IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

VIVEK SHAH, 

Plaintiff, 

 v. 

JPMORGAN CHASE BANK, N.A., et al., 

 Defendant. 

Case No. 20-cv-03355 

Honorable Gary S. Feinerman 

Magistrate Judge: Honorable Young B. Kim 

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION 

TO DISMISS THE FIRST AMENDED COMPLAINT 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 1 of 22 PageID #:735
i 

TABLE OF CONTENTS 

I. Introduction ............................................................................................................................. 1

II. Factual Background ................................................................................................................. 2

III. Legal Standard ......................................................................................................................... 3

IV. Argument ................................................................................................................................. 4

A. Plaintiff Fails To State A Claim For RICO Conspiracy. ................................................. 4

B. Plaintiff Fails To State A Disparate Impact Claim Under ECOA.................................... 7

1. Chase’s Actual Policies Do Not Match Plaintiff’s Allegations. ................................... 7

2. Plaintiff Admits Chase Did Business with Him, Post-Felony, Demonstrating Plaintiff 

Cannot State a Claim. ................................................................................................... 9

3. Plaintiff Fails To Allege He Is Part Of A Class Adversely Impacted. ....................... 10

C. Plaintiff Fails to State a Violation of ECOA Based on Chase’s Alleged Failure to 

Provide a Statement of Reasons for Terminating the Relationship. .............................. 11

D. Plaintiff Fails To State A Claim Under The Illinois Consumer Fraud And Deceptive 

Business Practices Act. .................................................................................................. 14

V. Conclusion ............................................................................................................................. 16

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 2 of 22 PageID #:736
ii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...........................................................................................................3, 4, 8

ATC Healthcare Servs., Inc. v. RCM Techs., Inc., 

192 F. Supp. 3d 943 (N.D. Ill. 2016) .......................................................................................15

Avery v. State Farm Mut. Auto. Ins. Co., 

835 N.E.2d 801 (Ill. 2005) .......................................................................................................15

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) ...............................................................................................................3, 8

Bell Enterprises Venture v. Santanna Natural Gas Corp., 

No. 01 C 2212, 2002 WL 31269437 (N.D. Ill. Oct. 9, 2002) ....................................................6

Carmona v. Professionals, Inc., 

No. 15 C 8352, 2017 WL 1365590 (N.D. Ill. Apr. 14, 2017) ....................................................9

Chicago Police Sergeants Ass’n v. City of Chicago, 

No. 08-cv-4214, 2011 WL 2637203 (N.D. Ill. July 6, 2011) ....................................................9

Cleveland v. United States, 

531 U.S. 12 (2000) .....................................................................................................................6

Davis v. G.N. Mortg. Corp., 

396 F.3d 869 (7th Cir. 2005) ...................................................................................................15

Davis v. SPSS, Inc., 

431 F. Supp. 2d 823 (N.D. Ill. 2006) .........................................................................................8

Emery v. Am. Gen. Fin., Inc., 

952 F. Supp. 602 (N.D. Ill. 1997), aff’d, 134 F.3d 1321 (7th Cir. 1998) ..................................5

Flores v. Hartford Police Dep’t., 

No. H-79-411, 1981 WL 27040 (D. Conn., Feb. 17, 1981) .....................................................10

Forrester v. White, 

846 F.2d 29 (7th Cir. 1988) .....................................................................................................11

Grant v. World Class Mortg. Corp., 

No. 89 C 3824, 1990 WL 19466 (N.D. Ill. Feb. 20, 1990) ......................................................12

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 3 of 22 PageID #:737
iii 

Haddad v. Am. Home Mortg. Servicing, Inc., 

No. 18 C 00731, 2019 WL 1425835 (N.D. Ill. Mar. 29, 2019) .................................................6

Hecker v. Deere & Co., 

556 F.3d 575 (7th Cir. 2009) .................................................................................................4, 7

Higgins v. J.C. Penney, Inc., 

630 F. Supp. 722 (E.D. Mo. 1986)...........................................................................................13

Horist v. Sudler & Co., 

941 F.3d 274 (7th Cir. 2019) ...................................................................................................14

King v. Police & Fire Fed. Credit Union, 

No. 16-6414, 2019 WL 2226049 (E.D. Pa. May 22, 2019) .....................................................12

Latour v. Deseret First Credit Union, 

No. 2:19-cv-00450-JNP-PMW, 2020 WL 1326283 (D. Utah Feb. 26, 2020), 

report and recommendation adopted, No. 2:19-cv-450-JNP-PMW, 2020 WL 

1325239 (D. Utah Mar. 20, 2020)......................................................................................11, 12

Lentz v. Pan Am. Corp., 

Civ. A. No. 90-2181, 1991 WL 240739 (E.D. Penn. Nov. 12, 1991)........................................6

M & T Mortg. Corp. v. White, 

736 F. Supp. 2d 538 (E.D.N.Y. 2010) .....................................................................................10

Massey v. Merrill Lynch & Co., Inc., 

464 F.3d 642 (7th Cir. 2006) ...................................................................................................10

Menominee Indian Tribe of Wisconsin v. Thompson, 

161 F.3d 449 (7th Cir. 1998) ...................................................................................................10

