                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-2003

Roberts v. Fleet Bank
Precedential or Non-Precedential: Precedential

Docket No. 01-4420P




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                                    PRECEDENTIAL

                                             Filed August 27, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 01-4420


              DENISE ROBERTS, individually and
                for all others similarly situated
                                   v.
          FLEET BANK (R.I.), National Association,
        A Nationally Chartered Bank; FLEET CREDIT
       CARD SERVICES, L.P., A Rhode Island Limited
                        Partnership
                      DENISE ROBERTS, on behalf of herself
                      and all others similarly situated,
                                                       Appellant

     On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
   District Court Judge: The Honorable John P. Fullam
                (D.C. Civ. No. 00-cv-06142)

                 Argued on September 12, 2002
       Before: ALITO, FUENTES and OBERDORFER,*
                       Circuit Judges

                (Opinion Filed: August 27, 2003)




*Honorable Louis F. Oberdorfer, Senior District Judge for the District of
Columbia, sitting by designation.
                             2


                      Ira Neil Richards [Argued]
                      Gary M. Goldstein
                      Trujillo Rodriguez & Richards
                      The Penthouse
                      226 W. Rittenhouse Square
                      Philadelphia, PA 19103
                      Roberta D. Liebenberg
                      Mary L. Russell
                      Fine Kaplan & Black
                      1845 Walnut Street, 23rd Floor
                      Philadelphia, PA 19103
                      Marc H. Edelson
                      Hoffman & Edelson
                      45 W. Court Street
                      Doylestown, PA 18901
                      Counsel for Appellant
                      Alan S. Kaplinsky
                      Burt M. Rublin [Argued]
                      Ballard Spahr Andrews &
                       Ingersoll, LLP
                      1735 Market Street, 51st Floor
                      Philadelphia, PA 19103-7599
                      Counsel for Appellees


                OPINION OF THE COURT

FUENTES, Circuit Judge:
  This Truth in Lending Act case concerns a credit card
solicitation that Fleet Bank (R.I.), N.A. and Fleet Credit
Card Services, L.P. (collectively “Fleet”) sent to Appellant,
Denise Roberts, encouraging her to open an account with
Fleet based on a promise of a “7.99% Fixed” annual
percentage rate (“APR”). The solicitation stated that the
interest rate was “NOT an introductory rate” and that “[i]t
won’t go up in just a few short months.” The solicitation
also stated that “[w]ith an extraordinary 7.99% Fixed APR
. . . the Fleet Titanium MasterCard goes beyond all
expectations.” Sometime after Roberts opened her Fleet
                               3


account, the bank sent her a letter stating that it was
increasing the 7.99% fixed APR to 10.5%. Roberts brought
this class action claiming that Fleet violated the federal
Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.,
when it failed to clearly and conspicuously disclose that the
fixed-rate APR that it was offering was limited in duration
and subject to its asserted contractual right to change the
interest rate at any time. The District Court granted
summary judgment to Fleet, concluding that the materials
Fleet sent to Roberts allowed it to change the rate.
   We agree with Roberts that Fleet’s solicitation materials
could cause a reasonable consumer to be confused about
the temporal quality of the offer. We therefore believe that
a material question of fact exists as to whether the bank
made any misleading statements in the mailings to Roberts
and failed to disclose information required under the TILA
“clearly and conspicuously.” Accordingly, we reverse the
entry of summary judgment and remand for further
proceedings.

                       I.   Background
  A.   Factual
  In May 1999, Roberts received a packet of solicitation
materials from Fleet urging her to apply for its new
“Titanium     MasterCard.”      The    packet    included     an
introductory flyer, a solicitation letter, a “Pre-Qualified . . .
Invitation,” and an Initial Disclosure Statement (“IDS”). The
introductory flyer indicated that the card would have a
“7.99% Fixed APR” on both purchases and balance
transfers. Under the heading “FINANCIAL ADVANTAGES,”
the flyer again stated that the fixed APR was 7.99%.
  In addition to the flyer, the solicitation letter emphasized
that the card would carry a “7.99% Fixed APR.” The letter
further stated that the “exceptionally low 7.99%” would
apply not only to any purchases made with the card but
also to any balance transfers from existing credit card
accounts to the Titanium account. The letter twice claimed
that the 7.99% fixed APR was “NOT an introductory rate,”
and promised that “[i]t won’t go up in just a few short
months.”
                                     4


