today ultimately it is hard to admit mistakes in life it's easier to double down but foundation your honour's askey you cannot build on a shaky foundation so what i'm going to give your honour's today is three different reasons that you should rule for the opponent in this case either you may find that the district court heard right at the outset in failing to do its duty to ensure that the witness a proper foundation for the documents that would otherwise be hearsay or your honour's may find that the court wrongfully interpreted section six dollars of the forward flow agreement which contain an express ban on arbitration thirdly your honour's may find that the court improperly ignored the russe antitrust litigation decision so there are a number of ways that you can get to the same conclusion which is that the police made so hopefully i don't forget anything we did up a dress this pretty pretty in depth and reply brief page a nine to eleven but ultimately the standing argument happens because we cite a case i think called matson versus us in all of these consumer protection cases that regulate the behavior of debt collectors the debt collectors violation is complete when the debt collector sends the offending document it's not about whether the consumer even receives it it's not about whether the consumers misled by it there are cases for example where a debt collector sent violet's of notice to a blind consumer and the courts even though the consumer didn't see it because this consumer protection statute is meant to regulate the collector the behavior of the debt collector then that is what matters so at the moment they serve the declaration they were in violation it doesn't matter that they did not use the visit i mean just assume for a moment that i don't think those cases are consistent with the guidance the more recent guns from the supreme court and spoke a zero on the other there has to be some injuries suffered by the plaintiff what was the injury here well you know and i we addressed this book thing again with i think something like thirty to thirty  so your honor ultimately when you have these consumer protection statutes what courts have phoned i believe we cite the berne case and the linehan case what courts have found is that because the legislature has imbued consumers with a right to not receive misleading and violence of communications from that collectors the debt collector in doing so infringes upon that right and that is your injury well but but i mean in most of the time i mean you know they send you a misleading statement that says you know you better give us the money or else you will do something to you that we're not actually allowed to do under state law on them that's misleading because they don't tell you that but you know that induces the consumer to pay money they otherwise would not have paid or to do something but so there are there is most of the time some concrete injury other than the mere violation and i guess i'm wondering if you have any concrete injury here that you can point to and again your honor i would state that the  these kinds of consumer protection laws do not require actual damages for there to be an injury for example it doesn't require that the consumer actually act on it because again it's not about the effect on the consumer as much as the so just looking at the scope of possible injuries to potential class members can you articulate scenarios where there might be monetary damages ok well so st of all your honor there these are statutory damages cases so if there is a violation then statutory damages are available need not be actual damages however one of the major things that occurs and what the problem is with these declarations their use is that they affect in a sense the consumer who is usually in scenarios like this a defendant in a collection action they may affect the consumer's settlement position they may induce the consumer to waive certain valid objections or defenses and in some cases the entire point of these declarations is to get a judgment a judgment without the basis of testimony the point of these their clear ations is to do a trial by declaration in contravent we did or maybe we didn't know it at the time that it was sound if we were to believe that in order for there to be standing for ms davis in this case there had to be some adverse effect on her some effect on her behavior because of the sending of this declaration you're saying that there was some well you're if i'm interpreting your question if you're owners are asking me whether mr davis suffered any peculiar a loss no i'm asking whether there was some alteration of her behavior on account of her having received just declaration i don't know that i can say that your honor the damage that we point to is the damage that the legislature set forth which is what i thought i thought you told me and in your reply brief and maybe you told me standing here that in fact and induced her to get a lawyer and due to various things are you backing away from that i am not your honor but what i'm trying to say is because ultimately the the offending communication was not used and because she did get a lawyer who understood that the declaration was botched then ultimately she was protected but the fact remains that she ultimately did get a lawyer and they did violate the statute so did you know when she retained a lawyer because of a lawsuit against her was filed in april i think it was in the declaration wasn't some to her until fairly shortly before trial which is when it occurs or honors and i don't have the timeline of that with me i could submit it if your honour's feel it necessary to this the statutory damages cases like this everyone rushed out after school kayo to try to say aha no concrete injury and all the courts that have looked at it have said no no no even if there is no peculiar damage even if it doesn't necessarily affect the consumer's behavior directly there is still a sin i don't see in kuwait but there still is right that the consumer has not to receive these offending and misleading communications all of the a standing i get your honor and thank you for that i think i see where the court is now and this is again this is another tack that debt collector defendants use the ultimate issue here is not about the violation of state law for say it's not that the violation of state law automatically you know caused this f t c p a violation as we discuss somewhere in their plan brief but i'm sorry did i make a note of where the issue is and we cite the kimber case the issue here is that the declaration is misleading and that's why it violates the f t c it's not about the fact that the declaration violates state law it both violates state law and the f t c because