In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1616
LINDA KILLINGSWORTH,
Plaintiff-Appellant,
v.
HSBC BANK NEVADA, N.A., formerly known
as Household Bank (SB), N.A., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5729—John W. Darrah, Judge.
____________
No. 06-2178
ERIC SAWYER,
Plaintiff-Appellant,
v.
ENSURANCE INSURANCE SERVICES, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 750—Milton I. Shadur, Judge.
____________
ARGUED DECEMBER 7, 2006—DECIDED NOVEMBER 9, 2007
____________
2 Nos. 06-1616 & 06-2178
Before BAUER, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. We have consolidated for pur-
poses of disposition two cases that require us to deter-
mine whether an amendment to the Fair Credit Report-
ing Act (“FCRA”) eliminating private rights of action
has an impermissible retroactive effect when applied to
FCRA claims that accrued prior to the amendment’s
effective date. Linda Killingsworth received a prescreened
credit card offer from Household Bank, N.A., sometime
prior to August 20, 2004. She claims the offer contained
FCRA disclosures that were not clear and conspicuous.
The plaintiff in the second suit, Eric Sawyer, applied for
auto insurance with Ensurance Insurance Services, Inc.
(“Ensurance”) in October 2004. Ensurance obtained his
credit report in connection with that application. Sawyer
contends Ensurance violated the FCRA by charging him
a higher rate based on negative information in his credit
report without giving him notice of that adverse action,
and also by using his initial credit information for subse-
quent renewals of his policy when corrected credit in-
formation would have qualified him for a lower rate.
Both plaintiffs filed class action lawsuits in the North-
ern District of Illinois. Both complaints were dismissed
based on section 311 of the Fair and Accurate Credit
Transactions Act of 2003 (“FACTA”), which amended the
FCRA to eliminate enforcement of certain FCRA provi-
sions by private civil suit. See 15 U.S.C. § 1681m(h)(8).
Sawyer and Killingsworth argue that the amendment,
effective December 1, 2004, impairs rights they possessed
prior to the new statute’s effective date and therefore
has an impermissible retroactive effect if applied to them.
As to Killingsworth’s claim, we agree and therefore
reverse. In Sawyer’s case, however, the retroactivity
question cannot be decided at the pleading stage because
the conduct alleged in his complaint straddles FACTA’s
Nos. 06-1616 & 06-2178 3
effective date. The allegations, if true, could establish
that an FCRA violation occurred before FACTA’s effective
date, and this is enough to survive the motion to dismiss.
I. Background
On December 4, 2003, Congress enacted FACTA, which
amended portions of the FCRA. FACTA’s section 311
added subsection (h) to § 1681m of the FCRA. Paragraph
(8) of that subsection provides:
(8) Enforcement
(A) No civil actions. Sections 1681n and 1681o
of this title [pertaining to private civil remedies]
shall not apply to any failure by any person to
comply with this section.
(B) Administrative enforcement. This section
shall be enforced exclusively under section 1681s
of this title by the Federal agencies and officials
identified in that section.
15 U.S.C. § 1681m(h)(8). Congress authorized the Federal
Trade Commission and the Board of Governors of the
Federal Reserve System to set the effective dates of
various FACTA provisions, including section 311. Fair and
Accurate Credit Transactions Act of 2003, Pub. L. No. 108-
59, 117 Stat. 1952, at Sec. 3. On February 11, 2004, the
Board of Governors promulgated regulations setting an
effective date of December 1, 2004, for § 1681m(h)(8). 12
C.F.R. § 222.1(c)(3)(xiii).
Sometime prior to August 20, 2004, Linda Killingsworth
received a prescreened offer of credit from Household
Bank. This offer was based on Killingsworth’s credit
report, though she never gave Household authorization to
access that information. These mailings, sent to at least
200 Illinois residents, targeted people with poor credit or
4 Nos. 06-1616 & 06-2178
who had recently obtained bankruptcy discharges. En-
closed with the offer was a pamphlet containing disclo-
sures about credit terms and a statement of compliance
with 15 U.S.C. § 1681m(d),1 FCRA’s notice provision.
In October 2005 Killingsworth filed a class action
against Household Bank (now known as HSBC Bank
Nevada), Household Credit Services, Inc., and HSBC
North America Holdings, Inc. (collectively “Household”),
claiming a violation of § 1681m(d).2 Killingsworth alleged
the statutorily required disclosures were “buried” in an
insert and were neither clear nor conspicuous. Household
answered and moved for judgment on the pleadings,
arguing that § 1681m(h)(8), which eliminated private
rights of action for § 1681m violations, applied to Killing-
worth’s claim and required dismissal of the suit.