Menzies v. Seyfarth Shaw LLP, 

197 F. Supp. 3d 1076 (N.D. Ill. 2016) ...................................................................................4, 6

Moore v. Fid. Fin. Servs., Inc., 

949 F. Supp. 673 (N.D. Ill. 1997) ..............................................................................................5

Payne v. Diner’s Club Int’l, 

696 F. Supp. 1153 (S.D. Ohio 1988) .......................................................................................13

Phillips v. Prudential Ins. Co. of America, 

714 F.3d 1017 (7th Cir. 2013) ...................................................................................................7

Porter v. Fairbanks Capital Corp., 

No. 01 C 9106, 2003 WL 21210115 (N.D. Ill. May 21, 2003) .................................................8

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 4 of 22 PageID #:738
iv 

Powell v. Pentagon Fed. Credit Union, 

No. 10 CV 785, 2010 WL 3732195 (N.D. Ill. Sept. 17, 2010) ................................................15

Regions Bank v. Legal Outsource PA, 

936 F.3d 1184 (11th Cir. 2019) ...............................................................................................11

Richmond v. Nationwide Cassel L.P., 

52 F.3d 640 (7th Cir. 1995) .......................................................................................................5

Rocha v. FedEx Corp., 

15 F. Supp. 3d 796 (N.D. Ill. 2014) .......................................................................................4, 5

Ruiz v. Samuel I. White, P.C., 

No. 1:09CV688, 2009 WL 10687930 (E.D. Va. Nov. 9, 2009) ..............................................13

Saunders v. Michigan Ave. Nat’l Bank, 

662 N.E.2d 602 (Ill. App. Ct. 1996) ........................................................................................14

Steele v. GE Money Bank, 

No. 08 C 1880, 2009 WL 393860 (N.D. Ill. Feb. 17, 2009) ......................................................7

Stonecrafters, Inc. v. Foxfire Printing & Packaging, Inc., 

633 F. Supp. 2d 610 (N.D. Ill. 2009) .......................................................................................14

Wright v. SunTrust Bank, 

No. 1:08cv568 (JCC), 2008 WL 3106884 (E.D. Va. Aug. 4, 2008) .......................................13

Statutes 

Equal Credit Opportunity Act, 15 U.S.C. § 1691(a)(1) ......................................................... passim

Equal Credit Opportunity Act, 15 U.S.C. § 1691(d)(2) .............................................................1, 13

Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. 

Stat. Ann. 505/2 .........................................................................................................1, 2, 14, 15

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d) .......................1, 4, 5, 6

Other Authorities 

Justice Statistics, Prison and Jail Incarceration Rates Decreased by More Than 

10% From 2007 to 2017, 

https://www.bjs.gov/content/pub/press/p17ji17pr.pdf .............................................................11

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 5 of 22 PageID #:739
1 

I. INTRODUCTION 

Plaintiff Vivek Shah (“Plaintiff”) brings this lawsuit based on a purely speculative 

allegation, which is contradicted by documents incorporated by reference in his Amended 

Complaint, that Defendant JPMorgan Chase Bank, N.A. (“Chase”) “maintains and enforces 

policies of automatically excluding any person with a . . . felony conviction from accessing its 

checking and credit products.” Am. Compl. ¶ 1. Plaintiff claims this alleged policy disparately 

impacts “people of color” and Defendant’s alleged actions in connection with the policy constitute 

(1) a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 

U.S.C. § 1962(d) (Count I); (2) disparate impact in violation of the Equal Credit Opportunity Act 

(“ECOA”), 15 U.S.C. § 1691(a)(1) (Count II); (3) a violation of ECOA for failure to provide a 

statement of reasons for the denial of credit, 15 U.S.C. § 1691(d)(2) (Count III); and (4) a violation 

of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/2 

(Count IV). Plaintiff’s claims fail as a matter of law. 

Plaintiff’s RICO claim, set forth in Count I, fails for two reasons. To establish a prima 

facie case, Plaintiff must, but does not, allege the RICO defendant conspired to conduct an 

enterprise which is separate and distinct from its employees and its own corporate affairs. Plaintiff 

also fails to allege a conspiracy to induce Plaintiff to provide any money or thing of monetizable 

value to Chase. 

In Count II, Plaintiff alleges Chase violated ECOA by maintaining and applying to him an 

unsubstantiated, purported policy of not doing business with consumers with felony convictions. 

Foundationally, Chase does do business with consumers convicted of felonies, as shown by 

policies governing the management of its relationships with incarcerated persons (that are 

incorporated by reference, by Plaintiff, into the Amended Complaint). Indeed, Plaintiff’s 

speculative allegation Defendant “automatically” denies credit to people with felony convictions 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 6 of 22 PageID #:740
2 

is belied by Plaintiff’s own allegations that Chase provided him with credit multiple times after 

his felony conviction. Yet even if Chase had a policy excluding felons, which it does not, 

Plaintiff’s disparate impact claim fails because the Amended Complaint does not allege Plaintiff 

is a member of a group adversely impacted by the alleged policy. 

In Count III, Plaintiff asserts Chase violated ECOA by failing to provide a statement of 

reasons for adverse action based on his Paycheck Protection Program application, his Chase Credit 

Card application, and his Amazon Card. Count III also fails. Plaintiff pleads Chase did provide 

reasons for the denial of his Paycheck Protection Program loan, Chase Credit Card application, 

and reasons for closing his Amazon Card. 

