2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-5-2009

Gelman v. State Farm Mutl Auto

Precedential or Non-Precedential: Precedential

Docket No. 07-3665

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"Gelman v. State Farm Mutl Auto" (2009). 2009 Decisions. Paper 342.

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3665

 

BRUCE GELMAN, ESQUIRE,

ON BEHALF OF HIMSELF

AND ALL OTHERS

SIMILARLY SITUATED

v.

STATE FARM MUTUAL

AUTOMOBILE INSURANCE

COMPANY

 Bruce Gelman,

 Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Civ. No. 06-cv-05118)

District Judge: Hon. William H. Yohn

 
2

Argued: September 9, 2008

Before: SCIRICA, Chief Circuit Judge, McKEE 

and SMITH, Circuit Judges

(Opinion filed: October 5, 2009)

PATRICK J. LOUGHREN, ESQ. (Argued)

Loughren, Loughren & Loughren, P.C.

3204 Grant Building

Pittsburgh, PA 15219

DANIEL C. LEVIN, ESQ.

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Suite 500

Philadelphia, PA 19106

CHRISTOPHER G. HAYES, ESQ.

The Law Office of Christopher G. Hayes

225 South Church Street

West Chester, PA 19382 

Attorneys for Appellant

JAMES T. MOUGHAN, ESQ.

Britt, Hankins & Moughan

Suite 515 

Two Penn Center Plaza

1500 John F. Kennedy Boulevard

Philadelphia, PA 19102
3

MICHAEL P. KENNY, ESQ.

CARI K. DAWSON, ESQ. (Argued)

DERIN B. DICKERSON, ESQ.

Alston & Bird LLP

1201 W. Peachtree Street

Atlanta, GA 30309

Attorneys for Appellee

THOMAS W. CURVIN, ESQ.

VALERIE S. SANDERS, ESQ.

DREW D. DROPKIN, ESQ.

Sutherland Asbill & Brennan LLP

999 Peachtree Street, N.E.

Atlanta, GA 30309

Attorneys for Amicus Curiae, Property

Casualty Insurers Association of

America, in support of Appellees

 

OPINION

 

McKEE, Circuit Judge.

Bruce Gelman appeals the district court’s Rule 12(b)(6)

dismissal of the claims he filed under the Fair Credit Reporting

Act that arose from an allegedly improper disclosure of his

credit report and a subsequent mailer from an insurance

company that arose from that disclosure. For the reasons that

follow, we will affirm the district court.
1

The facts are as alleged in Gelman’s complaint. See

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). (When

reviewing a dismissal for failure to state a claim under Fed. R.

Civ. P. 12(b)(6), we assume the truth of the plaintiff’s

allegations.)

2 A copy of the mailer he received from State Farm

was attached to his complaint as an exhibit. The exhibit is an

undated sample mailer, and Gelman does not allege when he

received it.

4

I. FACTUAL BACKGROUND1

On or about November 18, 2004, State Farm Mutual

Automobile Insurance Company requested and obtained

Gelman’s consumer credit report from Experian, a consumer

reporting agency, without Gelman’s consent or authorization.

Gelman alleges that he did not discover that State Farm had

obtained his consumer credit report until April 5, 2006, when he

received a copy of his consumer credit report from Experian.

His consumer credit report noted that State Farm had obtained

his credit report for a “permissible purpose.” Gelman sued State

Farm after the latter obtained a copy of his credit report from a

credit reporting agency and used it to select Gelman to receive

materials pertaining to insurance products that he might qualify

for and/or be interested in.

The mailer that was sent claims that State Farm has been

the “No. 1 auto insurer since 1942.”2

 In a paragraph set off by

a border, the mailer says it is a “prescreened offer.” It also states

in bold, enlarged font: “Call . . . for a quote or return the
5

attached card today. I could save you up to $356!*.” The

mailer also claims: “[a]s your agent, I’ll help you find the right

level of coverage at the right price for your needs. By getting

to know you personally, I can offer: Competitive rates that can

save you up to $356 or more.*” A footnote to the asterisk states:

“Actual average annual savings were $356.58 per household.

This amount is based on a January 2005 survey of new

policyholders who reported savings through State Farm as

compared to their previous carriers’ rates.” 

