*2 Before HAYNSWORTH, Chief Judge, BOREMAN,* Senior Circuit Judge, and CRAVEN, Judge. Circuit CRAVEN, Judge: Circuit Appellant Alan White brought this suit under the Truth in seq., 1601 et against Arlen Realty § Development Corporation, owner oper- ator department of Korvettes stores. In his complaint, alleged White that Korvettes vi- olated 15 failing provide U.S.C. “a brief identification ...
goods or purchased” services required the Act in connection with a series of 12 made him and his wife in 1971 and 1972. sought He mini- mum penalty of for each plus violation costs and attorney’s fees as in the Act. 15 U.S.C. 1640. The district court relief, denied holding that White lacked standing to sue and that the identification provided by Korvettes was sufficient satisfy of the Act.1 We disagree, and reverse.
* Judge Boreman dissents. reported 1. The case is Realty as White v. Arlen Development Corp., (D.Md. & in this case. statement involved
I. F.Supp. at his on 12 between wife occasions department store at Rock- Korvettes 1, 1972,2 made February June ville, composed separate of 64 Maryland, store department at Korvettes departments, offering “plethora each Rockville, using Maryland, located *3 brought items of merchandise.”4 Items in On each credit card. White’s Korvettes departments 25 of these were checked out pro- occasions, or his wife was White these through particular department’s regis- register cash slip and a charge with a vided selected from of the ter. Goods other Each purchase. with the tape associated departments purchased through could be the date arid amount slip indicated these a “central checkout.” Some of de- exception of the and, the sale of the partments only identified with one identifying slip showed June 1 which “Apparel” designations, two or “Hard goods pur- all, the identified designation Goods;” others, the such as watch optical, or “Hard “Apparel” as either chased repair, departments, and shoe the register tape gave Goods.” cash specific designations. purchases more For purchase, date, total amount of checkout, through made central items were item. of each price “Apparel” identified either as or “Hard specifically5 depending Goods” or more cash charge slips and kept these White goods bought nature of the at these monthly receiving the tapes. Upon register locations but which of these two identifi- Korvettes, which from billing statement permanently cations happened be affixed of the no identification contained imprinters to the used for card and amount date only the goods but transactions at checkout center selected compared the amount purchase,3 short, by designation In customer. slips corresponding charge with the shown nothing except meant the customer court tapes. The district register and cash fortuitously picked particular had check- procedure White using this found register.6 out billing each accuracy of verify the able to following were made: court found 2. The district F.Supp. added). App. (emphasis at 155. following language appeared Appellee on the back 4. Brief for at 8. 3. The monthly billing statements received of the only White: 5. White’s bore the identifica- “Apparel.” tions “Hard Goods” and to the of each debited Identification of each transac- account identification Boys’ tion, example, payment For from the items Girls’ credited to other than you Clothing Department previously could be checked out has furnished to account been through Candy Department slip and would re- our cashier or the form of a from accounting depart- App. ceive “Hard separate the identification Goods.” notice from our 60-61, 117, 125. ment. with those offered other dis- practices fendant White claims that Korvettes’ lending require count stores or institutions so this case violated the disclosure that he ap might shop effectively Act as the Truth in for the ments of best plans” buy. credit credit “open end consumer plied Id. of each failing give part We believe the district ruling court’s (unless “a identification statement brief this case and its reliance on Bostwick v. furnished) goods or serv previously ).7 Cohen, (N.D.Ohio 1970), 1637(b)(2 purchased.” ices U.S.C. thoroughly undermined the Supreme penalty statutory minimum He seeks Court’s decision in Mourning Family Pub- plus costs and the 12 violations each of Service, Inc., lications 411 U.S. 93 S.Ct. 1640(a).8 fees under U.S.C. 1652, 36 (1973). L.Ed.2d 318 In that case *4 the Court concluded that II. 15 U.S.C. 1640 was not “imposition held that White allows The court of a civil penalty in cases and thus lacked “aggrieved debtor”9 where no finance charge an is involved but since he standing regulation to maintain this action where a requiring disclosure has injury as a no actual or threatened been violated.” “faced In light emphasis of the Congress placed 374 billing practices.” result of defendant’s agency rule making private and on F.Supp. at 158. plaintiff’s regular practice pay It was to and administrative enforcement of the days his bill within 25 allowed before we cannot Congress conclude that charge He a finance would- be incurred. intended those who comply failed to with sought any regulations subject thus never extension of credit penalty to be to no or penalties from defendant which would have result- to criminal alone. As the Dis- concluded, any obligation part pay imposition ed in on his to trict Court of the charges proper or interest for debt in- minimum finance sanction is in cases such Furthermore, this, nei- plaintiff charge curred. has where the finance is non- alleged proved ther nor that he ever existent or undetermined. he identify 376,
failed to
for which
Id. at
649
Piggie
Newman v.
