This week, Judge Nathan granted summary judgment against a putative class action alleging that the Garamond LC font used by Capital One Bank in its credit card applications was not “clear and conspicuous” as required by the Truth in Lending Act.  The plaintiffs argued that the commentaries to guidance provided by the Consumer Financial Protection Bureau indicated that no font smaller than 10-point Arial 10-point could be used.  Judge Nathan found that while the CFPB commentary provided helpful guidance, it did not require that application disclosures be made only in 10-point Arial or a font of the same size.

Judge Nathan’s opinion notes that while the 10-point font is required, font size is merely a ratio of the size of the letters to other sizes within the same font.  Thus, the true size of 10-point fonts can vary widely across fonts (from the large Arial to the miniscule Angsana New, as Judge Nathan notes).  As a result, Judge Nathan employed a fact-specific inquiry to determine that Garamond LC’s letters were not “unreasonably small” when compared to Arial, and not so small that “it would not be readily noticeable to a hypothetical consumer.”