An attached card further describes the auto insurance

“offering.” Its caption reads: “Learn more about auto insurance

at statefarm.com.” The line underneath the caption and next to

a checkmarked box reads: “Yes! I’d like more insurance

information on State Farm auto insurance.” The attached card

asks for the recipient’s phone number, best time to call, name of

current car insurance carrier and renewal date of car insurance.

That card also gives the recipient the opportunity to request

more information regarding homeowners insurance, flexible

payment options, life insurance or “other.” 

In addition, the mailer contains the following opt-out

notice in a paragraph set off by a border: “You can choose to

stop receiving ‘prescreened’ offers of insurance from this and

other companies by calling toll-free . . .. See ‘PRESCREEN &

OPT-OUT NOTICE’ on the other side for more information

about prescreened offers.” The other side of the mailer that is

referenced contains the following information:

PRESCREEN & OPT-OUT NOTICE: This

“prescreened” offer of insurance is based on the
6

information in your consumer reports, including

your credit report, indicating that you meet

certain eligibility criteria. This offer is not

guaranteed if you do not meet our criteria at the

time of application and expires 60 days after you

receive it. If you wish to omit your name from

future State Farm mailings, please contact me at:

State Farm Customer Mail Response Center at:

State Farm Insurance Company-Customer Mail

Response Center – P.O. Box 1800 – Aurora, ILL

60507-9863. If you do not want to receive

prescreened offers of insurance from this and

other companies, contact the consumer reporting

agencies listed below or call toll-free . . . .

Gelman contends that State Farm’s mailer is an invitation

to call State Farm to find out about the various insurance

products that State Farm might attempt to sell. Put another way,

Gelman contends that the State Farm mailing is nothing more

than promotional material soliciting him to contact State Farm

regarding its various insurance products and that it is therefore

not the kind of firm offer of insurance that would legitimize

State Farm’s access to his credit report under federal law.

II. DISTRICT COURT PROCEEDINGS

On November 22, 2006, Gelman filed a putative class

action complaint against State Farm asserting four substantive

and two procedural claims arising under the Fair Credit

Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.

Specifically, Gelman asserted that: (1) State Farm obtained his
3 Gelman is only challenging the district court’s

holding that State Farm’s mailer was an offer of insurance

and that the disclosure of his credit report was therefore

permissible under the FCRA. That holding resulted in the

7

credit report from a credit reporting agency under false

pretenses in knowing and willful violation of § 1681q (“false

pretenses claim”); (2) State Farm willfully violated § 1681b(f)

without a permissible purpose (“permissible purpose claim”);

(3) State Farm’s offer of insurance did not contain the “clear

and conspicuous” disclosures required by § 1681m (“the

disclosure claim”); and (4) State Farm negligently violated each

of the foregoing statutory provisions in violation of § 1681o.

Gelman also sought declaratory and injunctive relief.

State Farm responded by filing a motion to dismiss for

failure to state a cause of action pursuant to Fed.R.Civ.P.

12(b)(6), and the district court granted that motion as to all of

Gelman’s claims. Gelman v. State Farm Mut. Auto. Ins. Co.,

2007 WL 2306578 (E.D. Pa. Aug. 9, 2007). The district court

held that Gelman failed to state a claim for his false pretenses

and permissible purpose claims because State Farm’s mailer

constituted an offer of insurance under the FCRA, and that was

a “permissible purpose” for disclosing Gelman’s credit report.

Id. at *4-8. It further held that the FCRA does not provide for

a private right of action to recover for disclosures that are

contrary to provisions of the FCRA. Id. at *8. The district

court also held that the FCRA does not provide private litigants

declaratory and injunctive relief. Id. at *9. This appeal

followed.3
dismissal of each of Gelman’s claims under the FCRA. 

4

Iqbal was decided by the Supreme Court after this

case was argued. However, “appellate courts are obliged to

apply the law as they find it at the time of their judgment.” C

& K Coal Co. v. United Mine Workers of America, 704 F.2d

690, 698 (3d Cir. 1983). 

8

III. STANDARD OF REVIEW

We exercise plenary review of the district court’s order

granting a motion to dismiss for failure to state a claim.

Santiago v. GMAC Mortgage Corp., 417 F.3d 384, 386 (3d Cir.

2005). In determining whether a district court’s dismissal of a

complaint under Fed.R.Civ.P. 12(b)(6) was proper, we must

“accept all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine, whether

under any reasonable reading of the complaint, the plaintiff may

be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d

224, 233 (3d Cir. 2008). At this stage, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’ A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, U.S. 

