Judges: Flaum
Filed: Mar. 19, 2014
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-2706 RICHARD ACOSTA and JENIFER ROMAN, Plaintiffs-Appellants, v. TARGET CORPORATION, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 7068 — Joan B. Gottschall, Judge. _ ARGUED JANUARY 10, 2014 — DECIDED MARCH 19, 2014 _ Before FLAUM and EASTERBROOK, Circuit Judges, and GRIESBACH, District Judge.* FLAUM, Circuit Judge. From 2000 to 2
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-2706 RICHARD ACOSTA and JENIFER ROMAN, Plaintiffs-Appellants, v. TARGET CORPORATION, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 7068 — Joan B. Gottschall, Judge. _ ARGUED JANUARY 10, 2014 — DECIDED MARCH 19, 2014 _ Before FLAUM and EASTERBROOK, Circuit Judges, and GRIESBACH, District Judge.* FLAUM, Circuit Judge. From 2000 to 20..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2706
RICHARD ACOSTA and JENIFER ROMAN,
Plaintiffs‐Appellants,
v.
TARGET CORPORATION, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 05 C 7068 — Joan B. Gottschall, Judge.
____________________
ARGUED JANUARY 10, 2014 — DECIDED MARCH 19, 2014
____________________
Before FLAUM and EASTERBROOK, Circuit Judges, and
GRIESBACH, District Judge.*
FLAUM, Circuit Judge. From 2000 to 2007, Target Corpora‐
tion sent unsolicited general‐purpose credit cards to millions
of existing holders of its limited‐use charge cards accepted
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 13‐2706
only at Target. As part of this “upgrade” campaign, Target
deactivated the holder’s old card. Richard Acosta and Jenifer
Roman brought a putative class action claiming that this
campaign violated the federal Truth in Lending Act and
state law. The district court granted summary judgment for
Target and we affirm.
I. Background
A. The Autosub Program
Target Guest Cards are store credit cards, which permit
guests to make purchases only at Target. Target began its
Guest Card program in 1994 and has continued it ever since.
In 2000, Target introduced Target Visa Cards, which are all‐
purpose credit cards that can be used anywhere, although
they feature special benefits for Target customers. The Guest
Card and the Visa were provided on different terms: Target
used different underwriting criteria for each, they were gov‐
erned by separate credit card agreements, and the Visa typi‐
cally had a higher credit limit and lower APR than the Guest
Card.
This controversy arises from Target’s campaign to “up‐
grade” customer Guest Cards to Visas, which began in 2000
and lasted until 2007. From 2000 through mid‐2006, Target
called this program “Auto‐Substitution,” and from late 2006
through 2007 it was known as “Auto‐Product Change.” (For
simplicity, we’ll refer to the programs collectively as “Auto‐
sub.”) During this time, Target sent unsolicited Visas to
more than ten million current and former Guest Card hold‐
No. 13‐2706 3
ers. The cards were attached to a “card carrier”1 and accom‐
panied by a credit card agreement and marketing materials
designed to entice the recipient to activate the new card.
When Target mailed the Autosubbed Visas, it typically
deactivated the Guest Cards shortly afterward.2 If a custom‐
er activated her new Target Visa, two things generally hap‐
pened: the Visa’s terms, set forth in the cardholder agree‐
ment, became effective, and the accountholder’s Guest Card
balance was transferred to the Visa. If the customer did not
activate the Visa, Target closed her account entirely.
The materials sent with the Visas did not suggest that
keeping the Guest Card was an option. Various fliers and
brochures informed customers, “We’ve replaced your Target
Card with a Target Visa” and “Your old Target Card will be
closing soon, so cut up your old Target Card, activate your
new Target Visa and start using it today!” Although the pos‐
sibility was not highlighted for them, customers could in fact
opt out of the Visa upgrade if they wished. A Guest Card
accountholder could call Target to reject the Visa but ask to
keep the Guest Card. Alternatively, if a holder attempted to
use the Guest Card after the Visa had been mailed, she
would be informed that the Guest Card account had been
closed but that she had the choice to reopen it. Finally, Tar‐
get telemarketers called over a million people who were
1 Card carriers are tri‐folded pieces of paper with a credit card attached.
Their text prominently features some of the most attractive benefits of
the credit card.
2 In approximately 12,000 cases, Guest Card accounts remained open
even after Visas were activated, but neither the record nor the parties
explain how this happened.
