Strubel v. Capital One Bank (USA), N.A.

Filing 57

MEMORANDUM AND ORDER. For the reasons set forth above, Strubel's motion for summary judgment on liability is denied, and Capital One's motion is granted. This resolves Dkt. Nos. 27 and 31. The Clerk of Court is instructed to close the case. Denying 31 Motion for Summary Judgment; Granting 27 Motion for Summary Judgment. (Signed by Judge Alison J. Nathan on 3/29/2016) (rjm)

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.- ,

USl>CSDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

. DOCUMENT

· ELECTRONICALLY FILED
DOC #:
--.. . .
.. . . .
DATE FILED:

Abigail Strubel,

MAR 29 201?

Plaintiff,
14-cv-5998 (AJN)

-vMEMORANDUM &
ORDER

Capital One Bank (USA), N.A.,
Defendant.

ALISON J. NA THAN, District Judge:
Plaintiff Abigail Strubel brings this putative class action against Capital One Bank
(USA), N.A. ("Capital One") for violating the Truth in Lending Act, 15 U.S.C. § 1601 et seq.
("TILA"). Strubel alleges that Capital One sent her a credit card solicitation accompanied by
disclosures that failed to comply with TILA and with its implementing regulation, 12 C.F.R. Pt.
1026 ("Regulation Z"). Both parties moved for summary judgment. For the reasons set forth
below, Strubel's motion is DENIED, and Capital One's motion is GRANTED.
I.

Background
A. Statutory and Regulatory Context

Congress passed TILA in 1968 to ensure "a meaningful disclosure of credit terms so that
the consumer will be able to compare more readily the various credit terms available to him and
avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair
credit billing and credit card practices." 15 U.S.C. § 1601(a). To achieve these goals, TILA
contains a variety of mandatory disclosures that creditors must make to consumers both prior to
the establishment of any legal obligations, and at specified points in the creditor-consumer
relationship. Rossman v. Fleet Bank (R.J) Nat'! Ass 'n, 280 F.3d 384, 389 (3d Cir. 2002). The
Act grants rulemaking authority to the Consumer Financial Protection Bureau ("CFPB"). 15

1

U.S.C. § 1604(a). Prior to 2011, TILA's rulemaking authority was delegated to the Board of
Governors of the Federal Reserve ("the Board"). Strubel v. Comenity Bank, No. 13-cv-4462,
2015 WL 321859, at *3 (S.D.N.Y. Jan. 23, 2015); 12 U.S.C. §§ 5581-82. Regulation under
TILA "may contain such additional requirements ... as in the judgment of the [CFPB] are
necessary or proper to effectuate the purposes of [TILA], to prevent circumvention or evasion
thereof, or to facilitate compliance therewith." 15 U.S.C. § 1604(a). All required disclosures
under TILA must be made "clearly and conspicuously, in accordance with regulations of the
[CFPB]." Id. § 1632(a).
The Fair Credit and Charge Card Disclosure Act of 1988, Pub. L. No. 100-583, 102 Stat.
2960, added a requirement that credit card issuers provide standardized information relating to
interest rates and fees on credit card applications and solicitations. 15 U.S.C. § 1637(c). These
disclosures must be made in a tabular format known as the "Schumer Box," after its chief
proponent, Senator Charles Schumer. Roberts v. Fleet Bank (R.1), 342 F.3d 260, 263 n.1 (3d
Cir. 2003). The Schumer Box disclosures must be "disclosed in the form and manner which the
Board shall prescribe by regulations." 15 U.S.C. § 1632(c)(l)(A); see also id. § 1637(c)(l)(A).
TILA contains a private right of action that provides statutory damages for violations of many
disclosure obligations, including those related to the Schumer Box. Id. § 1640(a).
The Board's (now the CFPB's) Regulation Z implements TILA's disclosure
requirements, including credit card solicitation disclosures. See generally 12 C.F.R. § 1026.60.