, 129 S.Ct. 1937, 1949 (2009)4 (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007)). “[W]here the wellpleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – that the ‘pleader is entitled to relief.’” Iqbal,
5

 For reasons that will become apparent in our

discussion of Cole, that case is readily distinguishable from

the situation here, and it has since been limited to

circumstances not before us. Nevertheless, that decision

remains one of the few appellate decisions interpreting

provisions of the FCRA applicable here, and its interpretation

of terms used in the FCRA remains helpful.

9

129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). 

In addition, because Gelman attached a copy of State

Farm’s mailer to his complaint, the mailer may be considered

for purposes of ruling upon the Rule 12(b)(6) motion. See

Pension Benefit Guar. Corp. v. White Consl. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). 

IV. LEGAL BACKGROUND

“Congress enacted the FCRA in 1970 to ensure fair and

accurate credit reporting, promote efficiency in the banking

system, and protect consumer privacy.” Safeco Ins. Co. of

America v. Burr, 551 U.S. 47, 127 S.Ct. 2201, 2205 (2007). In

doing so, Congress sought to preserve the consumer’s privacy

in the information maintained by consumer reporting agencies.

Cole v. U.S. Capital, Inc., 389 F.3d 719, 725 (7th Cir. 2004).5

A “consumer reporting agency” is defined as: “any person

which, for monetary fees, dues, or a cooperative nonprofit basis,

regularly engages in whole or in part in the practice of

assembling or evaluating consumer credit information or other

information on consumers for the purpose of furnishing
6

A “consumer credit report” is “any written, oral, or

other communication of any information by a consumer

reporting agency bearing on a consumer’s credit worthiness,

credit standing, credit capacity, character, general reputation,

personal characteristics, or mode of living which is used or

expected to be used or collected in whole or in part for the

purpose of serving as a factor in establishing the consumer’s

eligibility for – (A) credit or insurance to be used primarily

for personal, family or household purposes; (B) employment

purposes; or (C) any other purpose authorized under section

1681b of this title.” 15 U.S.C. § 1681a(d)(1). 

10

consumer reports to third parties, and which uses any means or

facility of interstate commerce for the purpose of preparing or

furnishing consumer reports.” 15 U.S.C. § 1681a(f). 

The Act explains: “There is a need to insure that

consumer reporting agencies exercise their grave responsibilities

with fairness, impartiality, and a respect for the consumer.” 15

U.S.C. § 1681(a)(4). Accordingly, Congress prohibited credit

agencies from releasing consumer credit reports 6

 “unless the

release occurs for one of the permissible purposes set forth in 15

U.S.C. § 1681b(a).” Cole, 389 F.3d at 725. Section 1681

provides for release of consumer credit reports “‘[s]ubject to

subsection (c) of [that] section,’” under certain narrowly defined

circumstances “and no other . . .’” Cole, 389 F.3d at 725. 

However, in enacting § 1681, Congress realized that

disclosures of consumer credit reports are often the direct result

of inquiries initiated by consumers themselves. Congress
7

 Inasmuch as State Farm’s mailing did not involve an

offer of credit, or a solicitation for a loan, we limit our

discussion to the exemption for firm offers of insurance

contained in § 1681b.

11

allowed for disclosure in many such situations because they “do

not create significant privacy concerns.” Cole, 389 F.3d at 725.

“For example, when the consumer applies for credit,

employment, insurance or a license, the consumer reporting

agency may release the consumer’s report.” Id. at 726, n.5

(citing 15 U.S.C. § 1681b(a)(3)(A)-(F)). That section also

provides for: “limited situations in which a consumer credit

agency may furnish a consumer report even though the

consumer has not initiated or authorized the release.” Id. at 725.

One such situation occurs when a credit or insurance provider

is extending the consumer a “firm offer of credit or insurance.”

15 U.S.C. § 1681b(c)(1)(B)(i). As we stated earlier, Gelman is

alleging that State Farm failed to make a firm offer of

“insurance,” and the disclosure was therefore not within the

narrow exemption in the FCRA allowing disclosure of

consumer credit reports for firm offers of insurance.7

The FCRA defines a “firm offer of . . . insurance” as:

any offer of . . . insurance to a consumer that will

be honored if the consumer is determined, based

on information in a consumer report, to meet the

specific criteria used to select the consumer for

the offer. . . .

