lawful in Wisconsin. Further, private sellers in Wisconsin are not required to conduct background checks, and private sales are not subject to any mandatory waiting period. Accordingly, the option to search for offers from private sellers is a tool that may be used for lawful purposes.

The remainder of the design features referenced in Daniel’s complaint—lack of a “flag” option for illegal activity, failing to require users to create an account, failure to create restrictions on who may post or view advertisements, and failing to provide sufficient legal guidance to sellers—are voluntary precautions that the CDA permits but does not require. Whether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content’s illegality.

Daniel attempts to evade the CDA by asserting that creators of armslist.com intended for the website to make illegal firearm sales easier. This is an attempt to distinguish this case from the litany of cases dismissing suits against website operators who failed to screen unlawful content. As the First Circuit has recognized, however, the allegation of intent is “a distinction without a difference” and does not affect CDA immunity….

The one outlier § 230 precedent is J.S. v. Village Voice Media Holdings, LLC (Wash. 2015), but the Wisconsin Supreme Court rejected it:

In J.S., which involved claims against the operator of backpage.com on substantially the same facts as in Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016), the plaintiffs made the same argument as the Jane Doe No. 1 plaintiffs, asserting that backpage.com was deliberately designed to facilitate sex trafficking. The Washington Supreme Court concluded that the plaintiffs’ allegation of intent was enough to escape the reach of the CDA…. [But] the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1)….

Sounds right to me. (Disclosure: My students and I filed an amicus brief on the losing side in J.S.)

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Armslist Not Liable for Allowing Searches for Private-Seller Gun Ads

Can a web site be liable for things its users post? No, the federal 47 U.S.C. § 230 statute generally provides, whether the posts are libelous, emotionally distressing, crime-promoting, or whatever else (with some exceptions, such as for federal intellectual property laws). But the sites are responsible for their own speech, and their own decisions that themselves create actionable speech.

To give an example from one leading case, the Ninth Circuit Roommates.com decision:

  • A web site that features ads for roommates isn’t liable when users themselves post ads that contain discriminatory roommate preferences (even if the law can bar such discrimination in roommate selection, which is a separate question). That’s just the users’ own choice, for which they and only they can be held liable.
  • But the site can be liable if it expressly requires subscribers to state such preferences, since then it is itself “develop[ing]” the legally punishable material.

Now say that a web site lets users post ads for gun transactions. Under § 230, it can’t be liable simply because some ad that users posted leads to an illegal transaction. But can it be liable on the theory that some of its design features, such as the ability to search for ads by private sellers, especially facilitate crimes? (Under federal law, private sellers, unlike professional gun dealers, don’t have to do a background check on their buyers; ads from such sellers might thus be especially useful to felons and others who would fail such a check.)

In Daniel v. Armlist, plaintiffs, the Wisconsin Court of Appeals, and one Justice of the Wisconsin Supreme Court (Ann Walsh Bradley), said the site could indeed be liable for this. But the majority disagreed, and said there was no liability. First, the facts and the plaintiff’s theory:

[Plaintiff Yasmeen] Daniel’s tort action [for negligence, negligent infliction of emotional distress, civil conspiracy, aiding and abetting tortious conduct, public nuisance, and wrongful death] arose from a mass shooting in a Brookfield, Wisconsin spa that killed four people, including Daniel’s mother Zina Daniel Haughton. Daniel alleged that the shooter, Radcliffe Haughton, illegally purchased the firearm after responding to private seller Devin Linn’s post on Armslist’s firearm advertising website, armslist.com….

We disagree …. [Title] 47 U.S.C. § 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel’s claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1)….

Armslist.com is a classified advertising website similar to Craigslist. Prospective sellers may post advertisements for firearms and firearm-related products they wish to sell, prospective buyers may post “want advertisements” describing the firearms they wish to buy. Buyers and sellers may contact one another either through personal contact information they provide on the website, or by using armslist.com’s “contact” tool…. [T]here is no allegation that Armslist itself participates in the purchase and sale of firearms beyond allowing users to post and view advertisements and contact information on armslist.com.

According to Daniel’s allegations, Radcliffe shopped for the murder weapon exclusively on armslist.com because he recognized that the website’s design features made it easier for prohibited purchasers like him to illegally purchase firearms. Armslist.com allows potential buyers to use a “seller” search filter to specify that they want to buy firearms only from private sellers, rather than from federally licensed dealers. Private sellers, as opposed to federally licensed gun dealers, are not required to conduct background checks in Wisconsin. The website also does not require buyers or sellers to create accounts, which encourages anonymity, and displays next to each advertisement whether the account is registered or unregistered.

Armslist.com allows users to flag content for a number of different reasons, including “scam,” “miscategorized,” and “overpriced,” and uses these flags to delete certain posts. However, it does not allow users to flag content as “criminal” or “illegal” and does not take action to delete illegal content. The website contains no restrictions on who may create an account, or who may view or publish firearm advertisements using its website. The website’s lack of restrictions allows buyers to avoid state-mandated waiting periods and other requirements. Armslist does not provide private sellers with legal guidance as to federal and state laws governing the sale of firearms.