The district court granted the motion, holding that
§ 1681m(h)(8) applied to all cases filed after December 1,
2004 (the amendment’s effective date), provided the
noncomplying disclosure was received after December 4,
2003 (the amendment’s date of enactment).
* * * * *
Eric Sawyer applied for auto insurance with Ensurance
in October 2004. As part of the application process,
Ensurance pulled Sawyer’s credit report and used infor-
mation in that report to determine the cost of his policy.
Sawyer’s insurance took effect on December 20, 2004,
and was renewed twice thereafter at six-month intervals.
1
Section 1681m(d) sets forth the “[d]uties of users making
written credit or insurance solicitations on the basis of informa-
tion contained in consumer files.”
2
Killingsworth’s complaint also alleged Household violated
§ 1681b by accessing the class’s consumer reports without its
consent and for an impermissible purpose. She abandoned this
claim in the district court and has not raised it on appeal.
Nos. 06-1616 & 06-2178 5
Sawyer filed a class action alleging Ensurance violated
§ 1681m(a) of the FCRA by offering him a less favorable
rate based on negative information in his credit report
without providing him with an adverse action notice.
Sawyer also alleged that Ensurance failed to consider
interim changes to his credit rating and instead relied on
his initial credit score when subsequently renewing his
policy. His corrected credit report, he alleged, showed
an improved credit score and would have resulted in a
more favorable insurance rate. The district court granted
Ensurance’s motion to dismiss, holding that FACTA
eliminated private causes of action under § 1681m(a) and
this amendment to the FCRA applied to Sawyer’s claim.
II. Analysis
In Sawyer’s case, the district court dismissed the
complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim. We review
the court’s dismissal order de novo, accepting the com-
plaint’s well-pleaded allegations as true and drawing
all favorable inferences for the plaintiff. Savory v. Lyons,
469 F.3d 667, 670 (7th Cir. 2006). Rule 8(a) of the Fed-
eral Rules of Civil Procedure requires that a complaint
contain a “short and plain statement of the claim show-
ing that the pleader is entitled to relief.” This “short
and plain statement” must be enough “ ‘to give the defen-
dant fair notice of what the . . . claim is and the grounds
upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 127
S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). In Bell Atlantic, the Supreme Court
retooled federal pleading standards, retiring the oft-quoted
Conley formulation that “a complaint should not be
dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
6 Nos. 06-1616 & 06-2178
Conley, 355 U.S. at 45-46; see Bell Atlantic, 127 S. Ct. at
1969 (Conley’s “famous observation has earned its retire-
ment.”).
The Court explained in Bell Atlantic that the “plaintiff ’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief ’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic, 127 S. Ct. at 1964-65. Instead,
the Court held, the factual allegations in the complaint
“must be enough to raise a right to relief above the specu-
lative level.” Id. at 1965; see also EEOC v. Concentra
Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007);
Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499
F.3d 663 (7th Cir. 2007). Although this does “not require
heightened fact pleading of specifics,” it does require the
complaint to contain “enough facts to state a claim to re-
lief that is plausible on its face.” Bell Atlantic, 127 S. Ct.
at 1974; see also St. John’s United Church of Christ v. City
of Chicago, 2007 WL 2669403 at *7 (7th Cir. Sept. 13,
2007). In Airborne Beepers we read Twombly together
with the Supreme Court’s decision two weeks later in
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and
observed that “we understand the Court to be saying only
that at some point the factual detail in a complaint may
be so sketchy that the complaint does not provide the
type of notice of the claim to which the defendant is
entitled under Rule 8.” Airborne Beepers, 499 F.3d at 667.
Here, Ensurance primarily raises a legal argument—that
the FACTA amendment to the FCRA eliminated Sawyer’s
right to bring a private civil action—but it also challenges
the complaint’s factual sufficiency.
In Killingsworth’s case, the district court entered
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Like Rule 12(b)(6)
dismissals, we review judgments on the pleadings de novo.
Nos. 06-1616 & 06-2178 7
Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir.
