In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1256

C HRISTINE M URO ,
                                                  Plaintiff-Appellant,
                                  v.

T ARGET C ORPORATION, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 1:04-cv-06267—Rebecca R. Pallmeyer, Judge.



   A RGUED S EPTEMBER 12, 2008—D ECIDED A UGUST 31, 2009




  Before R IPPLE, R OVNER and E VANS, Circuit Judges.
  R IPPLE, Circuit Judge. After receiving an unsolicited
Target Visa card in the mail, Christine Muro brought
this action, on behalf of herself and all others similarly
situated, against Target Corporation, Target National
Bank and Target Receivables Corporation (collectively
“Target”). Ms. Muro alleged that Target had violated
sections 127 and 132 of the Truth in Lending Act (“TILA”),
2                                                 No. 08-1256

15 U.S.C. §§ 1637(a) & (c), 1642.1 The district court granted
summary judgment in favor of Target and denied
Ms. Muro’s motion for class certification of her TILA
claims. For the reasons stated in this opinion, we affirm
the judgment of the district court.


                               I
                      BACKGROUND
  The basic facts of this case are straightforward. In light
of the procedural posture of this case, we must construe
them in the light most favorable to Ms. Muro. See
Stephens v. Erickson, 

, 786 (7th Cir. 2009).
  Under its Autosubstitution Program, Target mailed
unsolicited Visa Cards, along with an updated credit
agreement, to Target Guest Card holders.2 Guest Card
holders had the option of activating their Visa Cards
upon receipt. Once a Visa Card was activated, the corre-
sponding Guest Card immediately was deactivated



1
  Ms. Muro’s complaint also sets forth claims based on state
law. She has not appealed the grant of summary judgment on
any of these claims. Her arguments on appeal germane to those
state claims are therefore moot, and we shall not address them.
2
  Target Guest Cards (“Guest Cards”) differ from Target Visa
Cards (“Visa Cards”) in several ways. Guest Cards have ten- or
twelve-digit account numbers and may be used only in Target
stores. Visa Cards have sixteen-digit account numbers, may be
used outside of Target stores, and have higher credit limits,
cash advance options and different terms and conditions.
No. 08-1256                                              3

and any balance remaining on the Guest Card was trans-
ferred to the Visa Card.
  Ms. Muro applied for and received a Guest Card on
April 4, 1998. In December 1999, she paid the balance
owed on her Guest Card and requested that her account
be closed. She received no further correspondence
from Target for nearly five years. In August 2004, how-
ever, Ms. Muro received an unsolicited Visa Card in
the mail. She did not activate the Visa Card and did not
incur any charges or fees associated with the card. She
subsequently brought this action against Target on
behalf of herself and all others similarly situated. The
district court’s treatment of each claim will be described
in our discussion of that claim. In summary, Ms. Muro
settled her claim under section 1642 of TILA, and the
district court denied class certification on that claim. On
the claims under section 1637 of TILA, the court
granted summary judgment to Target and denied class
certification.


                            II
                     DISCUSSION
A. The Section 1642 Claim
  In Count I of her complaint, Ms. Muro alleged that the
unsolicited issuance of Visa Cards to Guest Card holders
violated section 1642 of TILA. This section provides, in
pertinent part, that “[n]o credit card shall be issued
except in response to a request or application therefor.
This prohibition does not apply to the issuance of a
4                                                    No. 08-1256

credit card in renewal of, or in substitution for, an
accepted credit card.” 15 U.S.C. § 1642.
  Ms. Muro brought her section 1642 claim on behalf of
“[a]ll persons who were mailed a ‘Target VISA’ card by
Target without first requesting or applying for said card,
including Target Guest Card cardholders who received
a ‘Target VISA’ without requesting a ‘Target VISA.’ ” R.6
at 2; R.102 at 21. The district court concluded that this
proposed class included at least two distinct groups:
Those who, like Ms. Muro, had cancelled their Target
Guest Card or otherwise did not have an open Guest
Card account prior to receiving a Visa Card, 3 and those
who held an open Guest Card account at the time they
received the Visa Card. The district court concluded
that, for a person with an open Guest Card account,
the substitution of Visa Cards for Guest Cards did not
violate section 1642. The court also held, however, that
Ms. Muro’s individual claim remained viable because
she had alleged that she closed her Guest Card account
prior to receiving a Visa Card.
  The court then denied the motion for class certification
on the section 1642 claim. The district court concluded
that the class proposed by Ms. Muro should not be
certified because Ms. Muro’s claims were not typical of
the claims of the proposed class; unlike most of the pro-
posed class members, Ms. Muro had alleged that she