Daniel’s complaint also suggests several simple measures Armslist could have taken in order to reduce the known risk of illegal firearm sales to dangerous prohibited purchasers. Daniel alleges that Armslist could have required buyers to create accounts and provide information such as their name, address, and phone number. In states similar to Wisconsin, where there is online access to an individual’s criminal history, Armslist could have required potential buyers to upload their criminal history before their accounts were approved. She alleges Armslist could have allowed users to flag potentially illegal firearm sales. It could have prohibited users from obtaining one another’s contact information until Armslist confirmed their legal eligibility to buy and sell firearms. According to the complaint, all these measures would have reduced the risk of firearm sales to persons prohibited from owning a firearm.

Based on all these features and omissions, Daniel’s complaint alleges that Armslist knew or should have known that its website would put firearms in the hands of dangerous, prohibited purchasers, and that Armslist specifically designed its website to facilitate illegal transactions….

The court reviewed various § 230 precedents from other jurisdictions, and concluded that Armslist was immune from liability. Under § 230, the court held, Armslist could only be liable under state law for posts on its site to the extent that it actually “develop[ed] the content” of the posts by creating them or at least “materially contribut[ing]” to their illegality—and Armslist did not do so:

The concept of “neutral tools” provides a helpful analytical framework for figuring out whether a website’s design features materially contribute to the unlawfulness of third-party content. A “neutral tool” in the CDA context is a feature provided by an interactive computer service provider that can “be utilized for proper or improper purposes.” A defendant who provides a neutral tool that is subsequently used by a third party to create unlawful content will generally not be considered to have contributed to the content’s unlawfulness.

Examples of such neutral tools include a blank text box for users to describe what they are looking for in a roommate, a rating system that allows consumers to award businesses between one and five stars and write reviews, and a social media website that allows groups to create profile pages and invite members. All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.

This is true even when an interactive computer service provider knows, or should know, that its neutral tools are being used for illegal purposes…. [T]he difference between a neutral design feature and the development of unlawful content is the potential for lawful use…. [I]f a website’s design features can be used for lawful purposes, the CDA immunizes the website operator from liability when third parties use them for unlawful purposes. …

Daniel’s argument is based primarily on the assertion that Armslist’s design features make it easier for prohibited purchasers to illegally obtain firearms. She asserts that Armslist should have known, actually knew, or even intended that its website would facilitate illegal firearm sales to dangerous persons…. [But under § 230(c)(1),] the issue is not whether Armslist knew, or should have known, that its site would be used by third parties for illegal purposes. Instead, the issue is whether Armslist was an information content provider [and not solely a platform provider] with respect to Linn’s advertisement.

Armslist.com’s provision of an advertising forum and the related search functions are all “neutral tools” that can be used for lawful purposes. Sales of firearms by private sellers are lawful in Wisconsin. Further, private sellers in Wisconsin are not required to conduct background checks, and private sales are not subject to any mandatory waiting period. Accordingly, the option to search for offers from private sellers is a tool that may be used for lawful purposes.

The remainder of the design features referenced in Daniel’s complaint—lack of a “flag” option for illegal activity, failing to require users to create an account, failure to create restrictions on who may post or view advertisements, and failing to provide sufficient legal guidance to sellers—are voluntary precautions that the CDA permits but does not require. Whether or not Armslist knew illegal content was being posted on its site, it did not materially contribute to the content’s illegality.

Daniel attempts to evade the CDA by asserting that creators of armslist.com intended for the website to make illegal firearm sales easier. This is an attempt to distinguish this case from the litany of cases dismissing suits against website operators who failed to screen unlawful content. As the First Circuit has recognized, however, the allegation of intent is “a distinction without a difference” and does not affect CDA immunity….

The one outlier § 230 precedent is J.S. v. Village Voice Media Holdings, LLC (Wash. 2015), but the Wisconsin Supreme Court rejected it:

In J.S., which involved claims against the operator of backpage.com on substantially the same facts as in Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016), the plaintiffs made the same argument as the Jane Doe No. 1 plaintiffs, asserting that backpage.com was deliberately designed to facilitate sex trafficking. The Washington Supreme Court concluded that the plaintiffs’ allegation of intent was enough to escape the reach of the CDA…. [But] the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1)….

Sounds right to me. (Disclosure: My students and I filed an amicus brief on the losing side in J.S.)

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Futures Jump On Apple Surge; Fed Looms In Holiday-Muted Session

The tremors unleashed by Google’s earnings debacle and China’s disappointing PMIs just over 24 hours ago are now long forgotten as trader focus shifts to Apple’s strong guidance (if not 17% drop in iPhone sales and 22% plunge in China revenues), helping push the global rally into a fifth month and US equity futures to a fresh record high, even as potential disappointment looms should the FOMC come out more hawkish than expected. At least there will be fewer traders to be disappointed: most of Asia and Europe was shut for the May day holiday. Meanwhile, out of equities, bonds continue to disagree with the algos’ optimism as treasury yields slumped below 2.50% again, while the dollar dipped ahead of the Federal Reserve’s policy decision.

The MSCI world equity index was up 0.1% in early trading after rising to its highest since early October, although May Day holidays across Asia and Europe meant trading was thinner than usual with China, Hong Kong, India, Japan, Singapore, South Korea and Taiwan all shut, and only the UK and Denmark open in Europe.

In a sign of the growing appetite for riskier assets, Australian shares ended just shy of an 11-year peak and London’s blue chip FTSE 100 was up 0.2 percent after solid earnings from supermarket chain Sainsbury’s.