It specifies the disclosures that must be placed in the Schumer Box's tabular format, as well as
three disclosures that must be placed directly beneath the box. Id. The annual percentage rate,
which must be disclosed in the Schumer Box, must be in at least 16-point type. Id.
§ 1026.60(b)(1 ). Regulation Z also requires that credit card disclosures be made "clearly and

conspicuously." Id. § 1026.5(a)(l)(i). In an appendix, the CFPB provides a model form for
Schumer Box disclosures (Form G-lO(A)), as well as two sample forms (G-lO(B) and G-lO(C))
(collectively "model forms"). Regulation Z requires that the Schumer Box disclosures have

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"headings, content, and format substantially similar" to the G-10 model forms in Appendix G.

Id. § 1026.60(a)(2)(i).
The Board created (and the CFPB in relevant part adopted) Official Staff Commentary
("Commentary") elaborating on Regulation Z. The Commentary interprets the "clear and
conspicuous" standard present in both TILA and Regulation Z. For most disclosures, the
Commentary interprets "clear and conspicuous" to require that the information be presented "in a
reasonably understandable form." 12 C.F.R. Pt. 1026, Supp. I cmt. ("Comment") 5(a)(l)-1;
Comment 17(a)(l)-l. In the case of disclosures accompanying credit card solicitations, however,
the Commentary interprets the standard as requiring something more stringent: that disclosures
be both "in a reasonably understandable form" and "readily noticeable to the consumer."
Comment 5(a)(l)-l. The "reasonably understandable form" standard "does not require that
disclosures be segregated from other material or located in any particular place on the disclosure
statement, or that numerical amounts or percentages be in any particular type size." Comment
5(a)(l)-2. However, the "readily noticeable" standard requires that disclosures "be given in a
minimum of 10-point font." Comment 5(a)(l)-3.
The Commentary states that while use of model forms and clauses grants a safe harbor
from liability, solicitation disclosures need not be identical to the model forms. Comment apps.
G & H-1. However, the Commentary requires (paraphrasing Regulation Z) that any creditor
choosing to eschew Form G-1 O(A) must provide disclosures "substantially similar in sequence
and format" to the model forms. Comment app. G-5.ii. The Commentary notes that although the
model forms are designed to be printed on an 8 12 x 14 inch sheet of paper, "creditors are not
required to use a certain paper size" in making these disclosures. Comment app. G-5.v. Finally,
the Commentary details at some length the formatting techniques used by the CFPB to ensure
that its model forms are "readable:"
A. A readable font style and font size (IO-point Arial font style, except for the
purchase annual percentage rate which is shown in 16-point type).

B. Sufficient spacing between lines of the text.

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C. Adequate spacing between paragraphs when several pieces of information
were included in the same row of the table, as appropriate ....
D. Standard spacing between words and characters. In other words, the text was
not compressed to appear smaller than 10-point type.
E. Sufficient white space around the text of the information in each row, by
providing sufficient margins above, below and to the sides of the text.
F. Sufficient contrast between the text and the background. Generally, black text
was used on white paper.

Id. The Commentary explains that while creditors are not required to follow the same
formatting used in the creation of the model forms ("except for the 10-point and 16-point
font requirement"), the CFPB "encourages issuers to consider these techniques when
deciding how to disclose information in the table, to ensure that the information is
presented in a readable format." Comment app. G-5.vi.

B. Factual and Procedural Background
Plaintiff Abigail Strubel received an application for a CapitalOne VentureOne card by
mail in August 2013. Def.'s Response to Pl.'s Rule 56.1 Statement ("Def.'s 56.l

Resp.")~

She applied for the card, was approved, and made a purchase with it. Def.' s 56.1 Resp.

~~

1.

4-6.

The application Strubel received from Capital One included a one-page sheet of
disclosures (the "Disclosures"). Pl. 's Response to Def. 's Rule 56.1 Statement ("Pl. 's 56.1
Resp.")~

8; see Schaeffer Deel. Ex. A. The Disclosures consisted of the Schumer Box, TILA-

mandated disclosures required to sit beneath the Schumer Box, and twenty-eight lines of
additional disclosures that Capital One chose to add below them. Def. 's 56.1
56.1

Resp.~~

Resp.~

37; Pl. 's

8-9; see Schaeffer Deel. Ex. A. The Disclosures were printed in a font called ITC

