                                                                                    PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                             ________________________                 U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            JUNE 2 2000
                                      No. 98-6786
                                                                         THOMAS K. KAHN
                               ________________________                       CLERK

                          D. C. Docket No. 96-00862-CV-D-N

CLEOPATRA JONES, on behalf of herself and
all others similarly situated, DELOIS PRITCHETT,
on behalf of herself and all others similarly situated,
                                                                        Plaintiffs-Appellants,

                                            versus

BILL HEARD CHEVROLET, INC.,
                                                                        Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            _________________________
                                    (June 2, 2000)


Before EDMONDSON and HULL, Circuit Judges, and WOOD*, Senior Circuit
Judge.

HULL, Circuit Judge:




   *
     Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting
by designation.
      Plaintiffs-Appellants Cleopatra Jones and Delois Pritchett (“Plaintiffs”)

brought this action against Defendant-Appellee Bill Heard Chevrolet, Inc. (“Heard

Chevrolet”), for alleged violations of the Truth in Lending Act (“TILA”), 15

U.S.C. § 1638(a)(2)(B)(iii), and TILA’s implementing regulation, Regulation Z, 12

C.F.R. § 226.18(c)(1)(iii). Plaintiffs appeal the district court’s order granting

summary judgment for Defendant Heard Chevrolet on Plaintiffs’ TILA claims.

After review, we reverse.

                              I. BACKGROUND

      Plaintiffs instituted separate fraud actions in Alabama state court against

Defendant Heard Chevrolet based on inaccurate disclosures during their purchases

of automobiles and extended service contracts. Heard Chevrolet removed both

actions to federal court, where they were consolidated. Plaintiffs then filed a joint

amended complaint, with Count One containing the fraud claims under state law.

The subsequent dismissals of these fraud claims are not involved in this appeal.

This appeal addresses only Count Two which alleged TILA and Regulation Z

violations based on Heard Chevrolet’s inaccurate disclosure that the entire fee for

Plaintiffs’ extended service contracts was paid to third party General Motors. In

fact, most of the fee was retained by the dealership. We first review the

transactions regarding those contracts.


                                           2
A.       The Extended Service Contracts

         In 1995, Plaintiffs purchased automobiles from Defendant Heard Chevrolet

and extended service contracts from General Motors through Heard Chevrolet. To

finance these purchases, Plaintiffs entered into retail installment contracts (“RICs”)

with Heard Chevrolet. Specifically, Plaintiff Jones purchased a 1993 Geo Storm

from Heard Chevrolet and executed her RIC on February 27, 1995. As part of the

purchase, Jones paid $2,495 for an extended service contract. Heard Chevrolet

itemized the amount paid and being financed, on the RIC, as follows:

                            Itemization of Amount Financed

1 Cash Price (including any accessories, services, and taxes)                     $ 9795.45
2 Total Downpayment . . .                                                         $ 800.00
3 Unpaid Balance of Cash Price (1 minus 2)                                        $ 8995.45
4 Other Charges Including Amounts Paid to Others on Your Behalf:
      ...
      H Other Charges (Seller must identify who will receive
            payment and describe purpose)
            to GENERAL MOTORS 12/12 for
            SERVICE CONTRACT                              $2495.00

         Heard Chevrolet concedes that its disclosure in this “Itemization” was

inaccurate regarding the amount Heard Chevrolet, as seller, paid to General Motors

on Jones’s behalf for the extended service contract.1 Heard Chevrolet did not pay

     1
     The consumer is not automatically entitled to an itemization of the amount financed unless a
written request for it is made. See § 1638(a)(2)(B); 12 C.F.R. § 226.18(c)(2). The creditor is
allowed to skip this stage and simply provide the itemization of the amount financed without
being asked for it. See 12 C.F.R. Pt. 226, Supp. I § 18(c)(1). This appears to be what Heard

                                                3
$2495 to General Motors as represented. Heard Chevrolet paid General Motors

only $290 and retained an “upcharge” or mark-up of $2,205 for itself.2 In addition,

Heard Chevrolet concedes that it did not disclose to Jones that it was retaining any

portion of the amount listed as paid to General Motors.