  In order to obtain the “Titanium MasterCard,” the
recipient was required to complete the “Pre-Qualified . . .
Invitation” form. The front side of the invitation indicated
that the credit card carried a “7.99% Fixed APR on
purchases and balance transfers.” On the back of the
invitation Fleet listed the “TERMS OF PRE-QUALIFIED
OFFER” and the “CONSUMER INFORMATION” sections.
The first two sentences of the “TERMS OF PRE-QUALIFIED
OFFER” stated the following:
     I request a Fleet Titanium MasterCard account upon
     acceptance of my request by Fleet Bank (RI), National
     Association in Rhode Island. I agree to the terms of the
     Cardholder Agreement mailed with my Card, including
     those which provide that the Cardholder Agreement
     and my account will be governed by Rhode Island and
     Federal law and that my Agreement terms (including
     rates) are subject to change.
   The “CONSUMER INFORMATION” section contained the
“Schumer Box,” the table of basic credit card information
required under the TILA, 15 U.S.C. § 1601 et seq., as
amended by the Fair Credit and Charge Card Disclosure
Act of 1988.1 The Schumer Box contained a column with
the heading “Annual Percentage Rate (APR) for Purchases
and Balance Transfers.” The box beneath that heading
indicated “7.99% APR” was the applicable rate. Inside the
Schumer Box, Fleet listed two specific circumstances under
which that rate could change: (1) if the prospective
cardholder failed to meet any repayment requirements; or
(2) upon closure of the account. Fleet listed no other
circumstances under which the 7.99% APR could be
changed.
  The    IDS    instructed     the       pre-approved   applicant     to

1. Although the statute contains no reference to a “Schumer Box,” the
tabular chart required under the TILA has become popularly referred to
as the “Schumer Box” in honor of the principal sponsor of the House bill,
Congressman, now Senator, Charles Schumer. See Joseph W. Gelb &
Peter N. Cubita, Credit Card Application and Solicitation Disclosure
Legislation: An Alternative to the Rate Ceiling Approach, 43 Bus. Law.
1557, 1561 (1988); Cara Schwarzkopf, Credit-Ability, Newsday, Mar. 23,
2001.
                               5


“[p]lease read this together with the TERMS OF PRE-
QUALIFIED OFFER and the CONSUMER INFORMATION
enclosed.” Under the heading “Rate Information,” the IDS
indicated that the APR for the Fleet Titanium Card would
be 7.99% for any purchases or balance transfers. Like the
Schumer Box, the IDS noted two specific circumstances
under which Fleet could change the fixed rate: (1) failure of
the prospective cardholder to meet any repayment
requirements; or (2) closure of the account. Fleet included
no other circumstances in the IDS under which it could
change the 7.99% APR.
  Roberts completed and returned the invitation to Fleet. In
June 1999, she received her Fleet Titanium MasterCard,
along with the Cardholder Agreement. Section 10 of the
Agreement, titled “Annual Percentage Rate,” indicated that
the APR would be 7.99%. In this section Fleet also
reiterated that it reserved the right to change the rate
under the circumstances described above. However, in
Section 24 of the Cardholder Agreement, titled “Change in
Terms,” Fleet stated that:
       We have the right to change any of the terms of this
       Agreement at any time. You will be given notice of a
       change as required by applicable law. Any change in
       terms governs your Account as of the effective date,
       and will, as permitted by law and at our option, apply
       both to transactions made on or after such date and to
       any outstanding Account balance.
  Fleet later sent Roberts a letter notifying her that Fleet
would be increasing the fixed-rate APR on the Titanium
MasterCard. In July 2000, thirteen months after Roberts
had received her card, Fleet increased the fixed rate APR to
10.5%.
  B.    Procedural
  On December 5, 2000, Roberts filed this class action,
asserting a claim pursuant to the TILA and claims under
Rhode Island law for violation of the Unfair Trade Practices
and Consumer Protection Act, R.I. Gen. Laws § 6-13.1-1 et
seq., breach of contract, and unjust enrichment. Fleet
moved to dismiss the TILA claim on February 12, 2001,
submitting as exhibits to the motion documents that Fleet
                              6


