Full opinion text
MEMORANDUM OPINION AND ORDER JEFFREY COLE, United States Magistrate Judge. NorVergence, Inc. leased telecommunications equipment to small businesses, religious and other non-profit organizations as part of an integrated package of telecommunications services. The consumers — as we shall see, this is the appropriate designation under § 5 of the Federal Trade Commission Act (“FTCA”)—were promised “dramatic savings” on the telecommunications services as the result of the “supposedly wondrous equipment,” which NorVergence called a “Merged Access Transport Intelligent Xchange (MATRIX) device,” IFC Credit Corp. v. United Business & Industrial Federal Credit Union, 512 F.3d 989, 991 (7th Cir.2008)(Easterbrook, C.J.), with its supposed “proprietary technology.” (Complaint ¶¶ 13-14). But like the world in the Waehowski brothers’ film, The Matrix, NorVergence’s MATRIX was an illusion, incapable of doing the things NorVergence’s salesmen claimed since it was merely a standard integrated access box that cost NorVer-gence only a few to several hundred dollars to buy. (Complaint ¶ 13). The transactions, like most successful schemes to defraud, were “dressed in the garb of honesty and hedged about with all the appearances of legal and enforceable undertakings.” Brooks v. United States, 146 F. 223 (8th Cir.1906). The transactions were structured so that the Equipment Rental Agreements (“ERAs”) appeared as stand-alone agreements that made no mention of the telecommunications services (Complaint ¶¶ 8, 18), even though without those services the MATRIX boxes served no purpose, and the transactions would never have been entered into. Of the total monies due for service and equipment, the bulk was allocated to rental of the MATRIX box. The ERAs contained a provision that is known in the equipment leasing industry as a “hell or high water” clause. In re United Air Lines, Inc., 447 F.3d 504, 507 (7th Cir.2006). In other words, the consumer must pay the rental fee for the equipment no matter what. Of course, the customer might have had defenses against NorVergence had there been a cessation of telecommunications services. See e.g., RSACO, LLC v. Resource Support Associates, Inc., 208 Fed.Appx. 632 (10th Cir.2006). The scheme thus required that NorVergence assign the ERAs, thereby insuring, at least theoretically, that an assignee could insist on monthly lease payments even if there were an interruption or cessation of telecommunications services. IFC, a privately held Illinois corporation in the equipment leasing business, sometimes purchases portfolios of equipment leases from other companies. Between 2003 and 2004, it purchased from NorVer-gence at a substantial discount about 800 of the ERAs with a face value of $21 million. The complaint charges that after three years, NorVergence’s scheme collapsed, leaving the lessees with no telecommunications services, a worthless MATRIX box, and lease payments that in some cases approached $160,000. IFC insisted on continued monthly payments and filed hundreds of cases in forums distant from the residences of many of the defendants pursuant to the forum selection clause in the ERAs. So long as IFC could claim to be a holder in due course, it would be unfettered by any defenses that the lessee might have against NorVergence and could demand payment on the leases even if there had been a termination of telecommunications services. Cf. IFC Credit Corp., 512 F.3d at 989. The Federal Trade Commission sued NorVergence for fraud and obtained a default judgment. It has brought the present action seeking to bar IFC from collecting on the MATRIX leases. Count I charges that in its attempts to collect the payments under the ERAs, IFC made deceptive statements in violation of § 5, consisting of statements to customers that they are unconditionally obligated to make payments under the rental agreements and that they had no defenses. Drawing all reasonable inferences in favor of the FTC, Count II charges that IFC should have known that the lessees thought that the predominant purpose of their transactions with NorVergence was the purchase of telecommunications services — not the rental of the Matrix box — that the ERAs, themselves, and other information available to IFC demonstrated the likelihood that the consumers were deceived into signing the ERAs (Complaint, ¶ 31)(emphasis supplied), and that IFC’s acquisition and enforcement of the ERAs is an unfair practice under § 5 of the FTCA. 15 U.S.C. § 45. Finally, Count III charges that IFC’s invocation of the forum selection clause is an unfair practice because it allows IFC to bring suits to collect lease payments in a forum hundreds or thousands of miles away the residences of the affected consumers. IFC has moved to dismiss all three counts for failure to state a claim on which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. Although the arguments are count-specific, common to all is the contention that the lessees are “small businesses,” religious and other not-for-profit organizations and thus are not “consumers” within the meaning of the Federal Trade Commission Act — a status IFC insists only includes natural persons who have purchased goods or services normally used for personal or household use. Needless to say, the parties insist that their interpretation of “consumer” in the FTCA is the right one and the only one consistent with the text of the Act, its legislative history, and the FTC’s own pri- or applications. Yet, they do agree that this is a case of first impression, and that no prior case has explicitly dealt with the question. One case involved unfair or deceptive practices directed against business entities, F.T.C. v. Cyberspace.Com LLC, 453 F.3d 1196, 1198 (9th Cir.2006), but the issue was not raised or discussed there, and thus it does not answer the question of how the term “consumer,” in the FTCA is to be defined. Prior cases have precedential value only when there has been a deliberative consideration of the issue at hand. Sub-silentio or assumptive resolution is not enough. See Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); United States v. Moore, 521 F.3d 681, 683 (7th Cir.2008), 2008 WL 818007 at * 2; United States v. Rodriguez-Rodriguez, 453 F.3d 458, 460 (7th Cir.2006); Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir.2006). I. FACTUAL BACKGROUND A. NorVergence And The Equipment Rental Agreements NorVergence was a New Jersey company that purchased telecommunications services from common carriers and resold those services to its customers as part of an integrated, long-term package that included landline, cellular telephone and internet services and the leasing of hardware that made usable those services. The customers were “small businesses and religious and other non-profit organizations, and individuals who personally guaranteed the obligations.” (Complaint, ¶ 8). The sales pitch promised exceptional savings on telecommunications costs. NorVergence salespeople would review a potential customer’s bills for landlines, internet, and cell phones, and make a written proposal that typically resulted in a 30% savings for a package of similar NorVergence services, not to mention promises of