it's misleading it's not just about some sort of negligible violation that does not contain a misrepresentation and i'm going to say so and so here the debt collector used this declaration procedure that was clearly not permitted because the declarant didn't reside within one hundred and fifty miles right correct and that declaration had the amount of the debt and requested collection right presumably yes ther and it said the amount didn't in that than in the declaration yes your honor and so i think if i understand what you're saying i think what you're saying is that when you send someone an improper communication that by hyperbole might be you know we're going to come take your house tomorrow if you don't pay this money that there is some level of presumption of harm because it's going to have people are going to change their behavior or react in a certain way in some cases they might hire a lawyer in some cases they might go try to pay in some cases they might try to borrow money from their uncle they might try to do all sorts of thi is that the kind of harm that you're talking about not in this particular case or not as and as i think i said before there your example is but one example it's an egregious example but it is not the it is not the universe of  behavior that the consumer protection statute seeks to remedy which is just to have sort of clean collection practices correct your own and i did explain to how in some cases  the these statements do end up harming consumers in more specific ways than just the violation of their right not to be misled by debt collectors but it's not that is not the universe of harm honor or you may find that the court wrongly interpreted section six point one this is i'm not been doing this very long but this is the most interesting result i will say that i've ever had i've talked to many just lay people friends of mine my wife about you know this is the section that says buyer shall not use arbitration in connection with the accounts or otherwise and said what do you think that means do you think that means they can use arbitration and the saying is always no of course not and so we had this very convoluted effort by the district court on reconsideration to insert words and make implications and ignore just the plain text and then finally we discovered the why and the why is the ross case the facts are not in the spirit if you read the opposition the opening brief from the police they do not dispute the russe the citizen they don't dispute the words of the statute of the assignment agreement the only thing they say is well you didn't do this and you didn't do this and well i do need to reserve some time but the basic idea is that here the appellant is being punished by being forced to arbitrate when there is no right to arbitrate for failing to discover something that the police should have known and should have revealed to the court and what i would do your honor as i reserve the balance of my time for any  good morning your honour's my name is nicole strickland i represent the applebee's may please the court oh oh all in this matter has tried to avoid the arbitration process on numerous occasions in both the district court and when we were actually in the arbitration and i think the record is clear that each time arbitration was compelled and compelled properly we contend that the district court and the arbitrator's decision was correct when asked that you affirm you also said in your brief that the result of lack of standing which would not be a basis for affirming it would be a basis for if this report didn't have jurisdiction that should not have compelled arbitration and  would have dismissed on and i think the appropriate disposition from us would be to direct the vacant or of the district court's decisions so you would be left without the arbitration award and you're back to square one and i would be has really raised these issues and made them more prominent i'm a little i don't like these cases when article three standing is raised for the st time for two reasons sometimes there is a factual record some pinion from the district court on the question because it's much easier for us to avoid mistakes earlier consideration by judges on the same point now having said that i'm not convinced that spoke o is relevant here what happened in tokyo is that there was an accuracy in the credit report and the court said well you've got to show that there's some standing there's some harm coming from the inaccuracy in the credit report it was not  a collection case correct we've got a lot of collection cases where we have statutory damages that flow simply from the fact of the misrepresentation so it's those cases that seem to me that you've got to get yourself out from under and there's not a lot of briefing on those cases as the case comes to us right now i understand your honor i think it is a couple points though that i don't think are really undisputed one is there's no factual misrepresentation contained in the at the declaration at issue communication with the debtor strongly suggest that it will be i don't think it does i think if you look at if you look at the declaration and the record all it doesn't state certain facts all of which are true so it doesn't say anything about the  the debtor about the legal effect of the declaration or how it's intended to be used as soon as you as soon as a service a process refers to the point is very clear what's going to happen i don't think it's clear what's what's going to happen to the is very clear is what the debt collector says can happen and might well just buy a service of process is that the contention well as the reference of the central section the reference of that i don't know i think that's kind of a leap under the standard under which it has to not i kind of compare it to a situation where let's say i have an affidavit in support of a motion for summary judgment every single fact in that affidavit is correct one hundred percent there is no misstatement however but for some eviden i have failed to get this it notarized or something to that effect and thus it is ends up being inadmissible have i then made a materially misstating statement to the consumer i think what we're really comparing it to is how a lawyer would view it and i don't think that's the correct standard and that's why i say in this particular case there really was no risk of harm just because ultimately it would not have been considered to be admissible in court and as you  think it it takes place what i think you have to look at is actual facts as your honor as your honor mentioned and here the declaration was never ever used at trial period i mean you know we do have the stipulations that were affected to in the arbitration