Park
of
Cf.
position
$100.
implicitly
Mourning affirmed
964,19
400, 88
Enterprises, 390 U.S.
S.Ct.
Bank New
v. Chemical
Ratner
taken
(1968).
L.Ed.2d 1263
(S.D.NY.
Co.,
Trust
York
purpose:
1971),
congressional
as to
omitted).
(footnote
Id. at 280-81
statute, as
sides
both
scheme
The
Lending Act as expli-
Truth in
Under the
“private
species
create a
is to
agree,
above,
that White
we are convinced
cated
promi-
participate
attorney general”
“aggrieved”
“adversely affected”
language
The
nently in enforcement.
standing requirements as devel-
within the
light
liberally
construed
be
should
D.,
R.
v. Richard
Linda
S.
U.S.
oped in
con-
Thus
purpose.
remedial
broadly
1146,
614,
(1973);
III.
tape15
time of
because nei-
ther
goods purchased.16
The district court concluded
identified the
that the
identification of
or services
we have previously noted,“Apparel” and
*6
by
pur
Korvettes to White at the time
“Hard
designations
of
Goods”
nothing.
meant
requirements
chase satisfied the disclosure
Unless
remembered,
the customer
he could
of the Act.
It based its decision on these
not know whether
bought
he had
gourmet
findings
(1)
of fact:
the 12 transactions
foods or auto accessories.17 We hold that
Ratner, supra, Judge
In
Frankel stated that
identifying
revealed further
information when
[Ratner],
people
However,
the Act “invited
like
whether
decoded.
there is no evidence that
they
not,
were themselves deceived or
to sue in
Korvettes furnished White or
other cus-
public
(foot-
F.Supp.
the
interest.” 329
at
part
original
tomer the relevant code as
of the
omitted).
accompanying
purchase
note
In
a footnote
or the
statement.
quoted material,
plain-
explained
this
he
that
realistically
question
16. We do
“likely
not
the
tiffs in these cases
decide
of
are
to be
whether
people
easily
may
the
actually
disclosure
of
or
the Act
not
deceived.” Id. at
be
by
satisfied
identification
280 n. 16.
at the time
purchase
of
suming
billing.
instead of at time of
As-
The
district court also held that no credit
Act,
either time satisfies the
it is clear
by
had been extended
Korvettes to White.
adequate
here that
identification was furnished
This conclusion is erroneous under the defini-
neither at time of
nor later.
tion of “credit” in
the Truth
Act:
right granted by
“The term ‘credit’ means the
court,
17. At the trial of this case in the district
payment
creditor to a debtor to defer
of debt or
portions
deposition,
of White’s
taken on No-
payment.”
to incur debt and defer
8, 1972,
vember
were read into the record
1602(e).
U.S.C. §
part
deposition,
Korvettes’ counsel. As
of that
recall,
possible,
he was asked to
if
what items
F.Supp.
13. 374
at 159.
purchased by
were
him and his wife on each of
the twelve dates relevant to this case.