         Plaintiff Pritchett’s RIC contained a similar misrepresentation when she

purchased a 1991 Pontiac Grand Prix from Heard Chevrolet on May 9, 1995. As

part of the purchase, Pritchett paid $765 for her extended service contract. Heard

Chevrolet inaccurately represented in Pritchett’s RIC that Heard Chevrolet had

paid General Motors $765 for her service contract. In fact, Heard Chevrolet

retained a substantial portion of that $765.

B.       District Court Proceedings

         The district court granted summary judgment for Defendant Heard Chevrolet

on Plaintiffs’ TILA claims. Heard Chevrolet primarily argued that regardless of

whether the dealership violated TILA’s disclosure provisions, the “good faith”

defense in TILA insulated Heard Chevrolet from liability. See 15 U.S.C. §

1640(f). In granting summary judgment, the district court agreed that the “good



Chevrolet did. It furnished the itemization, and the itemization inaccurately disclosed the
amount paid to General Motors.
     2
     An “upcharge” is the term used to refer to the amount a dealership retains when it offers a
third party service, such as a maintenance or service contract.

                                                4
faith” defense in TILA protected Heard Chevrolet from liability. The district court

declined to decide whether Heard Chevrolet actually violated TILA.

         Both Plaintiffs timely appealed the adverse judgment on their TILA claims,

but only Plaintiff Jones has pursued the appeal. Although both Jones’s and

Pritchett’s names appear on the notice of appeal and on the cover of Plaintiffs-

Appellants’ brief, that brief recites the facts about only Jones’s purchase and

discusses only Jones’s claims. Plaintiffs-Appellants’ brief contains no mention of

Pritchett’s transaction or her claim. Defendant-Appellee Heard Chevrolet’s

response brief points out that Pritchett’s claims are thus abandoned. Plaintiffs-

Appellants’ reply brief does not contest that argument. At oral argument, only

Jones’s claims were mentioned. Therefore, we find that Pritchett’s claims are

abandoned. See Atkins v. Singletary, 965 F.2d 952, 955 n.1 (11th Cir. 1992)

(determining appellants have abandoned claims not addressed on appeal);

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)

(stating issue abandoned where party did not make any arguments on the merits as

to that issue in its initial or reply brief). Thus, we now consider only Jones’s TILA

claim.

                           II. STANDARD OF REVIEW




                                           5
      This Court reviews the district court’s grant of summary judgment de novo,

applying the same standards used by the district court. See Killinger v. Samford

Univ., 113 F.3d 196, 198 (11th Cir. 1997). For summary judgment purposes, the

facts are viewed in the light most favorable to the nonmoving party. See Jones v.

Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999).

                                III. DISCUSSION

A.    TILA Claim

      The district court found that it “need not decide whether the disclosure

requirements are mandatory or permissive” and that “[t]his is because TILA

provides a ‘good faith’ defense, which, Defendant argues, insulates it from liability

in this case.” We agree, however, with Plaintiff Jones’s arguments that the

determination of whether a TILA violation occurred is necessary before properly

analyzing Heard Chevrolet’s “good faith” defense. In this particular case, the

application of the “good faith” defense is intertwined with a determination of

whether TILA had clear mandatory disclosure requirements for payments to third

parties. Therefore, we first review whether Heard Chevrolet violated TILA and




                                          6
Regulation Z in its inaccurate disclosure regarding the amount it paid to General

Motors.3

       The language of TILA’s section 1638(a)(2)(B)(iii) is clear and

straightforward. 15 U.S.C. § 1638(a)(2)(B)(iii). Section 1638(a)(2)(B)(iii)

explicitly requires that creditors “shall disclose” in writing “each amount that is . . .

paid to third persons by the creditor on the consumer’s behalf, together with an

identification of . . . the third person,” as follows:

       (a) Required disclosures by creditor
       For each consumer credit transaction other than under an open end
       credit plan, the creditor shall disclose each of the following items, to
       the extent applicable:
                                           ***
       (2)(B) In conjunction with the disclosure of the amount financed, a
       creditor shall provide a statement of the consumer’s right to obtain,
       upon a written request, a written itemization of the amount financed. .
       . . Upon receiving an affirmative indication, the creditor shall
       provide, at the time other disclosures are required to be furnished, a
       written itemization of the amount financed. For the purposes of this

