7th Circuit on the FCRA

Today, the 7th Circuit has a somewhat significant ruling (PDF) on the Fair Credit Reporting Act. Under the Act, companies aren’t supposed to use credit reporting bureaus to access consumer information unless the consumer initiates the transaction. An exception to this is that companies are allowed to access such information if it is done to make a “firm offer of credit or insurance.” The court analyzes some of the particulars as to what constitutes a “firm offer” – Does the offer have to be valuable to most recipients? (not necessarily); Does a promise of “free” merchandise mean that the offer is not one of credit? (No.); Must the initial flyer contain all of the material terms? (No.); Does the power to alter the deal’s terms make the deal not “firm”? (No); and Is 6-point type “conspicuous”? (No, but at the time in question, it was negligent rather than reckless for the company to use 6-point type; only actual damages and not statutory damages are available to the Plaintiff).