unlimited long distance calling, unlimited cell phone minutes, unlimited internet service, and more. (Complaint, ¶¶ 8, 11-12). NorVergence claimed it could achieve these stunning savings because of the MATRIX device. Of course that wasn’t so: it was just a standard line splitter that came in two versions, the MATRIX 850 and the MATRIX Soho. The 850 was used to connect analog telephone equipment to a telecom provider’s high bandwidth data line, while the Soho connected to a DSL or cable modem typically used to access Internet services. These devices cost NorVergence anywhere from $270 to $1300. The typical 60 month rental agreements could run as high as $60,000 to $120,000. (Complaint, ¶¶ 13-20). Once the customer was on the hook— and perhaps as many as 60% found the lure of promised savings of 30% savings irresistible (Complaint, ¶¶ 12, 32)—NorVergence had them sign not only the Equipment Rental Agreement, but several other documents: a “Customer Qualifying Questionnaire,” an “Accurate Bill Receipt and Proposal Request,” a “Receipt of Savings Guarantee Subject to Mutual Due Diligence & Acceptance by Engineering,” a “Credit Application,” a “Letter of Agency,” a “No-Risk Reservation Agreement,” a “Hardware Application,” and a “Service Application.” (Complaint, ¶ 16). The customers received itemized quotes of projected savings, which clearly stated that about 80% of the payments for the overall package would be for equipment rental. Each of the documents was just one or two pages in length. (Exhibits Supporting Plaintiff’s Motion for Prelimviary Injunction, Ex. K). The ERA appeared to be a standard form equipment lease, covering both sides of a single page. It made no mention of telecommunications services and covered only the rental of the equipment necessary to provide the services. (Complaint, ¶ 8). Its terms were straightforward and understandable. The front side provided that the “renter” agreed that the equipment would “not be used for personal, family or household purposes.” Also on the first side, in bold type a bit above the signature line, the ERA stated that the “obligations to make all Rental Payments for the entire term are not subject to set off, withholding or deduction for any reason whatsoever.” Directly over the signature lines, also in bold-faced type but capitalized as well, the ERA stated: “THIS RENTAL MAY NOT BE CANCELLED OR TERMINATED EARLY.” The ERAs also contained a “hell or high water” clause, In re United Air Lines, Inc., 447 F.3d 504, 507 (7th Cir.2006), unconditionally requiring payment of the monthly fee for the equipment. See, e.g., Wells Fargo Bank, N.A. v. BrooksAmerica Mortgage Corp., 419 F.3d 107, 110 (2nd Cir.2005); Faust Printing, Inc. v. MAN Capital Corp., 2007 WL 4442325, at *4 (N.D.Ill.Dec.14, 2007); IFC Credit Corp. v. United Business & Indust. Federal Credit Union, 474 F.Supp.2d 956, 959 (N.D.Ill.2006), rev’d on other grounds, IFC Credit Corp. v. United Business & Industrial Federal Credit Union, 512 F.3d 989 (7th Cir.2008). On the second column of the second side, in slightly larger, bold-faced type, and in all-caps, the ERA stated: YOUR DUTY TO MAKE THE RENTAL PAYMENTS IS UNCONDITIONAL DESPITE EQUIPMENT FAILURE, DAMAGE LOSS OR OTHER PROBLEM. RENTER IS RENTING THE EQUIPMENT “AS IS”, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THIS AGREEMENT. IF THE EQUIPMENT DOES NOT WORK AS REPRESENTED BY THE MANUFACTURER OR SUPPLIER, OR IF THE MANUFACTURER OR SUPPLIER OR ANY OTHER PERSON FAILS TO PROVIDE SERVICE OR MAINTENANCE, OR IF THE EQUIPMENT IS UNSATISFACTORY FOR ANY REASON, YOU WILL MAKE ANY SUCH CLAIM SOLELY AGAINST THE MANUFACTURER OR SUPPLIER OR OTHER PERSON AND WILL MAKE NO CLAIM AGAINST US. In addition, just above the consumer’s initial line at the bottom of the second column of the second side, the ERA also stated, in bold-faced type, mostly all-caps: NO WARRANTIES: We are renting the equipment to you “AS IS”. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THIS AGREEMENT ... You agree to continue making payments to us under this Rental regardless of any claims you may have against the supplier or manufacturer. YOU WAIVE ANY RIGHTS WHICH WOULD ALLOW YOU TO: (a) cancel or repudiate the Rental; (b) reject or revoke acceptance of the Equipment; (b) grant a security interest in the Equipment; (d) accept partial delivery of the Equipment; (e) “cover” by making any purchase or Rental of substitute Equipment; and (f) seek specific performance against us. YOU UNDERSTAND THAT ANY AS-SIGNEE IS A SEPARATE AND INDEPENDENT COMPANY FROM RENTOR/MANUFACTURER AND THAT NEITHER WE NOR ANY OTHER PERSON IS THE ASSIGN-EE’S AGENT. YOU AGREE THAT NO REPRESENTATION, GUARANTEE OR WARRANTY BY THE REN-TOR OR ANY OTHER PERSON IS BINDING ON ANY ASSIGNEE, AND NO BREACH BY RENTOR OR ANY OTHER PERSON WILL EXCUSE YOUR OBLIGATIONS TO ANY AS-SIGNEE. The ERAs also included the following “waiver of defenses” clause, in bold-faced type, about three-quarters of the way down the first column of the second page: ASSIGNMENT: YOU MAY NOT SELL, PLEDGE, TRANSFER, ASSIGN OR SUBRENT THE EQUIPMENT OR THIS RENTAL. We may sell, assign or transfer all or any part of this Rental and/or the Equipment without notifying you. The new owner will have the same right that we have, but not our obligations. You agree you will not assert against the new owner any claims, defenses or set-offs that you may have against us. B. Exit NorVergence, Enter IFC In the autumn of 2003, NorVergence executed “Master Program Agreements” with perhaps as many as forty finance companies, including IFC, under which it sold the ERAs at a discount on the total rental price. See IFC Credit Corp. v. Rieker Shoe Corp., 378 Ill.App.3d 77, 317 Ill.Dec. 214, 881 N.E.2d 382 (1st Dist. 2007); National City Commercial Capital Corp. v. Gateway Pacific Contractors, Inc., 2007 WL 3232440, at *3 n. 4 (S.D.Ohio 2007); Preferred Capital, Inc. v. Sarasota Kennel Club, Inc., 489 F.3d 303, 305 (6th Cir.2007); Studebaker-Worthington Leasing Corp. v. Michael Rachlin & Co., LLC, 357 F.Supp.2d 529, 531 (E.D.N.Y. Feb.22, 2004). If the payments under the ERA over a five-year term were to be $65,000, for example, IFC would pay NorVergence $49,000. In the event of a default on the first payment, IFC could require NorVergence to buy back that agreement. (Complaint, ¶¶ 21-23). As NorVergence’s price quotes made clear, the payments were structured so that the bulk of what was paid came under the ERAs. When NorVergence sold the ERAs, its only ongoing income came from the small amounts that had been allocated toward telecommunications services. That income was inadequate to pay the service providers. The income it received from the assignment of the ERAs was used for purposes other than payment to telecommunications providers and what remained was insufficient to pay for the five years of telecommunications services the consumers thought they had contracted for. (Complaint, ¶ 25). NorVergence collapsed and went into involuntary Chapter 11 bankruptcy near the end of June 2004. (Complaint, ¶¶ 25-28). Unsympathetic to the plight of the “lessees,” IFC insisted on the monthly equipment rental payments. Indeed, particularly revealing of IFC’s lack of good faith in the whole