3
  The district court, viewing the facts in the light most favorable
to Ms. Muro, accepted as true her claim that she had closed
her Guest Card account.
No. 08-1256                                                5

had closed her Guest Card account.4 In the district court’s
view, the class that Ms. Muro would be capable of repre-
senting would consist of
    [a]ll persons who were mailed a Target Visa Card
    without first requesting or applying for said card, and
    who did not at the time hold any active Target-
    branded credit card, including Target Guest Card
    holders who had cancelled their Guest Card[s] prior
    to issuance of the Visa Card.
R.102 at 21. The court determined, however, that certifica-
tion of this alternative class also would be improper
because Ms. Muro had failed to demonstrate that such a
class was “so numerous that joinder of all members [was]
impracticable.” Williams v. Chartwell Fin. Servs., Ltd., 

, 760 (7th Cir. 2000) (citing Fed. R. Civ. P. 23(a)).
Accordingly, the district court denied Ms. Muro’s
motion for class certification.
  Ms. Muro subsequently settled her individual section
1642 claim, while reserving her right to appeal the
class certification issue. The merits of Ms. Muro’s claim,
therefore, are not properly before us. Having accepted
an offer of judgment, Ms. Muro has no cognizable
interest in our evaluation of the district court’s decision
on that issue. The question of whether she nevertheless
can appeal the district court’s decision not to certify



4
  According to Target, the Autosubstitution Program’s
primary purpose was to replace its existing card holders’
Guest Cards with Visa Cards.
6                                               No. 08-1256

the proposed class is more complex; we now turn to
that issue.


                             1.
   At the outset, we pause to make clear the narrow
issue presented by this case. This case does not present
the more frequently encountered situation that we con-
fronted in Wiesmueller v. Kosobucki, 

, 786
(7th Cir. 2008). There, we noted that, if a plaintiff’s indi-
vidual claim becomes moot while his appeal of the denial
of his motion for class certification is pending, that
appeal is not moot “because unless and until the ap-
pellate court affirms the denial of the motion to certify
a class, there may be people other than the plaintiff with
a legally protected interest in the suit.” 

In
Weismueller, the plaintiff’s individual claim was
mooted by intervening events, rather than the plaintiff’s
voluntary settlement of his claim; here, by contrast, we
are confronted with the question of whether a named
plaintiff in a putative class action can settle her own
claim and still appeal the court’s denial of her motion
for class certification. The Supreme Court recognized
that this was an open question in United States Parole
Commission v. Geraghty, 

, 404 n.10 (1980), and
it declined to answer the question at that time.
  In exploring this issue, our starting point must be the
Supreme Court’s decision in Geraghty. There, the Court
made clear that the named plaintiff in a putative class
action possesses, in effect, dual rights: (1) his personal
No. 08-1256                                               7

substantive rights; and (2) his rights as a member of a
class in the putative class action. As we have just men-
tioned, however, the Court did not answer, although
it noted, the problem of whether a plaintiff who has
settled his substantive claim should be permitted to
appeal the court’s refusal to certify the class.
   The Court’s decision in Deposit Guaranty National Bank
v. Roper, 

(1980), decided the same day as
Geraghty, is our next guidepost. In that case, holders of
credit cards issued by the defendant bank sued the
bank for damages and sought to represent their own
interests as well as those of a class of similarly situated
customers. They claimed that the bank had violated the
National Bank Act, 12 U.S.C. §§ 85 & 86, by charging
the plaintiffs and the class they sought to represent usuri-
ous finance charges. The district court denied class cer-
tification on the ground that the class did not meet all
of the requirements of Federal Rule of Civil Procedure 23
(b)(3), but certified its ruling on that issue for discre-
tionary appeal under 28 U.S.C. § 1292(b). The court of
appeals, however, denied the card holders’ interlocutory
appeal. The bank then tendered to each named plaintiff
the maximum amount that each would have recovered
had the suit been successful. The card holders refused
the tender. The district court nevertheless entered judg-
ment for the card holders in the amount of the tender,
which was later deposited in the court’s registry, and
dismissed the case.
  The card holders then appealed the district court’s
refusal to certify the class. The court of appeals held that
8                                                  No. 08-1256

