Legal Opinions - U.S. District Court, Maryland: January 28, 2008

Daily Record, The (Baltimore), Jan 28, 2008

Additionally, a more recent decision by the 7th Circuit noted that when examining a FCRA claim, "a court need only determine whether the four corners of the offer satisfy the statutory definition ..., and whether the terms are honored when consumers accept." Murray v. GMAC Mortg. Corp., 434 F.3d 948, 956 (7th Cir. 2006). See also Perry v. First Nat'l Bank, 459 F.3d 816, 825 (7th Cir. 2006).

One of the factors that argued against the Cole offer's being of sufficient value was the paltry amount of guaranteed credit ($300), and the fact that it could only be used to purchase a car. Id. at 728. See also Hyde v. RDA, Inc., 389 F. Supp. 2d 658 (D. Md. 2005).

Credit offers such as Capital One's may be distinguished from the type of offer made in Cole. See Soroka v. JP Morgan Chase & Co., 500 F. Supp. 2d 217, 223 (S.D.N.Y. 2007) (noting that the amount of credit was more than "nominal," and "Defendants were not attempting to sell Plaintiff any other products in conjunction with the offer of credit, as were the defendants in Cole"). In this case, the minimum amount to be financed was $10,000, and the creditor and car dealer were two separate entities.

Contracts

Damages limited by contract

BOTTOM LINE: Plain language of contract precluded Plaintiff from seeking damages for delays.

CASE: Potomac Constructors, LLC v. EFCO Corp., Civil Case No. RWT 06-2918 (decided Jan. 9, 2008) (Judge TITUS).

FACTS: Potomac Constructors, LLC (Potomac), was the general contractor for the Maryland approach spans in the $2.5 billion dollar project to replace the Woodrow Wilson Bridge. Potomac's $191 million dollar contract with the Maryland State Highway Administration included a strict timeline and daily financial penalties for delays.

Potomac entered into a purchase order agreement with EFCO Corporation to engineer and supply steel "formwork" for $2.075 million dollars. The formwork was used to cast concrete segments that would be incorporated into the bridge's support structure.

Potomac filed suit seeking damages of $13 million, claiming that the entire project was significantly delayed by (1) EFCO's tardy deliveries, and (2) the poor quality of the formwork.

The Purchase Order agreement entered into by the parties contains a section entitled "WARRANTY AND CONDITIONS." This section enumerates the remedies available for breach of the Purchase Order.

The relevant language states that: "Seller's liability shall be strictly limited to those charges, expenses, costs and damages expressly provided for in this agreement. Seller shall, in no event, be liable for any additional or consequential damages. ... The Property sold hereunder is warranted against defective workmanship or materials only, and Seller's liability is strictly limited to the repair or replacement of any defective property. ... In no event shall Seller's liability exceed the actual and direct costs of labor, materials, transportation and equipment reasonably necessary for the repair or replacement of equipment covered, nor include any other incidental, indirect, or consequential damages. ... Seller will use all reasonable means to deliver within the time specified, but assumes no liability for loss or damage arising from delay, or no [sic] fulfillment of contract by reasons of fires, strikes, delays in transportation, regulations of the United States Government, or any cause which is unavoidable or beyond its control."