enterprise, according to the complaint, is the fact that IFC sought relief from the automatic stay in the Chapter 11 proceeding in order to take possession of security interests in over $15 million of ERAs that NorVergence still owned but which it had given to IFC at no cost. After the FTC and others objected to the lifting of the stay, IFC withdrew its petition. It was subsequently determined in the bankruptcy court that the unassigned rental agreements were void and unenforceable. (Complaint, ¶ 28). By early 2004, IFC had learned from customers that the MATRIX equipment did not work, and in some cases had not even been installed. A number of customers stopped making payments, while others continued to make payments with money provided by NorVergence in order to discourage IFC from exercising the buyback provision in the “Master Program Agreement.” (Complaint, ¶¶ 24, 26-27). IFC made some changes to that Agreement — including the addition of certain security interests — to limit its risks of financial loss given NorVergence’s failure and impending bankruptcy. (Id., ¶¶ 27-28). After that, IFC exercised its rights as assignee under the ERAs and insisted that the “hell or high water” clause required continued payments and that it was a holder in due course. When met with resistance, IFC initiated suits in Illinois seeking to collect the full value of the lease payments. (Id., ¶¶ 29-30). C. Enter The FTC The FTC disputes IFC’s claim that it is an innocent assignee. Rather, it argues, the equipment leases and other information available to IFC demonstrated that the predominant purpose of the NorVergence transactions was the purchase of long-term telecommunications services, from which IFC should have known that there was a strong likelihood that the customers were deceived into signing the ERAs. (Complaint, ¶¶ 31-41). NorVergence’s cost savings sales pitch ought to have alerted IFC as well, the FTC claims. The complaint alleges that it should have been obvious to IFC that the minimal cost of the MATRIX boxes was unrelated to the significant rental fees over the term of the lease, and that those fees were instead intended by the lessees to cover the cost of services. The complaint suggests that IFC’s failure to have determined the value of those pieces of equipment, which the FTC says it ought to have done under generally accepted accounting principles and presumably the practice in the equipment leasing business, is evidence of IFC’s awareness of the real nature of the transaction. (Complaint, ¶¶ 31-42). II. ANALYSIS A. The Motion To Dismiss Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain a “short and plain statement of the claim showing that the plaintiff is entitled to relief.” This “short and plain statement” must be enough “ ‘to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). Under Twombly, a plaintiff is obligated to provide the grounds of its entitlement to relief, and that requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. Id. at 1964-65. “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).” Id. at 1965. The Court did “not require heightened fact pleading of specifics,” but did demand that the complaint to contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. See also George v. Smith, 507 F.3d 605, 608 (7th Cir.2007). This was a change in pleading jurisprudence, with the Court officially “retiring” Conley’s fifty-year-old rule that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S.Ct. at 1969; E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 777 (7th Cir.2007)(noting cases relying on Conley are “no longer valid in light of the Supreme Court’s recent rejection of the famous remark....”). Two weeks after Twombly, the Supreme Court again took up the issue of pleading standards — this time in the context of a pro se complaint—in Erickson v. Pardus, - U.S. -, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). In Erickson, the Court said that “[sjpecific facts are not necessary” to meet the requirements of Rule 8(a). The Seventh Circuit has read the two cases together to say “that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.” Airborne Beepers & Video, Inc. v. AT & T Mobility, 499 F.3d 663, 667 (7th Cir.2007). See also Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797 (7th Cir.2008); Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 619 (7th Cir.2007). The motion to dismiss does not question the factual sufficiency of the complaint. Rather, it contends that FTC has exceeded its regulatory authority because businesses and not-for-profit organizations not “consumers” within the meaning of the FTCA. The motion also contends that there is nothing unfair about its acquisition and enforcement of the ERAs, nothing deceptive about its collection activities, and nothing unfair about enforcing the ERAs in the Illinois courts. We begin with an analysis of § 5 of the Federal Trade Commission Act. B. The History Of Section 5 Of The Federal Trade Commission Act And The Meaning Of “Consumer” The FTC has construed the term “consumer” to include businesses as well as individuals. Deference must be given to the interpretation of the agency charged by Congress with the statute’s implementation. Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993). Chevron U.S.A, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); F.T.C. v. Texaco, 393 U.S. 223, 225-26, 89 S.Ct. 429, 21 L.Ed.2d 394 (1968); Moran Foods, Inc. v. Mid-Atlantic Market Development Co., LLC, 476 F.3d 436, 441 (7th Cir.2007). If Congress has made its intent clear, the court and agency must give Congress’s intent effect. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If Congress’s intent is not clear or is silent or ambiguous with respect to the specific issue, the agency’s construction is given deference if “based on a permissible construction of the statute.” Shalala, 508 U.S. at 414, 113 S.Ct. 2151; Arnett v. C.I.R., 473 F.3d 790, 793 (7th Cir.2007). Courts should defer to an agency’s position on construction “unless the legislative history or the purpose and structure of the statute clearly reveal a contrary purpose on the part of Congress.” Chemical Manufacturers Association v. Natural Resources Defense Council, Inc. 470 U.S. 116, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985)(emphasis added). No such purpose exists here, and the FTC’s construction of the FTCA is reasonable and is supported by the text and history of the Act. 1. In broad and unambiguous terms, the FTCA declares “unlawful” “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce....” 15 U.S.C. § 45(a)(1). The Act explicitly “empower[s] and directfs] [the Commission] to prevent persons, partnerships, or corporations ... from using [such] unfair methods of competition ... and [such] unfair or deceptive acts or practices.... ” 15 U.S.C.A. § 45(a)(2). The Act empowers district courts to redress injury to “consumers” or others resulting from an unfair or deceptive act or practice. 15 U.S.C. § 57b(b). The broad directive to the FTC must be read in the context of subsection (n), which requires as a precondition to the FTC’s authority to declare an act or practice to be “unfair” that it be one that “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.” 