MEMORANDUM OPINION AND ORDER
After the Court dismissed Keith Santan-gelo’s original complaint against Comcast Corporation without prejudice, Santangelo filed an amended complaint, again on behalf of himself and a putative class. According to the amended complaint, Santan-gelo contacted Comcast to set up internet service and paid a $50 deposit in exchange for Comcast’s promise not to pull his credit report. Comcast then pulled his credit report anyway, an action Santangelo claims violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., as well as Illinois statutory and common law. He also alleges that Comcast has done the same thing to many other consumers.
Comcast moves to dismiss the amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Santangelo lacks Article III standing to bring an FCRA claim and also that he has failed to state any claim. For the reasons provided below, the Court denies Comcast’s motion.
I. Factual and Procedural Background
Santangelo alleges in his amended complaint that he contacted Comcast through the company’s online customer service “Chat” function in December 2014 and requested internet service for his new apartment. Am. Compl. ¶ 14. During the chat session, a Comcast representative asked Santangelo for permission to run a credit inquiry. Id. ¶ 15. Santangelo asked if any option was available to avoid the credit inquiry. Id. ¶ 16. The Comcast representative told him that the company would forgo the inquiry if he paid a $50 deposit. Id.
The option to pay a $50 deposit in order to avoid a credit inquiry was an explicit part of Comcast’s official Risk Management Policy and was set forth on the company’s pubic website. Id. ¶¶ 10-11. The policy also required a $50 deposit from any prospective customer who agreed to a credit inquiry but whose credit score proved to be unsatisfactory. Id. ¶ 12. According to Santangelo, the deposit policy “reflects Comcast’s calculated business decision and belief that the collection of a $50 deposit is sufficient to cover the risk presented by a person with bad credit and is sufficient to cover the risk presented by a person who refuses a credit pull.” Id. ¶ 13.
Santangelo opted to pay the $50 deposit in lieu of a credit inquiry. Id. ¶ 17. To facilitate payment of his deposit, the Com-cast representative created a web portal through which Santangelo provided his credit card information. Id. ¶ 18. Comcast then charged his credit card $50. Id. ¶ 19. Nevertheless, Comcast, without Santange-lo’s authorization, pulled his credit report via a “hard inquiry” that same day. Id. ¶ 21. This credit inquiry depleted Santan-gelo’s credit score. Id.
According to Santangelo, Comcast has done the same thing to many consumers. Id. ¶ 2 (citing Comcast help forum topic threads). He contends that Comcast’s practice harmed him and the other members of the putative class by obtaining their personal and private financial information without justification and by taking $50 from each putative class member in exchange for a promise it didn’t keep. Id. ¶ 32.
Santangelo has since filed an amended complaint that includes the allegations summarized above about Comcast’s deposit policy. Comcast now moves to dismiss the amended complaint.
II. Analysis
A. FCRA Claim
FCRA prohibits the obtaining of a “consumer report,” commonly known as a credit report, except for purposes authorized by that statute. 15 U.S.C. § 1681b(f). The statute lists specific permissible purposes, such as “in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit.” Id. § 1681b(a)(3)(A). The statute also allows reports to be obtained for any other “legitimate business need.. .in connection with a business transaction that is initiated by the consumer,” § 1681b(a)(3)(F)(i). These limitations are intended to produce a “balance between consumer privacy and the needs of a modern, credit-driven economy.” Stergiopoulos & Ivelisse Castro v. First Midwest Bancorp, Inc.,
Santangelo contends that Comcast did not have a permissible purpose for obtaining his credit report after he paid the $50 deposit in exchange for the company’s promise not to check his credit.
1. Standing
Comcast first argues that Santan-gelo lacks standing to bring his FCRA claim. To establish standing under Article III, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
According to Comcast, Santangelo has not alleged an injury-in-fact that is fairly traceable to the FCRA violation he claims. Mem. Supp. at 4-7. Santangelo responds that he has sustained three injuries-in-fact: the loss of the $50 he' paid as a deposit, the violation of his legal right not to have his credit report pulled without a permissible purpose, and the resulting depletion of his credit score. Resp. Br. at 2-4.
