good morning welcome to the th circuit court of appeals it's up pleasure to be here today in san francisco especially on such a beautiful day i look forward to hearing all of the argument presentations we have six cases on our docket this morning four have been submitted on the briefs so that means we have two oral arguments that will be presented  designation and assisting us with our docket here this week and so on behalf of judge cool and all the circuit we really appreciate you being here thank you judges for scaurus versus experian information solutions so ready to sixteen experience sent coals a consumer report that could not be permissible given the what for skerries had done to his file the section sixty nine he won ga one requires experience to clearly and accurately disclose all the information it might provide on a consumer report to fraud victims like to scare us so he can quickly and comprehensively protect his privacy this includes the purposes for soft credit inquiries which not only might appear on and experience some reports but as for scaurus alleged did appear on april th team reinvestigation consumer reports by failing to disclose the permissible purposes experienced disclosures were rendered neither clear nor accurate your argument that experience failed to disclose mr scaurus as the soft credit incur information in the consumer disclosures and that all of your claims were   now are making or seem to be making that thank you on and i believe the recent case of may have the capital one bank that we submitted a twenty a j letter here is instructive in this respect in the court determined that a consumer you know would not have the information to be able to determine whether or not a poll was made permissibly or not because that's within the purview of that event so in that case the plaintiff made factual allegations that fraudulent account and he had that removed and then when he put an extended fraud alert on his file coles could not get is credit report for the only way they could have gotten it without contacting him st which was where prescreening where your promotional inquiry certainly they overlap in terms of the facts that support that claim but on paragraph ten we say that one of the reasons that disclosure was permissible or that the procedures were violated was because the disclosure was in know until it's notified by somebody that a that account is fraudulent or that credit is being polled impermissibly it might get that notification from the rd party or it might get that notification as in this case for mistress charisse and so by failing to disclose the permissible purpose experian divested itself frankly of the opportunity for fisk errors to look at that to determine that it was made for an impermissible purpose and notify experian that hey you may have a problem with coles here so that doug tails with  is designed to ensure that there are impermissible credit bills because experian is not allowing itself the opportunity to obtain information about this i am looking at paragraph ten and i'm not seeing the allegation that you think is there i may be missing something and so perhaps you can if educate me short and if you're on it could repeat the question that you had about that the question is where in the complaint is it a latched that experian did not have a permissible purpose to make a disclosure to coles oh i saw i misunderstood your question your honor i'm talking about the paragraph from seventy to eighty five which factually show that in context coles would not have had a reason that was permissible under the statute after the placement of the  the and the placement and the deletion of the account and where in the complaint does it actually say in plain english experian should not have made the disclosure to calls because there was no permissible purpose for it to do so i don't think that it says that in plain english i think you can infer that from the facts that that are contained on seventy three through eight ok and did in response to the motion for judgment on the pleadings did you argue to  district court that paragraph seven thousand three hundred and eighty five dollars provided the factual predicate for a claim that experience should not have made a disclosure to calls in our in our statement of undisputed real facts on summary judgment  in your response to the motions did you say not only do we have a claim that experian fail to tell us what the permissible purposes are but also we have a clamor i have a claim that experian did not have in fact a permissible purpose to make the disclosure to calls only did it not analyze the futility factor that you know in a manner that would have been sufficient but additionally we believe that its reliance on fifteen dash one does not make practical sense given that this occurred in the in connection with well and also you want to because that would be hypothetical and in fact the courts reliance on a show on the showcase which was not even issued at the time of the briefing underscores the fact that if we had even done with the district court asked it would have had to have been modified perhaps in light of sh and addition your honor i thought leave that you know we could you know in terms of discovery you know obviously we didn't we didn't specify what that was particularly but what i will say is that discovery was ongoing and one of the things we have learned was that we could we could talk about experience procedures for the setting discovery was ongoing i was looking at the trying to figure out the schedule actually this was filed eight months complaint