Finally, Plaintiff’s ICFA claim, set forth in Count IV, fails. It is clear from Chase’s policies 

discussed above and incorporated by reference into the Amended Complaint that Chase does not

have a so-called “anti-felon” policy, and since any deception or unfairness Plaintiff alleges is based 

upon this non-existent policy, his claim necessarily fails. Plaintiff’s unfairness claim under ICFA 

further fails because he does not allege an immoral, unethical, oppressive, or unscrupulous 

practice. Plaintiff’s claim for deception under ICFA likewise fails because he has not pleaded 

Chase’s allegedly deceptive acts proximately caused any damages to him. 

II. FACTUAL BACKGROUND 

Plaintiff was arrested in 2012 “by the FBI for Mailing Threatening Communications,” 

convicted of a felony, and sentenced to 87 months in prison. Am. Compl. ¶ 20. In a plea 

agreement, Plaintiff admitted he “mailed a series of letters . . . entitled ‘Extortion Notice,’ [that] 

contained an express threat of death to a member of the recipient’s family unless the recipient paid 

a sum of money.” Plea Agreement, United States v. Shah, No. 5:12-CR-00172, (S.D. W.Va. May 

9, 2013), ECF No. 85 at 9, attached as Exhibit 1. “In order to carry out this extortion scheme, Mr. 

Shah used false identities and aliases to purchase and activate various prepaid access device cards.” 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 7 of 22 PageID #:741
3 

Id. Plaintiff demanded up to $35 million and sent “wiring instructions for an offshore account into 

which he intended for [the recipients] to transfer the money demanded.” Id. 

Plaintiff became a customer of Chase in 2008, when an existing Washington Mutual 

checking account was converted into a Chase checking account. Am. Compl. ¶ 30. In 2010, 

Plaintiff obtained a Sapphire Preferred credit card from Chase. Id. ¶ 31. Plaintiff continued to be 

a customer until both accounts were closed in 2013. Id. ¶ 35. Plaintiff was released from prison 

in February 2019. Id. ¶ 20. 

The Amended Complaint alleges Plaintiff became an authorized user on three different 

Chase credit cards (“the Authorized User Accounts”) in October 2019. Id. ¶ 37. Plaintiff was 

removed from the Authorized User Accounts on April 17, 2020. Id. ¶ 43. Plaintiff opened a 

business checking account on February 4, 2020, which was closed on April 21, 2020. Id. ¶¶ 39, 

45. In addition, Plaintiff opened an Amazon Prime Rewards Visa Signature Card (“Amazon 

Card”) issued by Chase on April 20, 2020, which was closed on June 1, 2020 because “1) there 

was a ‘rapid increase in revolving balances’ and 2) there were ‘too many requests for credit or 

reviews of credit.’” Id. ¶¶ 44, 48. The Amended Complaint also alleges Plaintiff was denied a 

“Chase Credit Card” on February 15, 2020 due to insufficient credit history. Id. ¶ 40. Finally, 

Plaintiff alleges Plaintiff’s application for a Paycheck Protection Program loan (“PPP 

Application”) was denied on April 17, 2020 with the statement, “After a recent review of your 

accounts, we have decided to end our relationship with you.” Id. ¶ 42. 

III. LEGAL STANDARD 

 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 

“Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 8 of 22 PageID #:742
4 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a 

complaint states a plausible claim for relief will . . . be a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.” Id. at 679. A plaintiff may 

“plead[] [itself] out of court when it would be necessary to contradict the complaint in order to 

prevail on the merits.” Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009) (internal 

quotation marks omitted). When a plaintiff provides factual allegations in a complaint, “the 

defendant may use those facts to demonstrate that she is not entitled to relief.” Id. (internal 

quotation marks omitted).

IV. ARGUMENT 

A. Plaintiff Fails To State A Claim For RICO Conspiracy. 

To state a claim under 18 U.S.C. § 1962(d), a plaintiff must allege a conspiracy to violate 

one of the substantive RICO subsections.

1

 See Menzies v. Seyfarth Shaw LLP, 197 F. Supp. 3d 

1076, 1092 (N.D. Ill. 2016) (“Plaintiff must establish that each Defendant joined an agreement to 

participate in ‘an endeavor which, if completed, would satisfy all of the elements’ of a substantive 

violation of RICO.”) (citation omitted). Additionally, “the existence of an ‘enterprise’ and a 

‘pattern of racketeering’ are elements that are fundamental to each of the RICO subsections,” 

including RICO conspiracy. Rocha v. FedEx Corp., 15 F. Supp. 3d 796, 806 (N.D. Ill. 2014). 

 

1 While Plaintiff alleges the John Does and their co-conspirators conspired to violate all three of 

the substantive RICO subsections, 1962(a), (b), and (c), he does not plead facts to support his claim 

that anyone conspired to violate subsection (a), relating to using or investing income from 

racketeering activity into an enterprise, or (b), relating to using a pattern or racketing activity to 

acquire or maintain interest or control in an enterprise. His claim for conspiracy to violate 

subsection (c) relating to a person employed by or associated with an enterprise conducting the 

enterprise’s affairs through a pattern of racketeering activity fails for the reasons discussed herein. 