The Court concluded in the order dismissing Santangelo’s original complaint that Comcast’s retention of his $50 deposit was sufficient to satisfy the injury-in-fact requirement. See Santangelo v. Comcast Corp., No. 15-CV-0293,
Comcast is correct that the actual act that constitutes the alleged FCRA violation—Comcast’s execution of a credit pull—did not cause Santangelo to give-Comcast $50. After all, he had given Com-cast the $50 willingly before the credit inquiry was made. On the other hand, it was the very fact that Comcast received the $50 from Santangelo before it performed the credit check that made it illegal. (Santangelo’s theory, remember, is that Comcast lacked a permissible purpose to make the credit inquiry after receiving his $50.) And once Comcast checked San-tangelo’s credit, it should have refunded the deposit immediately, rather than keeping it. Comcast’s receipt and withholding of the $50, therefore, is inextricable from the FCRA violation and can be said to be fairly traceable to the FCRA violation. And as the Court explained in the previous order, “even if the $50.00 deposit were fully refundable, Santangelo still has standing based on the lost time-value of the money.” Santangelo, No. 15-CV-0293,
Deposit aside, the Court concludes that Santangelo also has sufficiently alleged an injury-in-fact by alleging that Comcast obtained his credit report without a permissible purpose in violation of the FCRA. Comcast contends otherwise, arguing that a bare violation of the FCRA— one that does not inflict “actual damages”—is merely an “injury in law” rather than an injury-in-fact. Mem. Supp. at 5-7. But this argument has no support in this Circuit, where it is clear that a plaintiff can sufficiently allege an injury-in-fact without alleging actual damages. See Sterk v. Redbox Automated Retail, LLC,
Because the FCRA grants consumers a legally protected interest in limiting access to their credit reports and provides redress for violations, the Court concludes that Santangelo’s allegations about Com-cast’s interference with that legally pro
Additionally, even if the Supreme Court were to conclude in Spokeo that a bare violation of the FCRA does not constitute an injury-in-fact, Santangelo also alleges that the FCRA violation in this case depleted his credit score. In response, Com-cast contends that a reduced credit score, without resulting damages, does not constitute an injury for standing purposes, Mem. Supp. at 5, but the cases upon which it relies address the statutory requirement of “actual damages” under 15 U.S.C.A. § 1681o(a)(l), rather than Article III standing. See Novak v. Experian Info. Sols., Inc.,
In short, the Court agrees with Santan-gelo that a depleted credit score is sufficient to constitute an injury-in-fact for the purposes of establishing Article III standing. Credit scores are of great importance in our economy, and a depleted credit score could affect a consumer in numerous ways, inflicting harm that often may be difficult to prove or quantify. Congress has the power to discourage the needless depletion of consumers’ credit scores even when the depleted score cannot be neatly tied to a financial harm. While discovery may well show that Santangelo did not suffer any actual damages as a result of his lower credit score, at this preliminary stage, his allegations are sufficient to establish Article III injury-in-fact.
2. Sufficiency of Santangelo’s allegations
Comcast next argues that Santangelo’s allegations do not state an FCRA claim. Mem. Supp. at 7-10. To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
In dismissing Santangelo’s original complaint, the Court concluded that he had not sufficiently alleged that Comcast lacked a permissible purpose for pulling his credit report. See Santangelo v. Comcast Corp., No. 15-CY-0293,
In his amended complaint, Santangelo does allege that Comcast’s deposit policies demonstrate its lack of a legitimate need to run credit checks with respect to consumers who paid a $50 deposit. According to the amended complaint, Comcast’s established policy is to forgo a credit check in exchange for a $50 deposit. The company also has a policy of accepting a $50 deposit from consumers who opt for a credit check but prove to have poor credit. Santangelo compares this situation to that of a car dealer who accepts a cash payment for the full purchase price of a car. The FTC has explained that the car dealer in that hypothetical does not have a legitimate need to obtain the purchaser’s credit report. See Kaiser, FTC Informal Staff Opinion Letter (July 16,1998), available at https://www.fte.gov/policy/advisory-opinions/advisory-opinion-kaiser-07-16-98 (accessed Jan. 3, 2016). Similarly, a landlord does not have a legitimate need to obtain a tenant’s credit report if the tenant is entitled to a lease renewal without regard to creditworthiness. See, e.g., Ali v. Vikar Mgmt. Ltd.,
In response, Comcast first argues that it had a legitimate business need to establish Santangelo’s creditworthiness despite his deposit because — unlike in the car dealer example — his $50 deposit would cover less than two months of service in a long-term contract. Mem. Supp. at 8-9.