Apple’s strong guidance which came against a disappointing background of the second consecutive revenue decline…

… helped rally US index futures and Apple’s global suppliers and pointed to a rebound for American technology shares, which had slumped in the wake of Google’s revenue miss. Stocks in the U.K. turned lower after data showed manufacturing growth slowed in April, though the pound held gains. Australian equities climbed, while the New Zealand dollar fell after unexpectedly weak labor data.  In the UK, Pearson fell after US textbook peers McGraw-Hill Education and Cengage Learning were said to plan a merger. The pound rose to fresh gained to fresh 2 week highs against the dollar.

For those traders who did make it to work today, there is plenty to keep them busy: Beijing and Washington began their latest talks aimed at ending a bitter trade war and Fed chairman Jerome Powell was due to speak later following the central bank’s two-day policy meeting.

Indeed, all eyes turn to the Marriner Eccles building at 2pm today, and Powell’s subsequent press conference following the U.S. rate decision. “The risk for this Fed meeting is that, unless the FOMC meets the market’s dovish expectation for their stance, we would expect another leg higher in USD,” Mizuho strategists said in a note. As we previewed last night, the Fed expected to leave US rates unchanged amid a “goldilocks” economy, although there is a modest chance of an IOER cut. That said, the market remains convinced a rate cut is coming by December 2019.

A call from U.S. President Donald Trump for a cut in interest rates will likely be unheeded when the results of the Fed’s two-day meeting are released, but the unorthodox comments made on Twitter will increase focus on Powell at his press conference shortly after.

“We expect the Fed to reiterate their still patient stance, as they announced at the start of the year,” Stifel chief economist Lindsey Piegza told Bloomberg TV. “We also expect the Fed to re-characterize their expectation for growth at a somewhat tempered level, but still very positive.”

Corporate earnings and developments in the trade conflict between America and China are also on the radar, with U.S. Treasury Secretary Steven Mnuchin calling the latest round of meetings “productive.” Bullish investors are looking for fresh reasons to push the S&P 500 Index higher after it closed Tuesday at another record.

Additionally, with the whole “sell in May” mantra at their backs, trader caution is building ahead of the summer lull with investors questioning how much longer the rally across global equities can last with better economic data and a stabilization in earnings priced in. “Historically the more difficult half of the year starts today,” said Ian Williams, economics and strategy research analyst at Peel Hunt. “The next six months will present plenty of geo-political challenges.”

In FX, the U.S. dollar was down slightly, trading in a tight range after hitting a one-week low ahead of the Fed news. The Swiss franc and pound led gains among G-10 currencies as the dollar reversed an earlier advance ahead of the FOMC decision. Moves were muted as many markets in Europe and Asia were closed for holidays and traders were in a holding pattern before the Fed. The New Zealand dollar fell after weaker-than-forecast labor-market data caused investors to increase bets on an interest-rate cut as soon as next week.

Elsewhere, commodities were mixed with base metals prices rising on hopes of a breakthrough in the U.S.-China talks, while crude oil prices eased as data showed a rise in U.S. inventories. Brent crude oil futures were at $71.55 per barrel, down 0.8 percent, while U.S. West Texas Intermediate (WTI) crude futures were down 1.1 percent at $63.23 per barrel.

The Federal Reserve’s policy decision is due, along with manufacturing data from ISM and Markit. Scheduled earnings include Qualcomm, CVS Health and Estee Lauder.

Market Snapshot

  • S&P 500 futures up 0.4% to 2,959.25
  • STOXX Europe 600 up 0.09% to 391.70
  • MXAP up 0.2% to 162.60
  • MXAPJ up 0.3% to 539.76
  • Nikkei down 0.2% to 22,258.73
  • Topix down 0.2% to 1,617.93
  • Hang Seng Index down 0.7% to 29,699.11
  • Shanghai Composite up 0.5% to 3,078.34
  • Sensex down 0.09% to 39,031.55
  • Australia S&P/ASX 200 up 0.8% to 6,375.89
  • Kospi down 0.6% to 2,203.59
  • German 10Y yield rose 1.0 bps to 0.013%
  • Euro up 0.1% to $1.1227
  • Brent Futures down 0.8% to $71.48/bbl
  • Italian 10Y yield fell 2.9 bps to 2.184%
  • Spanish 10Y yield fell 1.2 bps to 1.001%
  • Brent Futures down 1.8% to $71.48/bbl
  • Gold spot down 0.2% to $1,281.13
  • U.S. Dollar Index down 0.04% to 97.44

Top Overnight Highlights

  • The latest round of U.S.-China talks wrapped up in Beijing, with U.S. Treasury Secretary Steven Mnuchin calling the meetings “productive” in a tweet. Negotiations will continue in Washington next week, Mnuchin said after Wednesday’s round concluded slightly later than scheduled
  • Fed policy makers may decide Wednesday that falling inflation reinforces a message of caution on interest-rate moves, rather than bowing to President Donald Trump’s demands for drastic action to boost the U.S. economy
  • U.S. Attorney General William Barr will face new scrutiny from lawmakers on Wednesday after a revelation surfaced that he misrepresented Special Counsel Robert Mueller’s findings about whether Trump obstructed justice
  • The U.K.’s main opposition Labour Party predicted Prime Minister Theresa May will have to accept a customs union with the European Union as the price for getting her Brexit deal ratified in Parliament
  • New Zealand hiring unexpectedly fell in the first quarter and wages rose at a slower pace, adding to signs that the jobs market isn’t generating significant inflation pressure

A quiet tone was observed in Asia-Pacific amid closures in nearly all the major regional bourses for Labour Day, although US equity futures were underpinned after-hours following Apple earnings in which the tech giant beat on top and bottom lines, authorized an additional USD 75bln share repurchase and raised its dividends by 5%. ASX 200 (+0.8%) was positive with the index led higher by tech on contagion from Nasdaq futures and with financials buoyed as ANZ shares rallied nearly 3% after its H1 results, while reports that the US dropped a key demand regarding cyber theft in an effort to accelerate a trade deal with China also added to the optimism although most of the region failed to capitalize with China, Hong Kong, India, Japan, Singapore, South Korea and Taiwan all shut.

