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Muro v. Target Corp.

August 31, 2009

CHRISTINE MURO, PLAINTIFF-APPELLANT,
v.
TARGET CORPORATION, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:04-cv-06267-Rebecca R. Pallmeyer, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED SEPTEMBER 12, 2008

Before RIPPLE, ROVNER and EVANS, Circuit Judges.

After receiving an unsolicited Target Visa card in the mail, Christine Muro brought this action, on behalf of herself and all others similarly situated, against Target Corporation, Target National Bank and Target Receivables Corporation (collectively "Target"). Ms. Muro alleged that Target had violated sections 127 and 132 of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1637(a) & (c), 1642.*fn1 The district court granted summary judgment in favor of Target and denied Ms. Muro's motion for class certification of her TILA claims. For the reasons stated in this opinion, we affirm the judgment of the district court.

I. BACKGROUND

The basic facts of this case are straightforward. In light of the procedural posture of this case, we must construe them in the light most favorable to Ms. Muro. See Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).

Under its Autosubstitution Program, Target mailed unsolicited Visa Cards, along with an updated credit agreement, to Target Guest Card holders.*fn2 Guest Card holders had the option of activating their Visa Cards upon receipt. Once a Visa Card was activated, the corresponding Guest Card immediately was deactivated and any balance remaining on the Guest Card was transferred to the Visa Card.

Ms. Muro applied for and received a Guest Card on April 4, 1998. In December 1999, she paid the balance owed on her Guest Card and requested that her account be closed. She received no further correspondence from Target for nearly five years. In August 2004, how-ever, Ms. Muro received an unsolicited Visa Card in the mail. She did not activate the Visa Card and did not incur any charges or fees associated with the card. She subsequently brought this action against Target on behalf of herself and all others similarly situated. The district court's treatment of each claim will be described in our discussion of that claim. In summary, Ms. Muro settled her claim under section 1642 of TILA, and the district court denied class certification on that claim. On the claims under section 1637 of TILA, the court granted summary judgment to Target and denied class certification.

II. DISCUSSION

A. The Section 1642 Claim

In Count I of her complaint, Ms. Muro alleged that the unsolicited issuance of Visa Cards to Guest Card holders violated section 1642 of TILA. This section provides, in pertinent part, that "[n]o credit card shall be issued except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card." 15 U.S.C. § 1642.

Ms. Muro brought her section 1642 claim on behalf of "[a]ll persons who were mailed a 'Target VISA' card by Target without first requesting or applying for said card, including Target Guest Card cardholders who received a 'Target VISA' without requesting a 'Target VISA.' " R.6 at 2; R.102 at 21. The district court concluded that this proposed class included at least two distinct groups: Those who, like Ms. Muro, had cancelled their Target Guest Card or otherwise did not have an open Guest Card account prior to receiving a Visa Card,*fn3 and those who held an open Guest Card account at the time they received the Visa Card. The district court concluded that, for a person with an open Guest Card account, the substitution of Visa Cards for Guest Cards did not violate section 1642. The court also held, however, that Ms. Muro's individual claim remained viable because she had alleged that she closed her Guest Card account prior to receiving a Visa Card.

The court then denied the motion for class certification on the section 1642 claim. The district court concluded that the class proposed by Ms. Muro should not be certified because Ms. Muro's claims were not typical of the claims of the proposed class; unlike most of the pro-posed class members, Ms. Muro had alleged that she had closed her Guest Card account.*fn4 In the district court's view, the class that Ms. Muro would be capable of representing would consist of

[a]ll persons who were mailed a Target Visa Card without first requesting or applying for said card, and who did not at the time hold any active Target-branded credit card, including Target Guest Card holders who had ...


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