On March 29, 2016, U.S. District Judge Alison Nathan in the case of Abigail Strubel, Plaintiff v Capital One Bank. N.A., Defendant granted summary judgment against a putative class action alleging that the Garamond LC font used by Capital One Bank in its credit card applications was not “clear and conspicuous” as required by the Truth in Lending Act. The plaintiffs argued that the commentary provided by the Consumer Financial Protection Bureau (CFPB) indicated that no font smaller than 10-point Arial 10-point could be used. The judge opined that while the CFPB commentary provides specific guidance on steps to make the disclosures “readable,” it did not require that application disclosures be made only in 10-point Arial or a font of the same size.
It is undisputed that the Disclosures are printed in 10-point type (except where required to be in 16-point type), as required by the Commentary. However, it is also undisputed that the Disclosures were printed in a font, Garamond LC, that is smaller than Arial, the font used in the model forms, at any given point size.
Judge Nathan’s opinion notes that while the 10-point font is required, font size is merely a ratio of the size of the letters to other sizes within the same font. Thus, the true size of 10-point fonts can vary widely across fonts (from the large Arial to the miniscule Angsana New, as Judge Nathan notes). As a result, Judge Nathan employed a fact-specific inquiry to determine that Garamond LC’s letters were not “unreasonably small” when compared to Arial, and not so small that “it would not be readily noticeable to a hypothetical consumer.” The Court found that the portion of the Commentary on which Strubel relies differentiates font style from font size, and makes clear that only the latter is required.
For the reasons set forth above, Strubel’s motion for summary judgment on liability was denied, and Capital One’s motion was granted.
Obviously the case involved a very picky disclosure requirement. A different result may have occurred had the Capital One’s disclosure used a different font style that was less readily noticeable. Our advice has consistently been to create and use forms that follow the model forms as closely as possible.