point we're at the junction here where the law has evolved to a degree and there have been a series of cases all of which i respectfully suggest lined up with plaintiffs what the plaintiffs have here on their side  papers they also rely on galleria unfortunate for them but good for i think plaintiffs and justice is that it was my case we took an appeal and it was reversed and standing was found another one to rely on is barnes and noble that's also my case and that is no longer good law here we have the required injury in fact there can be little serious question about that what is the injury in fact the injury in fact  violation of the rights that occurred with the actual breach of course course talk clap or try house talk about the imminent harm and we have not only imminent we have actual and the actual is that the breach did occur there is little doubt here that these materials this information is p i private information personally identifiable information was taken for bad purposes it's  word may well it's just not credible but having said that it doesn't really matter what happened with the defendants approaches they try to drag this case into merits all that has to be determined what's on that complaint and we reach it and every angle every degree every possibility i don't really care if they want to tell a court or courts that they don't know if the material was stolen it doesn't matter what they say we alleged it and the game stops there frankly the game stops at at that absolutely region and the theft of the information absolutely in fact in this court case carlsen versus game stop at the court recognized that that would be a situation and another one recently i think it's a bright stop close to the plantation but any event the reference was the plaintiff did not suggest that the information was quote access close quote even if you take their statement which is not relevant that it may have been after they offer credit monitoring f even greater scrutiny and that is that he saw that he had a data breach and that certainly satisfies the requirement he's the only one right so you need well he's the only one in terms of having played that actual actual data breach where they access his account we have another plate of mr have who went ahead and cancel the checking account but respectfully that is all you need that the breach alone satisfies the injury in fact secondly to the extent that some courts might require a greater scrutiny that doubles up and that when you see cases for instance like chang what i don't even know if the shop at the particular store here we allegedly shopped at the store the dates they shop great specificity and all that is all that is really required dates alleged correspond to the bridge pardon me sir with the dates alleged for the shopping absolutely absolutely by plan even those that merely were sent off to do their research examination to quantify and stop the harm that has occurred it's just classic it's in line with every recent case that is out there  can't do it now what happened is when we were confronted with that we did take an extra step and we did it to try to satisfy things the interesting part about that is that shuts down even this period argument that the that you have injury in fact the actuality of it that's quassia that buggin we don't know we don't need that those were presented in the real fifty nine so those weren't considered by the district court well depends on the level they were considered i think i think what she did to a degree when she denied to rule fifty nine because what she said is that those did not indicate that any of the name plaintiffs were part of those particular breaches but that is not needed and again we shouldn't have to do that we did it it's frankly do to satisfy the erroneous path that the trial court took here today it's basically presented in the record as reassurances a court that sticking with all of the other circuits to nine eleven in resonate first as am i have them on the seventh in multiple cases now the sixth circuit this court should not go out on something that is no longer the law and quite frankly never has been because the cases that they cite are different facts or have been reverse you today saying the theft itself is the injury if i understand you correctly or because i thought your brief said there are things that flow from a theft that is the risk of harm risk of harm in the future we really should have to prove that it terms of any kind of sufficient evidence all we have to do is to state it which we did in terms of a twelve hour day all you had to do state what state that the damages occurred in terms of having a sufficient complaint that the damage that occurred here is you have the the turning over the private information the time and money people were spent to check their accounts and the other things that are associated with this less as replacing their cards etc but the other elements of proof that come later they don't relate to the twelve would be one of the twelve b one you only need to show the injury in fact an actual or imminent harm and are all the cases and and intangible can be i'm trying to understand is whether your theory is when the the information was stolen that's the injury or whether you're saying as a result of this the theft your clients had to take these other steps and the yes the fact that they had to take those steps is the injury which is it in your it depends on the facts of the case in this particular case we satisfy a higher standard in that is you had the theft by with malicious intent by thieves where the risk is imminent and in this case the race actually occurred so in this particular case sticking with this case if one were to say to theft a lot of private information is is a breach enough i would say we satisfied in another case we certainly satisfied here but here the in a situation is a step much step farther because you actually have it coming to fruition you have you have the risk of imminent risk because you have thieves doing there's no issue about that and we know what the purpose is recently one was just one thief who just said for twenty seven years it's in a public record one go down the list the one in t j mascot twenty five years they do it and take the risk because they're using it and it has value jack happened here so whether i subscribe to a loose causes of action that we have asserted that create rights one can disagree as to whether or not