MCQUEEN v. CREDIT ONE BANK, N.A.

Filing 77

OPINION AND ORDER denying 44 Defendant's Motion for Judgment on the Pleadings. Signed by Judge Michael E. Farbiarz on 3/7/2025. (sm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

YVETTE McQUEEN and DEBORAH A.
GLOVER, on behalf of themselves
and those similarly situated,

No. 23-cv-01601 (MEF)(SDA)

OPINION and ORDER

Plaintiffs,
v.
CREDIT ONE BANK, N.A., et al.,

Defendants.

Table of Contents
I.

Background
A.

The Allegations

B.

The Lawsuit

C.

The Motion

II. Standing
A.

Legal Principles

B.

Analysis

III. The Merits
A.

“Firm Offers”

B.

Analysis

IV. Conclusion
*

*

*

A bank obtained two people’s credit reports and offered them
pre-approved credit cards.
The people sued, claiming violations of federal law.

The bank now moves for judgment on the pleadings.
The motion is denied.
*
I.

*

*

Background
A.

The Allegations

The allegations1 as relevant for now are as follows.
The bank2 accessed the credit reports of two people. 3
Amended Complaint (“Complaint”) ¶¶ 16, 33.

See First

The bank got the reports from a credit-reporting agency. 4
id. ¶¶ 17–20, 34–35.

See

At around the same time, the bank sent the people “pre-approved”
offers for credit cards. See Amended Answer to Complaint,
Exhibits 2–43.
B.

The Lawsuit

In light of the above, the recipients of the credit card offers
(“the Plaintiffs”) sued the bank (“the Defendant”) on behalf of
a putative class.5 See Complaint ¶ 1.
Their Complaint presses two claims, each under the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. See id. ¶¶ 55–
77.
The gist of each claim: the Defendant got the Plaintiffs’ credit
reports without a lawful purpose. See id. ¶ 1.
Because this is a motion for judgment on the pleadings, the
Court must treat all allegations as true. See Atiyeh v. Nat’l
Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591, 595–96 (E.D. Pa.
2010) (collecting cases). Whether they are in fact true --that is a question for later in the case.
1

2

Credit One Bank, N.A.

3

Yvette McQueen and Deborah A. Glover.

4

Experian.

The Plaintiffs also sued John Does 1 to 10. These people have
not been identified or served, and they are not at issue in this
Opinion and Order.
5

2

C.

The Motion

The Defendant has moved for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c).
The motion is before the Court.
II.

Standing

Before getting to the merits of the motion, take the Defendant’s
argument that the Plaintiffs do not have standing. See Reply
Brief at 9–10.
The Court’s conclusion: this argument is not persuasive.
To see why, start by working through the relevant legal
principles, see Part II.A, and then come back to this case.
Part II.B.
A.

See

Legal Principles

Federal courts exercise the “judicial Power of the United
States.” U.S. Const., art. III, § 1. That power “extends only
to ‘Cases’ and ‘Controversies.’” Spokeo, Inc. v. Robins, 578
U.S. 330, 337 (2016) (quoting id.). In turn, “a case or
controversy can exist only if a plaintiff has standing to sue.”
United States v. Texas, 599 U.S. 670, 675 (2023).
There are a few elements of standing.
338.

See Spokeo, 578 U.S. at

Only one is arguably at issue here --- the requirement that the
plaintiff suffered an alleged “concrete injury.” Id. at 341.
A “concrete” injury is “real, and not abstract.” TransUnion LLC
v. Ramirez, 594 U.S. 413, 424 (2021) (cleaned up).
And there various kinds of potentially “concrete” injuries --physical or monetary ones, for example, and also intangible
ones. See id. at 425; Spokeo, 578 U.S. at 340.
The alleged injury suffered by the Plaintiffs here is
intangible.
*

*

*

To determine whether an alleged intangible injury is concrete, a
court assesses whether the injury has “a close relationship to”
something --- of which more in a moment --- that has