Top Asian News

  • Mnuchin, Lighthizer Conclude ‘Productive Meetings’ With China
  • Japan’s New Emperor Naruhito Ascends World’s Oldest Monarchy
  • China Further Opens Financial Industry on Eve of Trade Talks
  • Qantas CEO Alan Joyce Commits to Three More Years at the Helm

Mass closures in Europe have extended the quiet tone seen across Asia, with only UK and Danish markets open today in the EU. The FTSE 100 (-0.1%) is relatively flat with sectors also showing no clear standouts. In terms of movers, Sainsbury’s (+4.7%) rose to the top of the index amidst optimistic revenue and profit numbers, alongside a net debt reduction which is ahead of target. To the downside, Persimmon (-1.8%) shares suffer after fire issues were found in houses developed by the company, the company is addressing the issue. State-side, Apple reported earnings aftermarket wherein the tech giant topped estimates on both top and bottom line, whilst Q3 guidance was also above analyst consensus, despite a sharp drop in Q2 iPhone sales. Apple shares spiked higher in excess of 5% post-earnings.

Top European News

  • Lloyds Gets Capital Relief From Bank of England Risk Change
  • Sainsbury Gets Boost as CEO Clings On After Asda Failure
  • U.K. Mortgage Approvals Decline, Consumers Rein In Borrowing
  • U.K. Manufacturing Growth Slows as Firms Reduce Stockpiling Pace

In FX, Cable extended gains through more chart resistance levels on the way to circa 1.3073, like the 30 DMA (1.3052), a Fib (1.3053) and daily tech formation (1.3065), eyeing 1.3090 next (55 DMA) before the 1.3100 handle. A broadly in line and less stockpile-inflated UK manufacturing PMI amidst mixed BoE mortgage and consumer data was largely shrugged off, but Sterling also eked more upside vs the Euro as the cross eased a bit further below 0.8600 to test bids just ahead of a 50% retracement (0.8583) following more reports about constructive cross party Brexit talks as discussions are put on hold due to Thursday’s local elections. More immediately, focus on the Fed before the BoE tomorrow – see the Ransquawk headline feed for detailed previews of the 2 events. Conversely, weaker than forecast NZ jobs data has raised the stakes in terms of RBNZ rate cut expectations for next week and Nzd/Usd retreated in response through 0.6650, as the Aud/Nzd cross rebounded firmly from around 1.0560 to just over 1.0600. However, the Kiwi has pared some losses since with the probability of an ease still close enough to 50% for reasonable doubt.

  • CHF – Another major outperformer or rather beneficiary of a deeper pull-back in the Dollar ahead of the FOMC, as the Franc edges towards 1.0150 and DXY slips to 97.359, very close to a 97.355 Fib and nearer the 30 DMA (97.216).
  • AUD/EUR – Also firmer vs the Greenback as Aud/Usd consolidates recovery gains around 0.7050 and the single currency builds a foothold above 1.1200. Eur/Usd has eclipsed Fib resistance at 1.1217 and is now approaching convergence at 1.1242 (another Fib and 30 DMA) before 1.1250 and 1.1275 (latter roughly coincides with the 50 DMA).
  • JPY/CAD – Both narrowly mixed vs the Usd, as the Yen attempts to breach the 30 DMA (111.40) and retest Tuesday’s peaks, while the Loonie continues its recovery from yesterday’s post-Canadian GDP lows within a 1.3400-1.3375 range in advance of the manufacturing PMI and more from BoC’s Poloz and Wilkins.

In commodities, the energy market had a stellar performance in April as the benchmarks climbed over 6% amidst intensifying tensions in Venezuela, tightening US sanctions on Iran and ongoing OPEC supply cuts. Ahead of the end of Iranian oil waivers later, oil Journalist Reza Zandi notes that Iranian officials are reportedly discussing three potential Iranian scenarios in OPEC:  1) Iran suspends its membership in OPEC until sanctions are removed, 2) Iran departs from OPEC and 3) Iran continues its membership. In today’s trade, oil prices have reversed a bulk of the April gains following a much wider-than-forecast build in API crude stockpiles (6.8mln vs. Exp. 1.5mln), marking the 4th stock build in April. PVM analysts also highlight the uptrend in US stockpiles which is described as a “deepening pocket of weakness” amid a host of a bullish catalysts. WTI and Brent futures have thus retreated back below/around USD 64/bbl and USD 72/bbl respectively ahead of today’s EIA data wherein the market is geared for a headline build of 1.485mln barrels.  Elsewhere, gold remains within a relatively tight range around 1280/oz ahead of the FOMC rate decision (preview available in the Research Suite) whilst copper mirrors the humdrum tone with most the region away on holiday. Finally, aluminium prices remain pressured following on from the weaker-than-forecast Chinese manufacturing data coupled with producers revising down their demand growth estimates for the year.