some of those welty may result in the judgement such as the implied contract but they're here and how much time had passed between t useful to to the hackers or is to use their account numbers well those will soon expire in other words as time passes doesn't the injury dissipate well a couple things number one we don't know what we have and what we  refused to answer discovery thinking of some objections when this case goes back down probably will find out the amount they know they know i have information because there's cancer ports it's by decent master card but the reality is at the pleading stage on a trial be one we don't have to have that answer now with regard to passage of time evidence shows and we have in our papers that these crooks they use and otherwise keep this information for five years and longer they build records accumulate it and sell it so all and that's the risk of the harm that you're talking about to follow up and call it and squash the risk of harm has one occurred here number two everybody in this class lives under it number three it could be occurring in amounts that we're not aware of history would indicate such as our small after protected and you situations you can't cut it off by conclusions and conflating marriage with pleading we have a right to move the case along i'm pleading to have our discovery answered they have an opportunity to file a motion for standing and they don't have standing because they haven't met their burden of showing actual injury or future risk of injury that's imminent or certainly impending we have your honour's sixteen named plaintiffs here we have an allegation that there was a data breach purportedly at over a thousand stores and judge kelly said all that you have where three years down the road all that you have is homes and we would suggest that the plaintiffs tony even have homes and why don't they have homes number one they did not allege below that home sustained actual injury there was no argument made before judge montgomery that holmes had an actual injury nor did they argue the judge colleton that a mere theft constituted injury what they were arguing was that there was a breach and we have a risk of future injury that's certainly impending that was their argument and with respect to the one that i say they don't really have missed the holmes what's the story on him he alleges  paragraph thirty one to join appendix twenty one he alleges that he had one but boarded leonor theorised charge when judge montgomery decided this case we were a year and a half out now we're three years out and that's all that there is here one purportedly unauthorized charge and mr holmes does not allege and this is key what he doesn't allege he doesn't allege that he was on remembers he doesn't allege such basic facts as the date of the purportedly for julian charge he doesn't allege the amount he doesn't even allege as he's required to in order to show that it's fairly traceable he doesn't say that it was from the intrusion or to respond to judge smith's question he does not say that he shop during the time period of the intrusion the plaintiffs knew how to say that because they did say with regard to many of the other plaintiffs that they shop during the time period of the intrusion but mr holmes the only one that maybe they have which they don't they don't say with respect to him very noticeably that he shop during the period of the intrusion so what do they have they have an argument this is what they said below that there was a breach and therefore we have the risk of future injury that's certainly impending or is it is is that what the seventh circuit is counsel sites other circuits you're honest point or in favor of finding standing at this point in the litigation you out of this case this is far from the seven circuit cases that were cited by mr the mano as it could be the seven circuit cases case you had all of their stores purportedly were breached you had attempts at opening up accounts in their name in other words identity theft which you don't have here here unlike for example in the galler a security freeze on your credit which by the way costs about twenty to thirty dollars they recommended that there's no recommendation like that here at all in fact i'll get a moment as to why the pla a theft they haven't even alleged sufficiently that there was a theft why they say in paragraph eight they say in paragraph four forty of the completion of the consolidated amended complaint there was a theft or they don't was harvested but companies notifications that went out that were required under the data notification statutes of various various states and so they talk about there was malware put on the super value system but what they left out is that also in the halls press releases super value an albertson's said we've we're investigating but we we haven't been able to determine that in fact anything was taken we're sending this to you had an abundance of caution and we have no evidence that there's been any misuse whatsoever nor on well and so would this be a case that would require some discovery in order to determine if there's been  we would say no you aren't and that's what the case is about you have a threshold level yes it's under we're late but you have to make some allegations first of all that you have an actual injury or the risk of imminent injury three years we are three years later almost imminent injury your honor and without discovery that's what the case is about you have to make sufficient allegations you have to make sufficient allegations in your complaint that there has been that and so that they haven't even done that let alone showing that they have actual injury or image or injury that's imminent so even if they were relying upon this argument that i heard for the first time in response to mr think judge collins questions mr marlowe even if they were arguing that that's enough which no case has held that that's enough they haven't even adequately alleged theft what were you what do you think do you theoretically agree with the third circuit in the horizon health care or there was a concurring opinion that said an invasion of privacy because of historical tradition of that protection can be enough and that's similar to the implied contract argument here i think while you know you said you didn't plead adequately a injury and the question is whether or not congress has stablish that actual injury through the statutes with