United States District Court, N.D. Illinois
January 13, 2005.
ONETA S. SAMPSON, et al.
RIDGE CHRYSLER/PLYMOUTH, LLC.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
More than a year ago, I dismissed one theory of the plaintiff's
claim filed under the Fair Credit Reporting Act. There were other
allegations which survived the motion to dismiss. The statute in
question can be violated in a variety of ways. One way I thought
it could not be violated here was to claim that there was no
"firm offer of credit" because it appeared there was a firm offer
of some level of credit which existed to justify use of a credit
report. Congress enacted a compromise and its language is not
crystal clear. I thought that if Congress had meant to say the
offer of credit has to have real value to some consumers it could
have done so. The language of Congress did not, on its face,
require that the offer had to be one which some rational
consumers would redeem. It is a good rule of thumb for District
Judges to stick with the language of Congress. The Court of
Appeals is better equipped, since it engages in its own
multi-judge deliberative process, to consider whether statutory
language is unclear enough to justify going beyond the apparent
limits of the words. In Cole v. U.S. Capital, 389 F.3d 719, (7th
Cir. (Ill.) 2004), our Court of Appeals decided last November
that an "firm offer of credit" means a "offer of credit that some
rational consumers might accept." The result is, in my view, good
policy. It is not without warrant in the language, one could say
that an "offer of credit" cannot be `meaningfully' said to be
"firm" if it offers credit that no one would take. While judges
and lawyers do speak of "firm" offers of settlement that no sane
opponent would take, the context of offers made in large scale
mailings by sellers of consumer goods is a very different
context, as the hearing in Congress showed.
It may be that the credit actually offered here met the
statutory requirements, but that can be shown only on a motion
for summary judgment and not on the motion to dismiss. That may
or may not be a matter for another day.
The motion for reconsideration is granted, and allegation of
failure to make a firm offer of credit is restored to the
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