15 U.S.C. § 45(n). In making that determination, 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.” Id.' For the first 80 years of its existence, the FTCA contained no comparable provision. The 1914 Federal Trade Commission Act, which established the Federal Trade Commission, prohibited only unfair methods of competition in commerce. F.T.C. v. Winsted Hosiery Co., 258 U.S. 483, 42 S.Ct. 384, 66 L.Ed. 729 (1922); F.T.C. v. Texaco, Inc., 393 U.S. 223, 225, 89 S.Ct. 429, 21 L.Ed.2d 394 (1968). At the time of the FTCA’s enactment, Congress, recognizing the impossibility of defining all unfair practices, chose not to attempt a statutory definition of the term, “unfair methods of competition.” See American Financial Services Ass’n v. F.T.C, 767 F.2d 957, 965 (D.C.Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986). This broad grant of discretionary authority was met with some judicial resistance. Subsequent judicial and congressional action rejected these attempts at circumscription on the FTC’s authority. 767 F.2d at 966. In 1934, the Supreme Court concluded that neither the language nor the history of the Act suggested that Congress intended to confine the proscribed acts or practices “to fixed and unyielding categories.” F.T.C. v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 310, 54 S.Ct. 423, 78 L.Ed. 814 (1934). See also F.T.C. v. Sperry & Hutchinson Co., 405 U.S. 233, 241, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972). In 1938, Congress enacted the Wheeler-Lee Amendment to § 5 of the Act, which added the phrase, “unfair or deceptive acts or practices,” to the section’s original ban on “unfair methods of competition.” See 15 U.S.C. § 45(a). One of the primary purposes of the Amendment was to expand the powers of the FTC over unfair methods of competition by extending its jurisdiction to cover deceptive acts or practices, thereby granting “the Commission authority to protect consumers as well as competitors.” American Financial Services Ass’n, 767 F.2d at 966. See Sperry & Hutchinson Co., 405 U.S. at 243-244, 92 S.Ct. 898. “ ‘In other words, the [Wheeler-Lee Amendment] makes the consumer who may be injured by an unfair trade practice, of equal concern, before the law, with the merchant or manufacturer injured by the unfair methods of a dishonest competitor.’ ” American Financial Services Ass’n, 767 F.2d at 966-967. Nothing in the purpose or text of the Amendment supports the thesis that Congress intended that only individuals purchasing goods or services normally used for personal or household purposes were within the FTCA’s protective ambit, as IFC contends. The Wheeler-Lee Amendment was only a partially effective anodyne since the scope of the FTC’s authority in promoting fair and free competition and safeguarding the consumer public against unfair or deceptive acts or practices was limited to matters “in commerce” and by being made to rely solely on the cease and desist order procedure for enforcement. Id. Thus, Congress enacted the Magnuson-Moss Warranty Act and the Federal Trade Commission Improvement Act in 1975 as Titles I and II of Pub.L. 93-637 (1975). Id. The two Titles served quite different purposes. The Federal Trade Commission Improvement Act, which amended the FTCA, expanded the FTC’s powers by making unlawful unfair competition and unfair or deceptive acts or practices in or affecting commerce. 15 U.S.C. § 57(a). The addition was significant, for the phrase, “affecting commerce,” indicates Congress’ intent to regulate to the outer limits of its authority under the Commerce Clause. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). The Act did not define “consumer.” By contrast, Magnuson-Moss, which dealt with warranties on household goods and which was not part of the FTCA, defined “consumer” as a “buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of [a] ... warranty, and any other person who is entitled by the terms of such warranty ... or under applicable State law to enforce against the warrantor ... the obligations of the warranty....” 15 U.S.C. § 2301(3)(parenthesis in original). In turn, the term, “consumer product,” was defined as “any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes....” 15 U.S.C. § 2301. Restrictions on the FTC’s authority stem not from a narrow definition of consumer, but from the definition of consumer product. Thus, businesses are not outside the protection of Magnuson-Moss so long as the purchased product is the type normally used for personal, family or household purposes. See Waypoint Aviation Services, Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1072 (7th Cir.2006)(Easterbrook, C.J.); Stoebner Motors v. Automobili Lamborghini S.P.A., 459 F.Supp.2d 1028, 1033-34 (D.Hawai’i 2006); Najran Co. for General Contracting and Trading v. Fleetwood Enterprises, Inc., 659 F.Supp. 1081, 1099 (S.D.Ga.1986). See 16 C.F.R. § 700.1(a) (2008). And it follows that the sophistication of the buyer is not a factor in determining the applicability of the Act. See Karshan v. Mattituck Inlet Marina & Shipyard, Inc., 785 F.Supp. 363, 366 (E.D.N.Y.1992). Restricting the reach of Magnuson-Moss makes perfect sense in light of the perceived evil that the Act was designed to combat. As the House Report explained, beginning in the late 1950s, a rising tide of complaints was received by members and committees of the Congress, the FTC and other agencies of government from irate owners of motor vehicles complaining about noncompliance with automobile warranties. By 1969, the task force on Appliance Warranties and Service issued its report on a study of over 200 warranties used by more than 50 appliance manufacturers. The report painted a dismal picture: consumers of household goods often misunderstood the scope of the warranties, and manufacturers and sellers often did not honor what warranties there were. See H.R. Rep. 93-1107 93d Cong., 2d Sess. at 21 (June 13, 1974), reprinted in 1974 U.S.C.C.A.N. at 7702-04, 7707-10. The Senate Conference Report made clear that the legislation was intended to supplement the ability of the Commission to redress consumer and other injury and was “not intended to modify or limit any existing power the Commission may have to itself issue orders designed to remedy-violations of the law.” S. Conference. Rep. No. 98-1408 (1974), reprinted in 1974 U.S.C.C.A.N. at 7774. The FTCA was again amended in 1994. While § 5 continued to declare unlawful “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce,” 15 U.S.C. § 45(a)(1), (n) was added, which limited the Commission’s authority to declare unlawful an act or practice on unfairness grounds 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. 