4 No. 13‐2706
mailed a Visa card but did not activate it immediately. Dur‐
ing those calls, telemarketers advised customers that the
Guest Card was about to expire, but they could keep it if
they desired.
The credit limits on the Autosubbed Visas were always
rounded to a number between $1,000 and $10,000, and the
credit agreement gave Target the right to change the credit
limit at its discretion. In contrast, new customers had to open
a Target Visa through a standard application, and cards
opened in this way could have credit limits as low as $500.
Further, the method used for calculating the credit limit in
the Autosub mailings was different than the method used
after the Autosubbed Visa was activated. The Autosub mate‐
rials did not indicate that the credit limits were subject to
change, and customers often had their credit limits reduced
after activation. For example, in the 2005 rollout, most cus‐
tomers initially had a credit limit of $1,000, but many with
credit scores under 649 had their limits reduced.
Finally, both the Guest Card and Visa agreements gave
Target substantial leeway to modify or cancel accounts.
From 1994 through 2006, the Guest Card agreements pro‐
vided:
OUR RIGHTS—We may limit or cancel your
Account. …
OTHER CHANGES TO THIS AGREEMENT—
We have the right to change this Agreement
and apply those changes to the existing bal‐
ance. We will make any changes in accordance
with the law.
No. 13‐2706 5
The Visa agreements in effect from 2000 through 2007
put it slightly differently:
CHANGES TO THIS AGREEMENT. We have
the right to change this Agreement (including
the right to add additional terms) and to apply
those changes to any existing balance.
B. Proceedings below
Richard Acosta applied for a Guest Card on June 1, 1999
and used it from 1999 until late 2005. Acosta received an un‐
solicited Visa in October of 2005. He activated the Visa the
next month.
Jenifer Roman also obtained a Guest Card, although the
date she opened the account is unclear. In September 2004,
she received and activated an unsolicited Visa. Roman’s Visa
had a higher credit limit and lower minimum payment than
the Guest Card, but because Roman carried a balance from
the Guest Card and failed to pay on time, she ultimately in‐
curred higher late fees and a worse interest rate than she
would have had with a Guest Card.
Acosta and Roman claimed that the terms accompanying
the Visas misleadingly implied that they described all of the
differences between the Guest Card and the Visa. The head‐
ings in the brochure indicated that they were summaries of
the differences between the two cards.
Plaintiffs sued Target individually and on behalf of a pu‐
tative class. (Actually, they sued Target Corporation and two
subsidiaries—Target Receivables LLC and Target National
Bank—but except in one instance, discussed below, this
makes no difference.) Their core claims were premised on
two provisions of the Truth in Lending Act (TILA): 15 U.S.C.
6 No. 13‐2706
§ 1642, which prohibits the mailing of unsolicited credit
cards, and 15 U.S.C. § 1637(c), which requires credit card
mailings to contain certain disclosures in a “tabular for‐
mat.”3 Additionally, Plaintiffs brought state‐law claims for
fraud, breach of contract, tortious interference with business
relations, and violation of an implied trust. Finally, Plaintiffs
sought a declaration that Target violated TILA and the credit
agreements.
The district court granted summary judgment on all
claims. It found that the Autosub program did not violate
§ 1642 since it was a “substitution” of the Guest Card, which
is specifically permitted by the statute. The court also found
that Target had complied with § 1637(c). After deciding
Plaintiffs’ TILA claims, the court opted to exercise supple‐
mental jurisdiction over the state‐law claims. It concluded
that Target did not defraud the Plaintiffs or other Visa recip‐
ients; that Target had not breached its credit card agree‐
ments; and that Target had not acted unjustifiably, thereby
insulating itself from liability for tortious interference. The
court dismissed the implied trust and declaratory judgment
claims as derivative of the others.
Finally, the district court denied the Plaintiffs’ motion for
class certification. It noted that certain members of the puta‐
tive class that Acosta and Roman sought to represent might
well have a valid claim (specifically, recipients of Visas
whose Guest Cards were not cancelled immediately and the
3 In 2001 and 2002, the materials accompanying the Autosubbed Visas
contained the table required by 15 U.S.C. § 1637(c). However, the Visas
sent from 2004 to 2007 did not (the mailings for those years still con‐
tained the necessary information, but did not display it in tabular for‐
mat). The record makes no mention of any mailings in 2003.
No. 13‐2706 7
approximately 12,000 customers who simultaneously held
valid Guest Cards and Visas). But neither Roman nor Acosta
was among this subclass, and they had no valid claims
themselves. Roman and Acosta were therefore inappropriate
class representatives, so the court denied the motion for class
certification.
