CA1: statutory construction and "firm offers"

Sullivan v. Greenwood Credit, No. 07-2354.   This is a “putative class action challenges the legality, under the Fair Credit Reporting Act ("FCRA"...), 15 U.S.C. § 1681 et seq.”  The plaintiffs seek statutory damages for the alleged misuse of credit agency data in offering them loans.  The plaintiffs are arguing that some letters based on materials from credit reporting agencies “based on such minimal criteria and the actual extension of credit was so contingent on other conditions that the letter could not be a firm offer of credit.”  If what these are not really “firm offers” then it was an improper use of such information.

The First goes through the statutory scheme (quite nicely), and then figures it is a question of statutory interpretation of 15 U.S.C. § 1681a(l).  Two theories are offered.

• The plaintiff invokes the Supreme Court's use of "the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way,"
• Invoking the canon of expressio unius est exclusio alterius, Greenwood argues that if Congress had wanted to require that more specific credit terms be included in a "firm offer of credit," it would have said so.

Not surprisingly, the court sides with the defendant.  You saw that coming.  There is some strange language about how an “offer” provided something of value to the plaintiff, with minimal invasions of privacy.