The claim under subsection (d) therefore fails as well. 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 9 of 22 PageID #:743
5 

Plaintiff has not alleged a RICO enterprise. See Rocha, 15 F. Supp. 3d at 808 (dismissing 

both substantive and conspiracy RICO claims because “Plaintiffs have failed to allege a RICO 

enterprise”). This element includes the requirement that the defendant must “be separate and 

distinct from the enterprise.” Moore v. Fid. Fin. Servs., Inc., 949 F. Supp. 673, 678 (N.D. Ill. 

1997). See also Emery v. Am. Gen. Fin., Inc., 952 F. Supp. 602, 605–06 (N.D. Ill. 1997), aff'd, 

134 F.3d 1321 (7th Cir. 1998) (Section 1962 claim fails when “RICO persons and enterprises are 

comprised of interrelated corporate units” and plaintiff fails to allege “that the RICO person was 

doing something more than merely conducting its own corporate affairs”). Where each defendant 

is “either a subsidiary or affiliated corporation or an individual who is named based on his activities 

as an agent of” a corporate defendant, a plaintiff has not alleged an enterprise which is distinct 

from the defendant and thus does not state a claim for a RICO violation. Rocha, 15 F. Supp. 3d at 

807. See also Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 647 (7th Cir. 1995) (internal 

quotation marks omitted) (noting cases rejecting attempts “to circumvent the distinctiveness 

requirement by alleging enterprises that are merely combinations of individuals or entities 

affiliated with a defendant corporation”). 

Here, Plaintiff’s alleged enterprise consists of the so-called “Chase Underwriting Team,” 

which he states “is comprised of John Does #1 through 4, and Co-Conspirators 1 through 10 ..., 

each of whom are employed by Chase as underwriters.” Am. Compl. ¶ 183. Thus, the alleged 

enterprise consists only of Chase’s employees carrying out Chase’s corporate affairs. This attempt 

to skirt the distinctiveness requirements and “fit a square peg in a round hole by squeezing gardenvariety business disputes into [a] civil RICO action[],” Rocha, 15 F. Supp. 3d at 807, fails as a 

matter of law. 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 10 of 22 PageID #:744
6 

Plaintiff also has not alleged predicate acts. Plaintiff must allege a conspiracy to violate 

RICO “through the proposed commission of ‘two or more predicate crimes’ by any member of the 

conspiracy.” Menzies. 197 F. Supp.3d at 1104 (quoting United States v. Campione, 942 F.2d 429, 

436 (7th Cir. 1991)). “Racketeering activity” under the statute includes mail and wire fraud, which 

prohibit “deliberate fraud, ‘where in order to get money or something else of monetizable value 

from someone you make a statement to him that you know to be misleading, expecting him to act 

upon it to your benefit and his detriment.’” Bell Enterprises Venture v. Santanna Natural Gas 

Corp., No. 01 C 2212, 2002 WL 31269437, at *4 (N.D. Ill. Oct. 9, 2002) (citation omitted). The 

money or property that is the object of the scheme “must be property in the hands of the victim.” 

Cleveland v. United States, 531 U.S. 12, 15 (2000). A complaint alleging fraud “must plead the 

circumstances of fraud in detail.” Haddad v. Am. Home Mortg. Servicing, Inc., No. 18 C 00731, 

2019 WL 1425835, at *7 (N.D. Ill. Mar. 29, 2019) (internal quotation marks omitted). If a plaintiff 

“fails to allege reliance on any alleged misstatement or omission by mail or wire fraud,” plaintiff 

cannot state a claim under § 1962. Lentz v. Pan Am. Corp., Civ. A. No. 90-2181, 1991 WL 240739, 

at *5 (E.D. Penn. Nov. 12, 1991). 

With respect to the purported predicate acts, Plaintiff alleges the John Does and coconspirators sent him and others “letters containing fraudulent Statement[s] of Reasons” 

misrepresenting the reasons for which Chase denied an application or closed an account, allegedly 

for the purpose of “helping...Chase mitigate perceived losses.” Am. Compl. ¶¶ 198-201. Plaintiff, 

however, fails to allege he was induced to provide any money or thing of monetizable value on the 

basis of the allegedly false adverse action letters, and therefore “cannot show that [Plaintiff] was 

injured by reason of the predicate act,” even if Plaintiff otherwise had adequately alleged mail 

fraud. Lentz, 1991 WL 240739 at *5. 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 11 of 22 PageID #:745
7 

B. Plaintiff Fails To State A Disparate Impact Claim Under ECOA. 

To state a disparate impact claim under ECOA, a plaintiff must: “(1) identify a specific 

practice or policy adopted by a defendant; (2) demonstrate a disparate impact on a protected group; 

and (3) show a causal relationship between the challenged practice and the alleged disparate 

impact.” Steele v. GE Money Bank, No. 08 C 1880, 2009 WL 393860, at *3 (N.D. Ill. Feb. 17, 

2009) (citing Smith v. City of Jackson, 544 U.S. 228, 241 (2005)). 