with prejudice here in light of that timeline particularly when there had been no request for leave to amend the complaint previously i'm just trying to figure out if that was an abuse of discretion by the district court right your honor and i don't think it was st of all you know at that at the time that the motion for do not stand here no you know the answer to that question but it says unless the court orders otherwise the moving party must attach the proposed amended complaint pleading to a motion pleading and again i apologize i don't i hadn't focused on that aspect of the procedural history but there was certainly nothing preventing the plaintiff from from seeking to do so even once the judge ruled i mean there are two aspects to this right one is not providing a copy of the proposed amended complain and the other is a question of whether there would have been any basis for amending and i moved just heard from counsel about what might go into an amended complaint not of that get said anything that would change the district court's ruling so i mean you have both the futility basis and the absence of anything  you know to suggest to the court what could have been different or why an amended pleading would be appropriate district judge rely on futility in denying motion for leave to amend or did the district judge simply rely on the local rule as i read the district judges opinion i thought that that he relied on bo district judge ruled on the motion for judgment on the pleadings how could the plaintiff have known what the district judge was going to find wanting in the original complaint that the plaintiff could fix with an amendment well again i mean i think that if there was anything for the plaintiff to to proffer that would have changed that that is something that could still have been done in the in the district court either by way of a motion for reconsideration or that aspect of the ruling or you know it's possible that the judge might have permitted a different sort of motion to bring it before him but there was not after judgment was entered i mean this last ruling ended the case the ruling ended the case but it but if plaintiff believes that the court overlooked that there was no opportunity for him to you know to seek to proffer an amendment that different and i think that so even though the plaintiff was not given leave to a man and you think that the planet should have just amended anyway even that without prejudice and or with prejudice and and or judgment or or sought or sought reconsideration to change that but isn't that a higher held to climb under fifty nine liberal standard that is much more lenient so of course you would of course you would if you would to do your job of course he would have sat this is not a fifty nine year sixty situation well but in that situation also we wouldn't be faced with a situation where you have a dismissal with prejudice and then have to come up on appeal without any at least you would have before the court what the proposed amendment would be and you could raise the same plane of could raise the same issue about whether if he's contending that the district judge was precipitous and in ruling on it before  before waiting for a motion like that i mean frankly i've had cases where i see something come down with prejudice where i thought it was premature and my st thought is you know that is a mistake or it were not up to that point and and it filed something but you know i think even today you know i was sitting here quite a long time  later you have basically the same what's being proffered is not anything that would even theoretically change any of the district judge's reasoning so you know i just think that from a judicial economy standpoint it i don't think it's the kind of thing that would make sense to send back to a district judge to say considerate just to go back and you know do it in that order there isn't anything here that actually would suggest and on a futile meant can i ask you i guess why didn't you hear you're just moving to dismiss for lack of standing correct why didn't say more broadly as i think that we have all been learning in the wake of spokeo about you know where the lines are drawn on on standing and so i think that you know i would probably seem clearer on appeal or it may just be that because i've dealt with standing issues in other cases when it got to me you know my st question  was where the standing was and that you know has not traditionally been nearly as big a part of the district court practice until the spate of recent cases may also be that you know the original complain is sort of diffuse in some ways and so it may not have been as clear that all of that we're talking about is just a question  of whether there was a right to have the permissible purposes listed but i mean i'm speculating obviously i don't know the reason but you know having seen it i think that you know that issue is  certainly there and i mean basically it's the kind of thing where it's essentially asserting as an injury difficulty in monitoring your credit report that in cases like half and dreyer the courts have said don't actually if they wouldn't change anything it doesn't amount to an article three entry and then i know you're on time but i'm going to ask a question though that's the case if we assume the appellant here has has not waived his claim that acts that you experienced failed to follow the reasonable proceed jurors and improperly described disclose his credit information to col i think it was in may of two thousand and sixteen right i'm trying to figure out why why are the