3

“traditionally [been] recognized as providing a basis for
lawsuits in American courts.” TransUnion, 594 U.S. at 425;
accord, e.g., Spokeo, 578 U.S. at 340–41.
If an alleged injury has that “close relationship,” it can
likely confer Article III standing. TransUnion, 594 U.S. at
425–26; see Church v. Collection Bureau of Hudson Valley, Inc.,
704 F. Supp. 3d 521, 527 (D.N.J. 2023).
But if it does not, the standing inquiry is not yet over.
This is because Congress can “elevate” what had been “previously
inadequate in law.” TransUnion, 594 U.S. at 425 (cleaned up).
That is, Congress can stretch things out by creating a new
injury --- and the newly created injury can support Article III
standing, so long as it is tethered in an appropriate way to an
anchor, to that which has “traditionally [been] recognized.”
Id. at 425; see Spokeo, 578 U.S. at 341.
*

*

*

Come back now to the point that was left for later.
Namely, what is a plaintiff’s alleged injury compared to? An
injury must have a “relationship.” TransUnion, 594 U.S. at 425.
But to what?
Generally, the cases do not speak explicitly speak to this.
But as they have worked through standing cases in the postTransUnion era, it appears that federal courts have generally
taken two basic sorts of approaches to the questions set out
above.6
Under the first approach, the plaintiff’s alleged injury is
compared to a “traditional” cause of action. See, e.g., Merck
v. Walmart, Inc., 114 F.4th 762, 780 (6th Cir. 2024) (stating
that standing law requires “courts to look out for ‘essential’
elements of liability that may appear in a traditional cause of
action but that the modern claim lacks”); see also, e.g.,
Gallagher v. Santander Consumer USA, Inc., 125 F.4th 865, 869
(8th Cir. 2025); Hunstein v. Preferred Collection & Mgmt.
Servs., Inc., 48 F.4th 1236, 1244 (11th Cir. 2022) (en banc);
Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th

To be sure, the line between these two rough approaches is not
always sharply drawn.
6

4

Cir. 2020); cf. Farrell v. Blinken, 4 F.4th 124, 141 (D.C. Cir.
2021) (Katsas, J., dissenting).
On this approach, a court looks to the “relationship,”
TransUnion, 594 U.S. at 425, between (a) the newly created
statutory injury (in this case, the FCRA injury, of improperly
accessing certain personal records) and (b) an analogous and old
common-law cause of action (like the tort of intrusion upon
seclusion).
Other cases suggest another way forward.
Under this second approach, the plaintiff’s alleged injury is
compared to a “traditional” harm. See, e.g., Calogero v. Shows,
Cali & Walsh, L.L.P., 95 F.4th 951, 958 (5th Cir. 2024); Muccio
v. Glob. Motivation, Inc., 2023 WL 5499968, at *1 (11th Cir.
Aug. 25, 2023); Drazen v. Pinto, 74 F.4th 1336, 1339 (11th Cir.
2023); Dickson v. Direct Energy, LP, 69 F.4th 338, 346 (6th Cir.
2023); Charlton-Perkins v. Univ. of Cincinnati, 35 F.4th 1053,
1060 & n.5 (6th Cir. 2022); Seale v. Peacock, 32 F.4th 1011,
1020 (10th Cir. 2022); Persinger v. Sw. Credit Sys., L.P., 20
F.4th 1184, 1191 (7th Cir. 2021); Gerber v. Herskovitz, 14 F.4th
500, 506 (6th Cir. 2021); Ward v. Nat’l Patient Acct. Servs.
Sols., Inc., 9 F.4th 357, 362 (6th Cir. 2021); Krakauer v. Dish
Network, L.L.C., 925 F.3d 643, 653–54 (4th Cir. 2019); Robins v.
Spokeo, Inc., 867 F.3d 1108, 1115 (9th Cir. 2017); cf. Hunstein,
48 F.4th at 1267–68 (Newsom, J., dissenting).
On this approach, a court zeroes in on the “relationship,”
TransUnion, 594 U.S. at 425, between (a) the newly created
statutory injury and (b) an analogous and old harm that the law
has aimed to protect against (like reputational harm or the harm
associated with invasion of privacy). 7