If Santangelo is correct that Comcast did not obtain his credit report to assess his creditworthiness, the company would still have been justified in obtaining the report if it had some other “legitimate business need.” Comcast contends that it had such a need: to verify Santangelo’s identity. But the Court has no basis at this stage for accepting this assertion as true, and a defendant may not defeat an FCRA claim simply by offering what may be a
The bottom line is that Santange-lo’s allegations about Comcast’s deposit policy—when combined with the reasonable inference that Comcast instituted this policy because it had no need to check the credit of consumers who paid deposits— remedied the deficiencies in his original complaint. As the Court concluded in the previous order, Comcast’s mere violation of its alleged agreement not to pull San-tangelo’s credit report does not support an FCRA claim. Santangelo, No. 15-CV-0293,
Comcast’s final argument for dismissing Santangelo’s FCRA claim is that he neither explicitly alleges that the company’s actions were “willful,” which is necessary to trigger statutory damages, see 15 U.S.C. § 1681n(a)(l)(A), nor identifies any “actual damages” that he could recover if Comcast acted only negligently, see id. § 1681o(a)(l). Mem. Supp. at 9-10. But even assuming that Santangelo’s $50 deposit and depleted credit score do not constitute “actual damages,” he has nevertheless stated a claim because he has sufficiently alleged that Comcast acted willfully. Although he does not use the word “willful” in his complaint, he alleges that the company • obtained his credit report despite that it “knew that it did not have a legitimate business need.” Am. Compl. ¶41. He also alleges that “Comcast is engaged in this practice on a widespread basis.” Id. ¶2. These allegations imply recklessness at the very least, and reckless conduct qualifies as willful conduct under the FCRA. See Murray v. New Cingular Wireless Services, Inc.,
B. State Law Claims
1. Standing
Comcast argues for the first time in its Reply Brief that Santangelo no longer has standing to bring any of his state law claims. Reply Br. at 9. In support, the company has attached an affidavit and billing records purporting to show that, since this lawsuit was filed, Santangelo has received a credit in the amount of his $50 deposit, plus interest in the amount of $.10. Comcast contends that this refund means that Santangelo’s injury for the reported breach of contract cannot be redressed by a favprable judicial decision as is required for standing. '
Normally, an argument raised for the first time in a reply brief is deemed forfeited, Narducci v. Moore,
When a plaintiff had standing to bring a claim at the time the claim was filed, and the defendant subsequently takes some action to compensate the plaintiff for the alleged wrong, the question becomes whether the case is moot rather than whether the plaintiff has standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
Establishing mootness is not easy. Just recently, the Supreme Court reiterated that a “case becomes moot ... only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Campbell-Ewald Co. v. Gomez, No. 14-857, - U.S. - - ,
Despite the refund of his deposit, Santangelo still has an interest in the outcome of his state law claims. Although the . refund of his deposit with interest may mean that there is little or no additional money he can recover, the Court cannot conclude that it is “impossible ... to grant any effectual relief’ to Santangelo. For example, Santangelo may ultimately be able to prove damages resulting from his depleted credit score (whether in the form of a higher interest rate on credit, a missed opportunity, or even reputational-harm). Additionally, under the Illinois Consumer Fraud and Deceptive Practices Act, Santangelo is not just seeking compensatory damages but is also seeking punitive damages and injunctive relief. Because Comcast has not made an offer of judgment that would have entirely satisfied Santangelo’s state law claims, the claims are not moot. See id. at *7. See also Scott v. Westlake Servs. LLC,
2. Sufficiency of Allegations a. Breach of Contract
The elements of a breach of contract claim in Illinois are (1) a valid contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) resulting damages. Razor Capital v. Antaal,
According to Comcast, however, Santan-gelo’s contract claim must be dismissed based on the existence of a subsequent written contract, Mem. Supp. 10-12, a copy of which the company has attached to its memorandum in support of its motion to dismiss, id. at Ex. 1-A. That contract purports to “replace any and all prior written or verbal agreements” about “the subject matter of this Agreement,” and the contract authorizes Comcast “to make inquiries and to receive information about your credit experience from others.” San-tangelo responds in part with several arguments that this document has no bearing on his contract claim, including that the
A motion to dismiss under Rule 12(b)(6) must be decided based on the complaint, “documents -attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Geinosky,
Comcast also argues that Santangelo does not allege any compensable damages, explaining that his complaint does not address “whether Comcast has or will refund interest on his deposit”
b. Unjust Enrichment
Under Illinois law, “recovery for unjust enrichment is unavailable where the conduct at issue is the subject of an express contract between the plaintiff and defendant.” Cohen v. Am. Sec. Ins. Co.,
Comcast argues that this claim, like Santangelo’s contract claim, should be dismissed based on the existence of the written contract they have attached to their motion to dismiss. Mem. Supp. at 12-13. But, as explained above, the Court is not permitted to consider that contract in deciding whether to dismiss a claim under Rule 12(b)(6). See Travel All Over the World, Inc,
Comcast also makes the related argument that the claim should be dismissed because both parties agree that an express contract governs and only disagree about which contract governs. Presumably, however, Comcast does not mean to concede that it had a valid contract with Santangelo not to run a credit check until the written contract went into effect. In any event, if the company does seek to make that concession, it will need to do so in its answer to the complaint.