US Event Calendar

  • 7am: MBA Mortgage Applications, prior -7.3%
  • 8:15am: ADP Employment Change, est. 180,000, prior 129,000
  • 9:45am: Markit US Manufacturing PMI, est. 52.4, prior 52.4
  • 10am: ISM Manufacturing, est. 55, prior 55.3;
  • 10am: Construction Spending MoM, est. 0.0%, prior 1.0%
  • 2pm: FOMC Rate Decision (Upper Bound), est. 2.5%, prior 2.5%
  • Wards Total Vehicle Sales, est. 17m, prior 17.5m

DB’s Jim Reid concludes the overnight wrap

Welcome to May, a month which traditionally has been associated with the adage of ‘sell in May and go away’. However, with the S&P 500 having not seen a negative May performance since 2012 and the US expansion now only one more month away from matching the longest expansion ever at 120 months, it feels like it would take a brave person to do that now. The first day of a new month also means we have our latest performance review which you’ll find as a separate document to this and in your inboxes a short while ago. Needless to say April was another strong month for risk assets, and it means we’ve now seen the strongest start to a year through the first four months in the post-GFC era.

The end of the month saw the S&P 500 stick to the playbook after advancing a modest +0.10% yesterday despite some earnings headwinds and intensified concerns over trade. However, the NASDAQ did fall -0.81% as Alphabet tumbled -7.50% and the most since 2012 following that softer than expected earnings report late on Monday. That move erased more than $69 billion of Google’s market cap, which is equal to more than 3x the median S&P 500 company. On the other hand, Pfizer had reported earnings and revenue that beat expectations, propelling the stock up +2.58% and helping the DOW gain +0.15%. After markets had closed, Apple reported strong sales and profits as well, with iPhone sales notably healthy after recent concern over the product’s outlook. The company’s shares were nearly +5% higher overnight, helping NASDAQ futures advance +0.73% this morning. That’s all to report this morning with most of Asia not trading due to public holidays. Meanwhile, the STOXX 600 ended yesterday close to flat (+0.01%) with banks partially retracing their rally from Monday (-0.35%). Peripheral equities and bonds outperformed, led by Spain’s IBEX and Italy’s FTSE MIB, which gained +0.56% and +0.43%, respectively.

Not helping sentiment also was a WSJ article suggesting that the US favoured leaving punitive tariffs in place as a way of enforcing any trade deal. During the US session, Acting White House Chief of Staff Mulvaney said that talks “won’t go on forever” and if they can’t reach a deal soon then “you throw up your hands and say ‘this is never going anywhere.’” So things certainly seem to be approaching an inflection point, but to be fair we’ve heard similar rhetoric before. USTR Lighthizer and Secretary Mnuchin are in Beijing today negotiating, with the Chinese team set to return to the US next week to continue talks. In other US political news, congressional Democrats met with President Trump yesterday to discuss an infrastructure deal and agreed to meet again in three weeks to discuss funding options. That will be the key area of disagreement, since Senate Minority Leader Schumer has already called for a partial rollback of Trump’s signature tax reforms, while Majority Leader McConnell has already rejected that idea. The sides at least agreed that $2 trillion should be the target for the overall plan, which would certainly be a positive for the economy if realized.

While that should hover in the background, the good news is that we’ve got the welcome distraction of a Fed meeting to look forward to this evening. No policy change is expected and our US economists anticipate that the meeting statement and press conference will reflect the dichotomy of improving growth prospects and easy financial conditions on the one hand, and softening inflation pressures on the other. As such our colleagues believe patience in assessing any adjustments to the policy stance will remain the order of the day for the foreseeable future. However the wildcards are further announcements about balance sheet normalization and the potential for a cut to the IOER. The latter became a bit more likely after yesterday’s fed funds fixing rose to 2.45%, which takes it within 5bps below the top of the target range. That’s the level which has prompted the Fed to lower the IOER in the past. For what it’s worth, President Trump was vocal about the Fed again yesterday, criticizing them for “incessantly” lifting rates amid “wonderfully low inflation” and suggested that the US economy would soar “like a rocket” if they cut rates by a full point and did more QE. Anyway, you can see our economists’ full Fed preview here.

Coming back to yesterday, where the other story was the contrasting slew of data releases on both sides on the pond. It started in Europe with a better than expected Q1 GDP reading for the Euro Area at +0.4% qoq (vs. +0.3% expected). The unrounded reading was +0.38% qoq with the data getting a boost from country level readings for France, Spain and Belgium before. At the same time the March unemployment rate also ticked down to 7.7% which is in fact the lowest in the current cycle now, having peaked at 12.1% in 2013. For what it’s worth, the 2007 low was 7.3%. So the labour market is seemingly still extremely robust, which as our European economists noted reduces the chances of manufacturing sector weakness being transmitted to services through an income-induced hit to domestic demand. We should note that Italy also reported a +0.2% qoq GDP reading yesterday which officially means it has emerged from recession.

Also generating some airtime yesterday morning were the country level April inflation readings. There wasn’t any great surprises for the data in France, Spain, or Italy, however the big positive surprise came in Germany where the +1.0% mom print smashed expectations for just +0.5%. That left the annual rate at +2.1% yoy compared to +1.4% in March. There was talk of an unusually large increase in prices for packages around the Easter holidays as explaining the upside surprise, which may result in some payback next month. Nevertheless, Bunds got as high as 0.046% intraday before fading slightly to close +0.9bps higher on the session at 0.011%.