   3
     We are able to reach this issue – whether Defendant Heard Chevrolet’s representation about
the amount paid to General Motors violated TILA and Regulation Z – because it was fully
briefed in the district court, concerns only a pure question of law as the parties do not dispute the
relevant facts, and “its resolution is beyond any doubt.” See Singleton v. Wulff, 428 U.S. 106,
121 (1976) (“The matter of what questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts
of individual cases. . . . [Federal appellate courts are] justified in resolving an issue not passed on
below, as where the proper resolution is beyond any doubt.”); Macklin v. Singletary, 24 F.3d
1307, 1312 (11th Cir. 1994) (finding appellate court may consider an issue not ruled upon by the
district court where it involved a pure question of law); see also Green v. Levis Motors, Inc., 179
F.3d 286, 293 (5th Cir. 1999) (“The issue [whether disclosure is required by TILA] is one of
pure law . . . [and] the proper resolution of this question is . . . beyond any doubt.” (quotations
omitted)).

                                                  7
       subparagraph, “itemization of the amount financed” means a
       disclosure of the following items, to the extent applicable:

                                          ***
       (iii) each amount that is or will be paid to third persons by the creditor
       on the consumer’s behalf, together with an identification of or
       reference to the third person.

15 U.S.C. § 1638(a)(2)(B)(iii) (emphasis added). Similarly, section

226.18(c)(1)(iii) of Regulation Z provides that a creditor shall disclose “[a]ny

amounts paid to other persons by the creditor on the consumer’s behalf. The

creditor shall identify those persons.” 12 C.F.R. § 226.18(c)(1)(iii).4

       Heard Chevrolet’s itemization disclosed that it paid $2,495 to General

Motors. In fact it paid only $290. Heard Chevrolet also did not disclose that it

pocketed a significant amount of the fee as an upcharge. Thus, we conclude that



   4
     Congress enacted the TILA to promote the “informed use of credit” through a “meaningful
disclosure of credit terms” to customers. 15 U.S.C. § 1601. Congress delegated authority to the
Federal Reserve Board (“FRB”) to promulgate regulations implementing TILA and to issue
official staff interpretations of those regulations. The implementing regulations are commonly
referred to as Regulation Z, 12 C.F.R. Part 226. See 15 U.S.C. § 1604(a); Ford Motor Credit Co.
v. Milhollin, 444 U.S. 555, 559-60 (1980).
        When Plaintiff Jones executed her RIC in February 1995, the relevant regulatory
provisions were section 226.18(c)(iii) of Regulation Z and 12 C.F.R. Pt. 226, App. H-3 (“Model
Form H-3”). Model Form H-3 provides for several ways to itemize the “amount financed”
including a subsection entitled “Amount paid to others on your behalf,” as follows:
        Amount paid to others on your behalf
        $ ________ to [public officials] [credit bureau] [appraiser] [insurance company]
        $ ________ to [name of another creditor]
        $ ________ to [other]
        $ ________ Prepaid finance charge
12 C.F.R. Pt. 226, App. H-3.

                                              8
Heard Chevrolet’s inaccurate disclosures on Jones’s RIC violated both TILA and

Regulation Z.5

        We also reject Heard Chevrolet’s contention that the commentaries, issued

by the Federal Reserve Board (“FRB”), introduced any ambiguity to Heard

Chevrolet’s clear statutory obligation to disclose accurately the amount paid to

others. We review the commentaries and then Heard Chevrolet’s arguments about

them.