2000). Household argued, as did Ensurance, that the
repeal of private rights of action for § 1681m violations
meant that Killingsworth had no statutory cause of
action, essentially a Rule 12(b)(6) argument. If a defendant
raises a Rule 12(b) defense in a Rule 12(c) motion, a Rule
12(b)(6)-type analysis applies. Alexander v. City of Chi-
cago, 994 F.2d 333, 336 (7th Cir. 1993). Household
argued in the alternative that its disclosures were clear
and conspicuous as required by the FCRA, an argument
that also warrants Rule 12(b)(6)-type analysis. See id.
A threshold issue in both appeals is whether FACTA
eliminated private causes of action for the particular
violations of § 1681(m) asserted by the plaintiffs.
Killingsworth claims Household violated § 1681m(d);
Sawyer claims Ensurance violated § 1681m(a). In Perry v.
First National Bank, we addressed the question “whether
the newly added § 1681m(h)(8) was designed to preclude
private enforcement of the entirety of § 1681m, or just
§ 1681m(h),” holding that “[t]he unambiguous language of
§ 1681m(h)(8) demonstrates that Congress intended to
preempt private causes of action to enforce § 1681m.” 459
F.3d 816, 819, 823 (7th Cir. 2006). Section 1681m(h)(8)
thus eliminates both plaintiffs’ claims—if it applies. This
brings us directly to the question of the statute’s retro-
activity, as the conduct alleged in each complaint (or in
Sawyer’s case, at least some of it) predates the statute’s
effective date.3
3
Murray v. GMAC Mortgage Corp. briefly touched on the
question of the retroactivity of § 1681m(h)(8), noting that “[a]
recent amendment to [the FCRA] abolishes private remedies for
violations of the clear-disclosure requirement, which in the
future will be enforced administratively, but that change does
not apply to offers made before its effective date . . . .” 434 F.3d
(continued...)
8 Nos. 06-1616 & 06-2178
In Landgraf v. USI Film Products, the Supreme Court
explained the “antiretroactivity principle”—the principle
that the “legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took
place.” 511 U.S. 244, 265 (1994) (quotation omitted). The
Court observed that this principle is in tension with
another: the rule that “a court is to apply the law in effect
at the time it renders its decision.” Id. at 264 (quoting
Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711
(1974)). Landgraf reconciled the conflict by establishing a
presumption of antiretroactivity, but the presumption
is applicable only where there is ambiguity about a stat-
ute’s temporal reach:
When a case implicates a federal statute enacted after
the events in suit, the court’s first task is to deter-
mine whether Congress has expressly prescribed the
statute’s proper reach. If Congress has done so, of
course, there is no need to resort to judicial default
rules. When, however, the statute contains no such
express command, the court must determine whether
the new statute would have retroactive effect, i.e.,
whether it would impair rights a party possessed
when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transac-
tions already completed. If the statute would operate
retroactively, our traditional presumption teaches
that it does not govern absent clear congressional
intent favoring such a result.
511 U.S. at 280; see also Labojewski v. Gonzales, 407 F.3d
814, 819 (7th Cir 2005).
3
(...continued)
948, 951 (7th Cir. 2006). In Perry, we characterized this as
dicta, as the retroactivity question was not at issue in Murray.
Perry v. First Nat’l Bank, 459 F.3d 816, 819 n.1 (7th Cir. 2006).
Nos. 06-1616 & 06-2178 9
Landgraf ’s requirement of clear congressional intent
“assures that Congress itself has affirmatively con-
sidered the potential unfairness of retroactive applica-
tion” and “allocates to Congress responsibility for funda-
mental policy judgments concerning the proper temporal
reach of statutes.” Landgraf, 511 U.S. at 272-73. When it
is not clear whether a statute is meant to apply retrospec-
tively, “prospectivity remains the appropriate default
rule.” Id. at 272; see also Labojewski, 407 F.3d at 819.
“Where Congress has not made a clear policy judgment
about retroactivity, applying the presumption against
retroactive legislation ‘accords with widely held intui-
tions about how statutes ordinarily operate’ and ‘gen-
erally coincide[s] with legislative and public expecta-
tions.’ ” Labojewski, 407 F.3d at 819 (quoting Landgraf,
511 U.S. at 272).
Household and Ensurance argue that Congress specified
FACTA’s reach, although by negative implication. See,
e.g., Lindh v. Murphy, 521 U.S. 320 (1997); cf. Hamdan
v. Rumsfeld, 126 S. Ct. 2749 (2006). They point to sec-
tion 312(f) of FACTA, codified as a note to 15 U.S.C.
