and for the record that's appeal number sixteen to twenty seven five deal of this or the district courts denial of the motion for class certification however the appellee raised the issue of article three standing relative to plaintiff and since that that is a threshold issue before we can move on to the class certification issues i'd like to address that first the decision in spokeo from the us supreme court has has  created a lot of gobs of mixed decisions as far as what applicability it has in and the implications of hands on article three standing up but i do think that that for the most part it really does not change the previous understanding of article three standing and it really does not make any substantive changes to the underlying law on what a plaintiff needs to do to stab that prior to spokeo it was clear that plaintiffs could not just the ledge a bare procedural violation as was the case in lieu hon for example where they there's no actual injury to themselves however at the same time the case is prior to spokeo and after i have made clear that there is that that doesn't require some actual  damages for example to establish an injury for article three standing purposes it's well settled that congress can create substantive legal rights and the invasion of those  because congress number one can create substantive legal rights that citizens have and the invasion on those rights constitutes an injury for our three states and purposes there's even if they're  not go that far it's so they can do so not that every time it does so it will be recognized for that that's correct so help us draw the line so spokeo concerned op procedural rights and procedural statutory rights and when there's a procedural statutory right what spokeo side was in certain instances that a violation of a procedural right is not sufficient absent some other harm however there are certain circumstances where congress has articulated a very distinct chain of causation between a procedural violation and the threat of harm or the or the risk of harm that would be sufficient to establish injury for article three purposes so you know if your client the concern as i understand it is that the appearance of the expiration date on the receipt that he got from the restaurant which he spotted it's heard in theory that there might be some increased for increased risk of the identity theft but he spots it it's hard to see there's any risk to well that's that is congress's judge encounters a judgment they can assert what they think the risk is and congress  with procedural violations here there's a substantive right and congress aside you as an individual have the substantive right to get a receipt that does not have the expiration date does not have this information on it that's the same thing as is this cour previously held in relative to the fair debt collection practices that side believe it was keel where there were certain disclosures and certain language that appeared on a letter that one from a debt collector to a debtor and this courts  had no congress said you have a substantive right not to receive this information even if you didn't owe the debt even if you that didn't affect you in any way congress said you shouldn't have to get this and so therefore getting it invades that substantive statutory right keel was some years before spokeo it it was but but keel and the other cases that are cited in the brief that have to deal with substantive statutory rights i think are a different area than what was addressed in spokeo which had to deal with procedural violations and procedural rights that are so all of these procedural op do we measured the difference between procedure  of harm or in some other way i think that that the line between procedure on substantive is that a procedural right is is implemented without regard to a particular outcome it's only about how you reach a particular art outcome whereas a substantive right is is enacted with regard to a actual particular this is what needs to happen this is what cannot half the s and it is more focused on the results based as opposed reasonable percy jurists to ensure maximum possible accuracy they didn't say you have an absolute right to total pot to total accuracy and that they will not publish any false information that would be more in the line of the southern tip whereas here would spokeo it was a procedure right because they said you're going to do your best to try to make sure that this will be the as accurate as you can possibly do it and so that's why the spokeo court decided to to remain to the ninth circuit because they would say well at what point does that procedural violation cross the line into something that creates harm whereas when you have a substantive issue where they say you will or will not do this you can't you you will you're protected from this you have a right to not get that there that is so hot it that is the right itself so let me go back to my first question how does the number on the receipt given to your client hurt him when he sees it and make sure that nobody is going to have a clue to steal his identity or to help steal is going to be the number on the information that was on his receipt is a harm for article three standing purposes t talked about things that common law like i mean property laws in general is a is a legally created set of you know it's the bundle of sticks that says these are your legally protected interest in this property if someone throws a baseball over your yard that is technically a trust pass and they have invaded on your legally protected interest even though there's maybe nothing actually comes of it maybe displaces some error and so i don't think that that spokeo went so far as the say you need to have that you need to have some other harm other