the case had not been mooted by the entry of judgment
in favor of the card holders. The Supreme Court agreed.
It held that neither the tender offer, nor the entry of
judgment in the card holders’ favor by the district court,
prevented the card holders from appealing the adverse
ruling on the class certification issue. Central to the
Court’s holding was its statement that, in order to
appeal, a party must be able to demonstrate that it
retains a stake in the appeal of the class certification
requirement that is sufficiently concrete to satisfy the case-
or-controversy requirement of Article III. 

Here, observed the Court, the card holders had such a
concrete interest because they had asserted, throughout
the litigation, a continuing individual interest in shifting
part of the cost of litigation to the class members. 

   While Roper certainly sheds light on the path before us,
it does not provide us with an answer to the precise
question presented in this case: whether an individual
who settles her individual claim nevertheless may
appeal the denial of a motion for class certification. As
our colleagues in the Fifth Circuit remarked in Dugas v.
Trans Union Corporation, 

, 728 (5th Cir. 1996),
it would be unwise for us to believe that the Court an-
swered a question in Roper that it expressly and unam-
biguously had left open that same day in Geraghty.


                               2.
  In the wake of Geraghty and Roper, several courts of
appeals have confronted the issue of whether a prospec-
No. 08-1256                                                 9

tive class representative who has settled his personal
claim can appeal the denial of class certification; those
courts have acknowledged that a plaintiff seeking to
appeal such a ruling must have a personal stake in the
definitive adjudication of the class-certification issue. See,
e.g., Richards v. Delta Air Lines, Inc., 

, 529
(D.C. Cir. 2006); Walsh v. Ford Motor Co., 

,
1191, 1191 n.5 (D.C. Cir. 1991). Most of the circuits that
have considered the issue have held that “a named plain-
tiff’s unqualified release of claims relinquishes not only
his interest in his individual claims but also his interest
in class certification.” Toms v. Allied Bond Collection
Agency, Inc., 

, 105 (4th Cir. 1999) (collecting
cases); see Seidman v. City of Beverly Hills, 

,
1448 (9th Cir. 1986). There is, however, disagreement as
to whether a reservation of the right to appeal the class
certification issue is alone sufficient to permit a prospec-
tive class representative who has settled his individual
claim to appeal the class certification ruling.
  Our neighbor to the west, the Eighth Circuit, in Potter
v. Norwest Mortgage, Inc., 

, 612-15 (8th Cir.
2003), and more recently in Anderson v. CNH U.S. Pension
Plan, 

(8th Cir. 2008), has made it
emphatically clear that, in its view, the mere recitation
in a settlement agreement that the plaintiff reserves
the right to appeal the denial of class certification is not
sufficient to create the sort of concrete interest in the
class certification issue that Roper requires. See Anderson,
10                                                     No. 

; 

n.3. 5 The court
relied heavily on the opinion of the Fourth Circuit in

, and emphasized the centrality of
the Article III case-or-controversy requirement to the
question of whether a settling plaintiff retains an interest
in appealing the denial of class certification. In the
Eighth Circuit’s view, the mere reservation of the right
to appeal does not satisfy the case-or-controversy re-
quirement; that constitutional requirement mandates
that the plaintiff show that he has a personal stake, such
as the interest in fee-shifting at issue in Roper, to demon-
strate a concrete personal interest in the appeal. Accord

.
  By contrast, some other courts emphasize Geraghty’s
and Roper’s characterization of the proposed class action
representative as possessing, separate and apart from
his individual substantive interests in the litigation, a
procedural interest in the resolution of the class certi-
fication issue. These courts apparently believe that a
reservation of the right to appeal the class certification
issue in a settlement agreement is sufficient to give the
proposed class representative standing to appeal the
class certification issue without any further showing of



5
  That court, however, did note that a plaintiff may have a
continuing interest in the class certification issue if he “ ‘retains
an interest in shifting costs and attorney fees to the putative
class members.’ ” Anderson v. CNH U.S. Pension Plan, 

