LYNCH, Circuit Judge.

Lucas Rosa sued the Park West Bank & Trust Co. under the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691-1691f, and various state laws. He alleged that the Bank refused to provide him with a loan application because he did not come dressed in masculine attire and that the Bank’s refusal amounted to sex discrimination under the Act. The district court granted the Bank’s motion to dismiss the ECOA claim, Fed.R.Civ.P. 12(b)(6); concurrently, the court dismissed Rosa’s pendent state law claims for lack of subject matter jurisdiction. Rosa appeals and, given the standards for dismissing a case under Rule 12(b)(6), we reverse.

I.

According to the complaint, which we take to be true for the purpose of this appeal, see Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 3 (1st Cir.1998), on July 21, 1998, Rosa came to the Bank to apply for a loan. A biological male, he was dressed in traditionally feminine attire. He requested a loan application from Norma Brunelle, a bank employee. Brunelle asked Rosa for identification. Rosa produced three forms of photo identification: (1) a Massachusetts Department of Public Welfare Card; (2) a Massachusetts Identification Card; and (3) a Money Stop Check Cashing ID Card. Brunelle looked at the identification cards and told Rosa that she would not provide him with a loan application until he “went home and changed.” She said that he had to be dressed like one of the identification cards in which he appeared in more traditionally male attire before she would provide him with a loan application and process his loan request,

II.

Rosa sued the Bank for violations of the ECOA and various Massachusetts antidis-crimination statutes, see Mass. Gen. Laws ch. 272, §§ 92A, 98; id. ch. 151B, § 4(14). Rosa charged that “[b]y requiring [him] to conform to sex stereotypes before proceeding with the credit transaction, [the Bank] unlawfully discriminated against [him] with respect to an aspect of a credit transaction on the basis of sex.” He claims to have suffered emotional distress, including anxiety, depression, humiliation, and extreme embarrassment. Rosa seeks damages, attorney’s fees, and injunctive relief.

Without filing an answer to the complaint, the Bank moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the Bank’s motion. The court stated:

[T]he issue in this case is not [Rosa’s] sex, but rather how he chose to dress when applying for a loan. Because the Act does not prohibit discrimination based on the manner in which someone dresses, Park West’s requirement that Rosa change his clothes does not give rise to claims of illegal discrimination. Further, even if Park West’s statement or action were based upon Rosa’s sexual orientation or perceived sexual orientation, the Act does not prohibit such discrimination.

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1988), which Rosa relied on, was not to the contrary, according to the district court, because that case “neither holds, nor even suggests, that discrimination based merely on a person’s attire is impermissible.”

On appeal, Rosa says that the district court “fundamentally misconceived the law as applicable to the Plaintiffs claim by concluding that there may be no relationship, as a matter of law, between telling a bank customer what to wear and sex discrimination.” Rosa also says that the district court misapplied Rule 12(b)(6) when it, allegedly, resolved factual questions.

The Bank says that Rosa loses for two reasons. First, citing cases pertaining to *215gays and transsexuals, it says that the ECOA does not apply to crossdressers. Second, the Bank says that its employee genuinely could not identify Rosa, which is why she asked him to go home and change.

III.

We review a motion to dismiss de novo. See Duckworth, 152 F.3d at 3. In interpreting the ECOA, this court looks to Title VII ease law, that is, to federal employment discrimination law. See Mercado-Garcia v. Ponce Fed. Bank, 979 F.2d 890, 893 (1st Cir.1992) (applying the Title VII burden-shifting regime to ECOA); see also, e.g., Lewis v. ACB Bus. Servs. Inc., 135 F.3d 389, 406 (6th Cir.1998) (same). But see Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 713-15 (7th Cir.1998) (rejecting the Title VII burden-shifting model for ECOA). The Bank itself refers us to Title VII case law to interpret the ECOA.

The ECOA prohibits discrimination, “with respect to any aspect of a credit transaction[,] on the basis of race, color, religion, national origin, sex or marital status, or age.” 15 U.S.C. § 1691(a). Thus to prevail, the alleged discrimination against Rosa must have been “on the basis of ... sex.” See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). The ECOA’s sex discrimination prohibition “protects men as well as women.” Id.

While the district court was correct in saying that the prohibited bases of discrimination under the ECOA do not include style of dress or sexual orientation, that is not the discrimination alleged. It is alleged that the Bank’s actions were taken, in whole or in part, “on the basis of ... [the appellant’s] sex.” The Bank, by seeking dismissal under Rule 12(b)(6), subjected itself to rigorous standards. We may affirm dismissal “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). Whatever facts emerge, and they may turn out to have nothing to do with sex-based discrimination, we cannot say at this point that the plaintiff has no viable theory of sex discrimination consistent with the facts alleged.

The evidence is not yet developed, and thus it is not yet clear why Brunelle told Rosa to go home and change. It may be that this case involves an instance of disparate treatment based on sex in the denial of credit. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“ ‘Disparate treatment’ ... is the most easily understood type of discrimina,tion. The employer simply treats some people less favorably than others because of their ... sex.”); Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 610 (9th Cir.1982) (en banc), cert. denied, 460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983) (invalidating airline’s policy of weight limitations for female “flight hostesses” but not for similarly situated male “directors of passenger services” as impermissible disparate treatment); Carroll v. Talman Fed. Sav. & Loan Assoc., 604 F.2d 1028, 1033 (7th Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1316, 63 L.Ed.2d 762 (1980) (invalidating policy that female employees wear uniforms but that similarly situated male employees need wear only business dress as impermissible disparate treatment); Allen v. Lovejoy, 553 F.2d 522, 524 (6th Cir.1977) (invalidating rule requiring abandonment upon marriage of surname that was applied to women, but not to men). It is reasonable to infer that Bru-nelle told Rosa to go home and change because she thought that Rosa’s attire did not accord with his male gender: in other words, that Rosa did not receive the loan application because he was a man, whereas a similarly situated woman would have received the loan application. That is, the Bank may treat, for credit purposes, a woman who dresses like a man differently *216than a man who dresses like a woman. If so, the Bank concedes, Rosa may have a claim. Indeed, under Pnce Waterhouse, “stereotyped remarks [including statements about dressing more ‘femininely’] can certainly be evidence that gender played a part.” Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775. It is also reasonable to infer, though, that Brunelle refused to give Rosa the loan application because she thought he was gay, confusing sexual orientation with cross-dressing.1 If so, Rosa concedes, our precedents dictate that he would have no recourse under the federal Act. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir.1999). It is reasonable to infer, as well, that Brunelle simply could not ascertain whether the person shown in the identification card photographs was the same person that appeared before her that day. If this were the case, Rosa again would be out of luck. It is reasonable to infer, finally, that Brunelle may have had mixed motives, some of which fall into the prohibited category.

It is too early to say what the facts will show; it is apparent, however, that, under some set of facts within the bounds of the allegations and non-conclusory facts in the complaint, Rosa may be able to prove a claim under the ECOA. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (stating that the notice pleading permitted by the federal rules requires only “‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests”); Langadinos v. American Airlines, Inc., 199 F.3d 68, 72-73 (1st Cir.2000); Fed. R.Civ.P. 8(a).

We reverse and remand for further proceedings in accordance with this opinion.

BOOCHEVER, Circuit Judge:

Virginia Miller brought an action in district court alleging a violation of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691 et seq., after her American Express card was cancelled following the death of her husband. At issue is whether the American Express Company’s (Amex) policy of automatically cancelling a supplementary cardholder’s account upon the death of the basic cardholder violated the ECOA. The district court granted Amex’s motion for summary judgment. We reverse.

*1237FACTS

Maurice Miller, plaintiff’s late husband, applied for and received an American Express credit card in 1966. His account was denominated a Basic Card Account. Later in 1966, plaintiff Virginia Miller applied for and was granted a supplementary card. Her application was signed by her husband as the basic cardholder and by her. Mrs. Miller agreed to be personally liable for all charges made on her supplementary card. Her card bore a different account number from her husband’s card, was issued in her own name, required a separate annual fee, and bore a different expiration date from Mr. Miller’s card. The Millers used their American Express cards until Mr. Miller passed away in May, 1979. Two months after her husband’s death, Mrs. Miller attempted to use her card during a shopping trip and was informed by the store clerk that her account had been cancelled. This was the first notice she received of the cancellation. Subsequently, Amex informed her that her account had been can-celled pursuant to a policy of automatically terminating the account of a supplementary cardholder upon the death of a basic cardholder. Amex invited her to apply for a basic account. Her application for a new account consisted merely of filling out a short form, entitled “Request to Change Membership status from Supplementary to Basic Card member,” which did not require any financial or credit history data. Amex issued Mrs. Miller a new card, apparently on the basis of her thirteen year credit history in the use of the card it had just cancelled. Mrs. Miller brought suit against Amex for violation of the ECOA.

In the district court, the parties made cross motions for summary judgment on the issue of liability. Mrs. Miller argued that because her supplementary card had been cancelled after a change in her marital status, 12 C.F.R. § 202.7(c) had been violated, giving rise to a cause of action under the ECOA. Amex argued that Mrs. Miller was not within the terms of the regulation, and that she had not raised an issue of fact as to whether its allegedly uniform cancellation policy was discriminatory in motive or effect. The court awarded summary judgment to Amex without specifying its reasons.

ANALYSIS

The issues on this appeal are whether Amex’s policy of cancelling a spouse’s supplementary account upon the death of the basic cardholder violates the ECOA and whether a plaintiff must always show discriminatory intent or effect to establish an ECOA violation. The facts are undisputed, therefore, we must decide whether the substantive law was correctly applied. Yazzie v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100, 102 (9th Cir. 1979). We hold that there has been credit discrimination within the meaning of the ECOA and that partial summary judgment on the issue of liability should have been granted to Mrs. Miller, rather than to Amex.

The ECOA makes it unlawful for any creditor to discriminate with respect to any credit transaction on the basis of marital status. 15 U.S.C. § 1691(a)(1). It also authorizes the Board of Governors of the Federal Reserve System (Board) to prescribe regulations, 15 U.S.C. § 1691b, and creates a private right of action for declaratory and equitable relief and for actual and punitive damages. 15 U.S.C. § 1691e.

In order to carry out the purposes of the ECOA, the Board promulgated the regulations codified at 12 C.F.R. §§ 201.1 et seq. Section 202.7(c)(1) provides that a creditor shall not terminate the account of a person who is contractually liable on an existing open end account on the basis of a change in marital status in the absence of evidence of inability or unwillingness to repay. Under certain circumstances, a creditor may require a reapplication after a change in the applicant’s marital status. 12 C.F.R. § 202.7(c)(2).

Mrs. Miller’s Amex card was cancelled after her marital status changed from married to widowed. Under § 202.7(c)(2), Amex could have asked her to reapply for credit, but instead it first terminated her card and then invited reapplication. There was no contention or evidence that her wid*1238owhood rendered Mrs. Miller unable or unwilling to pay, indeed, Amex’s prompt issuance of a new card to her indicates that she was considered creditworthy.

Amex has argued that there was no violation of the ECOA for three reasons: that Section 202.7(c) was beyond the scope of the Board’s authority, that Mrs. Miller was not “contractually liable on an existing open end account” within the meaning of § 202.-7(c), and that the termination did not constitute discrimination on the basis of marital status because it occurred pursuant to a policy of automatic cancellation of all supplementary cardholders whether they were widow, widower, sibling, or child of the basic cardholder. We hold that § 202.7(c) was within the scope of the Board’s authority under the ECOA, and that Mrs. Miller was within the protection of the regulation.

I

Authority for Section 202.7(c)

We reject Amex’s contention that the Board exceeded its authority in promulgating § 202.7(c), the regulation forbidding credit terminations “on the basis of” marital status. The Board is required to “prescribe regulations to carry out the purposes of [the ECOA].” 15 U.S.C. § 1691b. Although the ECOA outlaws credit “discrimination,” the meaning of that term must be defined with reference to the purposes of the Act. The history of the ECOA shows that it was meant to reach credit decisions based on factors such as sex, marital status, and race which are irrelevant to creditworthiness. S. Rep. No. 94-589, 94th Cong., 2d Sess. 3, reprinted in 1976 U.S. Code Cong. & Ad. News 403, 405-06. The Senate Report accompanying the 1976 amendments to the ECOA characterizes decisions made on the basis of such characteristics as “irrational discrimination.” Id.

In passing the ECOA, Congress contemplated that the Board would have significant flexibility in its enforcement authority. Conference Report No. 93-1429, 93d Cong., 2d Sess. reprinted in 1974 U.S. Code Cong. & Ad. News 6119, 6148, 6152-53. A definition of discrimination was deleted from the final bill in order to leave broad flexibility in the Board to specify what conduct would be prohibited. Id., S. 3492, 93d Cong., 2d Sess. § 702(8) (1974). Section 2.207(c) is directly addressed to one of the evils that the ECOA was designed to prevent: loss of credit because of widowhood. See generally 121 Cong. Rec. H27,135 (daily ed. Aug. 1, 1975) (statement of Rep. Sullivan). It was therefore within the discretion allowed the Board to define termination or credit as a result of the death of a spouse as credit discrimination.1

II

Application of Section 202.7(c)

A. Coverage of the Regulation: Contractual Liability on an Open End Account

By its terms, § 202.7(c) reaches only terminations of existing open end accounts on which the creditholder is contractually liable. “Open End Credit” is defined in 12 C.F.R. § 202.2(w) as “credit extended pursuant to a plan under which a creditor may permit an applicant to make purchases or obtain loan[s] from time to time. .. . ” “Contractually liable” means “expressly obligated to repay all debts arising on an account by reason of an agreement to that effect.” 12 C.F.R. § 202.2(i). Amex has argued that the reference to persons “contractually liable” was meant to exclude spouses who are only “users” of accounts. The Federal Reserve Board’s comments, made when the “contractually liable” phrase was added in 1975, indicate that the phrase was designed to exclude a “user” who might be liable for a specific debt charged to a spouse’s account, “but [who] is not liable on the contract creating the account.” 40 Fed.Reg. 49,298 (1975) (emphasis added).

*1239Mrs. Miller was not, however, merely a user of her husband’s basic account. She was personally liable under the contract creating her supplementary account for all debts charged on her card by any person. For example, Mrs. Miller would have been personally liable for even charges made on her supplementary card by her husband, the basic cardholder.

We are unconvinced by Amex’s argument that the supplementary account was created by the agreement establishing Mr. Miller’s basic card account. Mrs. Miller’s supplementary card was issued after the basic card account had been set up, and pursuant to a separate application which had to be signed by Mrs. Miller as well as by her husband. If the basic card account had already created the supplementary account, such prerequisites to a supplementary card, especially Mrs. Miller’s agreement to be liable, would be unnecessary.

Amex’s cardholder agreement provides that “by either signing, using or accepting the Card, you will be agreeing with us to everything written here” and that “[i]f you are a Supplementary Cardmember, you are liable to us for all Charges made in connection with the Card issued to you.... ” This language made Mrs. Miller “contractually liable” for all debts on her supplementary account.2

Other differences between Mrs. Miller’s card and her husband’s also persuade us that her supplementary account was in substance a separate account from her husband’s basic one. Her card was issued in her own name, carried an additional issuance fee, and had a different account number and expiration date from Mr. Miller’s card.

B. Termination on the Basis of Marital Status: Proof of Credit Discrimination The ECOA outlaws credit discrimination on the basis of marital status. The regulations proscribe particular adverse actions, including account terminations, which violate the Act if performed on the basis of marital status. Amex argues that it was entitled to summary judgment because Mrs. Miller did not attempt to show that Amex’s policy of cancelling all supplementary cardholders on the death of the basic cardholder either was adopted with discriminatory intent or had an adverse impact on widows as a class. In light of the purposes of the ECOA, we do not think such a restrictive interpretation of the regulation is warranted.

The ECOA was meant to protect women, among others, from arbitrary denial or termination of credit. See Anderson v. United Finance Co., 666 F.2d 1274, 1277 (9th Cir. 1982). It establishes “as clear national policy that no credit applicant shall be denied ... on the basis of characteristics that have nothing to do with his or her creditworthiness.” Equal Credit Opportunity Act Amendments of 1976, S. Rep. No. 94-589, 94th Cong., 2d Sess. 3, reprinted in 1976 U.S. Code Cong. & Ad. News 403, 405.

In Anderson, we held that there was credit “discrimination” within the meaning of the ECOA when a regulation promulgated under the ECOA was violated. No showing of any specific intent to discriminate was required. 666 F.2d at 1277. As another court has noted, not requiring proof of discriminatory intent is especially appropriate in analysis of ECOA violations because “discrimination in credit transactions is more likely to be of the unintentional, rather than the intentional, variety.” Cherry v. Amoco Oil Co., 490 F.Supp. 1026, 1030 (N.D. Ga. 1980).

If specific intent is not proved, we nevertheless do not think that a statistical showing of an adverse impact on women is always necessary to the plaintiff’s case. The ECOA’s history refers by analogy to the disparate treatment and adverse impact *1240tests for discrimination which are used in employment discrimination cases under Title VII. Although none has expressly so held, some district courts have treated the references in the history and regulations to Title VII as if the ECOA plaintiff’s prima facie case must always contain elements similar to those required under either the adverse impact or the disparate treatment tests used under Title VII. Sayers v. General Motors Acceptance Corp., 522 F.Supp. 835, 839-40 (W.D. Mo. 1981); Cragin v. First Federal Savings and Loan Ass’n., 498 F.Supp. 379, 384 (D. Nev. 1980); Cherry, 490 F.Supp. at 1026; Vander Missen v. Kellogg-Citizens National Bank, 481 F.Supp. 742 (E.D. Wis. 1979). These courts, like Amex here, relied on an incomplete reading of a passage from the Senate Report to the 1976 ECOA amendments. The Senate Report states that:

In determining the existence of discrimination . . . courts or agencies are free to look at the effects of a creditor’s practices as well as the creditor’s motives or conduct in individual transactions, (emphasis added)

S. Rep. No. 94-589, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad. News 403, 406. The report then cites two adverse impact employment discrimination cases “to serve as guidelines in the application of this Act.” Both cases are relevant to the “effects” test, analogous to adverse impact analysis in Title VII. Read in full, the Senate Report allows but does not limit proof of credit discrimination to the two traditional Title VII tests for employment discrimination. It also expressly recognizes that a creditor’s conduct in an individual transaction may be considered to determine the existence of credit discrimination, quite apart from intent or from a statistical showing of adverse impact.

The conduct here was squarely within that prohibited by § 202.7(c). Mrs. Miller’s account was terminated in response to her husband’s death and without reference to or even inquiry regarding her creditworthiness. It is undisputed that the death of her husband was the sole reason for Amex’s termination of Mrs. Miller’s credit. Amex contends that its automatic cancellation policy was necessary to protect it from non-creditworthy supplementary cardholders. The regulations, however, prohibit termination based on a spouse’s death in the absence of evidence of inability or unwillingness to repay. Amex has never contended in this action that the death of her husband rendered Mrs. Miller unable or unwilling to pay charges made on her card. The fact that the cancellation policy could also result in the termination of a supplemental cardholder who was not protected by the ECOA, such as a sibling or friend of the basic cardholder, does not change the essential fact that Mrs. Miller’s account was terminated solely because of her husband’s death. The interruption of Mrs. Miller’s credit on the basis of the change in her marital status is precisely the type of occurrence that the ECOA and regulations thereunder are designed to prevent.

We hold that the undisputed facts show, as a matter of law, that Amex violated the ECOA and regulations thereunder in its termination of Mrs. Miller’s supplementary card. For this reason, we reverse the district court’s grant of summary judgment for Amex and instruct that partial summary judgment should be awarded to Mrs. Miller on the issue of liability. The case is remanded for further proceedings consistent with this opinion.

POOLE, Circuit Judge,

dissenting.

The majority today holds in effect that a credit practice need not be discriminatory to violate the Equal Credit Opportunity Act (the Act). Because this holding is contrary to the clear language and purpose of the Act, I respectfully dissent.

Applicability of § 202.7(c)

Although a close question, I agree with the majority that American Express supplementary cardholders are “contractually liable on an existing open end account” and are thus protected by 12 C.F.R. §■ 202.7(c). In support of its argument that supplementary cardholders are merely “authorized users” of an account, American Express *1241points out that its agreement with card-members specifically states that only one account — the Basic Card Account — is established and supplementary cardholders are granted the right to use that account. However, what controls is not American Express’s characterization of its credit system, but the rights granted to and liabilities imposed upon the supplementary cardholder. The majority correctly finds that the liabilities imposed upon supplementary cardholders are inconsistent with mere “authorized user” status.

Violation of § 202.7(c)

It is a fact that American Express can-celled appellant’s supplementary card after the death of her husband. Section 202.7(c), however, does not prohibit the termination of an account after a change in an applicant’s marital status; it prohibits only the termination of an account “on the basis of” such a change. Since the change in appellant’s marital status was not the basis for American Express’s decision to cancel her supplementary card, there has been no violation of § 202.7(c).

Under the terms of the agreement by which it issues both basic and supplementary cards, American Express reserves the right to cancel a supplementary card if the basic cardholder is unable or unwilling to meet all the obligations relating either to the supplementary card or to the basic card account. It was undisputed that American Express uniformly cancels both the basic card account and all supplementary cards issued thereon upon the death of the basic cardholder, since the basic cardholder’s death renders him or her unable to meet these obligations. This is a neutral policy, evenhandedly applied whatever the relationship between the basic and supplementary cardholders, i.e., whether they are brother and sister, mother and son, father and daughter, or husband and wife. The fact that in a particular case the death of the basic cardholder also changes the marital status of the supplementary cardholder is thus entirely incidental and immaterial to the basis for the cancellation of the supplementary card. See Haynsworth v. South Carolina Electric and Gas Co., 488 F.Supp. 565, 567 (D.S. Car. 1979). See also FRB letter of January 12, 1976, CCH Consumer Credit Guide 142,080.

The holding that the cancellation of appellant’s card under such circumstances was “on the basis of” the change in her marital status is a construction of § 202.7(c) that is clearly contrary to the language and the purpose of the Act.1 The Act prohibits only those credit practices that discriminate against an applicant on any of a number of enumerated bases, such as sex or marital status. 15 U.S.C. § 1691(a). In other words, a creditor may not treat an applicant differently with respect to credit decisions, all other facts being the same, because of his or her sex or marital status. See Markham v. Colonial Mortgage Service Co. Associates, 605 F.2d 566, 569 (D.C. Cir. 1979). The purpose of the Act is “to eradicate credit discrimination waged against women, especially married women whom creditors traditionally refused to consider for individual credit.” Anderson v. United Finance Co., 666 F.2d 1274, 1277 (9th Cir. 1982). The regulations promulgated by the Board of Governors of the Federal Reserve System, including § 202.7(c), must be consistent with the purposes of the Act. 15 U.S.C. § 1691b(a). Thus, while the Board is given discretion in determining whether a particular type of discriminatory credit practice is the type the Act was meant to prohibit, see Anderson v. United Finance, supra, 666 F.2d at 1277, the regulations may nevertheless prohibit only those practices that are in fact discriminatory.2

American Express’s practice is not discriminatory since cancellation of supple*1242mentary cards is an evenhanded and uniform consequence suffered by all supplementary cardholders and is not at all operative because of a change in a cardholder’s marital status. The majority’s holding thus does not contribute to the eradication of credit discrimination. Rather, it prevents American Express from treating all supplementary cardholders alike and instead forces it to give preferential treatment to those supplementary cardholders who happen to have been married to the basic cardholder. Such a result stands the Act on its head.

Since appellant’s supplementary card was not cancelled on the basis of the change in her marital status, there was no violation of § 202.7(c) or the Act.3 I would therefore affirm the district court’s grant of summary judgment in favor of American Express.

ORDER GRANTING DEFENDANTS MOTION TO DISMISS

GERALD E. ROSEN, District Judge.

I. INTRODUCTION

Plaintiff Kim Williams filed her one-count Equal Credit Opportunity Act (“ECOA”) complaint in this action alleging that Defendant MBNA America Bank’s letter notifying her of its rejection of her credit card application did not comply with the ECOA’s notice requirements. Defendant MBNA now moves to dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff has responded to MBNA’s motion, to which response MBNA has replied.

Having reviewed and considered Plaintiffs Complaint, MBNA’s motion, and the parties’ briefs on the issues presented, the Court has determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Opinion and Order sets forth the Court’s ruling.

II. PERTINENT FACTS

The relevant facts are not complex and are not disputed.1

Plaintiff Kim Williams applied for an MBNA American Express credit card via telephone on May 2, 2006. Plaintiff first spoke with a telemarketer who input identifying and credit information she provided and, by computer, interfaced with Experi-an Information Services to obtain Plaintiffs credit history.2 Plaintiffs application *1017was then transferred by the MBNA computer system to a human MBNA credit analyst who personally spoke with Plaintiff.

From Plaintiff and Experian, MBNA was provided with the following information: (i) Plaintiff had a total revolving credit from a variety of sources in the amount of $26,596; (ii) of this amount, she had balances due on such revolving credit in the amount of $13,285; and (iii) although Plaintiffs household had a gross income of $70,000, Plaintiff herself had no income of her own (she was a student). Thus, as of May 2, 2006, Plaintiff had a total amount of unused credit available to her in the amount of $13,311.

MBNA’s credit analyst denied Plaintiffs application and informed Plaintiff of the denial during the May 2, 2006 telephone conversation with her. The credit analyst then assigned two “reason codes” (codes which specified the principal reasons credit was being denied) — 1010 and 1020 — to Plaintiffs application, and input them into the MBNA system. The reason codes were assigned respectively to the following two reasons (i) “You have sufficient balances on your revolving credit lines;” and (ii) “You have sufficient credit available considering your income.” The credit analyst explained these reason codes to Plaintiff during the May 2, 2006 telephone conversation, as well.

The MBNA system then automatically incorporated the text corresponding to the reason codes into a form letter to be sent to Plaintiff denying her application for credit and specifying that these were the principal reasons her credit application was being denied. The letter was dated May 2, 2006 and was mailed to Plaintiff the same day or shortly thereafter. Plaintiff does not deny receiving this letter. In fact, the letter is at the heart of Plaintiffs Complaint.

The first page of the May 2, 2006 letter stated as follows:

After careful review, we are unable to approve your request because you have sufficient balances on your revolving credit lines and you have sufficient credit available considering your income. Our credit decision was based in whole or in part on information obtained in a report from Experian, National Consumer Assistance Center, P.O. Box 2002, Allen, TX 75013-0036, 1-888-297-2472, www.experian.com/reportaccess.

If you have any information that may enable us to reconsider this decision, please write to MBNA, P.O. Box 15023, Wilmington, DE 19850-5023.

Sincerely,

Don Hamilton

Credit department

Please see the next page of this letter for important information.

See Defendant’s Ex. 1 (emphasis added).3

The second page of the letter contained various notices and, in relevant part, in*1018formed Plaintiff that she had a right to a free copy of her credit report from Experi-an if she requested it within sixty days from receipt of the letter, and if she discovered any inaccurate or incomplete information in her credit report, she could dispute the matter with Experian.

Plaintiff does not dispute that as of May 2, 2006, she was a student, nor does she dispute that she had a total revolving line of credit from a variety of sources in the amount of $26,596, or that she had balances due on such revolving credit in the amount of $13,285, leaving her $13,311 in available credit. Rather, her dispute with MBNA arises out of the language used by MBNA in its letter. She contends that the reasons provided by MBNA indicating that her American Express credit card application was being denied because she had “sufficient balance on [her] revolving credit lines and [because she had] sufficient credit available considering [her] income” were “incoherent [and] illogical,” and, this, she contends, constitutes a violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(d). See Complaint ¶ 14, 26.

III. DISCUSSION

A. STANDARDS APPLICABLE TO MOTIONS TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

Fed.R.Civ.P. 12(b)(6) permits a district court to dismiss a plaintiffs complaint for “failure to state a claim upon which relief can be granted.” The court must construe the complaint in the light most favorable to the plaintiff and accept all well-pled factual allegations as true. Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir.2006). While this standard is a liberal one, it does require more than bare assertions of legal conclusions. First Am. Title Co. v. Devaugh, 480 F.3d 438, 444 (6th Cir.2007). To survive a motion to dismiss, the complaint “does not need detailed factual allegations, [however, mere] labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted). The complaint “must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir.1997). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic, 127 S.Ct. at 1965 (citations omitted). Courts do not require “heightened fact pleading of specifics, but only enough to state a claim for relief that is plausible on its face.” Id. at 1974.

B. THE ECOA ADVERSE ACTION NOTICE REQUIREMENTS

The ECOA was originally enacted in 1974 to prohibit discrimination in credit transactions. Treadway v. Gateway Chevrolet Oldsmobile, Inc., 362 F.3d 971, 975 (7th Cir.2004). The Act’s principal purpose is “to eradicate discrimination against women, especially married women whom creditors traditionally refused to consider for individual credit.” Midkiff v. Adams County Regional Water District, 409 F.3d 758, 771 (6th Cir.2005) (citation and internal punctuation omitted). The statute was amended in 1976 to require creditors to furnish written notice of the specific reasons why an adverse action was taken against a consumer. See Fischl v. General Motors Acceptance Corp., 708 F.2d 143 (5th Cir.1983); 15 U.S.C. § 1691(d)(2), (3). As explained in the Senate report accompanying the 1976 amendments to the ECOA, Congress viewed the notice requirement as:

a strong and necessary adjunct to the antidiscrimination purpose of the legisla*1019tion, for only if creditors know they must explain their decisions will they effectively be discouraged from discriminatory practices. Yet this requirement fulfills a broader need: rejected credit applicants will now be able to learn where and how their credit status is deficient and this information should have a pervasive and valuable educational benefit. Instead of being told only that they do not meet a particular creditor’s standards, consumers partic-vlarly should benefit from knowing, for example, that the reason for the denial is their short residence in the area, or their recent change of employment, or their already over-extended financial situation. In those cases where the creditor may have acted on misinformation or inadequate information, the statement of reasons gives the applicant a chance to rectify the mistake.

Fischl, supra, 708 F.2d at 146 (quoting S.Rep. No. 94-589, 94th Cong., 2d sess., 1976 U.S.Code Cong. & Admin. News, pp. 408, 406).

ECOA’s notice provisions apply to all loan applicants, not only those who claim to have been denied credit due to discrimination. See Jochum v. Pico Credit Corp. of Westbank, 730 F.2d 1041, 1043 n. 3 (5th Cir.1984) (finding that the plaintiffs did not need to state a claim of discrimination to assert a cognizable claim under § 1691(d)); Diaz v. Paragon Motors of Woodside, Inc., 424 F.Supp.2d 519, 532 n. 22 (E.D.N.Y.2006) (“The [ECOA] notification requirement extends to all applicants, and does not require specific allegations of discrimination.”); Costa v. Mauro Chevrolet, Inc., 390 F.Supp.2d 720, 728 (N.D.Ill.2005) (“Without regard to allegations of discrimination, a creditor’s failure to provide a written rejection notice is actionable under the ECOA.”); Polis v. American Liberty Financial, Inc., 237 F.Supp.2d 681, 688 (S.D.W.Va.2002); Stoyanovich v. Fine Art Capital LLC, 2007 WL 2363656 (S.D.N.Y., Aug.17, 2007).

A credit denial is referred to as an “adverse action” under the ECOA. 15 U.S.C. § 1691(d)(6). A written letter informing an applicant that credit has been denied is referred to as an “adverse action notice.” With regard to the content of adverse action notices, Section 1691(d) of the ECOA provides as follows:

(1) Within thirty days (or such longer reasonable time as specified in regulations of the Board for any class of credit transaction) after receipt of a completed application for credit, a creditor shall notify the applicant of its action on the application.

(2) Each applicant against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor. A creditor satisfies this obligation by—

(A) providing statements of reasons in writing as a matter of course to applicants against whom adverse action is taken; or

(B) giving written notification of adverse action which discloses (i) the applicant’s right to a statement of reasons within thirty days after receipt by the creditor of a request made within sixty days after such notification, and (ii) the identity of the person or office from which such statement may be obtained. Such statement may be given orally if the written notification advises the applicant of his right to have the statement of reasons confirmed in writing on written request.

(3) A statement of reasons meets the requirements of this section if it contains the specific reasons for the adverse action taken.

15 U.S.C. § 1691(d).

The regulations which implement the ECOA, “Regulation B,” 12 C.F.R. § 202.1 *1020et seq., provide only as follows with regard to the content of adverse action notices:

[ (a) ] (2) Content of notification when adverse action is taken. A notification given to an applicant when adverse action is taken shall be in writing and shall contain a statement of the action taken; the name and address of the creditor; a statement of the provisions of § 701(a) of the Act; the name and address of the federal agency that administers compliance with respect to the creditor; and ...

(i) A statement of specific reasons for the action taken.

12 C.F.R. § 202.9(a)(2)®.

Paragraph (b) of the regulation further provides with regard to the statement of reasons:

Statement of specific reasons. The statement of reasons for adverse action required by paragraph (a)(2)® of this section must be specific and indicate the principal reasons for the adverse action. Statements based on the creditor’s internal standards or policies or that the applicant, joint applicant, or similar party failed to achieve a qualifying score on the creditor’s credit scoring system are insufficient.

12 C.F.R. § 202.9(b)(2) (emphasis added).

While an Appendix to Regulation B sets forth some sample forms intended for use in notifying an applicant that adverse action has been taken on a credit application, the regulations make clear that “[t]he sample forms are illustrative and may not be appropriate for all creditors. They were designed to include some of the factors that creditors most commonly consider.” 12 C.F.R. § 202, App. C, ¶2.

The Official Federal Reserve Board interpretations of Regulation B, 12 C.F.R. § 202 Supp. I, further make clear that there is no statutory or regulatory prohibition against a creditor’s wording of its reasons. With regard to Section 202.9’s notification requirements, the Official Staff Interpretation states,

In notifying an applicant of adverse action as defined by § 202.2(c)(1), a creditor may use any words or phrases that describe the action taken on the application.

12 C.F.R. 202 Supp. I.

The Official Staff Interpretation further states that “[a] creditor need not describe how or why a factor adversely affected an applicant.” Id.

In this case, MBNA’s notice to Plaintiff provided her with two principal reasons that her credit application was denied. The first principal reason given was “you have sufficient balances on your revolving line of credit.” The statement is a “specific reason for the action taken.” Furthermore, as Defendant notes, and Plaintiff does not dispute, the statement is consistent with the information provided by Plaintiff and Experian. Having “sufficient balances on her revolving lines of credit” meant that Plaintiff could have charged additional amounts on her existing credit accounts at any time causing her to max out her existing credit lines, which would be a concern for a lender.

The second principal reason that Plaintiffs credit was denied was “you have sufficient credit available considering your income.” This, too, is a “specific reason for the action taken.” While Plaintiff indicated in applying for credit that her “household” income was $70,000, Plaintiff personally had no income source; she was a student. Being able to charge additional amounts on her existing lines of credit and to max out on those credit lines without having any personal source of income is legitimate concern for any lender.

Plaintiff, however, finds MBNA’s stated reasons to be “incoherent” and “illogical.” She argues that Regulation B *1021requires that the stated reasons be “clearly and conspicuously” explained in “reasonably understandable” terms. There is, however, no such requirement in the statute or the regulations. In fact, the only mention of “clear and conspicuous” is in Section 202.4(d) of the regulation. Section 202.4 provides:

(d) Form of disclosures—

(1) General rule. A creditor that provides in writing any disclosures or information required by this regulation must provide the disclosures in a clear and conspicuous manner and, except for the disclosures required by § § 202.5 [requests for information] and 202.13 [information for monitoring purposes], in a form the applicant may retain.

12 C.F.R. § 202.4(d).

As the Official Staff Interpretations make clear, however, the “clear and conspicuous” requirement set forth in this section deals, not with the content of the notice but rather with the format:

1. Clear and conspicuous. This standard requires that disclosures be presented in a reasonably understandable format in a way that does not obscure the required information. No minimum type size is mandated, but the disclosures must be legible, whether typewritten, handwritten, or printed by computer.

12 C.F.R. § 202 Supp. I.

The only statutory/regulatory requirement is that the “format” must be “reasonably understandable.” In this regard, the ECOA and Regulation B are substantially similar to the Consumer Leasing Act, 15 U.S.C. § 1667, et seq., and its Regulation M, 12 C.F.R. § 213.

Section 1667(a) provides, in pertinent part:

Each lessor shall give a lessee prior to the consummation of the lease a dated written statement on which the lessor and lessee are identified setting out accurately and in a clear and conspicuous manner the following information with respect to that lease, as applicable....

15 U.S.C. § 1667(a).

Regulation M provides:

(a) General requirements. A lessor shall make the disclosures required by § 213.4, as applicable. The disclosures shall be made clearly and conspicuously in writing in a form the consumer may keep, in accordance with this section.

12 C.F.R. § 213.4(a).

Courts have held that the use of the phrase “clear and conspicuous”, as used in the Consumer Leasing Act, pertains only to the degree of visibility of the required disclosure’s language and not the degree of comprehension. See Channell v. Citicorp National Services, Inc., 89 F.3d 379, 382 (7th Cir.1996). See also Schmidt v. Nissan Motor Acceptance Corp., 104 F.Supp.2d 955 (N.D.Ill.2000). In stating the rule of the Seventh Circuit, the Schmidt court held, as follows:

[T]he instant case is brought under the Consumer Leasing Act, which does not require that lease disclosures be comprehensible to the average consumer. As the court in Channell ... explained, “clear and conspicuous manner” within the context of § 1667(a) of the Consumer Leasing Act refers to the mode of presentation, not the degree of comprehension. So long as a disclosure is visible, it has satisfied the clear and conspicuous requirement of § 1667 of the Consumer Leasing Act, even if it is incomprehensible to the average consumer. Accordingly, plaintiffs’ argument that allegations of confusion are enough to survive a Rule 12(b)(6) motion to dismiss fails.

104 F.Supp.2d at 957 (citations omitted and emphasis added.)

*1022Plaintiff, here does not complain about the format or “mode of presentation” of MBNA’s adverse action notice, and as is evident by the notice itself [Plaintiffs Ex. A; Defendant’s Ex. 1], it fully complies with Regulation B’s notice requirements.

The cases cited by Plaintiff similarly do not support her contention that Regulation B requires that a creditor’s stated reasons for adverse action be “clearly and conspicuously” explained to unsophisticated consumers. In fact, none of the cases relied upon by Plaintiff involve the ECOA or Regulation B. Rather, they involve the Truth-in-Lending Act (“TILA”) and its particular regulation, “Regulation Z.” Indeed, as the court observed in Fort v. First Citizens Bank & Trust Co., 526 F.Supp. 22 (M.D.N.C.1981)—one of the cases Plaintiff here relies upon — “the term ‘conspicuous’ does not apply to [different federal regulations] equally.” Id. at 26. Courts, in fact, have specifically observed that TILA’s requirements are “hyper-technical.” See e.g., Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir.1995) (stating that “hypertechnicality reigns” in TILA cases).

The other cases cited by Plaintiff similarly provide no support for her arguments. For example, Plaintiff cites Knapp v. Americredit Financial Services, Inc., 245 F.Supp.2d 841 (S.D.W.Va.2003), contending that that case stands for the proposition that whether a disclosure is conspicuous for purposes of the Truth in Lending Act is a question of fact, not appropriate for summary disposition. However, “conspicuousness” was not what was at issue in Knapp. The “question of fact” the court found there was whether a “loan acquisition fee” was a “finance charge” subject to the TILA and its disclosure requirements.

Herrera v. First Northern Sav. and Loan Ass’n, 805 F.2d 896 (10th Cir.1986), similarly does not support Plaintiffs contention. In that case the issue was the font and typestyle used by the creditor in making its TILA disclosures, not the content of the disclosures. The court found that the disclosure statement in which the term “annual percentage rate” was printed in capital letters and in boldface type, when over 30 other terms and phrases appearing on statement were also printed in capital letters, in identical size, style and boldness of type, was violative of truth-in-lending regulations requiring that annual percentage rate be printed more conspicuously than other required terms.

In sum, the Court finds that the allegations in Plaintiffs Complaint do not make out a cognizable claim for violation of the ECOA. MBNA’s adverse action notice clearly and conspicuously presented the creditor’s specific reasons for its denial of Plaintiffs credit card application.

CONCLUSION

For all of the foregoing reasons, the Court finds that Plaintiff has failed to state a claim upon which relief may be granted. Therefore,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [Dkt. # 39] be, and hereby is, GRANTED. Accordingly,

IT IS FURTHER ORDERED that Plaintiffs Complaint be DISMISSED, with prejudice.

The Court’s ruling on Defendant’s Motion to Dismiss renders the parties’ various discovery motions [Dkt. Nos. 14, 19, 26, 32, 47, 51, and 56] and Magistrate Judge Pepe’s Report and Recommendation on these motions [Dkt. #65] MOOT. The Court also DENIES as MOOT, Plaintiffs Motion for Class Certification [Dkt. # 71].

Let Judgment be entered accordingly.

NOONAN, Circuit Judge:

Adelaide Andrews (Andrews) appeals the judgment by the district court in her suit against TRW, Inc. The case involves the rights under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681u (1994 & Supp. II) (FCRA), and Cal. Bus. & Prof. Code § 17200 et. seq. (1996), of a person claiming to be damaged by the disclosure of inaccurate credit information by a consumer credit reporting agency such as TRW.

We hold that Andrews’s suit was not barred by § 1681p. We further hold that it was not a question of law but a question to be resolved by the jury as to whether TRW had reason to believe that it was furnishing information in connection with a consumer transaction involving Andrews. For these reasons we reverse the partial summary judgments awarded TRW on the first of Andrews’s claims. As to the claims that did go to trial and ended in judgment against her after trial, we find no harmful error and affirm.

FACTS

In June 1993, Andrea Andrews (hereafter the Imposter) obtained the social secu*1065rity number and California driver’s license number of Adelaide Andrews (hereafter the Plaintiff). The Imposter did so simply by misusing her position as a doctor’s receptionist and copying the information that the Plaintiff, as a patient in that office, supplied to the doctor.

In 1994-1995 the Imposter applied for credit to four companies subscribing to TRW’s credit reports. For example, on July 25, 1994, to First Consumers National Bank (FCNB), the Imposter applied as Andrea A. Andrews, 3993-1/2 Harvard Blvd., Los Angeles, CA, 90062, phone 213-312-0605, employed at Spensor Robbyns Products, Los Angeles. The Imposter gave the birth date and social security number of the Plaintiff.

In this application the only misinformation was the Imposter’s use of the Plaintiffs social security number and date of birth. On October 28, 1994 to Express Department Stores the Imposter made a comparable credit application, using her own identity except for the Plaintiffs social security number. Again, in January 1995, to Commercial Credit the Imposter applied for credit, using her own identity, except for Plaintiffs social security number and a clumsy misspelling of her first name as “Adeliade.”

TRW responded to the credit inquiries of the three companies by treating the applications as made by the Plaintiff. TRW furnished the information in its file on the Plaintiff and added the three inquiries to the Plaintiffs file.

Each of the credit applications applied for by the Imposter was turned down by the company getting the TRW report. In addition, the Imposter applied for cable service to a public utility, Prime Cable of Las Vegas, which was required by law to provide cable services but nonetheless asked for a TRW report. The Imposter applied as Andrea Andrews, 4201 S. Decatur # 2202, Las Vegas, NV, 89103, Phone 248-6352. The Imposter used the social security number of the Plaintiff, which was the only stolen item of identity provided. This account became delinquent and was referred to a collection agency.

The Plaintiff, however, became aware of the Imposter only on May 31, 1995 when she sought to refinance the mortgage on her home. The bank from which the financing was sought received a report from Chase Credit Research, not a party to this case, whose report combined information from TRW and two other credit reporting agencies. Now aware of the fraud, Andrews contacted TRW and requested deletion from her file of all reference to the Imposter’s fraudulent activities. TRW complied.

PROCEEDINGS

On October 21, 1996, the Plaintiff filed this suit in the district court. In her first claim she alleged that TRW had furnished credit reports without “reasonable grounds for believing” that she was the consumer whom the credit applications involved, contrary to 15 U.S.C. §§ 1681b and 1681e(a), and that as a consequence she had suffered damages including an expenditure of time and money and “commercial impairment, inconvenience, embarrassment, humiliation, and emotional distress including physical manifestations.” In her second claim, she alleged that TRW had violated § 1681e by not maintaining the “reasonable procedures” required by that statute in order “to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). She alleged the same damages. She asserted that both violations were willful and that both also violated Cal. Bus. & Prof.Code § 17200 et. seq. She sought actual and punitive damages and an injunction requiring TRW to comply with the Fair Credit Reporting Act by “requiring a sufficient number of corresponding points of reference” before disseminating an individual’s credit history or attributing information to an individual’s credit file.

On May 28, 1998, the district court granted partial summary judgment to TRW. The court held that the two year statute of limitations provided by § 1681p *1066began to run at the time the alleged wrongful disclosures of credit information were made to the requesting companies. By this test the complaint was too late as to the disclosures made to FCNB and to Prime Cable. As to the disclosures made to Express and Commercial, the court ruled that they were made for a purpose permissible under § 1681b(a)(3)(A), because the Plaintiff, even against her will, was “involved” in the credit transaction initiated by the Imposter. Any other rule, the court said, would place “too heavy a burden on credit reporting agencies.” In addition, the court ruled that TRW had used the “reasonable procedures” required by § 1681e(a) to limit disclosures to permissible purposes. For these several reasons, the court granted summary judgment to TRW on the Plaintiffs first claim.

The court also struck Plaintiffs claim for punitive damages on both her first and second causes of action. The court ruled that the Plaintiff had produced no evidence of TRW’s conscious disregard of reasonable procedures. In so ruling, the court did not consider the testimony of Dr. Douglas Stott Parker, the Plaintiffs expert on computers or the testimony of Evan Hendricks, the Plaintiffs expert on the prevalence of identity theft.

TRW then moved in limine to bar from testifying at trial the Plaintiffs witness Douglas Stott Parker, offered as an expert on the Plaintiffs second claim that TRW’s procedures were not reasonable in assuring maximum possible accuracy. Relying in part on its earlier rulings, the district court ordered that Parker not testify as to procedures leading to inaccuracy in TRW disclosing the Plaintiffs information upon the Impostor’s applications.

The case proceeded to trial on the Plaintiffs second and third claims. The jury returned a verdict for TRW. The Plaintiff appeals the consequent judgment on all her claims.

ANALYSIS

The Statute of Limitations. Liability under the statute arises when a consumer reporting agency fails to comply with § 1681e. Guimond v. Trans Union Credit Information Co., 45 F.3d 1329 (9th Cir.1995). The question is presented whether Andrews’s claims are barred as to those alleged failures to comply which occurred before October 21, 1994. 15 U.S.C. § 1681p reads:

An action to enforce any liability created under this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this subchapter to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant’s liability to that individual under this title, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

The general federal rule is that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir.1998). By this test none of the Plaintiffs injuries were stale when suit was brought.

The district court relied on what it saw as the implication of the statute explicitly referencing a discovery time limit where a defendant had wilfully misrepresented information “required to be disclosed to an individual.” The creation of this exception, the court reasoned, implied an exclusion of a general discovery rule. Accord, Rylewicz v. Beaton Services, Ltd., 888 F.2d 1175 (7th Cir.1989); Houghton v. Insurance Crime Prevention Inst., 795 F.2d 322 (3d Cir.1986); Clay v. Equifax, Inc., 762 F.2d 952, 961 (11th Cir.1985). It is argued, to the contrary, that neither the language of the statute nor its interpretation by other *1067respected circuit courts of appeals is a warrant for disregarding the teaching of the Supreme Court: unless Congress has expressly legislated otherwise, the equitable doctrine of discovery “is.read into every federal statute of limitations.” Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946); see also Lampf v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). We have followed this approach in interpreting an analogous statute. See Englerius v. Veterans Admin., 837 F.2d 895, 898 (9th Cir.1988). We are not persuaded to depart from the general rule or the analogy. Andrews’s claims were not barred.

Disclosure Without Reasonable Belief. Under § 1681b TRW could only furnish a report on a consumer to a customer which it had “reason to believe” intended to use the information in connection with “a credit transaction involving the consumer on whom the information is to be furnished.” 15 U.S.C. § 1681b(a)(3). Did TRW have a reasonable belief that the Plaintiff was the consumer involved in the credit transactions as to which the four companies sought a report from TRW? As the district court observed, there are 250,-000,000 persons in the United States (not all of them having Social Security numbers) and 1,000,000,000 possibilities as to what any one Social Security number may be. The random chance of anyone matching a name to a number is very small. If TRW could assume that only such chance matching would occur, it was reasonable as a matter of law in releasing the- Plaintiffs file when an application matched her last name and the number. But we do not live in a world in which such matches are made only by chance.

We take judicial notice that in many ways persons are required to make their social security numbers available so that they are no longer private or confidential but open to scrutiny and copying. Not least of these ways is on applications for credit, as TRW had reason to know. In a world where names are disseminated with the numbers attached and dishonest persons exist, the matching of a name to a number is not a random matter. It is quintessentially a job for a jury to decide whether identity theft has been common enough for it to be reasonable for a credit reporting agency to disclose credit information merely because a last name matches a social security number on file.

In making that determination the jury would be helped by expert opinion on the prevalence of identity theft, as the district court would have been helped if it had given consideration to the Plaintiffs witnesses on this point before giving summary judgment.

The reasonableness of TRW’s responses should also have been assessed by a jury with reference to the information TRW had indicating that the Imposter was not the Plaintiff. TRW argues that people do use nicknames and change addresses. But how many people misspell their first name? How many people mistake their date of birth? No rule of law answers these questions. A jury will have to say how reasonable a belief is that let a social security number trump all evidence of dissimilarity between the Plaintiff and the Imposter.

The district court held that the Plaintiff was involved in the transaction because her number was used. The statutory phrase is “a credit transaction involving the consumer.” 15 U.S.C. § 1681b(a)(3)(A). “Involve” has two dictionary meanings that are relevant: (1) “to draw in as a participant” or (2) “to oblige to become associated.” The district court understood the word in the second sense. We are reluctant to conclude that Congress meant to harness any consumer to any transaction where any crook chose to use his or her number. The first meaning of the statutory term must be preferred here. In that sense the Plaintiff was not involved.

Another consideration for the district court was that a different rule would impose too heavy a cost on TRW. The statute, however, has already made the determination as to what is a bearable cost for a *1068credit reporting agency. The cost is what it takes to have a reasonable belief. In this case that belief needed determination by a jury not a judge.

We reinstate the Plaintiffs first claim together with her request for punitive damages based upon it.

Reasonable Procedures To Assure Accuracy. The statutory command is clear: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C § 1681e(b). It would normally not be easy for a court as a matter of law to determine whether a given procedure was reasonable in reaching the very high standard set by the statute as to each individual reported upon. “The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases.” Guimond, 45 F.3d at 1333. The expert testimony to be offered by Dr. Parker on “automated procedures for connecting and resolving inaccuracies in credit reports” was germane to a jury determination of this question.