asserted the District Court could consider as incorporated
into the Complaint. On June 5, 2001, the District Court,
stating that “[s]ince all parties rely on matters outside the
pleadings, the motion will be treated as a motion for partial
summary judgment under FED. R. CIV. P. 56,” granted
Fleet’s motion based on its conclusion that Fleet had not
violated the disclosure requirements of the TILA. Roberts v.
Fleet Bank (R.I.), No. 00-6142, 2001 WL 892846, at *1 (E.D.
Pa. June 5, 2001). The District Court added that Roberts
was “at liberty to pursue the remaining counts of her
complaint.” Id.
  On July 3, 2001, Fleet moved for summary judgment on
the pendent state law claims. On August 22, 2001, Roberts
responded to the motion and moved for relief from the June
5, 2001 Order pursuant to FED. R. CIV. P. 60(b). In a
Memorandum and Opinion dated November 20, 2001, the
District Court treated Roberts’ motion under Rule 60(b) as
a motion for reconsideration, and declined to change its
decision on the TILA claim. The District Court also entered
summary judgment against Roberts on her state law
claims. Roberts appealed.

        II.   Jurisdiction and Standard of Review
  The District Court exercised jurisdiction over Roberts’
TILA claim pursuant to 28 U.S.C. § 1331 and supplemental
jurisdiction over Roberts’ state law claims pursuant to 28
U.S.C. § 1367. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291.
  We exercise plenary review over a district court’s grant of
summary judgment and review the facts in the light most
favorable to the party against whom summary judgment
was entered. Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d
Cir. 2000). Summary judgment is proper if there is no
genuine issue of material fact and if, viewing the facts in
the light most favorable to the non-moving party, the
moving party is entitled to judgment as a matter of law. See
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). At the summary judgment stage, the judge’s
function is not to weigh the evidence and determine the
truth of the matter, but to determine whether there is a
                               7


genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).

                      III.   Discussion
  A.   The Truth in Lending Act
   Congress enacted the TILA in 1969. The stated purpose
of the TILA is “to assure 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). In 1988, concerned that
consumers were still not receiving accurate information
about the potential costs of credit cards, Congress
strengthened the TILA’s protections for credit card
consumers through enactment of the Fair Credit and
Charge Card Disclosure Act, “a bill to provide for more
detailed and uniform disclosure by credit and charge card
issuers, at the time of application or solicitation, of
information relating to interest rates and other costs which
may be incurred by consumers through the use of any
credit or charge card.” S. Rep. No. 100-259, at 1 (1988),
reprinted in 1988 U.S.C.C.A.N. 3936, 3937.
   In particular, Congress determined that consumers were
being inundated with credit card solicitations that failed to
disclose basic cost information about the cards being
promoted. Prior to the passage of the Fair Credit and
Charge Card Disclosure Act, the TILA did not require
issuers to provide such information until the consumer
actually received the card. Congress decided that
demanding early disclosure of relevant cost information
from credit card companies would enable consumers to
shop around for the best cards. See S. Rep. No. 100-259,
at 2-3 (1988), reprinted in 1988 U.S.C.C.A.N. 3936, 3937-
38.
  Congress delegated the responsibility of “prescrib[ing]
regulations to carry out the purposes of ” the TILA to the
Federal Reserve Board. 15 U.S.C. § 1604(a). In response to
this mandate, the Board promulgated “Regulation Z,” 12
C.F.R. § 226, and it also published a comprehensive
                             8


“Official Staff Interpretation,” 12 C.F.R. Pt. 226 Supp. 1.
Both of these measures were published in accordance with
“the broad powers that Congress delegated to the Board to
fill gaps in the statute.” Ortiz v. Rental Management, Inc.,
65 F.3d 335, 339 (3d Cir. 1995). In light of Congress’
explicit delegation of authority, we defer quite broadly to
the Board’s interpretation. See Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 565 (1980) (noting that because
TILA is a complicated act, such deference is necessary). See
generally Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
et al., 467 U.S. 837, 844-45 (1984).
   The TILA requires a credit card provider to disclose
certain information in “direct mail applications and
solicitations,” including “annual percentage rates.” 15
U.S.C. § 1637(c)(1)(A)(i). The Board’s regulations also
require “[a] credit card issuer” to disclose the applicable
“annual percentage rate.” 12 C.F.R. § 226.5a(b)(1) (requiring
disclosure of “[e]ach periodic rate that may be used to
compute the finance charge on an outstanding balance for
purchases . . . expressed as an annual percentage rate.”).
The TILA requires that information described in 15 U.S.C.
§ 1637(c)(1)(A), such as “annual percentage rates,” must be
“clearly and conspicuously disclosed” in a “tabular format.”
15 U.S.C. § 1632(a) and (c). Likewise, the Board’s
regulations mandate that disclosures required under 12
C.F.R. § 226.5a(b)(1) through (7) “be provided in a
prominent location on or with an application or a
solicitation, or other applicable document, and in the form
of a table with headings, content, and format substantially
similar to any of the applicable tables found in Appendix
G.” 12 C.F.R. § 226.5a(a)(2). The Board’s regulations also
dictate that a “creditor shall make the disclosures required
by this subpart clearly and conspicuously in writing.” 12
C.F.R. § 226.5(a)(1). Hence, both the TILA and Board-
promulgated regulations require a credit card issuer to
disclose the applicable annual percentage rate clearly and
conspicuously in a table, commonly referred to as the
Schumer Box.