The Supreme Court’s leading case has some language that might
be taken to support both the first approach and the second one.
Compare TransUnion, 594 U.S. at 425 (suggesting what is
traditional is intrusion upon seclusion, an old common-law cause
of action) with id. (suggesting what is traditional is
“reputational harm[]”). And the language of other cases also
suggests blending. Compare, e.g., Laufer v. Arpan LLC, 29 F.4th
1268, 1272 (11th Cir. 2022) (plaintiff’s “alleged injury . . .
bears no ‘close relationship’ to any traditional common-law
cause of action”) with id. at 1274 (“emotional injury . . . is a
concrete harm”) vacated, 77 F.4th 1366 (11th Cir. 2023).
7

5

In short: there are two basic types of approaches --- one
focused on traditional causes of action, the other on
traditional harms.8
There was a time before the Supreme Court’s TransUnion decision
when the Third Circuit seemed to lean toward the first approach.
See Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879, 890–

There are potentially meaningful differences between these.
For example, under the first approach the initial question for a
court is mechanical: what are the elements of the traditional
cause of action for, say, intrusion upon seclusion? From there,
the question shifts to asking whether Congress, in creating a
new injury, abstracted too far away from the traditional tort.
(This is somewhat akin to asking whether Congress veered too far
from the underlying Fourteenth Amendment right in using its
powers under Section 5 of that Amendment. See City of Boerne v.
Flores, 521 U.S. 507, 519–20 (1997).) Under the second
approach, it would seem that the court is expected to start off
in a more open-textured way, by abstracting away from
traditional causes of action and asking what “harm” they
together meant to be tackling. For example, a family of related
torts --- intrusion upon seclusion, appropriation of name or
likeness, publicity given to private life, and false light --might be understood to aim at a broader legal interest, in
preventing harms associated with invasion of privacy. See
Restatement (Second) of Torts § 652A (1977) (suggesting this).
(In some sense, going down this road may be a bit like asking
whether individual constitutional rights aggregate up to a
broader right, an approach sometimes associated with Griswold v.
Connecticut, 381 U.S. 479 (1965).) From there, the question
becomes whether in creating a new injury Congress abstracted too
far away from the underlying harm. In a nutshell: on the first
approach, the anchor is a traditional cause of action, and the
question is whether Congress abstracted too far away from it; on
the second approach, the court starts off by itself abstracting
away from traditional causes of action to articulate a
traditional and anchoring harm --- and then asks whether
Congress abstracted too far away from that harm. These two
approaches may sometimes generate different results. In some
cases, for example, the second approach may give Congress more
room to create new Article III injuries --- because the baseline
set by a traditional harm like invasion of privacy may be
broader than the baseline that would be set by any one of its
various constituent-part torts.
8

6

91 (3d Cir. 2020); Kamal v. J. Crew Grp., Inc., 918 F.3d 102,
114 (3d Cir. 2019).
But the Third Circuit has now held that the second approach,
focused on harm, is the one to follow: “we focus our inquiry
solely on the harm.” Barclift v. Keystone Credit Servs., LLC,
93 F.4th 136, 146 n.4 (3d Cir. 2024). And per the Third
Circuit, that “approach is not an exercise in element-matching.”
Id. Rather, courts within the Third Circuit are to look to a
traditional category of harm (in Barclift: the “privacy harm
traditionally associated with public disclosure,” id. at 146)
and ask about the extent to which a plaintiff’s injury relates
to it.
B.