allegations in his complaint not sufficient and i'm looking at their graphs eighty to eighty two of his complain discusses this may two thousand and sixteen disclosure to coles and for example he alleges that experian placed a fraud alert in his file that experience removed the culls account from his credit file that experian represented to him that he would remove his name and address from the prescreened offer a mailing list for five years and that nonetheless experian disclosed this credit information to col i guess considering we take these allegations as true and give all reasonable imprint says to the appellant at this stage why isn't this enough to plead that experian failed to follow reasonable procedures to prevent these alleged in permissible disclosures of its credit information to to to coles well sure and now and what's your best case i guess pick i mean i will st of all i guess i will i will operate obviously on the assumption you started with although there has been like throughout this litigation there actually has been no claim that this is you know this case has always been about the disclosure of permissible purpose this is like i mean i'm frankly surprised to get up here and be hearing about this you know we pointed out in our brief there was nothing in the reply brief that said what's insufficient that is a lot of things i mean i agree with there the focus was not this down below and then let's go ahead and address this sure and you know negate all the various permissible purposes here there are you know st of all i mean that says there's there is a fraud or we don't know based on  this why experian was not listing a coles account i mean that says there was a fraud alert but it doesn't say the coles account actually was fraudulent there can be a lot of reasons that an account drops off there are a lot of reasons that a company can have a permissible purpose particularly for soft credit polls and so you know you just what we have here is just kind of a i mean it's pretty far in the op was controversial itself right you had you had a dissent there here you don't have all of the various allegations that negated all the other stuff that could have been a basis nor do you really have anything that indicates that from experience standpoint that they didn't have what was necessary from coles to provide them with you know their procedures involve getting something from coles explaining the basis for we don't know that that was negated and i mean look the best case for this really is you kno with perfectly permissible credit disclosure as not all right let me just see if there's any question at school do you have any questions no questions here thank you for the question thank you very was just to touch on some of the issues that the council brought up i certainly agree that it would have been impossible for us as i mentioned in the opening to have actually amended the complaint you know and provide that hypothetical looking the other way while coles obtained it are two sides of the same coin and so the same privacy concerns that are at issue in the in the ne up case are directly impacted by the by the failure to follow reasonable procedures here the in terms of the standing argument that counsel raised you know i'm glad that it was mentioned and dreyer was mentioned because if you look at the allegations and you look at what the huff and cases say both of those cases say that one of the harms that can occur from a from a violation can be last time you know how points out and  that the plaintiffs did not allege those things but we did we said that mr skerries had to take efforts to in considering his disclosures ergo he lost time in this case so we have as as it relates to real world harm even if the court is not prepared but during the discovery period he did he provided iraq atory responses in testimony indicating that he had a fraud product that he was going to let expire and because of the issues related to these disclosures he continued to support our position and name of course from from the e a perspective and we're talking about congressional protect privacy rights as as i said a moment ago that is that that's an interest that is just as recognizable here the the question about you know whether the complaint would have been futile i think that your honour's question about alleging whether or not we can conform to what we absolutely can because what we did not have  at the time that we we filed this complaint or the time this case was decided was the th circuit's determination that for information particularly within the defendant's possession custody or control which absolutely would be the purpose the cols had an dismissal was without and without prejudice that would that would still prejudice us because the time to bring this claim is expired and thank you very much i mean if you have any questions judge cool no questions just have one experience counsel said that in his read brief he made an argument that  the claim that experian had no permissible purpose to make the calls disclosure was not in the complaint and he's right it's at page twenty nine through thirty one of the re brief and then he also went on to say that you did not counter that argument in your reply brief and i'm wondering if you could comment on that and tell me whether in fact you did counter that argument in your reply brief certainly  question i would have to look at the brief to give you a direct insi all right thank you very much mr clark mr feder appreciate the arguments here today kaisa thomas those scars versus experience information solutions is