Murray vs. American International Group Inc., et al

COUNSEL: [*1] For Thomas A Murray, Plaintiff: Daniel A. Edelman, Cathleen M Combs, James O. Latturner, Thomas Everett Soule, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For American International Group, Inc., American Home Assurance Company, AIG Marketing, Inc., Defendants: Howard L. Teplinsky, Ottenheimer, Teplinsky, Rosenbloom, LLC, Buffalo Grove, IL.JUDGES: Amy J. St. Eve, Judge. OPINION BY: Amy J. St. Eve OPINION:

STATEMENT Plaintiff Thomas A. Murray filed the present putative class action Complaint alleging that Defendants American International Group, Inc., American Home Assurance Company, and AIG Marketing, Inc. (collectively "AIG") failed to comply with the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § § 1681b & 1681m. Previously, the Court granted AIG's Motion to Dismiss Murray's claim under Section 1681m because an amendment to the FCRA abolished private remedies for the clear disclosure requirement under Section 1681m(h)(8). Before the Court is AIG's Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) concerning Murray's claim under Section 1681b. For the following reasons, the [*2] Court denies AIG's motion.

A Rule 12(c) motion differs from Rule 12(b) motions to dismiss because Rule 12(c) motions are brought after the pleadings are closed. Despite the difference in timing, Rule 12(c) motions are reviewed under the same standards that apply to motions under Rule 12(b)(6). R.J. Corman Derailment Servs. v. International Union of Operating Eng'rs, 335 F.3d 643, 647 (7th Cir. 2003). Accordingly, courts should grant a motion for judgment on the pleadings "only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Thomas v. Guardsmark, 381 F.3d 701, 704 (7th Cir. 2004) (citation omitted). When determining a motion under Rule 12(c), the Court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Id.

In his Complaint, Murray alleges that AIG sent him a "prescreened" mailing offering him automobile insurance and that AIG's mailing contained an offer that does not qualify as a "firm offer of credit or insurance" because the solicitation is "vague and totally lacking in terms," and thus AIG did not have a [*3] permissible purpose for accessing his consumer report.

The purpose of FCRA is to ensure "that consumer reporting agencies 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, and proper utilization of such information." Stergiopoulos v. First Midwest Bancorp, Inc., 427 F.3d 1043, 1045 (7th Cir. 2005) (quoting 15 U.S.C. § 1681(b)). To achieve a balance between a credit-driven economy and consumer privacy, the FCRA sets forth restrictions on the furnishing of consumer reports. Id. at 1045-46 (citing 15 U.S.C. § 1681e(a)). A party may obtain a consumer's credit report only with the written consent of the consumer or for certain "permissible purposes." Cole v. U.S. Capital Inc., 389 F.3d 719, 725 (7th Cir. 2004) (citing 15 U.S.C. § 1681b(a)). One of these "permissible purposes" is a "firm offer of credit" made to the consumer. Id. at 725; see also Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 (7th Cir. 2006). [*4] The FCRA defines "firm offer of credit" as "any offer of credit or insurance to a consumer that will be honored if the consumer is determined, based on information in a report on the consumer, to meet the specific criteria used to select the consumer for the offer." 15 U.S.C. § 1681a(1).

Here, AIG argues that liability under Section 1681b does not turn on the language of the offer that the creditor or insurer extends to the consumer. Instead, AIG contends that Section 1681b liability exists only when a creditor or insurer "obtains" the consumer report for an impermissible purpose and not how the report was later used. The Seventh Circuit, however, has held otherwise.

Although the Seventh Circuit did not address AIG's specific argument concerning when the offeror obtains credit information, the Murray v. GMAC Mortgage Court unequivocally held that when determining whether a mailing is a bona fide offer of credit rather than an advertisement for products and services, courts must look to the terms of the offer. Id. at 955-56. The Court's reasoning in Murray is supported by its decision in Cole, namely, that "to determine whether [*5] the offer of credit comports 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." See Cole, 389 F.3d at 728.

Accordingly, under the liberal notice pleading standards, Murray has sufficiently alleged a Section 1681b claim based on the terms of AIG's written offer. The Court thus denies AIG's Motion for Judgment on the Pleadings.