With a rare dissenting opinion by two justices, the U.S. Supreme Court has denied Trans Union Corporation’s petition for a writ of certiorari. Trans Union had asked the Court to overturn the U.S. Court of Appeals for the District of Columbia Circuit’s April 2001 denial of Trans Union’s petition for review of a Federal Trade Commission (“FTC”) order prohibiting the selling of target marketing lists. This ruling establishes, for now, that target marketing lists that contain the names and addresses of individuals who meet specific credit criteria are “consumer reports” under the federal Fair Credit Reporting Act (“FCRA”). As such, these lists are subject to the “permissible purposes” limitations of the FCRA. Target marketing is not among the authorized uses of consumer reports.

    This case began with a 1992 FTC complaint alleging that Trans Union violated the FCRA by compiling lists of consumers based in whole or in part on information contained in its national consumer reporting database for sale to clients. Whether such information was used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for the issuance of credit has been the principal subject of dispute. The FTC previously determined that target marketing list selection criteria included the type of information credit grantors use for “prescreening” standards or “credit scoring models” and, therefore, included information used in establishing eligibility for credit. The Court of Appeals also rejected Trans Union’s constitutional arguments for a due process violation based on statutory vagueness or a free speech violation for lack of substantial government interest or underinclusiveness. Trans Union’s claim that the FTC decision was unsupported by substantial evidence similarly failed.

    Trans Union still has a challenge pending in the U.S. Court of Appeals for the District of Columbia Circuit defending the sale of so‑called “header information,” including name, address and Social Security number. See Individual Reference Services Group, Inc. v. FTC, 145 F. Supp.2d 6 (D. D.C. 2001).

    For more information or copies of any documents, please contact Mike Tomkies at (614) 628-1603 or [email protected] .