II. Discussion
Plaintiffs appeal most of the district court’s rulings. We
review the district court’s grant of summary judgment de
novo. See Ellis v. DHL Express Inc., 633 F.3d 522, 525 (7th Cir.
2011).
A. Section 1642
Section 1642 of TILA forbids credit card issuers from
sending ready‐to‐use cards to consumers without receiving a
request or application from the consumer. 15 U.S.C. § 1642.
However, “[t]his prohibition does not apply to the issuance
of a credit card in renewal of, or in substitution for, an ac‐
cepted credit card.” Id. We must therefore decide whether
Target’s Autosub program is a “substitution” within the
meaning of the statute.
On its face, the Autosubbed Visa would appear to be a
substitution, at least as the word is commonly understood. A
substitute is “something that is put in place of something
else or is available for use instead of something else.” Web‐
ster’s Third New International Dictionary 2280 (1993). The
Target Visas qualify—they take the place of the Guest Card
and assume all of the Guest Card’s functions.
Nevertheless, the Supreme Court has instructed us to
give special deference to regulations promulgated by the
agency charged with the TILA’s administration, the Federal
8 No. 13‐2706
Reserve Board. See Ford Motor Credit Co. v. Milhollin, 444 U.S.
555, 565–66 (1980); Mourning v. Family Publ’ns Serv., Inc., 411
U.S. 356, 366 (1973). The Board has promulgated its interpre‐
tation of the TILA in Regulation Z, but in this instance the
regulation is not much help, for it simply tracks the language
of § 1642. See 12 C.F.R. § 226.12(a) (“[N]o credit card shall be
issued to any person except … [i]n response to an oral or
written request or application for the card; or … [a]s a re‐
newal of, or substitute for, an accepted credit card.”). Fortu‐
nately, the Board also publishes an Official Staff Interpreta‐
tion of Regulation Z. Like Regulation Z itself, this commen‐
tary is authoritative, and it controls our interpretation unless
it is “demonstrably irrational.” Walker v. Wallace Auto Sales,
Inc., 155 F.3d 927, 931 n.5 (7th Cir. 1998).
The relevant portion of the Board’s commentary elabo‐
rates on the term “substitution”:
2. Substitution—examples. Substitution en‐
compasses the replacement of one card with
another because the underlying account rela‐
tionship has changed in some way—such as
when the card issuer has: …
iii. Changed the credit or other features
available on the account. For example,
the original card could be used to make
purchases and obtain cash advances at
teller windows. The substitute card
might be usable, in addition, for obtain‐
ing cash advances through automated
teller machines. … The substitution of
one card with another on an unsolicited
basis is not permissible, however, where
No. 13‐2706 9
in conjunction with the substitution an
additional credit card is opened and the
consumer is able to make new purchas‐
es or advances under both the original
and the new account with the card. For
example, if a retail card issuer replaces
its credit card with a combined retail‐
er/bank card, each of the creditors main‐
tains a separate account, and both ac‐
counts can be accessed for new transac‐
tions by use of the new credit card, the
card cannot be provided to a consumer
without solicitation.
Official Staff Interpretation, 12 C.F.R. pt. 226, Supp. I,
¶ 12(a)(2)(iii).
This interpretation confirms that the Autosubbed Visa
qualifies as a substitution. The Visa offers features different
from the Guest Card—the ability to use the card anywhere,
and credit limits and interest rates that differ from the Guest
Card, just to name a few.4 Moreover, while the commentary
prohibits some substitutions spurred by new card features,
those qualifications do not apply here. This is not a case
where a new unsolicited card is issued, but then two ac‐
counts exist and both can be accessed when the customer ac‐
tivates the new card. When a Guest Card owner activated
the Visa, the balance from the Guest Card was automatically
4 We note, without deciding the question, that because the Visa was
honored at a different merchant base than the Guest Card, it may poten‐
tially qualify as a substitution under ¶ v of the commentary, too. That
section permits new card issuance when the merchant base changes. See
12 C.F.R. pt. 226, Supp. I, ¶ 12(a)(2)(v).
10 No. 13‐2706
carried forward to the Visa and the Guest Card account was
closed; if the consumer did not accept or activate the Visa,
the Guest Card account was closed. Thus, as a result of the
Autosub program, the cardholder’s account relationship was
changed in some way unless the cardholder took action to
revert back to her former relationship with Target.