Garamond Light Condensed BT ("Garamond LC") in 10- and 16-point type. Pl.'s 56.l Resp.
~~

10-11. In formatting the Disclosures, Capital One used techniques called "leading" and

"tracking" to reduce the whitespace between letters, words, and lines of text. Pl. 's 56.1 Resp.
~~

13-14.
On July 31, 2014, Strubel filed this putative class action alleging that the Disclosures

violate TILA because they are not "clear and conspicuous," and do not comply with formatting

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requirements imposed by Regulation Z. Dkt. No. 1. On November 24, 2015, the Court entered a
case management plan bifurcating the issue of liability from the issues of damages and class
certification. Dkt. No. 15. The parties filed cross-motions for summary judgment on the issue of
liability, and the Court turns to them now.

II.

Request for Stay
As an initial matter, Capital One asks the Court not to decide the motions currently

pending before it in this case until the Supreme Court issues a decision in Spokeo, Inc. v. Robins,
No. 13-1339. Def.'s S.J. Br. at 19-21. The Supreme Court granted certiorari in Spokeo to
decide whether Congress can confer A1iicle III standing on a plaintiff who has suffered no
concrete harm by authorizing a private right of action based on a violation of a federal statute.
The only injury Strubel mentions in her complaint is a violation of her statutory right to
disclosure under TILA. Compl.

~

40. If the Supreme Court were to rule in Spokeo that statutory

rights cannot confer Article III standing, this Court would likely determine that Strubel lacks
standing to pursue her claim.
Although Capital One does not argue that Strubel lacks standing under current law, lack
of standing is a defect in subject matter jurisdiction. All. For Envtl. Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). Federal courts must determine whether subject
matter jurisdiction is present-sua sponte if necessary-and dismiss if it is lacking. Cave v. E.
Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008). There are three elements of
Article III standing: injury in fact, causation, and redressability. Lujan v. Deft. of Wildlife, 504
U.S. 555, 560-61 (1992). The Second Circuit has explained that Article III injury "may exist
solely by virtue of statutes creating legal rights, the invasion of which creates standing. The
standing question in such cases is whether the constitutional or statutory provision on which the
claim rests properly can be understood as granting persons in the plaintiffs position a right to
judicial relief." Kendall v. Emps. Ret. Plan ofAvon Prods., 561F.3d112, 118 (2d Cir. 2009)
(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)) (internal quotation marks and brackets

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omitted). Here, TILA creates a statutory obligation of disclosure for creditors, and a private right
of action through which consumers may enforce their entitlement to those mandatory
disclosures. Thus, it is no surprise that the Second Circuit has decided cases involving private
suits to enforce TILA's disclosure provisions without questioning plaintiffs' standing. See

Gambardella v. G. Fox & Co., 716 F.2d 104, 108 n.4 (2d Cir. 1983) ("It is well settled, however,
that proof of actual deception or damages is unnecessary to a recovery of statutory damages
under [TILA].").
The Supreme Court's grant of certiorari in Spokeo does not alter this analysis. At this
point, the Court has no way of telling whether or not the decision in Spokeo will benefit either
party in this case. And "a grant of certiorari does not effect new law, and has no precedential
value." United States v. Brooks, No. 06-CR-550 (S-l)(JS), 2009 WL 3644122, at *12 (E.D.N.Y.
Oct. 27, 2009) (citing Ritter v. Thigpen, 828 F .2d 662, 665-66 (11th Cir. 1987); Shaw v. Delta

Air Lines, Inc., 463 U.S. 85, 94 n. 11 (1983)). Capital One provides no argument or authority for
why all litigation involving statutorily-created injuries should grind to a halt nation-wide pending
the decision in Spokeo (or alternatively, for why this case in paiiicular should be stayed).
Accordingly, the Court declines to stay this case and proceeds to the merits of the parties'
arguments. See Speer v. Whole Food Mkt. Grp., Inc., No. 8:14-CV-3035-T-26TBM, 2015 WL
2061665, at *l (M.D. Fla. Apr. 29, 2015) (declining to stay case until Spokeo is decided).

III.