15 U.S.C. § 45(n). Section 45(n) did not define “consumer.” That the term was narrowly defined in Magnuson-Moss does not mean, as IFC contends, that Congress intended to import that definition into the FTCA, with its different and broader legislative goals. When Congress wants to limit consumer protection, it does so explicitly as it did in Magnuson-Moss and in the Electronic Signature in Global and National Commerce Act, 15 U.S.C. § 7006 (2005). There, Congress defined consumer as “an individual who obtains, through a transaction, products or services which are used primarily for personal, family, or household purposes ....” It would not have been a difficult feat of draftsmanship for Congress in subsection (n) to have restricted the operation of the FTCA to those unfair practices that affect individuals purchasing household goods for personal use Cf., Sperry & Hutchinson Co., 405 U.S. at 243-244, 92 S.Ct. 898. See also Young v. Community Nutrition Institute, 476 U.S. 974, 981, 106 S.Ct. 2860, 90 L.Ed.2d 959 (1986)(had Congress intended a certain meaning, it certainly could have been “more precise or more prescient” than it was). The text and the legislative history of the 1994 Amendment to the FTCA demonstrate that Congress’s intent was to limit the Commission’s authority to proscribe unfair acts and practices not through a restrictive definition of “consumer,” but rather through subsection (n)’s requirement that an unfair practice must cause substantial harm that is not reasonably avoidable or outweighed by countervailing benefits to consumers or competition. Acceptance of IFC’s argument would engraft into the text of § 45(n) a limitation Congress chose not to include and would be incompatible with Congress’ broad directive to the Commission to prevent unfair methods of competition and unfair or deceptive acts or practices, 15 U.S.C.A. § 45(a)(2) and would result in the creation of a “fixed and unyielding category],” the very thing that Congress historically has abjured. R.F. Keppel & Bro., Inc., 291 U.S. at 310, 54 S.Ct. 423. It would be odd to say the least for Congress in the Federal Trade Commission Improvements Act to have expanded the Commission’s authority to the limits allowed by the Commerce Clause and then, without comment, some years later, to have so decisively circumscribed the effective reach of the Act by limiting the FTC’s unfairness authority to individuals purchasing goods or services normally used for personal or household purchases. The effect of such a silent dilution of the FTC’s authority would be to exclude from regulation literally millions of transactions that occur on a daily basis, regardless of how deceptive or unfair the acts or practices that prompted those transactions might be. When an odd or absurd result follows from a particular construction of a statute, that construction ought usually be rejected. Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 455, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989); Matter of Lifschultz Fast Freight Corp., 63 F.3d 621, 625 (7th Cir.1995). 2. In the absence of contrary Congressional intent, it is assumed that statutory language carries its ordinary or common meaning. Pioneer Investment Srvs. Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). See also Engine Mfrs. Ass’n, 541 U.S. at 252, 124 S.Ct. 1756; United States v. Alvarez-Sanchez, 511 U.S. 350, 357, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994); Firstar Bank, N.A. v. Faul, 253 F.3d 982, 987 (7th Cir.2001). One need not resort to Justice Frankfurter’s oft-repeated dictum that “[t]he notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification,” United States v. Monia, 317 U.S. 424, 431, 63 S.Ct. 409, 87 L.Ed. 376 (1943) (dissenting opinion), to conclude that the common use and understanding of the term, “consumer,” is not that proposed by IFC. IFC’s definition is supported by Black’s Law Dictionary, which defines “consumer” as: “A person who buys goods or services for personal, family, or household use, with no intention of resale; a natural person who uses products for personal rather than business purposes.” Black’s Law Dictionary (8th ed.2004). In contrast to what is an undeniably specialized dictionary, there is Merriam-Webster Collegiate Dictionary’s definition of consumer: “one that consumes: as a.: one that utilizes economic goods.” (Eleventh Ed.2003). The Oxford English Dictionary defines consumer as: “He or that which consumes, wastes, squanders, or destroys. One who uses up an article produced, thereby exhausting its exchangeable value; One who purchases goods or pays for services; a customer, purchaser.” (2nd ed.1984). The American Heritage Dictionary defines consumer as: “One that consumes; especially one that acquires goods or services for direct use or ownership rather than for resale or use in production and manufacturing.” (4th ed.2000). What emerges from this sampling is a refutation of IFC’s position that the commonly understood meaning of “consumer” is that found in Magnuson-Moss. Moreover, where, as here, the same word appears in different statutes dealing with issues other than those sought to be remedied by the act under consideration, it is not unusual for the word to have different meanings. See Indianapolis Life Ins. Co. v. United States, 115 F.3d 430, 435 (7th Cir.1997); In re Payne, 431 F.3d 1055, 1058 (7th Cir.2005). As Justice Holmes famously observed in Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918): “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary in color and content according to the circumstances and the time in which it is used.” Indianapolis Life Ins. Co. v. United States, 115 F.3d 430, 435 (7th Cir.1997). Even where the same term is used in different parts of the same act, linguistic symmetry is not mandatory. United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 202, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001). 3. The FTC argues that it has long taken the position that its statutory authority to proscribe unfair and deceptive practices is not limited to individuals buying household or personal goods. The FTC notes that its 1980 Unfairness Policy Statement, supra n. 7, describes the consumer injury factor which included “businessmen” among those protected. Before that, in 1975, the FTC issued an order against Spiegel, a large, national mail order catalogue retailer, for unfair practices in connection with its suing for small customer indebtedness in a forum inconvenient to the customers. The Initial Decision adopted by the full Commission noted that those affected included “small companies.” Spiegel, Inc., 86 F.T.C. 425, 439, 1975 FTC Lexis 107, at *14-15 (1975). In Orkin Exterminating Co., Inc., 108 F.T.C. 263 (1986), aff'd., Orkin v. FTC, 849 F.2d 1354 (11th Cir.1988), the Commission relied on its unfairness authority to question Orkin’s refusal to honor its guaranteed lifetime rate to its customers. The Commission ordered relief for “customers,” which included “businesses.” 108 F.T.C. at 381, 1986 FTC LEXIS at 3 at *92. More recently, the FTC prosecuted Cyberspace.Com LLC, 453 F.3d 1196, whose activities affected both individuals and small businesses. See also F.T.C. v. Datacom Marketing, Inc., No. 06 C 2574, 2006 WL 1472644, at *2 (N.D.Ill. May 24, 2006)(Holderman, J.)(deceptive scheme involved sale of business directories to businesses and organizations). The FTC also adverts to the Franchise Rule, which protects businesses and individuals alike. 