    1.   Schumer Box
  Roberts asserts that Fleet failed to clearly and
conspicuously inform consumers that the 7.99% APR was
                              9


subject to change at any time. The IDS and the Schumer
Box included in Fleet’s solicitation materials stated only two
conditions under which Fleet could raise Roberts’ APR: (1)
failure of the cardholder to meet any repayment
requirement; or (2) upon closure of the account. Roberts
argues that, because a reasonable consumer could read
this list as exhaustive and conclude that the 7.99% APR
could be raised only under those two described
circumstances, this disclosure was neither clear nor
conspicuous.
  Because the purpose of the TILA is to assure meaningful
disclosures, “the issuer must not only disclose the required
terms, it must do so accurately.” Rossman v. Fleet Bank
(R.I.) Nat’l Ass’n, 280 F.3d 384, 390-91 (3d Cir. 2002). “The
accuracy demanded excludes not only literal falsities, but
also misleading statements.” Id. (citing Gennuso v.
Commercial Bank & Trust Co., 566 F.2d 437, 443 (3d Cir.
1977)). As “the TILA is a remedial consumer protection
statute, we have held it ‘should be construed liberally in
favor of the consumer.’ ” Rossman, 280 F.3d at 390
(quoting Ramadan v. Chase Manhattan Corp., 156 F.3d
499, 502 (3d Cir. 1998)). See also Begala v. PNC Bank,
Ohio, N.A., 163 F.3d 948, 950 (6th Cir. 1998) (“We have
repeatedly stated that TILA is a remedial statute and,
therefore, should be given a broad, liberal construction in
favor of the consumer.”); Fairley v. Turan-Foley Imps., Inc.,
65 F.3d 475, 482 (5th Cir. 1995) (“The TILA is to be
enforced strictly against creditors and construed liberally in
favor of consumers . . . .”).
   Construing the TILA strictly against the creditor and
liberally in favor of the consumer, as we must, we believe
that the TILA disclosures in this case, read in conjunction
with the solicitation materials, present a material issue of
fact as to whether Fleet clearly and conspicuously disclosed
its right to change the APR. We therefore conclude that the
District Court erred in granting summary judgment to Fleet
on Roberts’ TILA claim.
  In the Schumer Box, Fleet stated that the 7.99% APR
could change in the event of nonpayment or closure of the
account. Fleet listed no other conditions under which the
7.99% APR could change. We believe that it would be just
                                  10


as reasonable, if not more reasonable, for a consumer to
conclude from the information contained in the Schumer
Box that the 7.99% APR could be changed only under the
two listed circumstances as it would be for a consumer to
conclude that Fleet could change the APR at any time.
Roberts has raised a genuine issue of material fact as to
the adequacy of Fleet’s disclosures and should have been
permitted to proceed to trial on the matter.
   Fleet argues that it adequately disclosed the necessary
information in the Schumer Box and that the Board’s
regulations prevent it from including a “change in terms”
provision in the Schumer Box. We rejected a similar
argument in Rossman. The dispute in Rossman arose from
solicitation materials Fleet sent to potential customers
indicating that its Platinum MasterCard carried no annual
fee. 280 F.3d at 387. Despite the fact that Fleet indicated
in the Schumer Box that it would not charge an annual fee,
Fleet instituted an annual fee within the first year of
Rossman’s receipt of the credit card. See id. at 388-89.
Fleet argued to the Court that a clear and conspicuous
statement of its authority to change the annual fee at any
time was unnecessary because the change-in-terms
provision of the agreement is not among the terms that
must be disclosed in tabular format under the TILA. See id.
at 394. In rejecting this argument, the Court stated that the
issue was “not Fleet’s obligation to disclose the change-in-
terms provision, but its obligation to disclose annual fees.”
Id.
  Similarly, in this case, the issue is not Fleet’s obligation
to disclose the change-in-terms provision, but its obligation
to disclose the APR. Our inquiry focuses on whether Fleet’s
disclosures in the Schumer Box provided “an accurate
representation of the legal obligation of the parties . . .
when the relevant solicitation was mailed.” Id. at 391. As
we explained above, we believe Roberts raised a question of
material fact as to whether Fleet clearly and conspicuously
provided an accurate representation of the APR.