The district court ruled that it was already the law of the case, as a result of its summary judgment rulings, that it was permissible for TRW to disclose the Plaintiffs file after an application by the Imposter. In ruling on what Dr. Parker could testify to, the district court expanded that ruling to include the permissibility of TRW disclosing the Imposter’s file when the Plaintiff applied for credit. On the basis of this expanded position, the district court ruled that Dr. Parker could not testify as to the availability of computer software that could have kept the Imposter’s data and the Plaintiffs data from being merged in a TRW report. As we have already held, it was not a question of law for the court to decide whether TRW had a reasonable belief permitting disclosure. The court’s legal error infected its ruling on the scope of Dr. Parker’s testimony.

Despite its in limine ruling, the district court permitted Andrews to examine Dr. Parker on the basis of a TRW report to Strategic Mortgage Services made on June 5, 1995. This report attributed to the Plaintiff the Dillard’s account opened by the Imposter. Dr. Parker testified that TRW could have had in place “an integrity restraint” that would have prevented this error. He described an integrity restraint as a watchdog that would have looked for problems or anomalies of the kind that TRW failed to detect with the result that the Imposter’s applications to FCNB, Express, and Commercial Credit, and her Prime Cable connection were attributed to the Plaintiff. Dr. Parker testified that such integrity restraints were available in the relevant period, 1994-1996. In the light of this testimony it is difficult to conclude that the Plaintiff was harmed at trial by the court’s initial ruling.

Conclusion: Judgment on Plaintiffs first cause of action and the state law claim is REVERSED and the case is REMANDED for trial. Judgment on Plaintiffs second cause of action is AFFIRMED. Each party should bear its own costs.

MEMORANDUM

TODD J. CAMPBELL, District Judge.

Pending before the Court are the parties’ renewed cross-motions for summary judgment (Docket Nos. 329 and 349) to which responses and replies have been filed. Defendants seek oral argument on their summary judgment motion. (Docket No. 347).

Also pending before the Court are a number of motions filed by Defendants related to the admissibility of certain evidence submitted by Plaintiff in support of her pending motion for summary judgment: Renewed Motion to Strike and/or Exclude Third Party Checkwriter Affidavits (Docket No. 342); Renewed Motion to Strike and/or Exclude Documents from the Houston Better Business Bureau (Docket No. 343); Renewed Motion to Strike and/or Exclude Plaintiffs Supplemental Affidavit and Second Supplemental Affidavit (Docket No. 344); Renewed Motion to Strike and/or Exclude the Affidavit of Julia Trotman (Docket No. 345); and Renewed Motion to Strike and/or Exclude Expert’s Supplemental Report (Docket No. 346). Plaintiff opposes these motions.

J. Introduction

This case centers around six checks written by Plaintiff Patricia Holmes and presented by her as payment to four merchants during the period of August 2003 to *824June 2005. Five of the checks were declined by the merchants at the point of sale upon the recommendation of Tele-Check. With regard to the other check, TeleCheck initially issued a code requiring the merchant to whom Holmes had presented the check to contact TeleCheck to provide additional information regarding the transaction. The merchant ultimately accepted the check.

As a result of TeleCheck’s issuance of those recommendations and as a result of TeleCheck’s subsequent conduct as Holmes sought additional information from TeleCheck, Holmes brings this action against Defendants TeleCheck International, Inc. and TeleCheck Services, Inc. (collectively referred to as “TeleCheck” unless otherwise indicated), alleging various violations under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, eb seq. Plaintiff alleges that TeleCheck violated the FCRA when it (1) failed to follow reasonable procedures to assure maximum possible accuracy of the information contained in Holmes’ file; (2) failed to respond to Holmes’ requests for a file disclosure and for a copy of the report forming the basis for denying Holmes’ checks; (3) failed to investigate/reinvesti-gate based on a dispute; (4) failed to provide adequate staffing and training to comply with the FCRA; (5) improperly requested, required, or otherwise obtained information from Holmes, namely her social security number; (6) wrongfully disseminated reports, file material and/or other information about Holmes to unauthorized or improper persons, parties, or entities; and (7) failed to include a “Summary of Rights” notice.

Plaintiff has filed a motion for summary judgment on the issue of liability only regarding the first, second, and third alleged violations identified above. Plaintiff asks the Court to find that TeleCheck willfully or negligently violated the FCRA as to those specific claims. Plaintiff seeks actual damages for emotional distress and humiliation. She also seeks statutory and punitive damages for pain and suffering, mental anguish, emotional distress, embarrassment, indignity, humiliation, and loss of enjoyment of life. Plaintiff also seeks a declaratory judgment and permanent injunction against Defendants.

TeleCheck has filed a cross-motion for summary judgment on each of Holmes’ claims as to liability and damages. Defendants also have filed a number of motions, all opposed by Plaintiff, regarding the admissibility of evidence offered by Plaintiff in support of her summary judgment motion.

The Court finds that oral argument is not necessary to the Court’s resolution of the parties’ motions.

II. Overview of Facts1

A. Defendants’Business

TeleCheck represents on its website that it is the “world’s leading check acceptance company, providing electronic check conversion, check guarantee, check verification, and collection services to retail, financial institutions, and other industry clients.” (Docket No. 157, Plf.’s App., Tab 23 at 1-2). According to Plaintiff, Tele-Check International, Inc. and TeleCheck Services, Inc. are “consumer reporting agencies” under the FCRA that provide “consumer reports”2 to merchants. On its *825website, TeleCheck represents that its check verification service “helps merchants separate good check writers from bad ones,” that its databases and risk management systems “identify not only bad check writing risks, but also good ones,” and that it can predict “with unmatched accuracy the probability of a check being good.” (Docket No. 157 at pp. 1-4). TeleCheck processes approximately 1.2 million check requests each day.

TeleCheck merchants run customers’ checks through either a terminal or the cash register to send data to TeleCheck regarding the transaction. TeleCheck’s computer system then processes the transaction by running that data through risk models, which draw from hundreds of variables to assess the riskiness of that transaction. According to TeleCheck, the risk models for each merchant are particular to that merchant and are based on the particular merchant’s loss experience. Tele-Check typically does not have access to information concerning bank account balances.

Based on the results of the risk model for that particular merchant, TeleCheck then issues one of four numeric codes to the merchant via the terminal or cash register. TeleCheck characterizes these codes as “recommendations” to the merchant as to how to handle the transaction. After receiving one of TeleCheck’s numeric codes, the merchant may choose to accept the check, reject the check, or provide additional information to TeleCheck. According to TeleCheck, the decision of check acceptance resides with the merchant, and merchants sometimes choose not to follow TeleCheck’s recommendation.3

“Code 0” indicates that the merchant should call TeleCheck to provide additional information. TeleCheck claims that a “Code 0” is not a recommendation to accept or decline a check; however, in Tele-Check internal documents, a “Code 0” is referred to as a decline. (Plf.’s App., Tab 2, TC002617).

“Code 1” is an approval code; according to TeleCheck, it is a recommendation to the merchant to accept the check.

“Code 3” is a decline code; according to TeleCheck, it is a recommendation to the merchant to decline the check based on an assessment of the risk of the transaction. When TeleCheck issues a “Code 3,” Tele-Check instructs the merchant to provide the checkwriter with a “courtesy card.” The “courtesy card” provides TeleCheck’s contact information, including a toll-free number, and lists the specific identifying information TeleCheck requires to answer the checkwriter’s questions.

“Code 4” is a decline code; according to TeleCheck, it is a recommendation to decline the check based on what the Tele-Check system suggests is an outstanding unpaid check or information that the specific bank account is closed. This case does not involve any “Code 4s.”

TeleCheck collects information based on three unique identifiers: bank account number, driver’s license number, and/or Social Security number. TeleCheck does *826not identify eheckwriters by name, address, or telephone number because those identifiers may not be unique to that eheckwriter. Plaintiff disputes that Tele-Check utilizes Social Security numbers in connection with its check verification and guarantee services and insists that Tele-Check collects consumers’ Social Security numbers for improper purposes in violation of the FCRA.

B. TeleCheck’s Recommendations Regarding Holmes’ Checks

Holmes’ claims are based on six check transactions. Five of the transactions involved “Code 3” recommendations. The other transaction involved a “Code 0.” With regard to the “Code 0,” TeleCheck ultimately recommended that Holmes’ check be accepted, and the merchant accepted the check. The six check transactions were as follows:

Check 1: On August 22, 2003, at 10 p.m. Holmes presented a check for $489.58 with her 8-digit Tennessee driver’s license number to Hecht’s at the Cool Springs Galleria in Franklin, Tennessee.

TeleCheck issued a “Code 3” based, in part, on the number of checks Holmes had written (the “check velocity”) in the preceding days and the fact that Holmes’ check was for an amount six times the average check presented to that Hecht’s location. Holmes admits that, in the two days before the presentment of the Hecht’s checks, she had written numerous checks, including three to TeleCheck merchants, two of which were presented to and accepted by Hecht’s within the previous hour.

The “Code 3” decline was also based, in part, on a personal check written by Holmes to Swim ‘N Sport that had been returned for non-sufficient funds in March 2003.

Hecht’s declined the $489.58 check.4 The Hecht’s clerk provided Holmes with TeleCheck’s phone number. Holmes immediately left the store and called the number. After going through TeleCheck’s IVR system and providing the requested information, Holmes was unable to reach a live operator and hung up out of frustration. Holmes returned to Hecht’s the following day and purchased the goods after Hecht’s offered her (and she accepted) a Hecht’s charge card. Holmes received a discount on the purchase for opening a Hecht’s charge account.

Check 2: On August 26, 2003, Holmes presented a check for $51.91 to Borders in Brentwood, Tennessee. According to Te-leCheck, Borders had elected, as part of its risk model, to have the TeleCheck system issue a “Code 3” recommendation if the eheckwriter had received a “Code 3” risk-decline recommendation that was not overturned within the previous six days. Daniel Ahles testified that because the August 22, 2003 Hecht’s “Code 3” had not been overturned, the TeleCheck system automatically transmitted a “Code 3” recommendation to Borders. Borders declined the check.5 Holmes elected to then purchase the goods with a credit card.

Check 3: The next transaction about which Holmes complains occurred almost one year later, on August 14, 2004, when Holmes presented a check to Hecht’s for $98.42. TeleCheck issued a “Code 0,” requesting additional information. The parties dispute whether, and to what extent, any additional information was provided by Hecht’s to TeleCheck. It is undisputed *827that the check was processed again, and, five to thirteen minutes later, TeleCheck issued a “Code 1” and Hecht’s accepted the check.

Check 4: On May 21, 2005, Holmes presented a check to Arden B. for $170.43, using her 9 — digit Tennessee driver’s license number.6 According to TeleCheck, because that driver’s license number was new to the TeleCheck system, that identifier appeared to be from a new checkwriter. For that reason TeleCheck issued a “Code 3” to Arden B.7 Holmes purchased the goods with a credit card and started to leave the store.

Minutes later Holmes returned to the store and presented a second check, which was processed using Holmes’ 8-digit expired Tennessee driver’s license number. Based on the second check, thirteen minutes after TeleCheck’s initial “Code 3” issuance, TeleCheck issued an approval recommendation. Arden B. accepted Holmes’ check in exchange for the goods and the merchant removed the charge from Holmes’ credit card account.

Check 5: On June 14, 2005, Holmes presented a check to Charlotte Russe for $89.98, using her 9-digit driver’s license number. TeleCheck initially issued a “Code 3.”8 Holmes spoke with a Tele-Check employee at the point of sale, and TeleCheck changed the “Code 3” to a “Code 1.” Charlotte Russe accepted Holmes’ check in exchange for the goods.

Check 6: A little over one hour later, Holmes presented a check to Hecht’s for $65.51, again using her 9-digit driver’s license number. Like the Charlotte Russe check, the Hecht’s check resulted in Tele-Check issuing a “Code 3.”9 Hecht’s re-ran the check using her 8-digit driver’s license number, and, five minutes after the initial decline recommendation, TeleCheck issued a “Code 1.” Hecht’s accepted her check and Holmes was thus able to purchase the goods with a personal check.

III. Motions Related to Admissibility of Summary Judyment Evidence

A. Renewed Motion to Strike and/or Exclude Third Party Checkwriter Affidavits (Docket No. 342)

TeleCheck asks the Court to strike and/or exclude the third party checkwriter affidavits filed by Holmes in support of her motion for summary judgment. TeleCheck contends that the affidavits are irrelevant and immaterial. TeleCheck further contends that permitting Holmes to inject into this case the unrelated allegations of third parties would prejudice TeleCheck by forcing it to defend entirely new matters that have no connection to the specific facts and circumstances of this case.

Plaintiff contends the affidavits constitute admissible and relevant evidence showing that TeleCheck engaged in a de*828liberate pattern and practice of refusing to provide consumers with information requested under 15 U.S.C. § 1681g in willful violation of the FCRA.

The Court will deny Defendants’ motion to strike as moot because the Court did not rely on the third party check writer affidavits in resolving the parties’ pending cross-motions for summary judgment. The Court will take up the issue of admissibility of these affidavits, if necessary, at trial.

B. Renewed Motion to Strike and/or Exclude Documents from the Houston Better Business Bureau (Docket No. 343)

TeleCheck asks the Court to strike and/or exclude the documents from the Houston Better Business Bureau (“BBB”) filed by Plaintiff in support of her summary judgment motion. TeleCheck contends that these documents are inadmissible and irrelevant. Plaintiff disagrees. She seeks to introduce two types of BBB documents: documents sent by TeleCheck to the Houston BBB and records maintained by the Houston BBB regarding similar experiences by other check writers who had checks declined by TeleCheck and were equally frustrated in their ability to obtain any information from TeleCheck. Plaintiff contends that all of these documents are relevant to the issue of whether Defendants willfully or negligently violated the FCRA as well as to prove other parts of Plaintiffs claims.

As to the BBB records consisting of complaints filed by other check writers, the Court will deny Defendants’ motion to strike as moot because the Court did not rely on this evidence in resolving the parties’ pending cross-motions for summary judgment. The Court will take up the issue of admissibility of these records, if necessary, at trial.

As to the documents sent by TeleCheck to the Houston BBB, the Court denies Defendants’ motion. These documents are relevant to support Plaintiffs theory that Defendant TeleCheck International, Inc. is a “consumer reporting agency.” The relevance and admissibility of these documents at trial for other purposes will be addressed, if necessary, by the Court at trial.

C. Renewed Motion to Strike and/or Exclude Plaintiff’s Supplemental Affidavit and Second Supplemental Affidavit (Docket No. 344)

TeleCheck asks the Court to strike and/or exclude Plaintiffs Supplemental Affidavit and Second Supplemental Affidavit in which Plaintiff identifies certain alleged inaccuracies in TeleCheck’s raw transaction data. TeleCheck argues that the affidavits contradict Holmes’ sworn deposition testimony and that the alleged inaccuracies are irrelevant because Holmes has adduced no evidence that TeleCheck published any of the allegedly inaccurate raw data to any third party.

Holmes argues that the challenged affidavits do not contradict her previous testimony. To the extent they do, Defendants may certainly address any contradictions in Holmes’ testimony when cross-examining Holmes at trial.

Defendants could have taken a supplemental deposition of Holmes and fully explored the contents of the supplemental affidavits if they had such serious misgivings about her testimony. Yet, during the almost nine months between Plaintiffs filing of the affidavits and the date to which discovery was extended, Defendants chose not to depose Holmes regarding her supplemental affidavits, even when Holmes’ attorney specifically offered to make her available.

*829In addition, the Court finds that the evidence adduced by Plaintiff regarding the alleged inaccuracies of raw transaction data is relevant to the issue of whether TeleCheck followed reasonable procedures to ensure maximum accuracy of the information concerning Holmes. Plaintiff alleges that this information, contained in “consumer reports” created and maintained by TeleCheck, formed the basis for Tele-Check’s issuance of numeric codes to merchants each time Holmes presented a check as a source of payment to a merchant. Thus, the motion will be denied.

D. Renewed Motion to Strike and/or Exclude the Affidavit of Julia Trotman (Docket No. 345)

TeleCheck asks the Court to strike and/or exclude the Affidavit of Julia Trot-man filed by Holmes in opposition to Tele-Check’s motion for summary judgment. Julia Trotman is Holmes’ massage therapist. She began providing massage therapy services to Holmes in early 2005, before Holmes filed this lawsuit. TeleCheck argues that Holmes timely failed to identify Trotman as an expert witness, that Ms. Trotman is not qualified to provide expert testimony, and that her affidavit contains inadmissible hearsay.

Trotman need not testify as an expert. Under Federal Rule of Evidence 701, she can testify as to her lay witness observations about Holmes’ stress, pain, and conduct. As such, Defendants’ motion to strike and/or exclude will be denied. Amy further rulings with regard to the nature and extent of Trotman’s trial testimony will be addressed, if necessary, by the Court at trial.

E. Renewed Motion to Strike and/or Exclude Expert’s Supplemental Report (Docket No. 346)

TeleCheck asks the Court to strike and/or exclude Evan Hendricks’ supplemental expert report (Docket No. 89, Exh. B) filed by plaintiff in support of her motion for summary judgment. Hendricks is the editor/publisher of a specialty news reporting service that covers credit reporting, fair information practices, and related matters. TeleCheck contends that Plaintiff filed Hendricks’ supplemental report in an untimely manner and that the report addresses documents and testimony available to Hendricks before the disclosure deadline.

The Court finds that even if Hendricks’ supplemental report contains “new” opinions, Plaintiffs failure to disclose this information until December 18, 2006, was harmless. While Defendants allege that consideration of Hendricks’ report will “significantly prejudice TeleCheck,” (Docket No. 346 at 2), Defendants do not explain how they will be prejudiced other than suggesting that Plaintiff was attempting to shield Hendricks’ opinions from cross-examination. (Id. at 3 n. 1). However, over eleven months have passed since Plaintiff provided the supplemental report to Defendants, and Defendants have not sought permission by the Court to take a supplemental deposition of Hendricks. Therefore, Defendants’ motion to strike and/or exclude the supplemental report will be denied. Any further rulings with regard to the nature and extent of Hendricks’ trial testimony will be addressed, if necessary, by the Court at trial.

IV. Cross-Motions for Summary Judgment

A. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be rendered if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and *830that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

In order to prevail, the movant has the burden of proving the absence of a genuine issue of material fact as to an essential element of the opposing party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In determining whether the movant has met its burden, the Court must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In order to defeat the motion, the non-moving party is required to show, after an adequate time for discovery, that there is a genuine issue of fact as to every essential element of that party’s case upon which he will bear the burden of proof at trial. Celotex Corp., 106 S.Ct. at 2553. In order to create a genuine factual issue, the nonmoving party must show “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Although the nonmovant need not show that the disputed issue should be resolved in his favor, he must demonstrate that there are genuine factual issues that “properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id.

A preponderance of the evidence standard is used in this determination. Id. Therefore, if the evidence offered by the nonmoving party is “merely colorable,” or “is not significantly probative,” the motion for summary judgment may be granted. Id.See also Matsushita Electric, 106 S.Ct. at 1356.

B. Analysis

The FCRA was enacted in 1970 “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of America v. Burr, — U.S.-, 127 S.Ct. 2201, 2205-06, 167 L.Ed.2d 1045 (2007) (citations omitted). More specifically, Congress enacted the FCRA “to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.... ” 15 U.S.C. § 1681(b). The Court should liberally construe the FCRA in favor of the consumer. Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 964 (6th Cir.1998).

Plaintiff Holmes alleges that TeleCheck violated the FCRA in a number of ways. The Court will address each claim below. The issues of causation and damages with respect to Plaintiffs FCRA claims will be addressed collectively at the conclusion of this section.

1. “Inaccuracy of Information/Reasonable Procedures” Claims

Subparts 3-8 of Holmes’ FCRA claim are based on allegations of inaccuracy of information provided to merchants. Holmes brings these claims under 15 U.S.C. § 1681 e(b), which requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy” when preparing a “consumer report”.

To establish a prima facie case of inaccuracy under 15 U.S.C. § 1681 e(b), a plaintiff must prove: “(1) the defendant reported inaccurate information about the plaintiff; (2) the defendant either negli*831gently or willfully failed to follow reasonable procedures to assure máximum possible accuracy of the information about the plaintiff; (3) the plaintiff was injured; and (4) the defendant’s conduct was the proximate cause of the plaintiffs injury.” Nelski v. Trans Union, LLC, 86 Fed.Appx. 840, 844 (6th Cir.2004); see also Spence v. TRW, Inc., 92 F.3d 380, 382 (6th Cir.1996)(“[The Plaintiff] could not prevail on the claims asserted [regarding accuracy] without proving that the information in question was inaccurate ....”) (citations omitted).

TeleCheck contends this claim fails as a matter of law because (1) the recommendations about which Holmes complains were not “consumer reports,” and thus are not actionable under the FCRA; (2) even if they were “consumer reports,” those recommendations did not disclose any inaccurate information about Holmes; and (3) in any event, TeleCheck’s reporting procedures were reasonable.

a. TeleCheck is a “consumer reporting agency” under the FCRA.

The FCRA defines a “consumer reporting agency” as “any person which, for monetary fees, regularly engages in the practice of assembling or evaluating consumer credit information or other information on consumers for the purposes of furnishing “consumer reports” to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C. § 1681a(f). TeleCheck represents itself as a “consumer reporting agency” on its public website (“TeleCheck is also a consumer reporting agency as defined in the Fair Credit Reporting Act”) (Docket No. 157, Plf.’s App., Tab 23, website excerpts, pp. 5-7), in its training materials (“Under the FCRA guidelines, TeleCheck is a ‘consumer reporting agency’ because we render ‘consumer reports.’ ”)(Docket No. 157, Plf.’s App. Tab 2, TeleCheck training documents, TC000276 & TC000288), in its merchant contracts (Hecht’s Contract, Plf.’s App. Tab 2, TC 002795-2805 ¶ 7), and in the “courtesy cards” provided by TeleCheck to merchants to give to consumers following a decline, which advise that consumers have a right to a “free copy of the information held in TeleCheck’s files for a period of 60 days following an adverse action” and that “[c]onsumers also may dispute the accuracy or completeness of any information in TeleCheck’s consumer report.” (Plf.’s App., Tab 25)(emphasis added). Tele-Check’s parent corporation, First Data, also indicates in its SEC filings that Tele-Check is subject to the FCRA “based on TeleCheck’s maintenance of a database containing the check-writing histories of consumers and the use of that information in connection with its check verification and guarantee services.” (Plf.’s App., Tab 3). The Court finds that, under these facts, TeleCheck is a “consumer reporting agency” under the FCRA.

b. The numeric codes issued to merchants by TeleCheck constitute “consumer reports” under the FCRA.

A “consumer report” is defined under the FCRA as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living....” 15 U.S.C. § 1681a(d)(l). Further, the information must be “used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for credit or insurance, employment purposes or any other purpose authorized under 15 U.S.C. § 1681b.” Id. Under § 1681b(a)(3)(F)(i), a “consumer report” may be furnished to a person having “a legitimate business need *832for the information in connection with a business transaction that is initiated by the consumer.”

Defendants argue that the “Code 0” and “Code 3s” disclosed no information about Holmes to merchants bearing on any of the seven characteristics set forth in the FCRA definition of “consumer report,” and thus, the FCRA does not apply. Defendants’ argument rests on the fact that when TeleCheck issues a “Code 3” to a merchant, it provides the merchant with the following description of the code: “TeleCheck has no negative information on the cheekwriter or company, but the check falls outside the guidelines that TeleCheck will guarantee at this time.” (Hogan Deck, Exh. A, TC002895).

The Court is not persuaded by Defendants’ argument. A “Code 3” transmittal must be considered alongside all of Tele-Check’s representations about its services to merchants. TeleCheck represents that it can predict bad or risky check writers from good ones and that it “contracts with merchants to provide those services (check verification or check guarantee) to assist them in decreasing their risk of bad or fraudulent checks” (Docket No. 331 at 2). TeleCheck also states that it “uses the information in its database to determine whether or not a consumer is ‘worthy’ of writing a check or opening a checking account. TeleCheck’s communication of the response codes to the subscriber bears on the consumer’s ability to write a check or open a checking account.” (Docket No. 157, Plf.’s App., Tab 2, TC 000276-77 and TC000288-89). Thus, when TeleCheck issues a “Code 3” related to a check presented to a merchant, TeleCheck’s code communicates a message about an identifiable person’s “character, general reputation, personal characteristics, or mode of living,” i.e., it is advising the merchant that the cheekwriter standing before it poses some kind of risk. TeleCheck is providing this information to a merchant who has a legitimate business need in connection with a business transaction initiated by the consumer, i.e., sales transactions initiated by Holmes at the merchants’ stores.

In addition, TeleCheck admits it issues “consumer reports.” In documents describing “Code 1,” “Code 3,” and “Code 4,” TeleCheck states that “TeleCheck electronically or verbally communicates these consumer reports to its subscribers through the issuance of authorization response codes relating to the consumer’s transaction with the subscriber.” (Plf.’s App., Tab 2, TC000276-77 & TC000288-89)(emphasis added). The “courtesy cards” provided by TeleCheck to merchants to give to consumers following a decline advise that consumers have a right to a “free copy of the information held in TeleCheck’s files for a period of 60 days following an adverse action” and that “[cjonsumers also may dispute the accuracy or completeness of any information in TeleCheck’s consumer report.” (Plf.’s App., Tab 25)(emphasis added).

Courts have held that check verification and guarantee companies are consumer reporting agencies and provide “consumer reports.” See Estiverne v. Sak’s Fifth Ave., 9 F.3d 1171, 1173-74 (5th Cir.l993)(holding that a check approval company’s report was “consumer report” for FCRA purposes and store’s obtaining of report for purpose of deciding whether to accept cheek was legitimate business need); Greenway v. Info. Dynamics, Ltd., 524 F.2d 1145, 1146 (9th Cir.l975)(holding that a report of the previous issuance of an unpayable check is a “consumer report,” subjecting issuer to requirements of the FCRA as a “consumer reporting agency,” inasmuch as report bears on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, and personal characteristics, and check it*833self is, essentially, an instrument of credit); Lofton-Taylor v. Verizon Wireless, 2006 WL 3333759, at *3 (S.D.Ala. Nov.14, 2006)(holding that a “report from a check approval company is a consumer report under § 1681a(d).”); Alexander v. Moore & Assocs., Inc., 553 F.Supp. 948, 950-51 (D.C.Hawai’i 1983)(holding that a check guarantee service which gave to tenants a “Code 4” which caused them to later have their checks refused by various merchants issued “consumer reports” and thus was a “credit reporting agency” within the FCRA); Peasley v. Telecheck of Kansas, 6 Kan.App.2d 990, 637 P.2d 437, 442 (Kan.App.l981)(holding that “the check guarantee and reporting service on bank checks of consumers, which defendant engages in for the benefit of merchant subscribers, falls within the definition of a ‘consumer report’ ” and “defendant in furnishing such service is a ‘consumer reporting agency’ ”). Likewise, the Court finds that the numeric codes issued by Tele-Check to the merchants at issue constituted “consumer reports” under the FCRA.

c. A genuine issue of material fact exists as to whether the “Code 3s” issued by TeleCheck transmitted inaccurate information regarding Holmes’ 2005 checks, but not her 2003 and 2004 checks.

Defendants maintain that even so, neither the “Code 3” nor the “Code 1” transmitted to merchants disclosed inaccurate information about Holmes. In this Circuit, if the information actually conveyed to a third party is “technically accurate,” the analysis ends there. Dickens v. Trans Union, 18 Fed.Appx. 315, 318 (6th Cir.2001); Garrett v. Trans Union, LLC, 2006 WL 2850499, at *10 (S.D.Ohio Sept.29, 2006); Slice v. ChoiceDATA Consumer Servs. Inc., 2006 WL 686886, at *7 (E.D.Tenn. Mar.16, 2006)(fínding no liability under § 1681e because the information communicated was accurate). Under the “technical accuracy” standard adopted by the Sixth Circuit, a “credit reporting agency satisfies its duty under section 607(b) if it produces a report that contains factually correct information about a consumer that might nonetheless be misleading or incomplete in some respect.” Dickens, 18 Fed.Appx. at 318 (quoting Cahlin, 936 F.2d at 1156); Garrett, 2006 WL 2850499, at *9 (holding that a report entry that could have been more accurate and specific was still technically accurate and did not give rise to a FCRA claim).

As to the 2003 and 2004 checks at issue, the information conveyed by TeleCheck to Hecht’s and Borders via its numeric codes was accurate. See Johnson v. Equifax, Inc., 510 F.Supp.2d 638, 646 (S.D.Ala.2007)(“Even if Johnson could establish that a Trans Union report was furnished to a third party, Trans Union’s reporting of the MBNA account with the “included in bankruptcy” comment was accurate .... Consequently, Johnson’s claim is without merit.”) Regarding the August 22, 2003 check to Hecht’s, the risk model considered such factors as Holmes’ recent heavy volume of checks, her previous bounced check, and the amount of her check compared to the store average. Holmes provides no evidence that the application of those variables was inaccurate; she concedes that she had bounced a check a few months earlier, that she had written numerous checks recently, and that the check was for over $489.

According to Ahles, director of risk technology at TeleCheck, the August 26, 2003 check to Borders received a “Code 3” because Holmes did not obtain an overturn of the August 22 Hecht’s “Code 3.” Holmes does not dispute that the Hecht’s “Code 3” occurred just four days before the Borders transaction and concedes that she did not attempt to have TeleCheck overturn the *834Hecht’s “Code 3” by calling TeleCheck on August 22, 2003.

As to the 2004 check to Hecht’s, Tele-Check claims that Holmes received a “Code 0” response because she had already written a large check to Hecht’s within the preceding 24 hours. Holmes does not dispute that she had written such a check. Holmes makes no argument, nor is there any evidence, that the TeleCheck system actually recommended approval of these check transactions or that the transactions actually passed the guidelines for the particular merchant’s risk models.

However, as to the 2005 “Code 3” declines, the information about Holmes conveyed by TeleCheck to the merchants was neither accurate nor based on accurate information. Ahles testified that TeleCheck issued the “Code 3s” because its system failed to recognize Holmes’ new driver’s license number and therefore viewed her as a first-time check writer.10 (Docket No. 157, Tab 30, Ahles Dep., Vol. I, pp. 230-31). Holmes was certainly not a first-time check writer. She had years of check writing history in TeleCheck’s system. However, TeleCheck’s system and/or personnel failed to connect or associate her prior check writing history under her 8-digit driver’s license number with her new 9-digit driver’s license number. The parties dispute whether, and to what extent, TeleCheck modified its system to combine a check writer’s history with her new one.11 Considering that the heart of Tele-Check’s system is the consumer’s transactional history,12 a genuine issue of material fact exists as to whether TeleCheck followed reasonable procedures to assure maximum possible accuracy when it reported to merchants in 2005 that Holmes’ checks could not be guaranteed — reports based, at least in part, on the inaccurate fact that Holmes was a first-time check-writer.

d. A genuine issue of material fact exists as to whether TeleCheck’s procedures in preparing “consumer reports” were unreasonable and in violation of the PCRA.

Defendants argue that even if the “Code 0” and “Code 3s” were “consumer reports,” and even if those codes disclosed inaccurate factual information about Holmes to merchants, Holmes has failed to offer any proof that TeleCheck’s procedures in preparing the reports were unreasonable. In the Sixth Circuit, “the standard of conduct by which the trier of fact must judge the adequacy of [consumer reporting] agency procedures is what a reasonably prudent person would do under *835the circumstances.” Bryant v. TRW, Inc., 689 F.2d 72, 78 (6th Cir.1982). The question of whether an agency followed “reasonable procedures” is typically a fact question reserved for the jury. Boris v. Choicepoint Servs., Inc., 249 F.Supp.2d 851, 856 (W.D.Ky.2003) (citations omitted).

TeleCheck uses two primary identifiers in the processing of paper check transactions — driver’s license numbers and bank account numbers. Merchants are not required to input both identifiers in the processing of a particular check. If a merchant inputs only one identifier (such as driver’s license number only), the “consumer report” given to the merchants is limited to the information that is stored by TeleCheck based solely on the driver’s license number. Similarly, if a merchant inputs only the bank account number, the information provided that forms the basis of the “consumer report” is limited as well. Holmes contends this is just one of the many ways in which the “consumer report” given by TeleCheck to merchants is inaccurate. By segregating the data regarding a particular consumer based on a driver’s license or bank account number, TeleCheck self-limits the information provided. In other words, Plaintiff contends, a merchant is naturally given an incomplete consumer check writing history based on TeleCheck’s decision to segregate its data.

The Court finds that whether TeleCheck used “reasonable procedures” in reporting information about Holmes to merchants and in maintaining reports on Holmes is therefore a question for the jury to determine.

For these reasons, Defendants’ motion for summary judgment as to subparts 3 through 8 of Holmes’ FCRA claim will be granted as to the checks written in 2003 and 2004 and denied as to the checks written in 2005.

2. “File Disclosure” Claims

Subparts 1 and 2 of Holmes’ FCRA claim are based on TeleCheck’s alleged failures to provide a complete or partial file disclosure, as well as a copy of the report forming the basis for denying her checks, to Holmes. TeleCheck maintains that it complied with the letter and the spirit of the FCRA in responding to Holmes’ requests.

a. Refusal to provide file disclosures

First, Holmes contends that until the filing of this lawsuit, TeleCheck refused to provide any type of file disclosure whatsoever. In addition, Holmes contends that even after the filing of this lawsuit, TeleCheck refused to provide a complete file disclosure compliant with the FCRA. Under 15 U.S.C. § 1681 g(a), a consumer reporting agency shall, upon request, clearly and accurately disclose to the consumer:

(1) all the information in the consumer’s file at the time of the request;

(2) the sources of the information;

(3) identification of each person that procured a consumer report during a period of one year preceding the date on which the request is made;

(4) the dates, original payees, and amounts of any checks upon which is based any adverse characterization of the consumer included in the file at the time of the disclosure;

(6) If the consumer requests the credit file and not the credit score, a statement that the consumer may request and obtain a credit score.

Under § 1681a(g), the term “file” when “used in connection with information on any consumer, means all of the information on that consumer recorded and retained *836by a consumer reporting agency regardless of how the information is stored.”

Before making a “file disclosure,” consumer reporting agencies “shall require, as a condition of making the disclosures required under [15 U.S.C. § 1681g, the file-disclosure provision], that the consumer furnish proper identification.” 15 U.S.C. §§ 1681h(a)(l) and 1681g(a). TeleCheck contends that it provided a file disclosure once Holmes submitted the proper identification in connection with her request for that disclosure.

Holmes claims that she made an oral request by telephone to “Rita” at Tele-Check for a complete file disclosure on August 26, 2003, and that “Rita” advised her to submit a written file request, which she did not do. TeleCheck has no record of Holmes’ alleged oral request. At that time, Federal Trade Commission (“FTC”) commentary stated that an agency may insist on a written request for a file disclosure. See 16 C.F.R. Part 600, § 609, Part 3. The FCRA did not require TeleCheck to make file disclosures upon telephonic request until after the 2003 FACT Act Amendments became effective in December 2004. See 16 CFR § 610.3 (effective date of Dec. 1, 2004). However, the FTC commentary was not binding; the statute simply stated that “upon request” the consumer reporting agency “shall” produce the file. TeleCheck has not refuted Holmes’ assertion that she spoke with “Rita” at TeleCheck and requested her file. A genuine issue of material fact exists as whether Holmes made a request for a file disclosure to TeleCheck via “Rita” in 2003.

Holmes sent letters dated September 11, 2003, and October 2, 2003, requesting a “detailed written explanation stating the reason(s) for declining to approve [her] checks.” (Docket No. 157, Plf.’s App., Tabs 5 & 6). According to TeleCheck, Holmes’ letters simply questioned why her checks were declined and because they did not request file disclosures specifically, Te-leCheck did not disclose her file. Instead, TeleCheck sent a form letter dated October 2, 2003, requesting that Holmes provide her driver’s license number, all the numbers at the bottom of the check from the left to the right and her Social Security number. TeleCheck indicated that the information was being requested “for the sole purpose of locating” Holmes’ file and/or information pertaining to Holmes’ inquiry. (Plf.’s App., Tab 6).

Holmes sent another letter to TeleCheck dated October 15, 2003, again asking Tele-Check to explain why her check was denied. (Plf.’s App., Tab 6). TeleCheck sent a letter to Holmes dated November 4, 2003, stating that Holmes’ file reflected a “positive status” and contained “no derogatory information.” (Plf.’s App., Tab 7).

Holmes’ third letter, sent November 11, 2003 (incorrectly dated September 11, 2003), stated: “Please state in fall and complete detail, [sic] all facts, information and data which TeleCheck relied upon and/or utilized in concluding that ‘the check simply did not meet the acceptance guidelines that TeleCheck has established.’ ” (Docket No. 85, Tab 8)(emphasis in original). Holmes further insisted on “an immediate, complete, specific and accurate response to [her] inquiries and full disclosure stating the specific grounds behind the denial of [her] checks and also information on what [she] c[ould] do in the future to avoid these humiliating experiences.”

TeleCheck contends it sent a letter to Holmes in response dated December 11, 2003, but it has not produced the letter. The parties dispute whether Defendants purposefully destroyed or inadvertently lost or destroyed the letter. Holmes recalls receiving a letter stating that Tele-Check had made an adjustment to her *837account and that the specific type of adjustment was not explained. (Plf.’s App., Tab 21, Holmes Aff. ¶ 8).

Holmes wrote TeleCheck again on August 24, 2004, regarding her file and enclosed all prior communications between the parties. TeleCheck responded by letter saying that Holmes’ “file reflects a positive status and contains no derogatory information.” (Plf.’s App., Tab 11).

The court finds that a genuine issue of material fact exists as to whether Holmes’ 2003 and 2004 letters contained requests for file disclosures under the FCRA, triggering TeleCheck’s obligation under § 1681 g(a) to disclose Holmes’ files.

Holmes’ husband/attorney sent a letter to TeleCheck dated September 17, 2004. In the letter, he referenced Holmes’ November 4, 2003 letter, and requested that TeleCheck “state in full and complete detail, all facts, information, and data which TeleCheck relied upon and/or utilized in concluding that ‘the check did not meet the acceptance guidelines that TeleCheck had established.’” (Plf.’s App., Tab 12). The letter further requested that TeleCheck “forward a complete copy of Ms. Holmes’ file.” (Id.) TeleCheck advised Mr. Holmes that it could not locate the checkwriter information without Mrs. Holmes’ unique identifiers.13

Mr. Holmes sent another letter, dated October 29, 2004, demanding that Tele-Check “provide a detailed, written response to Ms. Holmes’ inquiry related to the checks referenced in counsel’s September 17, 2004, letter” and also to “forward a complete copy of Ms. Holmes’ file.” (Plf.’s App., Tab 14). Because he still did not provide Holmes’ unique identifiers, Tele-Check again advised Mr. Holmes that such information was required before Tele-Check could provide information to him.

Mrs. Holmes sent a letter to TeleCheck, dated May 22, 2005, in which she provided “written notification that [she] would like to receive a free copy of the consumer’s information held in TeleCheck’s file with regard to [her] account.” (Plf.’s App., Tab 16). The parties agree that this letter clearly contained a request for a file disclosure. However, TeleCheck did not release a file disclosure. TeleCheck maintains that it did not provide a file disclosure because Holmes provided an identifier (her expired 8-digit license number) that did not match the one (her 9-digit license number) used in the Arden B. transaction about which she was inquiring. Holmes, on the other hand, contends that her check was ultimately accepted by TeleCheck at Arden B. using the 8-digit license number.

Instead of providing a file disclosure, TeleCheck sent to Holmes two letters dated June 3, 2005, stating that the unique identifier she had provided to TeleCheck reflected no negative history. TeleCheck provided a toll-free number for Holmes to call. She did not call that number to discuss her request.

At a minimum, Holmes urges, Tele-Check should have informed Holmes that there was some confusion as to her eight and nine digit driver’s license numbers. TeleCheck maintains that because of the conflicting information provided by Holmes, it did not have confidence in her identity.

Holmes sent another letter dated June 14, 2005, stating that “once again, I am requesting that you send me a free copy of the consumer’s information held in Tele-*838Cheek’s file with regard to me.” (Plf.’s App., Tab 18). According to TeleCheek, Holmes did not provide the identifier used in the transaction about which she was inquiring, nor did she provide any identifiers. Instead, Holmes provided a reference number associated with the specific transaction about which she inquired, so Tele-Check responded to her inquiry about that transaction but, without a unique identifier from Holmes in her June 14 letter, did not provide a file disclosure.

Holmes requested a file disclosure again on August 8, 2005, in her letter to Tele-Check inquiring about the July 14 declines at Charlotte Russe and Hecht’s. In her written correspondence to TeleCheek, she provided two different bank account numbers, one of which she admits was incorrect with regard to the Hecht’s transaction at issue.

TeleCheek maintains that it responded by telling her that an “adjustment” had been made to her file and by providing Holmes with a file disclosure for the valid bank account number she provided in August 8, 2005 letter.

On or about October 11, 2005 — after Holmes had filed this lawsuit — a document entitled “TeleCheek File Repo” was mailed to Holmes, without a cover letter or a “Summary of Rights.” TeleCheek maintains that it provided this document to Plaintiff as a file disclosure in response to her August 8, 2005 letter. Plaintiff has adduced evidence that the “TeleCheek File Repo” was generated per the instructions of Jane Williams, in-house counsel for Te-leCheck, as confirmed in her September 29, 2005 email to Plaintiffs counsel after the filing of this lawsuit. (Plf.’s App., Tab 32). The Court finds that there is a genuine issue of material fact as to whether TeleCheek provided a file disclosure in response to Plaintiffs August 8, 2005 request.

Plaintiff contends that at no time did TeleCheek tell Holmes to put each and every identifier on each and every communication. Their standard practice is to send the “insufficient information” form letter, similar to the one that was mailed to Holmes four times. Thus, contends Plaintiff, the whole purpose of the Tele-Check process — coupled with not cataloging prior communications' — is designed to give consumers the runaround.

TeleCheek does not tell consumers that the information disclosed will be limited to the identifiers provided. Plaintiff contends that TeleCheek should provide all information based on the identifiers provided by the consumer as well as identifiers known by TeleCheek to be associated with that particular person.

The Court finds that a genuine issue of material fact exists as to whether Tele-Check’s conduct in response to Mr. and Mrs. Holmes’ oral and written communications complied with § 1681 g(a) of the FCRA.

The Court also finds that a genuine issue of material fact exists as to whether TeleCheek ever provided Holmes with a complete file disclosure upon Holmes’ request. The term “file” is defined by 15 U.S.C. § 1681a(g) as “all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how that information is stored.” Plaintiff contends that a complete file disclosure would be all information related to all checks on the consumer making the request in TeleCheck’s system and that TeleCheek refused to produce her complete file.

Plaintiff alleges that the information contained in the “Repo” was incomplete and therefore inaccurate because: the information was limited to six check transactions processed through TeleCheek using only two identifiers: Holmes’ AmSouth *839bank account and 9-digit Tennessee driver’s license number; no information was provided about the Bank of America account that Holmes had used during 2003 and 2004, when she experienced problems with TeleCheck; nor was any information provided regarding the 8-digit Tennessee driver’s license number; the “Repo” did not contain several checks Holmes had written to TeleCheck merchants during this time frame; the “Repo” did not contain Holmes’ date of birth, although Tele-Check had this identifying information about her in its files and uses a consumer’s age as a factor in processing check transactions; and there is no mention of the Swim ‘N Sport Check, although Defendants claim that Holmes’ check was declined on August 22, 2003, based on her prior check writing activity and the Swim ‘N Sport check.

b. Refusal to provide reasons forming the basis to deny Holmes’ checks

Holmes alleges that TeleCheck failed “to provide a copy of a report forming the basis to deny Holmes’ checks.... ” (Comply 40(1)). To the extent that this theory seeks a disclosure of Holmes’ file, it is duplicative of Plaintiffs claim that TeleCheck violated § 1681 g(a). To the extent that Holmes is seeking the reasons behind TeleCheck’s issuance of “Code 3s” with regard to her checks, it is undisputed that she and her husband/attorney repeatedly requested the specific reasons for the codes issued to merchants.

According to TeleCheck, the reasons and bases for a “Code 3” decline necessarily involve the application of risk predictors to specific transactions. TeleCheck maintains that it does not disclose to check writers the variables used in the risk models for two practical reasons: (1) the scoring models are proprietary and (2) persons trying to present fraudulent checks could more easily circumvent TeleCheck’s system for improper and unlawful purposes. TeleCheck provided to Plaintiff a general explanation of factors that could impact a risk decline recommendation.

The FCRA expressly excludes from the disclosure requirement “any information concerning credit scores or any other risk scores or predictors relating to the consumer.” 15 U.S.C. § 1681g(a)(l)(B). In the 2003 FACT Act amendments to the FCRA, Congress added an exemption for check services companies from certain requirements to provide consumers with access to credit scoring information. See 15 U.S.C. § 1681c(d)(2). Thérefore, as a matter of law, TeleCheck cannot be liable for failing to provide to Holmes the risk reasons for the “Code 3s,” and Defendants’ motion for summary judgment on this issue will be granted.

c. Inaccuracy of report provided to Holmes

To the extent that Holmes claims that the accuracy requirement applies to file disclosures provided directly from a consumer reporting agency to a consumer, that claim also fails. The accuracy requirement for consumer reporting agencies relates to the preparation of “consumer reports,” not to file disclosures. See 15 U.S.C. § 1681e(b). In other words, a claim for inaccuracies in a file disclosure is not cognizable under the FCRA.

For the reasons explained above in this section, Defendants’ motion for summary judgment, as to subparts 1 and 2 of Holmes’ FCRA claim will be denied in part and granted in part.

3. “Reinvestigation” Claims

Subparts 3, 4, and 7 of Holmes’ FCRA claim relate to the FCRA reinvestigation procedures under § 1681L Section 1681i sets forth a separate procedure for disputing the accuracy of a file disclo*840sure after that disclosure is provided to the consumer. Holmes alleges TeleCheck violated the FCRA by: (a) failing to give Holmes the opportunity to dispute the accuracy or completeness of TeleCheck’s reports or files, or to request that any inaccurate or unverified information be removed from those files; and (b) failing to remove, correct, or modify those reports or files based on inaccurate or incomplete information.

Under 15 U.S.C. § 1681i, “if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file ... before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.” 15 U.S.C. § 1681i(a)(l)(A).

In Spence v. TRW, Inc., 92 F.3d 380 (6th Cir.1996), the court held that § 1681i “contemplates that the consumer will convey this information to the reporting agency so that the agency can record the current status of the information.” Id. at 383. Because the plaintiff had not notified the defendant of the inaccuracy of a particular item of information listed on a report, his FCRA claim failed. Id. n. 1 (“Mr. Spence did send TRW a communication ... in which he demanded reinvestigation of ‘any and all negative entries contained in [his] credit report.’ This was simply not sufficient to put TRW on notice that the hospital item was obsolete.”).

TeleCheck contends that Holmes likewise never notified TeleCheck that any specific information was inaccurate. Instead, TeleCheck urges, Holmes simply asked why four merchants declined her checks and argued that the checks should not have been denied. According to Plaintiff, however, after numerous adverse actions, she repeatedly disputed the completeness and/or accuracy of items contained in TeleCheck’s system, specifically, any information in her file that was causing or contributing to a check decline. For example, Holmes claims that her August 2003 call to “Rita” initiated the reinvestigation process. TeleCheck argues that, even assuming the call to “Rita” occurred, Holmes was only “disputing Tele-Check’s information;” thus, by failing to specify the specific information she disputed, she did not trigger the reinvestigation process under the FCRA.

Plaintiff contends that TeleCheck deliberately refused to reinvestigate and points to its policy of submitting only form letters to consumer inquiries and its failure to properly train its employees to conduct a proper investigation. The Court finds that a genuine issue of material fact exists as to whether TeleCheck violated § 1681i of the FCRA.

Following reinvestigation, if the disputed information is found to be inaccurate, incomplete, or unverifiable, a “consumer reporting agency” is required to promptly delete that information from the file or modify that information as appropriate based on the reinvestigation and promptly notify the furnisher that the information has been modified or deleted from the file of the consumer. 15 U.S.C. § 1681i(a)(5).

If any information has been removed or modified from the consumer’s file based on the request for a reinvestigation, the FCRA must provide a revised consumer disclosure to the consumer as a result of the reinvestigation. 15 U.S.C. § 1681 i(a)(6)(B)(ii). Holmes alleges that in December 2003, she received a letter stating *841an adjustment had been made to her file, but she was not told the nature of the adjustment nor did TeleCheck send an updated file disclosure. She alleges that on August 18, 2005, she was told that an adjustment had been made, but she was not told the nature of the adjustment nor did she receive an updated file disclosure. According to Plaintiff, the adjustments were all made in conjunction with disputes by Holmes either by phone or through letters, and neither Holmes nor the merchants were ever notified under 1681i. There is a genuine issue of material fact as to whether TeleCheck violated §§ 1681i(a)(5) and (a)(6)(B)(ii) by its alleged conduct.

In sum, the Court finds that a genuine issue of material fact exists as to Plaintiffs’ reinvestigation claim. Thus, as to sub-parts 3, 4, and 7 of Holmes’ FCRA claim, Defendants’ motion for summary judgment will be denied.

4. “Inadequate Staffing and Training” Claims

In subpart 9, Holmes claims TeleCheck violated 15 U.S.C. § 1681h(c) by failing “to provide adequate resources to comply with the FCRA, including, but not limited to, adequate staffing and training of personnel.... ” (Compl., ¶ 40(9)). The FCRA provides: “Any consumer reporting agency shall provide trained personnel to explain to the consumer any information furnished to him pursuant to section 1681g of this title.” 15 U.S.C. § 1681 g(c). “The burden is on the consumer to establish that a credit reporting agency’s procedures for training or disclosure are deficient.” Guimond v. Credit Bureau Inc. of Georgia, 1992 WL 33144, at *3 (4th Cir. Feb. 25, 1992).

TeleCheck contends Holmes’ inadequate staffing and training claim fails because at no time did Holmes seek from TeleCheck any explanation of her file disclosure. Te-leCheck points out that since 2004, it has maintained a 24-hour call center for check writers to request file disclosures and to ask questions about a file disclosure. Holmes admits she spoke with a Tele-Check employee both times she called Te-leCheck and that TeleCheck responded to all of Holmes’ letters.