Summary Judgment
Strubel argues that the Disclosures fail to comply with TILA and Regulation Z for two

reasons. First, she argues that the Disclosures are not "clear and conspicuous" because they are
not "readily noticeable." Although the Disclosures are printed in 10-point type, Strubel argues
that this is insufficient to meet the requirements imposed by Comment 5(a)(l) because
Garamond LC is smaller than Arial, the font used in the model forms, at any given point size.
Second, Strubel argues that Capital One's formatting choices degraded the readability of the

6

Disclosures to the point that they are no longer "substantially similar" to the model forms in
Appendix Gas required by 12 C.F.R. § 1026.60(a)(2) and Comment app. G-5.ii.
The fact that Strubel's arguments focus on provisions of the Commentary, rather than the
text of TILA or Regulation Z, has minimal effect on the Court's analysis. The Commentary is
the CFPB' s official interpretation of its own regulation, and it warrants deference from the courts
unless "demonstrably irrational." Chase Bank USA, NA. v. McCoy, 562 U.S. 195, 211 (2011).
Capital One does not argue that that the portions of the Commentary at issue in this case are
"demonstrably irrational," and the Court will treat the Commentary as a definitive interpretation
of Regulation Z for the purposes of this opinion.

A. LegalStandard
Federal Rule of Civil Procedure 56 "allows a party to seek a judgment before trial on the
grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts
entitle the party to the judgment sought." Jackson v. Federal Express, 766 F.3d 189, 194 (2d
Cir. 2014). The Court must "grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under
the governing law," and is genuinely in dispute if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Roe v. City of Waterbury, 542 F.3d 31, 35 (2d
Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 248 (1986)).
In the absence of any dispute over the language or format of information disclosed to
consumers, the question of whether "required disclosures have been made clearly and
conspicuously" under TILA is a question of law to be resolved by the Court and not by a jury.

Gambardella v. G. Fox & Co., 716 F.2d 104, 113 (2d Cir. 1983). Conspicuousness is a question
of law "not because judges are experts at graphic design, but because subjecting conspicuousness
to fact-finding would introduce too much uncertainty into the drafting process." In re Bassett,
285 F.3d 882, 885 (9th Cir. 2002); see also Smith v. Check-N-Go of Ill., Inc., 200 F.3d 511, 515
7

(7th Cir. 1999) (observing that if conspicuousness were a matter of fact, then lenders using
identical forms could have inconsistent outcomes at trial). The same principle applies to the
issue of whether a disclosure is substantially similar to a model form. See, e.g., Karakus v. Wells
Fargo Bank, N.A., 941 F. Supp. 2d 318, 327-33 (E.D.N.Y. 2013) (resolving substantial

similarity question as a matter oflaw on motion to dismiss). The Court evaluates the adequacy
of TILA disclosures "from the vantage point of a hypothetical average consumer-a consumer
who is neither particularly sophisticated nor particularly dense." Id. at 330 (quoting Palmer v.
Champion Mortg., 465 F.3d 24, 28 (1st Cir. 2006)); see also Schwartz v. Comenity Capital Bank,

No. 13 CIV. 4869 JGK, 2015 WL 410321, at *8 (S.D.N.Y. Feb. 2, 2015). Under Second Circuit
law, TILA "does not require perfect disclosure, but only disclosure which clearly reveals to
consumers the cost of credit." Gambardella, 716 F.2d at 118.
Both parties in this case agree that there are no disputed issues of material fact, and ask
the Court to resolve Strubel's claims as a matter of law. See Capital One S.J. Opp. at 3; Strubel
S.J. Br. at 18.
B. Whether the Disclosures Are "Clear and Conspicuous"
The first question before the Court is whether the Disclosures are "clear and
conspicuous" within the meaning of TILA and Regulation Z. In the context of credit card
solicitation disclosures, Comment 5(a)(l )-1 interprets the "clear and conspicuous" standard to
require that disclosures be in a "in a reasonably understandable form" and "readily noticeable to
the consumer." As applied to the visual appearance of text, the "reasonably understandable
form" standard appears to require only that the text be legible. Comment 17(a)(l)-1; see
Comment 5(a)(l )-2. The "readily noticeable" standard is not separately defined, but includes a
requirement that credit card solicitation disclosures be printed in 10-point font. Comment
5(a)(l)-3.