In any case, stronger growth and higher inflation is certainly food for thought for the ECB even if the data in Europe remains a bit noisy at the moment. Meanwhile, there was no shortage of data in the US yesterday either. It started with a +0.7% qoq reading for the employment cost index which matched expectations, while the breakdown didn’t reveal any great surprises, however the private wages and salaries component was a little firmer at +0.8%. Overall, another fairly benign inflation reading however. Even softer though was the April Chicago PMI which tumbled -6.1pts to 52.6 compared to expectations for 58.5. That is the weakest reading since January 2017 which perhaps paints some downside risk for the 55.0 consensus for today’s ISM print, though it’s interesting to note that the Chicago reading has moved in the opposite direction as the ISM in every month so far this year.

The other data out in the US yesterday included consumer confidence, which rose +5pts to 129.2, remaining near its cyclical high. Pending home sales rose +3.8% mom versus expectations for +1.5%, which is the second highest rate since 2010, only eclipsed by January’s print. Some further evidence of firming activity in the housing market, though on the other hand an index of US house prices rose only +3.0% yoy, which was its slowest pace since 2012. Since shelter prices make up 40% of core CPI, this will definitely be an area to watch moving forward.

The end result of all that was for 10y Treasuries to trade in a 4.9bps range but ultimately settle -2.4bps lower at 2.503%. Elsewhere, BTPs rallied -3.0bps. Though there wasn’t a clear driver, euro area inflation expectations also repriced notably higher. The 5y-5y forward inflation swap rate rose +7.2bps, its biggest move since 2015, though it remains somewhat depressed at 1.42%. The USD (-0.39%) faded with EM FX ending +0.18% higher. Speaking of EM, there was some focus on Venezuela yesterday after opposition leader Juan Guadio called for the military to join with him to overthrow the Maduro regime. He was reportedly seen with national guardsmen, but Madura said on Twitter that the military remains loyal to him. Brent crude oil spiked as high as +1.71% before ending the session +1.05% higher, however it has since given up most of that move this morning.

Looking at the day ahead, the obvious focus is on the aforementioned Fed meeting tonight however it’s also another busy day of data releases with March money and credit aggregates data due in the UK this morning along with the April manufacturing PMI, before we get the April ADP employment change reading in the US along with the April ISM and manufacturing PMI, March construction spending and April vehicle sales. Away from that we’re due to hear from the ECB’s Guindos while US Attorney General Barr is due to testify before the Senate on the 2016 election and specifically Russian interference. The earnings highlights today include Qualcomm, GlaxoSmithKline and Kraft Heinz.

via ZeroHedge News http://bit.ly/2GYT7fj Tyler Durden

Assange Sentenced To 50 Weeks In UK Prison For Skipping Bail

Julian Assange has been sentenced to 50 weeks in a UK prison – close to the maximum sentence – for skipping bail in 2012 to seek refuge in the Ecuadorian embassy, setting off a seven-year showdown with UK law enforcement and the US that ended with his arrest earlier this month, WSJ reports.

Assange

After arriving at the Southwark Crown Court on Wednesday, Assange defiantly raised his fist to rally his supporters. A judge declared during an earlier hearing that Assange’s case could warrant the maximum sentence after he was found guilty shortly after his arrest.

Assange skipped bail in 2012 to avoid being extradited to Sweden over an investigation into allegations of sexual assault.

The Wikileaks founder is facng a separate court hearing on Thursday over a US extradition request. If he is extradited, he could face a maximum of 5.5 years over charges that he conspired to break into a government computer.

via ZeroHedge News http://bit.ly/2J4uLSA Tyler Durden

Maduro Declares Victory Over ‘Attempted Coup’

Venezuelan opposition leader and self-proclaimed president Juan Guaido has called for a second day of street protests on Wednesday, but after the Venezuelan government successfully beat back the Guaido-led “popular uprising” – as the vast majority of Venezuela’s military remained loyal to Nicolas Maduro – it’s looks like the Russia- and China-backed socialist regime has resisted this latest challenge to its rule.

The coup attempt was hardly bloodless – there were horrifying incidences of extreme violence – but for all the jawboning from President Trump, Vice President Mike Pence, Secretary of State Mike Pompeo and NSA John Bolton, it appears Guaido’s most prolific attempt yet to force Maduro from power was a spectacular failure. Some members of the military defected, but Maduro by and large retained control over the military and other levers of power. Presenting a surprising lack of confidence in Guaido, opposition supporters celebrated the release of Leopoldo Lopez from house arrest, the former opposition leader immediately sought refuge in the Chilean embassy.

Late on Tuesday, Maduro took to twitter to thank the supporters of his regime who took to the streets to help suppress the rebellion, and the leaders who stood up for the Bolivarian revolution.

Flanked by military leaders, Maduro delivered a speech where he demanded that all opposition supporters who participated in the day’s violent skirmishes must be identified and arrested, and he bragged that the military base at La Carlota resisted a takeover attempt.

Forming an  unusual alliance, it appears CNN has joined the Trump administration in spreading disinformation about the events in  Venezuela to try and destabilize the regime.

Still, Guaido hasn’t given up yet, calling for his “Operation Liberty” to continue on Wednesday.

Meanwhile, Russia’s foreign ministry has said Pompeo’s claim that Moscow had convinced Maduro to resist the coup and cling to power was “fake news”.

Pompeo said Tuesday that Maduro had intended to step down, but Russia had convinced him to stay. “Washington tried its best to demoralise the Venezuelan army and now [has] used fakes as a part of an information war,” Moscow spokeswoman Maria Zakharova told CNN on Wednesday.

