all right our third case for this morning is different bark against barnes and noble  issue is whether heather deafen back after shopping at a barnes and noble store in california that was equipped with a pin pad that was compromised by criminals  through which the criminal stole the information at barnes and it was admitted that some of the information was used to commit fraud and a different doc is the one who had the debit card so she actually has money pulled from her account for yesterday's that's correct  she had money full from her couch she was unable to use for three days and just one of the planes that are of the law in california which requires a statutory stand you're quite right for an unfair competition claim that constitutes a loss of money or which happened three days later in this case so three days she was unable to access any money you're saying she had she suffers a theft basically is what you're saying for three days and i take it you're analogizing into the fact that you know maybe some people in vessel money from period of time has value so was there any proof of that i could imagine hypotheticals where i think you would have a strong case so if money is taken from somebody said count because of a debit card and let's say you've set up an automatic payment of of your rent and so they go to pull the rent but the money isn't there because the skimming even though the money gets put back later you in the meantime would have suffered  dishonor of the of the rent automatic payment but i didn't know whether you needed to plead something like that i didn't see any further evidence along those lines although i realize this is at a very early stage when we didn't plead specifics along those lines the argument that we'd made and it was it indoors by least one california court was that the ability to access your own money has value when the money was taken out of  of interest on one of the account probably paying less than one percent per year under the u c l that would be sufficient the u c l sloss money requirement is a statutory standing requirement that was added just to ensure that private parties have an california supreme court addressed this issue addressed this issue i think most of it relies on the quickstep decision  there's injury in fact if you've lost some money but and california seems to have said i'm looking at this quick said quote that you had your brief lots of ways that you might suffer economic injury from unfair competition you seem to be under the third be deprived of money or property justice or permanent deprivation yeah i'd agree with  the it's a pretty small injuries though that that she has are you and for when stretches before you sit down she's the one with the credit card who's without her credit card for a few well she extended the identity theft protection plan that she had that the district court thought that was pretty speculative to show actual harm and she's also if they think both of them but at least one of them is raising this when i walked into barnes and noble i thought i was buying not just a book but also a certain degree of protection when i tend with some of these cases virtually every adult who has been gauged in economic activity in the united states has had their information compromised in one way or another every federal judge has had that happen through the through the federal office of personnel management given all the protections that are in place against actual loss for fraudulent use of information  from credit cards though the reimbursement that happens in these kinds of cases from the from the merchant what is the social value of class action litigation  does this add to the to the to the picture but i think the social value it is principally twofold number one his class actually gave concerts at the turn in fact that's goes without saying what marginal deterrent effect given that the other economic actors already had cuties and ordinarily do step in and reimburse people for losses and and that gets the second as from my experience and we've done some of these cases these people do stuff it real hard are you talking about it like sitting down and sorting out you know that the time value of working through the fraud department and things like that you know i'm talking about more than that i'm talking about that i'm talking about people who somebody in some cases credit card credit card companies although it's general practice to do so are required to refund money over certain amount i mean there could be a charge  skimming the unfortunate results of of the skimming that they will somehow have an incentive to have a better system that right well that's yes that's true but also we're seeking recovery on behalf of plaintiffs in the class you for instance parts of the didn't offer free credit monitoring which usually comes identity theft insurance in this case which is usually pretty standard right so the plaintiff or new winstead renewed hurts who heard us tell your predecessor at the rostrum that ad hominem observations are inappropriate and then you stand up and immediately make one my apologies complaint two of the four individual plaintiffs have voluntarily walked away from the case and we're now down to what is fundamentally a case of one individual plaintiff who pursues her claims under illinois state law and the other pursuing her claims  connection with the constitutional standing question to both of those cases the court reserved the question of whether the claim had been stated under will twelve the six hundred stay law but the court has addressed those issues in the pitch  wanted to have a law that says we just think this is bad we don't really care if anybody's lost something or not california citizens can go to california courts that's california's business how they want to use their courts once you're in federal court you have to satisfy federal article three standing requirements but california seems to have added that to its law so even though it's a it's a very tiny injury perhaps there is enough of an injury whether it's the kinds of things that court recogniz it's the loss of the use of your money for a certain number of days or you had to