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Townsend v. Swiss Colony

August 5, 2008

ADRIENNE TOWNSEND, PLAINTIFF,
v.
THE SWISS COLONY, INC., AND SEVENTH AVENUE, INC. DEFENDANT .



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Adrienne Townsend ("Townsend") brought a Class Action Complaint against The Swiss Colony, Inc. ("Swiss Colony") and Seventh Avenue, Inc. ("Seventh Avenue"), alleging that they violated the Fair Credit Reporting Act ("FCRA") 28 U.S.C. § 1331 and the Truth in Lending Act ("TILA") 15 U.S.C. § 1642. Defendants filed a Motion to Dismiss for failure to state a claim. In response, Townsend filed a First Amended Complaint, and Defendants again moved to dismiss. Townsend then filed a Second Amended Complaint, and Defendants again renewed their Motion to Dismiss. The premise of Townsend's claim is that Defendants violated the FCRA by using her credit information to solicit and advertise to her. Defendants countered that they had offered Townsend a firm offer of credit and as such used her credit report appropriately. In order to properly address the mailing, this Court converted that Motion to Dismiss into a Motion for Summary Judgment and permitted the parties to engage in limited discovery in order to support their respective positions. In so doing, it allowed the parties to file additional materials from their limited discovery. Accordingly, the Court struck the prior motions without prejudice. Townsend voluntarily dismissed her class allegations. For the reasons stated below, this Court grants Defendants' Motion for Summary Judgment.*fn1

STATEMENT OF FACTS*fn2

Adrienne Townsend received mailings from each of the defendants, each of which included a catalog of either the Swiss Colony or Seventh Avenue's products and a cover letter offering Townsend credit for buying the products in the respective catalogs through the Defendants "Choose 'n Charge" programs. MTD Ex. B-E; Def. 56.1 at ¶¶ 6, 14. The words: "You are pre-approved" for credit appeared on the cover letters and the front of the catalogs. Def. 56.1 at ¶ 16. Specifically, the mailings indicated that the recipient was pre-approved to receive $400 in credit from the Swiss Colony and Seventh Avenue for use in purchasing products from the catalogs. Id. at ¶ 10.

This Court cannot review the exact materials the Defendants sent to Townsend. Id. at ¶¶ 6a, 9. Townsend no longer has copies of them. Id. at ¶ 6a. As such, Defendants have submitted mailings that they represent are identical to those sent to Townsend, including identical "Choose 'n Charge" offers. Id. at ¶¶ 6, 7.*fn3 The actual materials received by Townsend would have differed in that they would have included her name and address. Id. at ¶ 8.

Defendants sent Townsend the catalogs and related offers of credit as a result of its consumer prescreening process. Def. 56.1 at ¶ 14. Specifically, in their prescreening process, Swiss Colony and Seventh Avenue "rented" names from third parties and sent them to credit bureaus for prescreening for offers of credit. Pl. 56.1 at ¶¶ 33, 35. After names were rented, duplicate names and customers with previous experience with the Defendant companies were removed. Id. at ¶¶ 38-40. Defendants then assigned media codes to the names that indicated the source of the names. Id. at ¶ 42. Defendants submitted the names to a credit bureau along with a range of credit scores that they would accept and requested that the credit bureau provide reports only for the names that fell within the accepted range. Id. at ¶¶ 43-45. The credit bureau sent back the relevant credit reports. Pl. 56.1 at ¶ 45. Defendants then assigned a credit limit for each consumer that fell within the required range based on the consumer report. Id. at ¶ 46.

The amount of credit offered was sufficient to purchase most of the items available in the enclosed catalogs. Def. 56.1 at ¶ 12. However, the terms and conditions listed on the enclosed application for credit indicated that the recipient could be extended a minimum credit line of $50 for the Swiss Colony and $100 for the Seventh Avenue Co., respectively. The offers of credit were not restricted to a one-time purchase or to the purchase of a discreet item; but rather, offered a revolving credit line that could be used for multiple purchases from each of the companies over time. Id. at ¶ 13. The language used in the offers stated that the Defendants could "close your account to future purchases or limit their amount." Id. at ¶ 13. Each offer included all the material terms: the interest rate, the method for calculating interest, payment terms, annual fee ($0), and minimum finance charges. Id. at ¶ 17.

In order for Townsend to take advantage of the offer of credit, she had to call Swiss Colony or Seventh Avenue and complete a telephone application, fill out an application on the internet, mail a completed application, or choose the option to pay for her order with "Choose 'n Charge" credit. Id. at ¶ 19. The materials did not include an account number, and Townsend needed to affirmatively request an account to receive an account number that could be used to make purchases. Id. at ¶¶ 18, 21-22.

The offer extended to Townsend included an "APP CODE," a multi-functional number printed on catalogs and mailers sent to certain customers. Id. at ¶¶ 23-24. The APP CODE was not the same as the account number for a line of credit nor could it be used to make purchases. Id. at ¶¶ 29-30. Defendants placed the APP CODES on the mailers containing the offers of credit in order to identify which mailer was sent to a specific consumer. Id. at ¶ 25-26. These APP CODES allowed Defendants to identify the consumer, the credit offer extended to that particular consumer and other information sent to that particular consumer including the version of the catalog mailed. Def. 56.1 at ¶ 27. This ensured that Defendants honored the specific offer actually extended to a specific consumer. Id. at ¶ 28

STANDARD

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.").

DISCUSSION

FCRA Claims

Townsend believes that Defendants violated the FCRA by obtaining her personal credit report for the sole purpose of advertising, which would be ...


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