1. Chase’s Actual Policies Do Not Match Plaintiff’s Allegations. 

Plaintiff’s allegation that Chase has a policy of not conducting business with persons with 

felony convictions is pure speculation and directly contradicted by Chase’s actual policies, which 

explicitly contemplate how Chase serves incarcerated persons. See, e.g., Defendant’s 

Extraordinary Life Event Policy and Incarcerated Individuals Policy, Declaration of Eric Bass, 

dated August 18, 2020 (“Bass Decl.”) Ex. A, B, ECF No. 20. On a motion to dismiss, a court can 

consider documents outside the pleadings where they are “documents to which the Complaint had 

referred, that the documents were concededly authentic, and that they were central to the plaintiffs’ 

claim.” Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009). Moreover, where facts in a 

document referenced in a complaint contradict general allegations in a complaint, such facts in the 

document control, and all inconsistent allegations can be rejected. See Phillips v. Prudential Ins. 

Co. of America, 714 F.3d 1017, 1020 (7th Cir. 2013) (Feinerman, J. sitting by designation) (“To 

the extent that an exhibit attached to or referenced by the complaint contradicts the complaint’s 

allegations, the exhibit takes precedence.”) 

Here, Plaintiff explicitly refers to Chase’s policies. Am. Compl. ¶ 175 (discussing the 

Incarcerated Individuals and Extraordinary Life Event policies). Thus, the Court may consider 

these policies, which demonstrate Plaintiff’s speculative allegation of a broad, “anti-felon” policy 

cannot be credited, even at this stage of the case. These Chase policies demonstrate that Chase 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 12 of 22 PageID #:746
8 

will do business with convicted and/or incarcerated consumers. For example, the Incarcerated 

Individuals policy describes (1) how to maintain an existing relationship with a customer who 

becomes incarcerated via phone or an agent who has a Power of Attorney (“POA”); and (2) how 

to open an account with an incarcerated individual through a POA. See Bass Decl. Ex. B, ECF 

No. 20 at 2-3. Moreover, the Extraordinary Life Event policy notes a qualifying event providing 

a consumer with special dispensation in collections includes incarceration. See Bass Decl. Ex. A, 

ECF No. 20 at 1. 

Under Twombly and Iqbal, Plaintiff has not plausibly alleged the existence of a policy – 

the first element of a disparate impact ECOA claim – to not bank with persons with felony 

convictions, and Count II should be denied on this basis alone. See Twombly, 550 U.S. at 556 

(“[A] bare assertion of conspiracy will not suffice”); Iqbal, 556 U.S. at 678 (“Nor does a complaint 

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”). Plaintiff 

admits his claim is pure speculation, and Plaintiff has no basis to allege such a policy exists because 

he alleges the policy is “non-public.” Am. Compl. ¶ 58. The allegations in the complaint based 

on “[a]necdotes from [s]imilarly-[s]ituated [f]elons” also fail to provide anything beyond 

speculation. See Id. ¶¶ 52-56. These allegations do not state these other unidentified individuals 

are part of a protected group, and they allege no basis for how these individuals would have 

knowledge of Defendant’s supposed non-public policies. Davis v. SPSS, Inc., 431 F. Supp. 2d 

823, 827-28 (N.D. Ill. 2006) (dismissing complaint based on allegations of confidential witnesses 

because the complaint failed to allege such witnesses had any knowledge of the matter at issue).2 

 

2 Plaintiff’s Exhibit B, nearly 300 pages of forum comments from anonymous third parties relaying 

unverified anecdotes of banks—including others besides Chase—purportedly denying or 

terminating customers’ accounts on the basis of a felony conviction, does not salvage Plaintiff’s 

complaint, and indeed, these complaints are wholly unsubstantiated. See Porter v. Fairbanks 

Capital Corp., No. 01 C 9106, 2003 WL 21210115, at *7 (N.D. Ill. May 21, 2003) (refusing to 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 13 of 22 PageID #:747
9 

2. Plaintiff Admits Chase Did Business with Him, Post-Felony, 

Demonstrating Plaintiff Cannot State a Claim. 

Plaintiff’s assertion Chase will not do business with persons with felony convictions is 

further disproven by his own admissions. Although Plaintiff alleges Chase violated ECOA by 

having in place a policy that excludes felons, Plaintiff admits he did business with Chase on 

multiple occasions notwithstanding his felony conviction. Compare Am. Compl. ¶ 1 (alleging 

Defendant “maintains and enforces policies of automatically excluding any person with a record 

of a felony conviction from accessing its checking and credit products”) with id. ¶ 20 (alleging 

Plaintiff has a felony conviction); id. ¶¶ 37, 43 (admitting Plaintiff was added as an authorized 

user to three Chase credit cards post-conviction and remained an authorized user for approximately 

six months). See also id. ¶ 39 (“On or around February 4, 2020, Plaintiff successfully opened a 

Business Checking Account under his own name at Chase.”); id. ¶¶ 44, 48 (admitting Plaintiff 

received an Amazon credit card issued by Chase, and the card was open for over a month).3 

Courts “do not tolerate factual inconsistencies in a complaint.” Carmona v. Professionals, 

Inc., No. 15 C 8352, 2017 WL 1365590, at *3 (N.D. Ill. Apr. 14, 2017) (citation omitted). This is 

particularly true where a plaintiff alleges “conclusory facts that are inconsistent with detailed 

factual allegations in the body of a complaint.” Chicago Police Sergeants Ass’n v. City of Chicago, 

No. 08-cv-4214, 2011 WL 2637203, at *7 (N.D. Ill. July 6, 2011). Plaintiff’s admissions 

demonstrate Chase did, in fact, do business with Plaintiff notwithstanding his felony convictions, 

 

consider exhibit consisting of “various complaints internet users have posted” where “[a] great 

portion of the material d[id] not even concern [defendant’s] servicing practices, but the practices 

of other companies” and where the comments did refer to the defendant, there was “no indicia of 

reliability (the sources of many of the complaints about [defendant] are not even identified) and is 

irrelevant to the facts alleged in the complaint”).