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1. The Disclosures Are "Clear and Conspicuous" On Their Face

The Court has evaluated the Disclosures (attached to this opinion as Appendix A), and
concludes that they are clear and conspicuous from the perspective of a "hypothetical average
consumer." Karakus, 941 F. Supp. 2d at 330. The text in the Disclosures is large enough and
clear enough to be legible and readily noticeable. And as required by the "readily noticeable"
standard, it is set in 10-point type. There is sufficient white space separating the letters, words,
and lines of text so that they can be easily distinguished. The text is printed in black ink on a
white background (except for the headers, which reverse the coloring), creating adequate contrast
for the reader. The forms of the letters have standard shapes, and the font is not so stylized as to
obscure the content of the text. The Disclosures use bolding, underlining, and bullet points to
pick out headings, and to emphasize where one disclosure ends and another begins. The vast
majority of required information in the Disclosures is presented in the Schumer Box, whose cells
serve to separate, highlight, and identify each item. Key numbers are bolded, and some are
printed in significantly larger font than the surrounding text, making them draw the reader's eye.
Furthermore, the Disclosures are a far cry from those cases where courts have found text to be so
difficult to read as to be not clear and conspicuous as a matter of law. See Cole v. US. Capital,
389 F.3d 719, 731 (7th Cir. 2004) (text was not conspicuous as a matter oflaw where "its size
approaches that which cannot be read with the naked eye"); Lifanda v. Elmhurst Dodge, Inc.,
237 F.3d 803, 808 (7th Cir. 2001) (text was not conspicuous as a matter of law because it was
"so minuscule as to be barely legible"). In sum, the Court concludes from its examination of the
Disclosures that they are "clear and conspicuous" to a hypothetical average consumer.
2. The Text of the Disclosures is Sufficiently Large
Strubel argues that the Disclosures are not "clear and conspicuous" within the meaning of
TILA or Regulation Z because they are not "readily noticeable" as required by Comment 5( a)(l )1. Specifically, she claims that the Disclosures are not "readily noticeable" because they do not
comply with the Commentary's minimum font size requirement. It is undisputed that the
9

Disclosures are printed in 10-point type (except where required to be in 16-point type), as
required by the Commentary. Pl. 's 56.1 Resp.~ 11. However, it is also undisputed that the
Disclosures were printed in a font, Garamond LC, that is smaller than Arial, the font used in the
model forms, at any given point size. See id.

~~

11-12.

This is so because although font size is measured in points, a font's point size does not
actually correspond to the size of the printed characters. Phinney Report at 13-15. In fact, the
relationship between a font's point measurement and the size of its printed characters is arbitrary.
Id. The only restriction is that the ratio of point size to letter size must remain constant. See id.
Thus, a font printed in 11-point type will be always be 10% larger than the same font printed in
10-point type-but the size of the printed letters at 11 points can be whatever the designer
wishes. See id.
For instance, this sentence is written in Times New Roman in 12-point type. This

sentence is written in Arial in 12-point type. This sentence is written in 12-point type in
Monot:ype Garamond, a member of the Garamond family of fonts that also includes Garamond LC.
This sentence is written in Angsana New in 12-point type.

Strubel's claim is that while the Disclosures were nominally in 10-point type, the font
size requirement cannot be met by simply setting any font in 10-point type, because that would
be too easily evaded. It would be simple to obtain or create a font whose printed characters are
extremely small when set to 10 points. Instead, she argues that Comment app. G-5 should be
read to require that disclosures be printed either in Arial (the typeface used in the model forms),
or in a typeface whose characters are no smaller than those of 10-point Arial. Strubel S.J. Br. at
14.

a. Interpreting the Font Size Requirement
The Court finds Strubel's reading of the Commentary's font size requirement to require
Arial or a font no smaller than Arial to be unpersuasive. Strubel bases her argument on
Comment app. G-5.v's list of techniques used by the CFPB to ensure that the model forms are
10

