MEMORANDUM OPINION AND ORDER
Plaintiffs Thomas A. Murray, Nancy R. Murray, and Deborah Jackson filed a six-count putative class action 1 alleging that defendants Household Bank (SB), N.A., Household Credit Services, Inc., Household Credit Services (II), Inc., and HSBC North America Holdings, Inc. failed to comply with the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. On June 7, 2005 2 , defendants filed a renewed motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). On August 24, 2005, the court granted defendants’ motion for leave to cite additional authority. On September 1, 2005, the court granted plaintiffs’ motion for leave to file instanter a response to defendants’ supplemental authority.
FACTS
Plaintiffs are individuals who reside in the Northern District of Illinois. Defendant Household Bank (SB), N.A. is a bank with offices in Las Vegas, Nevada and does business in Illinois. Defendants Household Credit Services, Inc. and *995 Household Credit Services (II), Inc. are corporations with offices in Prospect Heights, Illinois. HSBC North America Holdings, Inc. is a Delaware corporation with offices in Prospect Heights, Illinois.
Defendants sent plaintiffs seven “pre-screened” mailings offering pre-approved MasterCard credit cards to be issued by Household Bank (SB), N.A. and serviced by one of the two Household Credit Services entities. The mailings were sent by HSBC North America subsequent to February 15, 2004. Each mailing contains an FCRA disclosure statement that the “information contained in your credit report was obtained from a credit reporting agency and was used in connection with selecting you for this offer.” In six of the seven mailings, the FCRA disclosure was contained in a black-and-white insert that stated that it contained rates, fees, and contract terms. The front of the solicitation letter and another insert displaying credit card designs were in color. In the seventh mailing, the FCRA disclosure was on the reverse of the solicitation letter, and appeared under the heading “Additional Terms and Conditions.” Nothing in the mailings alerts the reader to that fact that the disclosure information also applies to consumers who do not want the credit offer.
DISCUSSION
A party is permitted under Federal Rule of Civil Procedure 12(c) to move for judgment on the pleadings after the parties have the complaint and the answer. Fed.R.Civ.P. 12(c);
Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend,
I. Firm offer of credit
Plaintiffs argue that defendants violated § 1681b of the FCRA because the credit mailings were not firm offers of credit and thus defendants did not have a permissible purpose for accessing plaintiffs’ consumer reports. The FCRA protects the privacy of consumer reports obtained from consumer reporting agencies. See 15 U.S.C. § 1681(a). Under § 1681b of the FCRA, it is permissible to obtain a consumer report only with the written consent of the consumer or for certain “permissible purposes,” such as the extension of a firm offer of credit. 15 U.S.C. § 1681b(c)(l)(B). Persons who use a consumer report to make a prescreened offer are required under § 1681m(d) to make certain disclosures in a “clear and conspicuous” manner. For example, users must state that “information contained in the consumer’s consumer report was used in connection with the transaction” and that the consumer has a right to prohibit the information in his consumer report from being used “in connection with any credit or insurance transaction that is not initiated by the consumer.” 15 U.S.C. § 1681m(d)(l).
In the instant case, plaintiffs did not authorize access to their consumer reports or initiate any transactions with defendants. Defendants’ prescreened credit *996 card offers were thus permissible only if they fell under the firm offer of credit extension in § 1681b(c)(l)(B). Plaintiffs argue that the disclosures contained in defendants’ credit offers did not comply with 15 U.S.C. § 1681m(d), which requires users making unsolicited offers of credit to provide “clear and conspicuous” disclosures regarding removing a consumer’s name from consumer reporting agency lists, and thus the solicitations were not firm offers of credit. In particular, plaintiffs assert that the location and format of the disclosures were such that consumers who did not accept the credit card offer were unlikely to review them. According to plaintiffs, because the absence of an election by the consumer to have his name and address excluded from lists of names and addresses provided by consumer reporting agencies is a prerequisite of a firm offer of credit, 15 U.S.C. § 1681b(c)(l)(B)(iii), the failure to provide notice that such an election may be made precludes a solicitation from being a firm offer of credit.
Plaintiffs cite no case law supporting their novel, and ultimately unpersuasive, reading of the statute. The definition of a “firm offer of credit,” contained in §§ 1681a(i) and 1681b(c)(l)(B), does not include a requirement to give any disclosures. The disclosures described in § 1681m(d) are a separate and subsequent requirement, implicated only when a firm offer of credit is made, and the failure to provide these disclosures does not strip a solicitation of its status as a firm offer of credit. The Seventh Circuit recently recognized this distinction in
Cole v. U.S. Capital, Inc.,
Plaintiffs’ only basis for their argument that defendants’ mailings were not
firm
offers of credit and thus not permissible under § 1681b is their contention that insufficient § 1681m disclosures effectively invalidate a firm offer. Plaintiffs do not, for example, allege that the creditors will not honor the offers or that the credit offered is of no value to the consumers.
See Cole,
II. Private right of action under § 1681m
Plaintiffs also argue that defendants are liable under § 1681m of the FCRA because the prescreened disclosures provided in the mailings were insufficient. Defendants argue that recent amendments to the FCRA eliminated a private right of action for a violation of § 1681m.
