MEMORANDUM OPINION
DOWD, District Judge.
This case presents the threshold issue of whether the plaintiff enjoys a private remedy for alleged credit advertising violations, pursuant to 15 U.S.C. § 1664.
The plaintiff, John Smeyres, filed this class action against defendants, General Motors Corporation (GMC), General Motors Acceptance Corporation (GMAC), and Family Pontiac, Inc., alleging that GMC and GMAC had been advertising the availability of 7.7% financing for 1985 models of GM vehicles through October 2, 1985 excepting certain stated models. Plaintiff further avers that on August 19, 1985, the plaintiff purchased a 1985 GM model from Family Pontiac, an authorized GMC dealer. Plaintiff claims that the vehicle he purchased was a model not expressly excepted in advertisements announcing the availability of 7.7% financing. Plaintiff claims that, contrary to their advertisement, the defendants did not make 7.7% financing available on the GM model which the plaintiff purchased, ostensibly because it was assembled or manufactured in Canada. According to the plaintiff, he was required to finance his purchase through a bank at a 12.75% rate of interest because of his inability to purchase the 7.7% financing on his vehicle. The plaintiff purports to bring this action as the representative of a putative class consisting of a claimed 100,000 purchasers of GM vehicles who were allegedly denied the advertised 7.7% financing.
Before the Court are the motions of Family Pontiac, GMC, and GMAC to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The plaintiff opposes the motions. For the reasons that follow, the motions are granted and this action is dismissed.
The determinative issue before the Court is whether a private cause of action exists under § 1664 or any of the other Credit Advertising Provisions of the Truth In Lending Act. The statutory section upon which plaintiff bases his claim, 15 U.S.C. § 1664, is a portion of the Credit Advertising Provisions (Part C, which encompasses §§ 1661—1665a inclusive) of the Truth In Lending Act (Act). Part C itself is one of five divisions (Parts A through E) of Sub-chapter I of the Act (Subchapter I encompasses §§ 1601—1667e inclusive).
Of special interest within Subchapter I is § 1640, which section ostensibly governs civil liability thereunder. Section 1640 explicitly provides for civil liability with re
spect to Parts B, D, and E of Subchapter I, but does not expressly impose civil liability with respect to Part C, and more specifically, with respect to § 1664.
Thus, § 1640 clearly does not confer original subject matter jurisdiction in the federal courts over a private individual’s allegation of violation of the Credit Advertising Provisions (Part C) of the Act.
See Jordan v. Montgomery Ward & Co.,
442 F.2d 78 (8th Cir.1971),
cert. denied,
404 U.S. 870, 92 S.Ct. 78, 30 L.Ed.2d 114 (1971).
Moreover, there is no express civil liability provision within Part C of itself.
Plaintiff advances essentially three arguments to support his premise that a private cause of action implicitly exists for violations of § 1664 (Part C), notwithstanding the fact that the civil liabilities section, § 1640, does not specifically provide one, and notwithstanding the fact that Part C itself does not expressly confer any civil remedy. First, plaintiff argues that because § 1665 (a provision within Part C of the Act) expressly excludes owners and personnel of any medium disseminating improper advertisements from liability under Part C, then by inference all non-media entities
are
otherwise subject to liability thereunder. This argument, however, is not well taken. The “liability" which § 1665 speaks of is that which may be imposed pursuant to § 1611. Section 1611 imposes criminal liability on anyone who fails to comply with any requirement of Subchapter I (Parts A through E inclusive).
Second, plaintiff contends that courts have recognized private causes of action for violations of § 1671 of the Act even though no civil remedy is expressly provided for such violations within the Act.
See, e.g., Steward v. Travelers Corporation,
503 F.2d 108 (9th Cir.1974). Section 1671, however, is within Subchapter II of the Act. Subchapter II contains no civil liability section analogous to § 1640, the civil liabilities section applicable to Subchapter I.
Moreover,
Steward
represents a minority viewpoint as to the existence of a private cause of action under § 1671.
The Court does not find this contention persuasive on the issue of whether private remedies implicitly exist under Part C (§ 1664) of Subchapter I.
Finally, plaintiff relies upon the four-prong test of
Cort v. Ash,
422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for his contention that a private cause of action implicitly exists under § 1664.