"readable." Comment app. G-5.v.A states that the model forms employ "[a] readable font style
and font size (10-point Arial font style, except for the purchase annual percentage rate which is
shown in 16-point type)." From this language, Strubel draws the conclusion that when the
Commentary speaks of 10-point font, the CFPB is envisioning 10-point Arial, or at least text the
same size as 10-point Arial. Strubel S.J. Br. at 13-15. However, at the bottom of the list of
formatting techniques, the Commentary explains that "the [CFPB] is not requiring issuers to use
the above formatting techniques in presenting information in the table (except for the 10-point
and 16-point font requirement)." Comment app. G-5.vi. The portion of the Commentary on
which Strubel relies differentiates font style from font size, and the lines quoted in the previous
sentence make clear that only the latter is required.
Agencies that seek to impose font style restrictions are quite capable of doing so.
Numerous examples are available in the Code of Federal Regulations. Some disclosure
regulations specify font and point size, see, e.g., 16 C.F.R. § 1615.l(o)(lO)(ii) (warning text
"must be 11 point Arial/Helvetica"), others require fonts "equivalent" to the sample font, see,

e.g., 16 C.F.R. § 305.1 l(b) ("The Arial series typeface or equivalent shall be used exclusively on
the label."), while the most detailed offer specifications for the size of printed letters, see, e.g., 37
C.F.R. § 1.58(c) (font "must be chosen from a block (nonscript) type font or lettering style
having capital letters which should be at least 0.422 cm. (0.166 inch) high (e.g., preferably Arial,
Times Roman, or Courier with a font size of 12), but may be no smaller than 0.21 cm. (0.08
inch) high (e.g., a font size of 6)"). The Commentary includes no such language in any of its
variations.
Strubel' s argument that the 10-point font size requirement cannot accommodate any
variation in printed character size due to font style is further undermined by evidence from the
Federal Register. In formulating the relevant portion of the Commentary, the Board selected a
10-point font size to be consistent with a standard developed by an interagency process (in which
the Board participated) to design model privacy disclosure forms required under the GrammLeach-Bliley Act, 15 U.S.C. § 6803(e)(2)(D). Truth in Lending, 74 Fed. Reg. 5244, 5269 (Jan.
11

29, 2009). The interagency proposal referenced by the Board explicitly acknowledged that the
size of printed letters at a given point size varies by font style. It stated that
The readability of type size is highly dependent on the selection of the type style. Some
styles in 10-point font are more readable than others in 12-point font and appear larger
because of their design. Accordingly, the Agencies are proposing 10-point type size as
the minimum size for use on the model form.
Interagency Proposal for Model Privacy Form Under the Gramm-Leach-Bliley Act (the
"Interagency Proposal"), 72 Fed. Reg. 14940, 14954 (Mar. 29, 2007). The Interagency Proposal
explains that the font size requirement is not accompanied by a requirement to use "a particular
type style or x-height." Id. "X-height" refers to a font's lowercase letter body height, measured
as the height of a lowercase x. Id. at 14954 n.40. The Interagency Proposal offers guidance
suggesting that fonts with smaller x-heights be printed in larger than 10-point font, but this is
explicitly guidance rather than a requirement. See id. at 14954.
The Court's rejection of Strubel' s interpretation does not give creditors carte blanc he to
vitiate the font size requirement through the use of fonts that produce tiny printed characters
when set in 10-point type. The Commentary's requirement that a "readily noticeable" disclosure
be in 10-point type implies a lower bound for printed character size, because regulating the size
of text is the only conceivable purpose behind setting a font size requirement. The Board
employed a font size requirement based on its determination that a set font size was "needed to
highlight for consumers the importance and significance of the disclosures." 74 Fed. Reg. at
5269. The Commentary treats font size as the most important element of textual formatting in
the adequacy of disclosures. The 10-point font size was the only specific requirement that the
Board added to the "readily noticeable" standard. See Comment 5(a)(l)-3. In Comment app. G5, the Board detailed a laundry list of formatting choices used to enhance readability, but only
font size is mandatory. A font size requirement for the annual percentage rate and other critical
numbers in credit card solicitations is specifically mandated by Regulation Z. See 12 C.F.R
§ 1026.60(b)(1 ). Given the emphasis on font size as a means of ensuring that disclosures are
12

brought to consumers' notice, the Court will not read the "readily noticeable" standard to permit
text of any printed size so long as it is nominally set in 10-point type. The "readily noticeable"
standard must be interpreted in light of the 10-point font requirement so as to require printed text
that is not unreasonably small. However, as explained below, to reflect the diversity of
permissible fonts, "unreasonably small" must be evaluated with reference to the range of sizes of
standard or commonly-used fonts set in 10-point type.