3 The allegation of a “human error” in approving Plaintiff’s application for the Amazon card does 

not cure this fatal contradiction, Am. Compl. ¶ 46, because Plaintiff is merely speculating, and 

Chase continued its relationship with Plaintiff after his felony conviction on other occasions. 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 14 of 22 PageID #:748
10 

and they contradict his assertion Chase has an “anti-felon” policy excluding people with felony 

convictions. Accordingly, Plaintiff cannot sustain his disparate impact claim. See Massey v. 

Merrill Lynch & Co., Inc., 464 F.3d 642, 650 (7th Cir. 2006) (“[A] party may plead itself out of 

court by . . . including factual allegations that establish an impenetrable defense to its claims.”). 

3. Plaintiff Fails To Allege He Is Part Of A Class Adversely Impacted. 

Finally, even if Chase had a policy to not do business with felons (which it does not), 

Plaintiff’s disparate impact claim fails because Plaintiff does not allege he is a member of any 

protected class disproportionately impacted. Rather, Plaintiff summarily alleges Chase has a 

policy of not doing business with felons, and this phantom policy disproportionately impacts 

“people of color.” The phrase “people of color,” however, encompasses people of numerous ethnic 

groups. Courts have recognized not all minority groups are similarly situated in all contexts. See, 

e.g., M & T Mortg. Corp. v. White, 736 F. Supp. 2d 538, 576 n.27 (E.D.N.Y. 2010). And notably 

here, minority groups are not similarly situated with respect to felony conviction rates; thus, 

Plaintiff’s lack of specificity is meaningful with respect to the viability of these allegations. 

Plaintiff tries to side-step this issue by framing his allegations as applying to “people of color,” but 

Plaintiff cannot blithely aggregate data for all people of color in an attempt to arrive at statistics 

that fit his disparate impact claim. See, e.g., Flores v. Hartford Police Dep’t., No. H-79-411, 1981 

WL 27040, at *16 (D. Conn., Feb. 17, 1981) (“Litigants may not pick and choose among various 

minorities to find numerical differences that happen to suit their cases.”). 

Specifically, Plaintiff has not pleaded he would be among the class of individuals adversely 

impacted by such a policy, as statistics from the Bureau of Justice Statistics4 reveal incarceration 

 

4

 This Court may take judicial notice of the publicly-available statistics provided by the Bureau of 

Justice Statistics. See Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th 

Cir. 1998) (“Judicial notice of historical documents, documents contained in the public record, and 

reports of administrative bodies is proper.”). 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 15 of 22 PageID #:749
11 

rates among minority groups vary significantly, a fundamental distinction that is lost by lumping 

together statistics for all people of color. For example, the Bureau of Justice Statistics found “[i]n 

2017, the jail incarceration rate for blacks was more than 3 times the rate for whites and Hispanics, 

and more than 20 times the rate for Asians.” See Bureau of Justice Statistics, Prison and Jail 

Incarceration Rates Decreased by More Than 10% From 2007 to 2017, 

https://www.bjs.gov/content/pub/press/p17ji17pr.pdf. Plaintiff cannot sustain a claim he would 

be disparately impacted by a policy adversely affecting individuals with felony convictions if 

Plaintiff does not allege the minority group to which he belongs. See Forrester v. White, 846 F.2d 

29, 32 (7th Cir. 1988) (plaintiff “must prove that she was discriminated against through . . . 

disparate impact of a neutral practice on a protected group”). 

C. Plaintiff Fails to State a Violation of ECOA Based on Chase’s Alleged Failure 

to Provide a Statement of Reasons for Terminating the Relationship. 

Plaintiff’s allegations show Defendant provided him a statement of specific reasons for 

adverse actions relating to his PPP Application, the Chase Credit Card, and the Amazon Card.5 A 

short explanation for the adverse action taken by a creditor is sufficient to discharge the creditor’s 

ECOA notification obligations. See Latour v. Deseret First Credit Union, No. 2:19-cv-00450-

JNP-PMW, 2020 WL 1326283, at *3 (D. Utah Feb. 26, 2020), report and recommendation 

adopted, No. 2:19-cv-450-JNP-PMW, 2020 WL 1325239 (D. Utah Mar. 20, 2020) (noting 

creditors must only provide reason for denial “without explanation”). For example, in Latour, the 

court noted “[w]hile a creditor must provide the principal reason for an adverse action, ‘[a] creditor 

need not describe how or why a factor adversely affected an applicant.’” 2020 WL 1326283, at 

 

5

 In the First Amended Complaint, Plaintiff dropped his ECOA claim based on the closure of the 

accounts where he was an authorized user, as an authorized user is not an applicant for credit 

within the meaning or protections of ECOA. See Regions Bank v. Legal Outsource PA, 936 F.3d 

1184, 1189–91 (11th Cir. 2019). As a result, Chase is not further addressing it in this Motion.