15 U.S.C. § 1681a(l). However, Congress allowed a “firm
8 “Willful” violations include reckless disregard of any

requirement of the FCRA. See Safeco Ins. Co. of America v.

Burr, supra.

12

offer” to be conditioned on three specific requirements, the

existence of which do not preclude an offer of insurance from

being “firm.” First, the consumer may need to satisfy

additional pre-selected criteria bearing on the consumer’s

creditworthiness. 15 U.S.C. § 1681a(l)(1). Second, the offer

may be conditioned on verification “that the consumer

continues to meet the specific criteria used to select the

consumer for the offer.” 15 U.S.C. § 1681a(l)(2). Third, the

offer may be conditioned on the consumer’s furnishing any

collateral that was both established before the selection of the

consumer for the offer and disclosed to the consumer in the

offer. 15 U.S.C. § 1681a(l)(3). 

Congress gave the Federal Trade Commission (“FTC”)

primary responsibility for governmental enforcement of the

FCRA. 15 U.S.C. § 1681s. However, the FCRA also creates a

private cause of action. See 15 U.S.C. §§ 1681n-o. Sections

1681n and 1681o establish civil liability for willful and

negligent noncompliance with § 1681. It allows recovery of

actual damages, 15 U.S.C. § 1618o, as well as statutory and

punitive damages if a violation is “willful.” 15 U.S.C. § 1681n.8

V. DISCUSSION 

As noted, the district court held, inter alia, that Gelman

failed to state a claim for his false pretenses claim, 15 U.S.C. §
9

 15 U.S.C. § 1681q, provides: “Any person who

knowingly and willfully obtains information on a consumer

from a consumer reporting agency under false pretenses shall

be fined under Title 18, imprisoned for not more than 2 years,

or both.” 

10 15 U.S.C. § 1681b(f) provides: “A person shall not

use or obtain a consumer report for any purpose unless – (1)

the consumer report is obtained for a purpose for which the

consumer report is authorized to be furnished under this

section; and (2) the purpose is certified in accordance with

section 1681e of this title by a prospective user of the report

through a general or specific certification.” 

13

1681q,9 and his permissible purpose claim, 15 U.S.C. §

1681b(f),10 because State Farm did send him a firm offer of

insurance as defined by the FCRA. In so holding, the district

court rejected Gelman’s contention that a firm offer of insurance

must have “value” to the consumer. In Gelman’s view, an offer

of insurance without value is nothing more than an

advertisement or a solicitation of business, which is not a

permissible purpose for seeking a consumer’s credit report

under the FCRA.

Gelman rests his argument that a firm offer of insurance

must have value exclusively on the decision of the Court of

Appeals for the Seventh Circuit in Cole v. U.S. Capital, Inc.,

389 F.3d 719 (7th Cir. 2004). He argues: “The statutory

scheme of the FCRA makes clear that a ‘firm offer’ must have

sufficient value for the consumer to justify the absence of the .

. . protection of his privacy.’” Appellant’s Br. at 7 (quoting
14

Cole, 389 F.3d at 376). Gelman’s claim on appeal can be

reduced to his contention that: “the District Court found that

when determining a firm offer, you are not required to evaluate

whether the offer has any value and thereby rejects the Seventh

Circuit approach in Cole,” Appellant’s Br. at 10.

In Cole, an unsolicited mailing to Cole from U.S. Capital

and Gleason Chevrolet offered a $300 credit that could only be

used to purchase a car at Gleason Chevrolet. The mailing said

approval was neither expressed nor implied and that interest

rates might vary from 3% to 24.9%, with no indication of how

interest would be compounded and with no indication of a

repayment schedule. Cole sued U.S. Capital alleging, inter

alia, an improper use of her credit report because the mailing

was not a firm offer of credit. Rather, she claimed it was

“merely a sham to justify obtaining her credit report.” Id. at

726. She contended “that, given the insignificant amount of

credit, the offer was not made with the expectation that a

significant number of consumers would accept the offer, and,

therefore, it cannot constitute a ‘firm offer of credit’ for

purposes” of FCRA. Id. 