        In December 1995, several months after Plaintiff Jones purchased her

vehicle, the FRB proposed an Official Staff Commentary (“Proposed

Commentary”) pertaining to Regulation Z, 12 C.F.R. § 226(c)(1)(iii).6 The FRB

   5
     At the time of Jones’s transaction in February 1995, the only two federal court decisions on
this issue had denied defendant dealerships’ Rule 12(b)(6) motions to dismiss, finding that the
dealerships’ allegedly disclosing inaccurately the amount paid to a third party for an extended
service or warranty contract stated a cause of action for a TILA violation. See Shields v. Lefta,
888 F. Supp. 894, 896 (N.D. Ill. 1995) (“Some of the money went into the pocket of the
dealership. Of course there is nothing wrong with money going into the pocket of a car
dealership on a car purchase, but plaintiffs allege misrepresentation as to the amount going into
the pocket of the dealership versus being paid out to others.”); Cirone-Shadow v. Union-Nissan,
Inc., No. 94-C-6723 (N.D. Ill. Feb. 3, 1995) (noting dealership paid to Autoright only a small
portion of the $800 itemized as paid to Autoright for an extended warranty or service contract).
   6
    The Proposed Commentary stated:
      Creditor-imposed charges added to amounts paid to others. A creditor that offers
      an item for sale in both cash and credit transactions sometimes adds an amount
      (often referred to as an “upcharge”) to a fee charged to a consumer by a third
      party for a service (such as for a maintenance or service contract) that is payable
      in an equal amount in both types of transactions, and retains that amount. At its
      option, the credit may list the total charge (including the portion retained by it) as
      an amount paid to others, or it may choose to reflect the amounts in the manner in
      which they were actually paid to or retained by the appropriate parties.

                                                 9
never approved the Proposed Commentary. Subsequently, the FRB did adopt the

following Official Staff Commentary (“Revised Commentary”) on April 4, 1996.

This Revised Commentary provides that “the creditor may reflect that the creditor

has retained a portion of the amount paid to others,” as follows:

       Charges added to amounts paid to others. A sum is sometimes added
       to the amount of a fee charged to a consumer for a service provided by
       a third party (such as for an extended warranty or a service contract)
       that is payable in the same amount in comparable cash and credit
       transactions. In the credit transaction, the amount is retained by the
       creditor. Given the flexibility permitted in meeting the requirements
       of the amount financed itemization (see the commentary to §
       226.18(c)), the creditor in such cases may reflect that the creditor has
       retained a portion of the amount paid to others. For example, the
       creditor could add to the category “amount paid to others” language
       such as “(we may be retaining a portion of this amount).”

61 Fed. Reg. 14952, 14956 (April 4, 1996) (codified at 12 C.F.R. Pt. 226, Supp. I §

18(c)(1)(iii)(2)). On the same day, the FRB also issued supplementary information

to the Revised Commentary explaining why this officially adopted Revised

Commentary is more restrictive than the previous Proposed Commentary, as

follows:

       As proposed, the comment stated that a creditor could include in the
       “amount paid to others,” any amount retained by the creditor without
       itemizing or noting this fact. Concern is raised about the
       appropriateness of such treatment under the TILA where a substantial
       portion of a fee categorized as “amounts paid to others,” is in fact


60 Fed. Reg. 62764, 62769 (Dec. 7, 1995).

                                            10
      retained by the creditor. Accordingly, a sentence has been added to
      clarify that given the flexibility in itemizing the amount financed,
      creditors may reflect that they have retained a portion of the “amount
      paid to others” rather than disclosing the specific amount retained.

61 Fed. Reg. at 14954.

      Heard Chevrolet argues that the Revised Commentary’s use of the

permissive words “may” and “could” provides creditors with the discretion to

choose whether or not to disclose the amount, or even the existence, of an

upcharge. We reject that contention because we agree with two other circuits’

conclusions that the Revised Commentary does not abrogate or affect in any way

the clear statutory requirement in TILA’s section 1638(a)(2)(B)(iii) that the

creditor shall disclose accurately the amount paid to third parties. See Green v.

Levis Motors, Inc., 179 F.3d 286, 293-94 (5th Cir. 1999); Gibson v. Bob Watson

Chevrolet-Geo, Inc., 112 F.3d 283, 285-86 (7th Cir. 1997). As our sister circuits

concluded, the Revised Commentary only clarifies that the creditor has the option

of disclosing that it retained a portion of the “amount paid to others,” rather than

disclosing the specific amount retained. See Green, 179 F.3d at 293-94; Gibson,

112 F.3d at 285-86. The Revised Commentary does not have as an option the

failure to disclose at all the fact that an amount was retained. See Green, 179 F.3d

at 293-94; Gibson, 112 F.3d at 285-86.



                                          11
       Specifically, we agree with the Fifth Circuit’s analysis in Green v. Levis

Motors, which states:

       [R]ead in the context of the [commentary’s] entire paragraph and the
       accompanying explanation . . . it is clear that the inclusion of
       permissive terms was not intended to leave open the option of saying
       absolutely nothing at all about the existence of an upcharge. Instead,
       the FRB undoubtedly meant to give creditors the option of either
       separately itemizing the actual amount paid to third parties or
       reporting one lump sum (made up of the actual amount paid to a third
       party and the upcharge) with an accompanying notation that the
       creditor might have included an upcharge.