make sixty five phone calls and listen to annoying computer menus to you know get your situation straight straightened out probably all had to do it some point we said you know that sin injury and so why why doesn't that at least get you over twelve b six in this case so your honor the and i guess i'm just focusing for the moment the california case i think the interest alleged there is no loss of money that was funds that were not returned no fees that were incurred nothing sorry so so you would agree that if they had said in their complaint  hundred dollars was taken out of her account and she had an automatic payment set up with her electric company and it came up short because her account was one hundred dollars short even though they later restore the hundred dollars she suffered an injury because the electric company couldn't draw the money well that had particular that would be you know well i mean a lot of people do automatic bill payment very convenient and they think the money's there in their account they're being responsible and all  the sudden some criminal drains a certain amount of money out and then there'd be there would probably be a seat at the electric company would charge for the insufficient fund draw i mean that so so i'm i would think if the complaint had had such an allegation you you wouldn't have a very good position i think your honor is correct if the complaint had alleged a loss of money or property for example in the hypothetical the court just gave about inability to make a payment to the electric company and even though the money is later restored at the moment they go try to draw their money there's not enough in there and they are positive that they incurred a fee say a late fee or a penalty or somehow some other fee that would be a loss of money or property i would agree or honor and indeed that's why i began by saying we're five years in for americans of the complaint the core issue in this case has always been was there a damage incurred by either of any of the plaintiffs if the stand is the standard though is is is along the lines you're discussing something more is needed i would assume you would treat that as giving you a very good argument against class certification we may well may well but i don't but we would make any yet we'll see not yet and we're going to have plenty of opportunities perhaps in the future so maybe so but i do think maybe so but i do see you think that we're seeing the natural evolution of these cases so the first wave of cases that cut their way to make their way to federal were frequently decided on standing ground sometimes they were dismissed on standing and reversed or vice versa now we're facing a series of cases like the one at bar where the core issue on appeal is whether the plaintiff has alleged sufficient facts to state a claim under certainly even back takes the straightforward position that if somebody has stolen money out of my bank account then i've lost some i've lost my money for that period of time and even if somebody rather the credit card company or barnes and noble or someone later restores the money to the bank account the bank has had to go through all sorts of hassle because of that you know the loss falls somewhere and it's temporarily falling on the consumer so that's an allegation of a loss of money and winsted in illinois says you know that the cost of credit monitoring is old is so concrete lost now in some of the other actual economic harm so again just as the discussion before focused on whether there was a lot of us going to property so how long can you be without your money before it starts counting as a loss well that's a very good question your honor in this an matter at least if it's only a couple of days i guess if it were a week or month or a year that under some circumstances there may be a time value of money not done such allegation would just adjust the lack of access to your own money you don't think that counts as  money you know and just say well you should be able to put up with this much but not that much and in another case it may be that there is a way to to put a dollar value next to that this is this is not the case may briefly address the illinois my share my god i'm going to round  virtue of the plaintiff's decision to resubscribe or to continue to subscribing you had a monitoring that she had previously subscribed to for independent reasons before the barnes and noble incident even occurred putting aside the causation question which i'm happy to get to in a second but you know we're in a situation here where we have an unusually robust amount of case law under the on the consumer product both in the state teleports of illinois and also in the federal courts in this district here holding that credit monitoring as a means to mitigate the risk of future injury is not considered actual damages for purposes of the statute indeed here is particularly apt in the michael's case that we cite talks about this you know he  no other personal information was transmitted to barnes and noble's part of the transaction there is no increase there's no risk of future harm it has been terminated so purchasing credit monitoring would be the be decided by this point i am as appear on earth time is up we will bottle the first one relates to the california customer records act in our brief we relied upon the adobe case which played an injury impact standard to the injury requirement under the act both the bornstein and miller cases the opposing counsel alluded to also applying injury effects standard states almost exclusively to article three to decisions and actually analyzed informationally degree so i'm not sure i mean none of those decisions really only one decision which is county and county relies upon two decisions which don't deal with it really specially in circumstances like this and another decision which is broke can i please finish your thought that's what just broke which really which only relates to harm that would be incurred for credit monitoring expenses in the future or at least that's the context in which row analyzes the credit modern expenses so the lexicon you stand on really and all the other cases rely upon