U.S. Capital responded by arguing that the “lynchpin of

‘firm offer of credit’ is that some amount of credit – however

small – is guaranteed.” Id. In U.S. Capital’s view, “the FCRA

does not require a minimum amount of credit to be offered and

therefore the preapproval could be for any amount, perhaps

even as low as $1.” Id. (citation omitted).

In rejecting U.S. Capital’s argument, the court wrote:

We believe that the reading of “firm offer of
15

credit” suggested by [U.S. Capital] . . . eviscerates

the explicit statutory purpose of protecting

consumer data and privacy. Indeed, such a

definition would permit anyone to gain access to

a sea of sensitive consumer information simply by

offering some nominal amount of guaranteed

credit. The statutory scheme of the FCRA makes

clear that a “firm offer” must have sufficient

value for the consumer to justify the absence of

the statutory protection of his privacy. A

definition of “firm offer of credit” that does not

incorporate the concept of value to the consumer

upsets the balance Congress carefully struck

between a consumer’s interest in privacy and the

benefit of a firm offer of credit for all those

chosen through the pre-screening process. From

the consumer’s perspective, an offer of credit

without value is the equivalent of an

advertisement or solicitation. It is clear that

Congress did not intend to allow access to

consumer credit information for catalogs and

sales pitches. Such importuning simply – and

understandably – is not among the permissible

reasons for which a credit agency may disclose a

consumer’s credit information.

Id. at 726-27 (citations omitted). The court also believed that

focusing on whether the offer would have been honored was

“inappropriately narrow.” Id. at 727. It wrote:

To determine whether the offer of credit comports
11“The term ‘firm offer of credit or insurance’ means

any offer of credit or insurance to a consumer that will be

honored . . . .” 15 U.S.C. § 1681a(l). 

16

with the statutory definition, a court must

consider the entire offer and the effect of all the

material conditions that comprise the credit

product in question. If, after examining the entire

context, the court determines that the “offer” was

a guise for solicitation rather than a legitimate

credit product, the communication cannot be

considered a firm offer of credit.

Id. at 727-28 (emphasis in original).11 Relying on Cole, Gelman

submits that State Farm’s mailer does not have any value to him

and, therefore, is not a firm offer of insurance. The argument

lacks merit for a number of reasons. 

First, Gelman never explains what “value” the mailer

should have provided him. Second, irrespective of what

Gelman means by “value,” our inquiry must focus on the text of

the statute itself. As the Supreme Court has commented:

We have stated time and again that courts must

presume that a legislature says in a statute what it

means and means in a statute what it says there.

When the words of a statute are unambiguous,

then, this first canon is also the last: “judicial

inquiry is complete.” 
17

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002). 

As noted above, the FCRA provides that a “firm offer of . . .

insurance” means: 

any offer of . . . insurance to a consumer that will

be honored if the consumer is determined, based

on information in a consumer report, to meet the

specific criteria used to select the consumer for

the offer. . . .

15 U.S.C. § 1681a(l). The text of § 1681a(l) is unambiguous,

and it does not mention “value,” or anything akin to it.

Moreover, in referring to “any offer of . . . insurance,” Congress

clearly did not intend to limit the scope of § 1681a(l), to only

those having “value.” We therefore can not accept Gelman’s

argument without effectuating a judicial amendment of the

statute. 

Third, even assuming arguendo that Congress intended

to limit a firm offer to one that has value pursuant to the

analysis in Cole, Gelman’s argument would still be undermined

by subsequent decisions limiting the reach of Cole to

circumstances that do not exist here. In Murray v. GMAC

Mortgage Corp., 434 F.3d 948 (7th Cir. 2006), the court

explained:

We held in Cole that a sham offer used to pitch a

product rather than extend credit does not meet

the statutory definition. A business that obtains

consumer credit information and then offers a $1

loan (at 100% daily interest) toward the purchase
18

of a car has not made a “firm offer of credit” but

has instead used credit histories to identify

potential auto buyers. That objective is not

allowed under the [FCRA] we concluded in Cole.

Id. at 955 (emphasis in original). It further noted:

Cole’s objective was to separate bona fide offers

of credit from advertisements for products and

services, determining from “all the material

conditions that comprise the credit product in

question . . . [whether it] was a guise for

solicitation rather than a legitimate credit

product.” 

Id. at 955-56 (citing Cole, 389 F.3d at 728) (emphasis in Cole).