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 16 of 22 PageID #:750
12 

*3 (citing Consumer Financial Protection Bureau, Comment for 1002.9 – Notifications, Paragraph 

9(b)(2) at ¶ 3). In that case, the defendant stated it was denying plaintiff’s credit application based 

on his “[c]redit report data.” Id. The court found this to be a sufficient reason, because the 

defendant “was not obligated to describe how or why a factor adversely affected Plaintiff. 

Defendant was simply required to state the principal reason for denial, without explanation, which 

it did.” Id. 

Here, Plaintiff’s claim is not consistent with the Amended Complaint’s allegations that 

Plaintiff promptly received an adverse action letter from Defendant “stating: ‘After a recent review 

of your accounts, we have decided to end our relationship with you.’” Am. Compl. ¶ 42. This 

explanation for the denial of Plaintiff’s PPP Application satisfies ECOA’s requirement under the 

language of the statute and the relevant case law and is “all that the statute and the regulations 

upon which [Plaintiff] rel[ies] required.” Grant v. World Class Mortg. Corp., No. 89 C 3824, 1990 

WL 19466, at *2 (N.D. Ill. Feb. 20, 1990). By informing Plaintiff, after reviewing Plaintiff’s 

accounts, Chase decided to terminate its relationship with Plaintiff, Chase provided Plaintiff with 

the principal reason for denying Plaintiff’s application, and it had no obligation to explain its 

reasoning further. See Latour, 2020 WL 1326283, at *3. 

Moreover, Plaintiff’s allegations reflect Chase fulfilled its obligations to provide Plaintiff 

with the principal reason for the denial of his Chase Credit Card application and the closure of his 

Amazon Card. Chase denied Plaintiff’s application for a Chase Credit Card, explaining the denial 

was due to his “insufficient credit history.” Am. Compl. ¶ 40. This explanation is specific enough 

to discharge Chase’s obligations under ECOA. See King v. Police & Fire Fed. Credit Union, No. 

16-6414, 2019 WL 2226049, at *5 (E.D. Pa. May 22, 2019) (finding “limited credit history” was 

a specific enough reason to meet ECOA’s requirements). In closing Plaintiff’s Amazon Card, 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 17 of 22 PageID #:751
13 

Chase provided two specific reasons for its decision: “a ‘rapid increase in revolving balances’” 

and “there were ‘too many requests for credit or reviews of credit.’” Am. Compl. ¶ 48. Again, 

these statements are sufficient to inform Plaintiff of the principal reason for Chase’s action. See 

Wright v. SunTrust Bank, No. 1:08cv568 (JCC), 2008 WL 3106884, at *2 (E.D. Va. Aug. 4, 2008) 

(finding “no facial error” in a statement of reasons which included “the high proportion of 

revolving balances to credit limits”); Payne v. Diner’s Club Int’l, 696 F. Supp. 1153, 1157 (S.D. 

Ohio 1988) (finding a statement of reasons which included “[t]oo many requests for credit in the 

last 12 months in credit bureau report” to “compl[y] with the requirement of Regulation B”). 

Moreover, and fundamentally, “[a]n allegation that a statement of reasons is false does not give 

rise to ECOA notice liability.” Ruiz v. Samuel I. White, P.C., No. 1:09CV688, 2009 WL 10687930, 

at *4 (E.D. Va. Nov. 9, 2009). Chase’s adverse action notification practices with respect to the 

challenged denials and terminations comply with ECOA’s requirements. See, e.g., Higgins v. J.C. 

Penney, Inc., 630 F. Supp. 722, 723 (E.D. Mo. 1986) (finding notice stating reasons as “credit 

bureau report/delinquent history,” “type of bank accounts,” and “type of credit references” 

sufficient). 

Further, because Chase provided Plaintiff with a statement of reasons for denying his PPP 

Application and Chase Credit Card Application and for closing his Amazon Card, Chase was under 

no further obligation to provide Plaintiff with a disclosure of his right to obtain a statement of 

reasons. The ECOA makes clear a creditor must provide either a statement of reasons or a 

disclosure of the applicant’s right to such a statement, and by the terms of the statute, a creditor is 

not required to provide both. See 15 U.S.C. § 1691(d)(2). 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 18 of 22 PageID #:752
14 

D. Plaintiff Fails To State A Claim Under The Illinois Consumer Fraud And 

Deceptive Business Practices Act. 

The Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) prohibits 

“unfair methods of competition and unfair or deceptive acts or practices.” 815 Ill. Comp. Stat. 

Ann. 505/2. In addition to his failure to sufficiently allege the elements of this claim, Plaintiff’s 

claims regarding unfair methods of competition or unfair or deceptive acts or practices are based 

on alleged policies Chase has demonstrated do not exist by virtue of the documents referenced in 

the Amended Complaint. As explained above, see Supra Section IV.B.1-2, documents cited by 

Plaintiff in his Amended Complaint demonstrate Chase does not have the purported “anti-felon 

policy,” and Plaintiff’s ICFA claim fails for this reason. 