It was
14. 374
at 160 & 9.n.
apparently on the basis of these recollections
argument
ap-
15. Korvettes’ counsel at oral
on
that the district court found the twelve transac-
peal
stated that a series of
or
numbers
Roman
“clothing,
tions to include
of
slide
appearing
register tapes
projector
trays,
numerals
on the
photographic prints,
light
cash
every
buyer
such ease the
“Appar-
is entitled to
Goods”
“Hard
designations
the
and recover the
purchases made
both rescind
dam
to
applied
el”
“a
identification
for
to disclose. In each
provide
ages
brief
failure
not
White did
pur-
cases,
services
or
recision was effectuated
cited
under
Act,
which creates a
chased.”
transactions,
of recision as to certain
right
IV.
including open end consumer credit
not
type
of the
involved in this
plans
case.
court found that
The district
remedies are made available
in Where both
involved
transactions
of the 12
first two
to
legislative
permit
intent
both in
White’s wife
when
rescinded
case were
this
is
case
easier
discern.
and received
the same
See
the items
returned
123;
Wollman, supra
Eby
v.
respect
to the final
v.
With
Sellers
full refund.18
supra
that White
at 651-52. We leave
Realty,
court found
Reb
purchases,
two
goods and
question
buyer
whether a
who
quality
open
complained
bill,
pay the
refused to
is entitled to recover
provided,
rescinds all
services
transaction,
repudiate the
may
nondisclosure.
situation
attempted
Such
defend on
he would
possibility
Enabling
that if sued
of abuse.
one
stating
present
“poor merchan
expends
that he received
grounds
purchase,
makes no final
no
who
Bostwick, su
court,
relying
money,
dise.”
and incurs
finance
not recover
White could
that
concluded
recover from a
pra,
nondisclosing
interest
“re
transactions since
these four
any of
go
the intent of
may
beyond
dealer
Con
class
are not within the
scinding customers
enacting
legislation.19
gress
liability provi
civil
which the
persons
Here,
But that is not our case.
whatever
protect.”
seek to
the Act
sions of
motivation,
the transactions were
White’s
Fifth
believe
158. We
F.Supp. at
not,
think,
we
genuine, and matters
Bostwick
Circuits
and Ninth
in dispute
two out of
transactions are
is untena
position
and this
decided
wrongly
two others rescinded.
Wollman,
v. Reb
supra; Eby
ble. Sellers
and remand with instructions
We reverse
1974);
Inc.,
(9th Cir.
pened permanently to be affixed to modified, Except as we adhere to our imprinters used for card transac- prior opinion. tions at the checkout center selected short, In designation the customer. BOREMAN, Judge, Senior Circuit dis- nothing except meant the customer sented. fortuitously particular picked had register.
checkout omitted). (footnotes p. 647
At arbitrary
It nature of Korvettes’
system presented by appeal. that was example,
For White’s best recollection of
purchases made on December 16 was:
Okay. Looking looking date here,
at the calendar that I have which
shows that Hanukkah started Decem- say
ber I would that some of these probably toys, perhaps
items are it’s
all
one tape.
per-
I don’t know but
appeal,
opinion
we
intimate no
whatsoever as
Legal
Society.
sented
Aid
We believe
appears pro
to whether or not one
is
who
se
wrongly
is
second case
decided. Tillman
entitled
counsel fees.
Ass’n, Inc.,
v. Wheaton-Haven Recreation
Bank,
In
v. Hibernia
(4th
Bone
F.2d
1147-48
Cir.
See also
(N.D.Cal.1973),
grounds,
rev’d on other
Wollman, supra
Sellers v.
at 123. There are
(9th
1974),
judge
F.2d 135
the district
sim-
cases,
many
g.,
e. Miller v. Amusement Enter-
asserted,
analysis,
ply
well
without
“[i]t
Inc.,
prises,
(5th
*8
1970)