Thereafter, in Murray v. New Cingular Wireless Services,

Inc., 523 F.3d 719 (7th Cir. 2008), the court limited Cole’s

“value” requirement even further. It wrote:

 § 1681b(c)(1)(B)(i) calls for a firm offer of credit

but not a valuable firm offer of credit. A firm

offer of credit suffices. Cole did not doubt this.

The problem in Cole was how to disentangle an

offer of merchandise from an offer of credit when

they are made jointly (in Cole, the merchant was

selling cars and offered to extend credit for a

small fraction of the price). We asked whether

the offer of credit would be valuable standing

alone in order to see whether the non-consensual
19

check of a person’s credit history had been used

to make an offer of merchandise, something the

statute does not allow. . . . When credit histories

are used to offer credit (or insurance) and nothing

but, the right question is whether the offer is

“firm” rather than whether it is “valuable.” 

Id. at 722 (emphasis in original). 

Gelman’s situation is completely unlike the car loan

involved in Cole. Thus, Cole offers no support for his

insistence on a value requirement, and his position is further

undermined by the text of the FCRA. 

In addition to advocating a value requirement, Gelman

contends that because the term “firm offer” is not defined in the

FCRA, the district court was required to determine the meaning

of “firm offer.” That argument ignores the very statute it

purportedly rests upon because the FCRA specifically defines

the term “firm offer.” As noted earlier, the FCRA contains the

following definition: a “firm offer of . . . insurance” is “any

offer of . . . insurance to a consumer that will be honored if the

consumer is determined, based on information in a consumer

report, to meet the specific criteria used to select the consumer

for the offer.” 15 U.S.C. § 1681a(l). Thus, as the court noted

in Murray v. New Cingular Wireless Services, Inc., 523 F.3d at

723 “‘firm offer’ is a defined phrase.” A “firm offer” is one that

will be “honored” (if the verification checks out). . . .” Id.; see

also Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d

833, 841 (5th Cir. 2004) (holding that a firm offer under the

FCRA “really means a ‘firm offer’ if you meet certain criteria”).
20

Although it contained substantial puffery and statements

that could only have been intended as promotional, State Farm’s

letter to Gelman met the FCRA’s statutory definition of a “firm

offer.” It stated: “[t]his ‘presecreened’ offer of insurance is

based on information in your consumer report indicating that

you meet certain eligibility criteria. This offer is not guaranteed

if you do not meet our criteria at the time of application and

expires 60 days after you receive it.” The mailer also read: “[a]s

your agent, I’ll help you find the right level of coverage at the

right price for your needs. By getting to know you personally,

I can offer: Competitive rates that help you save up to $356 or

more.” The mailer thus stated that the offer of insurance

contained therein would be honored if Gelman met certain

criteria. Gelman did not allege that he responded to State

Farm’s mailing and was denied insurance even though he

satisfied the pre-screening criteria. That would present a very

different scenario that we need not now consider.

Finally, Gelman contends that the district court ignored

the allegations in his complaint. Gelman submits that he alleged

that the mailing was part of a marketing campaign. However,

he contends that the district court mischaracterized his

complaint and accepted State Farm’s argument that its intent in

sending the mailing was to extend a firm offer of insurance. He

claims that the district court’s acceptance of State Farm’s

argument is evident from its opinion. In buttressing that

argument, he points to the following discussion in what he

contends is footnote 3 of the district court’s opinion:

Even if the attachment does not satisfy the
21

requirements for a firm offer of insurance,

Plaintiff’s claim still must fail. A party is not

liable for obtaining consumer information

pursuant to § 1681b as long as it intends to use

the information for a permissible purpose.

Plaintiff has not alleged that State Farm did not

intend to use his credit report for a permissible

purpose. In fact, Plaintiff implicitly concedes that

his consumer report was obtained for a

permissible purpose. (See Complaint at ¶ 12 (“the

[consumer] report expressly stated that State

Farm had reviewed [Plaintiff’s] information for a

‘permissible purpose by law”)). 

However, that quote is from a footnote in State Farm’s motion

to dismiss. It is not from the district court’s opinion as Gelman

mistakenly claims. 

VI. CONCLUSION

For all of the above reasons, we will affirm the district

court’s dismissal of Gelman’s complaint pursuant to

Fed.R.Civ.P. 12(b)(6).