Holmes, however, has adduced evidence that TeleCheck is unable or unwilling to adequately respond to consumers’ requests for information regarding their files and check declines. For example, Holmes points to evidence that TeleCheck call center representatives are overworked and required to handle over 100 calls daily; as a result, consumers frequently back up in the “queue” and representatives are pressured to shorten calls to eliminate the backlog. (Docket No. 85, Tab 36, Ramirez Dep. at pp. 12-13, 30). Further, representatives hang up on consumers or transfer calls to another department, causing customers to “go around and around.” (Id. at pp. 23-24). In other instances, representatives are instructed to tell consumers that their calls are being transferred to another representative, hold for one minute, then hang up. (Id., TC000581). Representatives are not properly trained to investigate disputes or facilitate the access to a consumer’s file. Instead, representatives are required to use scripts from which they cannot deviate. (Id. at pp. 39-40). Dissatisfied consumers asking for a supervisor are simply forwarded to a representative posing as a supervisor. (Id. at pp. 9-10). Representatives are instructed not to escalate calls to the Consumer Resolutions Department/Office of the President (“CRD/OOP”). According to Jerry Mon-tiel, a CRD/OOP representative since 2000, a call is escalated to him only once every 1-6 months. (Docket No. 85, Tab 29, Montiel Dep. at pp. 16-17; Docket No. 85, Tab 28, TC00950).

*842As to written communication, Holmes has adduced evidence that CRD/OOP representatives are limited in their ability to respond to consumers and required to use forms or templates when responding to consumer letters. The form letters do not contain the name of the CRD/OOP employee responding to the letter, making follow up more difficult. (Montiel Dep. at pp. 17-18). Consumer letters are stored in a file cabinet by month and date only. The letters are then rotated by date and placed in boxes housed in a storeroom in the CRD/OOP. (Id. at pp. 25-26).

The Court finds that a genuine issue of material fact exists as to whether Tele-Check violated the FCRA by failing to provide adequate staffing and training of personnel.

5. Improper Request of Information Claims

In subpart 10 of Holmes’ FCRA claim, she alleges that TeleCheck violated “federal regulations” by improperly requesting her Social Security Number. (Compl., ¶ 40(1); Docket No. 83 at 24; Docket No. 100 at 345). Holmes claims that Tele-Check did not use her Social Security number as an identifier when processing check transactions and thus should not have asked for that information.

The “federal regulation” upon which Holmes relies is an FTC interpretative rule: 16 C.F.R. § 610.2(a)(2)(h). (See Docket No. 152 at 30). Even if FTC rules and regulations could give rise to a private cause of action,14 the FTC rule on which Holmes relies did not exist until December 2004. See 16 C.F.R. § 610.3 (effective date of Dec. 1, 2004). TeleCheck’s requests for Holmes’ Social Security number occurred in 2003. (See Docket No. 114, Exhs. 20 & 23).

Furthermore, the FTC’s commentary lists certain information that a “consumer reporting agency” may request from a consumer, including a Social Security number. See 16 C.F.R. § 614.1. In conjunction with the FACT Act Amendments to the FCRA, the FTC stated: “[I]t is reasonable for consumer reporting agencies to request the full Social Security number if they determine it to be necessary.... Furthermore, because names, addresses, and birth dates are not always unique to a consumer, full Social Security numbers may be necessary to ensure that consumer reporting agencies match the consumer with the correct file.” 69 Fed.Reg. 63,922, 63, 931 (Nov. 3, 2004).

In any event, this claim must fail because Plaintiff waived her objection to Te-leCheck’s request for her Social Security number. Upon TeleCheck’s request, Holmes provided her Social Security number to TeleCheck in writing without objection in October 2003. In 2005, she provided it again without objection or apparent reservation to TeleCheck, without Tele-Check having specifically requested that information.

For these reasons, Plaintiffs claim fails and Defendants’ motion for summary judgment as to this claim will be granted.

6. Wrongful Dissemination of Information Claims

In subpart 11 of her FCRA claim, Holmes contends that TeleCheck wrongfully disseminated “reports, file material *843and/or other information” about Holmes to “unauthorized and improper persons, parties or entities.” (CompU 40(11)). Holmes bases this claim, in part, on the fact that TeleCheck could not locate four letters from Holmes in off-site storage during discovery.

TeleCheck contends that this is no way no demonstrates that TeleCheck wrongfully disseminated reports, file material and/or other information about Holmes. TeleCheck has adduced evidence that it keeps consumer letters in a locked room for one year and then houses those letters in a secure off-site storage facility for six additional years. (Moore Dep. at 140).

Holmes has not produced any evidence to support her contention that TeleCheck provided her information to any unauthorized party.

Holmes also bases this claim on the existence of a facsimile header printed on certain letters produced in discovery that reads: “7133328284 Innovis Marketing.” (Docket No. 130, Exh. 1). The facsimile machine that produced that header was located in the TeleCheck Consumer Resolutions Department and had been in that location many years ago. (Clark Dep., Docket No. 133 at 127-28). The letters at issue were faxed from that machine to TeleCheck’s server to generate electronic copies of the letters and were not disclosed to a third party. (Id. at 131). Holmes has adduced no evidence that these letters were provided to an unauthorized third party. Holmes’ FCRA claim based on dissemination of information to unauthorized third parties thus fails as a matter of law.

7. Failure to Include a “Summary of Rights” Claim

Holmes alleges that TeleCheck violated 15 U.S.C. § 1681g(c)(2) by failing to include a FCRA “Summary of Rights” with the October 5, 2005 “File Repo.” As Defendants point out, Holmes’ Second Amended Complaint does not include a claim for failure to include a “Summary of Rights” with a file disclosure under § 1681g(c)(2). (See Docket No. 59, ¶ 40). Defendants are entitled to summary judgment on this claim.

8. Causation

Defendants argue that they are entitled to summary judgment because Holmes failed to produce evidence that the alleged actions of Defendants caused her harm. To prevail on a FCRA claim, a plaintiff must prove that the defendant’s violation(s) of the Act caused her injury. Lewis v. Ohio Prof'l Elec. Network, LLC, 248 F.Supp.2d 693, 701 (S.D.Ohio 2003)(citing Crabill, 259 F.3d at 664 (“Without a causal relation between the violation of the statute and the loss of credit, or some other harm, a plaintiff cannot obtain an award of ‘actual damages,’ which is one of the remedies under the FCRA.”)).

Plaintiff contends that as a result of TeleCheck’s violations of the FCRA, her checks were declined at the point of sale and she therefore suffered damage to her reputation, having been labeled a bad check writer and a risk. She contends that the emotional distress she suffered was the direct result of the initial and subsequent declines of her checks at the recommendation of TeleCheck. She also contends she suffered stress and mental anguish throughout the two years prior to the filing of this lawsuit during which she repeatedly tried to obtain information from TeleCheck. The Court finds that Holmes withstands summary judgment on the issue of causation. See Boris, 249 F.Supp.2d 851, 860 (“Based on Plaintiffs testimony and the additional evidence from two very credible witnesses, a jury could quite reasonably find that [defendant’s] actions caused the emotional distress which Plaintiff so vividly described.”); Stevenson, *844987 F.2d at 297 (finding injury where plaintiff was denied credit three times and experienced considerable embarrassment from having to discuss the problems with business associates); Pinner v. Schmidt, 805 F.2d 1258, 1265 (5th Cir.1986)(finding liability where embarrassment and stress resulted from lengthy dealings with credit bureau).

9. Damages

The FCRA provides for an award of actual damages to redress a violation of the statute. 15 U.S.C. § 1681o. If a violation is negligent, the affected consumer is entitled to actual damages. § 1681o(a). If willful, however, the consumer may recover actual damages or statutory damages ranging from $100 to $1,000, and even punitive damages. § 1681n(a).

Holmes seeks actual damages for emotional distress and humiliation stemming from Defendants’ “Code 3” and “Code 0” declines, alleged inaccurate reporting, and failure to provide and correct information.

“It is well settled that actual damages under the FCRA are not limited to out-of-pocket expenses and may instead include humiliation and mental distress.” Boris, 249 F.Supp.2d 851, 859 (citing the Fifth, Second, and Ninth Circuits). Even where no pecuniary or out-of-pocket loss has been shown, the FCRA permits recovery not only for humiliation and mental distress, but for injury to one’s reputation and creditworthiness. Boris, 249 F.Supp.2d 851, 861 (citing Bryant, 689 F.2d at 79). However, there must be proof to support a finding of actual or compensatory damages. Id. at 861. “It is important to remember that damages for emotional distress and damages for [injury to] business reputation are based on entirely different evidentiary foundations. Plaintiffs credible testimony can support her own claim of emotional distress. However, damage to credit or business reputation must rest upon some extrinsic evidence, not just upon Plaintiffs opinion.” Id.

Further, to recover for emotional distress, a plaintiff must explain the circumstances in reasonable detail. Bach v. First Union Nat’l Bank, 149 Fed.Appx. 354, 361 (6th Cir.2005)(affirming an award of $400,000 in compensatory damages, finding the plaintiff produced “sufficient evidence of actual damages in the form of emotional pain and suffering, humiliation, lost of credit opportunities and damage to her reputation for creditworthiness” to support the jury finding). “An injured person’s testimony alone may suffice to establish damages for emotional distress provided that she reasonably and sufficiently explains the circumstances surrounding the injury and does not rely on mere eonclusory statements.” Id. at 19; see also Boris, 249 F.Supp.2d 851, 859 & n. 3 (finding that plaintiffs testimony and the testimony of her two coworkers as to plaintiffs humiliation, mental distress, and embarrassment “was sufficiently specific to constitute direct evidence of her emotional distress, rather than being merely eonclusory statements or speculation about future distress” and rejecting defendant’s argument that plaintiff failed to differentiate between the stress caused by the inaccurate credit report and other stress in her life because “Plaintiff and her co-workers were very believable witnesses who articulated a clear and credible picture of the emotional turmoil [Defendant] caused [and][t]his [was] more than enough to support a claim for emotional distress.”).

Holmes has testified that she suffered emotional distress, humiliation, sleepless nights, embarrassment, anxiety, and fear as a result of TeleCheck’s alleged FCRA violations. She also testified that her back pain has been aggravated by stress she claims TeleCheck caused. *845Holmes also has produced the testimony of her daughter,15 her massage therapist, and her neurologist to support her causation theory and damages claims.

Under Bach, the evidence adduced by Plaintiff is sufficient to create a genuine issue of material fact about whether Holmes suffered emotional and aggravated physical injuries because of TeleCheck’s alleged FCRA violations. See also Lewis, 248 F.Supp.2d at 708; Swanson v. Central Bank & Trust Co., 2005 WL 1324887, at *3 (E.D.Ky. June 3, 2005).

Holmes also seeks statutory and punitive damages. A plaintiff may recover statutory damages in lieu of actual damages only upon a showing of a willful FCRA violation. 15 U.S.C. § 1681n. The Supreme Court recently held, in Safeco Ins. Co. of America v. Burr, — U.S.-, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007), that punitive and statutory damages may be recovered under the FCRA only if a plaintiff demonstrates: (1) the defendant knowingly violated her FCRA rights; or (2) the defendant acted with reckless disregard for those rights. Id. at 2208. The Court reiterated that a reckless action is one entailing an “unjustifiably high risk of harm that is either known or so obvious that it should be known.” Id. at 2215. “It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law.” Id. at 2214. As ultimately explained by the Court in Safeco, “a company subject to the FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute’s terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” Id. at 2215.

TeleCheck first argues that Holmes’ Complaint does not allege that TeleCheck willfully violated the FCRA and, for that reason alone, her demand for punitive or statutory damages should be dismissed. {See Docket No. 331 at 32 n. 42). According to TeleCheck, Holmes did not allege that TeleCheck willfully violated the FCRA in the first three versions of her Complaint; even after she requested leave to amend her Complaint to add a willful claim months after the pleadings were closed, and the Court granted her leave to amend over TeleCheck’s objections, Holmes never amended her Complaint to include allegations of a willful FCRA violation. {Id.)

In granting Holmes’ motion to amend her complaint, the Magistrate Judge reasoned, “[ajlthough it might not have been clear before, once the plaintiff filed her amended complaint on May 1, 2006, seeking punitive damages, it should have been clear to the defendant that the plaintiff was asserting a claim for willful violation of the FCRA. As the plaintiff has pointed out, the only vehicle by which the plaintiff could be awarded punitive damages under the FCRA is for the defendant’s willful noncompliance under 15 U.S.C. § 1681n, since punitive damages are not permitted for negligent noncompliance under 15 U.S.C. § 1681o.” (Docket No. 191 at 3-4). The Magistrate Judge went on to say: “However, it is clear to the Court that the defendant was fully aware that the plaintiff was asserting claims for willful noncompliance even before May 1, 2006, when the defendant served the plaintiff with interrogatories, to which the plaintiff served responses on January 24, 2006.” {Id. at 4). And, again, “The plaintiff has consistently *846argued that her FCRA claim is grounded in both negligent and willful violations and the defendant has been fully aware of the plaintiffs assertions.” (Id. at 6).

The docket in this case reflects that Plaintiff never filed the requested amendment. It is unknown to the Court why Holmes never amended her Complaint in the manner requested and allowed.16 As evidenced by her court filings since that time, Plaintiff still seeks statutory and punitive damages for TeleCheck’s alleged willful FCRA violations. (See Plf.’s Supp. Brief in Support of SJ Motion, Docket No. 349 at 30-35 describing “Defendants’ Willful Violations of the FCRA” and 36-40 describing damages for “willful violations”). The Magistrate Judge believed that Holmes’ proposed amendment was for clarification purposes only and that Holmes’ Second Amended Complaint sufficiently alleged willful violations of the FCRA. That is the law of this case. The Complaint shall be construed to include claims for statutory and punitive damages, and the parties shall include such claims in their proposed Pretrial Order.

Alternatively, TeleCheck argues that this case does not involve a “knowing” violation of the FCRA. Nor, according to TeleCheck, do the facts of this case demonstrate the requisite “recklessness” under the Safeco two-prong test.

Plaintiff argues that TeleCheck willfully provided inaccurate “consumer reports” in violation of 15 U.S.C. § 1681 e(b). Plaintiff contends that TeleChecks’ “consumer reports” are inherently inaccurate because they are not based on the creditworthiness of the consumer or the risk associated with the check transaction, but on the profit and loss of TeleCheck. Plaintiff has presented her own testimony as well as the testimony of Kimberly Hughes, a risk analyst, to support her contention.

Plaintiff also argues that TeleCheck willfully violated 15 U.S.C. § 1681g. According to Plaintiff, implicit in complying with § 1681g would be the necessary infrastructure to adequately respond to consumers’ requests for information. Instead, Plaintiff claims, TeleCheck has designed a system to confuse, frustrate, and discourage consumer inquiries and disputes. In support of this theory, Holmes has presented her own testimony, expert testimony of Hendricks, - and testimony of TeleCheck employees Ramirez, Montiel, Cox, and Moore. She has also presented written correspondence from TeleCheck, internal TeleCheck documents, and documents generated to and by the Houston BBB.

In further support of her willfulness argument, Plaintiff maintains that her situation is not an anomaly, but an example of a widespread practice by TeleCheck throughout the country. She submits the affidavit testimony of Stacy Fletcher, the director of dispute resolution at the Houston BBB, who testified that as of December 2006, the Houston BBB had received over 782 complaints in the preceding 36 months against TeleCheck. Holmes also submits the affidavit testimony of Carol Ritter, the vice president of operations and bureau standards, who stated that Tele-Check is the number one business receiving complaints with the Houston BBB for several years running. Ritter testified that the Houston BBB has received hundreds of complaints since 2003 related to TeleCheck’s failure to respond to consumer inquiries, and that the problem became so significant that in 2004, a meeting was held between the BBB and TeleCheck rep*847resentatives “over a growing pattern of complaints that we were starting to see in 2004 regarding denials. Also, we were concerned with the — the customer’s summaries of having difficulty getting through the TeleCheck system for assistance.” (Docket No. 352, Tabs 33 and 34, at pp. 42-44).

Plaintiff contends that to prove a willful violation of the FCRA, these affidavits are relevant to establish a “pattern and practice” of violating the FCRA, as opposed to an isolated incident involving Holmes. Holmes wishes to use this evidence to show that TeleCheck’s refusal to provide file disclosures is not isolated to her, but the routine mode of operation to do everything in its power to avoiding providing information.

Plaintiff argues that the Safeco ruling does not eliminate the relevance of pattern and practice proof. The Court agrees. Proof of a pattern and practice is relevant and is one way to establish willfulness. See Dalton v. ■ Capital Associated Indus., Inc., 257 F.3d 409, 418 (4th Cir.2001)(reeognizing that evidence of “other consumers [who] lodged complaints similar to [plaintiff] can be relevant in attempting to prove willfulness under the FCRA).” In Boris v. Choicepoint Servs., Inc., 249 F.Supp.2d 851 (W.D.Ky.2003), the court allowed a plaintiff alleging FCRA violations to discover numerous complaints and questions from other consumers as well as introduce at trial a 684-page exhibit of the complaints or questions of other consumers. Id. at 863. In so doing, the court noted that the 684-page exhibit was “broadly relevant to show the types of complaints [defendant] received, how those complaints were processed and the [defendant’s] knowledge of complaints generally.” Id.

Willfulness under the FCRA is generally a question of fact for the jury. See Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.l995)(“The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases.”); Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991); Lenox v. Equifax Info. Servs. LLC, 2007 WL 1406914, *6 (D.Or. May 7, 2007)(“the determination as to whether defendant’s action or inaction rises to the level of willfulness so as to violate the statutory obligations of the FCRA is also a question of fact”); Centuouri v. Experian Info. Solutions, Inc., 431 F.Supp.2d 1002, 1007 (D.Ariz.2006)(declining to enter summary judgment on the issue of wilfulness in a case involving the reasonableness of consumer protection procedures). To determine that willfulness does not present a jury question in this case, the Court would have to conclude that no reasonable jury could find that TeleCheck’s conduct created a “risk [of FCRA violation] substantially greater than that which is necessary to make [its] conduct negligent.” See Safeco, 127 S.Ct. at 2215. This the Court cannot do based upon the record currently before it.

Drawing all inferences in favor of Holmes, the Court concludes that triable issues of fact remain regarding whether TeleCheck acted willfully. For example, a reasonable jury could conclude that Tele-Check failed adequately to train its employees on the requirements of the FCRA and that TeleCheck’s procedures for handling and investigating consumer disputes posed an “unjustifiably high risk” that Te-leCheck would violate the FCRA. Safeco, 127 S.Ct. at 2215. As in Boris, this is not a case where there are allegations of an isolated instance of human error which TeleCheck promptly cured, or where, upon discovery, TeleCheck quickly took ameliorative action. See 249 F.Supp.2d at 862 (finding that “there was ample evidence from which a reasonable person could find [defendant] “knowingly and intentionally *848committed and act in conscious disregard for the rights of others.”)- For instance, Plaintiff contends and provides evidence that she still has not received a complete copy of her TeleCheck file. In any event, there is certainly sufficient evidence, albeit disputed by the defendants, from which a reasonable jury could conclude that Tele-Check negligently or willfully violated the FCRA.

10. Holmes’ Request for Declaratory and Injunctive Relief

TeleCheck contends that the Court should dismiss Holmes’ request for a declaratory judgment and permanent injunction because such remedies are not available to private litigants under the FCRA. TeleCheck’s argument is that because the statute explicitly allows for injunctive relief for the FTC, if Congress had intended for private plaintiffs to have that remedy available, it would have included that in the statute specifically. Holmes argues that whether injunctive relief is available under the FCRA is an unsettled issue that has not been addressed by the Sixth Circuit.

Sections 1681n and 1681o set forth the potential civil liability for noncompliance with the FCRA. Neither section provides for injunctive relief.

The Fifth Circuit is the only Circuit to have addressed the issue at hand. In Washington v. CSC Credit Servs., Inc., 199 F.3d 263 (5th Cir.2000), the Fifth Circuit considered the express language of the FCRA, canons of statutory construction, the affirmative grant of power to the FTC to pursue injunctive relief, and the absence of a similar grant to private litigants, and held that injunctive relief is not available to private litigants. Id. at 268. The Court reasoned that “where Congress intended to allow private injunctive relief under the FCRA, it expressly stated that this relief was available. This language would be unnecessary if injunctive relief were otherwise available.” Id. at 269.

Washington observed that lower courts are split as to whether the FCRA allows private litigants to maintain a claim for injunctive relief. Id. at 268. Washington has since become the leading case on this issue. See Young v. HSBC Mortgage Servs., Inc., 2007 WL 2083680, at * 1 (E.D.Mo.2007)(stating “[I]t has been well settled that injunctive relief is not available to private plaintiffs under the FCRA.”) (citations omitted).

At least two district court cases from within the Sixth Circuit have observed that this issue has not been addressed by the Sixth Circuit. See Presley v. Equifax Credit Informational Servs., Inc., 2006 WL 2457978, *2-3 (E.D.Ky.2006) and Lewis v. Ohio Prof'l Elec. Network, LLC, 248 F.Supp.2d 693, 704 (S.D.Ohio 2003). The Lewis court deferred on the injunctive relief issue and decided the case on other grounds. The more recent case adopted the Fifth Circuit’s reasoning in Washington, finding it “compelling” and “the more direct approach.” Id. at *2. This Court agrees and finds that the better view is that injunctive relief is not available to private litigants under the FCRA.

The cases relied upon by Plaintiff do not otherwise persuade the Court. Crabill v. Trans Union LLC, 259 F.3d 662, 665 (7th Cir.2001), mentions in dicta that a plaintiff may be able to obtain injunctive relief, but does not analyze the issue in any meaningful way. See Presley, 2006 WL 2457978, at *3 (finding Crabill not to be persuasive support for the plaintiffs position). Likewise, although the issue was specifically recognized by the Court in Albert v. Trans Union Corp., 346 F.3d 734 (7th Cir.2003), it was not addressed because the Court determined it lacked jurisdiction to hear the interlocutory appeal. Id. at 736; see Presley, 2006 WL 2457978, at *3 (finding Albert unpersuasive authority).

*849Accordingly, Holmes’ request for declaratory and injunctive relief fails as a matter of law, and this claim will be dismissed.

11. Dismissal of TeleCheck International, Inc.

Defendant TeleCheck International, Inc. (“TII”) represents that it is only a holding company that owns TeleCheck. According to TII, it did not act as a “consumer reporting agency” with respect to Holmes’ transactions. TII maintains that it did not enter into service contracts with any of the four merchants in this case and that Plaintiff has provided no evidence that TII played any role in the check transactions at issue in this case.

In response, the Plaintiff alleges that TeleCheck, International, Inc. is a “consumer reporting agency” and that its operations with TeleCheck Services, Inc. are so commingled as to render them inseparable. Plaintiff has adduced evidence that both Defendants utilize the same employees and infrastructure; that TII engages in check verification and guarantee services; that TII bills merchants for these services; that TII is directly involved with the approval of consumer checks and updating consumer files in Defendants’ database; that TII is involved in the approval of future checks; and that TII is involved in the collection of returned checks to merchants that are forwarded to Defendants under their check guarantee service. The Court finds that Plaintiff has carried her burden to avoid summary judgment on this issue.

V. Conclusion

Defendants’ request for oral argument (Docket No. 347) will be denied. Defendants’ renewed Motion to Strike and/or Exclude Third Party Checkwriter Affidavits (Docket No. 342) will be denied as moot.

Defendants’ Renewed Motion to Strike and/or Exclude Documents from the Houston Better Business Bureau (“BBB”) (Docket No. 343) will be denied. In particular, as to the BBB records of complaints filed by other eheckwriters, the motion will be denied as moot. The Court did not consider these documents in ruling on the parties’ cross-motions for summary judgment. However, as to the documents sent by TeleCheck to the BBB, the motion will be denied. The documents were considered by the Court only in considering whether Defendant TeleCheck International, Inc. is a “consumer reporting agency” under the relevant statute.

Defendants’ Renewed Motion to Strike and/or Exclude Plaintiffs Supplemental Affidavit and Second Supplemental Affidavit (Docket No. 344), the Affidavit of Julia Trotman (Docket No. 345), and the Expert’s Supplemental Report (Docket No. 346) will be denied.

For the reasons explained herein, Defendants’ Renewed Motion for Summary Judgment (Docket No. 329) will be denied in part and granted in part. Plaintiffs Renewed Motion for Summary Judgment (Docket No. 349) will be denied.

With respect to the parties’ cross-motions for summary judgment, the Court specifically finds that a genuine issue of material fact exists as to the following Fair Credit Reporting Act claims, and these claims shall proceed to trial against both Defendants: Subparts 3-8 of Holmes’ claim under 15 U.S.C. § 1681e(b), the “inaccuracy of information/failure to follow reasonable procedures” claims based on the “Code 3s” issued to merchants in 2005; Subparts 1-2 of Holmes’ claim under § 1681 g(a), the “file disclosure” claims, excluding those theories set forth below; Subparts 3, 4, and 7 of Holmes’ claim under § 1681i, the “reinvestigation” claims; and Subpart 9 of Holmes’ claim *850under § 1681h(c), the “inadequate staffing and training” claim.

Plaintiff may pursue statutory and punitive damages based on Defendants’ alleged willful violations as set forth above.

The following claims will be dismissed: Subparts 3-8 of Holmes’ claim under 15 U.S.C. § 1681 e(b), the “inaccuracy of information/failure to follow reasonable procedures” claims based on the codes issued to merchants in 2003 and 2004; Plaintiffs “file disclosure” claims under § 1681g(a) based on Defendants’ failure to provide reasons for issuing the “Code 3s” to merchants and the inaccuracy of the file disclosure provided directly to Holmes; Subpart 10 of Holmes’ claim, the “improper request of information” claim; Subpart 11 of Holmes’ claim, the “wrongful dissemination of information” claim; and Plaintiffs purported “failure to include a ‘Summary of Rights’ ” claim under § 1681g(c)(2).

In addition, Plaintiffs request for declaratory and injunctive relief will be denied.

An appropriate Order will enter.

ON PETITION FOR PANEL REHEARING

PER CURIAM:

The petition for. panel rehearing is DENIED. To address matters raised in the petition, the opinion is revised to read as follows:

JERRY E. SMITH, Circuit Judge: *

Juliana Jett sued American Home Mortgage Servicing, Incorporated (“American Home”), for allegedly negligently and willfully failing to update her credit information in violation of 15 U.S.C. §. 1681s — 2(b). The' district court entered summary judgment for American Home on both claims. Because there is a genuine dispute of material fact as to negligence, we vacate as to that claim but affirm on the willfulness claim.

I.

Jett fell behind on her mortgage payments and filed for bankruptcy. After she completed her Chapter 13 plan, her Expe-rian Information Solutions, Incorporated (“Experian”), credit report erroneously showed the mortgage as discharged in bankruptcy with a $0 balance. She disputed the listing, and Experian sent an automatic credit dispute verification (“ACDV”) form to American Home.1 Although American Home attempted to report the loan as current with $0 past due and a principal balance of approximately $35,000, Jett’s credit report was not updated despite that four ACDV forms were exchanged over two-and-one-half years.

Jett alleges that she was denied refinancing because American Home had negligently and willfully misreported the status of the mortgage. Specifically, she maintains that it failed to update the Metro 2® Consumer Information Indicator (“CII”) field properly in the ACDV forms. Instead of changing the CII code to “Q” as instructed by the Consumer Data Industry Association’s 2012 Credit Reporting Guide, American Home left the field blank. A blank CII field signals that the CRA should keep reporting the original information, so none of the corrected information was processed by Experian.

The district court entered summary judgment on the negligence claim because “Jett ha[d] failed to adduce any evidence concerning [American Home’s] policies and procedures in responding to [the ACDV] requests” and her “evidence that [American Home] knew about [Experian’s] poli*713cies and procedures [was] insufficient to show that [American Home] had a duty to conform to them.” The court entered summary judgment on the willfulness claim because Jett did not respond to that portion of the motion for summary judgment.

II.

If a CRA notifies a furnisher of credit information (a “furnisher”) that a consumer disputes the reported information, the furnisher must “review all relevant information provided by the [CRA],” “conduct an investigation,” “report the results of the investigation,” and “modify ... delete ... or ... permanently block the reporting of [inaccurate or incomplete] information.” § 1681s-2(b)(l)(A) — (E). The Fair Credit Reporting Act creates a private cause of action to enforce § 1681s — 2(b): “Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable” for actual damages and attorney’s fees.2 Moreover, “[a]ny person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer” for actual, statutory, and punitive damages and attorney’s fees. § 1681n(a).

Relying on Chiang v. Verizon New England Inc., 595 F.3d 26, 88-41 (1st Cir. 2010), American Home urges that summary judgment was proper because Jett failed to show that its policies and procedures were unreasonable. In Chiang, summary judgment was affirmed because, inter alia, the plaintiff “ha[d] presented no evidence that the procedures employed by [the furnisher] to investigate the reported disputes were unreasonable.” Id. at 38.3 But unlike the furnisher in Chiang, American Home knew that Jett’s information was being reported inaccurately and attempted to correct it. Regardless of the policies and procedures used to investigate the dispute, the plain language of § 1681s-2(b)(1)(C) and § 1681o makes clear that a furnisher is liable if it negligently reports the results of its investigation to the CRA.4

There is a genuine issue of material fact as to whether American Home negligently failed to comply with the reporting requirements. The first ACDV form told it to “[p]rovide complete ID and verify account information” and stated that Jett claimed the mortgage was current and should not be shown as foreclosed. The second form showed that the mortgage was still being reported inaccurately and instructed American Home to “[p]rovide complete ID and verify account information.” The third form directed American Home to “[v]erify all amounts” and contained the annotation “Remove” in the CII field in the “Consumer Claims” column. In each instance, American Home tried to correct the information but returned a blank CII field so Experian did not pro*714cess the updates.5' Because there is a genuine dispute of material fact as to American Home’s negligence, summary judgment is not appropriate.6

III.

For American Home willfully to have violated § 1681s-2(b), it must have recklessly disregarded a statutory duty. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57-60, 127 . S.Ct. 2201, 167 L.Ed.2d 1045 (2007). Recklessness is “generally understood [ ] in the sphere of civil liability as conduct violating an objective standard: action entailing ‘an unjustifiably high risk of harm that is either known or so obvious that it should be known.’ ” Id. at 68, 127 S.Ct. 2201 (quoting Farmer v. Brennan, 511 U.S. 825, 886, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Jett does not point to any evidence of willfulness; rather, 'she claims that American Home’s motion for summary judgment “did not make any mention of an absence of evidence regarding the issue of willfulness.” But American Home stated that “there are no genuine issues of material fact, and the summary judgment evidence establishes that [American Home] ... did not willfully or negligently violate any provision of 15 U.S.C [§ ] 1681s-2(b)” (emphasis added). Further, Jett’s factual allegations would not support a finding that American Home acted willfully.

The judgment is VACATED as to the negligence claim, AFFIRMED as to the willfulness claim, and REMANDED for further proceedings as needed.

OPINION OF THE COURT

AMBRO, Circuit Judge.

The Federal Trade Commission Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a). In 2005 the Federal Trade Commission began bringing administrative actions under this provision against companies with allegedly deficient cybersecurity that failed to protect consumer data against hackers. The vast majority of these cases have ended in settlement.

On three occasions in 2008 and 2009 hackers successfully accessed Wyndham Worldwide Corporation’s computer systems. In total, they stole personal and financial information for hundreds of thousands of consumers leading to over $10.6 million dollars in fraudulent charges. The FTC filed suit in federal District Court, alleging that Wyndham’s conduct was an unfair practice and that its privacy policy was deceptive. The District Court denied Wyndham’s motion to dismiss, and we granted interlocutory appeal on two issues: whether the FTC has authority to regulate cybersecurity under the unfairness prong of § 45(a); and, if so, whether Wyndham had fair notice its specific cybersecurity practices could fall short of that provision.1 We affirm the District Court.

1. Background

A. Wyndham’s Cybersecurity

Wyndham Worldwide is a hospitality company that franchises and manages hotels and sells timeshares through three subsidiaries.2 Wyndham licensed its brand name to approximately 90 independently owned hotels. Each Wyndhambranded hotel has a property management system that processes consumer information that includes names, home addresses, email addresses, telephone numbers, payment card account numbers, expiration dates, and security codes. Wyndham “manage[s]” these systems and requires the hotels to “purchase and configure” them to its own specifications. Compl. at ¶ 15, 17. It also operates a computer network in Phoenix, Arizona, that connects its data center with the property management systems of each of the Wyndham-branded hotels.

The FTC alleges that, at least since April 2008, Wyndham engaged in unfair cybersecurity practices that, “taken together, unreasonably and unnecessarily exposed consumers’ personal data to unauthorized access and theft.” Id. at ¶ 24. This claim is fleshed out as follows.

1. The company allowed Wyndhambranded hotels to store payment card information in clear readable text.

2. Wyndham allowed the use of easily guessed passwords to access the property management systems. For example, to gain “remote access to at least one hotel’s system,” which was developed by Micros Systems, Inc., the user ID and password were both “micros.” Id. at ¶ 24(f).

*2413. Wyndham failed to use “readily available security measures” — such as firewalls — to “limit access between [the] hotels’ property management systems, ... corporate network, and the Internet.” Id. at ¶ 24(a).

4. Wyndham allowed hotel property management systems to connect to its network without taking appropriate cybersecurity precautions. It did not ensure that the hotels implemented “adequate information security policies and procedures.” Id. at ¶ 24(c). Also, it knowingly allowed at least one hotel to connect to the Wyndham network with an out-of-date operating system that had not received a security update in over three years. It allowed hotel servers to connect to Wyndham’s network even though “default user IDs and passwords were enabled ..., which were easily available to hackers through simple Internet searches.” Id. And, because it failed to maintain an “adequate[] inventory [of] computers connected to [Wyndham’s] network [to] manage the devices,” it was unable to identify the source of at least one of the cybersecurity attacks. Id. at ¶ 24(g).

5. Wyndham failed to “adequately restrict” the access of third-party vendors to its network and the servers of Wyndhambranded hotels. Id. at ¶ 24(j). For example, it did not “restrict[] connections to specified IP addresses or grant[] temporary, limited access, as necessary.” Id.

6. It failed to employ “reasonable measures to detect and prevent unauthorized access” to its computer network or to “conduct security investigations.” Id. at 1124(h).

7. It did not follow “proper incident response procedures.” Id. at ¶ 24(i). The hackers used similar methods in each attack, and yet Wyndham failed to monitor its network for malware used in the previous intrusions.

Although not before us on appeal, the complaint also raises a deception claim, alleging that since 2008 Wyndham has published a privacy policy on its website that overstates the company’s cybersecurity.

We safeguard our Customers’ personally identifiable information by using industry standard practices. Although “guaranteed security” does not exist either on or off the Internet, we make commercially reasonable efforts to make our collection of such [i]nformation consistent with all applicable laws and regulations. Currently, our Web sites utilize a variety of different security measures designed to protect personally identifiable information from unauthorized access by users both inside and outside of our company, including the use of 128-bit encryption based on a Class 3 Digital Certificate issued by Verisign Inc. This allows for utilization of Secure Sockets Layer, which is a method for encrypting data. This protects confidential information — such as credit card numbers, online forms, and financial data — from loss, misuse, interception and hacking. We take commercially reasonable efforts to create and maintain “fire walls” and other appropriate safeguards....

Id. at If 21. The FTC alleges that, contrary to this policy, Wyndham did not use encryption, firewalls, and other commercially reasonable methods for protecting consumer data.

B. The Three Cybersecurity Attacks

As noted, on three occasions in 2008 and 2009 hackers accessed Wyndham’s network and the property management systems of Wyndham-branded hotels. In April 2008, hackers first broke into the local network of a hotel in Phoenix, Arizona, which was connected to Wyndham’s network and the Internet. They then *242used the brute-force method — repeatedly guessing users’ login IDs and passwords— to access an administrator account on Wyndham’s network. This enabled them to obtain consumer data on computers throughout the network. In total, the hackers obtained unencrypted information for over 500,000 accounts, which they sent to a domain in Russia.

In March 2009, hackers attacked again, this time by accessing Wyndham’s network through an administrative account. The FTC claims that Wyndham was unaware of the attack for two months until consumers filed complaints about fraudulent charges. Wyndham then discovered “memory-scraping malware” used in the previous attack on more than thirty hotels’ computer systems. Id. at ¶ 34. The FTC asserts that, due to Wyndham’s “failure to monitor [the network] for the malware used in the previous attack, hackers had unauthorized access to [its] network for approximately two months.” Id. In this second attack, the hackers obtained unencrypted payment card information for approximately 50,000 consumers from the property management systems of 39 hotels.

Hackers in late 2009 breached Wyndham’s cybersecurity a third time by accessing an administrator account on one of its networks. Because Wyndham “had still not adequately limited access between ... the Wyndham-branded hotels’ property management systems, [Wyndham’s network], and the Internet,” the hackers had access to the property management servers of multiple hotels. Id. at ¶ 37. Wyndham only learned of the intrusion in January 2010 when a credit card company received complaints from cardholders. In this third attack, hackers obtained payment card information for approximately 69,000 customers from the property management systems of 28 hotels.

The FTC alleges that, in total, the hackers obtained payment card information from over 619,000 consumers, which (as noted) resulted in at least $10.6 million in fraud loss. It further states that consumers suffered financial injury through “unreimbursed fraudulent charges, increased costs, and lost access to funds or credit,” Id. at ¶ 40, and that they “expended time and money resolving fraudulent charges and mitigating subsequent harm.” Id.

C. Procedural History

The FTC filed suit in the U.S. District Court for the District of Arizona in June 2012 claiming that Wyndham engaged in “unfair” and “deceptive” practices in violation of § 45(a). At Wyndham’s request, the Court transferred the case to the U.S. District Court for the District of New Jersey. Wyndham then filed a Rule 12(b)(6) motion to dismiss both the unfair practice and deceptive practice claims. The District Court denied the motion but certified its decision on the unfairness claim for interlocutory appeal. We granted Wyndham’s application for appeal.

II. Jurisdiction and Standards of Review

The District Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1337(a), and 1345. We have jurisdiction under 28 U.S.C. § 1292(b).

We have plenary review of a district court’s ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6). Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.2006). In this review, “we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Hold*243ings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002).

III. FTC’s Regulatory Authority Under § 45(a)

A. Legal Background

The Federal Trade Commission Act of 1914 prohibited “unfair methods of competition in commerce.” Pub.L. No. 63-203, § 5, 38 Stat. 717, 719 (codified as amended at 15 U.S.C. § 45(a)). Congress “explicitly considered, and rejected, the notion that it reduce the ambiguity of the phrase ‘unfair methods of competition’ ... by enumerating the particular practices to which it was intended to apply.” FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 239-40, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972) (citing S.Rep. No. 63-597, at 13 (1914)); see also S.Rep. No. 63-597, at 13 (“The committee gave careful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce .... It concluded that ... there were too many unfair practices to define, and after writing 20 of them into the law it would be quite possible to invent others.” (emphasis added)). The takeaway is that Congress designed the term as a “flexible concept with evolving content,” FTC v. Bunte Bros., 312 U.S. 349, 353, 61 S.Ct. 580, 85 L.Ed. 881 (1941), and “intentionally left [its] development ... to the Commission,” Atl. Ref. Co. v. FTC, 381 U.S. 357, 367, 85 S.Ct. 1498, 14 L.Ed.2d 443 (1965).

After several early cases limited “unfair methods of competition” to practices harming competitors and not consumers, see, e.g., FTC v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931), Congress inserted an additional prohibition in § 45(a) against “unfair or deceptive acts or practices in or affecting commerce,” Wheeler-Lea Act, Pub.L. No. 75-447, § 5, 52 Stat. 111, 111 (1938).

For the next few decades, the FTC interpreted the unfair-practices prong primarily through agency adjudication. But in 1964 it issued a “Statement of Basis and Purpose” for unfair or deceptive advertising and labeling of cigarettes, 29 Fed.Reg. 8324, 8355 (July 2, 1964), which explained that the following three factors governed unfairness determinations:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

Id. Almost a decade later, the Supreme Court implicitly approved these factors, apparently acknowledging their applicability to contexts other than cigarette advertising and labeling. Sperry, 405 U.S. at 244 n. 5, 92 S.Ct. 898. The Court also held that, under the policy statement, the FTC could deem a practice unfair based on the third prong — substantial consumer injury — without finding that at least one of the other two prongs was also satisfied. Id.

During the 1970s, the FTC embarked on a controversial campaign to regulate children’s advertising through the unfair-practices prong of § 45(a). At the request of Congress, the FTC issued a second policy statement in 1980 that clarified the three factors. FTC Unfairness Policy Statement, Letter from the FTC to Hon. Wendell Ford and Hon. John Danforth, Senate Comm, on Commerce, Sci., and Transp. (Dec. 17, 1980), appended to Int’l Harvester Co., 104 F.T.C. 949, 1070 (1984) [herein*244after 1980 Policy Statement]. It explained that public policy considerations are relevant in determining whether a particular practice causes substantial consumer injury. Id. at 1074-76. Next, it “abandoned” the “theory of immoral or unscrupulous conduct ... altogether” as an “independent” basis for an unfairness claim. Inti Harvester Co., 104 F.T.C. at 1061 n. 43; 1980 Policy Statement, supra at 1076 (“The Commission has ... never relied on [this factor] as an independent basis for a finding of unfairness, and it will act in the future only on the basis of the [other] two.”). And finally, the Commission explained that “[u]njustified consumer injury is the primary focus of the FTC Act” and that such an injury “[b]y itself ... can be sufficient to warrant a finding of unfairness.” 1980 Policy Statement, supra at 1073. This “does not mean that every consumer injury is legally ‘unfair.’ ” Id. Indeed,

[t]o justify a finding of unfairness the injury must satisfy three tests. [1] It must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided.

Id.

In 1994, Congress codified the 1980 Policy Statement at 15 U.S.C. § 45(n):

The Commission shall have no authority under this section ... to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination.

FTC Act Amendments of 1994, Pub.L. No. 103-312, § 9, 108 Stat. 1691, 1695. Like the 1980 Policy Statement, § 45(n) requires substantial injury that is not reasonably avoidable by consumers and that is not outweighed by the benefits to consumers or competition. It also acknowledges the potential significance of public policy and does not expressly require that an unfair practice be immoral, unethical, unscrupulous, or oppressive.

B. Plain Meaning of Unfairness

Wyndham argues (for the first time on appeal) that the three requirements of 15 U.S.C. § 45(n) are necessary but insufficient conditions of an unfair practice and that the plain meaning of the word “unfair” imposes independent requirements that are not met here. Arguably, § 45(n) may not identify all of the requirements for an unfairness claim. (While the provision forbids the FTC from declaring an act unfair “unless” the act satisfies the three specified requirements, it does not answer whether these are the only requirements for a finding of unfairness.) Even if so, some of Wyndham’s proposed requirements are unpersuasive, and the rest are satisfied by the allegations in the FTC’s complaint.

First, citing FTC v. R.F. Keppel & Brother, Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934), Wyndham argues that conduct is only unfair when it injures consumers “through unscrupulous or unethical behavior.” Wyndham Br. at 20-21. But Keppel nowhere says that unfair conduct must be unscrupulous or unethical. Moreover, in Sperry the Supreme Court rejected the view that the FTC’s 1964 policy *245statement required unfair conduct to be “unscrupulous” or “unethical.” 405 U.S. at 244 n. 5, 92 S.Ct. 898.3 Wyndham points to no subsequent FTC policy statements, adjudications, judicial opinions, or statutes that would suggest any change since Sperry.

Next, citing one dictionary, Wyndham argues that a practice is only “unfair” if it is “not equitable” or is “marked by injustice, partiality, or deception.” Wyndham Br. at 18-19 (citing Webster’s Ninth New Collegiate Dictionary (1988)). Whether these are requirements of an unfairness claim makes little difference here. A company does not act equitably when it publishes a privacy policy to attract customers who are concerned about data privacy, fails to make good on that promise by investing inadequate resources in cybersecurity, exposes its unsuspecting customers to substantial financial injury, and retains the profits of their business.

We recognize this analysis of unfairness encompasses some facts relevant to the FTC’s deceptive practices claim. But facts relevant to unfairness and deception claims frequently overlap. See, e.g., Am. Fin. Sens. Ass’n v. FTC, 767 F.2d 957, 980 n. 27 (D.C.Cir.1985) (“The FTC has determined that ... making unsubstantiated advertising claims may be both an unfair and a deceptive practice.”); Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1367 (11th Cir.1988) (“[A] practice may be both deceptive and unfair.... ”).4 We cannot completely disentangle the two theories here. The FTC argued in the District Court that consumers could not reasonably avoid injury by booking with another hotel chain because Wyndham had *246published a misleading privacy policy that overstated its cybersecurity. Plaintiffs Response in Opposition to the Motion to Dismiss by Defendant at 5, FTC v. Wyndham Worldwide Corp., 10 F.Supp.3d 602 (D.N.J.2014) (“Consumers could not take steps to avoid Wyndham’s unreasonable data security [before providing their personal information] because Wyndham falsely told consumers that it followed ‘industry standard practices.’ ”); see JA 203 (“On the reasonably] avoidable part, ... consumers certainly would not have known that Wyndham had unreasonable data security practices in this case.... We also allege that in [Wyndham’s] privacy policy they deceive consumers by saying we do have reasonable security data practices. That is one way consumers couldn’t possibly have avoided providing a credit card to a company.”). Wyndham did not challenge this argument in the District Court nor does it do so now. If Wyndham’s conduct satisfies the reasonably avoidable requirement at least partially because of its privacy policy — an inference we find plausible at this stage of the litigation — then the policy is directly relevant to whether Wyndham’s conduct was unfair.5

Continuing on, Wyndham asserts that a business “does not treat its customers in an ‘unfair’ manner when the business itself is victimized by criminals.” Wyndham Br. at 21 (emphasis in original). It offers no reasoning or authority for this principle, and we can think of none ourselves. Although unfairness claims “usually involve actual and completed harms,” Int’l Harvester, 104 F.T.C. at 1061, “they may also be brought on the basis of likely rather than actual injury,” id. at 1061 n. 45. And the FTC Act expressly contemplates the possibility that conduct can be unfair before actual injury occurs. 15 U.S.C. § 45(n) (“[An unfair act or practice] causes or is likely to cause substantial injury” (emphasis added)). More importantly, that a company’s conduct was not the most proximate cause of an injury generally does not immunize liability from foreseeable harms. See Restatement (Second) of Torts § 449 (1965) (“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act[,] whether innocent, negligent, intentionally tortious, or criminal[,] does not prevent the actor from being liable for harm caused thereby.”); West-farm Assocs. v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669, 688 (4th Cir.1995) (“Proximate cause may be found even where the conduct of the third party is ... criminal, so long as the conduct was facilitated by the first party and reasonably foreseeable, and some ultimate harm was reasonably foreseeable.”). For good reason, Wyndham does not argue that the cybersecurity intrusions were unforeseeable. That would be particularly implausible as to the second and third attacks.

Finally, Wyndham posits a reductio ad absurdum, arguing that if the FTC’s unfairness authority extends to Wyndham’s conduct, then the FTC also has the authority to “regulate the locks on hotel room doors, ... to require every store in the land to post an armed guard at the door,” Wyndham Br. at 23, and to sue supermarkets that are “sloppy about sweeping up banana peels,” Wyndham Reply Br. at 6. *247The argument is alarmist to say the least. And it invites the tart retort that, were Wyndham a supermarket, leaving so many banana peels all over the place that 619,-000 customers fall hardly suggests it should be immune from liability under § 45(a).

We are therefore not persuaded by Wyndham’s arguments that the alleged conduct falls outside the plain meaning of “unfair.”

C. Subsequent Congressional Action

Wyndham next argues that, even if cybersecurity were covered by § 45(a) as initially enacted, three legislative acts since the subsection was amended in 1938 have reshaped the provision’s meaning to exclude cybersecurity. A recent amendment to the Fair Credit Reporting Act directed the FTC and other agencies to develop regulations for the proper disposal of consumer data. See Pub.L. No. 108-159, § 216(a), 117 Stat. 1952, 1985-86 (2003) (codified as amended at 15 U.S.C. § 1681w). The Gramm-Leach-Bliley Act required the FTC to establish standards for financial institutions to protect consumers’ personal information. See Pub.L. No. 106-102, § 501(b), 113 Stat. 1338, 1436-37 (1999) (codified as amended at 15 U.S.C. § 6801(b)). And the Children’s Online Privacy Protection Act ordered the FTC to promulgate regulations requiring children’s websites, among other things, to provide notice of “what information is collected from children ..., how the operator uses such information, and the operator’s disclosure practices for such information.” Pub.L. No. 105-277, § 1303, 112 Stat. 2681, 2681-730-732 (1998) (codified as amended at 15 U.S.C. § 6502).6 Wyndham contends these “tailored grants of substantive authority to the FTC in the cybersecurity field would be inexplicable if the Commission already had general substantive authority over this field.” Wyndham Br. at 25. Citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), Wyndham concludes that Congress excluded cybersecurity from the FTC’s unfairness authority by enacting these measures.

We are not persuaded. The inference to congressional intent based on post-enactment legislative activity in Brown & Williamson was far stronger. There, the Food and Drug Administration had repeatedly disclaimed regulatory authority over tobacco products for decades. Id. at 144, 120 S.Ct. 1291. During that period, Congress enacted six statutes regulating tobacco. Id. at 143-44, 120 S.Ct. 1291. The FDA later shifted its position, claiming authority over tobacco products. The Supreme Court held that Congress excluded tobacco-related products from the FDA’s authority in enacting the statutes. As tobacco products would necessarily be banned if subject to the FDA’s regulatory authority, any interpretation to the contrary would contradict congressional intent to regulate rather than ban tobacco products outright. Id. 137-39, 120 S.Ct. 1291; Massachusetts v. EPA 549 U.S. 497, 530-31, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Wyndham does not argue that recent privacy laws contradict reading corporate cybersecurity into § 45(a). Instead, it merely asserts that Congress had no reason to enact them if the FTC could already regu*248late cybersecurity through that provision. Wyndham Br. at 25-26.

We disagree that Congress lacked reason to pass the recent legislation if the FTC already had regulatory authority over some cybersecurity issues. The Fair Credit Reporting Act requires (rather than authorizes) the FTC to issue regulations, 15 U.S.C. § 1681w (“The Federal Trade Commission ... shall issue final regulations requiring....” (emphasis added)); id. § 1681m(e)(l)(B) (“The [FTC and other agencies] shall jointly ... prescribe regulations requiring each financial institution. ...” (emphasis added)), and expands the scope of the FTC’s authority, id. § 1681s(a)(l) (“[A] violation of any requirement or prohibition imposed under this subchapter shall constitute an unfair or deceptive act or practice in commerce ... and shall be subject to enforcement by the [FTC] ... irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests under the [FTC] Act.”). The Gramm-Leach-Bliley Act similarly requires the FTC to promulgate regulations, id. § 6801(b) (“[The FTC] shall establish appropriate standards for the financial institutions subject to [its] jurisdiction.... ”), and relieves some of the burdensome § 45(n) requirements for declaring acts unfair, id. § 6801(b) (“[The FTC] shall establish appropriate standards ... to protect against unauthorized access to or use of ... records ... which could result in substantial harm or inconvenience to any customer.” (emphasis added)). And the Children’s Online Privacy Protection Act required the FTC to issue regulations and empowered it to do so under the procedures of the Administrative Procedure Act, id. •§ 6502(b) (citing 5 U.S.C. § 553), rather than the more burdensome Magnuson-Moss procedures under which the FTC must usually issue regulations, 15 U.S.C; § 57a. Thus none of the recent privacy legislation was “inexplicable” if the FTC already had some authority to regulate corporate cybersecurity through § 45(a).