, 827 (8th Cir. 2008) (quoting Potter v. Norwest Mortgage,
Inc., 

, 614 (8th Cir. 2003)).
No. 08-1256                                                     11

a concrete interest in the resolution of the issue. See 

(dicta). Indeed, one circuit might permit
a proposed class representative who settles her
individual claims to appeal the denial of class certifica-
tion even without an explicit reservation of the right to
appeal that issue. See Love v. Turlington, 

, 1565
(11th Cir. 1984). 6 See also Nichols v. Mobile Bd. of Realtors,
Inc., 

(5th Cir. Unit B 1982) (by implication).
But see Armour v. City of Anniston, 

, 384 (5th
Cir. Unit B 1981) (per curiam).
  We believe that the decisions of the Fourth and Eighth
Circuits exhibit a higher degree of faithfulness to the
rationale of Roper that there be an actual case or contro-
versy at all stages of the litigation, including the appeal of
the class certification issue. A voluntary settlement by the



6
   In Love v. Turlington, 

, 1565 (11th Cir. 1984), the
Eleventh Circuit noted that it found “no meaningful distinction
between the settlement of the claim . . . at issue and the expira-
tion of the claim in Geraghty for purposes of the ability of the
named plaintiff to pursue an appeal of the denial of certifica-
tion.” Neither Love nor the other cases from the Eleventh
Circuit explicitly say that the named plaintiff retains an
interest in the class certification issue even in the absence of
any mention of the issue in the settlement agreement, but the
absence of any mention of the need for such a reservation
makes this reading the most plausible. See also Cameron-Grant
v. Maxim Healthcare Servs., Inc., 

, 1246-47 (11th
Cir. 2003); Martinez-Mendoza v. Champion Int’l Corp., 

, 1215-16 (11th Cir. 2003); Armstrong v. Martin Marietta
Corp., 

, 1383 n.16 (11th Cir. 1998).
12                                              No. 08-1256

prospective class representative often means that, as a
practical matter, the settling individual has elected to
divorce himself from the litigation and no longer retains
a community of interests with the prospective class.
Only if issues personal to the prospective class representa-
tive remain alive in the litigation can a court be
assured that there remains sufficient concrete adverse-
ness to ensure that the class certification issue is
presented in a truly adversarial manner and, conse-
quently, will be litigated comprehensively and clearly.
An abstract interest in a matter never has been con-
sidered a sufficient basis for the maintenance of—or the
continuation of—litigation in the federal courts. See
United States v. Richardson, 

, 177 (1974); Sierra
Club v. Morton, 

, 739 (1972); Baker v. Carr,

, 206-08 (1962).


                             3.
  We now turn to an application of these principles to
the case before us. On December 11, 2007, Ms. Muro
accepted Target’s offer of judgment with respect to
Count I. She did so on the understanding that the offer
and her acceptance preserved her “right to appeal all of
[the district court’s] adverse orders.” R.292 at 1. Nowhere,
however, does she indicate that, given the resolution of
her personal substantive claims, she retained a concrete
interest in the resolution of the class certification issue.
Indeed, unlike the plaintiff in Roper, she received in her
settlement compensation for both her costs of the
action and her reasonable attorney’s fees. Therefore,
No. 08-1256                                               13

although Geraghty and Roper suggest that a named plain-
tiff’s interest in distributing the costs of litigation
among class members can support a finding that the
plaintiff retains a personal stake in the class certification
issue, it cannot be said that Ms. Muro retains an interest
in that particular benefit in this case.
  Under these circumstances, we can discern no live,
concrete controversy between Ms. Muro and Target
that can justify permitting her to appeal the district
court’s determination with respect to the certification
of the class.


                             4.
  Even if we were to determine that Ms. Muro has the
right to appeal the class certification issue, we would
have no hesitation in holding that the district court did
not clearly err in denying Ms. Muro’s motion for class
certification of her section 1642 claim. Taking the facts
as she alleges them, it is readily apparent that her claim
is very different from the claims of the majority of the
class members. Indeed, this difference, standing alone, is
a sufficient basis upon which to decline to certify
Ms. Muro’s proposed class.
  Federal Rule of Civil Procedure 23(a) requires, among
other things, “that the claims or defenses of the repre-
sentative part[y] [be] typical of the claims or defenses of
the class.” 