Plaintiffs try to cast the Visa mailings as an offer to
change the underlying account relationship and not as an
actual change to the account relationship. As support, they
point to the instances where Guest Card holders were tar‐
geted for Visa substitution, but the customer either called
Target or protested at the point of sale. But the Autosub pro‐
gram was more than a mere offer—unless a customer af‐
firmatively resisted the substitution, either the Visa replaced
the Guest Card or the Guest Card account was closed entire‐
ly.5 Moreover, Plaintiffs’ assertion that an offer to substitute
the Visa for the Guest Card would somehow offend TILA is
without support in the regulations or commentary. In fact, it
strikes us as contrary to the spirit of TILA to read the statute
as Plaintiffs urge. If a customer’s ability to reject a substitu‐
tion card somehow rendered the substitution illegal, issuers
would instead impose the substitution with no opt‐out abil‐
ity. Consumer choice and flexibility would be hamstrung—a
strange result under a consumer protection statute.
5 Acosta and Roman also point to the small number of times where Tar‐
get waited longer periods—120 to 150 days in some circumstances—to
deactivate the Guest Cards, and the approximately 12,000 customers
who somehow had active Guest Cards and Visas simultaneously. Both of
these groups could have used the Guest Card account and the Visa ac‐
count at the same time, and may therefore fall outside the Board’s defini‐
tion of an acceptable substitution. But Acosta and Roman are not among
this group, and they cannot pursue the potentially valid claims of others.
No. 13‐2706 11
The Visa was therefore a valid substitution for the Guest
Card, both as the word is commonly understood and as the
Board has interpreted the term for the purposes of TILA.
B. Section 1637(c)
Section 1637(c) is a disclosure statute, which means that it
governs the content and form of disclosures for new credit
accounts. The central question here is whether Target’s issu‐
ance of the Visas opened a new account, or merely changed
an existing one. In the former case, the issuer must make cer‐
tain initial disclosures, which must be presented in tabular
format in a so‐called “Schumer Box.”6 15 U.S.C. § 1637(c); 12
C.F.R. § 226.6(b)(1). In the latter, the issuer must also make
certain disclosures, but need not place the information in a
table. 12 C.F.R. § 226.9(c)(2). Target’s mailings between 2004
and 2007 did not include a Schumer Box, but they complied
with § 226.9(c)(2).
In the case of substitutions, the difference between new
accounts and changes to existing accounts is fuzzy, and the
statute is ambiguous. When the Autosub programs were
implemented, Regulation Z and the Board commentary were
silent on what constituted a new account and therefore re‐
quired initial disclosures. However, in 2009, Congress
passed the Credit Card Accountability Responsibility and
Disclosure (CARD) Act. Pub. L. No. 111‐24, 123 Stat. 1734.
The CARD Act amended § 1637 of TILA, and these changes
were incorporated into the regulations. The Board also is‐
6 So named for Senator Charles Schumer, who was the chief proponent
of requiring tabular formatting for initial disclosures when TILA was
being shaped and debated. Roberts v. Fleet Bank (R.I.), 342 F.3d 260, 263
n.1 (3d Cir. 2003).
12 No. 13‐2706
sued a new commentary, “to clarify the application of the
disclosure requirements … when one credit card account is
substituted or replaced with another.” Truth in Lending, 74
Fed. Reg. 54124‐01 (proposed Oct. 21, 2009).
The new commentary incorporates a flexible approach
for card issuers, and it prescribes a six‐factor inquiry to de‐
cide if a substitution results in a new account requiring ini‐
tial disclosures. 12 C.F.R. pt. 226, Supp. I, ¶ 5(b)(1)(i)(6). In
the district court, Target conceded that the new commen‐
tary—if it applied—required it to treat the Autosubbed Visas
as new accounts. But the district court concluded that the
2010 commentary was only applicable to post‐CARD Act
conduct, and Plaintiffs have not appealed this ruling, thus
waiving any argument that the commentary should apply to
their case.7
Of course, it is still possible that the Autosubbed Visas
should have been treated as a new account under TILA and
Regulation Z as they existed in 2004–2007. The district court
never addressed this question, and we have located no case
law or administrative materials on point.
Target points to a broad definition from Black’s Law Dic‐
tionary, which defines “account” as a “detailed statement of
the debits and credits between parties to a contract or to a
7 Plaintiffs do argue that the 2004 amendments to Regulation Z and ac‐
companying Board commentary should apply. But this commentary, by
its terms, applies only to accounts that have been closed. 12 C.F.R. pt.