than the invasion of a legally protected interest i don't even think spokeo really addressed that issue they were talking about this in the in this in the context of procedural violations and in that case where the procedural violation is divorced from the harm that congress was trying to to prevent that's where they said well now you have to show how that harm has manifest there how that's come whereas when there's and there are some procedural violations that are so synonymous with the harm that congress is trying to prevent where the violation of one of the procedure right is a substantive har purposes in and he turned it maybe yeah it's a deterrent effect when they want to ensure that this isn't going to happen because they've i desk identified this extremely high risk of identity theft you know one can figure out why that was added so you can understand the but the the it's almost like it's an accident they put it there and because it and it and then i got another thing i know since we're looking at this case i'm very conscious that you want to re that i really really don't put out take it anyway especially at the gas station you know and i know that they do know some places they don't ask that most people ask if you want it because sure they're going to have an expense you get  have it to prove that they've spent that kind of money and that's reasonable that's that's a practical reason for having a receipt but otherwise all these people who go in this restaurant i could see that there would be a bunch of people in the restaurant and somebody said there's going to be a class are you kidding you're going to damage this restaurant i love it i'm going to shut it down he's crazy well i under i understand all that but at the same time congress has the authority to pass the laws it's  congress's province to determine what the punishment should be what the law should be what the requirements should be and in this case that's what they decided it to be and while the laws on the books we need to enforce and i'm heading into my rebuttal time so i'd like to address some of good morning your honors in may please the court i have to apologize before any of my voice goes out or it kind of gets a little lower my son was nice enough to give me as cold yesterday so my colleague nicole read learned i represent nicolay restaurant which is a  singular restaurant open to peer it's a family style restaurant small as good fish fries and soups as judge pandian was alluding to i love this place judge you're actually right that mr myers is asking this court to draw distinctions that the supreme court didn't draw between substantive and procedural rights they didn't draw those distinctions and i heard counsel just a minute ago say well you have a substantive right to get the receipt and that's different from the procedural rights spokeo not necessarily true because at the end of the spokeo majority opinion they talk about the notice that you get under the f c c or figure and you can make the argument that you have a substantive right to get that notice again spokeo was all about congress can identify intangible harms we don't quarrel with that and congress can patches pass a statutory scheme to try to mitigate lessen those intangible harms like the potential that your identity might be sold increased risk of identity theft or you look at the cable communications act saying cable companies can't keep your information longer than they needed for because they may be hacked and your information may be out there these are intangible harms that congress can identify and they could pass a statutory scheme but a simple violation of the statute isn't enough for standing you need more you need a concrete heart and that's either actual harm or the real or material risk of heart and mr myers has never argued that he sustained actual harm and he's never sustain that he's been in a material risk of harm and that's for two reasons the first reason is exclusive to him and the second reason is exclusive not exclusive to him it applies across the board to anybody who would have been given a receipt at nicolay restaurant the first reason is mr and as your honor alluded to mr myers knew immediately when he got this receipt it didn't comply and he knew that because in the two thousand he worked at outback steakhouse and one of his responsibilities was to make sure that their receipts complied with this law was passed what an interesting string of events mr meyer he had another case up here a couple of months ago that was the district court's decision was affirmed by this court on statutory immunity but it ties into this case because a few days before he goes to our restaurant he goes to the i don't one stop gas station gets a receipt that doesn't comply doesn't realize it doesn't comply on the tenth february tenth he goes to our restaurant gets the receipt and immediately has the aha moment i remember this time i was outback steakhouse working and this receipt doesn't comply let me check the receipt i got it on a gas station a few days before oh that one doesn't comply either then subsequent to that he goes to another oneida gas station to test if their receipts comply so again mr meyers was never at risk of harm didn't sustain actual are the more general reason why nobody who got a receipt from nickel a restaurant was ever at a real risk of harm is in the two thousand and seven clarification act for this law where congress explicitly sets that properly truncating are getting rid of the account numbers which we did at our restaurant we properly got rid the account number properly truncating the account number even if it includes the expiration date does not increase your risk of identity theft so anybody who got a receipt from us was not at an increased risk of identity theft