b. Applying the Font Size Requirement
Application of the preceding analysis is consistent with the Court's determination that the
text in the Disclosures is "readily noticeable." The Disclosures are set in 10-point type, as
required by the Commentary. See Comment 5(a)(l)-3. Although the text of the Disclosures,
printed in Garamond LC, is physically smaller than the Arial text of the model forms, the Court
cannot say that the Disclosures' text is unreasonably small compared to Arial, or to other
commonly-used fonts set in 10-point type. Nor, as noted above, is the text is so small that it
would not be readily noticeable to a hypothetical average consumer. Strubel does not claim
otherwise. Strubel argues that Garamond LC is a smaller font than Arial, but nowhere suggests
that Garamond LC is unreasonably small, or outside the range of size variation among
commonly-used fonts. Neither does she provide any case law, under TILA or under any statute
or regulation, state or federal, in which a font of similar dimensions to Garamond LC was held to
be too small when set at a required point size.
In fact, there is reason to believe that Garamond LC is within the range contemplated by
the Commentary. The Interagency Proposal, on which the Commentary based its font size
requirement, offers a list of a number of fonts that meet its guidelines. Included on this list is
Garamond, the font family of which Garamond LC is a member. 72 Fed. Reg. at 14954.
Although Strubel's expert discusses the relationship between Garamond LC and other Garamond
fonts, neither he nor Strubel suggest that Garamond LC has shorter letters than its relatives. See
Phinney Report at 3-4. Because the Board's font size requirement was created to match the
13

Interagency Proposal, 74 Fed. Reg. at 5269, it too encompasses the use of Garamond fonts like
Garamond LC.
Strubel's own authority strengthens this conclusion. Strubel cites to New York's law
governing point size requirements, N.Y. C.P.L.R. § 105(t), to support her claim that the
Commentary incorporates stringent requirements for printed character size. Strubel S.J. Opp. at
20. New York state law requires that to meet a point size requirement, the x-height of the printed
characters must be at least 45% of the point size. N.Y. C.P.L.R. § 105(t). However, Garamond
LC meets the size requirements of New York law. See Phinney Report at 6 (x-height of
Garamond LC is 45.41 % of point size). And Strubel points the Court to no other rule governing
point size (other than those requiring specific fonts, a restriction not present in the "readily
noticeable" standard) that would exclude Garamond LC.

C. Whether the Disclosures are "Substantially Similar" to the Model Forms
Next, the Court considers whether Capital One's formatting choices caused the
Disclosures to violate TILA's command that the Schumer Box information be "disclosed in the
form and manner which the Board shall prescribe by regulations." 15 U.S.C. § 1632(c)(l)(A);
see also id. § 1637(c)(l)(A). Specifically, Strubel claims that the Disclosures do not meet

Regulation Z's requirement that Schumer Box disclosures be presented in "the form of a table
with headings, content, and format substantially similar" to the G-10 model forms in Appendix
G, 12 C.F.R. § 1026.60(a)(2)(i), or the Commentary's similar requirement that such disclosures
"must be substantially similar in sequence and format" to the G-10 model forms, Comment app.
G-5.ii. The Court evaluates the issue of substantial similarity from the perspective of a
"hypothetical average consumer." Karakus, 941 F. Supp. 2d at 330.
Strubel argues that the Disclosures are not substantially similar to the model forms
because they are not "readable." See Strubel S.J. Br. at 16-17. Capital One also agrees that the
Disclosures must be "readable" to comply with TILA. Capital One Opp. at 11. The word
"readable" comes from language in Comment app. G-5.vi following a list of optional formatting
14