    2.   Solicitation Materials
  Roberts claims that Fleet’s representations in the
solicitation letter that the APR would be an “extraordinary,”
                                 11


“low” fixed APR of 7.99% and that the rate was neither
“introductory,” nor would it rise “in just a few short
months” further support her position that Fleet failed to
comply with the TILA. Before addressing this argument, we
must first decide whether the TILA permits a Court to
analyze the solicitation materials, in addition to the
information contained in the Schumer Box, in determining
whether a reasonable consumer would comprehend the
required disclosures.
   Fleet does not specifically argue that we are not
permitted to consider information outside of the Schumer
Box in determining whether a credit card company has
complied with the requirements of TILA. Fleet does argue,
however, that the “clear and conspicuous” standard only
applies to required disclosures in the Initial Disclosure
Statement and the Schumer Box. While we agree with the
premise of this argument, we reject its broader implications.2
When Congress decided to require credit card issuers to
disclose required terms in a clear and conspicuous manner,
we doubt that it intended for us to ignore other statements
made by those issuers in their credit card solicitation
materials. Because “[t]he purpose of the TILA is to assure
‘meaningful’ disclosures,” we have recognized that “[t]he
accuracy demanded excludes not only literal falsities, but
also misleading statements.” Rossman, 280 F.3d at 390
(citations omitted). As detailed above, Congress amended
TILA with the Fair Credit and Charge Card Disclosure Act
in order to grant consumers better access to information
and to allow consumers to more easily compare the terms
of various credit cards. Congress created the Schumer Box
to assist consumers in accessing such information, not to
shield credit card companies from liability for information
placed outside of the Schumer Box. As a result, while we
recognize that the TILA only applies the “clear and
conspicuous” standard to required disclosures, we conclude
that the TILA permits us to consider materials outside of

2. When questioned at oral argument about whether the phrase “rates
are subject to change” would more clearly and conspicuously disclose
the contractual terms than the phrase “won’t go up in just a few short
months,” which appeared in the solicitation letter, counsel for Fleet
responded that the solicitation letter is not the TILA disclosure.
                                    12


the Schumer Box in determining whether the credit issuer
disclosed  the   required   information   clearly    and
conspicuously.
   With that background established, we agree with Roberts
that the claims in the introductory letter that the “fixed
7.99% APR”3 is “NOT an introductory offer” and “won’t go
up in just a few short months” could cause a reasonable
consumer to be confused about the temporal quality of the
offer. Fleet argues that the phrase “my Agreement terms
(including rates) are subject to change,” which is included
in the Terms of Pre-Qualified Offer section of the Invitation,
makes clear that the 7.99% APR is not permanent.
However, read in conjunction with information contained in
the Schumer Box right below it, that statement could lead
a consumer to conclude that the rates are subject to
change only for the two reasons outlined in the Schumer
Box.
  In its defense, Fleet relies on Paragraph 24 of the
Cardholder Agreement that states “[w]e have the right to
change any of the terms of this Agreement at any time.”
This provision, however, fails to cure any of the TILA
defects in the initial mailing. To begin with, Fleet only mails
the Cardholder Agreement after a consumer has accepted
the invitation. Thus, a consumer will not learn, until after
the acceptance of the invitation, that the APR can be
changed by Fleet at any time. Indeed, Fleet’s practice of
mailing the Cardholder Agreement containing important
rate change information, after the consumer accepts the
card, is contrary to the TILA mandate that credit card
solicitations disclose all required information. See S. Rep.