Finally, Comcast argues that San-tangelo has not stated an unjust enrichment claim because he has not alleged that the company “intended to retain his deposit.” Mem. Supp. at 13. “To state a claim for unjust enrichment, the plaintiff must allege that the defendant retained a benefit
Comcast is right that Santangelo did not allege anything about the company’s intent, but he did allege that the company has in fact “retained the $50 deposit,” Am. Compl. at 65, which is sufficient. Comcast points out that this allegation is no longer true because the deposit has been refunded, but the evidence of the refund (like the written contract) cannot be considered by the Court in applying Rule 12(b)(6) because it is a matter outside the pleadings. See Travel All Over the World. Inc,
c. Consumer Fraud and Deceptive Business Practices Act
Illinois’s Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505 et seq., “is a regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp.,
Santangelo alleges that Comcast engaged in unfair and deceptive business practices by promising to forgo a credit check in exchange for a $50 deposit and then performing the credit check anyway. Am. Compl. ¶ 46. He says that the company intended for him and others to rely on the deception, as “evidenced by the fact that Comcast facilitated the deposits of $50 by providing a web portal to process the deposit in real time.” Id. ¶ 48. He also alleges that Comcast’s “conduct offends public policy because it is akin to a widespread fraud, violates federal law, harms consumers, and harm’s consumer trust in the communications industry and credit reporting industry.” Id. ¶ 51. As in each of his counts, he incorporates his earlier allegations about the specifics of his dealings with Comcast. Id. ¶ 44.
Comcast first argues that Santan-gelo’s allegations fall short of stating a claim under the Act because of the overlap between those allegations and the allegations that support his breach of contract claim. The Illinois Supreme Court has made clear that a “breach of contractual promise, without more, is not actionable under the Consumer Fraud Act.” Avery v. State Farm Mut. Auto. Ins. Co.,
Santangelo responds that his allegations in support of his claim under the Act are not merely; that Comcast breached its contract. Resp. Br. at 14-15. Rather, he alleges that the company made affirmative false representations (both on its website and while communicating directly with consumers), that it did so on a widespread basis, and that it induced consumers to pay the $50 deposit right away through an online payment portal. The Court agrees that these allegations describe something beyond a simple breach of contract. See Rumford v. Countrywide Funding Corp.,
Comcast’s second argument is that San-tangelo has failed to state a claim under the Act by “fail[ing] to plead any facts whatsoever that would support a finding that Comcast intended to deviate from” its written policy of accepting a deposit in lieu of a credit check. Mem. Supp. at 15. The company says that Santangelo thus has not met the pleading standards of Rule 8(a) let alone the heightened pleading standard set out in Rule 9(b) for fraud claims. Id.
The Seventh Circuit has stated that “[cjlaims for violation of the Consumer Fraud Act are subject to the same heightened pleading standards as other fraud claims; as such, they must satisfy the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure.” Greenberger,
Santangelo alleges that Com-cast’s actions were both deceptive (fraudulent) and unfair, complicating the question of which pleading standard applies. But the Court concludes that resolving that question is unnecessary because Santange-lo’s allegations are sufficiently specific under either standard. The heightened pleading standard of Rule 9(b) requires that the complaint include “the who, what, when, where, and how” of the alleged fraud. DiLeo v. Ernst & Young,
III. Conclusion
For the reasons given above, the Court denies Comcast’s motion to dismiss.
SO ORDERED
Notes
. Santangelo also alleges that Comcast, because it lacked a permissible purpose to obtain his credit report, must have done so under "false pretenses.” Am. Compl. ¶ 43. But even assuming, as other courts have, that "false pretenses” and "without a permissible purpose” are equivalent, see Pappas v. City of Calumet City,
. In its reply brief, Comcast states that it has refunded the $50 plus interest to Plaintiff on March 21, 2015. But this was months after the credit check was performed.
. Although Comcast's seems to be arguing that it was extending credit to Santangelo in the form of internet service, the company does not invoke 15 U.S.C.A. § 1681b(a)(3)(A), which explicitly provides that a credit report may be obtained when an "extension of credit” is involved. A debt incurred in exchange for a service is a form of credit. See 15 U.S.C.A. §§ 1681a(r)(5), 1691a(d). Comcast instead relies entirely on § 1681b(a)(3)(F)(ii), the residual clause.
. Comcast correctly does not suggest that the Court should consider the affidavit and billing records that it submitted in support of its argument for dismissal under Rule 12(b)(1). As explained, the Court may consider evidence outside the pleadings when applying Rule 12(b)(1) but not Rule 12(b)(6).