Next, Wyndham claims that the FTC’s interpretation of § 45(a) is “inconsistent with its repeated efforts to obtain from Congress the very authority it purports to wield here.” Wyndham Br. at 28. Yet again we disagree. In two of the statements cited by Wyndham, the FTC clearly said that some cybersecurity practices are “unfair” under the statute. See Consumer Data Protection: Hearing Before the Sub-comm. on Commerce, Mfg. & Trade of the H. Comm, on Energy & Commerce, 2011 WL 2358081, at *6 (June 15, 2011) (statement of Edith Ramirez, Comm’r, FTC) (“[T]he Commission enforces the FTC Act’s proscription against unfair ... acts ... in cases where a businesses] ... failure to employ reasonable security measures causes or is likely to cause substantial consumer injury.”); Data Theft Issues: Hearing Before the Subcomm. on Commerce, Mfg. & Trade of the H. Comm, on Energy & Commerce, 2011 WL 1971214, at *7 (May 4, 2011) (statement of David C. Vladeck, Director, FTC Bureau of Consumer Protection) (same).

In the two other cited statements, given in 1998 and 2000, the FTC only acknowledged that it cannot require companies to adopt “fair information practice policies.” See FTC, Privacy Online: Fair Information Practices in the Electronic Marketplace — A Report to Congress 34 (2000) [hereinafter Privacy Online]; Privacy in Cyberspace: Hearing Before the Subcomm. on Telecomms., Trade & Consumer Prot. of the H. Comm, on Commerce, 1998 WL 546441 (July 21, 1998) (statement of Robert Pitofsky, Chairman, FTC). These policies would protect consumers from far more than the kind of “substantial injury” typically covered by § 45(a). In addition *249to imposing some cybersecurity requirements, they would require companies to give notice about what data they collect from consumers, to permit those consumers to decide how the data is used, and to permit them to review and correct inaccuracies. Privacy Online, supra at 36-37. As the FTC explained in the District Court, the primary concern driving the adoption of these policies in the late 1990s was that “companies ... were capable of collecting enormous amounts of information about consumers, and people were suddenly realizing this.” JA 106 (emphasis added). The FTC thus could not require companies to adopt broad fair information practice policies because they were “just collecting th[e] information, and consumers [were not] injured.” Id.; see also Order Denying Respondent LabMD’s Motion to Dismiss, No. 9357, slip op. at 7 (Jan. 16, 2014) [hereinafter LabMD Order or LabMD ] (“[T]he sentences from the 1998 and 2000 reports ... simply recognize that the Commission’s existing authority may not be sufficient to effectively protect consumers with regard to all data privacy issues of potential concern (such as aspects of children’s online privacy).... ” (emphasis in original)). Our conclusion is this: that the FTC later brought unfairness actions against companies whose inadequate cybersecurity resulted in consumer harm is not inconsistent with the agency’s earlier position.

Having rejected Wyndham’s arguments that its conduct cannot be unfair, we assume for the remainder of this opinion that it was.

IV. Fair Notice

A conviction or punishment violates the Due Process Clause of our Constitution if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” FCC v. Fox Television Stations, Inc., — U.S. -, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012) (internal quotation marks omitted). Wyndham claims that, notwithstanding whether its conduct was unfair under § 45(a), the FTC failed to give fair notice of the specific cybersecurity standards the company was required to follow.7

A. Legal Standard

The level of required notice for a person to be subject to liability varies by circumstance. In Bouie v. City of Columbia, the Supreme Court held that a “judicial construction of a criminal statute” violates due process if it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (internal quotation marks omitted); see also Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001); In re Surrick, 338 F.3d 224, 233-34 (3d Cir.2003). The precise meaning of “unexpected and indefensible” is not entirely clear, United States v. Lata, 415 F.3d 107, 111 (1st Cir.2005), but we and our sister circuits frequently use language implying that a conviction violates due process if the defendant could not reasonably foresee that a court might adopt the new interpretation of the stat*250ute.8

The fair notice doctrine extends to civil cases, particularly where a penalty is imposed. See Fox Television Stations, Inc., 132 S.Ct. at 2317-20; Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967). “Lesser degrees of specificity” are allowed in civil cases because the consequences are smaller than in the criminal context. San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir.1992). The standards are especially lax for civil statutes that regulate economic activities. For those statutes, a party lacks fair notice when the relevant standard is “so vague as to be no rule or standard at all.” CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 631-32 (3d Cir.2013) (internal quotation marks omitted).9

A different set of considerations is implicated when agencies are involved in statutory or regulatory interpretation. Broadly speaking, agencies interpret in at least three contexts. One is where an agency administers a statute without any special authority to create new rights or obligations. When disputes arise under this kind of agency interpretation, the courts give respect to the agency’s view to the extent it is persuasive, but they retain the primary responsibility for construing the statute.10 As such, the standard of notice afforded to litigants about the meaning of the statute is not dissimilar to the standard of notice for civil statutes generally *251because the court, not the agency, is the ultimate arbiter of the statute’s meaning.

The second context is where an agency exercises its authority to fill gaps in a statutory scheme. There the agency is primarily responsible for interpreting the statute because the courts must defer to any reasonable construction it adopts. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Courts appear to apply a more stringent standard of notice to civil regulations than civil statutes: parties are entitled to have “ascertainable certainty” of what conduct is legally required by the regulation. See Chem. Waste Mgmt., Inc. v. EPA, 976 F.2d 2, 29 (D.C.Cir.1992) (per curiam) (denying petitioners’ challenge that a recently promulgated EPA regulation fails fair notice principles); Nat'l Oilseed Processors Ass’n v. OSHA, 769 F.3d 1173, 1183-84 (D.C.Cir.2014) (denying petitioners’ challenge that a recently promulgated OSHA regulation fails fair notice principles).

The third context is where an agency interprets the meaning of its own regulation. Here also courts typically must defer to the agency’s reasonable interpretation.11 We and several of our sister circuits have stated that private parties are entitled to know with “ascertainable certainty” an agency’s interpretation of its regulation. Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193, 202 (3d Cir.2008); Dravo Corp. v. Occupational Safety & Health Rev. Comm’n, 613 F.2d 1227, 1232-33 (3d Cir.1980).12 Indeed, “the due process clause prevents ... deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.” AJP Const., Inc., 357 F.3d at 75 (internal quotation marks omitted).

A higher standard of fair notice applies in the second and third contexts than in the typical civil statutory interpretation case because agencies en*252gage in interpretation differently than courts. See Frank H. Easterbook, Judicial Discretion in Statutory Interpretation, 57 Okla. L.Rev. 1, 3 (2004) (“A judge who announces deference is approving a shift in interpretive method, not just a shift in the identity of the decider, as if a suit were being transferred to a court in a different venue.”). In resolving ambiguity in statutes or regulations, courts generally adopt the best or most reasonable interpretation. But, as the agency is often free to adopt any reasonable construction, it may impose higher legal obligations than required by the best interpretation.13

Furthermore, courts generally resolve statutory ambiguity by applying traditional methods of construction. Private parties can reliably predict the court’s interpretation by applying the same methods. In contrast, an agency may also rely on technical expertise and political values.14 -It is harder to predict how an agency will construe a statute or regulation at some unspecified point in the future, particularly when that interpretation will depend on the “political views of the President in office at [that] time.” Strauss, supra at 1147.15

Wyndham argues it was entitled to “ascertainable certainty” of the FTC’s interpretation of what specific cybersecurity practices are required by § 45(a). Yet it has contended repeatedly — no less than seven separate occasions in this case — that there is no FTC rule or adjudication about cybersecurity that merits deference here. The necessary implication, one that Wyndham itself has explicitly drawn on two occasions noted below, is that federal courts are to interpret § 45(a) in the first *253instance to decide whether Wyndham’s conduct was unfair.

Wyndham’s argument has focused on the FTC’s motion to dismiss order in LabMD, an administrative case in which the agency is pursuing an unfairness claim based on allegedly inadequate cybersecurity. LabMD Order, supra. Wyndham first argued in the District Court that the LabMD Order does not merit Chevron deference because “selfiserving, litigation-driven decisions ... are entitled to no deference at all” and because the opinion adopted an impermissible construction of the statute. Wyndham’s January 29, 2014 Letter at 1-2, FTC v. Wyndham Worldunde Corp., 10 F.Supp.3d 602 (D.N.J.2014).

Second, Wyndham switched gears in its opening brief on appeal to us, arguing that LabMD does not merit Chevron deference because courts owe no deference to an agency’s interpretation of the “boundaries of Congress’ statutory delegation of authority to the agency.” Wyndham Br. at 19-20.

Third, in its reply brief it argued again that LabMD does not merit Chevron deference because it adopted an impermissible construction of the statute. Wyndham Reply Br. at 14.

Fourth, Wyndham switched gears once more in a Rule 28(j) letter, arguing that LabMD does not merit Chevron deference because the decision was nonfinal. Wyndham’s February 6, 2015 Letter (citing LabMD, Inc. v. FTC, 776 F.3d 1275 (11th Cir.2015)).

Fifth, at oral argument we asked Wyndham whether the FTC has decided that cybersecurity practices are unfair. Counsel answered: “No. I don’t think consent decrees count, I don’t think the 2007 brochure counts, and I don’t think Chevron deference applies. So are ... they asking this federal court in the first instance ... [?] I think the answer to that question is yes.... ” Oral Arg. Tr. at 19.

Sixth, due to our continuing confusion about the parties’ positions on a number of issues in the case, we asked for supplemental briefing on certain questions, including whether the FTC had declared that cybersecurity practices can be unfair. In response, Wyndham asserted that “the FTC has not declared unreasonable cybersecurity practices ‘unfair.’ ” Wyndham’s Supp. Memo, at 3. Wyndham explained further: “It follows from [our] answer to [that] question that the FTC is asking the federal combs to determine in the first instance that unreasonable cybersecurity practices qualify as ‘unfair’ trade practices under the FTC Act.” Id. at 4.

Seventh, and most recently, Wyndham submitted a Rule 28(j) letter arguing that LabMD does not merit Chevron deference because it decided a question of “deep economic and political significance.” Wyndham’s June 30, 2015 Letter (quoting King v. Burwell, — U.S. -, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015)).

Wyndham’s position is unmistakable: the FTC has not yet declared that cybersecurity practices can be unfair; there is no relevant FTC rule, adjudication or document that merits deference; and the FTC is asking the federal courts to interpret § 45(a) in the first instance to decide whether it prohibits the alleged conduct here. The implication of this position is similarly clear: if the federal courts are to decide whether Wyndham’s conduct was unfair in the first instance under the statute without deferring to any FTC interpretation, then this case involves ordinary judicial interpretation of a civil statute, and the ascertainable certainty standard does not apply. The relevant question is not whether Wyndham had fair notice of the FTC’s interpretation of the statute, but *254whether Wyndham had fair notice of what the statute itself requires.

Indeed, at oral argument we asked Wyndham whether the cases cited in its brief that apply the “ascertainable certainty” standard — all of which involve a court reviewing an agency adjudication16 or at least a court being asked to defer to an agency interpretation17 — apply where the court is to decide the meaning of the statute in the first instance.18 Wyndham’s counsel responded, “I think it would, your Honor. I think if you go to Ford Motor [Co. v. FTC, 673 F.2d 1008 (9th Cir.1981) ], I think that’s what was happening there.” Oral Arg. Tr. at 61. But Ford Motor is readily distinguishable. Unlike Wyndham, the petitioners there did not bring a fair notice claim under the Due Process Clause. Instead, they argued that, per NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), the FTC abused its discretion by proceeding through agency adjudication rather than rulemaking.19 More importantly, the Ninth Circuit was reviewing an agency adjudication; it was not interpreting the meaning of the FTC Act in the first instance.

In addition, our understanding of Wyndham’s position is consistent with the District Court’s opinion, which concluded that the FTC has stated a claim under § 45(a) based on the Court’s interpretation of the statute and without any reference to LabMD or any other agency adjudication or regulation. See FTC v. Wyndham Worldwide Corp., 10 F.Supp.3d 602, 621-26 (D.N.J.2014).

*255We thus conclude that Wyndham was not entitled to know with ascertainable certainty the FTC’s interpretation of what cybersecurity practices are required by § 45(a). Instead, the relevant question in this appeal is whether Wyndham had fair notice that its conduct could fall within the meaning of the statute. If later proceedings in this case develop such that the proper resolution is to defer to an agency interpretation that gives rise to Wyndham’s liability, we leave to that time a fuller exploration of the level of notice required. For now, however, it is enough to say that we accept Wyndham’s forceful contention that we are interpreting the FTC Act (as the District Court did). As a necessary consequence, Wyndham is only entitled to notice of the meaning of the statute and not to the agency’s interpretation of the statute.

B. Did Wyndham Have Fair Notice of the Meaning of § 45(a)?

Having decided that Wyndham is entitled to notice of the meaning of the statute, we next consider whether the case should be dismissed based on fair notice principles. We do not read Wyndham’s briefs as arguing the company lacked fair notice that cybersecurity practices can, as a general matter, form the basis of an unfair practice under § 45(a). Wyndham argues instead it lacked notice of what specific cybersecurity practices are necessary to avoid liability. We have little trouble rejecting this claim.

To begin with, Wyndham’s briefing focuses on the FTC’s failure to give notice of its interpretation of the statute and does not meaningfully argue that the statute itself fails fair notice principles. We think it imprudent to hold a 100-year-old statute unconstitutional as applied to the facts of this case when we have not expressly been asked to do so.

Moreover Wyndham is entitled to a relatively low level of statutory notice for several reasons. Subsection 45(a) does not implicate any constitutional rights here. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). It is a civil rather than criminal statute.20 Id. at 498-99, 102 S.Ct. 1186. And statutes regulating economic activity receive a “less strict” test because their “subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.” Id. at 498,102 S.Ct. 1186.

In this context, the relevant legal rule is not “so vague as to be ‘no rule or standard at all.’ ” CMR D.N. Corp., 703 F.3d at 632 (quoting Boutilier, 387 U.S. at 123, 87 S.Ct. 1563)'. Subsection 45(n) asks whether “the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” While far from precise, this standard informs parties that the relevant inquiry here is a cost-benefit analysis, Pa. Funeral Dirs. Ass’n v. FTC, 41 F.3d 81, 89-92 (3d Cir.1994); Am. Fin. Servs. Ass’n, 767 F.2d at 975, that considers a number of relevant factors, including the probability and expected size of reasonably unavoidable harms to consumers given a certain level of cybersecurity and the costs to consumers that would arise from investment in stronger cybersecurity. We ac*256knowledge there will be borderline cases where it is unclear if a particular company’s conduct falls below the requisite legal threshold. But under a due process analysis a company is not entitled to such precision as would eliminate all close calls. Cf Nash v. United States, 229 U.S. 378, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913) (“[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.”). Fair notice is satisfied here as long as the company can reasonably foresee that a court could construe its conduct as falling within the meaning of the statute.

What appears to us is that Wyndham’s fair notice claim must be reviewed as an as-applied challenge. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); San Filippo, 961 F.2d at 1136. Yet Wyndham does not argue that its cybersecurity practices survive a reasonable interpretation of the cost-benefit analysis required by § 45(n). One sentence in Wyndham’s reply brief says that its “view of what data-security practices are unreasonable ... is not necessarily the same as the FTC’s.” Wyndham Reply Br. at 23. Too little and too late.

Wyndham’s as-applied challenge falls well short given the allegations in the FTC’s complaint. As the FTC points out in its brief, the complaint does not allege that Wyndham used weak firewalls, IP address restrictions, encryption software, and passwords. Rather, it alleges that Wyndham failed to use any firewall at critical network points, Compl. at ¶ 24(a), did not restrict specific IP addresses at all, id. at ¶ 24(j), did not use any encryption for certain customer files, id. at ¶ 24(b), and did not require some users to change' their default or factory-setting passwords at all, id. at ¶ 24(f). Wyndham did not respond to this argument in its reply brief.

Wyndham’s as-applied challenge is even weaker given it was hacked not one or two, but three, times. At least after the second attack, it should have been painfully clear to Wyndham that a court could find its conduct failed the cost-benefit analysis. That said, we leave for another day whether Wyndham’s alleged cybersecurity practices do in fact fail, an issue the parties did not brief. We merely note that certainly after the second time Wyndham was hacked, it was on notice of the possibility that a court could find that its practices fail the cost-benefit analysis.

Several other considerations reinforce our conclusion that Wyndham’s fair notice challenge fails. In 2007 the FTC issued a guidebook, Protecting Personal Information: A Guide for Business, FTC Response Br. Attachment 1 [hereinafter FTC Guidebook ], which describes a “checklist[ ]” of practices that form a “sound data security plan.” Id. at 3. The guidebook does not state that any particular practice is required by § 45(a),21 but it does counsel against many of the specific practices alleged here. For instance, it recommends that companies “consider encrypting sensitive information that is stored on [a] computer network ... [, cjheck ... software vendors’ websites regularly for alerts about new vulnerabilities, and implement policies for installing vendor-approved patches.” Id. at 10. It recommends using “a firewall to protect [a] computer from hapker attacks while it is connected to the *257Internet,” deciding “whether [to] install a ‘border’ firewall where [a] network connects to the Internet,” and setting access controls that “determine who gets through the firewall and what they will be allowed to see ... to allow, only trusted employees with a legitimate business need to access the network.” Id. at 14. It recommends “requiring that employees use ‘strong’ passwords” and cautions that “[h]ackers will first try words like ... the software’s default password[ ] and other easy-to-guess choices.” Id. at 12. And it recommends implementing a “breach response plan,” id. at 16, which includes “[ijnvestigat[ing] security incidents immediately and tak[ing] steps to close off existing vulnerabilities or threats to personal information,” id. at 23.

As the agency responsible for administering the statute, the FTC’s expert views about the characteristics of a “sound data security plan” could certainly have helped Wyndham determine in advance that its conduct might not survive the cost-benefit analysis.

Before the attacks, the FTC also filed complaints and entered into consent decrees in administrative cases raising unfairness claims based on inadequate corporate cybersecurity. FTC Br. at 47 n.16. The agency published these materials on its website and provided notice of proposed consent orders in the Federal Register. Wyndham responds that the complaints cannot satisfy fair notice principles because they are not “adjudications on the merits.”22 Wyndham Br. at 41. But even where the “ascertainable certainty” standard applies to fair notice claims, courts regularly consider materials that are neither regulations nor “adjudications on the merits.” See, e.g., United States v. Lachman, 387 F.3d 42, 57 (1st Cir.2004) (noting that fair notice principles can be satisfied even where a regulation is vague if the agency “provide[d] a sufficient, publicly accessible statement” of the agency’s interpretation of the regulation); Beverly Healthcare-Hillview, 541 F.3d at 202 (citing Lachman and treating an OSHA opinion letter as a “sufficient, publicly accessible statement”); Gen. Elec. Co., 53 F.3d at 1329. That the FTC commissioners — who must vote on whether to issue a complaint, 16 C.F.R. § 3.11(a); ABA Section of Antitrust Law, FTC Practice and Procedure Manual 160-61 (2007) — believe that alleged cybersecurity practices fail the cost-benefit analysis of § 45(n) certainly helps companies with similar practices apprehend the possibility that their cybersecurity could fail as well.23

*258Wyndham next contends that the individual allegations in the complaints are too vague to be relevant to the fair notice analysis. Wyndham Br. at 41-42. It does not, however, identify any specific examples. And as the Table below reveals, the individual allegations were specific and similar to those here in at least one of the four or five24 cybersecurity-related unfair-practice complaints that issued prior to the first attack.

■ Wyndham also argues that, even if the individual allegations are not vague, the complaints “fail to spell out what specific cybersecurity practices ... actually triggered the alleged violation, ... providing] only a ... description of certain alleged problems that, ‘taken together,’” fail the cost-benefit analysis. Wyndham Br. at 42 (emphasis in original). We part with it on two fronts. First, even if the complaints do not specify which allegations, in the Commission’s view, form the necessary and sufficient conditions of the alleged violation, they can still help companies apprehend the possibility of liability under the statute. Second, as the Table below showá, Wyndham cannot argue that the complaints fail to give notice of the necessary and sufficient conditions of an alleged § 45(a) violation when all of the allegations in at least one of the relevant four or five complaints have close corollaries here. See Complaint, CardSystems Solutions, Inc., No. C-4168, 2006 WL 2709787 (F.T.C.2006) [hereinafter CCS].

Table: Comparing CSS and Wyndham Complaints

CSS

1Created unnecessary risks to personal information by storing it in a vulnerable format for up to 30 days, CSS at ¶ 6(1)._

2Did not adequately assess the vulnerability of its web application and computer network to commonly known or reasonably foreseeable attacks; did not implement simple, low-cost and readily available defenses to such attacks, CSS at ¶ 6(2)-(3)._

3Failed to use strong passwords to prevent a hacker from gaining control over computers on its computer network and access to personal information stored on the network, CSS at ¶ 6(4).

4Did not use readily available security measures to limit access between computers on its network and between those computers and the Internet, CSS at ¶ 6(5).

5Failed to employ sufficient measures to detect unauthorized access to personal infor*259mation or to conduct security investigations, CSS at ¶ 6(6)._

*258Wyndham

Allowed software at hotels to store payment card information in clear readable text, Compl. at ¶ 24(b)._

Failed to monitor network for the malware used in a previous intrusion, Compl. at ¶ 24(i), which was then reused by hackers later to access the system again, id. at ¶ 34.

Did not employ common methods to require user IDs and passwords that are difficult for hackers to guess. E.g., allowed remote access to a hotel’s property management system that used defaulVfactory setting passwords, Compl. at ¶ 24(f)._

Did not use readily available security measures, such as firewalls, to limit access between and among hotels’ property management systems, the Wyndham network, and the Internet, Compl. at ¶ 24(a)._

Failed to employ reasonable measures to detect and prevent unauthorized access to *259computer network or to conduct security investigations, Compl. at ¶ 24(h)._

In sum, we have little trouble rejecting Wyndham’s fair notice claim.

V. Conclusion

The three requirements in § 45(n) may be necessary rather than sufficient conditions of an unfair practice, but we are not persuaded that any other requirements proposed by Wyndham pose a serious challenge to the FTC’s claim here. Furthermore, Wyndham repeatedly argued there is no FTC interpretation of § 45(a) or (n) to which the federal courts must defer in this case, and, as a result, the courts must interpret the meaning of the statute as it applies to Wyndham’s conduct in the first instance. Thus, Wyndham cannot argue it was entitled to know with ascertainable certainty the cybersecurity standards by which the FTC expected it to conform. Instead, the company can only claim that it lacked fair notice of the meaning of the statute itself — a theory it did not meaningfully raise and that we strongly suspect would be unpersuasive under the facts of this case.

We thus affirm the District Court’s decision.

Opinion

MORENO, J.

The Song-Beverly Credit Card Act of 1971 (Credit Card Act) (Civ. Code, § 1747 et seq.) is “designed to promote consumer protection.” (Florez v. Linens ’N Things, Inc. (2003) 108 Cal.App.4th 447, 450 [133 Cal.Rptr.2d 465] (Florez).) One of its provisions, section 1747.08, prohibits businesses from requesting that cardholders provide “personal identification information” during credit card transactions, and then recording that information. (Civ. Code, § 1747.08, subd. (a)(2).)1

Plaintiff sued defendant retailer, asserting a violation of the Credit Card Act. Plaintiff alleges that while she was paying for a purchase with her credit card in one of defendant’s stores, the cashier asked plaintiff for her ZIP Code. Believing it necessary to complete the transaction, plaintiff provided the requested information and the cashier recorded it. Plaintiff further alleges that defendant subsequently used her name and ZIP Code to locate her home address.2

We are now asked to resolve whether section 1747.08 is violated when a business requests and records a customer’s ZIP Code during a credit card transaction. In light of the statute’s plain language, protective purpose, and legislative history, we conclude a ZIP Code constitutes “personal identification information” as that phrase is used in section 1747.08. Thus, requesting and recording a cardholder’s ZIP Code, without more, violates the Credit *528Card Act. We therefore reverse the contrary judgment of the Court of Appeal and remand for further proceedings consistent with our decision.

Facts and Procedural History

Because we are reviewing the sustaining of a demurrer, we assume as true all facts alleged in the complaint. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 996 [89 Cal.Rptr.3d 594, 201 P.3d 472].)

In June 2008, plaintiff Jessica Pineda filed a complaint against defendant Williams-Sonoma Stores, Inc.3 The complaint alleged the following:

Plaintiff visited one of defendant’s California stores and selected an item for purchase. She then went to the cashier to pay for the item with her credit card. The cashier asked plaintiff for her ZIP Code and, believing she was required to provide the requested information to complete the transaction, plaintiff provided it. The cashier entered plaintiff’s ZIP Code into the electronic cash register and then completed the transaction. At the end of the transaction, defendant had plaintiff’s credit card number, name, and ZIP Code recorded in its database.

Defendant subsequently used customized computer software to perform reverse searches from databases that contain millions of names, e-mail addresses, telephone numbers, and street addresses, and that are indexed in a manner resembling a reverse telephone book. The software matched plaintiff’s name and ZIP Code with plaintiff’s previously undisclosed address, giving defendant the information, which it now maintains in its own database. Defendant uses its database to market products to customers and may also sell the information it has compiled to other businesses.

Plaintiff filed the matter as a putative class action, alleging defendant had violated section 1747.08 and the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.). She also asserted an invasion of privacy claim. Defendant demurred, arguing a ZIP Code is not “personal identification information” as that phrase is used in section 1747.08, that plaintiff lacked standing to bring her UCL claim, and that the invasion of privacy claim failed for, among other reasons, failure to allege all necessary elements. Plaintiff *529conceded the demurrer as to the UCL claim, and the trial court subsequently sustained the demurrer as to the remaining causes of action without leave to amend. As for the Credit Card Act claim, the trial court agreed with defendant and concluded a ZIP Code does not constitute “personal identification information” as that term is defined in section 1747.08.

The Court of Appeal affirmed in all respects. With respect to the Credit Card Act claim, the Court of Appeal relied upon Party City Corp. v. Superior Court (2008) 169 Cal.App.4th 497 [86 Cal.Rptr.3d 721] (Party City), which similarly concluded a ZIP Code, without more, does not constitute personal identification information.4

Plaintiff sought our review regarding both her Credit Card Act claim and her invasion of privacy cause of action. We granted review, but only of plaintiff’s Credit Card Act claim.5

Discussion

We independently review questions of statutory construction. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387 [97 Cal.Rptr.3d 464, 212 P.3d 736].) In doing so, we look first to the words of a statute, “because they generally provide the most reliable indicator of legislative intent.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) We give the words their usual and ordinary meaning (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299]), while construing them in light of the statute as a whole and *530the statute’s purpose (Walker v. Superior Court (1998) 47 Cal.3d 112, 124 [253 Cal.Rptr. 1, 763 P.2d 852]). “In other words, ‘ “we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ ” ’ ” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83 [45 Cal.Rptr.3d 394, 137 P.3d 218].) We are also mindful of “the general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313 [58 Cal.Rptr.2d 855, 926 P.2d 1042] (Lungren); see Florez, supra, 108 Cal.App.4th at p. 450 [liberally construing former § 1747.8, now § 1747.08].) “If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.” (People v. Snook (1997) 16 Cal.4th 1210, 1215 [69 Cal.Rptr.2d 615, 947 P.2d 808].) “Only when the statute’s language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 [56 Cal.Rptr.3d 880, 155 P.3d 284].) Our discussion thus begins with the words of section 1747.08.

Section 1747.08, subdivision (a) provides, in pertinent part, “[N]o person, firm, partnership, association, or corporation that accepts credit cards for the transaction of business shall. . . : [f] . . . [f] (2) Request, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which the person, firm, partnership, association, or corporation accepting the credit card writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise.” (§ 1747.08, subd. (a)(2), italics added.)6 Subdivision (b) defines personal identification information as “information concerning the cardholder, other than information set forth on the credit card, and including, but not limited to, the cardholder’s address and telephone number.” (§ 1747.08, subd. (b).) Because we must accept as true plaintiff’s allegation that defendant requested and then recorded her ZIP Code, the outcome of this case hinges on whether a cardholder’s ZIP Code, without more, constitutes personal identification information within the meaning of section 1747.08. We hold that it does.

*531Subdivision (b) defines personal identification information as “information concerning the cardholder . . . including, but not limited to, the cardholder’s address and telephone number.” (§ 1747.08, subd. (b), italics added.) “Concerning” is a broad term meaning “pertaining to; regarding; having relation to; [or] respecting . . . .” (Webster’s New Internat. Dict. (2d ed. 1941) p. 552.) A cardholder’s ZIP Code, which refers to the area where a cardholder works or lives (see DMM, supra, ch. 602, subtopic 1.8.1 <http://pe.usps.com/text/ dmm300/602.htm> [as of Feb. 10, 2011] [each U.S. post office is assigned at least one unique five-digit ZIP Code]), is certainly information that pertains to or regards the cardholder.

In nonetheless concluding the Legislature did not intend for a ZIP Code, without more, to constitute personal identification information, the Court of Appeal pointed to the enumerated examples of such information in subdivision (b), i.e., “the cardholder’s address and telephone number.” (§ 1747.08, subd. (b).) Invoking the doctrine ejusdem generis, whereby a “general term ordinarily is understood as being ' “restricted to those things that are similar to those which are enumerated specifically” ’ ” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 743 [101 Cal.Rptr.3d 758, 219 P.3d 736] (conc. opn. of George, C. J.)), the Court of Appeal reasoned that an address and telephone number are “specific in nature regarding an individual.” By contrast, the court continued, a ZIP Code pertains to the group of individuals who live within the ZIP Code. Thus, the Court of Appeal concluded, a ZIP Code, without more, is unlike the other terms specifically identified in subdivision (b).

There are several problems with this reasoning. First, a ZIP Code is readily understood to be part of an address; when one addresses a letter to another person, a ZIP Code is always included. The question then is whether the Legislature, by providing that “personal identification information” includes “the cardholder’s address” (§ 1747.08, subd. (b)), intended to include components of the address. The answer must be yes. Otherwise, a business could ask not just for a cardholder’s ZIP Code, but also for the cardholder’s street and city in addition to the ZIP Code, so long as it did not also ask for the house number. Such a construction would render the statute’s protections hollow. Thus, the word “address” in the statute should be construed as encompassing not only a complete address, but also its components.

Second, the court’s conclusion rests upon the assumption that a complete address and telephone number, unlike a ZIP Code, are specific to an individual. That this assumption holds true in all, or even most, instances is doubtful. In the case of a cardholder’s home address, for example, the *532information may pertain to a group of individuals living in the same household. Similarly, a home telephone number might well refer to more than one individual. The problem is even more evident in the case of a cardholder’s work address or telephone number—such information could easily pertain to tens, hundreds, or even thousands of individuals.7 Of course, section 1747.08 explicitly provides that a cardholder’s address and telephone number constitute personal identification information (id., subd. (b)); that such information might also pertain to individuals other than the cardholder is immaterial. Similarly, that a cardholder’s ZIP Code pertains to individuals in addition to the cardholder does not render it dissimilar to an address or telephone number.

More significantly, the Court of Appeal ignores another reasonable interpretation of what the enumerated terms in section 1747.08, subdivision (b) have in common, that is, they both constitute information unnecessary to the sales transaction that, alone or together with other data such as a cardholder’s name or credit card number, can be used for the retailer’s business purposes. Under this reading, a cardholder’s ZIP Code is similar to his or her address or telephone number, in that a ZIP Code is both unnecessary to the transaction and can be used, together with the cardholder’s name, to locate his or her full address. (Levitt & Rosch, Putting Internet Search Engines to New Uses (May 2006) 29 L.A. Law. 55, 55; see Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (2001) 53 Stan. L.Rev. 1393, 1406-1408.) The retailer can then, as plaintiff alleges defendant has done here, use the accumulated information for its own purposes or sell the information to other businesses.

There are several reasons to prefer this latter, broader interpretation over the one adopted by the Court of Appeal. First, the interpretation is more consistent with the rule that courts should liberally construe remedial statutes in favor of their protective purpose (Lungren, supra, 14 Cal.4th at p. 313), which, in the case of section 1747.08, includes addressing “the misuse of personal identification information for, inter alia, marketing purposes.” (Absher v. AutoZone, Inc. (2008) 164 Cal.App.4th 332, 345 [78 Cal.Rptr.3d 817] (Absher).)8 The Court of Appeal’s interpretation, by contrast, would *533permit retailers to obtain indirectly what they are clearly prohibited from obtaining directly, “end-running” the statute’s clear purpose. This is so because information that can be permissibly obtained under the Court of Appeal’s construction could easily be used to locate the cardholder’s complete address or telephone number. Such an interpretation would vitiate the statute’s effectiveness. Moreover, that the Legislature intended a broad reading of section 1747.08 can be inferred from the expansive language it employed, e.g., “concerning” in subdivision (b) and “any personal identification information” in subdivision (a)(1). (Italics added.) The use of the broad word “any” suggests the Legislature did not want the category of information protected under the statute to be narrowly construed.

Second, only the broader interpretation is consistent with section 1747.08, subdivision (d). Subdivision (d) permits businesses to “requir[e] the cardholder, as a condition to accepting the credit card . . . , to provide reasonable forms of positive identification, which may include a driver’s license or a California state identification card, . . . provided that none of the information contained thereon is written or recorded . . . .” (§ 1747.08, subd. (d), italics added.) Of course, driver’s licenses and state identification cards contain individuals’ addresses, including ZIP Codes. (Veh. Code, §§ 12811, subd. (a)(1)(A), 13005, subd. (a); People v. McKay (2002) 27 Cal.4th 601, 620 [117 Cal.Rptr.2d 236, 41 P.3d 59].) Thus, under Civil Code section 1747.08, subdivision (d), a business may require a cardholder to provide a driver’s license, but it may not record any of the information on the license, including the cardholder’s ZIP Code. Under the Court of Appeal’s interpretation, the Legislature inexplicably permitted in section 1747.08, subdivision (a)(2), what it explicitly forbade in subdivision (d)—the requesting and recording of a ZIP Code.9 We decline to conclude such an inconsonant result was intended. (Absher, supra, 164 Cal.App.4th at p. 343 [“A statute open to more than one interpretation should be interpreted so as to ‘ “avoid anomalous or absurd results.” ’ [Citations.]”].)10

*534In light of the foregoing, and particularly given the internal inconsistency that would arise under the Court of Appeal’s alternate construction, we conclude that the only reasonable interpretation of section 1747.08 is that personal identification information includes a cardholder’s ZIP Code. We disapprove Party City Corp. v. Superior Court, supra, 169 Cal.App.4th 497, to the extent it is inconsistent with our opinion.

Even were we to conclude that the alternative interpretation urged by defendant and adopted by the Court of Appeal was reasonable, the legislative history of section 1747.08 offers additional evidence that plaintiff’s construction is the correct one.11 The Credit Card Act was enacted in 1971 to “impose[] fair business practices for the protection of the consumers.” (Young v. Bank of America (1983) 141 Cal.App.3d 108, 114 [190 Cal.Rptr. 122].) It made “major changes in the law dealing with credit card practices by prescribing procedures for billing, billing errors, dissemination of false credit information, issuance and unauthorized use of credit cards.” (Sen. Song, sponsor of Sen. Bill No. 97 (1971 Reg. Sess.) enrolled bill mem. to Governor Reagan (Oct. 12, 1971) p. 1.) As originally enacted, however, the Credit Card Act did not contain section 1747.08 or any analogous provision.

In 1990, the Legislature enacted former section 1747.812 (Assem. Bill No. 2920 (1989-1990 Reg. Sess.) § 1), seeking “to address the misuse of personal identification information for, inter alia, marketing purposes, and [finding] that there would be no legitimate need to obtain such information from credit card customers if it was not necessary to the completion of the credit card transaction.” (Absher, supra, 164 Cal.App.4th at p. 345.) The statute’s overriding purpose was to “protect the personal privacy of consumers who pay for transactions with credit cards.” (Assem. Com. on Finance and Ins., Analysis of Assem. Bill No. 2920 (1989-1990 Reg. Sess.) as amended Mar. 19, 1990, p. 2.)

The Senate Committee on Judiciary’s analysis highlighted the motivating concerns: “The Problem [][]... [f] Retailers acquire this additional personal information for their own business purposes—for example, to build mailing and telephone lists which they can subsequently use for their own in-house marketing efforts, or sell to direct-mail or tele-marketing specialists, or to *535others.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2920 (1989-1990 Reg. Sess.) as amended June 27, 1990, pp. 3-4.) To protect consumers, the Legislature sought to prohibit businesses from “requiring information that merchants, banks or credit card companies do not require or need.” (Assem. Com. on Finance and Ins., Analysis of Assem. Bill No. 2920 (1989-1990 Reg. Sess.) as amended Mar. 19, 1990, p. 2.)

A year later, in 1991, the Legislature amended former section 1747.8. (Assem. Bill No. 1477 (1991-1992 Reg. Sess.) § 2.) Two of the changes shed further light on the Legislature’s intent regarding former section 1747.8’s scope. First, the Legislature added a provision (former § 1747.8, subd. (d)) (former subdivision (d)) substantially similar to the subdivision (d) now in section 1747.08, permitting businesses to require cardholders to provide identification so long as none of the information contained thereon was recorded. (Stats. 1991, ch. 1089, § 2, p. 5042.) The adoption of former subdivision (d) was described as “a clarifying, nonsubstantive change.” (State and Consumer Services Agency, Enrolled Bill Rep. on Assem. Bill No. 1477 (1991-1992 Reg. Sess.) Sept. 9, 1991, p. 3.) Defendant argues that, because the adoption of former subdivision (d) was intended to be nonsubstantive, it is irrelevant to our inquiry here. We draw the opposite conclusion. That former subdivision (d) was considered merely clarifying and nonsubstantive suggests the Legislature understood former section 1747.8 to already prohibit the requesting and recording of any of the information, including ZIP Codes, contained on driver’s licenses and state identification cards.

Second, the 1990 version of former section 1747.8 forbade businesses from “requir[ing] the cardholder, as a condition to accepting the credit card, to provide personal identification information . . . .” (Stats. 1990, ch. 999, § 1, p. 4191.) In 1991, the provision was broadened, forbidding businesses from U\r]equest[ing], or requiring] as a condition to accepting the credit card . . . , the cardholder to provide personal identification information . . . .” (Stats. 1991, ch. 1089, § 2, p. 5042, italics added.) “The obvious purpose of the 1991 amendment was to prevent retailers from ‘requesting’ personal identification information and then matching it with the consumer’s credit card number.” (Florez, supra, 108 Cal.App.4th at p. 453.) “[T]he 1991 amendment prevents a retailer from making an end-run around the law by claiming the customer furnished personal identification data ‘voluntarily.’ ” (Ibid.) That the Legislature so expanded the scope of former section 1747.8 is further evidence it intended a broad consumer protection statute.

To be sure, the legislative history does not specifically address the scope of section 1747.08, subdivision (b) or whether the Legislature intended a ZIP Code, without more, to constitute personal identification information. However, the legislative history of the Credit Card Act in general, and section *5361747.08 in particular, demonstrates the Legislature intended to provide robust consumer protections by prohibiting retailers from soliciting and recording information about the cardholder that is unnecessary to the credit card transaction. Plaintiff’s interpretation of section 1747.08 is the one that is most consistent with that legislative purpose.

Thus, in light of the statutory language, as well as the legislative history and evident purpose of the statute, we hold that personal identification information, as that term is used in section 1747.08, includes a cardholder’s ZIP Code.

We briefly address defendant’s contention that this construction violates due process. First, defendant argues such an interpretation is unconstitutionally oppressive because it would result in penalties “approach[ing] confiscation of [defendant’s] entire business . . . .” Not so. As we have previously noted (fn. 8, ante at p. 532), the statute “does not mandate fixed penalties; rather, it sets maximum penalties of $250 for the first violation and $1,000 for each subsequent violation.” (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 448.) “Presumably this could span between a penny (or even the proverbial peppercorn we all encountered in law school) to the maximum amounts authorized by the statute.” (The TJX Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80, 86 [77 Cal.Rptr.3d 114].) Thus, the amount of the penalties awarded rests within the sound discretion of the trial court. (Ibid.)

Second, defendant contends that plaintiff’s interpretation renders the statute unconstitutionally vague and, thus, our adoption of that interpretation should be prospectively applied only. We are not persuaded. In our view, the statute provides constitutionally adequate notice of proscribed conduct, including its reference to a cardholder’s address as an example of personal identification information (§ 1747.08, subd. (b)) as well as its prohibition against retailers recording any of the information contained on identification cards (id., subd. (d)). Moreover, while Party City, supra, 169 Cal.App.4th 497, reached a contrary conclusion, both defendant’s conduct and the filing of plaintiff’s complaint predate that decision; it therefore cannot be convincingly argued that the practice of asking customers for their ZIP Codes was adopted in reliance on Party City. Indeed, it is difficult to see how a single decision by an inferior court could provide a basis to depart from the assumption of retrospective operation. (See People v. Guerra (1984) 37 Cal.3d 385, 401 [208 Cal.Rptr. 162, 690 P.2d 635], disapproved on another ground in People v. Hedgecock (1990) 51 Cal.3d 395, 409-410 [272 Cal.Rptr. 803, 795 P.2d 1260].) In sum, defendant identifies no reason that would justify a departure from the usual rule of retrospective application. (See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 967 [32 Cal.Rptr.3d 5, 116 P.3d 479].)

*537Disposition

The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this decision.

Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, I., Chin, J., and Corrigan, J., concurred.

OPINION AND ORDER

BARBARA B. CRABB, District Judge

Plaintiff Consumer Finance Protection Bureau brought this action against two defunct firms and four lawyers associated with those firms, alleging violations of the Consumer Financial Protection Act of 2010 and 12 C.F.R. part 215, which is commonly called Regulation O. Specifically, plaintiff alleges that while providing mortgage relief services to more than 6,000 consumers in 39 states, defendants The Mortgage Legal Group, LLP and Consumer First Legal Group, LLC made misrepresentations about their services, in violation of Regulation O and the Consumer Financial Protection Act; failed to make certain disclosures required by Regulation O; and collected advance fees in violation of Regulation O. Plaintiff contends that defendants Thomas G. Macey, Jeffrey J. Aleman, Jason E. Searns and Harold E. Stafford are liable because they either participated directly in the illegal acts or had the authority to control the actions of the corporate defendants. Before the court are the cross motions for summary judgment filed by plaintiff and defendants Consumer First Legal Group, LLC, Thomas G. Macey, Jeffrey J. Aleman, Jason E. Searns and Harold E. Stafford. Dkt. ##83 and 96. Defendant The Mortgage Law Group, LLC has not filed an answer to the complaint or taken any other action in its defense. (Plaintiff explains that The Mortgage Law Group filed a voluntary Chapter 7 bankruptcy petition that is pending in the United States Bankruptcy Court for the Northern District of Illinois, but the automatic stay provision of the bankruptcy code, 11 U.S.C. §§ 362(a) and (b)(4), does not stay the bureau’s action because it falls within the police and regulatory power exception to the stay. Dkt. # 118 at 10 n.l (CM/ECF numbering).) Therefore, unless I specify otherwise, I will use the term “defendants” in this opinion to refer only to defendants Consumer First Legal Group, Macey, Ale-man, Searns and Stafford and not The Mortgage Law Group.

In their motion for summary judgment, defendants contend that Regulation 0 is invalid as applied to attorneys because (1) it authorizes plaintiff to determine whether particular attorneys are practicing law and complying with state laws and regulations governing attorney conduct and client trust accounts as part of its determination whether the attorneys have violated Regulation 0, although Congress did not give plaintiff the authority to regulate attorneys; and (2) the regulation is arbitrary and capricious under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A). In the alternative, defendants argue that they qualify for the exemption for attorneys in both Regulation 0 and the Consumer Financial Protection Act. Finally, defendants contend that defendants Macey, Aleman, Searns and Stafford cannot be held liable *816as individuals for the acts of defendants Consumer First Legal Group and The Mortgage Law Group. Plaintiff has moved for summary judgment with respect to (1) all of their statutory and regulatory claims against defendants and (2) defendants’ affirmative defense related to the attorney exemption.

Defendants’ motion for summary judgment with respect to the validity of Regulation 0 will be granted in part. Although I conclude that Regulation 0 as applied to licensed attorneys not engaged in the practice of law in subsections (a)(1) and (2) of 12 C.F.R. § 1015.7 is a valid exercise of plaintiffs rulemaking authority under the Consumer Protection Act, I find that plaintiff exceeded its rulemaking authority in promulgating subsections'(a)(3) and (b) of § 1015.7. Because the parties have not addressed the effect of partial invalidation of the regulation on the attorney exemption or the regulation' as a whole, I will give them an opportunity to do so.

Although it is not possible to rule on most of the remaining issues raised in the parties’ motions for summary judgment until I make a final decision on the validity of Regulation 0, there is one issue that I can resolve. In particular, the parties dispute who has the-burden of proof with respect to whether defendants qualify for the attorney exemption in the Consumer Protection Act and any remaining exemption in Regulation O. I conclude that this burden lies with defendants as proponents of the exemption and will grant plaintiffs motion for summary judgment solely with respect to the burden of proof issue. Because defendants.assumed the burden was on plaintiff and did not analyze the application of the exemption under applicable state law, further briefing is required on this issue as well. The parties’ motions for summary judgment with respect to all other issues will be denied without prejudice. After I determine whether Regulation 0 remains valid in whole or in part and whether defendants qualify for the attorney exemption under the Consumer Protection Act and possibly Regulation O, I will allow the parties to renew their motions for summary judgment on any issues that remain relevant in this case.

This decision to allow supplemental briefing makes the February 16, 2016 trial date unworkable. Accordingly, I will strike the trial date and the deadlines with respect to Rule 26 disclosures and motions in limine. After I resolve the parties’ motions for summary judgment, I will set a new schedule for the remainder of the case.

OPINION

A. Background

On June 21, 2010, in the wake of the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010, Pub. L. 111-208, § 1097, 124 Stat. 1376 (July 21, 2010), to address the regulatory system’s failure to protect consumers of financial services. J. Martin Page, Tyler S. Gregg, Chris T.G. Trusk, “CFPB Enforcement Actions Against Law Firms,” S.C. Law., November 2015, at 32. During the period leading up to the crisis, “federal oversight of consumer finance was a patchwork spread out among seven different agencies” that did not have “the jurisdiction or tools necessary to ensure that consumer financial markets functioned well.” Leonard J. Kennedy, Patricia A. McCoy & Ethan Bernstein, “The Consumer Financial Protection Bureau: Financial Regulation for the Twenty-First Century,” 97 Cornell L. Rev. 1141, 1145 (2012). To help rectify this problem, Congress created the Consumer Financial Protection Bureau (the plaintiff in this case), 12 U.S.C. § 5491(a), and gave it rulemaking authority “with respect to mortgage loans” that “relate to unfair or deceptive acts or prac*817tices,” including those “involving loan modification and foreclosure rescue services.” 12 U.S.C. § 5538(a)(1). Effective July 21, 2011, the Consumer Protection Act .transferred authority over several existing consumer laws from other agencies to plaintiff. Designated Transfer Date, 75 FR 57252-02, 57253 (Sept. 20, 2010) (“[Certain authorities will transfer from other agencies to the CFPB, and the CFPB will be able to exercise certain additional, new authorities under the Act and other laws.”). One of the laws over which plaintiff gained authority is § 626 of the Omnibus Appropriations Act of 2009, Pub. L. No. 111-8, § 626, 123 Stat. 524 (Mar. 11, 2009), which directed the Federal Trade Commission to issue rules related to mortgage loans. 12 U.S.C. § 5481(12). Plaintiff inherited many standards and regulatory concepts from the Federal Trade Commission and was given the power to enforce a number of its rules. 12 U.S.C. § 5581(b)(5); 1 The Law of Debtors and Creditors § 1:9 (Nov. 2015); Kennedy, McCoy & Bernstein, at 1149.

Before plaintiffs authority under the Consumer Protection Act became effective, the Federal Trade Commission exercised its rulemaking authority under the Omnibus Act and issued the Mortgage Assistance Relief Services rule, commonly known as the MARS rule. Final Rule, 75 Fed. Reg. 75092 (December 1, 2010) (to be codified at 16 C.F.R. part 322). In its notice of proposed rulemaking, the Federal Trade Commission explained that

Many consumers who have been unable to obtain assistance have turned to MARS [mortgage assistance relief service] providers. These for-profit companies have widely promoted their ability to help consumers in negotiating with lenders or servicers and in taking other steps to prevent foreclosure. Responding to consumer demand, these providers focus their advertising mainly on their capacity to obtain mortgage loan modifications as opposed to other forms of foreclosure relief, such as a short sale or loan forbearance. ...

Typically, MARS providers charge consumers advance fees in the thousands of dollars. Some providers collect their entire fee at the beginning of the transaction, and others request two to three large installment payments from consumers. ...

Mortgage Assistance Relief Services, NPRM, 75 Fed. Reg. 10707-01, 10709-10711 (Mar. 9, 2010). To address these concerns, the Commission issued a final MARS rule requiring mortgage relief service providers to make certain disclosures to consumers, barring them from making certain representations to consumers and preventing them from collecting advance fees until the consumer had executed a written agreement with his or her lender incorporating the offer of mortgage assistance relief. Final Rule, 75 Fed. Reg. at 75128.

.The Federal Trade Commission also noted in its proposed rulemaking that

[A] growing number of MARS providers are employing or affiliating with lawyers. The providers often tout the expertise of these attorneys in negotiating with lenders and servicers. In some cases, MARS providers also offer “forensic audits,” purported reviews of mortgage loans to determine lender and servicer compliance with federal and state law, thereby supposedly helping the consumer to acquire the leverage needed to obtain better loan modifications. Providers also may use their rela.tionship with attorneys to assert that they are not covered .by state laws, that prohibit non-attorneys from collecting advance fees for loan modification services. ...

The FTC has extensive law enforcement experience with MARS providers. In the *818past two years, the Commission has filed 28 law enforcement actions against providers of loan modification and foreclosure rescue services. This extensive law enforcement experience, as well as the information received in response to the ANPR [advanced notice of proposed rulemaking], strongly suggests that the deceptive practices of MARS providers are widespread and are causing substantial harm to consumers. MARS providers often misrepresent the services that they will perform and the results they will obtain for consumers. Indeed, providers frequently fail to perform even the most basic of promised services. As a result, consumers not only lose the thousands of dollars they pay to the providers, but may also lose their homes.