Plaintiff’s ICFA claim also fails for additional reasons. A claim under the unfairness prong 

of ICFA considers whether an alleged practice is “immoral, unethical, oppressive or 

unscrupulous.” Horist v. Sudler & Co., 941 F.3d 274, 280 (7th Cir. 2019) (citation omitted). This 

factor only weighs in favor of a finding of unfairness if the alleged conduct “imposes a lack of 

meaningful choice or an unreasonable burden on the consumer.” Stonecrafters, Inc. v. Foxfire 

Printing & Packaging, Inc., 633 F. Supp. 2d 610, 616 (N.D. Ill. 2009) (internal quotation marks 

omitted). Though Plaintiff alludes to this factor by using the term “immoral,” Am. Compl. ¶ 240, 

nowhere does he allege a “lack of meaningful choice or an unreasonable burden.” Stonecrafters, 

633 F. Supp. 2d. at 616. See also Saunders v. Michigan Ave. Nat’l Bank, 662 N.E.2d 602, 608 (Ill. 

App. Ct. 1996) (unfair conduct must “be so oppressive as to leave the consumer with little 

alternative but to submit”). Chase declining Plaintiff’s application for credit or closing his account 

did not leave him without “meaningful choice,” as he was free to apply for credit from any other 

lender, and any burden placed on him by denials or account closures does not rise to the level 

required to find practices “unreasonable.” See Stonecrafters, 633 F. Supp. 2d. at 616 (finding 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 19 of 22 PageID #:753
15 

defendant’s sending of unsolicited faxes did not support ICFA unfairness claim because the 

conduct was not “unreasonable” and so a court “would be hard pressed to conclude” it was 

“immoral, unethical, oppressive, or unscrupulous”). 

Plaintiff’s ICFA claim regarding deception is similarly deficient. Plaintiff must satisfy five 

elements to prove an ICFA deceptive acts or practices claim: “(1) the defendant undertook a 

deceptive act or practice; (2) the defendant intended that the plaintiff rely on the deception; (3) the 

deception occurred in the course of trade and commerce; (4) actual damage to the plaintiff 

occurred; and (5) the damage complained of was proximately caused by the deception.” Davis v. 

G.N. Mortg. Corp., 396 F.3d 869, 883 (7th Cir. 2005). “If claims under the Act assert fraud, they 

must be pled with particularity.” ATC Healthcare Servs., Inc. v. RCM Techs., Inc., 192 F. Supp. 

3d 943, 954 (N.D. Ill. 2016) (internal quotation marks omitted). “[I]n a case alleging deception 

under the Act, it is not possible for a plaintiff to establish proximate causation unless the plaintiff 

can show he or she was, ‘in some manner, deceived’ by the misrepresentation.” Avery v. State 

Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 861 (Ill. 2005) (internal citation omitted). Though 

Plaintiff alleges Chase’s adverse action letters were “designed to lead him to believe that he [had] 

negative account history, poor credit history, or unusually high expenditures,” Am. Compl. ¶ 239, 

nowhere does he allege he was actually deceived by them. Therefore, any alleged damages could 

not have been proximately caused by Chase. See Powell v. Pentagon Fed. Credit Union, No. 10 

CV 785, 2010 WL 3732195, at *5 (N.D. Ill. Sept. 17, 2010) (plaintiff who alleged deceptive act 

was “meant by Defendant to induce [plaintiff] to accept the closure of his account ‘without dispute 

and [to] forego hidden consumer protection claims’” failed to allege proximate cause as he “was 

clearly not deceived into accepting the closure without dispute as he has brought suit against 

Defendant over the very issue.”) (citation omitted). 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 20 of 22 PageID #:754
16 

V. CONCLUSION 

For the forgoing reasons, Plaintiff’s First Amended Complaint should be dismissed with 

prejudice. 

Dated: September 29, 2020 Respectfully submitted: 

/s/ Jonice Gray Tucker

Jonice Gray Tucker (pro hac vice) 

Valerie L. Hletko (Ill. Bar No. 6323429) 

BUCKLEY LLP 

2001 M Street NW, Suite 500 

Washington, D.C. 20036 

(202) 349-8000 (Telephone) 

(202) 349-8080 (Fax) 

jtucker@buckleyfirm.com 

vhletko@buckleyfirm.com 

Scott Sakiyama (Ill. Bar No. 6302903) 

BUCKLEY LLP 

353 N. Clark Street, Suite 3600 

Chicago, IL 60654 

(312) 924-9800 (Telephone) 

(312) 924-9899 (Fax) 

ssakiyama@buckleyfirm.com 

Counsel for Defendant

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 21 of 22 PageID #:755
CERTIFICATE OF SERVICE 

I hereby certify that on September 29, 2020 I caused a true and correct copy of the 

foregoing to be served upon plaintiff by electronic filing for ECF users. 

By: /s/ Jonice Gray Tucker

Attorney for Defendant 

Case: 1:20-cv-03355 Document #: 36-1 Filed: 09/29/20 Page 22 of 22 PageID #:756