denials or any marketing of this promotion. Customer required to complete
application, see application for terms and conditions. Subject Final Lender Approval.

(Am. Compl. Ex. A.)
DISCUSSION
Defendants move to dismiss, arguing Plaintiff cannot state a claim upon which relief can be
granted because the flyer that was mailed to her reflects a firm offer of credit, which is a permissible
purpose for obtaining a consumer report under the FCRA. Additionally, AutoNation argues that it
ig not a proper party because it docs not own Gleason.
The FCRA requires
consumer reporting agencies [to] adopt reasonable procedures for meeting the needs
of commerce for consumer credit, personnel, insurance, and other information in a
manner which is fair and equitable to the consumer, with regard to the
confidentiality, accuracy, relevancy, proper utilization of such information in
accordance with the requirements of this subchapter.
15 U.S.C. § 1681(b). The FCRA also imposes on consumer reporting agencies the duty to maintain
reasonable procedures to avoid violations of the FCRA, limit fumishing consumer reports to
permissible purposes enunciated by the FCRA, and “assure maximum possible accuracy of the
information concerning the individual aboul whom the report relates.” 15 U.S.C. § 1681e(a),(b).
The FCRA applies to the actions of consumer reporting agencies and entities
requesting credit information. . .. Thus, any individual who negligently fails to
follow the provisions of the FCRA is potentially liable for actual damages, costs, and
attomey’s fees... . In addition, any person who willfully or knowingly fails to
comply with the FCRA may also be liable for punitive damages.
Swift v, First USA Bank, No. 98 C 8238, 1999 WL 965449, at *2 (N.D. Ill, Sept. 30, 1999) (intemal

citations omitted).

The FCRA lists permissible purposes for which a party may obtain a consumer credit report

4.



FCRA, Plaintiffs amended complaint is, therefore, dismissed and the Court need not reach
AutoNation’s argument that it is not the owner Gleason.

CONCLUSION

For the reasons stated herein, Defendants’, AutoNation USA Corporation’s, U.S. Capital,

Inc.’s, and Jerry Gleason Chevrolet, Inc.’s, Motions to Dismiss are granted.

IT IS SO ORDERED. \/
JL.

Jahn W. Darrah, Judge
wh States District Court

Date:

-7-



is your opportunity to receive a Visa or MasterCard with limits up to $2000 as well
as up to $19,500 in AUTOMOTIVE CREDIT! Due to the nature of this offer you
must respond before Saturday, December 8, 2001! ACTIVATE NOW IN TIME
FOR HOLIDAY SHOPPING!
MAKE NO PAYMENTS UNTIL 2002!
PLUS... your pre-approved auto loan status allows you to CHOOSE FROM A
NEW OR PRE-OWNED VEHICLE .. . the choice is yours! Jerry Gleason
Chevrolet, part of a national automotive retail chain, has THOUSANDS OF
VEHICLES TO CHOOSE FROM. Nearly EVERY MAKE & MODEL is
available to you! And as part of this promotion you can purchase now and MAKE
NO PAYMENTS UNTIL 2002!
ACTIVATE YOUR PRE-APPROVAL TODAY!

(Am. Compl. ix. A.) The flyer also states that Gleason Chevrolet is an AutoNation Company. (Am.
Compl. Ex. A.) The fine print at the very bottom of the flyer states

We have determined that you meet our initial criteria for inclusion in this special
credit offer. Because it is an exclusive opportunity we could not offer it to every one
[sic]. You were selected based on information obtained from your consumer report
from Trans Union L.L.C., and final acceptance is subject to your ability to meet our
full eligibility requirements. Your monthly car payment cannot exceed 50% of your
gross income (before taxes). All bankruptcies must be discharged. You must prove
one-year residence and one year employment. You must be at least 18 years of age
and your annual income must be $18,000 per year or higher. Security of credit can
atfect down payment and APR. Dealer has the right to determine down payment,
terms and specific vehicle. This credit offer is not valid if a current credit report
shows you are currently involved in a bankruptcy or foreclosure, have excessive tax
liens or there has been a credit deterioration, Lender reserves the right to require
consumer to pay off currently financed vehicle and may require consumer to increase
down payment, which will affect equity and collateral. In any event, you are
guaranteed to reccive a credit line of at least three hundred dollars for the purchase
of a vehicle, GRSI, Coral Springs, FL. If at the time of offer consumer no longer
meets the initial criteria, offer may be revoked. We hope you are pleased with the
opportunity it affords. If you preter that your name be omitted from future offerings,
please contact Trans Union, Marketing Opt Out, and PO BOX 97328. Jackson, MS
39288-7328 or call 1-888-546-8688. CREDIT CARD DISCLAIMER: Customer
agrees and authorizes U.S. Capital Financial Services to act as agent to obtain for the
customer a credit card. Guaranteed approval is neither expressed nor implied.
Interest rates may vary from 2.9% to 24.9% based on individual credit worthiness and
lenders credit parameters, Customer agrees to hold hanmless the named automobile
dealer, U.S. Capital Financial Services and the marketing company and/or its agents
for any actions or claims regarding credit card acceptance, terms of acceptance,