3. We recognize that a fixed rate is not necessarily permanent. See “Shop
— The Credit Card You Pick Can Save You Money,” http://
www.federalreserve.gov/pubs/shop at “Glossary of Credit Terms.” (“The
interest rate on fixed-rate credit card plans, though not explicitly tied to
changes in other interest rates, can also change over time. The card
issuer must notify you before the ‘fixed’ interest rate is changed.”). The
potential problem in this case is not that Roberts could have concluded
that the rate was permanent solely based on the use of the word “fixed.”
Rather, the concern is that Fleet may have misled potential consumers
by indicating that the rate could only change in the instances it specified
in the solicitation materials.
                                   13


No. 100-259, at 1 (1988), reprinted in 1988 U.S.C.C.A.N.
3936, 3937. Nonetheless, Fleet argues that it is prohibited
from including “change in terms” information in the
Schumer Box. However, as we previously stated, this
argument avoids the central issue in this case, which is
whether the APR was adequately disclosed. Additionally, we
note that the “right to change” language in Paragraph 24
contradicts the statement in the introductory letter that
this APR “won’t go up in just a few short months.”4
  In sum, after reading the materials together as a whole,
we believe that a question of fact exists as to whether Fleet
made any misleading statements in the mailing and failed
to disclose information required under the TILA “clearly and
conspicuously.”
  B.     State Law Claims

    1.    Unfair Trade Practices and Consumer Protection Act
  Roberts next claims that the District Court erred in
granting Fleet’s summary judgment motion with respect to
her claim under the Rhode Island Unfair Trade Practices
and Consumer Protection Act (“UTPCPA”). See R.I. Gen.
Laws § 6-13.1-1 et seq. Specifically, based on the authority
provided by the Office of the Comptroller of the Currency
(“OCC”),5 the District Court concluded that “plaintiff cannot
pursue a claim for violation of the UTPCPA” because “this
case falls within [the] exemption” of the UTPCPA. Roberts v.
Fleet Bank (R.I.), No. 00-6142, 2001 WL 1486226, at *2
(E.D. Pa. Nov. 20, 2001).
  The UTPCPA provides that “[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are hereby declared

4. When questioned about this contradictory language at oral argument,
counsel for Fleet admitted that “arguably there is an inconsistency.” By
acknowledging this “arguable” inconsistency in language, Fleet
essentially conceded that a reasonable consumer could find the
materials to be confusing and misleading.
5. The Office of the Comptroller of the Currency is the primary regulator
of national banks pursuant to authority granted by the National Bank
Act, 12 U.S.C. §§ 1, et seq.
                             14


unlawful.” R.I. Gen. Laws § 6-13.1-2. The UTPCPA provides
for both a public and a private right of action to enforce its
provisions. However, the Act specifically states that
“[n]othing in this chapter shall apply to actions or
transactions permitted under laws administered by the
department of business regulation or other regulatory body
or officer acting under statutory authority of this state or
the United States.” R.I. Gen. Laws § 6-13.1-4.
   The Rhode Island Supreme Court has instructed that,
based on the plain meaning of § 6-13.1-4, “the Legislature
clearly exempted from the Act all those activities and
businesses which are subject to monitoring by state or
federal regulatory bodies or officers.” State v. Piedmont
Funding Corp., 382 A.2d 819, 822 (R.I. 1978). The Rhode
Island Supreme Court has thus upheld the rejection of
claims under the UTPCPA where it has found regulation by
a state or federal agency. See Kelley v. Cowesett Hills
Assocs., 768 A.2d 425, 432 (R.I. 2001) (affirming grant of
summary judgment partially due to the fact that “the
Asbestos Act preempts the action” and “[t]he plaintiff is not
therefore entitled to a remedy under § 6-13.1-2.”); Doyle v.
Chihoski, 443 A.2d 1243, 1244 (R.I. 1982) (ruling that
“[s]ince the real estate brokerage industry is regulated by
the Department of Business Regulation, the trial justice
quite properly rejected defendant’s reliance on the
Deceptive Trade Practices Act.”).
   Our inquiry must then focus on whether the OCC has
the authority to regulate Fleet’s activity of soliciting
prospective card members. Section 5 of the Federal Trade
Commission Act (“FTC Act”) proscribes “unfair or deceptive
acts or practices in or affecting commerce.” 15 U.S.C.
§ 45(a)(1). “The FTC Act prohibits ‘unfair methods of
competition,’ including advertisements containing false or
misleading representations or material omissions.” Sandoz
Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d
222, 226 (3d Cir. 1990). Section 1818(b)(1) of the Financial
Institutions Supervisory Act of 1966 authorizes the
“appropriate Federal banking agency” to take enforcement
actions against national banks for violations of “a law, rule,
or regulation.” 12 U.S.C. § 1818(b)(1). This Court has
recognized the OCC’s power to bring cease and desist
                              15