§ 1681n, which states that “[n]othing in . . . any . . .
provision of this Act shall be construed to affect any
liability under § 616 or § 617 of the Fair Credit Report-
ing Act [15 U.S.C. §§ 1681n, 1681o] that existed on the
day before the date of enactment of this Act.” They con-
tend that Congress’s intent not to affect liability that
existed on or before FACTA’s enactment date means
that Congress intended liability to be extinguished after
that date—including liability arising between the statute’s
date of enactment and its effective date. That is, private
claims arising before the statute was enacted are pre-
served, but private claims arising after the statute’s
enactment date but before its effective date are not. We
think this line of reasoning reads too much into too little.
10 Nos. 06-1616 & 06-2178
In Lindh v. Murphy, the Supreme Court addressed
the question of whether amendments in the Antiter-
rorism and Effective Death Penalty Act of 1996 (“AEDPA”)
to chapter 153 of Title 28 of the United States Code
governing federal habeas corpus proceedings applied to
cases pending when AEDPA was enacted or only to cases
filed after its enactment date. The Court noted that
AEDPA amended the habeas procedures in chapter 153 of
Title 28 and also created an entirely new chapter 154 of
Title 28 to govern habeas proceedings in certain state
capital cases. The Court found it significant that AEDPA’s
creation of chapter 154 was expressly made applicable
to all cases pending on or after the date of enactment,
while the amendments to chapter 153 were not. Lindh, 521
U.S. at 327. The Court read AEDPA’s express retrospec-
tive application of chapter 154 “as indicating implicitly
that the amendments to chapter 153 were assumed and
meant to apply to the general run of habeas cases only
when those cases had been filed after the date of the Act.”
Id. By relying on this negative implication—a principle
of statutory interpretation—the Court did not reach
Landgraf ’s second step. The Court held that Congress
intended AEDPA’s amendments to chapter 153 to apply
prospectively only. Id. at 336-37.
The Third Circuit has characterized Lindh as estab-
lishing an intermediate step in the Landgraf framework,
requiring courts “to examine a statute under normal rules
of statutory construction for evidence of congressional
intent to apply the statute prospectively only.” Mathews v.
Kidder, Peabody & Co., Inc., 161 F.3d 156, 162 (3d Cir.
1998). While Landgraf reaffirmed the “traditional rule
requiring retroactive application to be supported by a
clear statement” from Congress, Lindh established that
general rules of statutory interpretation apply to deter-
mine whether Congress has clearly spoken either way—as
Nos. 06-1616 & 06-2178 11
to prospective or retrospective application. Lindh, 521
U.S. at 326; Mathews, 161 F.3d at 160-62.
In Hamdan the Court relied on the Lindh principle that
“a negative inference may be drawn from the exclusion
of language from one statutory provision that is in-
cluded in other provisions of the same statute,” see
Hamdan, 126 S. Ct. at 2765, and found prospective intent
by implication. Section 1005(e)(1) of the Detainee Treat-
ment Act of 2005 (“DTA”) stripped courts of jurisdiction
to hear habeas corpus petitions from detainees at
Guantanamo Bay, Cuba. Another part of the DTA specified
that § 1005(e)(2) and (3)—also jurisdiction-modifying
provisions—applied to all claims pending on or after
the date of the Act’s enactment. The Court held that
the omission of § 1005(e)(1) from the provision making
§ 1005(e)(2) and (3) retrospective meant that § 1005(e)(1)
was intended to apply prospectively only. Id. at 2766.
Here, in contrast, FACTA’s section 312(f) preserves
private causes of action for liability that accrued prior to
FACTA’s date of enactment, but because FACTA’s enact-
ment and effective dates are different, the negative im-
plication argument loses its logic. Drawing a negative
inference from FACTA’s section 312(f) fails to distinguish
between FACTA’s enactment and effective dates or
account for claims arising between the two dates. If
applied here, the negative implication argument simply
conflates FACTA’s enactment and effective dates; if all
claims accruing after the date of enactment are extin-
guished without regard to the effective date, the latter
date has no meaning. We think this stretches the
Lindh/Hamdan adaptation of Landgraf too far.