Green v. Levis Motors, Inc., 179 F.3d 286, 294 (5th Cir. 1999). The Seventh

Circuit arrived at the same conclusion in Gibson v. Bob Watson Chevrolet-Geo,

Inc., stating:

       [A]s to the other possible violation, the failure to itemize accurately,
       the defendants contend that the words “may” and “could” show that
       they can if they want disclose that they are retaining some of the fee,
       but that they are not required to do so. In other words, they read the
       commentary to say: “You may conceal the fact that you are pocketing
       part of the fee that is ostensibly for a third party, but if you are a
       commercial saint and would prefer to tell the truth, you may do that
       too.” So interpreted, however, the commentary not only would be
       preposterous; it would contradict the statute. The only sensible
       reading of the commentary is as authorizing the dealer to disclose only
       the fact that he is retaining a portion of the charge, rather than the
       exact amount of the retention.

Gibson, 112 F.3d at 285-86.

       Heard Chevrolet’s interpretation of the Revised Commentary contradicts,

and in effect would abrogate, the clear statutory language of TILA’s section

                                         12
1638(a)(2)(B)(iii), Regulation Z’s section 226.18(c)(1)(iii), and Heard Chevrolet’s

clear statutory duty to disclose accurately the amount it paid to General Motors.

Our conclusion is also supported by the supplementary information to the Revised

Commentary which states an intent to clarify that creditors have a new option

under the Revised Commentary: creditors “may reflect that they have retained a

portion of the ‘amount paid to others,’ rather than disclosing the specific amount

retained.” 61 Fed. Reg. at 14954. Significantly, the supplementary information,

like the Revised Commentary, does not discuss as an option the total concealment

of the fact that an amount was retained. None of the FRB’s commentaries states

that a creditor can inaccurately disclose the amount paid to others.

       After review, we find that Heard Chevrolet’s disclosure – that it paid $2,495

to General Motors when it paid only $290 – was inaccurate and violated both TILA

and Regulation Z. See 15 U.S.C. § 1638(a)(2)(B)(iii); 12 C.F.R. §

226.18(c)(1)(iii).7

   7
     We emphasize that there is no issue in this case regarding materiality of the disclosure, and
thus we do not discuss it. Additionally, Heard Chevrolet’s use of the Model Form H-3 does not
shield the dealership from TILA liability. Section 1604(b) states, “A creditor or lessor shall be
deemed to be in compliance with the disclosure provisions of this subchapter with respect to
other than numerical disclosures if the creditor or lessor (1) uses any appropriate model form or
clause published by the Board.” 15 U.S.C. § 1604(b) (emphasis added). Conformity with the
layout in the model forms does not excuse substantive misrepresentations as to the numerical
amounts listed within the forms. See Gibson, 112 F.3d at 286 (“So the H-3 defense fails too –
and for the further and independent reason that the safe harbor is unavailable to disclosures
required to be given numerically, such as disclosure of the amount financed. 15 U.S.C. §
1604(b).”). Reduced to its essence, Heard Chevrolet’s argument is that as long as it used the

                                                13
B.     “Good Faith” Defense

       Even if these violations occurred, Defendant Heard Chevrolet contends that

the “good faith” defense set forth in TILA’s section 1640(f) shelters it from

liability. 15 U.S.C. § 1640(f). Section 1640(f) provides that no liability shall

apply if the dealership acts in conformity with “any rule, regulation, or

interpretation thereof by the Board,” as follows:

       No provision of this section . . . imposing any liability shall apply to
       any act done or omitted in good faith in conformity with any rule,
       regulation, or interpretation thereof by the Board . . . notwithstanding
       that after such act or omission has occurred, such rule, regulation,
       interpretation, or approval is amended, rescinded, or determined by
       judicial or other authority to be invalid for any reason.