Analysis

Against the backdrop of the governing legal principles, see Part
II.A, come back now to this case.
Does the Plaintiffs’ injury closely relate to a traditional
harm?
The Court’s conclusion: yes.
The Plaintiffs allege that the Defendant improperly accessed
their private financial information. See Complaint ¶¶ 54, 65,
76.9
As alleged, this is plainly an invasion of privacy.
And an invasion of privacy is a traditional harm. See DiNaples
v. MRS BPO, LLC, 934 F.3d 275, 280 (3d Cir. 2019) (invasion of
In thinking through standing, a court does not assess whether
a plaintiff’s claim works on the merits. Rather, the court
takes the claim as valid and asks whether the injury it
allegedly causes can be counted as “concrete” for Article III
purposes. See Warth v. Seldin, 422 U.S. 490, 500 (1975);
Falcone v. Dickstein, 92 F.4th 193, 202–03 (3d Cir.), cert.
denied sub nom. Murray-Nolan v. Rubin, 144 S. Ct. 2560 (2024);
Dunne v. Elton Corp., 2024 WL 4224619, at *5 n.15 (3d Cir. Sept.
18, 2024); Cottrell v. Alcon Lab’ys, 874 F.3d 154, 162 (3d Cir.
2017); Parker v. Dist. of Columbia, 478 F.3d 370, 377 (D.C. Cir.
2007), aff’d sub nom. Dist. of Columbia v. Heller, 554 U.S. 570
(2008); Joyce v. Jaguar Land Rover N. Am., LLC, 2025 WL 675888,
at *3, *5 n.12 (D.N.J. Mar. 3, 2025).
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7

privacy is a “harm that has traditionally been regarded as
providing a basis for a lawsuit in English and American courts”)
(quoting St. Pierre v. Retrieval-Masters Creditors Bureau, Inc.,
898 F.3d 351, 357–58 (3d Cir. 2018)); In re Nickelodeon Consumer
Priv. Litig., 827 F.3d 262, 274 (3d Cir. 2016) (similar); cf.
U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489
U.S. 749, 763 (1989) (noting that the common law protected an
individual’s control of his or her personal information).
*

*

*

And note: not only does the Plaintiffs’ alleged injury amount to
a traditional harm, as noted just above --- it is also closely
analogous to an old cause of action, the tort of intrusion upon
seclusion.10
That tort is traditional. See TransUnion, 594 U.S. at 425; see
also Church, 704 F. Supp. 3d at 527 (intrusion upon seclusion
“has long been burrowed deep in American law”).
And it is clearly implicated here.
To see why, note that at common law a suit for intrusion upon
seclusion could be brought against one “who intentionally
intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, . . .
if the intrusion would be highly offensive to a reasonable
person.” Restatement (Second) of Torts § 652B.
The tort covers direct intrusions on seclusion; for example,
when someone opens a neighbor’s mail. See id. at cmt. b (citing
Vernars v. Young, 539 F.2d 966 (3d Cir. 1976) (Pennsylvania
law)).
And it also covers indirect intrusions, in which the alleged
intrusion runs through a third-party intermediary --- as when A
intrudes on B’s “seclusion” by improperly obtaining B’s private
information from C (“the bank”):
A is seeking evidence for use in a civil
action he is bringing against B. He goes to
This means that the Plaintiffs’ injury is traditional under
the harm approach that has been adopted by the Third Circuit,
see Barclift, 93 F.4th at 146 --- and would also clear the bar
under the other approach, the cause of action approach. See
Part II.A.
10

8

the bank in which B has his personal
account, exhibits a forged court order, and
demands to be allowed to examine the bank’s
records of the account. The bank submits to
the order and permits him to do so. A has
invaded B’s privacy.
Id. at illus. 4.
That is this case. The Defendant allegedly intruded on the
Plaintiffs’ seclusion by improperly obtaining their financial
records from a third-party entity that held them, the creditreporting agency. See Complaint ¶¶ 16, 33, 61–62, 70–71.
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*

Bottom line: the alleged FCRA injury here is anchored to a
traditional harm, invasion of privacy --- and also to a
traditional cause of action, intrusion upon seclusion.
And that FCRA injury is tightly enough linked to the relevant
traditional harm (and, for that matter, to the relevant
traditional cause of action) to confer Article III standing.
See Persinger, 20 F.4th at 1189–93 (holding that there was an
Article III injury in a § 1681b(f) lawsuit based on the same
alleged injury at issue here, accessing credit information via a
credit-reporting agency); Nayab v. Cap. One Bank (USA), N.A.,
942 F.3d 480, 489–93 (9th Cir. 2019) (same). 11