In addition, some MARS providers make the specific claim that they offer legal services, when, in fact, no attorneys are employed at the company or, even if there are, they do little or no legal work for consumers. The Commission’s law enforcement experience, state law enforcement, the comments received in response to the ANPR, and state bar actions indicate that a growing number of attorneys themselves are engaged in deceptive and unfair practices in the marketing and sale of MARS.

NPRM, 75 Fed. Reg. at 10710-10712. However, the Commission also recognized that legal counsel may be valuable to some consumers. Id. at 10723. Therefore, after soliciting notice and comment, it published a final rule adopting a limited exemption from all provisions of the rule, except for the ban on advance fees, if the attorney:

(1) Provides mortgage assistance relief services as part of the practice of law;

(2) Is licensed to practice law in the state in which the consumer for whom the attorney is providing mortgage assistance relief services resides or in which the consumer’s dwelling is located; and

(3)Complies with state laws and regulations that cover the same type of conduct the rule requires.

Final Rule, 75 Fed. Reg. 75092-01, § 322.7(a). In addition, an attorney who met the above conditions was exempt from the ban on advance fees if the attorney:

(1) Deposits any funds received from the consumer prior to performing legal services in a client trust account; and

(2) Complies with all state laws and regulations, including licensing regulations, applicable to client trust accounts.

Id. at § 322.7(b).

Slightly more than a year later, on December 16, 2011, plaintiff republished the MARS rule as Regulation O at 12 C.F.R. part 1015. 16 C.F.R. § 322.1 (noting April 13, 2012 rescission of MARS rule). Regulation O banned the same deceptive practices as the MARS rule and carved out the same limited exemption for attorneys. 12 C.F.R. §§ 1015.3-1015.7.

B. Legal Standard

The parties agree that to determine an agency’s rulemaking authority with respect to a statute that it administers, courts apply the familiar analysis set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). City of Arlington, Texas v. F.C.C., — U.S. —, 133 S.Ct. 1863, 1871, 185 L.Ed.2d 941 (2013) (holding Chevron applies to question whether statutory text forecloses agency’s assertion of authority); Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 447 (7th Cir.2010). Under Chevron, a reviewing court *819must first ask “whether Congress has directly spoken to the precise question at issue.” 467 U.S. at 842, 104 S.Ct. 2778. If Congress has done so, the inquiry is at an end and the court “must give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. 2778. However, “if the statute is silent or ambiguous with respect to the specific issue,” the court looks to the agency’s regulations to determine whether they are based on a reasonable construction of the statute. CE Design, 606 F.3d at 447 (quoting Chevron, 467 U.S. at 842-43,104 S.Ct. 2778).

Under the second prong of the Chevron analysis, courts defer to the agency’s interpretation unless it is arbitrary, capricious, an abuse of discretion or otherwise contrary to the statute. United States v. Mead Corp., 633 U.S. 218, 228-29, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (citing Chevron, 467 U.S. at 843-45, 104 S.Ct. 2778); Arnett v. C.I.R., 473 F.3d 790, 793 (7th Cir.2007). The Administrative Procedures Act, 5 U.S.C. § 706(2)(A), provides a similar standard of review, requiring that a court “hold unlawful and set aside agency action” where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Judulang v. Holder, — U.S. —, 132 S.Ct. 476, 489 n. 7, 181 L.Ed.2d 449 (2011) (noting that arbitrary and capricious analysis under Administrative Procedures Act is same as under Chevron step two). This is a narrow standard of review under which the court determines whether the agency considered the relevant factors or made a “clear error of judgment.” Id.; Black v. Educational Credit Management Corp., 459 F.3d 796, 799-800 (7th Cir.2006) (internal citations omitted). “That task [under step two] involves examining the reasons for agency decisions — or, as the case may be, the absence of such reasons.” Judulang, 132 S.Ct. at 484. “If the agency ‘articulate[s] grounds indicating a rational connection between the facts and the agency’s action, then our inquiry is at an end.’ ” Black, 459 F.3d at 799-800 (quoting Head Start Family Education Program, Inc. v. Cooperative Educational Services Agency 11, 46 F.3d 629, 633 (7th Cir.1995)).

“Even under this deferential standard, however, ‘agencies must operate within the bounds of reasonable interpretation.’” Michigan v. Environmental Protection Agency, — U.S. —, 135 S.Ct. 2699, 2707, 192 L.Ed.2d 674 (2015) (Utility Air Regulatory Group v. Environmental Protection Agency, — U.S. —, 134 S.Ct. 2427, 2442, 189 L.Ed.2d 372 (2014)). An agency action falls short of this standard where it “has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” United States v. P.H. Glatfelter Co., 768 F.3d 662, 670 (7th Cir.2014) (internal quotations and citations omitted).

C. Source and Scope of Plaintiffs Authority

Defendants argue in a footnote that because the Consumer Protection Act “simply transferred pre-existing rules and rulemaking authority to plaintiff,” Congressional authorization for the regulation of attorneys must be found in the Omnibus Act, which authorized the original MARS rule, and not in the Consumer Protection Act. Dkt. #113 at 18 n.3. See also dkt. # 130 at 9 n.2 (arguing that plaintiff adopted MARS rule verbatim, statutory authority is Omnibus Act and not Consumer Protection Act). However, defendants have not developed this argument or cited any authority in support of it. Massuda v. Panda Express, Inc., 759 F.3d 779, 783 *820(7th Cir.2014) (Court of Appeals for Seventh Circuit has held repeatedly that “perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.”). Even if defendants had not waived their argument, I would not find it persuasive. As explained in more detail below, I agree that the transfer of pre-existing authority in the Consumer Protection Act makes the Omnibus Act a source of plaintiffs rulemaking ■ and enforcement authority. However, the Consumer Protection Act also expressly grants plaintiff general rulemaking authority over mortgage loan modification services and places specific limits on that authority. 12 U.S.C. § 5538(a)(1).

In addition to giving plaintiff general rulemaking authority, the Consumer Protection Act contains a specific “exclusion for [the] practice of law”:

Except as provided under paragraph (2), the bureau may not exercise any supervisory or enforcement authority with respect to an activity engaged in by an ’ attorney as part of the practice of law under the laws of a State in which the attorney is licensed to practice law. ■

12 U.S.C. § 5517(e)(1). However, the Act identifies three exceptions or “rules of construction” that allow plaintiff to regulate attorneys under certain circumstances. § 5517(e)(2) and (3).

'[5] First, the Act provides that the limitation in § 5517(e)(1) “shall not be construed so as to limit the exercise by the Bureau of'any supervisory, enforcement, or other authority regarding the offering or provision of a consumer financial product or service” that “is not offered or provided as part of, or incidental to, the practice of law, occurring exclusively within the scope of the attorney-client relationship.” § 5517(e)(2)(A). Therefore, as two other district courts have found, plaintiff could bring suit against a law firm ,engaged in the provision of financial products or services that are not part of its legal representation of its clients. Consumer Financial Protection Bureau v. ITT Educational Services, Inc., — F.Supp.3d — , — n. 29, 2015 WL 1013508, at *24 n. 29 (S.D.Ind. Mar. 6, 2015). For example, “an attorney who engages in pure debt collection activity, completely outside of the practice of law, would be susceptible to the Bureau’s authority.” Consumer Financial Protection Bureau v. Frederick J. Hanna & Associates, P.C., 114 F.Supp.3d 1342, 1353, 2015 WL 4282252, at *5 (N.D.Ga. July 14, 2015).

Second, the limitation in § 5517(e)(1) does not apply to a consumer financial product or service “that is otherwise offered or provided by the attorney in question with respect to any consumer who is not receiving legal advice or services from the attorney in connection with such financial product or service.” § 5517(e)(2)(B). For example, in Frederick J. Hanna, the court found that the Act did not bar the bureau’s claims against a creditor’s rights law firm because the debt-collection acts of filing a breach of contract lawsuit and litigating that suit are acts the firm performed for its creditor clients “with respect to” consumers who themselves did “not receive[ ] legal advice or services from the attorney.” 114 F.Supp.3d at 1353, 2015 WL 4282262, at *6.

Third, the Act provides that “[p]ara-graph (1) shall not be construed to limit the authority of the Bureau with respect to any attorney, to the extent that such attorney is otherwise subject to any of the enumerated consumer laws or the authorities transferred under subtitle F or H.” § 5517(e)(3). As noted above, § 626 of the Omnibus Act of 2009 was one of the “enumerated consumer laws” transferred to plaintiff from the Federal Trade Commission. Therefore, plaintiffs authority to regulate attorneys under this exception de*821pends on the authority that the Federal Trade Commission had to regulate attorneys under the Omnibus Act.

It is within these exceptions that plaintiff seeks to find authority for the following requirements in Regulation 0 related to attorneys:

(a) An attorney is exempt from this part, with the exception of [the ban on advance fees in] § 1015.5, if the attorney:

(1) Provides mortgage assistance relief services as part of the practice of law;

(2) Is licensed to practice law in the state in which the consumer for whom the attorney is providing mortgage assistance relief services resides or in which the consumer’s dwelling is located; and

(3) Complies with state laws and regulations that cover the same type of conduct the rule requires. '

(b) An attorney who is exempt pursuant to paragraph (a) of this section is also exempt from § 1015.5 if the attorney:

(1) Deposits any funds received from the consumer prior to performing legal services in a client trust account; and

(2) Complies with all state' laws and regulations, including licensing regulations, applicable to client trust accounts.

12 C.F.R. § 1015.7. Thus, although plaintiff exempts many attorneys from the provisions of Regulation 0, it seeks to regulate any attorney who (1) provides mortgage relief services outside the practice of law; (2) is not licensed in the state in which the consumer is located; (3) does not comply with state laws covering the same conduct as the regulation; or (4) requests and receives “advanced fees” from a consumer but fails to deposit the consumer funds in a trust account prior to performing legal services or fails to comply with state trust account laws and regulations. (Section 1015.5(a) of Regulation 0 prohibits mortgage assistance relief service providers from requesting or receiving any compensation before the-consumer has executed a written mortgage assistance relief agreement between the consumer and the consumer’s loan holder or servicer.)

Because defendants do not develop a specific argument concerning plaintiffs authority with respect to the exemption’s requirement that an attorney be licensed in the state in which the consumer is locat-' ed, I will not address that provision and consider defendants ‘to have waived any arguments concerning its validity. I will discuss - separately the provisions of the exemption related to an attorney’s provision of services outside the practice of law and compliance with state laws and regulations covering the same type of conduct the rule requires and applicable to client trust accounts.

D. Attorneys Not Practicing Law

The Consumer Protection Act grants plaintiff express authority to regulate attorneys providing mortgage assistance relief services outside the practice of law. Section 5517(e)(2)(A) states that the general exemption for attorneys in § 5517(e)(1) “shall not be construed so as to limit” plaintiffs authority to regulate products or services “that [are] not offered or provided as part of, or incidental to, the practice of law, occurring exclusively within the scope of the attorney-client relationship.” Regulation O’s requirement that attorneys be practicing law in order to qualify for an exemption is consistent with the statutory mandate.

Because defendants look to the Omnibus Act as the sole source of plaintiffs authority, they say very little about the Consumer Protection Act, noting only that .the three “narrow” exceptions to the Act’s broad exclusion for attorneys do not apply to the services they provided to consumers. Dkt. # 113 at 25-26 and n.4 (CM/ECF numbering). However, in determining whether *822plaintiff has the authority to regulate the activities of attorneys outside the practice of law, it is not relevant whether defendants in this case were practicing law.

Defendants also contend that plaintiff overstepped its authority by creating a new federal common law standard for determining who is and who is not practicing law that bears no rational relationship to the state rules of professional conduct that traditionally govern the practice of law. E.g., dkt. # 126 at 14-16. (CM/ECF numbering). They point out that states have “an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses” and “traditionally have exercised extensive control over the professional conduct of attorneys.” Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 434, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

Regulation 0 does not define any standard for the practice of law and refers to state licensing requirements. In promulgating the original MARS rule, the Federal Trade Commission recognized that “activities that constitute the ‘practice of law5 ... may vary based on state laws and licensing regulations, as interpreted by state courts and state bars” and stated that the “practice of law” would be “interpreted by the jurisdiction where the consumer or the consumer’s dwelling is located.” Final Rule, 75 Fed. Reg. at 75130-31. Defendants seem concerned that in interpreting and applying state law, federal courts will develop their own common law definition of the practice of law that is distinct from that developed by state courts and bar associations. However, the fact that a federal court may have to interpret or apply state law in determining whether an attorney is subject to Regulation 0 does not mean that plaintiff has created “a new federal common law standard” for the practice of law. Federal courts routinely apply and interpret state law in diversity cases without creating a federal standard that displaces state law.

E. Compliance with State Laws and Regulations

As an initial matter, it is important to look at what the regulation requires with respect to state laws and regulations. To be exempt from the regulation, attorneys otherwise engaged in the practice of law must comply with state laws and regulations “covering the same type of conduct the rule requires.” 12 C.F.R. § 1015.7(a)(3). Although the regulation seems to be referring to state requirements concerning prohibited misrepresentations and required disclosures in the provision of mortgage assistance relief services, both parties assume that it includes the requirement that attorneys comply with state rules of professional conduct. Dfts.’ Br., dkt. # 113 at 29-31 (CM/ECF numbering); Pltf.’s Opp. Br., dkt. # 118 at 49-50 (CM/ECF numbering). Plaintiff states that the Federal Trade Commission “has explained what compliance with state laws and regulations means in the context of this provision” and “provided specific and concrete examples of potential violations.” Dkt. # 118 at 49-50. Specifically, in promulgating the final MARS rule, the Commission explained that to qualify for the exemption, “attorneys must comply with all relevant state laws and licensing regulations governing their conduct,” including those relating to “(1) [cjompetent and diligent representation of clients; (2) disclosure of material information regarding their services to clients; (3) the accuracy of representations of material aspects of their legal services; (4) the request, receipt, handling, and distribution of fees from clients; and (5) prohibitions on fee-splitting with non-attorneys or aiding others in the unauthorized practice of law.” Final Rule, 75 Fed. Reg. 75092-01, 75131.

*823“Examples of activities that may be in violation of state laws and regulations, and thus would render attorneys ineligible for the exemption, include: (1) Failing to work diligently and competently on behalf of clients, i.e., not- taking reasonable efforts to obtain mortgage assistance relief; (2) neglecting to keep clients reasonably informed as to the status of their matters, including the potential for adverse outcomes; (3) misrepresenting any material aspect of the legal services, including the likelihood, they will achieve a favorable result, an affiliation with a government agency, or the cost of their services; (4) sharing legal fees for MARS-related services with non-attorneys; (5) forming partnerships with non-attomeys in connection with offering MARS; and (6) aiding MARS providers in engaging in the unauthorized practice of law, i.e., providing legal services without a license to do so.” Id. at 75132 (citing various Model Rules of Professional Conduct). As a result, both the Federal Trade Commission and plaintiff •have construed “state laws and regulations covering the same type of conduct the rule requires” as including state rules of professional conduct for attorneys.

Section 1015.7(b) of Regulation 0 similarly requires attorneys seeking an exemption from the advance fee prohibition to comply with state laws, regulations and licensing requirements applicable to client trust accounts and to deposit advance fees in client trust accounts, even if they are not otherwise required to do so.

1. Chevron step one analysis: Congress’s grant of authority

Defendants correctly note that Congress did not say anything about plaintiff having the authority to require licensed attorneys who are practicing law to comply with state laws regarding mortgage assistance relief services or client trust accounts. In fact, as a general rule, the Consumer Protection Act prohibits plaintiff from regulating any activities engaged in by an attorney as part of the practice-of law — this would include an attorney’s conduct in the attorney-client relationship and the use of client trust fund Recounts. Plaintiff - does not argue and it is clear from a review of the Consumer Protection Act that determining whether an attorney’s conduct complies with state law is not related to determining whether the attorney is practicing law. In other words, an attorney who is providing services as part of the practice of law may be violating state rules concerning client interactions or trust accounts. .

Even though subsections (a)(3) and (b) of § 1015.7 are in direct conflict with the Consumer Protection Act’s general prohibition against regulating attorneys engaged in the practice of law, 12 U.S.C. § 5517(e)(1), plaintiff seems to believe that it has authority for these requirements under the third exception listed in the Act that states that, its authority is not limited “with respect to any attorney, to the extent that such attorney is otherwise subject to any of the enumerated consumer laws or the authorities transferred under subtitle F or H.” § 5517(e)(3). As mentioned above, § 626. of the Omnibus Act is one of the enumerated consumer laws under which plaintiff inherited authority from the Federal Trade Commission.

The Omnibus Act is silent with respect to the Commission’s authority to regulate attorneys, but it authorized the 'Commission to promulgate a rule to address mortgage lending practices and provided that any violation of the rule would be treated as a violation of a rule under § 18 of the Federal Trade Commission Act, 15 U.S.C. § -57(a). Pub. L. No. 111-8, § 626, 123 Stat. at 678. A few months later, Congress clarified this provision in the Credit Card Accountability Responsibility and Disclosure Act of 2009, Pub. L. No. 111-24, *824§ 511(a)(1)(B), 123 Stat 1734 (May 22, 2009), by Specifying - that the rulemaking shall relate to unfair or deceptive practices regarding mortgage loans, including .loan modification' and foreclosure rescue services, The .Credit Card Act also states that § 626 of the Omnibus Act did not authorize the Commission to promulgate a rule “with respect to any entity that is not subject to enforcement of the Federal Trade Commission Act (15 U.S.C, § 41 et seq.).” Id. at § 511(a)(1)(C), 123 Stat. at *1764. The Federal Trade Commission Act empowers the Commission to prevent “persons, partnerships, or corporations” from using unfair or deceptive acts or practices in or affecting commerce. 15 U.S.C. § 45(a)(2). Although the Federal Trade Commission Act expressly excludes certain entities (such as banks and credit unions) from the Commission’s jurisdiction, the Act does not say anything regarding the Commission’s jurisdiction over- attorneys. 15 U.S.C. §§ 44 and 45(a)(2). ■

Thus, Says plaintiff, it inherited the Federal Trade Commission’s express and unlimited authority to regulate attorneys under the Omnibus Act, which presumably includes the authority to require attorneys to comply with state professional rules and trust account requirements in order to qualify' for an- exemption. Plaintiff also points out that because Congress' enacted the Consumer Protection'-Act after the Federal Trade Commission issued its notice of proposed rulemaking on the MARS rule, Congress’s decision, to classify , the Omnibus Act as an.enumerated, consumer law suggests that Congress approved of the Commission’s limited exemption for attorneys.

'[7,8] However, plaintiff fails to explain why Congress would -prohibit plaintiff from regulating attorneys engaged in the practice of law and them create an exception that swallows that general prohibition. It is clear from- the Consumer Protection Act that Congress did not want plaintiff to regulate the activities of attorneys if those . activities were part of the practice of law. Interpreting the exception in § 5517(e)(3) as granting plaintiff authority to regulate an attorney’s professional conduct violates the clear mandate against regulating attorneys engaged in the practice of law. The Supreme Court has emphasized that agencies “must operate within the bounds of reasonable interpretation” and “reasonable statutory interpretation must account for both the specific context in which ,.. language is used and the broader context of the statute as a whole.” Utility Air Regulatory Group, 134 S.Ct. at 2442 (internal citations omitted). “A statutory ‘provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.’ ” Id. (quoting United Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)).

2. Arbitrary and capricious analysis under Chevron step two and Administrative Procedures Act

Even if the interplay between the prohibition in § 5517(e)(1) and the exception in (e)(3) can be considered ambiguous with respect, to plaintiffs authority to regulate an attorney’s compliapce-with state licensing and trust account requirements, I agree with defendants that plaintiffs decision to engage in this regulating is not subject, to deference under step two of the Chevron analysis and the Administrative Procedures Act. Utility Air Regulatory Group, 134 S.Ct. at 2442 (“[A]n. agency interpretation that -is ‘ineonsisten[t] with the design and structure of the statute as a whole’ does not merit deference.’ ”) (quoting University of Texas Southwestern *825Medical Center v. Nassar, — U.S. —, 133 S.Ct. 2517, 2529, 186 L.Ed.2d 503 (2013)). As defendants point out, Congress never intended plaintiff to address attorney conduct within the attorney-client relationship. Both the Consumer Protection Act and the Omnibus Act, as clarified by the Credit Card Act, provide rulemaking authority only with respect to unfair or deceptive mortgage loan practices. An attorney’s violation of a state rule of professional conduct or regarding client trust accounts does not automatically equate to an unfair or deceptive mortgage loan practice.

In an attempt to show that requiring attorneys to comply with a broad range of state laws and regulations is related to the regulation of mortgage assistance relief services, plaintiff cites statements that the Federal Trade Commission made in promulgating the final MARS rule:

The record in this proceeding' demonstrates that many attorneys involved in the provision of MARS have engaged in practices that violate one or more aspects of the applicable state laws or licensing regulations.

rfc

Some state bars have initiated an increasing number of investigations of attorneys who provide MARS and, in many instances, have brought misconduct cases against them. ‘

* # *

Nevertheless, many state bars have limited resources for investigating and taking action against unethical attorneys involved in providing MARS. State bars also typically respond only to client and competitor complaints rather than actively monitoring and investigating possible violations on their own initiative. As a result, as the record demonstrates, numerous attorneys have engaged and continue to engage in unfair or deceptive practices in the provision of MARS without states taking action against them. The Commission encourages all state courts and bars to follow the example of states like Florida and California and aggressively' enforce their laws and regulations covering attorneys who provide MARS as part of the practice of law. The record demonstrates, however,-that the threat of. bar sanctions has not been a sufficient, deterrent to attorney misconduct in the sale or provision of MARS, and. thus it is necessary to cover certain conduct of attorneys under the Final Rule.

Final Rule, 75 .Fed. Reg. at 75131-32. The Commission also explained that “a blanket exemption from the advance fee ban for attorneys is unwarranted and would not adequately protect-consumers” in light of “the frequency with which attorneys, and those ■ affiliated with attorneys, have engaged in unfair and deceptive practices in connection with MARS.” Id. at 75133. Although the rationale for the rule is well-meaning, plaintiff has not shown that Congress intended either plaintiff or the Commission to act as a federal version of the state bar authorities. It would not be reasonable to assume that either agency could or should perform that function. Neither the Federal Trade Commission nor plaintiff has special expertise in regulating the general professional conduct of attorneys. It is a task, that has been reserved traditionally for state authorities.

Even assuming, as the Commission represents, that many attorneys providing mortgage assistance relief services have engaged in practices that violate state licensing regulations, plaintiff has failed to explain why that correlation would justify the Commission’s authority to regulate attorney conduct under state 'law. If attorneys who provide mortgage assistance relief services were more likely to fail to pay their state income tax, it would not be reasonable for the Commission or plaintiff *826to seek to enforce state tax laws against those attorneys under the authority granted by Congress regarding mortgage loans. Further, plaintiff has not offered any specific rationale for regulating attorneys’ administration of client trust fund accounts.

F. Validity of Regulation 0

Although I conclude that the regulation of attorneys not engaged in the practice of law in subsections (a)(1) and (2) of 12 C.F.R. § 1015.7 is a proper exercise of plaintiffs rulemaking authority under the Consumer Protection Act, I find that plaintiff exceeded its rulemaking authority in promulgating subsections (a)(3) and (b) of § 1015.7, related to attorneys’ compliance with various state laws and regulations. Because the parties have not addressed what effect, if any, this partial invalidation of the attorney exemption will have on the exemption or the regulation as a whole, I will give them an opportunity to address the matter in supplemental briefing. As the moving party, defendants will have until February 5, 2016 to file a supplemental brief in support of their motion for summary judgment to address this issue. Plaintiff will have until February 19, 2016 to file a response, and defendants will have until February 26, 2016 to reply.

G. Burden of Proof Regarding Attorney Exemption

In their motion for summary judgment, defendants contend that plaintiff cannot enforce Regulation O or the Consumer Protection Act against them because defendants Mortgage Law Group and Consumer First Legal Group were national law firms that provided mortgage assistance relief services as part of the practice of law. Plaintiff says that defendants were not practicing law because they contracted with local attorneys to “duplicate ministerial tasks and basic financial review already performed by the Companies’ non-legal staff.” Dkt. # 118 at 13 (CM/ECF numbering). Plaintiff points out that defendants have not shown that they or their local attorneys were licensed to practice law in the states where defendants were operating.

As mentioned previously, the Consumer Protection Act refers to the practice of law “under the laws of the state in which the attorney is licensed,” and the parties seem to agree that court must look to state law to define the practice of law. In this case, defendants allegedly practiced law in 39 states, meaning that the court must analyze whether defendants offered or provided mortgage assistance relief services as part of, or incidental to, the practice of law in each of those states. However, neither party undertakes this analysis or identifies the state laws and regulations at issue. At most, the parties list examples of how some states have defined the practice of law and generally discuss the types of services that defendants provided without discussing how those services fell outside the practice of law in any particular state. Both sides contend that the opposing party should have the burden of proof with respect to qualifying for the exemption(s).

Plaintiff is the only party that develops a persuasive argument with respect to the burden of proof. It contends that even though courts have not yet addressed the burden of proof with respect to the attorney exemption, it is typical for the party seeking to qualify for a statutory exemption to carry the burden of proof. Berndt v. Fairfield Resorts, Inc., 337 F.Supp.2d 1120, 1130 (W.D.Wis.) on reconsideration, 339 F.Supp.2d 1064 (W.D.Wis.2004) (burden to proof on defendant to show it qualifies for exemption under Fair Debt Collection Practices Act). In addition, plaintiff says that because defendants have asserted the exemption as an affirmative defense in this case, they have the burden of identifying evidence from on which a jury could find in its favor on each element of *827an affirmative defense. C & N Corp. v. Kane, 953 F.Supp.2d 903, 911 (E.D.Wis.2013) aff'd sub nom. C & N Corp. v. Gregory Kane & Illinois River Winery, Inc., 756 F.3d 1024 (7th Cir.2014). See also Schmidt v. Eagle Waste & Recycling, Inc., 598 F.Supp.2d 928, 934 (W.D.Wis.2009) aff'd, 599 F.3d 626 (7th Cir.2010) (because overtime exemptions from Fair Labor Standards Act are affirmative defenses, defendant bears burden of establishing their application). Defendants have not disputed this reasoning and argues only that plaintiff would place “an insurmountable burden on individuals asserting the attorney exemption to conclusively, prove that they have never violated a state law or regulation.” Dkt. # 130 at 19-20 (CM/ECF numbering). However, I have found that the exemption’s provisions related to compliance with state laws and regulations are invalid. Defendants do not argue, and I do not find, that it is too burdensome for defendants to show that they were engaged in the practice of law while providing the allegedly unfair or deceptive mortgage assistance relief services. The information required to make this showing is within defendants’ control and possession.

Accordingly, defendants will have until February 5, 2016 to show cause why they should not be found subject to the Consumer Financial Protection Act, 12 U.S.C. §§ 5531 and 5536, and Regulation O, 12 C.F.R. SS § 1015.3(a) and (b), 1015.4(b)(1) and 1015.5(a), to the extent that the regulation remains valid. This means that defendants should identify the applicable state legal standards and support with admissible evidence their contention that they offered or provided mortgage assistance relief services as part of, or incidental to, the practice of law in each state in which they provided such services. Defendants also should show that they satisfy any other applicable requirements in the attorney exemption provisions of the Act and regulation. E.g., 12 U.S.C. §§ 5517(e)(2)(B) and (3); 12 C.F.R. § 1015.7(a)(2). In doing so, defendants may refer to arguments, evidence or proposed findings of fact that they submitted previously in connection with their motion for summary judgment, as long as they make clear where such information may be found in the record. Plaintiff will have until February 19, 2016 to file a response, and defendants will have until February 26, 2016 to reply.

ORDER

IT IS ORDERED that

1. The motion for summary judgment filed by defendants Consumer First Legal Group, LLC, Thomas G. Macey, Jeffrey J. Aleman, Jason E. Searns and Harold E. Stafford, dkt. #96, is GRANTED IN PART only to the extent that I find 12 C.F.R. §§ 1015.7(a)(3) and (b) to be invalid. The motion is DENIED WITHOUT PREJUDICE in all other respects.

2. Plaintiff Consumer Financial Protection Bureau’s motion for summary judgment, dkt. # 83, is GRANTED IN PART only to the extent that defendants have the burden of proving that they qualify for the attorney exemption in the Consumer Financial Protection Act, 12 U.S.C. § 5517(e), and Regulation O, 12 C.F.R. § 1015.7, to the extent that the exemption in the regulation remains valid. The motion is DENIED WITHOUT PREJUDICE in all other respects.

3. Defendants shall have until February 5, 2016 to: (a) file a supplemental brief in support of their motion for summary judgment to address what effect, if any, that partial invalidation of the attorney exemption in Regulation O will have on the exemption or the regulation as a whole; and (b) show cause why they should not be found subject to the Consumer Financial Protection Act, 12 U.S.C. §§ 5531 and *8285536, and Regulation 0, 12 C.F.R. §§ 1015.3(a) and (b), 1015.4(b)(1) and 1015.5(a), to the extent that the regulation remains valid. Plaintiff may have until February 19, 2016 to file a response, and defendants may have until February 26, 2016 to reply.

4. The deadlines for Rule 26(a)(3) disclosures and motions in limine, the February 4, 2016 final pretrial conference and the February 16, 2016 trial date are stricken. The court will set new deadlines for the remainder of this case, including the parties’ renewed motions for summary judgment, after it resolves the outstanding issues concerning the validity of Regulation O.

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE is brought by the Federal Trade Commission (FTC), pursuant to its authority under section 5 of the Federal Trade Commission Act (FTC Act), 15 U.S.C. § 45, against Defendants Lanier Law LLC, Fortress Law Group LLC, Surety Law Group LLP (Surety), Liberty & Trust Law Group of Florida LLC (Liberty & Trust), Fortress Law Group, PC (Fortress DC), Redstone Law Group, LLC (Redstone DC), Michael W. Lanier, Rogelio Robles and Edward William Rennick III (Defendants).1 The FTC alleges that Defendants violated Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), the Mortgage Assistance Relief Services Rule (MARS Rule), 16 C.F.R. Part 322, recodified as Mortgage Assistance Relief Services (Regulation 0), 12 C.F.R. Part 1015 (Regulation 0), and the Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310, in connection with the marketing and sale of mortgage assistance relief services. See generally Plaintiff Federal Trade Commission’s Amended Complaint for Permanent Injunction and Other Equitable Relief (Doc. 91; Amended Complaint), filed December 22, 2014. At the outset of these proceedings, on the FTC’s motion, the Court entered a temporary restraining order against Defendants Lanier Law LLC, For*1245tress Law Group LLC, Surety, Liberty & Trust, and Michael Lanier. See Ex Parte Temporary Restraining Order with an Asset Freeze and Other Equitable Relief (Doc. 10; TRO), entered July 11, 2014. Thereafter, the Court dissolved a portion of the TRO and granted, in part, the FTC’s request for preliminary injunctive relief against those Defendants with respect to Counts I, III, and VII of the original Complaint (Doc. 4). See Preliminary Injunction Order with Asset Freeze and Other Equitable Relief (Doc. 59), entered August 1, 2014. The FTC amended the complaint to add additional Defendants and after appropriate briefing the Court expanded the preliminary injunction to those Defendants as well. See Preliminary Injunction Order with Asset Freeze and Other Equitable Relief (Doc. 115), entered February 6, 2015.

This matter is currently before the Court on Plaintiff Federal Trade Commission’s Motion and Memorandum for Summary Judgment (Doc. 246; FTC Motion), filed on December 29, 2015, and Defendant Michael W. Lanier’s Motion for Partial Summary Judgment (Doc. 248; Lanier Motion), filed on December 30, 2015.2 On January 20, 2016, Defendants Fortress DC and Rogelio Robles (collectively, Fortress Defendants), as well as Defendant Michael W. Lanier filed responses in opposition to the FTC Motion. See Defendant, Fortress Law Group, PC and Rogelio Robles’, Response to Plaintiffs Motion for Summary Judgment (Doc. 252; Fortress Response); Defendant Michael W. Lanier’s Affidavit in Opposition to Summary Judgment (Doc. 253; Lanier Response).3 On March 10, 2016, with leave of Court, see Order (Doc. 263), Lanier filed a supplement to the La-nier Response. See Defendant Michael W. Lanier’s Supplementary Affidavit in Opposition to the FTC Motion for Summary Judgment (Doc. 264; Lanier Supplement). The Federal Trade Commission responded to the Lanier Supplement on March 29, 2016. See Plaintiffs Reply to Lanier Defendants’ Supplement to the Affidavit Opposing Plaintiffs Motion for Summary Judgment (Doc. 267; FTC Reply). In addition, the FTC filed a response to the Lanier Motion on January 20, 2016. See Plaintiffs Response in Opposition to Defendant Michael W. Lanier’s Motion for Partial Summary Judgment (Doc. 255; FTC Response). The Court granted Lanier permission to file a reply to the FTC Response, see Order (Doc. 259), and he did so on February 2, 2016. See Defendant Michael W. Lanier’s Reply to Plaintiffs Opposition to Lanier’s Motion for Partial Summary Judgment (Doc. 261; Lanier Reply). Accordingly, this matter is ripe for review.

I. Standard of Review

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is *1246entitled to judgment as a matter of law.” Rule 56(a). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).4 An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir.1993)). “[A] mere scintilla of evidence in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.1994)).

II. Evidentiary Challenges

In his Response, Lanier challenges the FTC’s use of declarations as evidence in support of the FTC Motion. According to Lanier, these declarations are inadmissible because the FTC has not moved to admit them under Federal Rule of Evidence (FRE) 807, and even if the FTC had done so, the declarations fail to satisfy the residual hearsay exception. See Lanier Response at 2. In support, Lanier relies on cases in which courts have considered the admissibility of declarations in lieu of testimony at trial, such as F.T.C. v. Washington Data Resources, No. 8:09-cv-2309-T-23TBM, 2011 WL 2669661, at *3-5 (M.D.Fla. July 7, 2011) and F.T.C. v. Direct Benefits Group, LLC, No. 6:11-cv-1186-Orl-28TBS, 2012 WL 5508050, at *1 (M.D.Fla. Nov. 14, 2012), as well as F.T.C. v. E.M.A. Nationwide, Inc., No. 1:12-CV-2394, 2013 WL 4545143, at *2-3 (N.D.Ohio Aug. 27, 2013), in which the court ad*1247dressed whether consumer complaints • to other agencies, as opposed to declarations made under penalty of perjury, were appropriate evidence at summary judgment. See Lanier Response at 3-5. However, La-nier’s argument is specious and the authorities he cites in support are not relevant to the current posture of this case. The issue before this Court is the use of declarations to support a motion for summary judgment, and thus Rule 5⅜ not FRE 807, is the applicable authority.

As stated above, pursuant to Rule 56, a party may support a motion for summary judgment by citing to: “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only) admissions, interrogatory answers, or other materials.” See Rule 56(c)(1)(A) (emphasis added). To rely on a declaration, the Rule requires that it: “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Rule 56(c)(4). In the declarations submitted by the FTC, the declarants state that they are over 18 years of age, have personal knowledge of the facts stated, and would testify to those facts if called. See, e.g., FTC Motion, Exs. 1A, 1B, 2-25, 300-338. Moreover, each declaration is signed under penalty of perjury pursuant to 28 U.S.C. § 1746. Id. As such, to the extent the declarations contain testimony that would be admissible in Court if the declarant were called to testify, the Court may appropriately consider these declarations in resolving the instant Motions. See Rule 56(c)(1)(A), (c)(4); McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (explaining that otherwise admissible evidence may be “submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form”). Significantly, Lanier fails to identify any declaration of record that does not comply with these requirements, nor does he raise any hearsay, personal knowledge, or other relevant challenge to any specific portion of a declarant’s testimony. Thus, the Court rejects Lanier’s wholesale challenge to the FTC’s use of declarations as evidence.5

Lanier also challenges the credibility of the FTC investigators who filed declarations in support of the FTC Motion. See Lanier Response at 20-21. “Generally, judicial credibility determinations are not proper at the summary judgment stage of the proceedings.” Young v. Rios, 390 Fed.Appx. 982, 983 (11th Cir.2010). However, upon review; Lanier’s credibility challenge does little to undermine the testimony of the investigators and instead reflects Lanier’s fundamental misunderstanding of the difference between a legal and a factual question. See Lanier Response at 20. Moreover, to the extent La-niér takes issue with the way the FTC divided the investigatory tasks among the investigators and the attorneys, he fails to explain how this is relevant to the matter of credibility. Notably, the testimony of the. FTC investigators, is largely supported by extensive documentary evi*1248dence, the authenticity of which Lanier does not challenge. Thus, in the absence of any specific argument regarding a particular aspect of an investigator’s testimony, the Court finds that Lanier’s general credibility attack is insufficient under the circumstances to create an issue of fact. See Curl v. Int’l Bus. Machs. Corp., 517 F.2d 212, 214 (5th Cir.1975) (“[T]he opposing party may not merely recite the incantation, ‘Credibility,’ and have a trial on the hope that a jury may disbelieve factually uncontested proof.” (internal quotation omitted)).6

III. Background7

A. The Participants

Defendant Michael W. Lanier is an attorney, licensed to practice law in the *1249State of Florida. See Lanier Response at 6. In approximately 2011, Lanier established Lanier Law, LLC, which operated under various names, including “The Law Offices of Michael W. Lanier,” “Fortress Law Group,” “Redstone Law Group,” and “Vanguard Law Group” (collectively, Lanier Law).8 See FTC Motion, Ex. 200: Deposition of Michael W. Lanier (Doc. 269; Lanier Dep.) at 14-15.9 Under these various names, Lanier offered mortgage assistance relief services, such as foreclosure defense and loan modifications, to consumers nationwide who were in danger of losing their homes. See Declaration of Michael W. Lanier (Doc. 25; Lanier Decl.) ¶ 5.10 Lanier contracted with a company called Pinnacle Legal Services (Pinnacle), owned by Defendant Rogelio Robles, Defendant Edward W. Rennick III, and Wil-lem Young, to provide legal staffing for Lanier Law.11 See Lanier Dep. at 20; see also FTC Motion, Ex. 201: Deposition of Rogelio Robles (Doc. 270; Robles Dep.) at 55-56.12 Pinnacle also provided legal staffing for Lanier’s operations as Redstone and Vanguard. See Lanier Dep. at 67. Another company, Fortress Legal Services, owned by Robles, provided legal staffing for the work Lanier did as Fortress Law Group. See id. at 67-68; see also Robles Dep. at 92. As such, according to Lanier, he was the only employee of Lanier Law, see Lanier Dep. at 164, and the individuals working in his office, answering the phone, and managing his case files were employees of the staffing companies, id. at 63-65. Lanier Law paid Pinnacle and Fortress Legal Services for the hours these employees worked at the firm. Id. at 68.

Robles owned another business called the Department of Loss Mitigation and Forensics (DOLMF), located at 4327 Salis*1250bury Road, which at one point also provided legal staffing, “employee-leasing,” and processing services to Lanier.13 See Robles Dep. at 19, 27, 43,112. Although employed by DOLMF, because DOLMF serviced Lanier Law, Robles represented himself to consumers as the Operations Manager for the Law Offices of Michael W. Lanier.14 Id. at 57-58. Robles hired, trained and supervised DOLMF’s employees, was kept apprised of any issues that arose with consumers, and spoke to consumers with complaints, Id. at 41-42, 44-45, 123, 128-29. DOLMF also provided staffing to a company called First United Relief Foundation (FURF), owned by Anthony Gresham, an employee or former employee of DOLMF. See id. at 45, 68, Robles was “in charge” of FURF as well, and the company largely functioned as another name for DOLMF. Id. at 42-43, 68-71 (“I guess [FURF] was just a different name that the staff that was employed by [DOLMF] picked up the phone as.”). Significantly, DOLMF paid Avanti Media Solutions, a company located at 6821 Southpoint Drive North, Suite 125, Jacksonville, Florida, and owned by Young, to print and mail flyers, including a flyer titled Economic Stimulus Mortgage Notification. See Robles Dep. at 36, 38-39, 108-111, Ex. 97 (Doc. 246-1 at 66; the Economic Stimulus Flyer). This Flyer, discussed further below, solicited consumers to contact DOLMF for mortgage relief services.

In December of 2011, the Florida Bar began investigating Lanier’s law practice. See Lanier Deck ¶ 10. On November 5, 2012, the Florida Bar served Lanier, through his attorney, with a Complaint alleging violations of the Rules Regulating the Florida Bar (Florida Bar Rules) with respect to Lanier’s foreclosure defense services. See FTC Motion, Ex. 1A: Declaration of Michael Liggins (Liggins Deck), Att. LL (the Bar Complaint). Lanier entered a conditional guilty plea to the Bar Complaint, id. Att. MM (the Guilty Plea), and on July 24, 2013, the Supreme Court of Florida entered judgment against Lanier suspending him from the practice of law for forty-five days, commencing August 23, 2013, id. Att. NN.15 Following his suspension, on October 31, 2013, Lanier formed Liberty & Trust and resumed his foreclosure defense practice, this time limiting his clientele to Florida consumers. See Lanier Deck ¶¶ 29-30.16 Liberty & Trust also does business as Lighthouse Law Group. See Lanier Dep. at 16.

In July, August, and September of 2012, Surety, Fortress DC, and Redstone DC, *1251respectively, were formed in the District of Columbia (collectively, the DC Entities). See Liggins Decl., Atts. M, N; FTC Motion, Ex. 28: Declaration of Roberto C. Menjivar (Menjivar Decl.), Att. L. Pursuant to its equity and partnership agreement, Surety was a partnership of Pablo Santiago, Jr., Esq., an attorney licensed in the District of Columbia (D.C.), as well as Rennick, Robles, and Young. See Menjivar Deck, Att. K.17 Robles and Tina Greene, a member of the D.C. Bar, entered into a partnership agreement forming Fortress DC. See Liggins Deck, Att. N; Robles Dep., Ex. 115. Redstone DC’s members were Rennick, Lanier, Robles, Young, and John James Kane Jr. See Menjivar Deck, Att. M: However, Lanier held only a six percent interest in Redstone DC, id. which he later abandoned. See Lanier Deck at 6 n.2; Rennick Dep. at 29.18 Robles, Rennick, Lanier and Young decided to open the DC Entities after they “figured out that there was a way that a nonattorney could own a law firm out of DC —” See Robles Dep. at 32.19 Although these businesses were formed in D.C. and had D.C. addresses, their D.C. offices were merely “virtual offices” to which mail could be delivered, but was then forwarded to Jacksonville, Florida. See Rennick Dep. at 33; Kane Dep. at 19-20; FTC Motion, Ex. 204: Deposition of Tina Greene (Doc. 273; Greene Dep.) at 56.20

In August and October of 2012, respectively, Lanier stopped accepting new clients for Lanier Law d/b/a Redstone, and Lanier Law d/b/a Fortress. See Lanier Deck ¶¶ 11, 12. Lanier maintains that in October of 2012, he transferred his law *1252practice to the DC Entities. See Lanier Dep. at 68-69. Specifically, on October 8, 2012, Lanier sold the “Foreclosure Defense; Loss Mitigation; Debt Management and Debt Defense Litigation,” areas of his law practice to Redstone DC, and transferred “all of Lanier’s existing cases, consenting clients, and fees from Lanier to Redstone.” See Menjivar Decl., Att. O.21 Lanier also transferred his foreclosure defense clients to Fortress DC. See Lanier Response at 8. At that time, Pinnacle stopped working for Lanier and transitioned to the DC Entities, see Lanier Dep. at 68-69; Rennick Dep. at 48-49, such that the Pinnacle employees who had previously serviced clients of Lanier Law continued their involvement with those clients on behalf of the respective DC Entity. See Lanier Dep. at 24. Likewise, the employees of DOLMF working on behalf of Lanier Law transitioned to working for Fortress DC. See Robles Dep. at 43. Lanier left in place his “Moneygram portal” and “Merchant Account portal,” by which consumers could submit payments, and allowed the DC Entities to “take over” those accounts to “accommodate[]” the “reasonable requests” of his “friends,” the principals of those Entities. See Lanier Response at 12; Supplemental Declaration of Michael W. Lanier (Doc. 46; Lanier Supp. Decl.) ¶10. In addition, according to Lanier, he continued to recruit and maintain the of-counsel network for Redstone DC, as well as Surety. See Lanier Response at 19-20; Lanier Dep. at 121-22.22 In doing so, Lanier would call and speak with the lawyers, hire them on behalf of Redstone DC, and on occasion, fire them. See Lanier Supp. Decl. ¶ 9. La-nier maintains that Redstone DC paid him for these services, but on the occasions that he assisted Surety with its attorney network, he was not compensated. Id.

According to Alexis Wrenn, who identifies herself in- a declaration executed on January 27, 2016 as the office manager for Surety and former office manager for Red-stone DC, Surety and Redstone DC ceased taking clients for mortgage related services in June 2013, and July 2014, respectively. See DC Entities Prelim. Inj. Resp., Ex. 1. Pamela Thomas, whose January 27, 2015 declaration states that she is the office manager for Fortress DC, asserts that Fortress DC stopped accepting clients for mortgage related services in July 2014 as well. Id., Ex. 2. In March of 2014, Rennick, *1253Kane and Pamela Randle formed a new partnership called Ameritrust Law Group, which also has a virtual office in D.C., with all mail forwarded to a Florida location. See Kane Dep. at 22, 35-36.23

B. The Lawyers

Lanier Law and the DC Entities utilized a substantially similar business model. These companies operated as “law firms” in two ways: (1) they entered into agreements with attorneys throughout the United States to act as “of counsel” attorneys for the firms, see Lanier Response at 7; Lanier Decl. ¶ 5; Rennick Dep. at 128-30; FTC Motion, Exs. 400-406, and (2) each law firm was formed with one attorney as a member or partner, see Lanier Response at 7; Menjivar Decl., Atts. K, M; Robles Dep., Ex. 115. With respect to the “of counsel” attorney network, Lanier found and hired these attorneys, both for Lanier Law and later, for Redstone DC and Surety. See FTC Motion, Exs. 400-06; see also Supp. Lanier Decl. ¶9. Some of the “of counsel” attorneys who began their relationship with Lanier Law, subsequently transitioned to working for Redstone DC, Fortress DC and/or Surety. See FTC Motion, Exs. 401-04, 406. The principals of Lanier Law and the DC Entities associated “of counsel” attorneys in other states so that these businesses could expand then-operations to those states. See Rennick Dep. at 129-30 (“We absolutely knew that if we were going to have a client in another state, we needed to have an attorney.;.. We needed an attorney in that state to be able to provide foreclosure defense services.”). As such, the client agreements that Lanier Law and the DC Entities provided to consumers refer to the law firm retaining “outside counsel” or working with “counsel local to Client,” to provide the consumer with legal representation. See, e.g., FTC Motion, Ex. 321, Att. D (2014 Redstone Application for Foreclosure Defense Services); Ex. 323, Att. A (2013 Fortress Application); Ex. 335, Att. A (2012 Surety Application) Ex.337, Att. A (2011 Lanier Law Contract).

Regardless of which firm was involved, the “of counsel” attorneys signed substantially similar agreements setting forth the terms of their relationship with Lanier Law or a DC Entity. See e.g., FTC Motion, Ex. 404, Atts. A-C, Ex. 405, Att. A; Ex. 406, Atts. A-C (Of Counsel Agreements). Pursuant to the Of Counsel Agreements, the attorneys agreed that they were independent contractors, responsible for their own overhead expenses and taxes. Id. They were paid “a monthly non-refundable retainer,” either $150 or $300 a month, which represented either 3 or 6, “pre-paid billable hours from Lawyer to Firm during the course of the month.” See e.g., FTC Motion, Ex. 400, Att. A; Ex. 403, Att. A-D. The “of counsel” attorneys were paid these sums in recognition that “[fjrom time to time, there may be matters where the Firm will want Lawyer to assist the Firm because of Lawyer’s particular background and expertise.” Id. In addition, the attorneys would be compensated at a rate of $75/hour for hours, worked in excess of the pre-paid amount, and would be paid separately for appearances at any hearings. Id

The Of Counsel Agreements also contained confidentiality clauses requiring, niter alia, that “once client paper work has *1254been transferred back to the Firm, Lawyer must shred copies of all client documents and retain nothing on file that is connected to the client. Lawyer may not contact or work with client in any way, without the express- consent of the Firm.” Id. Some, although not all, of these agreements contained paragraphs similar to the following:

The Firm anticipates having clients in [state where “of counsel” is located] who need foreclosure defense, debt management, or similar service. The Firm will receive initial communications from such clients, draft and tender appropriate documents in order to ‘sign up’ such clients. That document will be from the firm and signed by [lawyer-member of firm, e.g., Kane, Lanier, Santiago] or another firm partner and co-signed by electronic signature of associated [relevant state] counsel.

The Firm will then refer the client to Lawyer for Limited Scope Representation pursuant to his own local Bar’s Rules and Ethics Opinions. The Firm may, if Lawyer agrees, suggest drafts correspondence [sic] and documents on Lawyer’s letterhead and for Lawyer’s signature, as soon as Lawyer has reviewed, revised, and approved the final draft of such. Facsimile signatures may be used for final drafts approved by Lawyer, so that the Firm can assemble and deliver such approved final drafts to appropriate parties, including the client who may file pleadings, etc., with the court.

If and when pleadings, including, but not limited to, Petitions for Temporary Restraining Order, etc., become appropriate, such may be preliminarily drafted by the Firm, based upon the availability to the firm of the underlying documents and details. The Firm will email, or otherwise expeditiously transfer the proposed pleading to Lawyer in order that (s)he may exercise his/her independent judgment on the content and form of whatever (s)he signs and files locally on the client’s behalf.

The Lawyer will always have the last word and responsibility for the ultimate form, content and disposition of the work that (s)he does on behalf of his/her and the Firm’s clients. The Firm and all of its resources are always available to assist local Lawyer on any case that the firm may send to him/her.

See, e.g„ FTC Motion, Ex. 405, Att. A; Ex. 406, Atts. B & C (with language), Att. A (without language). However, despite these provisions, several “of counsel” attorneys aver that the work they actually performed on behalf of the law firms was very limited.

For example, from August 2012 to July 2014, Chanda Roby worked for the Law Offices of Michael Lanier, Fortress DC, and Redstone DC, and declares that: ■

7. I would occasionally be sent documents to look over or be notified to access the firm’s database to review documents of certain consumers. For example, I usually would look to see that documents were properly signed and that the documents were in order. The requests were very random.

8. There was actually not a lot to do. Much of what was done was performed by the firms’ employees in Jacksonville, Florida.