We conclude Congress has not clearly spoken to the
question of whether § 1681m(h)(8) applies to FCRA claims
that arose between FACTA’s enactment and effective
dates, and thus move on to the second inquiry of the
12 Nos. 06-1616 & 06-2178
Landgraf analysis. This requires us to determine
whether the elimination of private rights of action would
have an impermissible retroactive effect if applied to the
events in these suits. More specifically, we ask whether
the application of the FACTA amendment eliminating
private rights of action would “impair rights a party
possessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to trans-
actions already completed.” Landgraf, 511 U.S. at 280. If
the statute would have any of these effects if applied here,
the “traditional presumption” of prospectivity applies. Id.
Killingsworth’s cause of action accrued between FACTA’s
enactment and effective dates. While a plaintiff ’s sus-
taining an injury is usually a necessary part of a claim’s
accrual, see TRW Inc. v. Andrews, 534 U.S. 19, 30 (2001);
In re Copper Antitrust Litig., 436 F.3d 782, 789 (7th Cir.
2006); Barry Aviation, Inc. v. Land O’Lakes Mun. Airport
Comm’n, 377 F.3d 682, 688 (7th Cir. 2004); Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990),
the FCRA contemplates possible awards of statutory
damages where the violation is willful, see 15
U.S.C. § 1681n(a)(1)(A), an allegation found both in
Killingsworth’s and Sawyer’s complaints. See Safeco Ins.
Co. of Am. v. Burr, 127 S. Ct. 2201, 2210 (2007). Thus,
actual damages are not necessarily a precondition for
suit; Killingsworth’s cause of action arose from House-
hold’s alleged willful failure to comply with § 1681m and
that is when the right to statutory damages arose. See
Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th
Cir. 2006) (explaining that statutory damages allow for
the recovery of modest damages, that likely are small
and difficult to quantify, without proof of injury).
Accordingly, prior to FACTA’s effective date,
Killingsworth had a right of private civil action for dam-
ages, a right that would be impaired if FACTA’s repeal of
Nos. 06-1616 & 06-2178 13
private rights of action were applied retrospectively.
Section 1681m(h)(8) not only eliminates civil actions, but
also the damages recoverable under § 1681n, including
statutory, actual, and punitive damages for willful
failure to comply with § 1681m. The current § 1681m(h)(8)
specifies that § 1681m shall be enforced exclusively
under § 1681s, the administrative enforcement provision
of the FCRA.
The Third Circuit’s decision in Mathews supports our
conclusion, although it addressed retroactivity in the
context of a different statutory scheme. Mathews held
that a provision of the Private Securities Litigation Re-
form Act (“PSLRA”) eliminating private causes of action
for racketeering claims under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”) based on predi-
cate acts of securities fraud should apply prospectively
only. 161 F.3d at 165. The court concluded that applying
the PSLRA’s amendment of RICO retrospectively would
impair the plaintiff ’s substantive rights and alter the
legal consequences that attached to the events in suit. The
court explained:
In this case, the events in question are the alleged
fraudulent acts by the defendants. If the RICO Amend-
ment is applied to this case, it would attach new legal
consequences to these events. Before the Amendment,
the legal consequences included liability under the
federal securities laws and RICO; after the Amend-
ment, the legal consequences included liability only
under the securities laws.
Id. at 164. The court also analogized to the circumstances
in Landgraf, which concerned an amendment to Title VII
making compensatory and punitive damages available
in employment discrimination actions, whereas only back
pay had been previously allowed. The court observed that
“[i]f a change in the law from back pay to compensatory
14 Nos. 06-1616 & 06-2178
and punitive damages is seen as creating a new cause of
action and impairing a party’s rights, certainly a change
from treble damages (under RICO) to compensatory
damages alone (under the securities laws) may be seen as
destroying a cause of action and impairing a party’s
rights.” Id. at 165.
We find the logic of Mathews persuasive here. Killing-
worth alleges that Household’s FCRA violation occurred
prior to August 20, 2004, before the December 1, 2004
effective date of § 1681m(h)(8), when she had a right to a
private cause of action for damages under the statute.
That preexisting substantive right would be impaired if
FACTA’s amendment eliminating private rights of action
were applied retrospectively. The amendment therefore
has an impermissible retroactive effect on claims like
Killingsworth’s that accrued prior to its December 1, 2004
effective date.