Note that this is not a case in which an entity allegedly
broke a legal obligation about how to handle information --- but
nothing came of the mishandling. In that situation, a plaintiff
almost surely has no standing. See TransUnion, 594 U.S. at 440;
Spokeo, 578 U.S. at 342. Here, there was an alleged failure to
properly request private information. See Complaint ¶¶ 16, 33,
61–62, 70–71. But because of that, something allegedly happened
to the Plaintiffs --- there was an injurious consequence for
them, their information was handed over to a third party, the
Defendant. That downstream consequence is critical for Article
III purposes. See TransUnion, 594 U.S. at 440; Nayab, 942 F.3d
at 490. It marks the border between unlawfulness that for a
particular plaintiff is just “in the air,” Palsgraf v. Long
Island R. Co., 248 N.Y. 339, 341 (1928), in that it does not
injure him --- and unlawfulness that does. In the former
situation: no standing. See TransUnion, 594 U.S. at 440; see
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III. The Merits
Move now to an assessment of the merits of the Defendant’s Rule
12(c) motion.
To do so, start with the relevant legal background, see Part
III.A, and then look to this case. See Part III.B.
A.

“Firm Offers”

Per the FCRA, a creditor (like the Defendant-bank here) can
access a person’s credit report. See 15 U.S.C.
§ 1681b(c)(1)(B)(i).
But to access the report, the creditor must be gearing up to
make that person a “firm offer of credit.” Id.; see generally
Anigbogu v. Midland Credit Mgmt., Inc., 2025 WL 247592, at *2
(D.N.J. Jan. 16, 2025).
What is a “firm offer”?
It is an offer that is locked in, pending a last bit of
verification. In particular, by making a firm offer the
creditor becomes obligated to actually extend the offered-up
credit --- contingent only on the creditor verifying that the
recipient of the offer meets the screening criteria the creditor
used to make the offer in the first place. See 15 U.S.C.
§ 1681a(l).
So for example, a bank can ask a credit-reporting agency for the
reports of all consumers who live in New Jersey --- but only if
it will actually extend each of them credit, with the only
contingency being that “the verification checks out,” Gelman v.
State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 195 (3d Cir.
2009), that the front-end criteria (we want New Jersey
residents) matches the back-end reality (are the people we sent
offers to actually New Jersey residents?).

generally Joyce, 2025 WL 675888, at *3 n.11 (explaining part of
why). In the latter situation: standing, see TransUnion, 594
U.S. at 439, if the injury is of the right sort (traditional,
etc.). See id. at 423–30.

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B.

Analysis

In this case, the Defendant moves for judgment on the pleadings
on the argument that it made the Plaintiffs firm credit card
offers --- and for the purpose of making them, was allowed to
access their credit reports. See Renewed Motion at 11–12.
In response, the Plaintiffs put forward various reasons why the
offers were not firm, including that the Defendant conditioned
the offers on criteria that are disallowed by the FCRA. See
Opposition Brief at 12–16.
The Defendant’s reply amounts to this: the conditions were
allowed, in part, because they were used to verify that the
people who got offers (like the Plaintiffs) met the criteria
used in the first place to decide who to reach out to. See
Reply Brief at 9–11.
But this last argument cannot work, at least for now.
The reason: the premise of the argument is that there was a
match between the Defendant’s front-end selection criteria and
its back-end verification conditions --- but the materials
before the Court say nothing about the Defendant’s up-front
selection criteria.
This hole in the record makes judgment on the pleadings
impossible, regardless of whether the Defendant’s argument might
or might not otherwise be persuasive.
*

*

*

How to proceed in light of the above?
One way is to consider allowing the Defendant to amend its
answer, so that information as to its criteria is in the
pleadings --- and can therefore be relied on in a subsequent
Rule 12(c) motion. This may make sense, given that the
Plaintiffs made their improper-conditions argument after the
answer was filed. Compare Opposition Brief (June 3, 2024) at
12–16 (making this argument) with Amended Answer (Jan. 26,
2024).
Another possibility is to allow for tightly targeted discovery
and then a focused summary-judgment motion or motions. That is

11