if they would have thrown that receipt away which of course mr meyers did he kept a hold of it found a lawyer attached to a complaint so that's the real the  one route to identity theft with credit card receipts so we're going to impose these requirements obviously a violation will not inevitably lead to an end to you know to identity theft but we need an effective means of enforcement we could create a new federal agency that would go around and inspect all these things or we could create a private right of action and rely on private attorneys general to enforce this right and the folks who are most likely to take that step are the ones who are most likely to be most likely not to be harmed themselves because they're going to be protecting themselves but if we take away that incentive and say no standing we effectively remove the enforcement mechanism that congress put in place where am i overstating it and if so why i don't know that you're overstating it but i i think that's what article three requite article three requires that you have you be at a real risk of harm or you are or you're actually and again congress in the two thousand and seven clarification talked about this and said look we're trying to protect those people who have their identities stolen but we're not trying to do it at the risk of hurting business and the clarification act is not a way out on the merits for me because our violation came later but again i think that's pretty clear that congress was concerned about business and they were concerned about it  anyway that then again if mr myers identity was stolen or if any other plaintiff's identity was stolen we wouldn't be here arguing about standing but that's not what happened and if you look at the cases i cited that the thompson case out of i believe the eastern district of missouri in the kemal case out of new jersey those courts dealt with the same an issue whether a plaintiff who was provided a receipt that technically didn't comply with the statute but had no real harm and no real risk of harm satisfies article three standing under spokeo both of those court said absolutely not and there was a discussion in thompson about what a real risk of harm might look like that somebody unsuspecting throws a receipt in the trash now it has too much information in it they find out later and now they're worried they're calling their bank they're calling the credit card companies they get a product like a life like they contact experian there is some harm to them or something they had to do mr meyers didn't do any of it mr meyers didn't contact his bank he didn't got to experian he didn't to even tell his friends and family members say stay away from nickell a restaurant because their receipts don't comply so again and getting the council's point about the seventh circuit now the keil case and the phillips  case i think you can reconcile those we spoke you know because the court in those two cases the seventh circuit in those two cases never said well there was a violation of the statute so automatically they're standing and philips the issue was a lawsuit was filed that should have been filed in the court looking at standing said well that lawsuit being filed may have may have the potential to cause harm to the plaintiff because the other creditors might look at that and take some sort of action in the heel case it was a debt collector you know somebody sent a letter saying you us you owe us a twelve dollars fifty cent collection feat and again the risk of harm there is the unsophisticated person might think oh shoot i have to pay the twelve fifty so again it was a risk of harm analysis and both spokeo got to and what spokeo address this is important because the hammer case was raised by mr meyers here what spoke you know addressed was what was in some circuits called the absolute rule circuit was one of the circuits that has this rule which said if congress passes a law and you're alleged to violate it that's enough you don't need to show harm beyond that a violation the law is enough and hammer came out to be a circuit and dealt with this receipt issue and the s c r right subsequent to spokeo the a circuit came out with a decision right berg it was i think september of two thousand and sixteen and bright burge they recognize that in light of spokeo hammer is no longer good law that spokeo superseded that absolute rule of standing and a violation of the statute alone is not enough fax then there's another one of these i don't know what the range is hundred dollars to fifteen hundred dollars damage and we've had cases in here where the lawyer says he's got over one hundred of these cases and they have standing because they got an unwanted fax so i assume the difference between that those cases were we go into many of them that this receipt is not unwanted it's business when they can find enough of them and i'm just curious if this is different this is a much narrower than that there's no nothing and wanted this this receipt that that's true and i don't necessarily think i mean you have to deal with those cases on the merits but again i think when you get back to spokeo it deals with as as much recognize that congress can pass laws they can recognize harms but not the last say well it's going to be a harm there has to be a harm and it can be an actual harm or it can be a real material risk and i think the courts are going to have to deal with this and figure out what material risks of harm are in these consumer protection statutes  but i i don't think we can start drawing distinctions between substantive and procedural rights because that's not what the u s supreme court said spokeo that they didn't write stage kills plaskett both as one of the things that concerns me about the class certification denial was the basis