proceedings against national banks under Section
1818(b)(1). See National State Bank v. Long, 630 F.2d 981,
988 (3d Cir. 1980).
  As a result of the OCC’s authority to bring enforcement
actions against national banks for violations of laws or
regulations, the OCC has the power to regulate false and
misleading advertising proscribed under Section 5 of the
FTC Act. Consequently, the District Court properly granted
summary judgment to Fleet on Roberts’ UTPCPA claim.

    2.   Breach of Contract
  Roberts next asserts that the District Court erred in
granting summary judgment to Fleet on her breach of
contract claim. Roberts alleges that Fleet entered into a
contract with her providing a Fleet Titanium MasterCard
that carried a 7.99% APR on purchases, and Fleet breached
the contract by raising the APR to 10.5%.
  After signing and returning the invitation to Fleet,
Roberts received her Fleet Titanium MasterCard along with
the Cardholder Agreement. Paragraph 2 of the Cardholder
Agreement, “Agreement to Terms,” states that “your
retention of the Card, and/or your use of the Account in
any way means you agree to the terms of this Agreement
and the provisions of the Card itself.” By retaining and
using the card, Roberts thus agreed to the terms of the
Cardholder Agreement. Fleet argues that the Cardholder
Agreement specifically informed cardholders that their rates
were subject to change.
  Based on ambiguities in the solicitation materials and the
Cardholder Agreement, Roberts claims that a reasonable
fact finder could conclude that Fleet’s interpretation of the
Cardholder Agreement is wrong. “[A] court must find that a
contract is ambiguous before it can exercise judicial
construction of the document. If the court finds that the
terms of an agreement are clear and unambiguous, the
task of judicial construction is at an end and the agreement
must be applied as written.” W.P. Associates v. Forcier, Inc.,
637 A.2d 353, 356 (R.I. 1994) (citing Aetna Casualty &
Surety Co. v. Graziano, 587 A.2d 916, 917 (R.I. 1991)). We
have already determined that, by retaining and using the
                                   16


Fleet Titanium MasterCard, Roberts agreed to the terms of
the Cardholder Agreement. As a result, the solicitation
materials do not factor into our interpretation of the
Cardholder Agreement unless we conclude that the
document’s terms are unclear or ambiguous.
  In Paragraph 24 of the Cardholder Agreement, Fleet
reserves “the right to change any of the terms of this
Agreement at any time.” We find nothing ambiguous in this
statement and conclude that Fleet clearly had the right to
change the APR under the terms of the Cardholder
Agreement. The District Court properly granted summary
judgment to Fleet on Roberts’ claim for breach of contract.

    3.   Unjust Enrichment
  Finally, Roberts argues that the District Court erred in
granting summary judgment to Fleet on her unjust
enrichment claim. An unjust enrichment claim cannot be
maintained where a contract governs the relationship
between the parties. See Marshall Contractors v. Brown
University, 692 A.2d 665, 669 n.3 (R.I. 1997) (“It is well
settled that where there is an express contract between the
parties referring to a subject matter, there can be no
implied contract arising by implication of law governing the
same subject matter.”) Because we have determined that
the Cardholder Agreement constitutes an unambiguous,
written agreement between the parties in this case, Roberts’
unjust enrichment claim must fail as a matter of law and
the District Court properly granted summary judgment to
Fleet on the claim.6

6. Roberts also argues that the District Court erred in granting summary
judgment to Fleet on her state law claims given the early state of
discovery. “We review a claim that the district court has prematurely
granted summary judgment for abuse of discretion.” Pastore v. Bell Tel.
Co., 24 F.3d 508, 510 (3d Cir. 1994). The District Court properly granted
summary judgment to Fleet on Roberts’ state law claims as a matter of
law. Any additional facts gleaned in discovery would not have changed
the District Court’s analysis or its ultimate conclusion. Consequently, we
conclude that the District Court did not abuse its discretion by denying
additional discovery to Roberts before granting summary judgment to
Fleet on the state law claims.
                             17


                     IV.   Conclusion
  Accordingly, for the reasons stated above, we reverse the
judgment of the District Court on the TILA claim and affirm
the grant of judgment on the state law issues.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