See FTC Motion, Ex. 404: Declaration of Chanda Roby (Roby Decl.) ¶¶ 6-8, 16, Att, A. In the nearly two years that Roby worked for these firms, she does not recall ever contacting any client or potential *1255client, and no client or potential client ever contacted her. Id. ¶ 10. She maintains that neither Lanier nor anyone else from the firms requested that she “call consumers after they signed up as clients and introduce [herself] as the local attorney.” Id. Nor did she ever have any contact with a bank, lender, or mortgage servicer. Id. ¶ 11. Indeed, Roby states that she “had nothing to do with loan modifications or any attempt to obtain one.” Id. The other six “of counsel” attorneys who submitted declarations in this matter all describe a similar experience. See FTC Motion, Ex. 4G0 ¶¶ 4-8, Ex. 401 ¶¶6, 8-9, Ex. 402 ¶¶4, 7-10, Ex. 403 ¶¶ 5-9, Ex. 405 ¶¶4, 6-10, Ex. 406 ¶¶ 4, 7, 9-10. Some of these attorneys assert that Lanier specifically told them that the work only involved reviewing files “to see that they were properly completed, signed and dated,” with “no litigation, no court appearances, and no legal research.” See FTC Motion, Ex. 402: Declaration of Ralph Estrada (Estrada Decl.) ¶4; see also id., Ex. 403 ¶ 5 (“[Lanier] told me that the work consisted mainly of checking files to make sure the addresses were correct, and that if there was a lawsuit in Nevada involving one of his clients, I would help with that.”); Ex. 405 ¶ 4 (“[Lanier] told me that I would mainly be checking retainer agreements to ensure that there was contact information and to be sure they were signed and dated. At some point, Mr. Lanier told me that I would not have and did not have any fiduciary relationship to any of his or Surety’s clients.”); Ex. 406 ¶4 (“[Lanier] told me that I would ... review agreements to see that they were properly completed, signed and dated. There would be no litigation, no court appearances, and no legal research.”). Estrada maintains that “[t]here was nothing of substance that [he] did,” he was given no instruction, and it “seemed to [him] that they were just paying [him] to have an of counsel designation.” See Estrada Deck ¶ 8. Andrew Taylor, an “of counsel” attorney with Surety, states that when he “asked someone in the Surety office if contact with the client was necessary, they told [him] that no followup by [him] was needed.” See FTC Motion, Ex. 405: Declaration of Andrew Taylor (Taylor Deck) ¶ 10.

Some of these attorneys do recall being asked to review pleadings that a consumer would file in court pro se. See FTC Motion, Exs. 400, '401, 403, 405, 406. However, the review was largely editorial, correcting typographical errors, grammar, syntax and formatting. See Taylor Deck ¶ 8; FTC Motion, Ex. 401: Declaration of Carolyn Dale (Dale Deck) ¶ 6. Dale states that, she “did not warrant that the pleadings would work, and [she does] not know how any case was resolved.” See Dale Deck ¶ 6. Notably, at least two of the “of-counsel” attorneys refused to review pro se filings because they felt uncomfortable or unqualified to do so. See FTC Motion, Ex. 400 ¶ 7, Ex. 403 ¶ 8. In addition, Taylor asserts that a consumer did contact him on one occasion and “wanted an attorney to accompany him to a court hearing in a foreclosure proceeding, which turned out to be a very short-one — about five minutes.” See ■Taylor Deck ¶ 9. Nonetheless, Taylor maintains that he “did not have an attorney-client relationship with any of Lanier’s or Surety’s clients,” and specifically refrained from contacting clients because he “did not want to do anything that implied that [he] was the consumer’s attorney.” Id. ¶¶ 9-10.

In addition, Deron Tucker, who contracted with Lanier Law, as well as all of the DC Entities, states that he was contacted by consumers who “were under the impression that [Tucker] represented them *1256in their quest for loan modifications.” See FTC Motion, Ex. 406: Declaration of Der-on Tucker (Tucker Decl.) ¶ 7. However, Tucker “assured them that [he] did not represent them,” and was particularly concerned by the fact that, in some cases, the calls were from consumers whose files he had not even reviewed. Id. Troublingly, Taylor and Dale recount that their names and signatures were used on documents without their authorization.24 See Taylor Decl. ¶ 14 (“A few months before I was terminated, I complained that Lanier and Surety had used my name on a document that I had not reviewed.”); Dale Decl. ¶ 10 (“Although my signature appears on certain correspondence, I never physically signed or authorized that my signature be placed on any such correspondence.”); see also FTC Motion, Ex. 300: Second Supplemental Declaration of Michael S. Liggins (2nd Supp. Liggins Deck), Att. PP.25

Each “law firm” entity also had a licensed attorney as a member or partner. Specifically, Lanier “was at all times a sole practitioner” with respect to Lanier Law and Liberty & Trust, see Lanier Response at 7, Tina Greene, an attorney licensed in the D.C., was the attorney member of Fortress DC, Surety was formed in partnership with Pablo Santiago, Jr., Esq., who was later replaced by John James Kane, Jr., Esq., and Redstone was formed with Kane as its attorney member. See Menji-var Decl., Atts. K (Surety Partnership Agreement), M (Redstone DC Operating Agreement); Robles Dep., Ex. 115 (Fortress DC Partnership Agreement). However, Kane and Greene were paid a salary and were contractually excluded from receiving any profits of the foreclosure defense or debt management aspects of the firm’s business. See Fortress DC Partnership Agreement ¶ 7 (“Ms. Greene will be a non-equity partner, also known as salaried and not share in the profits of any foreclosure defense, loss mitigation, loan modification, debt management or some bankruptcy cases brought in through the firm.”); Redstone DC Operating Agreement ¶ 3.06(a) (“Mr. Kane will also be paid 10% of the net fees earned from any new business of the firm which in any month are in excess over his salary of $4,000, but not including, and all exclusive of, debt management services and foreclosure defense matters.”); Menjivar Decl., Att. K (amendment to the Surety Partnership *1257Agreement replacing Santiago with Kane and providing that “Kane will have no initial salary, and will participate financially in the fees generated in areas other than, and to the exclusion of, foreclosure defense, loss mitigation, and debt management, to the extent of 10% of the net fees generated therein”). Moreover, Kane and Greene both maintain that they had no involvement in the debt mitigation or foreclosure defense aspects of the business. See Kane Dep. at 31-32, 49, 81, 106; Greene Dep. at 37, 43, 53-54, 81.

Although Greene did provide legal' services to clients that were referred to her from Fortress, those services pertained to “bankruptcies or issue[s] with probate or issue[s] with taxes or something like that _” See Greene Dep. at 53. While Greene’s relationship with the client “typically started off’ with the client trying to save their home from foreclosure, the legal services Greene provided were always something other than foreclosure defense. Id. at 39-40, 53-54. Greene states that she “never worked in foreclosure defense.” Id. at 54. According to Greene, “[i]f they wanted to go through bankruptcy then I would help with their bankruptcy. If they had some other issue that was ancillary to their foreclosure, I would handle that.” Id. Indeed, Greene does not view foreclosure defense and loan modifications as “legal work,” and testifies that: “I didn’t handle loan modifications or foreclosure defense. I just handle legal work. When I say legal work, I’m saying things where you would need a JD and a license in that jurisdiction in order to perform.” Id. at 81. Aside from those consumers to whom Greene provided bankruptcy counsel, she kept no records on Fortress DC clients. Id. at 59-61, 67-68, 83-85. She handled none of the client funds for Fortress DC, and she neither trained nor supervised the Jacksonville employees of Fortress DC. See Greene Dep. at 42, 44, 58, 67-68. Greene does recall talking'to Pam Thomas and Robles periodically when a legal question would arise regarding one of the Fortress DC clients, such as a bankruptcy question or an insurance dispute. Id. at 15-17. Greene also states that she frequently talked to attorneys, independently retained by a Fortress client, concerning that client’s situation or his or her bankruptcy options. See id. at 14-15, 23, 26, 37-38. Notably, Greene maintains that if she spoke to a client who needed legal assistance in a state where Greene herself was not licensed, Greene would advise that client to secure an attorney and Greene would communicate with that outside attorney. Id. at 15, 23-26, 47. Although Greene was aware that Fortress DC had an “of counsel” attorney network, she did not understand that Fortress DC had agreements with those attorneys, and “would have been against it given the fact that [she] wanted each and every client to be able to secure their own attorneys.” Id. at 28-29, 46. Indeed, Greene expressed to Robles her opposition to any scenario where Fortress DC obtained attorneys on behalf of clients. Id. at 26. Greene maintains that she was adamant that clients must secure their own attorneys. Id.

According to Kane, his only role in the foreclosure defense practice was to set-up and maintain the attorney network. See Kane Dep. at 16-17, 23-24, 30. He did not have any part in the drafting of the consumer representation contracts, he did not prepare any pleadings or filings for any consumer to file in their loan modification, foreclosure defense, or loss mitigation case, and he did not talk to any consumer about those matters. H. at 80-81, 106, 115. Kane further maintains that he did not supervise the performance of such work, nor did he have discussions with, or con*1258duct training of, any personnel in Jacksonville regarding this work. Id. at 37-38,115. Notably, during his deposition, Kane testifies that a signature purporting to be that of John James Kane, Jr., attached to several documents, is not his actual signature and those documents were not reviewed or signed by him. See id. at 65-68, 79, 81-82, 103-04,114,126-28,132-33,142-43.

C. The Sales Pitch

Both Lanier Law and the DC Entities used separate companies, such as DOLMF, Pinnacle, and FURF (the “staffing” agencies), to solicit consumers, answer calls from consumers, and convince consumers to retain a law firm’s services.26 According to Robles, these employees would answer calls and “speak to the people on the other line, see what product they were looking for,” and then “do a financial statement, determine kind of where they were at with the whole process of their debt, and at that point they would determine where that lead would go to.” See Robles Dep. at 44. Liberty & Trust operated with its own employees and did not directly make use of the third-party staffing companies, see Lanier Dep. at 164, although its employees largely came from Redstone DC or had some connection to Rennick. Id at 141-43. Consumers would call after receiving a letter or flyer in the mail, ostensibly from one of the “staffing” agencies, or after finding one of the Law Firms on the internet. See, e.g., FTC Motion, Ex. 13 (FURF for Surety), Ex. 19 (Surety website), Ex. 312 (DOLMF for Lanier Law); Ex. 321 (Safepoint for Red-stone DC), Ex. 328 (Fortress DC website), Ex. 332 (Fortress DC). Liberty & Trust also obtained clients through the use of solicitation letters. See Lanier Dep. at 167-69, Ex. 152; FTC Motion, Ex. 315 ¶ 3, Ex. 325 ¶3. Other consumers hired Lanier Law or the DC Entities after someone employed by a law firm or- one of the “staffing” agencies contacted the consumer by telephone. See FTC Motion, Ex. 3 ¶ 4 (Fortress DC); Ex. 14 ¶ 4 (FURF with a referral to Fortress DC); Ex. 15 ¶ 3 (Red-stone DC); Ex, 21 ¶¶ 3-4 (DOLMF with a referral to Lanier as Fortress); Ex. 26 ¶ 3 (DOLMF with a referral to Lanier Law); Ex. 308 ¶ 4 (Redstone DC); Ex. 323 ¶ 6 (Fortress DC); Ex. 326 ¶ 5 (Forfress DC); Ex. 327 ¶ 6 (Redstone DC); Ex. 329 ¶¶ 6-7 (FURF with a referral to.Fortress DC); Ex. 335 ¶¶3-4 (Surety); see also Guilty Plea (admitting that individuals working for DOLMF contacted consumers). Four of these consumers assert that they received the calls at a telephone number registered on the National Do-Not-Call List. See FTC Motion, Ex. 21 ¶¶ 3-4 (DOLMF recommending Lanier d/b/a Fortress), Ex. 326 ¶ 5 (Fortress DC), Ex. 329 ¶¶ 6-7 (FURF recommending Fortress DC), Ex. 335 ¶¶ 3-4 (Surety).27

Several consumers contacted a Defendant after receiving the Economic Stimu*1259lus Flyer mentioned above. This Flyer had the appearance of an official government notice and was titled “Economic Stimulus Mortgage Notification,” and “Form 009 Payment Reduction Notification” or “Mortgage Relief Notification.” See, e.g., FTC Motion, Ex. 311, Att. A (2012 Flyer from DOLMF), Ex. 324, Att. A (2013 Flyer from Safepoint). Although the language varies slightly in different versions, the Flyer generally began:

You are hereby notified that the property located at [specific address] has been pre-approved for a special program by the Government Insured Institutions. In addition this property is prequalified for an Economic Advantage Payment or Principle Reduction Program, designed to bring your house payments current for less than you owe or your principal balance down. There are no restrictions on equity, credit ratings, or mortgage delinquencies.

See e.g., id., Ex. 13, Att. A (2012 Flyer from FURF). The Flyer urged the consumer to contact “your Non Profit Housing Counseling Organization for your county” and listed an 800 number. Id. It further explained that the consumer “must contact us to complete the registration process by reviewing your pending entitlements of savings such as: Reduced Principal Interest Payments, Loan Payment Reduction, Debt Reduction, Budget Counseling, Delinquent Mortgage Payment Assistance and the New Home Savers Advantage Program.” Id.28 Although the third paragraph of the Flyer does inform *1260the reader that the organization “is independent of all government agencies and departments,” it also states that “[t]hese programs may require the use of Government Insured Funds.” Id.

The record contains various copies of the Economic Stimulus Flyer which identify the sender as DOLMF, see FTC Motion, Exs. 311, 312, 317, FURF, id., Exs. 13, 17, Safepoint, id., Exs. 25, 324, or simply “Processing & Enrolment Center,” id. Ex. 18. The consumers who received the Flyer from DOLMF, upon calling the number listed, were referred to a Lanier Law entity. Id., Exs. 311, 312, 317. Consumers who called the number after receiving a Flyer from Safepoint Financial Relief either reached a Redstone DC representative or were referred to Redstone DC by someone working for Safepoint. Id, Exs. 25, 324. In addition, those calling in response to a FURF Flyer were referred to Surety Law Group, id., Ex. 13, or Lanier Law d/b/a as Fortress Law Group, id., Ex. 17. As to the Economic Stimulus Flyer sent from the “Processing & Enrolment Center,” the fine print of this Flyer references Surety Law Group, but when the consumer called he was told he had reached Redstone Law Group. See id., Ex. 18. Consumers received these Flyers from early 2012 until late 2013. See id., Exs. 17, 25, 317, 324. The FTC also submits copies of this same Flyer, provided in discovery or found in its search of Defendants’ premises, which include references to DOLMF, FURF, Safepoint, and Redstone Law Group, and are dated from 2011 to 2014. See 2nd Supp. Liggins Decl. ¶ 19, Att. BB.29 The FTC investigators also obtained a July 22, 2013 email exchange between Young and C.O. Jones of Pinnacle regarding the contents of the letter, with copies of the Economic Stimulus Flyer attached. See id. ¶ 20, Att. CC. Although Robles maintains that he did not draft the Economic Stimulus Flyer, he concedes that he hired and paid Avanti Media to send out “something” on behalf of DOLMF, and what they sent was the Flyer. See Robles Dep. at 36-39, 108-09. Lanier denies any part in “drafting, sending, approving or [using]” the Economic Stimulus Flyer. See Lanier Response at 9.

The FTC submits declarations from over sixty consumers who largely recount similar experiences with Lanier Law, the DC Entities and Liberty & Trust (the Law Firms).30As previously summarized during the Preliminary Injunction Hearings, these declarations describe conversations with salespersons which were replete with misrepresentations about the Law Firms. See Aug. 1 TV. at 6-9, 16-17; Feb. 19 Tr. at 14-33. Often, a consumer would first speak to an employee of one of the “staffing” agencies, either DOLMF, FURF, or Safepoint, who would tell the consumer that one of the Law Firms would be able to help the consumer obtain a loan modification. See, e.g„ FTC Motion, Ex. 7 ¶3 (FURF for Fortress DC); Ex. 13 ¶ 3 (FURF for Surety); Ex. 333 ¶4 (Safepoint for Redstone DC); Ex. 337 ¶3 (DOLMF for Lanier Law). Other consumers spoke directly to representatives of a Law Firm. See, e.g., *1261id., Ex. 9 ¶ 4 -(paralegal at Redstone DC); Ex. 22 ¶ 4 (Lanier Law as Fortress representative); 'Ex. 24 ¶ 4 (Lanier -Law representative); Ex. 325 ¶¶ 3-4 (Liberty & Trust representative); Ex. 335 ¶ 5 (Surety representative). Sometimes the third-party representatives would enroll the consumers and provide them with a Law Firm’s'paperwork, other consumers were referred to “case managers” who would complete the enrollment process. See, e.g., id. Ex. 4 ¶¶3-6 (Safepoint refers to Redstone DC case manager); Ex. 333 ¶¶ 3, 6 (Safepoint enrolls consumer for Redstone DC); Ex. 337 ¶¶ 3-4 (DOLMF enrolls consumer La-nier Law). In these introductory conversations, either the initial contact person or the case manager, would tell the consumer that the Law Firm could obtain a loan modification for the consumer with significantly lower payments and a lower interest rate. See, e.g., id., Ex. 7 ¶3 (FURF for Fortress DC); Ex. 9 ¶ 5 (Redstone DC); Ex. 13 ¶ 3 (FURF for Surety); Ex. 325 ¶4 (Liberty & Trust); Ex. 337 ¶¶ 3, 5 (DOLMF for Lanier Law). Sometimes, the representative would specifically state the amount of the anticipated reduced mortgage payment, see, e.g., id., Ex. 322 ¶5 (Fortress DC); Ex. 329 ¶ 9 (FURF for Fortress DC); Ex. 333 ¶ 4 (Safepoint for Redstone DC), and/or that the interest rate would be lowered to 2 or 3%, id., Ex. 3 ¶4 (Fortress); Ex. 8 ¶4 (Lanier Law); Ex. 335 ¶ 6 (Surety). Many consumers were told that the Law Firm could get the consumer a reduction in principal, removal of fees, or amounts past due wiped away. See, e.g., id., Ex. 302 ¶7 (Fortress DC), Ex. 306 ¶ 4 (Lanier Law), Ex. 309 ¶ 8 (Redstone DC), Ex. 317 ¶ 6 (DOLMF recommending Lanier Law), Ex. 318 ¶¶ 9-10 (Redstone DC), Ex. 319 ¶ 8 (Lanier Law as Fortress); Ex. 335 ¶ 6 (Surety). Some consumers recall that they were even “promised” or “guaranteed” a loan modification. See, e.g., id., Ex. 309 ¶ 8 (Redstone DC representative “promised that I would be able to get a loan, modification”); Ex. 311 ¶4 (DOLMF representative recommending Lanier Law d/b/a Fortress “sounded like the modification would be a sure thing”); Ex. 316 ¶ 6 (Lanier Law representative stated that “service was almost guaranteed to stop the foreclosure and I would be able to get a loan modification. She also promised that Lanier Law could substantially” lower her monthly payments and interest rate); Ex. 317 ¶ 6 (representative recommending Lanier Law stated “we can almost guarantee” a loan modification); Ex. 332 ¶ 8 (“I told him that I could not afford to pay Fortress [DC] unless I was sure that I would be able to get the modification. He promised that Fortress would get me the modification and that I should not worry.”).

Consumers were often reassured that the Law Firm had success rates upwards of 80 and 90%. See id., Ex. 10 ¶ 5 (Red-stone DC), Ex. 19 ¶ 4 (Surety), Ex. 22 ¶ 4 (Lanier Law as Fortress), Ex. 321 ¶ 5 (Safepoint regarding Redstone DC), Ex. 322 ¶ 5 (Fortress DC), Ex. 334 ¶ 5 (Lanier Law as Fortress). Sometimes representatives convinced consumers that these modifications were possible by explaining that the firm would perform an “audit” or examination of their loan documents to find errors made by the lender which would increase the consumer’s bargaining power or even “require” the lender to approve a modification. See, e.g., id., Ex. 13 ¶¶ 5, 9 (Surety); Ex. 22 ¶ 6 (Lanier Law as Fortress); Ex. 25 ¶¶ 4, 8 (Redstone ’ DC); Ex. 321 ¶7, Att. B (Redstone DC); Ex. 324 ¶¶ 7-8 (Redstone DC); Ex. 335 ¶ 7 (Surety). In some cases, consumers were told that they had been “approved” or that they “qualified” for programs designed to *1262keep them in their homes. See, e.g., id., Ex. 7, Att. A (letter from Lanier as Fortress congratulating consumer on being approved for the “Homeowner Retention Program” and “Homeowner Bailout Program); Ex. 17 ¶ 6, Att. C (same letter from Fortress); Ex. 21 ¶ 10, Att. B (same letter from Lanier as Fortress); Ex. 317, Att. B (substantially similar letter from Lanier Law); Ex. 25 ¶ 5, Att. B (email from Safe-point that consumer’s enrollment application in Redstone DC’s “Foreclosure Defense Program” was approved); Ex. 312, ¶ 5 (letter from DOLMF recommending Lanier Law and congratulating consumer on being approved for “loan modification program” by the “underwriting department”); Ex. 329, ¶8 (informed by FURF on behalf of Fortress DC of a “homeowner bailout program” designed for people like her); Ex. 335 ¶ 5 (Surety representative told consumer she and her husband were “qualified applicants”). Many consumers believed, and some were explicitly told, that a, lawyer would work on their case, see, e.g., id., Ex. 306 ¶ 4 (Lanier Law);, Ex. 324 ¶¶ 7-11 (Redstone DC); Ex. 325 ¶3 (Liberty & Trust), Ex. 328 ¶ 5. (Fortress DC), and some consumers were specifically told that they needed the help of a lawyer to obtain a loan modification. See, e.g., id., Ex. 303 ¶ 6 (consumer was told that working with Fortress would make it easier to get a modification because Fortress was a law firm); Ex. 308 ¶¶ 4-5 (Redstone DC); Ex. 311, ¶ 5, Att. B (received letter from DOLMF recommending Lanier d/b/a Fortress and explaining “you are going to need legal counsel in order to have a reasonable chance to accomplish your goals”). In reliance on the foregoing or similar representations, even skeptical consumers were eventually persuaded to hire one of the Law Firms to save their homes. See, e.g„ id., Ex, 20 ¶¶ 6-7 (FURF for Fortress DC); Ex. 327 ¶¶ 6-11 (Redstone DC); Ex. 312 ¶ 6 (Lanier Law); Ex. 311 ¶4 (Lanier Law as Fortress).31

D. The Contracts & Disclaimers

In the initial stages of enrollment, consumers were assigned to a case manager who was to provide the promised foreclosure defense services. All consumers were told that they must pay an advance fee before the Law Firm would perform any work. See Feb. 19 Tr. at 18-33; see also FTC Motion, Ex. 7 ¶ 9 (stating that Pamela Thomas told him that “Fortress could not begin working on my case ... until all of my payments had been made.”), Ex. 16 ¶ 9 (asserting that “Pam at Fortress” stated in a message that “they were going to stop working on the modification if no *1263more money arrived.”)- If consumers were unable to pay the entire fee at once, they were told they could pay in several installments. After the initial payments were completed, some consumers were told that additional work was necessary and that to have the Law Firm continue working on their case they must pay a monthly fee. See, e.g., id., Ex. 307 ¶ 10 (Redstone DC); Ex. 314 ¶ 8 (Liberty & Trust); Ex. 330 ¶ 8 (Fortress DC). Notably, many consumers were instructed to stop making their mortgage payments, or advised to pay the Law Firm instead of their mortgage, including a consumer who had been making full mortgage payments up to that point, See, e.g., id., Ex. 306 ¶ 4 (Lanier Law); Ex. 327 ¶¶ 9-10 (Redstone DC)32; Ex, 313 ¶7 (Fortress DC); see also id., Ex. 332 ¶ 11 (consumer states he had made full mortgage payments until he stopped based on advice of Fortress DC representative).

The Law Firms had consumers execute several forms as part of an “Application for Foreclosure Defense Services” which included documents such as “Scope of Representation” and “Borrower’s Certification” forms, a “Third Party Authorization to Release Information,” a “Service/Retainer Agreement,” and payment instructions. See, e.g., id., Ex. 308 (Red-stone DC Forms); Ex. 311, Atts. C, E (Lanier as Fortress Forms); Ex. 312, Att. C (Lanier Law Forms); Ex. 325, Att. A (Liberty & Trust Forms); Ex. 322, Att. A (Fortress DC Forms); Ex. 335, Att. A (Surety Forms). Although there are slight variations, the forms for each Law Firm are noticeably consistent in content, structure, and appearance. • .

For example, Lanier states that the La-nier Law entities regularly utilized an agreement similar to that found at Exhibit 21, Attachment A of the FTC Motion. See Lanier Decl. ¶78. This 2012 agreement sets out a “Description of Services” which includes an “audit” review for violations of “RESPA, Truth in lending and predatory lending,” as well as:

Negotiating with loss mitigation and or bank appointed negotiator regarding client’s file on one of our loss mitigation services or resolutions (I.E. loan modification offer, loan restructure, loan forbearance offer, short sale negotiation, short refinance negotiation, suspension of a foreclosure sale date, deed in lieu of foreclosure, or cash-for-keys negotiation.[) ] The modification process may vary depending on your bank, and your current mortgage situation. The process may take a few weeks to several months to complete and receive a modification offer. Please note that your lender may deny your loan restructure several times before we achieve a desired result.

See FTC Motion, Ex. 21 at 11. On the sixth page of the packet of documents, the agreement states:

*1264Please note: The client acknowledges that the attorney has made no guarantees concerning the outcome of this case and that all expressions relative to the results hoped for are opinions of the attorney and are made based on the facts and law known to the attorney at the time such opinion is rendered.

Please note: We never at no time recommend that homeowners miss their scheduled mortgage payments.

Id., Ex. 21 at 12. The agreement explains that “while we can make no guarantee as to the outcome of your matter, we shall keep you generally apprised as to the status of your case.” Id. Pursuant to this agreement, the consumer agreed to pay an upfront fee of $8,900 “for negotiating your first mortgage,” and further acknowledged that if the consumer canceled the “services during the negotiation process,” the Law Firm had “the right to retain any amounts already paid towards services.” Id. Although the agreement includes a payment schedule and a list of acceptable methods of payment, including cash deposits into specific bank accounts, the document makes no mention of a client trust account. See id., Ex. 21 at 7,14.

Fortress DC utilized a substantially similar client retainer agreement. See id., Ex. 322, Att A. A July 2013 version of the Fortress DC agreement includes a nearly verbatim “Scope of Representation” introduction, including a statement that Fortress DC “assures Client timely, effective, and professional legal representation.” Id. An October 2013 version of the Fortress DC agreement modifies the “Scope of Representation” to state that Fortress DC is providing “limited scope representation” and explains that “Local counsel provides the representation, not Fortress Law Group. Fortress Law Group provides the non-lawyer support, but does not practice law outside D.C.” See id., Ex. 323 at 6. The Fortress DC agreements include a description of services similar to that specified in the Lanier Law agreement, including the same “audit review” and negotiation process. Id., Ex. 322 at 7, Ex. 323 at 7. They list similar “typical negotiation outcomes” and caution that “The process may take a few weeks to several months to complete and receive a foreclosure defense offer or until we are notified that a foreclosure defense will not be offered. Please note that your lender may deny your loan restructure several times before we achieve a final result.” Id. These agreements also contain the same “Please note” disclaimers as the Lanier Law contract specifying that the attorney has made no guarantees concerning the outcome, as well as a disclaimer stating: “We never at any time recommend that homeowners miss their scheduled mortgage payments.” Id. With respect to fees, these agreements instruct the consumer that “[i]f you cancel our services at any time during the negotiating process, we will have the right to keep any fees paid to the law firm for services and time allocated to your case.” Id., Ex. 322 at 8, Ex. 323 at 7, 9. The Fortress DC agreements go further than the Lanier Law retainer and emphasize that “The Fees noted below are intended as a pure retainer and are fully earned and non-refundable upon engagement of the firm.” Id., Ex. 322 at 8, Ex. 323 at 8. The Fortress DC client agreements do mention the use of a trust account in a statement that: “You shall pay into trust to Fortress Law Group (the “Retainer”) to be billed against for negotiating your mortgage.” Id., Ex. 322 at 8; see also id., Ex. 323 at 8 (“You shall pay into trust to Fortress Law Group the retainer that includes your locally licensed *1265counsel’s fee to be billed against for negotiating your mortgage.”).

The Redstone DC and Surety agreements are largely identical to the structure and content of the Lanier Law and Fortress DC agreements. See id., Ex. 321, Att. D, Ex. 335, Att. A. They begin with an introductory letter titled “Application for Foreclosure Defense Services” which explains that Redstone DC, or Surety, has “successfully worked, with lenders across the country in reducing interest rates, fixing adjustable rate mortgages, reallocating mortgage arrears, postponing foreclosure sale dates and other foreclosure defense services.” See id., Ex. 321 at 14; Ex. 335 at 6. The letter states that Redstone DC or Surety “makes no promises or guarantees on interest rate or loan terms, but will work diligently on your behalf to negotiate and obtain the best possible offer from your lender.” Id Substantially similar letters accompany some copies of the Fortress DC agreements in the record. See, e.g., id.,' Ex. 323 at 5. The Redstone DC and Surety contracts also contain a “Scope of Representation” page which includes much of the same verbiage used in the Lanier Law and Fortress DC contracts, compare id., Ex. 321 at 17, Ex. 335 at 10 with Ex. 21 at 11, but utilize a disclaimer that:

[The firm] is not associated with the government, and our service is not approved by the government or your lender. Even if you accept this offer and use our service, your lender may not agree to change your loan. You may stop doing business with us at any time. You may accept or reject any offer of mortgage ■ assistance we obtained from your lender [or servicer]. If you stop paying your mortgage, you could lose your home and damage your credit rating.

See id., Ex. 321 at 17; Ex. 335 at 10. These contracts also modify the language in the Description of Services to refer to “foreclosure defense” rather than “loss mitigation,” and caution that the lender may deny a loan restructure several times “before we achieve a final result.” Id. The Redstone DC and Surety agreements include a disclaimer which provides: “Please note: Redstone Law Group, LLC [or Surety Law Group] does not make any promises on specific rate or terms of your loan restructure offer.” Id., Ex. 321 at 17; Ex. 335 at 10. As with the Fortress DC and Lanier Law contracts, the Surety and Redstone DC agreements state that: “If you cancel our services during the negotiation process, we have the right to retain any amounts already paid towards services.” Id., Ex. 321 at 18; Ex. 335 at 11. Notably, both the Surety and Redstone DC agreements set forth in bold that:

This agreement does not cover any appearances in court, appearances to settlement conferences, answers of default for summons and complaint, representation in the overall foreclosure action, appeals from any judgments or orders of the court. This agreement does not cover any litigation services, which can be provided at additional costs to our clients.

Id., Ex. 321 at 18; Ex. 335 at 11. Similar to the Fortress DC agreement, the Surety and Redstone DC agreements explain that the consumer will “pay into trust” a retainer fee “to be billed against” for negotiating the mortgage. See id., Ex. 321 at 18, Ex. 335 at 11. '

The Liberty & Trust client agreement is built on the same structure and appearance as the Surety and Redstone DC agreements. See id., Ex. 325, Att. A. However, the introductory letter modifies the *1266language slightly to read that Liberty “acts as Client’s Attorney-in-Fact, to provide Limited Scope Representation - and may engage third party vendors on Client’s -behalf .,” See id., Ex. 325 at 6. The letter includes a disclaimer that “[w]e can make no promises or guarantees of your outcome, particularly on interest rate or loan terms, but will employ our best efforts and experience on your behalf to negotiate and obtain the best possible offer from your lender.” Id. On the “Scope of Representation” form, the contract' includes the same disclaimer found in the Rédstone DC and Surety contracts regarding the lack of affiliation with the government and the client’s ability to reject any offers obtained. Id., Ex, 325 at 9. It also includes the same cautionary language about discontinuing mortgage payments. Id. The description of services omits any reference to an audit and describes the negotiation process as: “Negotiating with lender’s representative regarding any potential foreclosure defense offer. The loss mitigation application may take a few weeks to several months to complete and receive a decision. Please note that your lender may deny your loan restructure several times, before we exhaust every available avenue.” Jd. As in the Surety and Redstone DC agreements, the description of services includes the disclaimer that the law firm “does not make any promises on specific rate or terms of any loan restructure offer.” Id. The “Service/Retainer Agreement” form references payment “into our trust account” as a monthly retainer “to be billed against for the above work,” and still advises consumers that “[i]f you cancel our services during the negotiation process, we have the right to retain any amounts already earned towards services.” Id., Ex, 325 at 10.

E. The Results

Many of the consumers report that once they began paying a Law Firm, they stopped hearing from them, their calls were not answered or returned, they were transferred to new case managers, and it became difficult to communicate with anyone at the Firm. See, e.g., id., Ex. 305 ¶ 8 (Lanier Law); Ex. 309 ¶ 20, 22, 27-31 (Red-stone DC); Ex. 312 ¶¶ 9-10 (Lanier Law); Ex. 322 ¶ 10 (Fortress DC); Ex. 327 ¶ 16-18 (Redstone DC); Ex. 334 ¶ 10 (Lanier Law as Fortress); Ex. 335 ¶ 11 (Surety); Ex'. 337 ¶¶ 8-10 (Lanier Law). A number of consumers recall that they were asked to send the same documents and forms over and over again. See, e.g., id., Ex. 309 ¶¶ 29-30, 32 (Redstone DC); Ex. 328 ¶8 (consumer states that he spent over $100 faxing paperwork to Fortress DC); Ex. 334 ¶ 8 (Lanier Law as Fortress). Many consumers maintain that despite being led to believe that a lawyer would work on them case, they never spoke to a lawyer, were never given the name or contact information of a lawyer, or never saw anything to suggest that a lawyer had done any work for them. See, e.g., id., Ex, 322 ¶7 (Fortress DC); Ex. 324 ¶23 (Redstone DC); Ex. 325 ¶ 3 (Liberty & Trust); Ex. 333 ¶ 7 (Lanier Law as Redstone); Ex. 335 ¶ 12 (“We even asked for the name of the attorney when things were not- going well, but [Surety] would not give us the name.”); Ex. 337 ¶ 10 (Lanier Law). Some consumers contacted their lenders directly and were informed that the lender had not heard from or received the paperwork it needed from the entity the consumer believed he or she had hired. See id.,. Ex, 2 ¶ 9 (Fortress DC); Ex. 5 ¶ 6 (Fortress DC); Ex. 6 ¶ 5 (Lanier Law); Ex. 7 ¶ 11 (Fortress DC); Ex. 26 ¶ 9 (Lanier Law); Ex. 301 ¶ 13 (Lanier Law as Fortress); Ex. 326 ¶ 13 (Fortress DC); Ex. 328 ¶ 10 (Fortress DC).

Most of the consumer declarants assert that Defendants were unable to obtain any *1267modification on their behalf. See, e.g., id.; Ex. 317 ¶ 9 (Lanier Law); Ex. 321 ¶ 11 (Redstone DC); Ex. 322 ¶¶ 15-16 (Fortress DC); Ex. 325 ¶ 8,11 (Liberty & Trust); Ex. 335 ¶ 14 (Surety). Other consumers report that the Law Firm did obtain some modification, but not on the terms that the consumer was promised, and sometimes with a higher monthly payment than the consumer had previously been paying. See, e.g., id., Ex. 302 ¶¶ 12-16 (Fortress DC); Ex. 318 ¶ 18 (Redstone DC); Ex. 330 ¶¶ 11-13 (Fortress DC); Ex. 336 ¶6 (Fortress DC). Notably, several consumers state that although the Law Firm was .unable to obtain a modification, the consumer later obtained a loan modification after working directly with the bank or with the assistance of a different company. See id., Ex. 306 ¶ 12 (obtained loan modification through non-profit group after Lanier Law failed); Ex. 307 ¶ 15 (obtained loan modification through legal aid group after Red-stone DC failed); Ex. 313 ¶20 (obtained loan modification with a. different law group after Fortress DC failed); Ex. 318 ¶24 (obtained loan modification on her own after Redstone DC failed); Ex. 323 ¶ 11 (obtained loan modification with another company after Fortress DC failed). In his Response, Lanier maintains that records, “obtained by the FTC either at the immediate access or through discovery show that thou'sands of modifications were obtained in the course of these law firms’ defending the underlying foreclosures.” See Response at 6. However, Lanier does not specifically cite to any records supporting this contention. Id. Moreover, his assertion that “modifications were obtained,” does not indicate whether these were modifications that substantially reduced the consumer’s mortgage payment ■ and interest rate, in keeping with the representations made to consumers. Notably, neither Lanier Law nor the DC Entities present evidence of any consumer who received a loan modification substantially reducing their monthly payment or-'who otherwise was satisfied with Defendants’ services.33

According to many of the consumers, the Law Firms never provided them with any accounting, statement or invoice detailing the services provided for the money paid. See id., Ex. 306 ¶ 6 (Lanier Law); Ex. 313 ¶ 13 (Fortress DC); Ex. 314 ¶ 12 (Liberty & Trust); Ex. 326 ¶ 18 (requested but never received accounting from Fortress DC); Ex. 335 ¶ 13 (Surety). Consumers also report that they were never told *1268where the money was going, or whether it would be placed into a trust account. See, e.g., id., Ex. 305 ¶ 7 (Lanier Law); Ex. 307 ¶ 11 (Redstone DC); Ex. 308 ¶ 8 (Redstone DC); Ex. 337 ¶7 (Lanier Law). Several consumers asked for refunds and were ignored, denied, or refunded only a small portion of the money they paid. See, e.g., Ex. 305 ¶ 10 (Lanier Law refunded $900 of $3300 fee after consumer lost home in foreclosure); Ex. 306 ¶ 11 (Lanier Law told consumer that they do not give refunds); Ex. 309 ¶¶ 36-41 (Redstone DC); Ex. 313 ¶ 17 (Fortress DC); Ex. 335 ¶ 15 (Surety).

IV. Lanier Motion

In the Lanier Motion, Lanier appears to seek partial summary judgment not as to any one claim but as to the allegations in paragraphs 19, 24, 27, and 29 of the Amended Complaint which assert that consumers were promised that an attorney would represent them in seeking a loan modification or defending against foreclosure, but consumers did not actually receive any legal representation. See Lanier Motion at 6. Although unclear, the Court understands Lanier’s argument to be that the “of counsel” attorney in the respective state of each consumer, and not Lanier, is “solely responsible for whatever happens or fails to happen in a legal matter in his/her state.” See id. at 4. According to Lanier, “the Lanier Defendants had neither right nor duty to tell local of-counsel how to represent the clients in their outlying state.” Id. at 5. As such, Lanier moves for partial summary judgment to the extent the FTC suggests that Lanier is responsible for the lack of adequate legal representation. Id. at 2, 6, However, based on the evidence set forth above, this argument is without merit.

To the extent consumers were led to believe that an attorney would assist them in obtaining a loan modification, such representations were false when made. The Law Firms operated using a business model where “of counsel” attorneys had no substantive role in the loan modification process because the Law Firms rarely, if ever, referred clients to those attorneys to perform that function. Indeed, the “of counsel” attorneys report that it was Lanier who described to them them limited responsibilities, and Taylor recounts that Lanier instructed him that Taylor had no fiduciary relationship to the Law Firms’ clients. See Estrada Decl. ¶¶ 4-5; Roby Deck ¶ 5; Taylor Deck ¶¶ 4, 10. Lanier does not deny these statements. While the “of counsel” attorneys may not have exercised good judgment in agreeing to Lanier’s arrangement, these attorneys were unaware that consumers were being told that the “of counsel” attorneys represented them. Rather, the “of counsel” attorneys were led to believe that their sole function was document review, and they would be contacted if additional work was necessary. Indeed, it appears the Law Firms actually impeded contact between the “of counsel” attorneys and consumers. See FTC Motion, Ex. 335 ¶ 12 (consumer asked for the name of their attorney but Surety refused to tell them); Ex. 405 ¶ 4 (Lanier told of-counsel attorney he had no fiduciary relationship to the clients); Ex. 405 ¶ 10 (of counsel-attorney asked and was told no contact with client was necessary); see also, e.g., id., Ex. 400, Att. A (Of Counsel Agreement with provision prohibiting contact with client without express consent of Firm). The evidence before the Court is sufficient to establish that consumers were led to believe that they would have legal representation in the loan modification process and such statements were false or misleading, not because the “of counsel” attorneys failed to fulfill their re*1269sponsibilities, but because of the manner in which the Law Firms utilized their “of counsel network.” Accordingly, the Lanier Motion is due to be denied.

V. FTC Motion

A. Common Enterprise

The FTC contends that Lanier Law, the DC Entities, and Liberty & Trust operated as a common enterprise such that the Court should treat an act by one entity as an act by each entity comprising the common enterprise. See FTC Motion at 50-51. The FTC Act disregards separate corporate forms where “the structure, organization, and pattern of a business venture reveal a ‘common enterprise’ or a ‘maze’ of integrated business entities.” See F.T.C. v. Wash, Data Res., 856 F.Supp.2d 1247, 1271 (M.D.Fla.2012). “A ‘common enterprise’ operates if, for example, businesses (1) maintain officers and employees in common, (2) operate under common control, (3) share offices, (4) commingle funds, and (5) share advertising and marketing.” See id. at 1271; see also F.T.C. v. Direct Benefits Grp., LLC, No. 6:11-cv-1186-Orl-28TBS, 2013 WL 3771322, at *18 (M.D.Fla. July 18, 2013). Courts also consider “whether business is transacted through a maze of interrelated companies,” or whether there is “evidence which reveals that no real distinction existed between the [corporate [defendants.” See Direct Benefits Grp., LLC, 2013 WL 3771322, at *18 (internal quotation omitted). Significantly, this analysis is distinct from the alter ego inquiry, such that “ ‘[t]he entities formally may be separate corporationsf ] but operate as a common enterprise.’ ” Id. (quoting F.T.C. v. Grant Connect, LLC, 827 F.Supp.2d 1199, 1218 (D.Nev.2011) vacated in part on other grounds 763 F.3d 1094 (9th Cir.2014)).

The FTC presents ample undisputed evidence that Lanier Law, Redstone DC, Fortress DC, Surety, Liberty & Trust, as well as several third-party entities such as DOLMF, FURF, Safepoint, and Pinnacle, operated as a common enterprise. First, as to common control, Robles had an ownership interest in DOLMF, Pinnacle, Redstone DC, Fortress DC and Surety. Robles also served as the Operating Manger of Lanier Law, and concedes that he was in “control” of FURF as it was staffed by DOLMF. Rennick and Young both had ownership interests in Pinnacle, Redstone DC and Surety, and Young also owned Avanti Media which provided the Flyers used by FURF, DOLMF, Safe-point, and Surety to obtain business for both Lanier Law and the DC Entities. Lanier owns Lanier Law as well as Liberty & Trust, and briefly shared an ownership interest in Redstone DC. Lanier also utilized Pinnacle and DOLMF to provide staffing and enrollment services for Lanier Law, and conceded his supervisory authority over those entities to the Florida Bar. Although Lanier did not have a contractual ownership interest in the DC Entities, he managed the of-counsel attorney network for at least Redstone DC and Surety. In addition, emails in the record indicate that Rennick, Robles, Lanier and Young were all involved in the control and operations of the DC Entities, as well as Liberty & Trust. See Menjivar Deck, Att. U; FTC Motion, Ex. 29: Declaration of Evan Castillo (2nd Castillo Deck), Atts. K, L O, R; see also 2nd Supp. Liggins Deck, Att. KK (February 2014 email correspondence between Lanier and Jones regarding an issue with a Minnesota client in which Lanier mentions a meeting of the “partners,” after which “we will give further direction concerning our response” and later states “for the record we have and have never *1270had any other” Minnesota clients (emphasis added)). For example, several emails show coordination between Robles, Lanier, Rennick, Young and Jones regarding how to respond to various consumer complaints. See 2nd Supp. Liggins Deck, Att. FF (January 2014 email chain involving Lanier, Robles, Jones and Alexis Wrenn of Surety regarding a consumer complaint against Lanier); Att. GG (March 2014 email chain between Jones, Lanier, Robles and Pamela Thomas regarding a New Jersey investigation into a consumer complaint about Fortress DC);. Att. RR (October 2013 email chain with Young, Jones, Robles, Rennick, Lanier discussing a Connecticut investigation of a consumer complaint); Att. TT (September 2013 email chain with Young, Jones, Rennick, Robles, and Lanier regarding a subpoena from the Maryland Commissioner of Financial Regulation).

With respect to common officers and employees, because Pinnacle and DOLMF provided staffing for Lanier Law, FURF, and the DC Entities, these entities all have numerous employees in common. In the offices of Surety, Redstone DC, and Pinnacle, FTC investigators found documents listing companies and contact information for Pinnacle, Redstone DC, Surety, and Lanier Law, as well as an “Extension List” naming Chris Carvajal (Safepoint), Marshal Wills (Liberty & Trust case analyst), Wrenn (Redstone DC & Surety office manager), Rennick, and Michael Lanier. See Menjivar Deck ¶ 10, Atts. E, F; Lanier Dep. at 142. Another document found at that location lists the names and contact information for Redstone DC, Surety, Safepoint, Liberty & Trust, and Ameri-trust. See Menjivar Deck, Att. I. Many of the “of counsel” attorneys also report that they signed agreements with several of the Law Firms, moving from Lanier Law to the DC Entities. See, e.g., Dale Deck ¶ 5; FTC Motion, Ex. 403 ¶4 (asserting that she worked for Lanier Law, Fortress DC, Surety, and Redstone DC and explaining “I was told that these were all one firm, and that each one was acquiring the other or others”); see also 2nd Supp. Liggins Deck, Att. DD (list of “Attorney Network Addresses” with of-counsel attorneys for “Lanier/Surety/Fortress/Redstone”).

Pursuant to the email records, a Pinnacle employeej C.O. Jones, appears to have worked closely with Robles, Lanier, Ren-nick and Young on behalf of the DC Entities, as well as Liberty & Trust. The emails from Jones often refer to the DC Entities collectively, and include Robles, Rennick, Young, and Lanier in discussions about law firm business. See, e.g„ Menji-var Deck, Att. U; 2nd Castillo Deck, Att. AA, Att. O34; 2nd Supp. Liggins Deck, Att. TT. Indeed, Jones was involved in Liberty & Trust affairs as well. See Menjivar Deck, Att. U; 2nd Supp. Liggins Deck, Att. QQ (November 5, 2013 email from Lanier to CO Jones requesting that Jones “help create a FD and LM contract for my new [Fjlorida firm ... Liberty and Trust Law Group_”). This same email from Lanier forwards a flyer from Young at Avanti-Media and asks Jones to “take a look” with the statement “it’s still a draft, .but defensible or damn close I think.. ” See id., Att. *1271QQ. When Jones responded that he was having computer problems, Lanier forwarded the email chain to Robles to inquire about resolving Jones’ computer problems, adding “[w]e are wasting money-on him if his equipment sucks.. ” Id., Att. QQ.

Evidence of record reflects that Alexis Wrenn also worked for Pinnacle, Lanier Law, Redstone DC and Surety. See Ménji-var Deck ¶ 11, Att. II; Affidavit in Opposition (Doc. 19-2) ¶ 1; Affidavit in Opposition (Doc. 19-4) ¶ 1. Lyndi Spencer, who previously worked as a case manager for Red-stone DC, is the office manager of Liberty & Trust. See Lanier Dep. at 141. Notably, on March 3, 2014, Spencer received an email from Lanier at a Liberty & Trust address, but both before and after that time Spencer received emails from Wrenn at a Redstone email address. See 2nd Castillo Deck, Atts. J-L. On March 3Í, 2014, Spencer, at her Liberty & Trust email address, was copied on an email from a Redstone DC employee asking for assistance on a client matter, see id. Att. M, and on April 11, 2014, Spencer received an email at her Redstone address from another Redstone employee about the handling of a -client letter, id. Att. N. Lanier does not deny the overlap in employees, but maintains that these employees never worked for more than one Defendant at a time. See Lanier Response at 13. According to Lanier, he “never knowingly employed anyone who was simultaneously employed by another law firm.” Id. However, in light of Lanier’s reliance on staffing agencies such as Pinnacle and DOLMF, his statement that he never “employed” individuals working on behalf of another entity, does not rebut the evidence that Pinnacle and • DOLMF employees worked for several different entities at a time.

These entities also shared offices and office buildings. During the search of Defendants’ premises, FTC investigators found that Surety Law Group, Redstone Law Group, and Pinnacle Legal Services were operating out of several offices located on the first floor of Southpoint I at 6821 Southpoint Drive North, Jacksonville, Florida. See 2nd Castillo Deck ¶4. FTC investigators also found documents referencing Liberty & Trust and Lanier in the Surety, Redstone, and Pinnacle offices. See Menjivar Deck ¶ 10, Within the same office complex, and next to Southpoint I, Michael Lanier had an office in Southpoint II, 4110 Southpoint Blvd., Jacksonville, Florida, which operated as the office of Liberty & Trust. Id. ¶¶ 3, 6. In addition, an address list found during the investigation of these premises lists an “E & P Center” for Safepoint at the 6821 Southpoint Drive North address, and a “Processing Center” for Ameritrust at the 4110 Southpoint Blvd. address. See 2nd Castillo Deck, Att. A. Moreover, the records of the D.C. Department of Consumer Regulatory Affairs list the business address for both Surety and Fortress DC as 1629 K Street NW, Suite 300, Washington, DC 20006. See Lig-gins Deck, Att. M, N.

The Law Offices of Michael W. Lanier operated from Jacksonville, Florida addresses at 4720 Salisbury Rd, Suite 100 and 4237 Salisbury Rd., Suite 111. See Castillo Deck, Att. F. Albeit under different suite numbers, FURF and the Vanguard Law Group used a 4720 Salisbury Road address, and- the 4237 Salisbury Road address is connected in documents -to DOLMF and Fortress DC. See FTC Motion, Ex. 5, Att. A (FURF at 4720- Salisbury Rd. # 108), Ex. 311, Att. A (DOLMF at 4237 Salisbury Rd, Suite 103), Ex. 7 at 10 (Fortress DC Enrollment & Processing Center at 4237- Salisbury Rd, Suite 108); *1272Menjivar Decl., Att. FF (Vanguard client agreement with 4720 Salisbury Rd address); Declaration of Edward W. Buttner IV (Doc. 26) ¶¶ 4-6 (stating that he leased a two-room second floor office at 4237 Salisbury Road to Lanier, and, at the same time, a multi-office suite on the first floor to Robles). In addition, Lanier admitted in his Guilty Plea with the Florida Bar that DOLMF and Pinnacle shared an office with Lanier Law. See Guilty Plea at 2 (“Records show that at one time Robles’ Pinnacle Legal Services and the Department of Loss Mitigation shared an address and a phone number with [Lanier’s] law office.”).

