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SAMPSON v. RIDGE CHRYSLER/PLYMOUTH

United States District Court, N.D. Illinois


January 13, 2005.

ONETA S. SAMPSON, et al.
v.
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 complaint.

20050113

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