. Although “[t]he
typicality requirement may be satisfied even if there are
factual distinctions between the claims of the named
14                                              No. 08-1256

plaintiffs and those of other class members,” the require-
ment “primarily directs the district court to focus on
whether the named representatives’ claims have the
same essential characteristics as the claims of the class
at large.” De La Fuente v. Stokely-Van Camp, Inc., 

, 232 (7th Cir. 1983). Only in the broadest way can
we say that Ms. Muro’s claim “arises from the same
event or practice or course of conduct that gives rise to
the claims of other class members and . . . [is] based on
the same legal theory.” 

claim involves
facts that distinguish her claim from the claims of her
fellow class members and undermine the typicality that
the Rule demands. See Oshana v. Coca-Cola Co., 

, 514 (7th Cir. 2006) (holding that the typicality re-
quirement was not satisfied where the plaintiff’s pro-
posed class “include[d] people who knew fountain
Diet Coke contained saccharin and bought it anyway”
when the plaintiff “claim[ed] she was deceived and
injured”).
  The factual differences between Ms. Muro’s claims
and the claims of her fellow putative class members are
significant; as a result of these differences, certain provi-
sions of TILA that apply in Ms. Muro’s case may not
apply to most of her proposed fellow class members.
TILA’s prohibition against issuing credit cards in the
absence of a request or application “does not apply to
the issuance of a credit card in renewal of, or in substitu-
tion for, an accepted credit card.” 15 U.S.C. § 1642.
Unlike those class members who did not close their
Guest Card accounts before receiving a Visa Card,
Ms. Muro’s claim in no way depends on whether the
No. 08-1256                                                  15

Visa Cards were “renewal[s] of,” or “substitution[s] for”
the Guest Cards. Id.; see also 12 C.F.R. § 226.12(a)(1)-(2).
Unlike those whose Guest Cards were “autosubstituted”
by an unwanted Visa Card, Ms. Muro may contend that
the unwanted Visa Card that she received was not a
substitute for her Guest Card because she had closed
her Guest Card account years before. 7 She therefore
would have little incentive to litigate vigorously
whether the Visa Cards should be considered renewals
of, or substitutes for, open Guest Cards. See Robinson v.
Sheriff of Cook County, 

, 1157 (7th Cir. 1999)
(“[I]f [a plaintiff’s] claim is atypical, he is not likely to be
an adequate representative; his incentive to press
issues important to the other members of the class will
be impaired.” (citing Gen. Tel. Co. of the S.W. v. Falcon,

, 157 n.13 (1982))). The district court clearly
did not err in concluding that Ms. Muro’s claims were
not typical of the claims of the proposed class. See

.
  Moreover, with respect to the class in which Ms. Muro
could claim membership, those who received an unsolic-
ited Visa Card but who did not have a Target Guest
Card at the time, the district court correctly concluded
that Ms. Muro had made no showing of the numerosity
of such a class.



7
  We express no opinion as to whether those class members
whose open Guest Cards were “autosubstituted” successfully
could claim, on some other basis, that the Autosubstitution
program “issued” new Visa Cards that were neither a renewal
of nor a substitute for their Guest Cards.
16                                                  No. 08-1256

B. The Section 1637 Claims
  Ms. Muro next claims that the Autosubstitution
program violated 15 U.S.C. § 1637(a), which requires a
creditor to make certain disclosures “[b]efore opening
any account under an open end consumer credit plan.”
15 U.S.C. § 1637(a). The parties do not dispute whether
Target made the required disclosures; the only point
of contention is whether the disclosures were made
before the account was opened.
  We have not had occasion to address with any
specificity when an account is “open” for the purposes
of section 1637(a).8 TILA is silent on this issue; however,
Congress has delegated substantial authority to the



8
   Although we have not gone so far as to define the meaning
of “open,” this court has discussed the issue of when a duty to
make disclosures arises under section 1637 in the statute-of-
limitations context. In Goldman v. First National Bank of Chicago,

, 18 (7th Cir. 1976), we noted that, although section
1637(a) imposes a duty on lenders to disclose certain informa-
tion before an account is opened, “[i]n practical terms, under
an open end credit plan, there is no extension of credit simply
by the issuance of [a credit] card.” 