The FTC also presents evidence that the entities shared advertising and commingled funds. Most notably, as recounted above, the Economic Stimulus Flyer was sent by DOLMF, FURF, Safepoint and Surety. Lanier Law and the DC Entities all obtained clients who were solicited through the use of this Flyer. In addition, both Lanier Law and Fortress DC utilized a similar “HRP/HBP Acceptance” or “HRP/HBP Approval” letter to solicit consumers to retain their services. See FTC Motion, Ex. 7, Att. A; Ex. 17, Att. C. Lanier Law and the DC Entities also utilized virtually identical “of-counsel” agreements, and Lanier Law, the DC Entities, and Liberty & Trust used client agreements which were substantially similar in both content and appearance. Moreover, unrebutted ' evidence demonstrates the transfer of funds between these entities. For example, bank records for Lanier Law d/b/a Redstone and Lanier Law d/b/a Fortress accounts reflect deposits into these accounts for several months after Lanier supposedly stopped accepting new clients and transferred his business to the DC Entities. See FTC Motion, Ex. 27: Declaration of Evan Castillo (Doc. 39-2; 1st Castillo Decl.) ¶¶ 4-5 (asserting that deposits for Redstone appear in a Lanier d/b/a Redstone bank account until August 8, 2013, and that deposits for Fortress appear in a Lanier d/b/a Fortress bank account until November 4, 2013); Lanier Dep. at 68-69 (stating that he transferred his practice to the D.C. law firms in October 2012); Lanier Decl. ¶¶ 11-12 (stating that Lanier d/b/a Redstone, and Lanier d/b/a Fortress stopped accepting new clients in August 2012 and October 2012 respectively). The FTC also examined bank records belonging to Fortress DC, with Robles as the authorized signatory, which showed significant transfers to Surety as well as DOLMF. See 1st Castillo Decl. ¶¶7-10. Bank records also reveal numerous transfers of funds between Red-stone DC bank accounts and Surety bank accounts, transfers between Redstone DC and Ameritrust, transfers from Pinnacle to Redstone DC, as well as transfers to Surety from Fortress DC, and from Surety to DOLMF and Pinnacle. See Menjivar Decl., Att. PP (Redstone DC bank account statements from June 1, 2014, to June 30, 2014), Att. QQ (Surety bank account statements from June 1,2014, to June 30, 2014).

As such, the FTC presents sufficient evidence as to each factor considered in the common enterprise analysis to establish that Lanier Law, the DC Entities, and Liberty & Trust, as well as third-parties DOLMF, FURF, Pinnacle, Safe-point, Ameritrust, Vanguard, and others, were operating as a single common enterprise controlled primarily by Rennick, Robles, Lanier and Young. Moreover, looking at “the pattern and frame-work of the whole enterprise,” see Direct Benefits Grp., LLC, 2013 WL 3771322, at *18, these entities operated together, as a maze of interrelated companies, to solicit consumers through a mail campaign *1273(Avanti Media), answer calls and enroll consumers using similar sales tactics and client agreements (FURF, DOLMF, Safe-point), and provide consumers with some level of foreclosure defense services (Pinnacle and the Law Firms). Likewise, Lanier Law and the DC Entities utilized the same model to structure themselves as law firms through the use of “of counsel” attorney agreements and nominal attorney members.

Lanier maintains that he had no part in any common enterprise primarily because he did not intend to form a common enterprise with the DC Entities, and because he was not a principal or authorized representative of any of the DC Entities. See Lanier Response at 7-13. However, even accepting Lanier’s representations as true, the intent of the principals is not one of the factors courts consider in conducting a common enterprise analysis, and Lanier presents no authority for the proposition that intent is necessary. Indeed, a common enterprise may exist even when businesses are structured as separate corporate entities. See Direct Benefits Grp., LLC, 2013 WL 3771322, at *18. Regardless of whether Lanier had any official relationship to the DC Entities, he concedes that he transferred Lanier Law’s foreclosure defense operations to the DC Entities after the Florida Bar began its investigation, he does not dispute that he continued to manage the of-counsel attorney network for Redstone DC and Surety, he allowed those entities, managed by his “friends,” to use his merchant account portals to process consumer payments, and he continued to be actively involved in their management. During this same time, Lanier operated Liberty & Trust with a similar business model, providing the same type of foreclosure defense services to Florida consumers, utilizing substantially similar client agreements, and involving the employees or former employees of Pinnacle and Redstone DC. As the email records make clear, Robles, Lanier, Young and Rennick managed these entities together, with the assistance of C.O. Jones, Pamela Thomas, and Alexis Wrenn, among others, as a singular operation with multiple component parts. While each of the businesses and individuals involved may have had separate roles to play, consumers were solicited, enrolled, and processed through one common enterprise. Accordingly, the Court determines that Lanier Law, the DC Entities, and Liberty & Trust are responsible for the acts of each entity comprising the common enterprise, including FURF, DOLMF, Pinnacle, and Safepoint. See Wash. Data Res., 856 F.Supp.2d at 1272.

B. Counts I & II-Section 5.of the FTC . Act, 15 U.S.C. § 45(a)

Section 5 of the Federal Trade Commission Act (FTCA), 15 Ú.S.C. § 45, prohibits “[ujnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce .... ” See 15 U.S.C. § 45(a)(1). The unfair or deceptive acts forbidden under this statute include “Misrepresentations of material facts made for the purpose of inducing consumers to purchase services .... ” See F.T.C. v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir.1988) (internal quotation omitted). To demonstrate such a violation, “the FTC must establish that (1) there was a representation; (2) the representation was likely to mislead customers acting reasonably under the circumstances, and (3) the representation was material.” See F.T.C. v. Tashman, 318 F.3d 1273, 1277 (11th Cir.2003) (citing World Travel Vaca*1274tion Brokers, 861 F.2d at 1029). “A representation is material if likely relied upon by a reasonable - prospective purchaser.” Wash. Data Res., 856 F.Supp.2d at 1272. “An express claim used to induce the purchase of a service is presumed material.” Id. at 1273. “Rather than an isolated word, phrase, or sentence, the representation’s ‘net impression’ controls.” Id. Moreover, a “tendency to deceive” is all that is required, such that proof of actual consumer deception is unnecessary. Id. Additionally, “consumer interpretation informs whether a communication was deceptive.” Id.

Plainly, members of the common enterprise made numerous misrepresentations to consumers. Even setting aside those statements which a Defendant with personal knowledge specifically denied, the consumer declarations are replete with evidence of promises and guarantees regarding substantial modifications to a consumer’s loan, including reductions in the payment, interest rate, and principal balance, as well as representations about the success rates of the Law Firm. Perhaps the most egregious example of deceptive conduct by Lanier Law and the DC Entities is the use of the Economic Stimulus Flyer described above. This solicitation is clearly misleading in that it is titled a “Payment Reduction” or “Mortgage Relief’ Notification, references an “Economic Stimulus,” and is designed to appear as an official notice from the government.- The Flyer, is addressed directly to the consumer, identifies his specific property, and informs the consumer that he is eligible or prequalified for “an Economic Advantage Payment or Principle Reduction Program,” referencing the use of “Government Insured Funds.” Although the Flyer disclaims any affiliation with the government, the consumer is left with the impression that a non-profit organization has determined that he is eligible for government assistance with his mortgage, and the consumer need only complete a registration process to receive this assistance. As such, everything about. this Flyer is deceptive and misleading. Members of the common enterprise also convinced consumers to use their services by telling them they had been accepted into a special “program,” for example, some consumers received a letter titled “HRP/HBP Approval” which congratulated the consumer on being “approved for the Homeowner Retention Program (HRP) and the Homeowner Bailout Program (HBP) offered through Fortress Law Group.” See FTC Motion, Ex. 21 at 17. With respect to Count II, employees of the common enterprise persuaded consumers to retain the services of these Law Firms by-explaining that the Firm would be able to obtain a loan modification for the consumer by auditing his or her loan documents for mistakes. See, e,g„ FTC Motion, Ex. 22 ¶ 6 (“Fortress told me that [the] bank would be required to modify the loan because they would be at fault if there were errors in the documents.”), Ex. 324 ¶8 (“[Red-stone representative] explained that Red-stone would audit my loan documents for mistakes, and this would scare my mortgage company. He said that my mortgage company would know that they had done something wrong, and I would be able to get a modification that included a reduction-in the amount owed.”). Some versions of the client agreements also reference the use of these audits in the negotiation process. However, consumers report that they never received any audit, were told the audit had revealed no errors, or that the audit had shown errors but the lender had nonetheless refused to negotiate. See, e.g., FTC Motion, Ex. 13 ¶¶ 9-10 (consum*1275er was told Surety found 19 violations in the audit but bank nonetheless denied modification); Ex. 25 ¶ 8 (Redstone told consumer they found no errors in the documents, and consumer asked for “proof that they had done the review so that I could see that they found nothing. But they put me off and never sent me anything.”).

The Court has no difficulty concluding that these promises and guarantees, used to induce consumers to retain a Law Firm’s services, were material and misleading. Indeed, although actual deception is not required, the FTC presents ample evidence that consumers were convinced that the Law Firms, through the use of audits or otherwise, would succeed in obtaining a loan modification, and that the modification would substantially reduce their payments and interest rates. However, after paying a Law Firm thousands of dollars, often in lieu of paying their lender, consumers were denied loan modifications or were given modifications on terms far different than the ones they were promised. In his Response, Lanier states “here under oath that, to the best of my knowledge, every one of my clients received adequate representation which met or exceeded the appropriate standard of care.” See Lanier Response at 21. However, even if true, this does not undermine or contradict the FTC’s evidence that numerous consumers were initially induced to hire Lanier on the basis of misrepresentations. See F.T.C. v. IAB Mktg. Assocs., LP, 746 F.3d 1228, 1233 (11th Cir.2014) (rejecting argument that defendant’s products offered significant value to consumers, explaining “[p]erhaps this is so, but liability for deceptive sales practice does not require that the underlying product be worthless”); see also Tashman, 318 F.3d at 1277 (“[N]o one doubts the utility of phone cards or claims that the product is a scam; all that is at issue are the statements made by the defendants.”). For the same reason, Lanier’s reliance on the Greer and Moran case notes and insistence that Liberty & Trust properly performed services for those consumers is misplaced in light of the misrepresentations that were made to the consumers to induce them to hire Liberty & Trust in the first instance.

To the extent the Lanier and Fortress Defendants rely on the disclaimers contained in their client agreements to argue that consumers were not misled, this argument is unavailing. Defendants provide no authority to support the proposition that a defendant can cure an initial misrepresentation by subsequently issuing a disclaimer, and binding authority suggests to the contrary. See IAB Mktg. Assocs., LP, 746 F.3d at 1233. Regardless, even if disclaimers can be sufficient in some circumstances, no reasonable juror could conclude that the. few statements here, buried in lengthy paperwork, changed the misleading net impression given to consumers through the persistent oral misrepresentations of the sales agents. See Wash. Data Res., 856 F.Supp.2d at 1274-75. Indeed, given the numerous consumers who received and signed the contracts containing the disclaimers, but were nevertheless under the impression that the Law Firms would definitely obtain a substantial loan modification on their behalf, that an attorney would represent them in court, or that they should continue to pay the Law Firm instead of their mortgage, the Court readily concludes that the handful of written disclaimers were simply, too little and too late to change the deceptive net impression. Accordingly, the Court finds that summary judgment is due to be granted in favor of *1276the FTC and against Lanier Law, Fortress DC, and Liberty & Trust on Counts I and II of the Amended Complaint.35

C. Counts III, IV, & V-Regulation O, 12 C.F.R. §§ 1015.3, 1015.4, 1015.5

Counts III, IV and V of the Amended Complaint are premised on violations of 16 C.F.R. Part 322 (the MARS Rule), recodified at 12 C.F.R. Part 1015 (Regulation 0). Failure to comply with these rules and regulations constitutes an unfair or deceptive act or practice in violation of § 5(a) of the FTC Act. See 12 U.S.C. § 5538(a)(1); 15 U.S.C. § 57a(d)(3). Here, the FTC asserts that Defendants violated the prohibition on advance payments set forth in 12 C.F.R. § 1015.5(a), made material misrepresentations regarding their services in violation of 12 C.F.R. § 1015.3(b)(1), and failed to make certain disclosures in their general communications, as well as in their consumer-specific communications, as required by 12 C.F.R. § 1015.4. The Lanier and Fortress Defendants contend that the FTC is not entitled to summary judgment on these Counts because Defendants are exempt from the requirements of Regulation O pursuant to the exemption for attorneys codified at 12 C.F.R. § 1015.7. See Lanier Response at 6, 14-18; Fortress Response at 1-2. The Lanier Defendants further assert that Regulation O cannot be validly applied to licensed attorneys engaged in the practice of law, and thus, may not be enforced against the Lanier Defendants. See generally Lanier Supplement.

Setting aside the issue of the attorney exemption, the Court observes that there is ample undisputed evidence that Defendants did not comply with the requirements of Regulation O. Specifically, as to Count III, it is a violation of Regulation O, 12 C.F.R. § 1015.5(a), for any mortgage assistance relief service provider36 to:

(a) Request or receive payment of any fee or other consideration until the con*1277sumer has executed a written agreement between the consumer and the consumer’s dwelling loan holder or servicer incorporating the offer of mortgage assistance relief the provider obtained from the consumer’s dwelling loan holder or servicer.

See 12 C.F.R. § 101.5.5(a) (Advance Fee Prohibition). Defendants squarely fall within the definition of a MARS provider as businesses offering, or arranging for others to provide, mortgage assistance relief services, such as preventing or postponing foreclosure, and negotiating or obtaining loan modifications, among other things. The consumer declarations, as well as the client agreements, establish that Defendants demanded and received fees for their services prior to performing any work, and certainly before the consumer and his or her mortgage-holder executed any loan modification agreement. Indeed, Defendants were frequently paid for their services despite never obtaining any mortgage assistance relief on behalf of a consumer. Defendants do not dispute their use of advance payments.

With respect to Count IV, § 1015.3(b)(1) prohibits any MARS provider from “[misrepresenting, expressly or by implication, any material aspect of any mortgage assistance relief service, including but not limited to: (1) The likelihood of negotiating, obtaining, or arranging any represented service or result, such as those set forth in the definition of Mortgage Assistance Relief Service in § 1015.2.” See 12 C.F.R. § 1015.3(b)(1). As discussed at length with respect to Count I, members of the common enterprise, including representatives of Lanier Law, Fortress DC, and Liberty & Trust, made numerous misrepresentations regarding the likelihood of obtaining a loan modification, especially with respect to reductions in monthly payments, interest rates, and principal balances.

In Count V, the FTC alleges that Defendants violated § 1015.4 by failing to make certain required disclosures, or failing to make those disclosures in a clear and prominent manner. See Amended Complaint at 16-17. As relevant here, “in every general commercial communication for any mortgage assistance relief service,” Regulation O requires that a MARS provider include:

(1) “[Name of Company]” is not associated with the government, and our service is not approved by the government or your lender.”

(2) In cases where the mortgage assistance relief service provider has represented expressly or by implication, that consumers will receive any service or result [constituting a mortgage assistance relief service], “Even if you accept this offer and use our service, your lender may not agree to change your loan.”

12 C.F.R. § 1015.4(a)(1) and (a)(2). The Regulation requires that these disclosures be made “in a clear and prominent manner,” and—

(i) In textual communications the disclosures must appear together and be preceded by the heading “IMPORTANT NOTICE,” which must be in bold face font that is two point-type larger than the font size of the required disclosures; and

(ii) In communications disseminated orally or through audible means, wholly or in part, the audio component of the required disclosures must be preceded *1278by the statement “Before using this service, consider the following information.”

12 C.F.R. § 1015.4(a)(3). With respect to “all consumer-specific commercial communications,” Regulation 0 requires, in pertinent part, the same disclosures set forth above, as well as the additional disclosures that:

(1) “You may stop doing business with us at any time. You may accept or reject the offer of mortgage assistance we obtain from your lender [or servicer]. If you reject the offer, you do not have to pay us. If you accept the offer, you will have to pay us (insert amount or method for calculating the amount) for our services.” For the purposes of this paragraph (b)(1), the amount “you will have to pay” shall consist of the total amount the consumer must pay to purchase, receive, and use all of the mortgage assistance relief services that are the subject of the sales offer, including, but not limited to, all fees and charges.

12 C.F.R. § 1015.4(b)(1) — (3). These disclosures must be made in the same “clear and prominent manner” that is required for general commercial communications, with the added requirement that in telephone communications the disclosures “must be made at the beginning of the call.” See 12 C.F.R. § 1015.4(b)(4). In addition, Regulation 0 mandates an additional disclosure, in both general and consumer-specific communications, if the MARS provider has represented that the consumer should temporarily or permanently discontinue mortgage payments. Id. § 1015.4(c). In such circumstances, the MARS provider must clearly and prominently state, in close proximity to the representation, that: “ ‘If you stop paying your mortgage, you could lose your home and damage your credit rating.’ ” Id.

With respect to general communications, the FTC presents evidence regarding the content of the website for Redstone DC. See Liggins Decl., Att. II (Redstone DC website). The website fails to include any disclaimer that Redstone DC “is not associated with the government, and our service is not approved by the government or your lender.” See id.; 12 C.F.R. § 1015.4(a)(1). As to consumer-specific communications, Defendants mailed the Economic Stimulus Flyer to consumers offering mortgage assistance relief services, and this Flyer undeniably fails to comply with the requirements of Regulation O. For example, a 2012 version of the Flyer failed to include the disclaimers listed in 12 C.F.R. § 1015.4(b)(1) or (3). See FTC Motion, Ex. 17, Att. A. Additionally, although the Flyer states that “Our organization is independent of all government agencies and departments,” as well as noting in fine print that “This product or service has not been approved by any government agency and this offer is not being made by any agency of the government,” id. these disclaimers are not made in a “clear and prominent manner,” with the requisite “IMPORTANT NOTICE” header, and do not include a statement that the service is not approved by the lender. See 12 C.F.R. § 1015.4(b)(2). Although Defendants modified the language in the Economic Stimulus Flyer over the years, even the 2014 version of the Flyer found in Defendants’ offices still fails to make the disclosures mandated by the Regulation. See 2nd Suppl. Liggins Decl., Att. BB.

Likewise, none of the Law Firms’ client agreements fully comply with the requirements of Regulation O. For example, a Lanier Law client agreement from May of 2012 includes none of the required disclaimers. See FTC Motion, Ex. 21, Att. A. The agreement does include similar dis*1279claimers against any guarantees and cautions against missing mortgage payments, but those disclaimers do not use the mandated language, are not preceded by the heading “IMPORTANT NOTICE,” and are not made in a “clear and prominent” manner within the meaning of the regulation. Id., Ex. 21, Att. A; 12 C.F.R. § 1015.2 (defining - “clear and prominent”), § 1015.4(b)(3)-(c). Although Defendants modified their client agreements over time, even the most recent versions of the client agreements still fail to include all requisite disclosures, and the disclaimers, that, are present are not made in the required format. See FTC Motion, Exs. 321 at 17 (2014 Redstone contract with disclaimers made in uniform font type within body of a paragraph and no statement that if consumer rejects modification offer, he does not have to pay Redstone); Ex, 325 at 9 (2014 Liberty & Trust contract with § 1015(b)(l)-(3) disclaimers made in uniform font type within body of a paragraph, § 1015(c) disclaimer bold and underlined, and no statement that, if consumer rejects modification offer, he does not have to pay Liberty & Trust); Ex. 326, Att. A (2014 Fortress DC contract with none of the required disclaimers).

In light of the foregoing, the evidence establishes that the Law Firms failed to comply with the cited provisions of Regulation O. However, the Lanier and Fortress Defendants maintain that because they offered these services in concert with a nationwide network of licensed attorneys engaged in the practice of law, they are exempt from the requirements of Regulation O. Specifically, pursuant to § 1015.7(a):

[a]n attorney is exempt from [Regulation O], with the exception of § 1015.5 [Advanced Fee Prohibition], if the attorney:

(1) Provides mortgage assistance relief services as part of the practice of law;

(2) Is licensed to practice law in the state in which the consumer for whom the attorney is providing mortgage assistance relief services resides or in which the consumer’s dwelling is located; and

(3) Complies with state laws and regulations that cover the same type of conduct the rule requires.

12 C.F.R. § 1015.7(a). An attorney is also exempt from the Advance Fee Prohibition, if he or she satisfies the above requirements, and:

(1) Deposits any funds received from the consumer prior to performing legal services in a client trust account; and

(2) Complies with all state laws and regulations, including licensing regulations, applicable to client trust accounts.

See 12 C.F.R. § 1015.7(b). The FTC maintains that Defendants are not exempt because the exemption applies only to individual attorneys, not to law firms, see FTC Motion at 39, and the conduct of the attorneys involved does not fall within the parameters of the exemption, id. at 40-47. The Fortress Defendants contend that there are issues of fact regarding who is entitled to the benefit of the exemption, and whether Defendants were offering mortgage relief services as part of the “practice of law.” See Fortress Response at 2-5. In addition, these-Defendants contend that “Plaintiff has failed to provide evidence that each attorney failed to comply with state laws and regulation[s] that cover the same type of conduct the rule requires,” such that “a genuine issue of material fact exists.” Id. at 5. The Lanier *1280Defendants argue that their services fall within the exemption due to the involvement of the “of counsel” attorneys. See Lanier Response at 14. Although those attorneys provided “limited scope representation,” the Lanier Defendants maintain that the work they did on behalf of consumers constitutes the “practice of law.” Id. at 15-16. According to the Lanier Defendants, any failing in the legal representation provided to a consumer is the fault of the “of-counsel” attorney because he or she “is the only firm member entitled to practice law in her state.” Id. at 16. In the Lanier Supplement, the Lanier Defendants further maintain that to the extent the exemption is contingent on an attorney’s compliance with state laws and regulations, as well as the use of a client trust account, these provisions of the Regulation are invalid in that they exceed the rulemaking authority given to the agency under the statute. See Lanier Supplement at 3.

To determine whether the exemption applies, the Court first considers whether the challenged portions of the Regulation are invalid. In support of this argument, Lanier relies on the non-binding decision in Consumer Finance Protection Bureau v. Mortgage Law Group, LLP, 157 F.Supp.3d 813, 2016 WL 183712 (W.D.Wis. Jan. 14, 2016). In Mortgage Law Group, the court found that the Consumer Finance Protection Bureau (CFPB) “exceeded its rulemaking authority in promulgating subsections (a)(3) and (b) of § 1015.7, related to attorneys’ compliance with various state laws and regulations.” See Mortg. Law Grp., 157 F.Supp.3d at 826, 2016 WL 183712, at *10. The court observed that when Congress passed the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010, Pub. L. 111-203 § 1097, 124 Stat. 1376 (July 21, 2010) (the Consumer Protection Act), which created the CFPB, it specifically excluded the practice of law from the CFPB’s supervisory or enforcement authority. Id. at 819-20, 2016 WL 183712, at *5; see 12 U.S.C. § 5517(e)(1) (“[T]he Bureau may not exercise any supervisory or enforcement authority with respect to an activity-engaged in by an attorney as part of the practice of law under the laws of a State in which the attorney is licensed to practice law.”). However, the Consumer Protection Act included a significant “existing authority” exception to this practice of law exclusion which states that the'exclusion “shall not be construed so as to limit the authority of the Bureau with respect to any attorney, to the extent that such attorney is otherwise subject to any of the enumerated laws or the authorities transferred under subtitle F or H.” See 12 U.S.C. § 5517(e)(3). As relevant here, one of “the authorities transferred under subtitle F” was the authority of the FTC to prescribe rules under certain enumerated consumer laws, defined to include § 626 of the Omnibus Appropriations Act, 2009 (2009 Omnibus Act). See 12 U.S.C. §§ 5481(12)(Q), 5581(b)(5)(A). Thus, the practice of law exclusion shall not be construed to limit the CFPB’s authority to prescribe' rules under § 626 of the 2009 Omnibus Act with respect to any attorney, to the extent attorneys were otherwise subject to that law. Cf. Consumer Fin. Prot. Bureau v. Frederick J. Hanna & Assocs., P.C., 114 F.Supp.3d 1342, 1351 (N.D.Ga.2015) (stating that the practice of law exclusion does not apply to FDCPA claims pursuant to the § 5517(e)(3) exception because the FDCPA is an enumerated consumer law).

Section 626 of the 2009 Omnibus Act, as amended by the Credit Card Accountability Responsibility and Disclosure Act of *12812009, PL 111-24, § 511(a)(1)(B), 123 Stat. 1734, 1763-64 (May 22, 2009), directed the FTC to “initiate a rulemaking proceeding with respect to mortgage loans,” and instructed that “[s]uch rulemaking shall relate to unfair or deceptive acts or practices regarding mortgage loans, which may include unfair or deceptive acts or practices involving loan modification and foreclosure rescue services.” See 2009 Omnibus Act, PL 111-8, § 626(a)(1) as amended by Credit Card Act of 2009, PL 111-24, § 511(a)(1)(B). The law states that this grant of authority “shall not be construed to authorize the [FTC] to promulgate a rule with respect to an entity that is not subject to enforcement” of the FTC Act. Id. With limited exceptions, entities subject to enforcement of the FTC Act are “persons, partnerships or corporations,” including companies or associations, incorporated or unincorporated. See 15 U.S.C. §§ 44, 45(a)(2). Although the FTC Act does include a list of entities specifically excluded from its purview, this list does not mention attorneys or otherwise refer to the practice of law. See 15 U.S.C. § 45(a)(2). Pursuant to that authority, the FTC promulgated the Mortgage Assistance Relief Services (MARS) Rule, 16 C.F.R. part 322. The MARS Rule contained the same attorney exemption at issue here. See 16 C.F.R, § 322.7 (eff. Dec. 29, 2010).

In 2010, the Consumer Protection Act amended the language of § 626 of the 2009 Omnibus Act in pertinent part to provide as follows:

(a)(1) The Bureau of Consumer Financial Protection shall have authority to prescribe rules with respect to mortgage loans in accordance with section 553 of title 5, United States Code. Such rule-making shall relate to unfair or deceptive acts or practices regarding mortgage loans, which may include unfair or deceptive acts or practices involving loan modification and foreclosure rescue services. Any violation of a rule prescribed under this paragraph shall be treated as a violation of a rule prohibiting unfair, deceptive, or abusive acts or practices under the Consumer Financial Protection Act of 2010 and a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. § 57a) regarding unfair or deceptive acts or practices.

(2) The Bureau of Consumer Financial Protection shall enforce the rules issued under paragraph (1) in the same manner, by the same means, and with the same jurisdiction, powers, and duties, as though all applicable terms and provisions of the Consumer Financial Protection Act of 2010 were incorporated into and made part of this subsection.

(3) Subject to subtitle B of the Consumer Financial Protection Act of 2010, the Federal Trade Commission shall enforce the rules issued under paragraph (1), in the same manner, by the same means, and with the same jurisdiction, as -though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made part of this section.

See Consumer Protection Act, PL 111-203, § 1097, 124 Stat. at 2102. The Act explicitly provided that “[t]he [CFPB] shall have all powers and duties under the enumerated consumer laws [including § 626] to prescribe rules, issue guidelines, or to conduct studies or issue reports mandated by such laws, that were vested in the Federal Trade Commission on the day before the designated transfer date.” 12 U.S.C. § 5581(b)(5)(B)(i). Following this transfer *1282of - authority, the CFPB republished the MARS Rules as Regulation 0, effective December 30, 2011, and the FTC thereafter rescinded its version of the rules. See 12 C.F.R. § 1015.1; Rescission of Rules, 77 FR 22200-01, 2012 WL 1228063 (Apr. 13, 2012). Because the existing authority exception excepts § 626 of the 2009 Omnibus Act from the practice of law' exclusion, the CFPB’s authority to prescribe and enforce Regulation O against attorneys is not limited by that exclusion. See 12 U.S.C. § 5517(e)(3).37 Thus, just as the FTC properly exercised its authority under the 2009 Omnibus Act in promulgating the MARS Rules and attorney exemption, the CFPB had that same authority to reissue those rules as Regulation O.

Despite this grant of authority, Mortgage Law Group holds that the CFPB was not authorized to regulate attorneys engaged in the practice of law. In that case, the court reasoned that “[i]nterpreting the exception in § 5517(e)(3) as granting plaintiff authority to regulate an attorney’s professional conduct violates the clear mandate against regulating attorneys - engaged in the practice of law.” See Mortg. Law Grp., 157 F.Supp.3d at 824-25, 2016 WL 183712 at *9. However, the “clear mandate against regulating attorneys engaged in the practice of law,” is the precise “mandate” to which the existing authority exception is directed. The court offers no other explanation for the purpose of this exception. Notably, Mortgage Law Group acknowledges that the CFPB’s “authority to regulate attorneys under this exception depends on the authority that the [FTC] had to regulate attorneys under the Omnibus Act,” see id. at 824, 2016 WL 183712, at *6, and recognizes that the FTC Act does not exclude attorneys from the FTC’s jurisdiction. Id. at 823-24, 2016 WL 183712, at *8. Nevertheless, the court determined that Congress did not intend for the FTC or the CFPB “to act as a federal version of the state bar authorities.” Id. at 825, 2016 WL 183712, at *10. However, the court cites no authority to support its apparent conclusion that the FTC was not authorized to apply the MARS Rule to attorneys engaged in the practice of law. The practice of law exclusion in the Consumer Protection Act to which the court gives such great deference is not present in the FTC Act, nor § 626 of the 2009 Omnibus Act. Thus, it is unclear how the existence of that exclusion affects the meaning of those laws, or the authority the FTC had to promulgate the MARS Rules from which the CFPB’s authority is derived. ■

At its crux, the analysis in Mortgage Law Group is driven by the principle that the practice of law is traditionally regulated by the states. See id. at-, 2016 WL 183712, at *10. . For this reason, the court determined that-attorneys providing mortgage assistance relief services as part of the practice of law, who are licensed in the state where the consumer resides, are exempt from Regulation O. See Consumer Fin. Prot. Bureau v. Mortg. Law Grp., LLP, 182 F.Supp.3d 890, 896-97, 2016 WL 1611385, at *5 (WD.Wis. Apr. 21, 2016). In finding that the CFPB cannot *1283make this exemption contingent on an attorney’s compliance with state rules and regulations, the court explains that it would “not be reasonable to assume that either [the FTC or the CFPB] could or should perform” the function of a state bar association. See Mortg. Law. Grp., LLP, 157 F.Supp.3d at 825, 2016 WL 183712, at *10. However, this Court does not agree that requiring an attorney to comply with state laws and regulations, to which he is already subject, before he may claim an exemption to a Regulation designed to protect consumers from deceptive conduct constitutes “regulating the general professional conduct of attorneys.” M. Aside from MARS-speeific requirements, Regulation 0 does not impose new .professional rules or responsibilities on attorneys, and neither the CFPB nor the FTC seek to punish violations of the state laws or rules.38 Regardless, even to the extent Regulation 0 does govern, the practice of law, this is not inherently problematic given that the “federal government, with the United States Supreme Court’s approval, has historically regulated some aspects of the practice of law.” See Frederick J. Hanna & Assocs., 114 F.Supp.3d at 1358. For example, the Supreme Court has held that “lawyers engaged in litigation, who' are also debt collectors, must still comply with terms of the Fair Debt Collection Practices Act.” Id. (collecting cases) (citing Heintz v. Jenkins, 514 U.S. 291, 295-97, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995)). Thus, the Court is not persuaded by the reasoning in Mortgage Law Group that “it would not be reasonable to assume” that the FTC or CFPB could or should regulate the practice of law. See Mortgage Law Group, 157 F.Supp.3d at 825-26, 2016 WL 183712, at *10. Rather, pursuant to the express terms of the statute, the Court finds that Congress provided the CFPB with the authority to enact Regulation O, including its application to attorneys engaged in the practice of law, and as such, § 1015.7(a)(3) and (b) of the attorney exemption were validly issued and the FTC may enforce these provisions against Defendants here.

The Court next considers whether Defendants are entitled to protection under Regulation O’s attorney exemption. The parties dispute whether the attorney exemption covers only individual attorneys, or may be extended to the Law Firms. See FTC Motion at 38; Fortress Response at 1-2. In addition, the parties disagree on whether the “of counsel” attorneys were engaged in the practice of law, see FTC Motion at 46-47; Fortress Response at 2-3; Lanier Response at 14-16, and whether they complied with the applicable state laws and regulations. See FTC Motion at 46-47; Fortress Response at 5; Lanier Response at 14-17.39 With respect to the “of counsel” attorneys, the Court is *1284exceedingly skeptical that the superficial work given to these attorneys constitutes the “practice of law” by any definition, even under the “limited scope” model on which Lanier relies. Moreover, if these attorneys were providing some form of legal representation to the “clients” of La-nier Law and the DC Entities, it is particularly problematic that the clients were largely unaware of even the name of their supposed attorney, much less any work that this attorney purportedly performed on their behalf. Most consumers report never speaking to or otherwise communicating with any attorney at all, and the “of counsel” attorneys, for their part, were unaware that the Law Firms led consumers to believe that the attorney was his or her counsel. The Court cannot conceive of any state rules of professionalism which would permit the practice of law where no communication between any attorney and the client occurs whatsoever. While Lanier blames any “default in legal representation” on the “of counsel” attorney, see Lanier Response at 16, even if true, the failure of the “of counsel” attorney to comply with state regulations as required by the exemption prevents Lanier Law and the DC Entities from using these attorneys as the basis for claiming the attorney exemption.

Regardless of the role played by the “of counsel” attorneys, the Law Firms cannot qualify for the exemption because they failed to comply with the “state laws and regulations that cover the same type of conduct the rule requires.” See 12 C.F.R. § 1015.7(a)(3). State professional regulations uniformly prohibit attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See, e.g., Tex. St. Bar Rules, art. 10, § 9, Rule 7.02(a)(1); N.Y. Rules of Profl Conduct, Rule 8.4(c); Fla. St. Bar Rule 4-8.4(c); Ga. Rules of Profl Conduct, Rules 7.1(a)(l)-(2), 8.4(a)(4); N.J. Rules of Profl Conduct, Rule 8.4(c); M.D. Rules of Profl Conduct, Rule 7.1(a)-(b); see also ABA Ann. Mod. Rules Profl Conduct § 8.4(c).40 As discussed at length above, the undisputed evidence establishes that members of the common enterprise, for whose acts the Law Firms are responsible, engaged in conduct involving deceit and misrepresentation. Thus, even if the attorney exemption can be applied to a law firm generally, as opposed to the acts of a specific attorney, the Law Firms here are not entitled to the exemption because they were not operating in compliance with state laws and regulations. Because Defendants cannot satisfy the requirements of 12 C.F.R. § 1015.7(a), they are also unable to qualify for the advance payments exemption set forth in 12 C.F.R. § 1015.7(b). See 12 C.F.R. § 1015.7(b) (providing that an at*1285torney must meet the requirements of § 1015.7(a) before he can be exempt from the Advance Fee Prohibition).

D.Counts VI & VII-Telemarketing Sales Rule, 16 C.F.R. §§ 310.4, 310.8 . .

In Count VI of the Amended Complaint, the FTC alleges that the Lanier Defendants violated 16 C.F.R. § 310.4(b)(l)(iii)(B) by initiating or causing others to initiate outbound telephone calls to persons whose telephone numbers are on the “do-not-call” registry. See Amended Complaint at 20.41 In addition, the FTC asserts in Count VII that all Defendants violated 16 C.F.R. § 310.8(a) which provides:

It is a violation of this Rule for any seller to initiate, or cause any telemarketer to initiate, an outbound telephone call to any person whose telephone number is within a given area code unless such seller, either directly or through another person, first has paid the annual fee, required by § 310.8(c), for access to telephone numbers within that area code that are including in the National Do Not Call Registry ....

As outlined above, the FTC presents evidence that members of the common enterprise called consumers to solicit their business on behalf of Defendants. Moreover, the evidence establishes, and Defendants do not deny, that neither Defendants nor any other member of the common enterprise paid the annual fee required to obtain the telephone numbers, within the relevant area codes, listed on the do-not-call registry. See Liggins Deck ¶ 16, Att. O; 2nd Castillo Deck ¶ 14. In addition, the FTC presents unrebutted evidence that some of these consumers were contacted on telephone numbers listed on the do-not-call registry. While Lanier maintains that neither he, nor anyone on his behalf, engaged in telephone solicitation, his conclu-sory general denials do not create an issue fact as to the evidence from consumers that employees of DOLMF and FURF were engaged in telephone solicitation. Accordingly, the FTC is entitled to summary judgment on these Counts as well.

E.Individual Liability

The FTC seeks to hold Lanier and Robles individually liable for the acts of the corporate entities. To do so, the FTC “must prove that the individual defendants either participated directly or had authority to control the deceptive practice.” Wash. Data Res., 856 F.Supp.2d at 1276. The FTC may establish an individual’s “authority to control” through evidence of his “ ‘active involvement in business affairs and the making of corporate policy* and by evidence that ‘the individual had some knowledge of the practices.’ ” See IAB Mktg. Assocs., LP, 746 F.3d at 1233 (quoting F.T.C. v. Amy Travel Serv., Inc., 875 F.2d 564, 573 (7th Cir.1989)); F.T.C. v. RCA Credit Servs., LLC, 727 F.Supp.2d 1320, 1339 (M.D.Fla.2010) (“Authority to control a company’s practices ‘may be demonstrated by active participation in the corporate affairs, including assuming duties as a corporate officer.’ ” (quoting F.T.C. v. World Media Brokers, 415 F.3d 758, 764 (7th Cir.2005))). In addition, “the FTC must establish that the individual had some knowledge of the [deceptive] practices.” IAB Mktg. Assocs., *1286LP, 746 F.3d at 1233 (internal quotation omitted) (alteration in original); see also F.T.C. v. Gem Merch. Corp., 87 F.3d 466, 470 (11th Cir.1996) (“Having found that [owner] had direct control over the activities -of [corporation], and- that he was aware of the illegal practices, the court properly held [owner] individually liable.”); Wash. Data Res., 856 F.Supp.2d at 1276 (stating that the FTC must show that “the individual defendants] knew or should have known of the alleged deceptive misrepresentation”). This requirement may be fulfilled by showing that an individual had “ ‘actual knowledge of material misrepresentations, reckless indifference to the truth or falsity of such representations, or an awareness of a high probability of fraud along with an intentional avoidance of the truth.’ ” See Amy Travel Serv., Inc., 875 F.2d at 574 (quoting F.T.C. v. Kitco of Nevada, Inc., 612 F.Supp. 1282, 1292 (D.Minn.1985)).

Here, the undisputed evidence establishes that Robles and Lanier are individually liable for the deceptive acts of the common enterprise.42 Robles owned or controlled DOLMF and FURF, and had an ownership interest in Pinnacle, Fortress DC, Redstone DC and Surety. Robles also served as the operating manager of Lanier Law. Robles concedes his presence and control over the operations of DOLMF and FURF, and states that he frequently handled consumer complaints. Robles Dep. at 44-45, 68, 121-29. In addition, the email - records reveal Robles’ awareness of consumer complaints and investigations of the Law Firm practices by state regulatory authorities. See 2nd Supp. Liggins Deck, Att. EE, FF; see also Robles Dep. at 121-22. Robles was frequently copied on emails discussing how to respond to these investigations and complaints. See 2nd Supp. Liggins Dec., Atts. FF, GG, HH. Thus, Robles had the authority to control the activity of these businesses, was actively involved in their affairs, and was plainly aware that consumers were being promised or guaranteed results. As such, the Court finds that Robles is individually liable for the deceptive acts of the common enterprise.

Likewise, Lanier held the sole ownership interest in the Lanier Law entities as well as Liberty & Trust. Moreover, Lanier admitted in his Guilty Plea to the Florida Bar that he had supervisory responsibility over DOLMF and Pinnacle during the time period that those'entities worked for him. Although Lanier did not hold an express contractual interest in the DC Entities, the email records establish that Lanier still actively participated in the conduct.of those companies and exercised control over ■ their affairs. While Lanier states in a general legal conclusion that he had no “ownership of, authority to control, *1287or participation in” the DC Entities, such a general denial is insufficient to create an issue of material fact in light of the FTC’s specific documentary evidence to the contrary. Moreover, the evidence amply establishes that Lanier was aware that consum-' ers were being misled by virtue of the Florida Bar grievance proceedings, see Liggins Decl., Att, LL-NN, consumer complaints to the Better Business Bureau (BBB), see FTC Motion, Ex. IB ¶¶ 11-15, as well as the inquiries he received from consumer protection departments in various states. See, e.g., 2nd Liggins Supp. Decl., Att. FF-HH; Menjivar Decl., Att. Q, DD. Lanier admits that he was “kept up-to-date” on written and oral complaints from consumers, as well as complaints from the BBB and government agencies. See Lanier Dep. at 144. Accordingly, the Court finds ample evidence to conclude that Lanier had authority to control and actively participated in the affairs of the common enterprise, and was entirely aware of the misrepresentations made to consumers. As such, Lanier is also individually liable for the conduct of the common enterprise. Individual liability for corporate actions is premised on the concept that “one may not enjoy the benefits of fraudulent activity and then insulate one’s self from liability by contending that one did not participate directly in the fraudulent practices.” Amy Travel Serv., Inc., 875 F.2d at 574 (internal quotation omitted). This is precisely what Lanier attempted to accomplish through the use of a web of inter-related entities, each insulating him from any direct connection to the fraudulent activity. Nonetheless, the evidence places Lanier and Robles squarely at the center of this deceptive enterprise, and the law holds them individually responsible for its conduct. In light of the foregoing, the Court will grant the FTC Motion as to Lanier and Robles individually as well.

F. Remedy

As authorized by §§ 13(b) and 19 of the FTC Act, the FTC seeks both in-junctive and monetary relief as a remedy for the foregoing violations. Section 19 authorizes the Court “to grant such relief as the court finds necessary to redress injury to consumers or other persons, partnership, and corporations resulting from the rule violation or the unfair or deceptive act or practice, as the case may be.” See 15 U.S.C. § 57b(b). In addition, § 13(b) provides that “after proper proof, the court may issue a permanent injunction.” See 15 U.S.C. § 53(b). The Eleventh Circuit interprets § 13(b) as “ ‘an unqualified grant of statutory authority’ to issue ‘the full range of equitable remedies,’ including disgorgement, which considers only the defendants’ unjust gain and ignores consumer loss.” See F.T.C. v. Wash. Data Res., Inc., 704 F.3d 1323, 1326 (11th Cir.2013) (quoting Gem Merch. Corp., 87 F.3d at 469); see also F.T.C. v. U.S. Oil & Gas Corp., 748 F.2d 1431, 1434 (11th Cir.1984) (citing F.T.C. v. H.N. Singer, Inc., 668 F.2d 1107, 1113 (9th Cir.1982)). In Washington Data Resources, the Eleventh Circuit instructed that “the amount of net revenue (gross receipts minus refunds), rather than the amount-of profit (net revenue minus expenses), is the correct measure of unjust gains under section 13(b).” See Wash. Data Res., 704 F.3d at 1327.

Here, the FTC seeks an award of Defendants’ net revenue. See FTC Motion at 52-53. Upon review, the evidence establishes that Defendants’ foreclosure defense and loan modification revenue was derived through deceptive and improper solicitations, misleading sales tactics, and impermissible advance fees. Accordingly, the Court finds that disgorgement of those revenues is an appropriate remedy. To *1288calculate the size of the award, the FTC must first “ ‘show that its calculations reasonably approximate[ ]’ the amount of the defendant’s unjust gains, after which ‘the burden shifts to the defendants to show that those figures [are] inaccurate.’ ” See F.T.C. v. Verity Int’l, Ltd., 443 F.3d 48, 67 (2d Cir.2006) (quoting F.T.C. v. Febre, 128 F.3d 530, 535 (7th Cir.1997)); see also Wash. Data Res., 856 F.Supp.2d at 1281. Based on the total deposits to Lanier Law and Liberty & Trust bank accounts, the financial statements from Redstone DC and Surety, as well as the answers to interrogatories from Fortress DC, the FTC calculates the amount of Defendants’ total net revenues as $13,586,721. See FTC Motion at 53; 2nd Supp. Liggins Deck ¶¶ 8-9, 16-18, Atts. L-P, V-AA. Defendants offer no argument or evidence to dispute the FTC’s calculation. See Fortress Response at 5-6; see generally Lanier Response. The Court has reviewed the FTC’s calculation of net revenues and the evidence in support thereof, and in the absence of any evidence or argument to the contrary finds the amount of the FTC’s request to be a reasonable approximation of Defendants’ net revenues.43 Accordingly, the Court will enter a restitution award against Defendants and in favor of the FTC in the amount of $13,586,713.

The Court also determines that the FTC’s request for a permanent injunction is warranted in this case. The FTC seeks an injunction permanently enjoining the Lanier and Fortress Defendants from “operating in the loan modification/foreclosure defense area,” with a “fencing-in ban as to any secured and unsecured debt relief products and services,” and prohibiting these Defendants from making “misrepresentations relating to all financial products and services.” See FTC Motion at 53. In “proper” cases, and after “proper” proof, the FTC Act authorizes the court to issue a permanent injunction. See 15 U.S.C. § 53(b). Permanent injunctions may be appropriate, even where a defendant’s conduct has ceased, if “ ‘the defendant’s past conduct indicates that there is a reasonable likelihood of further violations in the future.’ ” See F.T.C. v. USA Fin., LLC, 415 Fed.Appx. 970, 975 (11th Cir.2011) (quoting Sec. Exch. Comm’n v. Caterinicchia, 613 F.2d 102, 105 (5th Cir.1980)). To determine the likelihood of future violations, courts consider factors such as:

“the egregiousness of the defendant’s . actions, the isolated or recurrent nature of the, infraction, the. degree of scienter involved, the sincerity of the defendant’s assurances against future violations, the defendant’s recognition of the wrongful nature of his conduct, and the likelihood that the defendant’s occupation will present opportunities for future violations .... ”

See F.T.C. v. RCA Credit Servs., LLC, No. 8:08-CV-2062-T-27AEP, 2010 WL 2990068, at *5 (M.D.Fla. July 29, 2010) (quoting Sec. Exch. Comm’n v. Carriba Air, Inc., 681 F.2d 1318, 1322 (11th Cir.1982)). In addition, courts may impose “fencing-in” provisions, which extend beyond the specific violations at issue, to prevent defendants from engaging in similar deceptive practices in the future, “so long as they bear a reasonable relation to the unlawful practices found to exist.” See id. at *5; F.T.C. v. HES Merch. Servs. Co., *1289Inc., No. 6:12-cv-1618-Orl-22KRS, 2015 WL 892394, at *1 (MD.Fla. Feb. 11, 2015) (“An injunction may incorporate ‘fencing-in’ provisions, which ‘serve to close all roads to the prohibited goal, so that (the FTC’s) order may not be by-passed with impunity.’ ” (quoting Litton Indus., Inc. v. F.T.C., 676 F.2d 364, 370 (9th Cir.1982))).

The FTC has presented substantial un-controverted evidence of the Lanier and Fortress Defendants’ continuous and persistent involvement in deceptive and misleading practices in connection with the sale of mortgage assistance relief'services. The myriad misrepresentations, improper solicitations, and other rule violations were egregious and recurrent over several years, despite numerous consumer complaints, as well as investigations and inquiries by state authorities. The Lanier and Fortress Defendants have made no assurances against future violations, and indeed, they continue to deny the wrongful nature of their conduct. These Defendants have given the Court no reason to believe that they will abstain from any further fraudulent practices in the future. Significantly, Defendants have a history of transforming from one business to another in order to continue with their fraudulent practices, thus indicating the likelihood of future violations. See USA Fin., LLC, 415 Fed. Appx. at 975 (finding reasonable likelihood of future violations where record of one entity transforming into new entity). As such, the Court finds that a permanent injunction is necessary to protect the public and prevent future violations. Likewise, the Court determines that the “fencing-in” provision requested by the FTC is necessary and appropriate to prevent the Lanier and Fortress Defendants from engaging in similar deceptive practices. Indeed, Defendants’ attempt to superficially structure their enterprise within the attorney exemption, in order- to avoid the constraints of Regulation 0, demonstrates their propensity to persist in their deceptive practices if given, any opening to do so. Accordingly, the Court concludes that a permanent injunction is warranted. To facilitate entry of an appropriate judgment awarding the requested permanent injunc-tive relief and monetary damages, the Court will direct the FTC 'to file a proposed injunction for the Court’s review. In light of the foregoing, it is

ORDERED:

1. Defendant Michael W. Lanier’s Motion for Partial Summary Judgment (Doc. 248) is DENIED.

2. Plaintiff Federal Trade Commission’s Motion and Memorandum for Summary Judgment (Doc. 246) is GRANTED.

3. On or before July 22, 2016, the FTC shall file a proposed judgment of permanent injunction and monetary damages, and submit a copy of the proposed judgment to the undersigned’s chambers email address.

4. Thereafter, upon review of the proposed judgment, the Court will enter final judgment in favor of the FTC and against Defendants Lanier Law LLC, Fortress Law Group LLC, Liberty & Trust Law Group of Florida LLC, Fortress Law Group, PC, Michael W. Lanier and Rogelio Robles.

, 5. In light of the foregoing, the Final Pretrial Conference set for July -18, 2016, is CANCELED, and this case is removed from the August 2016 trial term.

6. Plaintiffs Motions in Limine (Docs. 277-279) filed on July 5, 2016, and Defendant Michael W. Lanier’s Mo*1290tion in Limine (Doc. 280) filed on July 6,2016, are DENIED, as moot.

DONE AND ORDERED in Jacksonville, Florida, this 7th day of July, 2016.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 This appeal presents a certified question involving the requirements necessary to maintain a civil rights claim for unlawful discrimination in connection with a "real estate transaction" under section 3-102 of the Illinois Human Rights Act (the Act) ( 775 ILCS 5/3-102 (West 2010) ). Specifically, the Attorney General filed a complaint alleging, inter alia , that defendants Matthew Wildermuth, George Kleanthis, and Legal Modification Network (LMN) unlawfully discriminated on the basis of race and national origin in the furnishing of services in connection with real estate transactions. The circuit court of Cook County denied defendants' motion to dismiss brought under section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2010) ), but it ultimately certified the following question for interlocutory appeal to the appellate court:

"Whether the State may claim a violation under the Illinois Human Rights *868Act pursuant to a reverse redlining theory where it did not allege that the defendant acted as a mortgage lender."

The appellate court answered the certified question in the affirmative. 2016 IL App (1st) 143592, ¶ 38, 402 Ill.Dec. 650, 52 N.E.3d 571. Defendants petitioned for leave to appeal to this court, which we allowed.

¶ 2 BACKGROUND

¶ 3 The Attorney General filed a multicount, fourth amended complaint against defendants, alleging a course of conduct that violated several statutory and regulatory provisions. Count IV is the only count relevant to this appeal1 and alleges as follows. Defendants Wildermuth, an attorney, and Kleanthis, a veteran of the real estate business and the sole managing member of LMN, engaged in acts and practices that violated section 3-102 of the Act. Defendants' actions constituted a pattern and practice of discrimination in the offering of loan modification services to Illinois consumers. Eventually, LMN ceased functioning, and Wildermuth and Kleanthis provided loan modification services through Wildermuth's law offices. According to the complaint, defendants engaged in "real estate transactions" as defined by section 3-101(B) of the Act ( 775 ILCS 5/3-101(B) (West 2010)) by claiming to negotiate loan modifications and short sales on behalf of their clients.