Cort
requires analysis of the following questions for determining whether a private right of action is available under a federal statute:
First, is the plaintiff “one of the class for whose
especial
benefit the statute was enacted,” ... that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law? ____
Id.
at 78, 95 S.Ct. at 2088 (emphasis in original) (citations omitted).
In the recent decision of
Howard v. Pierce,
738 F.2d 722 (6th Cir.1984), the Sixth Circuit addressed the first of the
Cort
factors. Judge Celebrezze, writing for the majority, analyzed at length the question of whether a plaintiff is an intended beneficiary of the statute so as to create or require a federal right in favor of the plaintiff:
The Supreme Court has been reluctant to imply a cause of action under statutes which create benefits for the general public ...
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MEMORANDUM OPINION
DOWD, District Judge.
This case presents the threshold issue of whether the plaintiff enjoys a private remedy for alleged credit advertising violations, pursuant to 15 U.S.C. § 1664.
The plaintiff, John Smeyres, filed this class action against defendants, General Motors Corporation (GMC), General Motors Acceptance Corporation (GMAC), and Family Pontiac, Inc., alleging that GMC and GMAC had been advertising the availability of 7.7% financing for 1985 models of GM vehicles through October 2, 1985 excepting certain stated models. Plaintiff further avers that on August 19, 1985, the plaintiff purchased a 1985 GM model from Family Pontiac, an authorized GMC dealer. Plaintiff claims that the vehicle he purchased was a model not expressly excepted in advertisements announcing the availability of 7.7% financing. Plaintiff claims that, contrary to their advertisement, the defendants did not make 7.7% financing available on the GM model which the plaintiff purchased, ostensibly because it was assembled or manufactured in Canada. According to the plaintiff, he was required to finance his purchase through a bank at a 12.75% rate of interest because of his inability to purchase the 7.7% financing on his vehicle. The plaintiff purports to bring this action as the representative of a putative class consisting of a claimed 100,000 purchasers of GM vehicles who were allegedly denied the advertised 7.7% financing.
Before the Court are the motions of Family Pontiac, GMC, and GMAC to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The plaintiff opposes the motions. For the reasons that follow, the motions are granted and this action is dismissed.
The determinative issue before the Court is whether a private cause of action exists under § 1664 or any of the other Credit Advertising Provisions of the Truth In Lending Act. The statutory section upon which plaintiff bases his claim, 15 U.S.C. § 1664, is a portion of the Credit Advertising Provisions (Part C, which encompasses §§ 1661—1665a inclusive) of the Truth In Lending Act (Act). Part C itself is one of five divisions (Parts A through E) of Sub-chapter I of the Act (Subchapter I encompasses §§ 1601—1667e inclusive).
Of special interest within Subchapter I is § 1640, which section ostensibly governs civil liability thereunder. Section 1640 explicitly provides for civil liability with re
spect to Parts B, D, and E of Subchapter I, but does not expressly impose civil liability with respect to Part C, and more specifically, with respect to § 1664.
Thus, § 1640 clearly does not confer original subject matter jurisdiction in the federal courts over a private individual’s allegation of violation of the Credit Advertising Provisions (Part C) of the Act.
See Jordan v. Montgomery Ward & Co.,
442 F.2d 78 (8th Cir.1971),
cert. denied,
404 U.S. 870, 92 S.Ct. 78, 30 L.Ed.2d 114 (1971).
Moreover, there is no express civil liability provision within Part C of itself.
Plaintiff advances essentially three arguments to support his premise that a private cause of action implicitly exists for violations of § 1664 (Part C), notwithstanding the fact that the civil liabilities section, § 1640, does not specifically provide one, and notwithstanding the fact that Part C itself does not expressly confer any civil remedy. First, plaintiff argues that because § 1665 (a provision within Part C of the Act) expressly excludes owners and personnel of any medium disseminating improper advertisements from liability under Part C, then by inference all non-media entities
are
otherwise subject to liability thereunder. This argument, however, is not well taken. The “liability" which § 1665 speaks of is that which may be imposed pursuant to § 1611. Section 1611 imposes criminal liability on anyone who fails to comply with any requirement of Subchapter I (Parts A through E inclusive).