16 C.F.R. § 436, and, it cites to a number of cases that it says demonstrates its consistency in utilizing its unfairness authority to deal with activities that affect businesses (FTC Response at 13, n. 14). The FTC’s rejoinder is that between 1980 and 1994 the FTC has narrowly defined “consumer” in certain contexts. For example, in the Holder Rule, 16 C.F.R. § 433.1(b), consumer is defined as “a natural person who seeks or acquires goods or services for personal, family, or household use.” See also 16 C.F.R. §§ 429.0(b) (defining “consumer goods or services”). The Credit Practices Rule also defines “consumer” in the way that it is defined in § 433.1(b). See 16 C.F.R. § 444.1(d). This, IFC contends, shows the FTC’s inconsistent approach to the definitional problem presented by this case and precludes giving the current approach any deference. It cannot be too often recalled that the FTC is charged with giving meaning to “the elusive, but congressionally mandated standard of fairness,” Sperry & Hutchinson Co., 405 U.S. at 244, 92 S.Ct. 898, which by its very nature, is a “a flexible concept with evolving content.” FTC v. Bunte Bros., Inc., 312 U.S. 349, 353, 61 S.Ct. 580, 85 L.Ed. 881 (1941). Cf., Herring v. New York, 422 U.S. 853, 866-867, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975)(“ ‘fairness is a relative not an absolute concept’ ” dependent on circumstances). To implement “[a] statute ex pressive of such large public policy as that on which the [Federal Trade Commission] is based,” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), Congress has given the FTC regulatory flexibility. Thus, rather than reflecting vacillation, the FTC’s prior use of a restrictive definition reflects an exercise of that flexibility in response to perceived evils. In any event, “[t]he fact that the agency has from time to time changed its interpretation of [a] term ... does not .... lead us to conclude that no deference should be accorded the agency’s interpretation of the statute.” Chevron U.S.A., Inc., 467 U.S. at 863, 104 S.Ct. 2778. The in terrorem contention that application of the FTC’s consumer unfairness jurisdiction to “transactions like the ones at bar will have a destructive impact on the U.S. marketplace,” and has “the potential to bring U.S. commerce to a screeching halt,” (Reply at 11), is unsupported and thus must be rejected. IFC Credit Corp., 437 F.3d at 610-611; United States ex rel. Feingold v. AdminaStar Federal, Inc., 324 F.3d 492, 494 (7th Cir.2003). It is also unacceptable for a more basic reason. If the FTC were to prevail at trial, all that would be “chilled” would be unfair and deceptive practices — a result consistent with the principle that “ ‘[t]he necessity of good faith and honest, fair dealing, is the very life and spirit of the commercial world.’ ” Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481-482, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974). Cf. FTC v. Algoma Lumber Co., 291 U.S. 67, 54 S.Ct. 315, 78 L.Ed. 655 (1934)(Cardozo, J.)(“Fair competition is not attained by balancing a gain in money against a misrepresentation of the thing supplied. The courts must set their faces against a conception of business standards so corrupting in its tendency.”); FTC v. Standard Educ. Soc’y, 86 F.2d 692, 696 (2d Cir.1936) (L. Hand, J.) (the FTC’s “duty ... is to discover and make explicit those unexpressed standards of fair dealing which the conscience of the community may progressively develop”), rev’d on other grounds, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141 (1937) (reversing that part of Second Circuit’s holding which modified and weakened FTC’s cease and desist order); Beyond this, the “chilling” argument is little more than an expression of IFC’s preference for a particular economic and social theory — namely that business entities are not in need of the FTC’s protection and can fend for themselves. Perhaps there is an argument to be made for this sort of commercial Darwinism. But it is for the Congress to make that judgment and to select from among the clashing theories the one it believes best serves the national interest. It has done so in any number of statutes, one of which is the FTCA. It is not the role of courts to gainsay those policy choices. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-195, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); United States v. Roberson, 474 F.3d 432 (7th Cir.2007)(Posner, J.); Mississippi Poultry Ass’n, Inc. v. Madigan, 31 F.3d 293, 310 (5th Cir.1994); Frankfurter, John Marshall and the Judicial Function, in Government Under Law, 31 (1956). Congress has entrusted to the FTC the power to determine whether a particular act or practice is unfair. Consistent with its Congressional mandate, the FTC has concluded that small businesses and religious and other not-for-profit organizations are consumers and are entitled to protection from deceptive and unfair acts and practices. That is the end of the matter so long as that judgment is reasonable. Federal Express Corp. v. Holowecki, - U.S. -, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008); Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012, 1018 (7th Cir.1998); Botanic v. I.N.S., 12 F.3d 662, 665-666 (7th Cir.1993). C. The Complaint 1. Count I Count I alleges that under the circumstances of this case — which were known to IFC (Complaint, ¶¶ 9, 21, 23-24, 26, 27, 28, 31-33, 35-42, 49-50, 53) — IFC’s statements in debt collection letters and elsewhere that consumers could be liable for fraud in the inducement and for intentionally deceiving IFC into paying NorVergence for the ERAs and that the lessee had no defenses to payment on the ERAs (¶¶ 48, 61), were deceptive. (FTC’s Response to Motion to Dismiss, at 18-21). IFC argues that its statements were merely assertions of its legal position regarding the enforceability of the ERAs and are thus not deceptive. “The FTC may establish corporate liability under § 5 with evidence that a corporation made material representations likely to mislead a reasonable consumer,” FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 635 (7th Cir.2005), made for the purpose of inducing consumers to purchase goods or services. F.T.C. v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir.1988). A misrepresentation is considered material if it “involves information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding a product.” Kraft, Inc. v. F.T.C., 970 F.2d 311, 322 (7th Cir.1992). Intent to deceive is not an element, but a consumer’s reasonable and detrimental reliance is. Bay Area Bus. Council, 423 F.3d at 635. The FTC’s claim is somewhat less than a perfect fit for § 5’s prohibition against deceptive practices, since such cases usually involve advertisements made by the defendant to induce consumers into purchasing the defendant’s products or services. See, e.g., Bay Area Bus. Council, Inc., 423 F.3d at 635 (defendants misled consumers with bad credit into believing they were buying credit cards when in fact they were buying worthless “ChexCards”); World Travel Vacation Brokers, 861 F.2d at 1029 (defendants misrepresented the cost of vacation packages to Hawaii). The FTC’s own examples of what it considers deceptive practices are illustrative: Practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations. FTC Policy Statement on Deception, at 3. This catalog of examples is not exclusive. Courts