In Sawyer’s case, however, the issue of retroactivity
may ultimately be irrelevant. His complaint is not
precise about when the FCRA violation occurred, and
discovery may show that it occurred after December 1,
2004, when FACTA became effective. At the pleading
stage, however, we cannot say Sawyer’s complaint is
wholly insufficient; he alleges that he applied for insur-
ance in October 2004, before FACTA’s effective date, and
his insurance took effect on December 20, 2004, after
FACTA became effective. He claims Ensurance violated
the FCRA by not giving him an adverse action notice in
connection with the use of his credit information prior to
issuing the policy and also by failing to use more favor-
able credit information when the policy renewed.
The renewals, according to the complaint, occurred at
six-month intervals after the original policy was issued.
This conduct occurred after FACTA’s effective date and
therefore is not actionable. To the extent that Sawyer’s
Nos. 06-1616 & 06-2178 15
FCRA claim is based on Ensurance’s conduct leading up
to the initial issuance of the policy, it may or may not
be barred. See Safeco, 127 S. Ct. at 2211-12 (higher
initial rate may be an “increase” for purposes of adverse
action notice if it is based on credit report). As we have
noted, the allegations surrounding this event straddle
FACTA’s December 1, 2004 effective date. Accepting the
allegations as true, the FCRA violation could have oc-
curred before FACTA’s effective date; discovery may or
may not bear this out.
Ensurance also argues that Sawyer has not sufficiently
pleaded a willful violation of the FCRA. But the cases
Ensurance cites in support of this argument are sum-
mary judgment cases. See Wantz v. Experian Info. Solu-
tions, 386 F.3d 829, 834 (7th Cir. 2004) (“To act willfully,
a defendant must knowingly and intentionally violate the
[applicable provision] and it ‘must also be conscious
that [its] act impinges on the rights of others.’ ” (quoting
Philips v. Grendahl, 312 F.3d 357, 368 (8th Cir. 2002))).
Sawyer might (or might not) be able to defeat a summary
judgment motion on the element of willfulness (assuming
this claim goes forward), but his complaint contains
sufficient detail to survive a motion to dismiss. He
alleges that Ensurance failed to give him an adverse ac-
tion notice based on negative information in his credit
report. He alleges he removed the negative information
from his report sometime between October 2004 and
December 2005 and would have qualified for a more
favorable rate, but Ensurance nevertheless intentionally
and willfully charged him an increased rate based on the
negative credit information. This is enough factual detail
to state a claim for a willful violation of the FCRA.
For its part, Household also challenges the sufficiency
of Killingsworth’s complaint, specifically its allegation
that the § 1681m(d) disclosures were not clear and conspic-
16 Nos. 06-1616 & 06-2178
uous. But the pleadings contain discrepancies that make
it impossible to resolve this question at this stage of the
case. Killingsworth attached a copy of the purportedly
offending disclosures as an exhibit to her complaint.
Household attached a different document as an exhibit to
its motion for judgment on the pleadings, explaining that
the exhibit presents the disclosures “in a more readable
format than [that] . . . reproduced with the Complaint.”
Which version is “more readable” begs the ultimate
question here; the claimed FCRA violation is based on
allegations that Household’s actual disclosures were not
clear and conspicuous. Household’s version includes both
aesthetic and substantive differences from the disclosure
form attached to the complaint. This is not an issue
capable of resolution on the pleadings, or at least not on
these pleadings.
Finally, Household—like Ensurance—argues that
Killingsworth has not sufficiently pleaded a willful viola-
tion of the FCRA. For similar reasons, we reject the
argument. Killingsworth alleges that Household “prese-
lected” and targeted her (among others) for its credit
solicitation and accessed her credit information without
her knowledge or permission for that purpose. She alleges
that Household developed and approved the text and
format of the solicitation, including numerous specific
disclosures of credit terms and conditions that were
neither clear nor conspicuous, and that it did all this
willfully. This is enough factual detail to state a claim for
a willful violation of the FCRA.
For the foregoing reasons, we conclude that FACTA’s
elimination of private rights of action for § 1681m viola-
tions has an impermissibly retroactive effect when ap-
plied to claims that accrued before its December 1, 2004
effective date. Killingsworth’s claim may proceed; we
reverse the judgment on the pleadings in her case and
remand for proceedings consistent with this opinion.
Nos. 06-1616 & 06-2178 17
Sawyer’s claim may proceed for now; some of the allega-
tions in his complaint, if true, could establish that an
FCRA violation occurred before FACTA’s effective date.
We reverse the judgment dismissing his case and
remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-9-07