offered for distinguishing the mullens against director general case another consumer  f class action and the district judge said in this case the defendant was and most reckless to the potential security of its customers  identities there is no concern the defendant committed any fraud or even did anything wrong now that troubles me because i think we have to work from the premise that your client was in fact  violating the statute dealing with receipts for credit cards right yeah and i think what the court was trying to drive at and i'm not trying to put words in the court's mouth and i think i we in our brief distinguished it different way by saying the court i'm all ends was specific we focused on a heightened ascertain ability requirement which i think there are going to be problems ascertaining the class in this case but that's not what we argued and that's our the court base its decision on but looking at what the court had to say relative to the fraud and harm in mullins you had a concern by this court that if they don't certify the class a major fraud upon a lot of people was going to go on punched in  defendant was claimed to have sold i don't know as a weight loss drug or some sort of drug some miracle drug that was a sugar pill at the end of the day so again i think the court had to be concerned that some major fraud was going to go unpunished here did we technically violate the statute by having the expiration date on the receipt no question but if you look at congress in the two thousand and seven clarification act and what they said doesn't really raise the risk of our and you look at nobody was harmed here and a proposed classes of people who are not harm circuit that say look if we certify a class and we're just going to have a bunch of individualized depositions individualized facts science fact finding individual testimony which you will have it's class i mean none of these people are going to have kept their receipts or early one little essentially be one question right did you get did you get a receipt for every member of the class yeah sure well you can do the same thing in multan and that's the nature of the piece but good referring to the two thousand seven clarification act can you just remind me exactly where to find the material you're talking about and i've got it right here it's  o base of six and i do want to quote you the specific language in is it statutory or committee language it's it's right in the law because police experts in the field agree that proper trun of the card number by itself as required by the amendment made by the fair and accurate credit transactions act regardless of the inclusion of the expiration date prevents a potential fraudster from perpetrating identity theft or thank you just just very briefly before before i i stepped down the court mentioned that spoke here doesn't necessarily stand for the proposition that the congress has the final word but in the texas spokeo the court acknowledge itself that congress can articulate chains of causation that give rise to injure were non existent before and that the risk of real harm satisfies concreteness and congress does and in those cases you need not identify anything beyond what congress identified as giving risk apart so here congress has said there is a risk of harm when you print this number on the on the receipts in fact i this point about a six yes so that is true that in the clarification acted in sort of the in and sort of the statement of purpose behind it they say what happened with the clarification x is they retro back actively went back and said just expiration date violations prior to this day or are not no longer going to be you can't sue over however congress didn't do anything going forward so if there really was this this realization that you know what that spiration date really doesn't make a difference congress in its judgment could have repealed that part of the law they could have notified it going forward as well but for whatever reason they didn't do it and so as the last day ends right now that is something that congress says you cannot do and that is something that congress says there is a there is a significant risk of harm from doing it in fact if there were one hundred percent compliance with the law there would be absolutely zero risk of identity theft from from credit card receipts because the credit card receipts would definitely not contain the information that congress was concerned about raises the risk of identity theft and i  think that's another area were spoke you know is distinguishable because in that case like i said it doesn't it's your maximum possible accuracy and they said you could have reasonable proceed yours in the information could you could have something very trivial wrong at the same time you could have totally unreasonable procedures and just walk out and get everything right so in that case one hundred percent compliance with the statute wouldn't necessarily guarantee the actual and which was you know full and correct information about consumers or as in this particular provision of the statute it says one hundred percent of the time if they comply there's not going to be and there's not going to be a risk very briefly i would like to turn to the class certification issues i think that the issues really speak speak for themselves as far as there is a general issue here at all defendants willfulness that's going to stablish liability to every single person that was provided a receipt and the only other individual questions are who is in the class and as the court noted if someone comes in and says i got a receipt i always get or seat height this is something that i got they are defined as being in the class and i just don't know hollow aap that would predominate over the top and