interpreting Illinois’ Consumer Fraud and Deceptive Business Practices Act have, as IFC points out, found that “[t]aking a position on the interpretation of legal documents, even if erroneous, is not a deceptive trade practice or act.” Hoseman v. Weinschneider, 322 F.3d 468, 476 (7th Cir.2003)(quoting City of Aurora v. Green, 126 Ill.App.3d 684, 81 Ill.Dec. 739, 467 N.E.2d 610, 613 (2nd Dist.1984)); Randazzo v. Harris Bank Palatine, N.A., 262 F.3d 663, 671 (7th Cir.2001). But while the Illinois Act is a “little FTC Act” requiring that its construction be guided by FTC and judicial interpretations of the FTCA, 815 ILCS 505/2; Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 148, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (2002), the converse is not true. And the cases upon which IFC relies did not look to the FTC or the federal courts to aid in their interpretation of the Illinois Act. Still, the principle articulated by these cases is of at least some interest here. “ ‘As a general rule, one is not entitled to rely upon a representation of law since both parties are presumed to be equally capable of knowing and interpreting the law.’ ” Hoseman, 322 F.3d at 476 (quoting City of Aurora v. Green). Furthermore, a claim as to a legal position could be likened to a statement of an opinion, as in, “in my opinion, the law is on my side in this dispute.” According to the FTC’s Policy Statement on Deception: “[The FTC] generally will not bring advertising cases based on subjective claims (taste, feel, appearance, smell) or on correctly stated opinion claims if consumers understand the source and limitations of the opinion.” Claims phrased as opinions are actionable, however, if they are not honestly held, if they misrepresent the qualifications of the holder or the basis of his opinion or if the recipient reasonably interprets them as implied statements of fact. Id. at 14 (Emphasis supplied). The Policy Statement does not resolve this case. Nor does F.T.C. v. Verity Intern., Ltd., 443 F.3d 48 (2nd Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 1868, 167 L.Ed.2d 317 (2007). There, the defendant represented to telephone line subscribers that they were liable for, and demanded payment of, charges incurred on their telephone lines irrespective of whether the subscribers accessed or authorized others to access, pornographic websites. Verity, 335 F.Supp.2d at 484. The district court found this to be a deceptive practice, and the Second Circuit affirmed, finding it not clearly erroneous for the district court to have found that the bills “conveyed a representation of uncontestability.” Verity, 443 F.3d at 63. From this, the FTC argues that any representation of uncontest-ability is deceptive. This conclusion overlooks the oft-repeated admonition that “[o]ne must read cases, however, not in a vacuum, but in light of their facts.... ” Penry v. Lynaugh, 492 U.S. 302, 358, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)(Scalia, J., concurring and dissenting in part). Accord Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.2005)(Posner, J.)(“Judges expect their pronunciamentos to be read in context. ...”). The facts in Verity differ in significant ways from those here. The district court in Verity found that the defendant caused charges for adult entertainment to appear on AT & T phone bills as telephone calls, thereby “capitaliz[ing] on the common and well-founded perception held by consumers that they must pay their telephone bills, irrespective of whether they made or authorized the calls.” 443 F.3d at 64-65. The Court of Appeals noted that “ ‘[i]t was clearly foreseeable that this [phone-bill] formatting [which listed information-service purchases as long-distance-telephone-call charges] would cause some customers to think that ... the charges had to be paid in order to maintain phone service.'” 443 F.3d at 64 (Brackets in original). “Because the defendants “offer[ed] no reason why this misrepresentation would not be likely to mislead consumers acting reasonably,” the court found that the district court did not err in concluding that the FTC had proved reasonable reliance.” Id. at 64. The Court of Appeals also stressed the confusing and misleading nature of the phone bill formatting, concluding that the evidence presented at trial warranted the district court’s conclusion that telephone-line subscribers in fact found the representations material to their decision whether to pay the billed charges because of the worry of telephone-line disconnection, the perception of the futility of challenging the charges, the desire to avoid credit-score injury, or some combination of these factors. Id. at 63. No comparable combination of factors exists here. At the time of IFC’s claimed misrepresentations, there was not judicial unanimity on the enforceability of the ERAs. Thus, the flat statement that the lessee had no defense was at least arguably inaccurate, to the extent it would be understood as a statement of fact and not of opinion or of IFC’s legal position. While it seems unlikely that the recipients of a dunning letter from IFC would likely be influenced by it, as the complaint says they were, or reasonably could have relied on it seems doubtful. Cf. Mayer v. Spanel Intern. Ltd., 51 F.3d 670, 676 (7th Cir.1995)(“reliance on a known adversary’s legal advice is not reasonable, especially when one has ready access to a lawyer of one’s own.”). However, “on a motion to dismiss the complaint a court must indulge every factual assumption in the plaintiffs favor.” Waypoint Aviation Services, Inc., 469 F.3d at 1072. The complaint also charges that NorVergence told consumers that “payment on the Rental Agreements would ensure all the savings promised by NorVergence on telecommunications services” and that “IFC repeated that promise to its customers.” (Complaint ¶ 9). The complaint does not say when these promises were made or under what circumstances. And so it is impossible to know whether these statements might have been made in conjunction with the allegedly deceptive statements thereby becoming a factor in the reasonableness analysis. Compare Astor Chauffeured Limousine Co. v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1550 (7th Cir.1990)(“In Illinois a liar may not lull the victim into a false sense of security and then say that the reliance was not justifiable.”). Verity did not conclude that the representations were deceptive until after a trial. That is the appropriate course here. There are also sufficient allegations from which it may be inferred that IFC did not believe that the ERAs were true equipment rental leases and that it should have been apparent that the predominant purpose of the transactions between the consumers and NorVergence was the financing of telecommunications services, not the rental of the MATRIX box. Consistent with these allegations are the allegations that charge deviations from IFC’s usual and customary practices in connection with the ERAs. (¶¶ 27, 31, 33, 35-11, 49-50, 53). For IFC, the beginning and end of the matter is the ERA, itself, which states that it is a lease of equipment, that the consumers agreed that it was a finance lease, and that they were unconditionally obligated to make payments to any assignee. (Reply Brief at 12-14, 17). In some contexts, the argument would be unanswerable. But not here in light of the allegations in the complaint discussed above. Finally, even prior to accepting assignment of an ERA, IFC made statements to consumers consistent with NorVergenee’s representations of telecommunications cost savings that were guaranteed for five years, thereby reinforcing the impression that payments on the ERAs were for telecommunications services. (Complaint, ¶ 33). What Justice Story said in Welch v. Mandeville, 1 Wheat. 