226, Supp. I, ¶ 5(b)(1)(i)(3). The Guest Card accounts of Roman, and pre‐
sumably other members of the putative class, were inactive, but nothing
indicates that they were actually closed. There is a difference between an
account closed due to inactivity—which is contemplated in the commen‐
tary—and an account that remains open, but inactive.
No. 13‐2706 13
fiduciary relationship; a reckoning of monetary dealings[; or
a] course of business dealings or other relations for which
records must be kept.” Black’s Law Dictionary 19 (9th ed.
2009). Target’s reliance on this expansive definition—
encompassing the total relationship between the parties—
was reasonable and supports Target’s theory that the Visas
did not create a new account. Target had no way of knowing
during the early‐ and mid‐2000s that the Autosubbed Visas
would violate § 1637, and so Target made the reasonable
judgment that new account disclosures were not required.
Even the new Board commentary contemplates some substi‐
tutions where new account disclosures are not required in a
post‐CARD Act world. We do not suggest that the current
Board commentary is an impermissible construction of the
statute, only that Target’s interpretation was reasonable, too.
We therefore decline to hold Target liable for a change it
could not predict. Cf. Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156, 2167 (2012) (before imposing financial liabil‐
ity on regulated parties, “agencies should provide … fair
warning of the conduct a regulation prohibits or requires”
(internal quotation marks and citation omitted)).
C. State‐law fraud
Plaintiffs next allege that they were fraudulently induced
to accept the Visa. Both parties agree that the credit agree‐
ments and any dispute between Target and cardholders are
governed by South Dakota law. South Dakota fraudulent in‐
ducement law is unexceptional, and requires:
that a representation [1] was made as a state‐
ment of fact, [2] which was untrue and [3]
known to be untrue by the party making it, or
else recklessly made; that it [4] was made with
14 No. 13‐2706
intent to deceive and for the purpose of induc‐
ing the other party to act upon it; and that [5]
he did in fact rely on it and was induced there‐
by to act to his injury or damage.
N. Am. Truck & Trailer, Inc. v. M.C.I. Commc’n Servs., Inc., 751
N.W.2d 710, 713 (S.D. 2008). Misrepresentations can also “in‐
clude true statements which the maker knows or believes to
be materially misleading because of his failure to state addi‐
tional qualifying matter. Maybee v. Jacobs Motor Co., Inc., 519
N.W.2d 341, 343 (S.D. 1994) (citing Restatement (Second) of
Torts § 229 (1977)).
Plaintiffs’ fraud allegations include two primary mis‐
deeds: (1) that Target misled Guest Card holders into believ‐
ing that their APRs and credit limits would not be adjusted,
when in fact they would be, and (2) that Target misled Guest
Card holders into believing that they were required to ex‐
change their Guest Cards for Visas in order to maintain a
credit account with Target.
Plaintiffs claim that the advertised APR and credit limits
included with the credit card carrier were “bait and switch”
tactics, because many customers would eventually be subject
to a higher APR and credit limit. Target made no representa‐
tions about the customer’s ability to keep a specific credit
limit or a certain APR, but Plaintiffs argue that the materials
implicitly made these promises. Yet Target included sum‐
maries of the differences between the Guest Card and Visa,
which laid out the different application of penalty APRs and
credit limit reduction risks.
No. 13‐2706 15
We can dismiss the complaint of APR penalties straight‐
away—Target disclosed the reasons for a spike in the APR
and did not raise the rate unless payments were missed.
The potential for credit limit adjustment is different. Re‐
call that Target always started the Autosubbed Visas with a
credit limit of at least $1,000, even if the customer would not
have otherwise qualified for that limit. These Visas were
then subject to different underwriting criteria that governed
the credit limit going forward, which sometimes resulted in
the lowering of the limits (possibly without customers miss‐
ing any payments—the record is not clear). Target apparent‐
ly tried to prevent Autosubbed Visas from having their cred‐
it limits adjusted for the first six months after conversion,
but 0.01% of accountholders experienced a change in their
credit limit within a month of activating their Visas. Even so,
Target’s representations were not fraudulent. The Visa
agreement stated that Target was free to change credit limits
“for any reason not prohibited by law, including, but not
limited to, changes in your credit capacity, your pattern of
payments to us, or your purchasing behavior.” Target never
promised that the rates or limits would stay in effect for any
specific length of time. Plaintiffs have therefore not demon‐
strated that the information accompanying the Autosubbed
Visas was inaccurate or intended to be inaccurate under
South Dakota law.