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without the consumer’s consent or knowledge. Section 1681b provides, in pertinent part, that:

A consumer reporting agency may furnish a consumer report relating to any
consumer . . . in connection with any credit or insurance transaction that is not
initiated by the consumer only if —

(A) the consumer authorizes the agency to provide such report to such person; or
(B)(i) the transaction consists of a firm offer of credit or insurance;

(ii) the consumer reporting agency has complied with subsection (e) of this section;
and

(iii) there is not in effect an election by the consumer, made in accordance with
subsection (e) of this section, to have the consumer’s name and address excluded
from lists of names provided by the agency pursuant to this paragraph.

15 U.S.C. § 1681b(c)(1)(A),(B). Section 1681a provides that:
[t]he term “firm offer of credit or insurance” means any offer of credit or insurance
to a consumer that will be honored if the consumer is determined, based on
information in a consumer report on the consumer, to meet the specific criteria used
to select the consumer for the offer, except that the offer may be further conditioned
on one or more of the following:
(1) The consumer being determined, based on information in the consumer’s
application for the credit or insurance, to meet specific criteria bearing on credit
worthiness or insurability, as applicable, that are established —
(A) before selection of the consumer for the offer; and

(B) for the purpose of determining whether to extend credit or insurance pursuant to
the offer.

15 U.S.C. § 1681a(1)(1)(A)(B) (footnote omitted),

Plaintiff alleges that (1) she received a promotional credit card, a flyer and an envelope in
the mail; (2) Defendants are responsible for sending her these materials; (3) the flyer stated it had
accessed her credit report; (4) she had not authorized anyone to do so; and (5) sending her the
materials does not constitute a permissible purpose under the FCRA. (Am. Compl. fff 7-11.) The
flyer, attached as Exhibit A, also states in the fine print that “you are guaranteed to receive a credit
line of at least three hundred dollars for the purchase of'a vehicle.”

The allegations in the amended complaint do not reasonably support the inference that

5.



Mipute Order Forma 4467)

United States District Court, Northern District of Mlinois
Oa

/ Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 1858 DATE 10/24/2002
CASE ONETA S. COLE vs. U.S. CAPITAL, INC.
TITLE

{In the following box (a) indicate the panty filing she motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of mation duc

(3) oO Answer brief to motion due___. Reply to answer brief duc.

(4) Oo Ruling/Hearingon_ssetfor_— at

(5) o Status hearingfheld/continued to] [set for/re-set for]on_ set ffor__— at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_— saat.
(7) oO Trial{set for/re-set for]on at

(8) Oo [Bench/Jury trial] [Hearing} held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) CO Local Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

ao) [Other docket entry) Status hearing held. Enter Memorandum Opinion And Order. Defendants’,
AutoNation USA Corporation’s, U.S. Capital, Inc.’s, and Jerry Gleason Chevrolet, Inc.’s, motions to
dismiss are granted. All pending dates and motions are moot.

al [For further detail see order uttached to the original minute order.)

No notices required, advised in open court.

No notices required, number of notices

CT 25 2002.

date docketed

Notices mailed by judge’s statf. (
Nolified counsel by telephone.

oY | Pocketing ta mail notices.

Y Mail AO 450 form. ‘ 1

Copy to judge/magistrate judge.

date muiled notice
courtroom

LG deputy's
initials

Date/time reecived in ;
central Clerk’s Office trailing deputy ickinls



»

Defendants did not obtain Plaintiff's consumer credit report for a permissible purpose. Rather, the
allegations in the amended complaint reasonably support the inference that Defendants obtained
Plaintiff’s credit report for the purpose of extending her a “firm offer of credit”, a permissible
purpose under the FCRA. The flyer stated that Plaintiff was “guaranteed a credit line of at least three
hundred dollars” to purchase a vehicle, which means that Plaintiff would receive a credit line of
$300.00 or more. This language clearly offers Plaintiff a credit line of $300.00 or more. The flyer
states that Plaintiff was determined to have met the initial criteria for inclusion in the offer.
Furthermore, that language, coupled with the language that Plaintiff was “guaranteed” a credit line
of $300.00 or more, demonstrates that the offer of a credit line of $300.00 or more would be honored
as required by the FCRA. None of the allegations in the amended complaint reasonably support the
inference that this offer would not have been honored.