The Fair and Accurate Credit Reporting Act of 2003, P.L. 108-159 (“FACT Act”), amending the FCRA, became effective on December 1, 2004. Section 311(a) of the FACT Act added § 1681m(h), which concerns the use of consumer reports to offer credit to certain consumers on terms that are “materially less favorable than the most favorable terms available to a substantial proportion of consumers.” 15 U.S.C. § 1681m(h)(l). Section 1681m(h)(8), titled “Enforcement,” provides: “(A) No Civil actions. Sections 1681n and 1681o 3 of this title shall not *997 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.”
Judge Zagel recently dismissed a similar FCRA case (filed by the same plaintiffs as in the instant case), Murray v. Cross County Bank, no. 05 C 1252, unpub. order (N.D.Ill. Aug. 15, 2005), based on his finding that there was no private right of action under § 1681m. Judge Zagel rejected the plaintiffs’ argument (made in the instant case as well) that § 1681m(h)(8) eliminated a private right of action only as to § 1681(h), and held that Congress’s use of the word “section” in § 1681m(h)(8) referred to § 1681m as a whole, rather than subsection (h) only. The parties in the instant case do not cite, and the court has not found, any circuit court decision that has addressed this particular issue of statutory construction. For the reasons set forth below, this court, like Judge Zagel, concludes that § 1681m(h)(8) precludes all private rights of action under § 1681m.
“Congress ordinarily adheres to a hierarchical scheme in subdividing statutory sections,” and the Senate and House manuals each provide that sections are to be divided in descending order into subsections, paragraphs, subparagraphs, and clauses.
Koons Buick Pontiac GMC, Inc. v. Nigh,
The court agrees with plaintiffs that § 1681m is not a model of precise draftsmanship. For example, it would have been more logical to add the enforcement provision in a separate subsection, § 1681m(i), rather than including it as a paragraph of subsection § 1681m(h). In addition, the court agrees with plaintiff that § 1681m(h)(7) is redundant of § 1681m(c) because both provide that there is no liability for a violation of § 1681m if “reasonable policies and procedures to comply with this section” are maintained.
See Witzke v. Femal,
Plaintiffs cite extensively to the legislative history of the FACT Act, which reveals an absence of discussion regarding the elimination of a private right of action under § 1681m as a whole, in support of their argument that the enforcement provision applies to subsection (h) only. None of the drafting choices identified by plaintiffs, however, rise to the level of a textual ambiguity or anomaly that would require, or even permit, the court to resort to legislative history. As the Supreme Court noted last term in
Exxon Mobil Corp. v. Allapattah Servs., Inc.,
— U.S. -, -,
The court understands plaintiffs’ frustration that reading § 1681m(h)(8) as written eliminates a substantial private cause of action under a statute that was enacted to protect private consumers.
See
15 U.S.C. § 1681(a)(4) (“There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy.”). Courts, however, may not create a private right of action or private remedy, “no matter how desirable that might be as a policy matter, or how compatible with the statute.”
Alexander v. Sandoval,
It certainly would not have been unreasonable for Congress to debate, or at least mention, such a sweeping change in enforcement of a section of the FCRA before passing the FACT Act. Plaintiffs’ argument that the lack of discussion in the legislative history evidences a lack of congressional intent, however, is mooted by
Exxon Mobil.
Decided after
Koons, Exxon Mobil
holds that a court may not consider legislative history when, as here, the text of a statute is unambiguous.
In the instant case, the legislative history appears silent regarding the continuing viability of a private right of action under § 1681m, rather than in express conflict with the statutory language, as in
Exxon Mobil,
Plaintiffs’ citation to
Koons,
a Truth in Lending Act case in which the Court gave effect to congressional intent, is thus largely inapposite because the examination of legislative history in
Koons
was premised on the Court’s finding that the statutory text created an “anomalous” result. The
Koons
court noted that the reading suggested by the defendant, “would lead to the anomalous result of double-the-finanee-charge liability, uncapped by the fixed dollar limit ... for an open-end loan secured by real property, while liability would be capped ... at $2,000 for a closed-end loan secured by the same real property.”
The plain language of § 1681m(h)(8), regardless of whether Congress gave scant consideration to its effect, is neither internally inconsistent nor unclear, and it does not produce an anomalous or nonsensical result. On its face, it eliminates all private rights of action under that section of the FCRA, § 1681m, and this court may not consult the legislative history or other extrinsic sources.
Accordingly, the court grants defendants’ motion for judgment on the pleadings. Because the court grants defendants’ motion, it need not consider defendants’ alternative arguments in support of judgment in their favor.
CONCLUSION
For the reasons stated above, the court grants defendants’ motion for judgment on the pleadings.
Notes
. The court notes that the caption fails to state that the action is brought as a class action.
. With leave of the court, defendants filed a corrected memorandum of law in support of their motion on June 20, 2005.
. 15 U.S.C. §§ 1681n and 1681o provide civil liability for "willful noncompliance” and "negligent noncompliance” with the FCRA, respectively.
. Other subsections of § 1681m appear to use "section” more generally. For example, § 1681m(b)(2)(B) refers to "section 1681a(k)(l)(A).” (See also, §§ 1681m(d)(l) and 1681m(h)(5)(D)). In these instances, however, the word "section” appears immediately adjacent to the number and is clearly intended to replace the " § " symbol, which is typically used to denote that it precedes a citation to a statute. Thus, the word "section” in these parts of the statute, unlike § 1681m(h)(8), do not indicate the precise hierarchical ranking of the provision cited.