233, 14 U.S. 233, 236, 4 L.Ed. 79 (1816) fairly expresses the FTC’s underlying theory about the ERAs: “It would be strange, indeed, if parties could be allowed, under the protection of its forms, to defeat the whole objects and purpose of the law itself.” Cf., Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039 (7th Cir.2006)(Posner, J.)(a church can’t designate all of its employees ministers; if they did, “the court would treat the designation as a subterfuge.... ”). Echoes and application of this basic principle appear in a number of cases in which the Seventh Circuit has dealt with the question of whether a particular transaction, although expressly denominated as a “lease” with an option to purchase, is, in reality, something different. These cases have made clear that the label chosen to describe a transaction is not determinative and that calling something a lease does not necessarily make it a lease. See e.g., R.E. Davis Chemical Corp. v. Diasonics, Inc., 924 F.2d 709 (7th Cir.1991); Orix Credit Alliance v. Pappas, 946 F.2d 1258 (7th Cir.1991). Cf. King v. Federal Bureau of Prisons, 415 F.3d 634, 636-637 (7th Cir.2005)(Posner, J.)(calling something a business doesn’t make it a business). These cases are illustrative of the more encompassing principle that substance is not to be subordinated to semantics and labels. Cf. DiSanto v. Pennsylvania, 273 U.S. 34, 43, 47 S.Ct. 267, 71 L.Ed. 524 (1927)(“the logic of words should yield to the logic of realities.”); United States v. R.F. Ball Const. Co., 355 U.S. 587, 593, 78 S.Ct. 442, 2 L.Ed.2d 510 (1958)(“Sub-stance, not form or labels, controls the nature and effect of legal instruments.”)(Whittaker, J., dissenting); W.B. Worthen Co. ex. rel. Board of Commissioners v. Kavanaugh, 295 U.S. 56, 62, 55 S.Ct. 555, 79 L.Ed. 1298 (1935)(“What controls our judgment ... is the underlying reality rather than the form or label.”)(Cardozo, J.); Walsh v. Heilmann, 472 F.3d 504 (7th Cir.2006)(“But why should anything turn on the label?”). Judge Easterbrook in TKO Equipment Co. v. C & G Coal Co., 863 F.2d 541, 543 (7th Cir.1988) has explained why parties often go to great lengths to make a transaction appear to be a lease when it is not. The answer, he says, lies in bankruptcy law. The automatic stay in 11 U.S.C. § 362 disables secured parties from repossessing what they have sold. What is leased, however, is returnable. So sellers doubting their buyers’ financial stability often seek to cast their transactions as leases with options to buy, thereby eroding the security of other creditors. So too here. According to the complaint, Nor-Vergence attempted to artificially structure what was in reality an integrated transaction for telecommunications services and equipment into a separate lease agreement. The purpose was to make the ERAs attractive to factors, who could then argue that a cessation of telecommunication services had no effect on their right to continue collecting “rental” payments. The complaint charges that IFC should have known the truth and that the consumers reasonably relied to their detriment on the representations of uncontesta-bility. It remains to be seen what the proof will be. But the FTC has stated enough to withstand the motion to dismiss Count I. 2. Count II “Stated most simply,” it is the theory of Count II that for “IFC to continue to purchase the Rental Agreements under these circumstances and then collect on them when they are worthless is unfair.” (Response at 25). The FTC has no authority to declare an act or practice unlawful on unfairness grounds unless: (1) it causes or is likely to cause substantial injury to consumers, (2) the injury is not reasonably avoidable by consumers themselves, and (3) the injury is not outweighed by countervailing benefits to consumers or to competition. 15 U.S.C. § 45(n). A substantial injury is not one that is merely trivial or speculative, and the FTC has made clear that it has no concerns with de minimus injuries. American Financial Services Ass’n v. F.T.C., 767 F.2d at 972, 975. But even a small harm may qualify if it affects a large number of people. F.T.C. v. J.K. Publications, Inc., 99 F.Supp.2d 1176, 1201 (C.D.Cal.2000). Here the injuries were substantial, both in monetary terms and in numbers of consumers affected. The total payments under an ERA over its five-year term ranged from $4,439 to $160,672, depending on the lease — even though the cost of a box never exceeded $1,300 and in a number of cases was less than $300. (Complaint, ¶ 10). The more significant issue is whether the injury was “reasonably avoidable by the consumers themselves.” In making that determination, some courts have looked to “whether consumers had a free and informed choice that would have enabled them to avoid the unfair practice.” American Financial Services, 767 F.2d at 976; J.K. Publications, 99 F.Supp.2d at 1201. Others have said that “[consumers may act to avoid injury before it occurs if they have reason to anticipate the impending harm and the means to avoid it, or they may seek to mitigate the damage afterward if they are aware of potential avenues toward that end.” Orkin Exterminating Co., Inc. v. F.T.C., 849 F.2d at 1365; J.K. Publications, 99 F.Supp.2d at 1201. The principle of reasonable avoidance, now codified in § 45(n), traces its lineage to the FTC’s 1980 Unfairness Policy Statement. In response to a request from the Consumer Subcommittee of the Committee on Commerce, Science and Transportation, requesting the Commission’s views on cases under § 5, the Commission explained: Normally we expect the marketplace to be self-correcting, and we rely on consumer choice — the ability of individual consumers to make their own private purchasing decisions without regulatory intervention — to govern the market. We anticipate that consumers will survey the available alternatives, choose those that are most desirable and avoid those that are inadequate or unsatisfactory. However, it has long been recognized that certain types of sales techniques may prevent consumers from effectively making their own decisions, and that corrective action may then become necessary. Most of the Commission’s unfairness matters are brought under these circumstances. They are brought, not to second-guess the wisdom of particular consumer decisions, but rather to halt some form of seller behavior that unreasonably creates or takes advantage of an obstacle to the free exercise of consumer deci-sionmaking. Sellers may adopt a number of practices that unjustifiably hinder such free market decisions. Some may withhold or fail to generate critical price or performance da