¶ 4 The Attorney General further alleged that defendants advertised on radio that they would succeed where other loan modification providers had failed, help consumers save their homes and obtain significant reductions on their monthly mortgage payments, and obtain modifications for consumers within a short time frame. Defendants charged consumers nonrefundable fees that ranged from $3000 to $5000, which consisted of a base charge for preparing and submitting a loan modification application for a first lien residential mortgage, and additional fees for second liens and court appearances by Wildermuth. The total fee charged often exceeded the consumer's monthly mortgage payment. The consumers paid the fees in advance of receiving services and were led to believe that a portion of their payments would be refunded if defendants failed to obtain a loan modification. Defendants routinely required and accepted advance payments from consumers defendants knew were not eligible for loan modifications. In most cases, the consumers would not interact with Wildermuth or any other licensed attorney, and when consumers contacted LMN for an update on the status of their modification, they were either ignored or falsely told that the modification had been processed. In most cases, when a consumer requested a refund, LMN refused to tender one.

¶ 5 The complaint further alleged that despite the broad assurances given by defendants, their services consisted primarily of filling out and submitting the paperwork to apply for a traditional home loan modification program. The modifications obtained were often either inconsistent with the promised terms or not obtained within the promised time frame. When defendants were not able to obtain a loan modification, they would suggest listing the consumer's property as a short sale. The Attorney General also alleged that defendants intentionally discriminated in the *869furnishing of facilities or services in connection with real estate transactions on the basis of race and national origin by targeting the African-American and Latino communities by advertising their services through radio stations known to have a predominantly Latino and African-American audience.

¶ 6 Defendants filed a section 2-615 motion to dismiss count IV, asserting that the complaint failed to state a violation of section 3-102(B) of the Act because Wildermuth rendered legal services and was not engaging in "real estate transactions" as defined by the Act. In response, the Attorney General argued that defendants engaged in "real estate transactions" within the meaning of the Act when they negotiated loan modifications and short sales on behalf of consumers. The Attorney General relied on a "reverse redlining" theory to argue that defendants engaged in discrimination.2

¶ 7 The circuit court denied defendants' motion to dismiss, concluding that defendants' conduct was covered by the Act because they acted as "mortgage brokers" in their activities. The circuit court subsequently denied defendants' motion to reconsider, but it noted that "it would be expeditious to have the appellate court determine in the first instance-can you even state a claim." The circuit court therefore certified for review the following question:

"Whether the State may claim a violation of the [Act] pursuant to a reverse redlining theory where it did not allege that the defendant acted as a mortgage lender."

¶ 8 The appellate court answered the question in the affirmative, holding that "the concept of reverse redlining is not strictly limited to situations involving mortgage lending and section 3-102(B) of the Act broadly encompasses conduct other than mortgage lending, including the loan modification services that defendant offered." 2016 IL App (1st) 143592, ¶ 38, 402 Ill.Dec. 650, 52 N.E.3d 571. The appellate court did not directly address the circuit court's ruling that defendants' alleged activities suggested they were mortgage brokers.3 In reaching its holding, the appellate court made three findings relative to the parties' arguments on the certified question. First, the appellate court found that the plain language of section 3-102 does not require a defendant alleged to have violated the statute to be a mortgage lender. To the contrary, the plain language merely requires that the entity engage in a "real estate transaction," which is defined in pertinent part to include " 'providing other financial assistance *** for maintaining a dwelling.' " Id. ¶ 25 (quoting 775 ILCS 5/3-101(B)(1) (West 2010)). Second, *870the appellate court turned to the question of whether defendants provided other financial assistance for maintaining a dwelling so as to bring their conduct within the definition of "real estate transaction" under the statute. The appellate court concluded that defendants' loan modification services are sufficiently connected to the financing of residential real estate so that they can be considered other financial assistance . Id. ¶ 28. For this conclusion, the appellate court looked to federal case law construing language in the federal Fair Housing Act (FHA) ( 42 U.S.C. § 3601 et seq. (2006) ) that is substantially similar to the pertinent provisions of the Illinois Act. 2016 IL App (1st) 143592, ¶ 28, 402 Ill.Dec. 650, 52 N.E.3d 571. Specifically, the appellate court discussed National Ass'n for the Advancement of Colored People v. American Family Mutual Insurance Co. , 978 F.2d 287, 297 (7th Cir. 1992) ( American Family Mutual ) (property insurance does not constitute "financial assistance" within the meaning of section 3605 of the FHA ( 42 U.S.C. § 3605 (1988) )), United States v. Massachusetts Industrial Finance Agency , 910 F.Supp. 21, 28-29 (D. Mass. 1996) (a quasi-public agency's channeling of proceeds from tax-exempt bonds to qualifying applicants was considered "financial assistance"), and Eva v. Midwest National Mortgage Ban c, Inc. , 143 F.Supp.2d 862 (N.D. Ohio 2001) (the "financial assistance" language of section 3605 of the FHA applied to an entity that marketed and managed a mortgage refinancing scheme used by other defendants to defraud the plaintiffs). Third, the appellate court rejected defendants' assertion that the reverse redlining theory for proving discrimination applies only to instances involving the extension of credit. 2016 IL App (1st) 143592, ¶ 34, 402 Ill.Dec. 650, 52 N.E.3d 571.

¶ 9 Defendants filed a petition for leave to appeal, which this court allowed.

¶ 10 ANALYSIS

¶ 11 Before this court, defendants argue that the lower courts misinterpreted the applicable statutory language to determine that defendants either engaged in "real estate transactions" or were acting as "mortgage brokers." We note that the full scope of the issues presented in this case goes beyond the narrow question certified by the circuit court, and in such cases, this court's review is not limited solely to consideration of the certified question ( Townsend v. Sears, Roebuck & Co. , 227 Ill. 2d 147, 153, 316 Ill.Dec. 505, 879 N.E.2d 893 (2007) ). In the interests of judicial economy and the need to reach an equitable result, we may delve further to resolve the related issues of law that ultimately control the propriety of the order that gave rise to the appeal. See Johnston v. Weil , 241 Ill. 2d 169, 175, 349 Ill.Dec. 135, 946 N.E.2d 329 (2011) ; De Bouse v. Bayer AG , 235 Ill. 2d 544, 550, 337 Ill.Dec. 186, 922 N.E.2d 309 (2009). The parties' arguments involve the construction of a statute, which is a question of law that we review de novo . In re Andrew B. , 237 Ill. 2d 340, 348, 341 Ill.Dec. 420, 930 N.E.2d 934 (2010).

¶ 12 Section 3-102 of the Act is titled "Civil Rights Violations; Real Estate Transactions" and provides in relevant part as follows:

"It is a civil rights violation for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesman, because of unlawful discrimination or familial status, to

(A) Transaction. Refuse to engage in a real estate transaction with a person or to discriminate in making available such a transaction;

(B) Terms. Alter the terms, conditions or privileges of a real estate transaction *871or in the furnishing of facilities or services in connection therewith[.]" 775 ILCS 5/3-102 (West 2010).

¶ 13 Section 3-101 of the Act provides the following definitions for the terms "real estate transaction" and "real estate broker or salesman":

"(B) *** 'Real estate transaction' includes the sale, exchange, rental or lease of real property. 'Real estate transaction' also includes the brokering or appraising of residential real property and the making or purchasing of loans or providing other financial assistance :

(1) for purchasing, constructing, improving, repairing or maintaining a dwelling ; or

(2) secured by residential real estate.

***

(D) *** 'Real estate broker or salesman' means a person, whether licensed or not, who, for or with the expectation of receiving a consideration, lists, sells, purchases, exchanges, rents, or leases real property, or who negotiates or attempts to negotiate any of these activities, or who holds himself or herself out as engaged in these." (Emphases added.) 775 ILCS 5/3-101(B), (D) (West 2010).

¶ 14 I. Financial Assistance

¶ 15 The Attorney General first argues that defendants were engaged in real estate transactions because they provided "other financial assistance" to distressed homeowners for purposes of "maintaining a dwelling" as set forth in section 3-101(B) of the Act. The Attorney General contends that the phrase "other financial assistance" in that section should be construed liberally to include defendants' business model of assisting consumers with applying for loan modifications.

¶ 16 In response, defendants argue that they did not provide any "financial assistance" that could be considered to fall within the plain meaning of the Act. They point out that section 3-101(B) of the Illinois Act is modeled after section 3605(b)(1) of the federal FHA ( 42 U.S.C. § 3605(b)(1) (2006) ), there is little or no Illinois precedent interpreting Illinois's Act, and in such cases, a court construing Illinois's Act should look to federal decisions interpreting similar language in the FHA (see, e.g. , Szkoda v. Illinois Human Rights Comm'n , 302 Ill. App. 3d 532, 539-40, 236 Ill.Dec. 88, 706 N.E.2d 962 (1998) ). Defendants note that nearly every federal court that has construed the counterpart phrase "loans or providing other financial assistance" found in section 3605(b)(1) of the federal statute has concluded that its application is limited to circumstances where the defendants were lenders or appraisers of mortgage loans or affiliates of the lender collecting the loan payments and, thus, had the ability to affect the terms on which credit is extended to the borrower. See, e.g. , American Family Mutual , 978 F.2d at 297 ; Davis v. Fenton , 26 F.Supp.3d 727, 741 (N.D. Ill. 2014) ; Davis v. Wells Fargo Bank , 685 F.Supp.2d 838, 844 (N.D. Ill. 2010) ; Walton v. Diamond , No. 12-cv-4493, 2013 WL 1337334 (N.D. Ill. Mar. 29, 2013) ; Jones v. Countrywide Home Loans, Inc. , No. 09 C 4313, 2010 WL 551418, at *7 (N.D. Ill. Feb. 11, 2010).

¶ 17 When construing a statute, this court's fundamental objective is to ascertain and give effect to the intent of the legislature. Beggs v. Board of Education of Murphysboro Community Unit School District No. 186 , 2016 IL 120236, ¶ 52, 410 Ill.Dec. 902, 72 N.E.3d 288. The most reliable indicator of legislative intent is the statutory language itself, giving it its plain and ordinary meaning.

*872People v. Perry , 224 Ill. 2d 312, 323, 309 Ill.Dec. 330, 864 N.E.2d 196 (2007). In determining the plain meaning of statutory terms, we consider the statute in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it. Id. Words and phrases should not be construed in isolation but must be interpreted in light of other relevant provisions of the statute. Michigan Avenue National Bank v. County of Cook , 191 Ill. 2d 493, 504, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000). Similarly, the meaning of questionable words or phrases in a statute should be ascertained by reference to the meaning of the surrounding words and phrases. Hayes v. Mercy Hospital & Medical Center , 136 Ill. 2d 450, 477, 145 Ill.Dec. 894, 557 N.E.2d 873 (1990) (Calvo, J., dissenting, joined by Ward and Clark, JJ.). When addressing the meaning of an undefined statutory term, it is the responsibility of the court to choose a dictionary definition that most effectively conveys the intent of the legislature. Gaffney v. Orland Fire Protection District , 2012 IL 110012, ¶ 95, 360 Ill.Dec. 549, 969 N.E.2d 359 (Garman, J., concurring in part and dissenting in part, joined by Thomas and Karmeier, JJ.).

¶ 18 We begin our analysis with an examination of the statutory language itself. The Act does not define the term "other financial assistance," and it must be read in context with the surrounding statutory language. We note that the term is preceded by the words "the making or purchasing of loans" and is succeeded by the phrase "for purchasing, constructing, improving, repairing or maintaining a dwelling." See 775 ILCS 5/3-101(B)(1) (West 2010). Read in context then, the "other financial assistance" contemplated by the legislature appears to be the providing of funds for making or purchasing a loan for the initial acquisition or construction or the subsequent upkeep, repair, or improvement of the property. The statute does not impose liability for any form of "assistance" that defendants may have undertaken. Rather, liability exists for providing "financial assistance" in a discriminatory manner. Webster's Third New International Dictionary defines "financial" as "relating to finance." Webster's Third New International Dictionary 851 (1993). "Finance," under the dictionary definition most relevant to the subject and purpose of the statute, means "to provide with necessary funds in order to achieve a desired end < [finance] a son through school> < [financed] the government through this emergency>." Id.

¶ 19 Here, defendants are alleged to have provided assistance with filling out paperwork for modifications to already-existing loans. There is no allegation that defendants themselves provided any funds to their clients in order to achieve the desired end of obtaining a loan modification. In fact, it is indisputable that no new credit is extended when a loan is modified. Nor is there any allegation that defendants were affiliated or in the pipeline with any entity that provided funds.

¶ 20 There is also no reason to believe, based on the allegations of the complaint, that the purpose of any assistance rendered by defendants was for "maintaining a dwelling," as is required by section 3-101(B)(1). 775 ILCS 5/3-101(B)(1) (West 2010). The statutory language must be read in context, and it provides that the financial assistance must be for "purchasing, constructing, improving, repairing, or maintaining a dwelling." Id. Our understanding of the word "maintaining" is informed by the verbs preceding it (i.e. , constructing, improving, repairing). Among the definitions offered by Webster's Third New International Dictionary for "maintenance" is "keeping something (as buildings or equipment) in a state of repair or efficiency." Webster's Third New International *873Dictionary 1362 (1993). This, we believe, is the definition the legislature intended when we consider the linking of the word "maintaining" with the verbs directly preceding it-"improving" and "repairing." In our view, the most plausible definition of "maintaining" conveys the sense of keeping property in a state of repair, not simply preventing it from being foreclosed upon, as the Attorney General suggests.4 Accordingly, we reject the State's argument that, based on the allegations of the complaint, defendants engaged in a "real estate transaction" within the meaning of the statute by providing "financial assistance for *** maintaining a dwelling."

¶ 21 Our holding is consistent with federal case law interpreting the cognate provisions contained in section 3605(b)(1)(A) of the FHA, which defines "real estate-related transaction" in part as "[t]he making or purchasing of loans or providing other financial assistance *** for *** maintaining a dwelling." (Emphasis added.) 42 U.S.C. § 3605(b)(1)(A) (2006). Numerous cases have held that this language is limited in application to circumstances where the defendants had the ability to affect the terms on which credit is extended to the borrower, such as where the defendants were lenders, brokers, or appraisers of mortgage loans or affiliates of the lender collecting the loan payments. See, e.g. , American Family Mutual , 978 F.2d at 297 ; Davis v. Fenton , 26 F.Supp.3d at 741 (" section 3605 applies only to transactions involving defendants that are lenders, brokers, or appraisers of mortgage loans"); Davis v. Wells Fargo Bank , 685 F.Supp.2d at 844 ( section 3605 applies only to transactions involving the making or purchasing of loans); Walton , 2013 WL 1337334 (held that section 3605 did not apply to defendant contractor and its home repair contract because that section only applies to the making or purchasing of loans); Jones , 2010 WL 551418, at *7 (held that the defendant closing agent was not liable under section 3605(b)(1) because the defendant was not the lender of the mortgage loan and did not "provide any other financial assistance in the transaction").

¶ 22 To reach its contrary conclusion that defendant's conduct-in filling out paperwork for the loan modification process and recommending short sales-amounted to "financial assistance" for maintaining a dwelling, the appellate court relied upon Eva , 143 F.Supp.2d 862, American Family Mutual , 978 F.2d at 297, and Massachusetts Industrial , 910 F.Supp. at 28-29. We find these cases to be easily distinguishable.

¶ 23 In Eva , defendant U.S. Mortgage Reduction, Inc. (USMR), was an affiliate of the lender. USMR managed and advertised a loan acceleration program, under which USMR collected one additional payment a year from plaintiffs and USMR profited directly from the loan by pocketing the fees charged in connection with the acceleration program. The Eva court found the allegation that USMR manages the acceleration program to be sufficient alone to satisfy the statutory language of providing financial assistance to maintain a dwelling. The court also found it significant that USMR's acceleration agreement mis *874represented the terms of the loan. The court concluded that "USMR is not too far removed from transactions in the commercial residential market, nor is it lacking in any connection to the financing of residential real estate, as to warrant dismissal of [p]laintiffs' § 3605 claim." Eva , 143 F.Supp.2d at 889.

¶ 24 In contrast to Eva , the Attorney General in the present case did not allege that defendants were affiliated with any lender or bank. Nor was it alleged that defendants misrepresented the terms of a loan they managed. Instead, defendants were outside the actual pipeline of the loan process as far as the decision-making on the terms and conditions of any loan or loan modification. In fact, defendants in the present case actually represented their clients against the lenders in the process of dealing with their arrears on their mortgages, albeit in such a way as to allegedly deceive and defraud their clients. But this does not amount to a violation of sections 3-101 and 3-102 of the Act.

¶ 25 Another federal case relied upon by the appellate court, American Family Mutual , 978 F.2d 287, also does not help the Attorney General's position. There, the Court of Appeals, Seventh Circuit, held that it would strain the "language [of section 3605 ] past the breaking point to treat [the sale of] property or casualty insurance as 'financial assistance'-let alone as assistance 'for purchasing ... a dwelling.' " Id. at 297. In reaching this holding, the court reasoned as follows:

"Insurers do not subsidize their customers or act as channels through which public agencies extend subsidies. They do not 'assist' customers even in the colloquial sense that loans are 'assistance' (a lender advances cash, with repayment deferred). Payment runs from the customer to the insurer . Insurance is no more 'financial assistance' than a loaf of bread purchased at retail price in a supermarket is 'food assistance' or a bottle of aspirin brought from a druggist is 'medical assistance.' " (Emphasis added.) Id.

¶ 26 In the case before us, the appellate court seized upon the language from American Family Mutual , which states that " '[i]nsurers do not subsidize their customers or act as channels through which public agencies extend subsidies.' " 2016 IL App (1st) 143592, ¶ 28, 402 Ill.Dec. 650, 52 N.E.3d 571 (quoting American Family Mutual , 978 F.2d at 297 ). The appellate court believed that defendants "hold themselves out as a channel through which relief flows in the form of residential loan modifications via government programs designed to help delinquent *** homeowners avoid foreclosures." Id.

¶ 27 We disagree, however, that defendants were channels through which funds flow to the extent contemplated by American Family Mutual . Defendants were clearly not a necessary and direct channel through which funds flow.

¶ 28 The appellate court also found it significant that defendants' alleged conduct indicated that they "interfered with consumers' ability to obtain a particular type of financial assistance-residential loan modifications." Id. ¶ 27. But it is hard to fathom how "interfering" with someone's ability to obtain financial assistance is the same thing as "providing" financial assistance. Defendants were no more a necessary channel through which funds flow (i.e. , financial assistance) than a druggist is a channel through which drugs flow (i.e. , medical assistance), and therefore accepting the appellate court's interpretation would be, in the words of American Family Mutual , to "strain [the] language [of the statute] past the breaking point." American Family Mutual , 978 F.2d at 297.

*875¶ 29 The appellate court also relied upon Massachusetts Industrial , 910 F.Supp. 21, to support its conclusion. There, the defendant was a quasi-public agency that issued tax exempt bonds for qualifying organizations after application. After the bonds were sold, it issued the proceeds to the qualifying organizations. Id. at 29. The defendant was a "necessary conduit" through which money to others flowed and was a direct participant in the financial transaction. Massachusetts Industrial distinguished American Family Mutual by stating, "[a]n insurer does not provide a necessary conduit through which funds flow; the defendant here does." Id. at 28.

¶ 30 We have already determined that defendants' services here cannot be considered necessary, and defendants are not "necessary conduits" through which funds flow. Nor are they a quasi-public agency. Massachusetts Industrial is thus readily distinguishable from the present case.

¶ 31 Of the cases cited by the parties before this court, the one that comes closest to the facts of this case is Davis v. Fenton , 26 F.Supp.3d 727. There, the defendant provided legal services to the plaintiff client who was being foreclosed upon by a mortgage company. The parties' retainer agreement outlined the scope of representation and included such matters as reviewing loan documents and negotiating with the mortgagee. Id. at 734. The main issue in the case had to do with the enforceability of an arbitration clause in the retainer agreement. In deciding that issue, however, the court considered whether defendant's conduct included "real-estate related transactions" within the meaning of section 3605 of the FHA. The court concluded that it did not. It found that the "[d]efendants are not lenders, brokers, or appraisers, and so [p]laintiff's attempt to bring a claim against them under section 3605 is misguided." Id. at 741. In reaching its conclusion, the Fenton court quoted the holding of Jones , 2010 WL 551418, at *7, with approval as follows: " section 3605 did not apply to defendant because defendant 'was neither the lender, nor the broker, nor the appraiser of [plaintiff's] mortgage loan, nor did it provide any other financial assistance in the transaction.' " Davis v. Fenton , 26 F.Supp.3d at 741.

¶ 32 We agree with the appellate court that, under the Act, it is not necessary to allege that one is a mortgage lender to sustain a claim for a violation of the statute. We find, however, that the grounds relied upon here with respect to the "other financial assistance" language were lacking. There is also no support for the circuit court's decision to deny defendants' motion to dismiss on the basis that defendants' alleged activities indicated that they were in violation of the Act because they were "mortgage brokers," and the Attorney General does not argue otherwise in the appeal before us.

¶ 33 II. Real Estate Broker

¶ 34 As an alternative argument, the Attorney General claims that there is a second way that liability may attach under the Act to defendants' conduct. According to the Attorney General, because defendants held themselves out as negotiating short sales, they are considered "real estate brokers" under section 3-101(D) of the Act ( 775 ILCS 5/3-101(D) (West 2010)).

¶ 35 The problem with the Attorney General's argument is that even if we accept that defendants were "real estate brokers" for purposes of the statute, they would still have to engage in a "real estate transaction" as defined by section 3-101(B) for liability to attach. Under the plain language of the statute, a person who negotiates the sale of real property or who merely holds himself out as negotiating the sale is considered a "real estate broker." See *876775 ILCS 5/3-101(D) (West 2010). Defendants, therefore, can arguably be considered real estate brokers within the meaning of the statute for holding themselves out as willing and able to work with banks to negotiate short sales. But it does not necessarily follow that defendants have engaged in a "real estate transaction," and it is only real estate brokers who have engaged in a "real estate transaction" who are potentially liable under the statute. In other words, it is not enough to invoke liability if a defendant is merely a real estate broker; instead, he must be a real estate broker that, because of unlawful discrimination, alters the terms of a real estate transaction, which is defined in relevant part as the actual "brokering *** of residential real property." See 775 ILCS 5/3-101(B) (West 2010).

¶ 36 Here, there is no allegation in the complaint that defendants actually brokered any short sales. The complaint merely alleges that defendants "recommended" or "suggested" short sales and claimed to be able to negotiate them. Nor is there any allegation in the complaint that defendant altered any terms or services in connection with a short sale because of unlawful discrimination. Under these circumstances, we reject the Attorney General's argument that the ruling on the motion to dismiss can be sustained on the basis that defendants were "real estate brokers."

¶ 37 Our resolution of the foregoing issues renders it unnecessary to address the remaining arguments of the parties.

¶ 38 CONCLUSION

¶ 39 For the foregoing reasons, we conclude that the appellate court was correct in answering the certified question in the affirmative. We further conclude, however, that the appellate court erred in its analysis and that count IV of plaintiff's complaint should have been dismissed without prejudice. Accordingly, we vacate the appellate court's discussion, which found that defendants engaged in a "real estate transaction" by providing "other financial assistance," and we remand the cause to the circuit court for further proceedings consistent with this opinion.

¶ 40 Appellate court judgment affirmed in part and vacated in part; cause remanded.

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted.

*2Mr. Justice Holmes

delivered the opinion of the Court.

In July, 1923, the plaintiff, the Kirby Lumber Company, issued its own bonds for $1-2,126,800 for which it received their par value. Later in the same year it purchased in the open market some of the same bonds at less than par, the difference of price being $137,521.30. The. question is whether this difference is a taxable gain or income of the plaintiff for the year 1923, By the Rev*3enue Act of (November 23,) 1921, c. 136, § 213 (a) gross income includes, “ gains or profits and income derived from any source whatever,” and by the Treasury Regulations authorized, by § 1303, that have been in force through repeated reenactments, “ If the corporation purchases and retires any of such bonds at a price less than the issuing price or face value, the excess of the issuing price or face value over the purchase price is. gain or income for the taxable year.” Article 545 (1) (c) of Regulations 62, under Revenue Act of 1921. See Article 544 (1) (c) of Regulations 45, under Revenue Act of 1918; .Article 545 (1) (c) of Regulations 65, under Revenue Act of 1924; Article 545 (1) (c) of Regulations 69, under Revenue Act of 1926; Article 68 (1) (c) of Regulations 74, under Revenue Act of 1928. We see no reason why the Regulations should not be accepted as a correct statement of the law.

In Bowers v. Kerbaugh-Empire Co., 271 U. S. 170, the defendant in error owned the stock of another company that had borrowed money repayable in marks or their equivalent for an enterprise that failed. At the time of payment the marks had fallen in value, which so.far as it went was a gain for the defendant in error, and it was contended by the plaintiff in error that the gain was taxable income. But the transaction as a whole was a loss, and the contention ■ was denied. Here there was no shrinkage of assets and the taxpayer made a clear gain. As a result of its dealings it made available $137,521.30 assets previously offset by the obligation of bonds now extinct. We see nothing to be gained by the discussion of judicial definitions. The defendant in error has realized within the year an accession to income,-if we take words in their plain popular, meaning, as they should be -taken here. Burnet v. Sanford & Brooks Co., 282 U. S. 359, 364.

Judgment reversed.

Mr. Chief Justice Warren

delivered the opinion of the Court.

This litigation involves two cases with independent factual backgrounds yet presenting the identical issue. The two cases were consolidated for argument before the Court of Appeals for the Third Circuit and were heard en banc. The common question is whether money received as exemplary damages for fraud or as the punitive two-thirds portion of a treble-damage antitrust recovery must be reported by a taxpayer as gross income under § 22 (a) of the Internal Revenue Code of 1939,1 In a single opinion, 211 F. 2d 928, the Court of Appeals affirmed the Tax Court’s separate rulings in favor of the taxpayers. 18 T. C. 860; 19 T. C. 637. Because of the frequent recurrence of the question and differing interpretations by the lower courts of this Court’s decisions bearing upon the problem, we granted the Commissioner of Internal Revenue’s ensuing petition for certiorari. 348 U. S. 813.

The facts of the cases were largely stipulated and are not in dispute. So far as pertinent they are as follows:

Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw *428were demands for exemplary damages for fraud2 and treble damages for injury to its business by reason of Hartford’s violation of the federal antitrust laws.3 In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T. C. 860, 870-872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals upheld the taxpayer.

Commissioner v. William Goldman Theatres, Inc.— William Goldman Theatres, Inc., a Delaware corporation operating motion picture houses in Pennsylvania, sued Loew’s, Inc., alleging a violation of the federal antitrust laws and seeking treble damages. After a holding that a violation had occurred, William Goldman Theatres, Inc. v. Loew’s, Inc., 150 F. 2d 738, the case was remanded to the trial court for a determination of damages. It was found that Goldman had suffered a loss of profits equal to $125,000 and was entitled to treble damages in the sum of $375,000. William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F. Supp. 103, aff’d, 164 F. 2d 1021, cert. denied, 334 U. S. 811. Goldman reported only $125,000 of the recovery as gross income and claimed that the $250,000 *429balance constituted punitive damages and as such was not taxable. The Tax Court agreed, 19 T. C. 637, and the Court of Appeals, hearing this with the Glenshaw case, affirmed. 211 F. 2d 928.

It is conceded by the respondents that there is no constitutional barrier to the imposition of a tax on punitive damages. Our question is one of statutory construction: are these payments comprehended by § 22 (a) ?

The sweeping scope of the controverted statute is readily apparent:

“SEC. 22. GROSS INCOME.

“(a) General Definition. — ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service ... of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. . . .” (Emphasis added.)4

This Court has frequently stated that this language was used by Congress to exert in this field “the full measure of its taxing power.” Helvering v. Clifford, 309 U. S. 331, 334; Helvering v. Midland Mutual Life Ins. Co., 300 U. S. 216, 223; Douglas v. Will cuts, 296 U. S. 1, 9; Irwin v. Gavit, 268 U. S. 161, 166. Respondents contend that punitive damages, characterized as “windfalls” flowing from the culpable conduct of third parties, are not within the scope of the section. But Congress applied no limitations as to the source of taxable receipts, nor restrictive *430labels as to their nature. And the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, 336 U. S. 28, 49; Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-91. Thus, the fortuitous gain accruing to a lessor by reason of the forfeiture of a lessee’s improvements on the rented property was taxed in Helvering v. Bruun, 309 U. S. 461. Cf. Robertson v. United States, 343 U. S. 711; Rutkin v. United States, 343 U. S. 130; United States v. Kirby Lumber Co., 284 U. S. 1. Such decisions demonstrate that we cannot but ascribe content to the catchall provision of § 22 (a), “gains or profits and income derived from any source whatever.” The importance of that phrase has been too frequently recognized since its first appearance in the Revenue Act of 19135 to say now that it adds nothing to the meaning of “gross income.”

Nor can we accept respondents’ contention that a narrower reading of § 22 (a) is required by the Court’s characterization of income in Eisner v. Macomber, 252 U. S. 189, 207, as “the gain derived from capital, from labor, or from both combined.” 6 The Court was there endeavoring to determine whether the distribution of a corporate stock dividend constituted a realized gain to the shareholder, or changed “only the form, not the essence,” of *431his capital investment. Id., at 210. It was held that the taxpayer had “received nothing out of the company’s assets for his separate use and benefit.” Id., at 211. The distribution, therefore, was held not a taxable event. In that context — distinguishing gain from capital — the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions. Helvering v. Bruun, supra, at 468-469; United States v. Kirby Lumber Co., supra, at 3.

Here we have instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion. The mere fact that the payments were extracted from the wrongdoers as punishment for unlawful conduct cannot detract from their character as taxable income to the recipients. Respondents concede, as they must, that the recoveries are taxable to the extent that they compensate for damages actually incurred. It would be an anomaly that could not be justified in the absence of clear congressional intent to say that a recovery for actual damages is taxable but not the additional amount extracted as punishment for the same conduct which caused the injury. And we find no such evidence of intent to exempt these payments.

It is urged that re-enactment of § 22 (a) without change since the Board of Tax Appeals held punitive damages nontaxable in Highland Farms Corp., 42 B. T. A. 1314, indicates congressional satisfaction with that holding. Re-enactment — particularly without the slightest affirmative indication that Congress ever had the Highland Farms decision before it — is an unreliable indicium at best. Helvering v. Wilshire Oil Co., 308 U. S. 90, 100-101; Koshland v. Helvering, 298 U. S. 441, 447. Moreover, the Commissioner promptly published his nonacquiescence in this portion of the Highland Farms holding7 and has, *432before and since, consistently maintained the position that these receipts are taxable.8 It therefore cannot be said with certitude that Congress intended to carve an exception out of § 22 (a)’s pervasive coverage. Nor does the 1954 Code’s 9 legislative history, with its reiteration of the proposition that' statutory gross income is “all-inclusive," 10 give support to respondents’ position. The definition of gross income has been simplified, but no effect upon its present broad scope was intended.11 Certainly punitive damages cannot reasonably be classified as gifts, cf. Commissioner v. Jacobson, 336 U. S. 28, 47-52, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to *433bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. See Helvering v. Midland Mutual Life Ins. Co., supra, at 223.

Reversed.

Mr. Justice Douglas dissents.

Mr. Justice Harlan took no part in the consideration or decision of this case.

OPINION OF THE COURT

COWEN, Circuit Judge.

David Zarin (“Zarin”) appeals from a decision of the Tax Court holding that he recognized $2,935,000 of income from discharge of indebtedness resulting from his gambling activities, and that he should be taxed on the income.1 This Court has jurisdiction to review the Tax Court’s decision under section 7482 of the Internal Revenue Code (1954) (the “Code”). After considering the issues raised by this appeal, we will reverse.

I.

Zarin was a professional engineer who participated in the development, construction, and management of various housing projects. A resident of Atlantic City, New Jersey, Zarin occasionally gambled, both in his hometown and in other places where gambling was legalized. To facilitate his gaming activities in Atlantic City, Zarin applied to Resorts International Hotel (“Resorts”) for a credit line in June, 1978. Following a credit check, Resorts granted Zarin $10,000 of credit. Pursuant to this credit arrangement with Resorts, Zarin could write a check, called a marker,2 and in return receive chips, which could then be used to gamble at the casino’s tables.

Before long, Zarin developed a reputation as an extravagant “high roller” who routinely bet the house maximum while playing craps, his game of choice. Considered a “valued gaming patron” by Resorts, Zarin had his credit limit increased at *112regular intervals without any further credit checks, and was provided a number of complimentary services and privileges. By November, 1979, Zarin’s permanent line of credit had been raised to $200,000. Between June, 1978, and December, 1979, Za-rin lost $2,500,000 at the craps table, losses he paid in full.

Responding to allegations of credit abuses, the New Jersey Division of Gaming Enforcement filed with the New Jersey Casino Control Commission a complaint against Resorts. Among the 809 violations of casino regulations alleged in the complaint of October, 1979, were 100 pertaining to Zarin. Subsequently, a Casino Control Commissioner issued an Emergency Order, the effect of which was to make further extensions of credit to Zarin illegal.

Nevertheless, Resorts continued to extend Zarin’s credit limit through the use of two different practices: “considered cleared” credit and “this trip only” credit.3 Both methods effectively ignored the Emergency Order and were later found to be illegal.4

By January, 1980, Zarin was gambling compulsively and uncontrollably at Resorts, spending as many as sixteen hours a day at the craps table.5 During April, 1980, Resorts again increased Zarin’s credit line without further inquiries. That same month, Zarin delivered personal checks and counterchecks to Resorts which were returned as having been drawn against insufficient funds. Those dishonored checks totaled $3,485,000. In late April, Resorts cut off Zarin’s credit.

Although Zarin indicated that he would repay those obligations, Resorts filed a New Jersey state court action against Za-rin in November, 1980, to collect the $3,435,000. Zarin denied liability on grounds that Resort’s claim was unenforceable under New Jersey regulations intended to protect compulsive gamblers. Ten months later, in September, 1981, Resorts and Zarin settled their dispute for a total of $500,000.

The Commissioner of Internal Revenue (“Commissioner”) subsequently determined deficiencies in Zarin’s federal income taxes for 1980 and 1981, arguing that Zarin recognized $3,435,000 of income in 1980 from larceny by trick and deception. After Za-rin challenged that claim by filing a Tax Court petition, the Commissioner abandoned his 1980 claim, and argued instead that Zarin had recognized $2,935,000 of income in 1981 from the cancellation of indebtedness which resulted from the settlement with Resorts.

Agreeing with the Commissioner, the Tax Court decided, eleven judges to eight, that Zarin had indeed recognized $2,935,000 of income from the discharge of indebtedness, namely the difference between the original $3,435,000 “debt” and the $500,000 settlement. Zarin v. Commissioner, 92 T.C. 1084 (1989). Since he was in the seventy percent tax bracket, Zarin’s deficiency for 1981 was calculated to be $2,047,245. With interest to April 5, 1990, Zarin allegedly owes the Internal Revenue Service $5,209,033.96 in additional taxes. Zarin appeals the order of the Tax Court.

II.

The sole issue before this Court is whether the Tax Court correctly held that Zarin had income from discharge of indebtedness.6 Section 108 and section 61(a)(12) of *113the Code set forth “the general rule that gross income includes income from the discharge of indebtedness.” I.R.C. § 108(e)(1). The Commissioner argues, and the Tax Court agreed, that pursuant to the Code, Zarin did indeed recognize income from discharge of gambling indebtedness.

Under the Commissioner’s logic, Resorts advanced Zarin $3,435,000 worth of chips, chips being the functional equivalent of cash. At that time, the chips were not treated as income, since Zarin recognized an obligation of repayment. In other words, Resorts made Zarin a tax-free loan. However, a taxpayer does recognize income if a loan owed to another party is cancelled, in whole or in part. I.R.C. §§ 61(a)(12), 108(e). The settlement between Zarin and Resorts, claims the Commissioner, fits neatly into the cancellation of indebtedness provisions in the Code. Za-rin owed $3,435,000, paid $500,000, with the difference constituting income. Although initially persuasive, the Commissioner’s position is nonetheless flawed for two reasons.

III.

Initially, we find that sections 108 and 61(a)(12) are inapplicable to the Za-rin/Resorts transaction. Section 61 does not define indebtedness. On the other hand, section 108(d)(1), which repeats and further elaborates on the rule in section 61(a)(12), defines the term as any indebtedness “(A) for which the taxpayer is liable, or (B) subject to which the taxpayer holds property.” I.R.C. § 108(d)(1). In order to bring the taxpayer within the sweep of the discharge of indebtedness rules, then, the IRS must show that one of the two prongs in the section 108(d)(1) test is satisfied. It has not been demonstrated that Zarin satisfies either.

Because the debt Zarin owed to Resorts was unenforceable as a matter of New Jersey state law,7 it is clearly not a debt “for which the taxpayer is liable.” I.R.C. § 108(d)(1)(A). Liability implies a legally enforceable obligation to repay, and under New Jersey law, Zarin would have no such obligation.

Moreover, Zarin did not have a debt subject to which he held property as required by section 108(d)(1)(B). Zarin’s indebtedness arose out of his acquisition of gambling chips. The Tax Court held that gambling chips were not property, but rather, “a medium of exchange within the Resorts casino” and a “substitute for cash.” Alternatively, the Tax Court viewed the chips as nothing more than “the opportunity to gamble and incidental services ...” Zarin, 92 T.C. at 1099. We agree with the gist of these characterizations, and hold that gambling chips are merely an accounting mechanism to evidence debt.

*114Gaming chips in New Jersey during 1980 were regarded “solely as evidence of a debt owed to their custodian by the casino licensee and shall be considered at no time the property of anyone other than the casino licensee issuing them.” N.J.Admin.Code tit. 19k, § 19:46-1.5(d) (1990). Thus, under New Jersey state law, gambling chips were Resorts’ property until transferred to Zarin in exchange for the markers, at which point the chips became “evidence” of indebtedness (and not the property of Zarin).

Even were there no relevant legislative pronouncement on which to rely, simple common sense would lead to the conclusion that chips were not property in Zarin’s hands. Zarin could not do with the chips as he pleased, nor did the chips have any independent economic value beyond the casino. The chips themselves were of little use to Zarin, other than as a means of facilitating gambling. They could not have been used outside the casino. They could have been used to purchase services and privileges within the casino, including food, drink, entertainment, and lodging, but Za-rin would not have utilized them as such, since he received those services from Resorts on a complimentary basis. In short, the chips had no economic substance.

Although the Tax Court found that theoretically, Zarin could have redeemed the chips he received on credit for cash and walked out of the casino, Zarin, 92 T.C. at 1092, the reality of the situation was quite different. Realistically, before cashing in his chips, Zarin would have been required to pay his outstanding IOUs. New Jersey state law requires casinos to “request patrons to apply any chips or plaques in their possession in reduction of personal checks or Counter Checks exchanged for purposes of gaming prior to exchanging such chips or plaques for cash or prior to departing from the casino area.” N.J.Admin.Code tit. 19k, § 19:45-1.24(s) (1979) (currently N.J.Admin.Code tit. 19k, § 19:45-1.25(o) (1990) (as amended)). Since his debt at all times equalled or exceeded the number of chips he possessed, redemption would have left Zarin with no chips, no cash, and certainly nothing which could have been characterized as property.

Not only were the chips non-property in Zarin’s hands, but upon transfer to Zarin, the chips also ceased to be the property of Resorts. Since the chips were in the possession of another party, Resorts could no longer do with the chips as it pleased, and could no longer control the chips’ use. Generally, at the time of a transfer, the party in possession of the chips can gamble with them, use them for services, cash them in, or walk out of the casino with them as an Atlantic City souvenir. The chips therefore become nothing more than an accounting mechanism, or evidence of a debt, designed to facilitate gambling in casinos where the use of actual money was forbidden.8 Thus, the chips which Zarin held were not property within the meaning of I.R.C. § 108(d)(1)(B).9

In short, because Zarin was not liable on the debt he allegedly owed Resorts, and because Zarin did not hold “property” subject to that debt, the cancellation of indebtedness provisions of the Code do not apply to the settlement between Resorts and Za-rin. As such, Zarin cannot have income from the discharge of his debt.

*115IV.

Instead of analyzing the transaction at issue as cancelled debt, we believe the proper approach is to view it as disputed debt or contested liability. Under the contested liability doctrine, if a taxpayer, in good faith, disputed the amount of a debt, a subsequent settlement of the dispute would be treated as the amount of debt cognizable for tax purposes. The excess of the original debt over the amount determined to have been due is disregarded for both loss and debt accounting purposes. Thus, if a taxpayer took out a loan for $10,000, refused in good faith to pay the full $10,000 back, and then reached an agreement with the lendor that he would pay back only $7000 in full satisfaction of the debt, the transaction would be treated as if the initial loan was $7000. When the taxpayer tenders the $7000 payment, he will have been deemed to have paid the full amount of the initially disputed debt. Accordingly, there is no tax consequence to the taxpayer upon payment.

The seminal “contested liability” case is N. Sobel, Inc. v. Commissioner, 40 B.T.A. 1263 (1939). In Sobel, the taxpayer exchanged a $21,700 note for 100 shares of stock from a bank. In the following year, the taxpayer sued the bank for recision, arguing that the bank loan was violative of state law, and moreover, that the bank had failed to perform certain promises. The parties eventually settled the case in 1935, with the taxpayer agreeing to pay half of the face amount of the note. In the year of the settlement, the taxpayer claimed the amount paid as a loss. The Commissioner denied the loss because it had been sustained five years earlier, and further asserted that the taxpayer recognized income from the discharge of half of his indebtedness.

The Board of Tax Appeals held that since the loss was not fixed until the dispute was settled, the loss was recognized in 1935, the year of the settlement, and the deduction was appropriately taken in that year. Additionally, the Board held that the portion of the note forgiven by the bank “was not the occasion for a freeing of assets and that there was no gain ...” Id. at 1265. Therefore, the taxpayer did not have any income from cancellation of indebtedness.

There is little difference between the present case and Sobel. Zarin incurred a $3,435,000 debt while gambling at Resorts, but in court, disputed liability on the basis of' unenf or ceabiíity. A settlement bf‘$500,-000”was eventually agreed upon. It follows from Sobel that the settlement served only to fix the amount of debt. No income was realized or recognized. When Zarin paid the $500,000, any tax consequence dissolved.10

Only one other court has addressed a case factually similar to the one before us. In United States v. Hall, 307 F.2d 238 (10th Cir.1962), the taxpayer owed an unenforceable gambling debt alleged to be $225,000. Subsequently, the taxpayer and the creditor settled for $150,000. The taxpayer then transferred cattle valued at $148,110 to his creditor in satisfaction of the settlement agreement. A jury held that the parties fixed the debt at $150,000, and that the taxpayer recognized income from cancellation of indebtedness equal to the difference between the $150,000 and the $148,110 value affixed to the cattle. Arguing that the taxpayer recognized income equal to the difference between $225,000 and $148,000, the Commissioner appealed.

The Tenth Circuit rejected the idea that the taxpayer had any income from cancellation of indebtedness. Noting that the gambling debt was unenforceable, the Tenth Circuit said, “The cold fact is that taxpayer suffered a substantial loss from gambling, the amount of which was determined by the transfer.” Id. at 241. In effect, the Court held that because the debt was unenforceable, the amount of the loss and resulting debt cognizable for tax purposes were fixed by the settlement at $148,110. Thus, the Tenth Circuit lent its endorse*116ment to the contested liability doctrine in a factual situation strikingly similar to the one at issue.11

The Commissioner argues that Sobel and the contested liability doctrine only apply when there is an unliquidated debt; that is, a debt for which the amount cannot be determined. See Colonial Sav. Ass’n v. Commissioner, 85 T.C. 855, 862-863 (1985) (Sobel stands for the proposition that “there must be a liquidated debt”), aff'd, 854 F.2d 1001 (7th Cir.1988). See also N. Sobel, Inc. v. Commissioner, 40 B.T.A. at 1265 (there was a dispute as to “liability and the amount” of the debt). Since Zarin contested his liability based on the unen-forceability of the entire debt, and did not dispute the amount of the debt, the Commissioner would have us adopt the reasoning of the Tax Court, which found that Zarin’s debt was liquidated, therefore barring the application of Sobel and the contested liability doctrine. Zarin, 92 T.C. at 1095 (Zarin’s debt “was a liquidated amount" and “[tjhere is no dispute about the amount [received].”).

We reject the Tax Court’s rationale. When a debt is unenforceable, it follows that the amount of the debt, and not just the liability thereon, is in dispute. Although a debt may be unenforceable, there still could be some value attached to its worth. This is especially so with regards to gambling debts. In most states, gambling debts are unenforceable, and have “but slight potential ...” United States v. Hall, 307 F.2d 238, 241 (10th Cir.1962). Nevertheless, they are often collected, at least in part. For example, Resorts is not a charity; it would not have extended illegal credit to Zarin and others if it did not have some hope of collecting debts incurred pursuant to the grant of credit.

Moreover, the debt is frequently incurred to acquire gambling chips, and not money. Although casinos attach a dollar value to each chip, that value, unlike money’s, is not beyond dispute, particularly given the illegality of gambling debts in the first place. This proposition is supported by the facts of the present case. Resorts gave Zarin $3.4 million dollars of chips in exchange for markers evidencing Zarin’s debt. If indeed the only issue was the enforceabilty of the entire debt, there would have been no settlement. Zarin would have owed all or nothing. Instead, the parties attached a value to the debt considerably lower than its face value. In other words, the parties agreed that given the circumstances surrounding Zarin’s gambling spree, the chips he acquired might not have been worth $3.4 million dollars, but were worth something. Such a debt cannot be called liquidated, since its exact amount was not fixed until settlement.

To summarize, the transaction between Zarin and Resorts can best be characterized as a disputed debt, or contested liability. Zarin owed an unenforceable debt of $3,435,000 to Resorts. After Zarin in good faith disputed his obligation to repay the debt, the parties settled for $500,000, which Zarin paid. That $500,000 settlement fixed the amount of loss and the amount of debt cognizable for tax purposes. Since Zarin was deemed to have owed $500,000, and since he paid Resorts $500,000, no adverse tax consequences attached to Zarin as a result.12

*117V.

In conclusion, we hold that Zarin did not have any income from cancellation of indebtedness for two reasons. First, the Code provisions covering discharge of debt are inapplicable since the definitional requirement in I.R.C. section 108(d)(1) was not met. Second, the settlement of Zarin’s gambling debts was a contested liability. We reverse the decision of the Tax Court and remand with instructions to enter judgment that Zarin realized no income by reason of his settlement with Resorts.

STAPLETON, Circuit Judge,

dissenting.

I respectfully dissent because I agree with the Commissioner’s appraisal of the economic realities of this matter.

Resorts sells for cash the exhilaration and the potential for profit inherent in games of chance. It does so by selling for cash chips that entitle the holder to gamble at its casino. Zarin, like thousands of others, wished to purchase what Resorts was offering in the marketplace. He chose to make this purchase on credit and executed notes evidencing his obligation to repay the funds that were advanced to him by Resorts. As in most purchase money transactions, Resorts skipped the step of giving Zarin cash that he would only return to it in order to pay for the opportunity to gamble. Resorts provided him instead with chips that entitled him to participate in Resorts’ games of chance on the same basis as others who had paid cash for that privilege.1 Whether viewed as a one or two-step transaction, however, Zarin received either $3.4 million in cash or an entitlement for which others would have had to pay $3.4 million.

Despite the fact that Zarin received in 1980 cash or an entitlement worth $3.4 million, he correctly reported in that year no income from his dealings with Resorts. He did so solely because he recognized, as evidenced by his notes, an offsetting obligation to repay Resorts $3.4 million in cash. See, e.g., Vukasovich, Inc. v. Commissioner, 790 F.2d 1409 (9th Cir.1986); United States v. Rochelle, 384 F.2d 748 (5th Cir.1967), cert. denied, 390 U.S. 946, 88 S.Ct. 1032, 19 L.Ed.2d 1135 (1968); Bittker and Thompson, Income From the Discharged Indebtedness: The Progeny of United States v. Kirby Lumber Co., 66 Calif.L.Rev. 159 (1978). In 1981, with the delivery of Zarin’s promise to pay Resorts $500,000 and the execution of a release by Resorts, Resorts surrendered its claim to repayment of the remaining $2.9 million of the money Zarin had borrowed. As of that time, Zarin’s assets were freed of his potential liability for that amount and he recognized gross income in that amount. Commissioner v. Tufts, 461 U.S. 300, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983); United States v. Kirby Lumber Company, 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131 (1931); Vukasovich, Inc. v. Commissioner, 790 F.2d 1409 (9th Cir.1986). But see United States v. Hall, 307 F.2d 238 (10th Cir.1962).2

*118The only alternatives I see to this conclusion are to hold either (1) that Zarin realized $3.4 million in income in 1980 at a time when both parties to the transaction thought there was an offsetting obligation to repay or (2) that the $3.4 million benefit sought and received by Zarin is not taxable at all. I find the latter alternative unacceptable as inconsistent with the fundamental principle of the Code that anything of commercial value received by a taxpayer is taxable unless expressly excluded from gross income.3 Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483 (1955); United States v. Kirby Lumber Co., supra. I find the former alternative unacceptable as impracticable. In 1980, neither party was maintaining that the debt was unenforceable and, because of the settlement, its unenforceability was not even established in the litigation over the debt in 1981. It was not until 1989 in this litigation over the tax consequences of the transaction that the unenforceability was first judicially declared. Rather than require such tax litigation to resolve the correct treatment of a debt transaction, I regard it as far preferable to have the tax consequences turn on the manner in which the debt is treated by the parties. For present purposes, it will suffice to say that where something that would otherwise be includable in gross income is received on credit in a purchase money transaction, there should be no recognition of income so long as the debtor continues to recognize an obligation to repay the debt. On the other hand, income, if not earlier recognized, should be recognized when the debt- or no longer recognizes an obligation to repay and the creditor has released the debt or acknowledged its unenforceability.4

In this view, it makes no difference whether the extinguishment of the creditor’s claim comes as a part of a compromise. Resorts settled for 14 cents on the dollar presumably because it viewed such a settlement as reflective of the odds that the debt would be held to be enforceable. While Zarin should be given credit for the fact that he had to pay 14 cents for a release, I see no reason why he should not realize gain in the same manner as he would have if Resorts had concluded on its own that the debt was legally unenforceable and had written it off as uncollectible.5

I would affirm the judgment of the Tax Court.