Plaintiffs’ final claim of fraud alleges that Target induced
them to activate their Visa accounts because the Autosub
mailings did not inform Guest Card holders that it was pos‐
sible to maintain their Guest Card account if they took af‐
firmative steps to do so. Instead, the mailings simply said
that if a cardholder activated the Visa, their Guest Card
16 No. 13‐2706
would be deactivated, and that if a cardholder did nothing
their Guest Card account would be closed. But, as the district
court noted, unless Visa recipients took affirmative steps to
maintain their Guest Card account, it would close, which
means that the disclosure was truthful.
South Dakota law does permit fraud claims to proceed
where a party makes true statements but omits “qualifying
matter.” Maybee, 519 N.W.2d at 343. Nevertheless, Target’s
omitting the fact that cardholders could maintain their Guest
Cards by taking additional steps was not fraudulent. As the
district court noted, Plaintiffs’ position might require Target
to disclose any condition that could theoretically be negoti‐
ated with the card issuer. We see no compelling reason to
deem Target’s conduct fraudulent.
D. Breach of contract
Plaintiffs also claim that Target breached its contract with
them—the Guest Card agreement—by sending the Visa with
its new agreement. While South Dakota law construes credit
card agreements narrowly and against the creditor, see Citi‐
bank (S.D.), N.A. v. Hauff, 668 N.W.2d 528, 532 (S.D. 2003),
standard contract interpretation principles still apply to
credit card agreements. Id. at 532–33.
Plaintiffs argue that the provision in the Guest Card
agreement that permitted Target to “limit or cancel” their
accounts prevented Target from “upgrading” their accounts
to a Visa, which added features, as opposed to merely “lim‐
it[ing]” them. But this argument ignores another provision
in the contract, which permits Target to “change this
Agreement and apply those changes to the existing balance.”
Plaintiffs argue that if this latter language permits Target to
No. 13‐2706 17
expand features on the account, then the “limit or cancel”
provision would have no effect, and that this construction
should therefore be avoided. However, it is not clear why
that would be the case; a more natural reading is that the
provision makes clear Target’s ability to cancel the account.
The ability to “change the Agreement” might otherwise be
read only to include changes that continue the account on
different terms, and not the ability to cancel the account for
any reason. Target may have just been making plain its abil‐
ity to close the account entirely.
In the alternative, plaintiffs argue that Target’s right to
make changes to “this Agreement and apply those changes
to the existing balance” means that Target could make any
changes it chose to the Guest Card agreement, but that Tar‐
get was not free to substitute the entirely new Visa agree‐
ment in its stead. But there was nothing in the agreement
that limited the scope of changes that Target was free to
make. And anytime Target made changes to a credit agree‐
ment, it had to send out the revisions to customers; when
revisions were substantial, it often made sense to send an
entirely new document (as opposed to just the revised por‐
tions). The Visa agreement made substantial changes to the
existing contract, so Target sent out an entirely new docu‐
ment. Plaintiffs’ position is without support, save general
pronouncements about construing credit agreements nar‐
rowly. We find that Target did not breach the Guest Card
agreements.
E. Tortious interference and other claims
Plaintiffs also allege tortious interference with a business
relationship against Target Corporation. We use the corpora‐
tion label specifically here, because the Guest Cards and Vi‐
18 No. 13‐2706
sas were actually issued by Target’s wholly owned subsidi‐
ary, Target National Bank. Plaintiffs allege that Target Cor‐
poration directed Target National Bank to convert the Guest
Cards into Visas. They claim that by doing so, Target caused
Plaintiffs and others to lose their Guest Cards unjustifiably,
thus interfering with their relationship with Target National
Bank.
Plaintiffs cannot make out this claim under South Dakota
law. Tortious interference in South Dakota requires, among
other things, an intentional and unjustified act of interfer‐
ence by the tortfeasor. See St. Onge Livestock Co., Ltd. v. Cur‐
tis, 650 N.W.2d 537, 541 (S.D. 2002). Target acted in accord‐
ance with its contracts and with applicable laws, which
makes liability for tortious interference impossible here.
Dykstra v. Page Holding Co., 766 N.W.2d 491, 500 (S.D. 2009).
Plaintiffs’ claims for an implied trust, declaratory relief,
and class certification were derivative of their other claims.
Because their other claims fail, these do as well.
III. Conclusion
Target’s Autosub program did not violate the Truth in
Lending Act or state law. The district court’s decision is
AFFIRMED.