regard to any other theory other than implied contract they drop them all so there's like well with regard to implied contract it wasn't argued below it's interesting they dropped the ones that they did argue and they make an argument on implied contract that wasn't raised below it wasn't dealt with by judgment call me wasn't up  never ever mentioned second of all we would say judge politan that they don't allege facts as required under it both to show that there ever was an implied contract here between the parties there are no facts alleged that show there was offer i mean the basic fundamental requirements of having a contract was there an offer was there an acceptance was the consideration we can start just with consideration and knock out an implied contract because this was not a situation where super value or albertsons charged any more money to customers whether they used a debit card a credit card or they paid cash so there was no extra consideration and there are quite a few cases that we've cited in our brief nieman cited have determined that there is no implied contract your honor in this in this particular area you know this case we sent in a letter to the court last thursday because there was a case that was decided that is very similar to this case and that that case is is well in the michael stores and in that case you had a very similar situation you had one you had one plaintiff one plaintiff who said my card there was a data breach and my card was attempted to be used down in ecuador a couple of times but the court found there wasn't on any any injury because the card was never used in a way that the plaintiff suffered something out of pocket it was never any on reimbursed charge plus there were no social security numbers or anything of that nature just like in this case there were credit card numbers but you know what the plaintiff did in that case closed the credit card account now you may say well that's salutary well it doesn't cost anything to do and our  our plaintiff here mr holmes that's what he did he closed his credit card account is that injury no it's the opposite of injury why because it means that nobody can use the card anymore and that's what th actual injury below and the court also said the second circuit in affirming the eastern district of new york that there weren't sufficient facts alleged with regard to risk of future injury you know here you can look through paragraphs eighteen thirty one and i respectfully invite you to do it and all you will see is the same rote statement for each plaintiff virtually the same verbiage for each plaintiff if to the breach i monitored my account i spent time i spent time monitoring my count i spent time monitoring my account so the second circuit just last week they had a decision that in addition to the why levy so ready in case they found that even where you have allegations of a theft there's there's no actual injury that's imminent that's certainly where you don't have any cognizable harm you don't have any actual misuse the card was presented at two different places in ecuador but you didn't pay any money in terms of imminent risk the court said in that case two years have gone by two years and so how can you say that you're under imminent risk with two years going by here as i said before we have three years that have gone by so i want to quickly turn george carlin to ask the question of well how could we even appeal  pages no no we weren't we were not i was thinking i had read them all no we weren't and we read you know the game stop case for example which found that there was standing there was an express contract there though that covered arguably understanding the subject matter and this court went on to rule well maybe standing but the contract actually didn't cover there wasn't a breach of contract and was no cognisable injury there so the court went on to consider on a twelve b six motion and we say that look there's no standing here i mean this is such a thin read this is the thinnest read of any case to have a class action with thousands and thousands and thousands of customers all of these super markets on the basis of what on the basis of virtually nothing and support and certainly not actual injury or risk that's certainly being or that's imminent that's that's not all but with regard to it if you were to hold that there were standing in you you should respectfully shouldn't then the twelve b sex is not all that complicated we would submit for example can't rely as they do upon the f t c act circumvent the no private right of action under the f t c acts simply by alleging well it's negligence per se so the court could go on in the interest of judicial economy rather than sending it back the judge montgomery the last thing on notice that judge did judge mike and we did dismiss the complaint without prejudice were there actually injury in the last three years the plainest very easily could have filed  complaint and they haven't done that the declarations were on the fifty nine a as judge kelly said that wasn't the peel judge montgomery's the mileposts not appeal thank you mr unless the court has more questions my time is up thank you very much honor what i heard was a lot of marriage so a lot of lawyer testimony and a lot of things that don't hold water first of all it's the height of arrogance to say in three years we've seen nothing really answer to your discovery he did told his court that this case is different and galeria and the other the friend his client sent out consumer identity protection reference card in addition to carefully reviewing their financial institution credit card statements super valley recommends as customers consider these additional steps security freeze that lawyer testimony was wrong so as all the rest of his but here's what's important they want to wipe out the ability to plead in accordance with law they want this court to take a defendant's version without discovery is flat wrong three years how do we know what they have how many people apply for the credit monitoring what do they have in a records they object to discovery they don't produce it sends back down and we'll get it and you know what they can win on a motion for summary judgment they think they're right their definition of actual harm is way different than the law when this data breach occurs with malicious intent that's the actual harm and in this case even supporting more stringent requirements there is evidence