Second, plaintiff contends that courts have recognized private causes of action for violations of § 1671 of the Act even though no civil remedy is expressly provided for such violations within the Act.
See, e.g., Steward v. Travelers Corporation,
503 F.2d 108 (9th Cir.1974). Section 1671, however, is within Subchapter II of the Act. Subchapter II contains no civil liability section analogous to § 1640, the civil liabilities section applicable to Subchapter I.
Moreover,
Steward
represents a minority viewpoint as to the existence of a private cause of action under § 1671.
The Court does not find this contention persuasive on the issue of whether private remedies implicitly exist under Part C (§ 1664) of Subchapter I.
Finally, plaintiff relies upon the four-prong test of
Cort v. Ash,
422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for his contention that a private cause of action implicitly exists under § 1664.
Cort
requires analysis of the following questions for determining whether a private right of action is available under a federal statute:
First, is the plaintiff “one of the class for whose
especial
benefit the statute was enacted,” ... that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law? ____
Id.
at 78, 95 S.Ct. at 2088 (emphasis in original) (citations omitted).
In the recent decision of
Howard v. Pierce,
738 F.2d 722 (6th Cir.1984), the Sixth Circuit addressed the first of the
Cort
factors. Judge Celebrezze, writing for the majority, analyzed at length the question of whether a plaintiff is an intended beneficiary of the statute so as to create or require a federal right in favor of the plaintiff:
The Supreme Court has been reluctant to imply a cause of action under statutes which create benefits for the general public ... Although the plaintiff may be a member of the public and thus an intended beneficiary of the statute, the likelihood that Congress intended members of the general public to enforce such statutes is not great. In contrast, the inference that Congress intended to create legally enforceable rights is strongest when the statutory language focuses unmistakably on a specific and identifiable class of beneficiaries ... Accordingly, an implied cause of action may be found when language in the pertinent statute expresses an ‘unmistakable focus on the benefited class’ of which the plaintiff is a member.
Id.
at 725-26 (citations omitted). An examination of 15 U.S.C. § 1664 fails to disclose any Congressional focus on any identifiable class of beneficiaries. Rather, the benefits of 15 U.S.C. § 1664 accrue to the general public. In sum, the Court finds that the plaintiff is not one of a class for whose “especial benefit” 15 U.S.C. § 1664 was enacted.
Turning to the second question, the Court finds an “indication” of legislative intent to deny a private remedy under Part C of the Act (including § 1664). By its failure to expressly provide for private remedies under Part C of the Act within the civil liabilities section, § 1640, the legislature has implicitly indicated its intent that there be no such private recovery under Part C (including § 1664).
Touche Ross & Co. v. Redington,
442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), is an example of a decision where a finding of the absence of a private remedy was based in part upon the statutory scheme. Justice Rehnquist, writing for the majority, states that
[further justification for our decision not to imply the private remedy that SIPC and the Trustee seek to establish may be found in the statutory scheme of which § 17(a) is a part. First, § 17(a) is flanked by provisions of the 1934 Act that explicitly grant private causes of action. § 16(b), 15 U.S.C. § 78p(b); § 18(a), 15 U.S.C. § 78r(a). Section 9(e) of the 1934 Act also expressly provides a private right of action. 15 U.S.C. § 78i(e). See also § 20, 15 U.S.C. § 78t. Obviously, then, when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly.
Id.
at 571-72, 99 S.Ct. at 2487. Similarly, Congress expressly provided for private remedies for violations of Parts B, D, and E of Subchapter I; had Congress intended a private remedy for violations of Part C, “it knew how to do so,” but chose not to.
The Court finds its analysis of the first two
Cort
factors dispositive,
see Touche Ross & Co. v. Redington,
442 U.S. at 580,
99 S.Ct. at 2491 (Brennan, J., concurring), and concludes that no private cause of action exists under Part C of Subchapter I of the Truth In Lending Act, including § 1664 within Part C under which plaintiff has sought to maintain this action. Accordingly, the Court grants the motions of the defendants, Family Pontiac, Inc., General Motors Corporation, and General Motors Acceptance Corporation, to dismiss this action pursuant to Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
IT IS SO ORDERED.