20. After noting
the language of Regulation Z, we concluded that “[i]f . . . there
is a violation of [section 1637] in an open end credit plan, it
occurs at the time the account is opened, or at the very latest,
some time before the first transaction takes place.” 

Thus, although we concluded that a creditor’s duty to
disclose information under section 1637 arises some time
before the first transaction is negotiated, we did not address
precisely when a creditor is obliged to make those disclosures.
No. 08-1256                                                     17

Federal Reserve Board to issue regulations containing
“such classifications, differentiations, or other provi-
sions” as are “necessary or proper to effectuate the pur-
poses” of TILA. 15 U.S.C. § 1604(a). Acting under this
authority, the Federal Reserve Board has issued Regula-
tion Z, which specifies that initial disclosures must
be made “before the first transaction is made under the
plan.” 12 C.F.R. § 226.5(b)(1).9 Given the language of
Regulation Z, we conclude that when a card issuer



9
   The provisions of Regulation Z are afforded substantial
weight. In Mourning v. Family Publications Service, Inc., 

, 358 (1973), the Supreme Court evaluated whether the
Federal Reserve Board exceeded its authority by promulgating
the “Four Installment Rule” of Regulation Z. The Court con-
cluded that, because Congress “delegated to the Federal
Reserve Board broad authority to promulgate regulations
necessary to render [TILA] effective,” the rules promulgated
under that authority “will be sustained so long as [they are]
reasonably related to the purposes of the enabling legisla-
tion.” 

(citations and quotation marks omitted). See
also Cetto v. LaSalle Bank Nat’l Ass’n, 

, 274 (4th Cir.
2008) (stating that “we must accord strong deference to Reg-
ulation Z”); DBI Architects, P.C. v. Am. Express Travel-Related
Servs. Co., 

, 892 (D.C. Cir. 2004) (noting that “courts
owe deference to the Board’s regulations and its interpreta-
tion of its regulations under TILA” (citations omitted)). This
court has recognized that “[t]he official staff opinions of the
Federal Reserve Board construing TILA and Regulation Z are
binding on this court unless they are demonstrably irrational.”
Walker v. Wallace Auto Sales, Inc., 

, 931 n.5 (7th Cir.
1998) (citations and quotation marks omitted).
18                                              No. 08-1256

makes the necessary disclosures before the card is acti-
vated, before any fees are incurred and before any
charges are made to the new account, the card issuer
clearly has satisfied the requirements of section 1637(a);
it has made the required disclosures before the account
is “open” in any sense of the word.
   In addition, we agree with the district court that the
same admissions that render the section 1637(a) claim
without merit also render the section 1637(c) claim
without merit. Ms. Muro has admitted that she never
activated the Visa Card, never incurred any fees on the
Visa Card and never made any charges to the Visa Card.
She is therefore precluded from obtaining relief under
section 1637(c). See 15 U.S.C. § 1640(a) (“In connection
with the disclosures referred to in subsection (c) or (d)
of section 1637 of this title, a card issuer shall have a
liability under this section only to a card holder who
pays a fee described in section 1637(c)(1)(A)(ii)(I) or
section 1637(c)(4)(A)(i) of this title or who uses the
credit card or charge card.”).
  The district court also denied Ms. Muro’s motion for
class certification with respect to the section 1637 claims;
it held that, because Ms. Muro did not have a claim
under either section 1637(a) or section 1637(c), she was
not a member of the proposed class, and she therefore
was ineligible to serve as a class representative. Foster
v. Ctr. Twp. of LaPorte County, 

, 244 (7th Cir.
1986) (“It is, of course, axiomatic that the named rep-
resentative of a class must be a member of that class.”).
In her brief, Ms. Muro argued only that class certifica-
No. 08-1256                                             19

tion of this issue is appropriate “[i]f this court reverses
[the district court’s] decision” on the merits of either of
those claims. Appellant’s Br. 52. Because we affirm the
decision of the district court with respect to both of
Ms. Muro’s section 1637 claims, we need not address
whether the court abused its discretion by denying her
motion for class certification.


                       Conclusion
  For the reasons set forth in this opinion, the judgment
of the district court is affirmed.
                                                A FFIRMED




                          8-31-09