techniques including the whitespace guidance described above. Comment app. G-5.vi states that
"the [CFPB] encourages issuers to consider these techniques when deciding how to disclose
information in the table, to ensure that the information is presented in a readable format." The
parties interpret this to mean that the Disclosures must be "readable" in order to be substantially
similar to the model forms.
The Court has compared the formatting of the Disclosures to that of the model forms, and
finds them to be readable and substantially similar from the perspective of a hypothetical average
consumer. The sequence and format of the tables in the Disclosures are substantially similar to
those in model form G-10( A), and in particular almost identical to those in sample form G-1 O(B)
(attached to this opinion as Appendix B). The Disclosures and sample form G- lO(B) each
contain two tables with headers that have white text on black backgrounds, and that have bolded
text in the left column of the table. Their cells are similar in number and order, use bullet points
and balding for emphasis (in the right column) similarly, and divide text between cells similarly.
There are similar levels of contrast between the background and the text. And as in the model
form, key numbers are both bolded and set forth in a significantly larger font size than the
surrounding text.
Strubel points to three formatting choices made by Capital One that she claims make the
Disclosures not substantially similar to the model forms. However, each of the formatting
choices she identifies was specifically made optional by the CFPB. Her first complaint is that
Capital One added 28 lines of non-mandatory information beneath the mandatory disclosures
that were not included on the model forms. But Regulation Z specifically provides that "[ o]ther
information may be presented on or with an application or solicitation, provided such
information appears outside the required [Schumer Box] table"-as it does in the Disclosures.
12 C.F.R. § 1026.60(a)(2)(ii). Second, Strubel notes that the Disclosures are printed using a
smaller paper format than the model forms. However, the Commentary states that "creditors are
not required to use a certain paper size" in making credit card solicitation disclosures, and that
"[a] creditor may use a smaller sheet of paper." Comment app. G-5.v. Third, Strubel objects to
15

the fact that Capital One removed whitespace between words and characters in the Disclosures,
and between and around lines of text, making the Disclosures seem visually cramped in
comparison to the model forms. Although the Commentary explains that the CFPB designed the
model forms to include "[s]ufficient spacing between lines of the text," "standard spacing
between words and characters," and "[s]ufficient white space around the text of the information
in each row," it specifically indicates that these are not required. Id. The Commentary states
that "the [CFPB] is not requiring issuers to use the above formatting techniques in presenting
information in the table (except for the [font size requirements])." Comment app. G-5.vi.
Instead, the CFPB merely "encourages issuers to consider these techniques when deciding how
to disclose information in the table, to ensure that the information is presented in a readable
format." Id.
In conducting its substantial similarity analysis, the Court considered that the text has less
space between characters, words and lines, is printed on smaller paper, and has some additional
disclosures beneath the tables. However, because the CFPB explicitly permits creditors to
deviate from these formatting elements, the Court gave them little weight. Although the smaller
paper size and additional voluntary disclosures mean that the Schumer Box in the Disclosures is
smaller than that of the model forms, it is not so small as to reduce the Disclosures' effectiveness
or to prevent them from being in a substantially similar format. Similarly, although the text of
the Disclosures has less whitespace than the text of the model forms, there is sufficient
whitespace for the text to be clear and conspicuous, as discussed above. Furthermore, the text
most affected by the reduction in whitespace is that placed below the tables. But the vast
majority of that text consists of additional voluntary disclosures, rather than the mandatory
disclosures whose formatting is governed by Regulation Zand the Commentary. The reduction
in whitespace is not so great as to impede substantial similarity or overall readability. Taken as a
whole, then, the Court concludes that the formatting of the tables in the Disclosures is readable
and substantially similar to the formatting of the tables in the model forms, and would appear so
to a hypothetical average consumer.
16

IV.

Conclusion

For the reasons set forth above, Strubel's motion for summary judgment on liability is
denied, and Capital One's motion is granted. This resolves Dkt. Nos. 27 and 31. The Clerk of
Comi is instructed to close the case.

SO ORDERED.

Dated:

March~'

2016
New York, New York

United States District Judge

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APPENDIX A

APPENDIX B

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