As Venezuelans prepare for a second day of unrest, the number of dead and wounded in Tuesday’s clashes hasn’t yet been reported.

via ZeroHedge News http://bit.ly/2XXHACk Tyler Durden

The Beginning Of The End For British Shale Gas

Authored by Viktor Katona for Oilprice.com,

Amid the ruckus of Great Britain’s reckless Brexit saga, one might not have noticed the ongoing environmental battle that could put a sudden end to shale gas development in the UK. While Britain’s energy security does not have any direct links to Brexit – its hydrocarbon production went into decline in 2000 and has been falling ever since, although the mid-2010s evidenced a stabilization of output – the UK High Court decision over the nation’s shale gas projects might deal a painful blow to the little hope British producers had to kick-start something new. All 9 basins of the Greater North Sea are mature and it is only until 2025-2027 that the current output rebound can last, after that Britain’s oil output will plunge Venezuela-style unless additional measures are taken.

There is no scientific consensus on how much shale gas can be recovered across the United Kingdom. We might use the British Geological Survey’s 2013 report as a point of reference, which states that across central Britain (Bowland-Hodder shales) the aggregate shale gas reserves are somewhere within the 164-264-447 TCf interval (P90-P50-P10). Even if it were true, due to the rather difficult lithography of central Britain the actual recoverable volume would be substantially smaller. The USGS has put the total recoverable gas resources in the Midlands area of England at 8.3 TCf. The Weald Basin in southern Britain and Northern Ireland also has shale gas resources, but they are in a less advanced stage of development than shale finds in Lancashire or Nottinghamshire.

Partially motivated by the emotional drain of Brexit and the necessity to present itself as an employment creating party, the Conservative Party (seemingly) made great headway last year in advancing the cause of developing UK shale gas resources and creating the regulative norms required for it. It has promoted a package of reforms that ought to kick-start shale projects across the country by removing needless administrative obstacles and easing operations. For instance, the new set of rules stipulated that no planning permissions would be needed for shale plays as long as fracking is not involved, and classified shale projects as “nationally significant”, meaning that decisions on shale applications were moved away from the local and regional level.

The Conservative minority government also created a new shale-devoted entity, the Shale Environmental Regulator Group (SERG), to create a dedicated authority that would act as a uniting platform and appointed a first-ever commissioner for shale gas matters. Yet unlike most gas producers around the globe (perhaps only excepting continental Europe) shale operators in the United Kingdom have to face a very committed and highly organized opponent, environmental activists. Opponents of shale gas drilling, staging one protest after another and causing disruptions at the sites, led Ineos and Cuadrilla to secure legal protection at their shale sites – the Preston Crown Court even jailed several anti-shale activists for blocking access in late 2018.

Lacking the competence to ban fracking altogether, Local councils in the UK also started to craft new creative ways on how to nip the government’s shale push in its bud – for instance, the mayor of Greater Manchester introduced a so-called “presumption” with regard to new shale gas developments, effectively meaning that the default position of the local council would be to ban new projects in view of Greater Manchester’s grand target of becoming carbon neutral. As Greater Manchester hosts 10 exploration licenses, this is no small feat. Other local councils have taken similar steps to restrict fracking – even the city of London made the case for a “climate emergency” as the mayor Sadiq Khan pushed for a blanket shale gas ban.

The Scottish government, availing itself of the freedom it has on the matter, has prolonged indefinitely its shale moratorium until an already agreed-upon permanent ban is placed in vigor. Similarly, the Welsh government held public consultations throughout last year and thereupon decided to freeze all license issuing procedures for shale oil and gas, regardless of whether fracking is used or not. To a certain extent, the reaction of the populace across Britain is fully understandable – the several shale gas development sites currently in action are considered a cautionary tale of what is to come unless the public does something about it. Cuadrilla, the only company currently fracking in the UK at its Preston New Road site near Blackpool in Lancashire, has had a series of 0.5 magnitude tremors in early December 2018 and was forced to halt it for a longer period after causing a 1.5 magnitude mini-earthquake mid-December.

All this runs counter to the research shale proponents put forward, stipulating that fracking’s impact would be like dropping a melon – in fact the more advanced the stage of the fracking, the more powerful were the earthquakes. Cuadrilla is reportedly looking to drill a second horizontal well at the same site, however, it remains to be seen how expedient would it be under current circumstances. All the more so as the UK’s shale gas commissioner, MP Natascha Engel, resigned last week from her position after a mere 6 months of work. Yet perhaps the biggest obstacle of any further shale gas advances in the United Kingdom would be its own High Court, which has ruled this March that the government’s amendments of the National Planning Policy Framework to speed up shale projects was unlawful.

Here we return to an oft-repeated mistake – the UK High Court has found that the government’s disregard for an environmental study (the “Mobbs Report”) presented by the anti-shale group Talk Fracking was undeniable and that the government indeed underestimated the extent of shale gas emissions arising from fracking, at the same time overestimating Britain’s shale potential. This opens up the possibility for other anti-shale and anti-fracking groups to question the government’s shale policy by means of judicial review. All in all, with a frustrated government, constrained companies and a very organized array of environmental groups, the United Kingdom is just a couple of steps away from giving up on its shale gas altogether.

via ZeroHedge News http://bit.ly/2WgIhGD Tyler Durden

Brickbat: Pour Encourager Les Autres

French prosecutors are investigating several of the “yellow vest” protesters for possible “contempt of a person carrying out public authority at a meeting.” They are accused of mocking recent suicides among police officers and shouting “commit suicide” at officers policing their protests.

from Latest – Reason.com http://bit.ly/2URd0IL
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US Troops In Syria For “Long Haul” Atop “A Lot Of Oil Resources”: Pentagon Official

A high level Pentagon official has admitted that US forces will be in Syria for “the long haul” and coupled his statement by declaring the territory contains “a lot of the oil resources and arable land.”