15 U.S.C. § 1640(f). Heard Chevrolet contends that it complied in good faith with

the FRB’s commentaries and thus is not liable. The insurmountable obstacle for

Heard Chevrolet is that the Proposed Commentary and Revised Commentary did

not exist until after Jones purchased her vehicle and extended service contract in

February 1995. Thus, Heard Chevrolet could not have relied on them.




model form, it could put false information on the form and be immune from TILA liability. To
state the argument is to defeat it.
        Likewise, we reject Heard Chevrolet’s contention that Plaintiff’s TILA claim fails
because Plaintiff cannot demonstrate reliance on its misrepresentations. See Charles v. Krauss
Co., Ltd., 572 F.2d 544, 546 (5th Cir. 1978) (“[T]he basis of [TILA] liability is rather failure to
disclose information required to be disclosed; there is no requirement that the plaintiff himself be
deceived in order to sue in the public interest.” (quotations omitted)).

                                                14
       The binding precedent of this circuit requires that a defendant creditor

demonstrate reliance upon FRB regulations and commentaries before it can

successfully invoke TILA’s “good faith” defense. See McGowan v. Credit Ctr.,

Inc., 546 F.2d 73, 77 (5th Cir. 1977); Jones v. Community Loan & Inv. Corp., 544

F.2d 1228, 1232 (5th Cir. 1976).8 Thus, we have held that a defendant creditor is

barred from relying upon TILA’s “good faith” defense where it makes a loan prior

to the date of the FRB regulation used to support that defense. See McGowan, 546

F.2d at 77; Jones, 544 F.2d at 1232.9 In addition, our interpretation of the limits of

the “good faith” defense is consistent with our sister circuit’s interpretation of our

shared binding precedent. See Green v. Levis Motors, Inc., 179 F.3d 286, 292 (5th


   8
    In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
   9
     In Jones, three different creditors excluded their loan fees from the “Amount Financed” and
included them as part of the “Finance Charge” in making loans to three different borrowers. See
Jones 544 F.2d at 1230-32. The creditors attempted to invoke 15 U.S.C. § 1640(f), the “good
faith” defense, claiming that an FRB amended regulation permitted the dealerships to make
disclosures like the ones in question. See id. The two creditors, who made their loans prior to
the date of the FRB’s amended regulation, were unable to rely on TILA’s “good faith” defense.
The third creditor, who made its loan after the FRB’s amended regulation, could avail itself of
the “good faith” defense only if it could prove that it actually relied upon the FRB’s amendment.
See id. at 1232.
        This Court reaffirmed the Jones analysis in McGowan, 546 F.2d at 77 (“The defendants’
loan to McGowan was made on June 8, 1973, prior to the date on which the Board issued 12
C.F.R. § 226.819 (1969). Therefore, they are not protected under Section 1640(f) by the
amendatory regulation.”). While the commentaries are relevant in our review of TILA’s
statutory language, they cannot be used to demonstrate the “good faith” defense in a transaction
prior to their existence.

                                               15
Cir. 1999) (citing McGowan and Jones) (“Binding Fifth Circuit precedent holds

that a party cannot act ‘in good faith in conformity with’ a regulation or

interpretation that does not exist at the time of the disputed act.”). Defendant

Heard Chevrolet’s “good faith” defense thus fails because both FRB commentaries

did not exist at the time of Jones’s transaction with Heard Chevrolet.10

                                     IV. CONCLUSION

        For the above reasons, we reverse and vacate the district court’s order, dated

August 5, 1998, granting summary judgment for Defendant Heard Chevrolet on

Plaintiff Jones’s claims under the TILA and Regulation Z, and remand this case for

further proceedings consistent with this opinion.

        REVERSED, VACATED, and REMANDED.




   10
      The district court has not yet ruled on the class certification motion. Certain dates are
potentially relevant to the “commonality” and “typicality” requirements for class certification.
See Fed. R. Civ. P. 23(a)(1)-(2). Plaintiff Jones executed her RIC prior to the promulgation of
the FRB’s Proposed Commentary and Revised Commentary and may possibly differ in this
respect from those members of the putative class who executed their RICs after the FRB issued
its commentaries. Additionally, in the class certification motion, Plaintiff Jones defines the
relevant class: “For purposes of Count II, the TILA claim, the class includes anyone whose
retail installment contract is dated within one year prior to the filing of this action.” However,
Plaintiff Jones’s action was filed on April 23, 1996, and thus her RIC, dated February 27, 1995,
is not within one year of that filing date. These observations are made so that the district court
and the parties may address them when the class certification motion is considered.

                                                16