Moreover, Plaintiff's argument that a $300.00 credit line is too paltry a sum to be a “firm
offer of credit” is unpersuasive. The complaint does not allege the $300.00 credit line to be a sham
nor is any such inference present in the mailing. Defendants offer a credit line of “at least” $300.00
which means $300.00 or more. This offer is consistent with the FCRA which permits conditioning
a firm offer of credit on “the consumer being determined, based on information in the consumer’s
application for the credit... to meet specific criteria bearing on credit worthiness . . . that are
established... before selection of the consumer for the offer; and . .. for the purpose of determining
whether to extend credit or insurance pursuant to the offer.” 15 U.S.C, § 1681a(1)(1)(A),(B) (footnote
omitted). ‘Thus, some consumers will be qualified for higher lines of credit than others based on their
credit worthiness.

Because Defendants obtained Plaintiff’s credit report for a permissible purpose under the

-6-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DISTRICT HOCKETES

ONETA S. COLE, Oct 2 8 2002
Case No. 02 C 1858
Plaintiff,
Honorable John W. Darrah
Y

U.S. CAPITAL, INC.; AUTONATION
USA CORPORATION; and JERRY
GLEASON CHEVROLET, INC,;

wees Se SS ee

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Oneta $. Cole (“Plaintiff”), has filed a single-count amended complaint against
Defendants, U.S. Capital, Inc. (“U.S. Capital”), AutoNation USA Corporation (“AutoNation”), and
Jerry Gleason Chevrolet, Inc. (“Gleason”), alleging violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 (2002). U.S. Capital, AutoNation, and Gleason (collectively
“Defendants”) move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the amended
complaint for failure to state a claim upon which relicf can be granted. For the reasons set forth
below, Defendants’ Motions to Dismiss are granted.

LEGAL STANDARD

‘When considering a motion to dismiss, well-pleaded allegations in the complaint are accepted
as truc. Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). Any ambiguities
in the complaint are construed in favor of the plaintiff. Kelly v. Crosfield Catalysts, 135 F.3d 1202,
1205 (7th Cir, 1998), Dismissal is proper only when it appears beyond doubt that plaintiffcan prove

no set of facts to support the allegations in his or her claim, Strasburger v, Board of Education, 143

-1-



F.3d 351, 359 (7th Cir. 1998).

“Although the Federal Rules of Civil Procedure do not require a plaintiff ‘to set out in detail
the facts upon which he bases his claim,’. .. he must ‘set out sufficient factual matter to outlinc the
elements of his cause of action or claim, proof of which is csscntial to his recovery.”” Benson v.
Cady, 761 F.2d 335, 338 (7th Cir. 1985) (internal citation omitted). A complaint will not avoid
dismissal if it contains “bare legal conclusions” absent facts outlining the basis of the claims.
Perkins y. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).

BACKGROUND

For the purposes of this motion to dismiss, the following allegations are taken as true.

Plaintiff is a citizen of Illinois. U.S. Capital is a corporation located in Huntington Beach,
Califorma. AutoNation is a Florida corporation that owns and operates car dealerships throughout
the United States, including Illinois. Gleason is an Illinois corporation that operates a car dealership
in Forest Park, Illinois and is owned by AutoNation.

Inearly December 2001, Plaintiffreceived a promotional credit card, a flyer, and an envelope
in the mail. Plaintiff had not requested a credit card and it was not a replacement for any other credit
card Plaintiffhad. The flyer stated that the sender had accessed Plaintiff's credit report without her
consent.

The flyer that was mailed to Plaintiff is attached as Exhibit A to the amended complaint.'
The flyer states, in part,

Due to recent improvements in your credit history, you have been pre-approved to
participate in an exclusive offer from U.S. Capital and Jerry Gleason Chevrolet. This

“A copy of any written instrument which is an exhibit to a pleading is a part thereof for
all purposes.” Fed.R.Civ.P. 10(c).

-2-