The unusually frank remarks were made this week by Michael Mulroy, Deputy Assistant Secretary of Defense for the Middle East, while addressing a conference at the D.C. based Center for a New American Security (CNAS), months after President Trump appeared to have caved to his advisers, reversing course earlier this year from his stated goal of a full and rapid US troop exit from Syria. 

al-Omar oil field in Deir Ezzor, Syria

Mulroy said “we have a very capable partner” — in reference to the primarily Kurdish Syrian Democratic Forces (SDF)  and quickly noted the US-trained SDF happens to occupy key regions in eastern Syria with “a lot of the oil resources and arable land,” and added that, “we are there with them”.

The Pentagon official further vouched for the think tank’s new feature policy recommendations on Syria which call among other things for continuing to “maintain a presence in over one-third of the country.”

Referencing the CNAS’ new policy report entitled “Solving the Syrian Rubik’s Cube,” regional Iraqi media outlet Kurdistan 24 reported:

Nicholas Heras, one of the study’s co-authors, spoke with Kurdistan 24. He explained that of the six scenarios considered in the report, “The option that we supported is that the United States should continue to maintain a presence in over one-third of the country” and “should invest more, both in terms of financial resources and personnel to stabilize” that region of Syria.

Earlier this month the SDF and western coalition forces declared total defeat over ISIS after fully securing the last ISIS holdout town of Baghouz.

Meanwhile, the majority of Syria’s population is now under the Syrian government, now reeling from the worst fuel shortage in the nation’s history as a result of new oil sanctions targeting Damascus and its ally Iran. 

Even with the Islamic State’s territorial caliphate now long gone, major oil and gas sites like al-Omar oil field in Deir Ezzor province in Syria’s east remain controlled by the SDF and its US backers, something which Damascus has repeatedly condemned before the United Nations as an illegal violation of its sovereignty. 

via ZeroHedge News http://bit.ly/2GUWG64 Tyler Durden

Brickbat: Pour Encourager Les Autres

French prosecutors are investigating several of the “yellow vest” protesters for possible “contempt of a person carrying out public authority at a meeting.” They are accused of mocking recent suicides among police officers and shouting “commit suicide” at officers policing their protests.

from Latest – Reason.com http://bit.ly/2URd0IL
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Democratic Triumph For Catalan Separatists

Authored by Craig Murray,

The Spanish General election in Catalonia was a stunning victory for the Catalan Separatists, their best ever election result, achieved despite their leadership being exiled or political prisoners and despite an avalanche of MSM propaganda against them. Four of those elected are currently in jail. The Spanish state has reacted by declaring the two major separatist candidates, Clara Ponsati and Carles Puigdemont, ineligible for the European Parliament elections.

The Catalan Republican Left won the biggest share of the vote, which negates the continued false propaganda being put about Catalonian Independence being a right wing movement. Over 60% of the vote in Catalonia went to avowedly left wing parties.

It is further worth noting that there is a very plain correlation between the geographical location of the 3.6% of the vote that the neo-fascists of Vox gained in Catalonia, and the Spanish occupation garrisons in the country.

You will struggle very hard indeed to learn any of the above facts from British mainstream media; I had to get them all from Catalan sources.

The Guardian has published 55 articles in the last three years boosting Ines Arrimadas, the leader of the Catalan branch of the right wing “Spanish” Citizens Party, including at least three op-eds written by Ines herself. The Guardian has sought relentlessly to portray public opinion in Catalonia as anti-Independence, and Arrimadas as its true representative.

Typical photo from the Guardian of their right wing anti-Catalan pin-up.

Yet in the Spanish General Election, Arrimadas’ party got only 11.6% of the vote in Catalonia. The right wing nationalist Spanish parties, the fascist Vox, the Francoist PP and Arrimadas’ foreign security service promoted Citizens, got a pathetic 20.1% of the vote between all three, in a stunning Catalan rejection of Spanish nationalism.

The Citizens Party started life as an astroturf effort to help counter the left-wing and anti-EU populism of Podemos. To that end it was funded and assisted by the German foreign intelligence service, the BND. It remains a favourite tool of foreign intelligence services, particularly MI6 which of course sees the links between Catalan and Scottish nationalism. Hence the peculiarly active link between Ciudadanos and MI6’s print media mouthpiece, the Guardian.

It is impossible to correlate directly from party results to potential referendum results, as a number of parties including Podemos and the Greens hold ambivalent positions on Independence, and a percentage of voters will have a view on Independence which differs from the party they support. For example a small but significant number of Socialist Party supporters of PM Pedro Sanchez, also support Catalan Independence.

Given the thuggish violence of Francoist paramilitary forces against the ordinary voters in Catalonia’s referendum, given the imprisoning and exile of its peaceful leadership, given the extraordinary Madrid dictated barrage of MSM propaganda, the Catalan nationalist victory in the General Election is a wonderful triumph for the human spirit.

Now you won’t hear that in the MSM.

via ZeroHedge News http://bit.ly/2IQeZLT Tyler Durden