which were clear that it was not used at trial she never attempt to serve anybody at the address and so essentially there was absolutely no result of this declaration whatsoever that occurred and i think that's important when your honour's are considering this from the standing perspective that those facts are in our record before us today putting the standing issue aside i think that appellant has several other problems with this appeal number one i believe that in taking the position that essentially the the evidence your arguments that they're making number one  again they didn't follow the northern district of california local rules relative to objecting to our evidence and so that i think the key here is clear in the th circuit because they did not object in the underlying proceeding they have waived those objection period now and i recall in their reply brief they were tort well yes but it just wasn't admissible in the st place so i think they missed the right on the waiver and so i don't think it's up to this court to thus go through and you the nd point that they make in their briefing is regarding the ford full agreement i think we adequately set out these arguments in our response brief which you know number one i think they're applying the wrong law it's virginia law and the virginia law that was applied is not an arbitrary determination because h s b c was had its principal office in virginia at the time of the contract so i think if you look at the principles in which you're supposed to interpret those particular provisions it's clear that that arbitration was not waived by virtue of the provision that there it's not so much i'm sure it's quite right to characterize it as whether you waived and when we look at the you know the plain language of the robin cause you otherwise in connection with the accounts it's pretty broad and would seem on its face to cover this proceeding  which is certainly connected to the account so why doesn't that apply i understand that interpretation and i but i think it's problematic for a couple reasons if you read the entire agreement and not this particular section art in isolation including the exhibits which is actually the the account which has all right title and interest in the account does not exempt the the right this is a contractual provision which is why i said waiver because i think perhaps that's a little bit of a stronger argument but if you look at virginia law and the way virginia law looks at contracts when there's a specific terminology here for collection of debt and then a more general term it's supposed to be found that the more general term serves to modify the original more specific term so as not to make it super feel less and so i think if you apply those principles as the district court did correctly you come to the conclusion that the intent of that provision was not to exempt arbitration completely but instead it was it was meant intended so that if c c h or the any subsequent purchaser would have tried to enforce the accounts in arbitration or any type of enforcement action relevant to the debt that that was the intent of what was trying to be excluded and i will say that as a practical matter as well there was a large push to cease arbitration is being used in the collection of consumer debt during this particular time that may be the intent but that intent would have been accomplished simply by you know for collection of data but adding the very broad you know or otherwise in connection with the accounts  generous rule which i was completely unfamiliar with admittedly until i used them generally generous and that's you know that goes back to what i said earlier about how when the general roads are used in a contract after specific terms the general words limited in their meaning and restricted in their meaning to things of a like kind in nature with those specified and that's from the goal and which is a virginia appellate court decision that we cited in our brief you know i think i think you could make the same logical argument is ok they said collection why would they say anything else why didn't they just say never you know i think that's that's that's an equal assumption so using that  additional to these other contractual principles i think the district court got it right if capital one wanted to exclude arbitration from the right to combat i think it had to explicitly state as such which i don't think it did and that's that land case from virginia from two thousand and nine additionally they have raised newly discovered evidence which is relative to the ross settlement i do take issue with the conclusion of my opponent that we've seem to agree that the rossum applies i argued throughout the district court that i thought there was  insufficient evidence to show that the ross settlement even applied and the arbitrator ultimately found in a motion that the settlement did not apply now so i don't want this court to believe that we believe it would apply under any circumstances and i say that because the evidence was actually insufficient to show that any card holder or subsequent card holder agreement or notice was actually ever sent to his client or any other consumer that would fall here that would removed the arbitration clause there's just simply nothing in the record about that as to whether that actually happened so i wanted to get that point out as well but i think regardless there newly discovered evidence in a dollars motion it was untimely it was not made within a year of the order even if you were to consider it as a sixty six dollars motion which i don't think would be appropriate but if it would be considered that way it was not brought within an appropriate time frame they waited a levin months after having apparently discovered the settlement to bring it before the court in a motion so i also don't think they can actually demonstrate actually injury as a result so i just wanted to make that point  on the the rule sixty that's all i have for your honors unless there are other questions for me thank you thank you factual misrepresentation in the ninety eight declaration as the th circuit itself has discovered when the declaration says that the declarant is available for service of process pursuant to ninety eight but they're not that is a factual misrepresentation can i interrupt you for just a minute could you start the clock ok thank your honour's you just got some free seconds i appreciate it very much so ultimately too we got to apply a little bit of common sense e's in this case expect us to believe now that they say well the declaration is completely true do they expect us to believe that they sent a declaration that they themselves thought to be useless i don't think so your honor doesn't it doesn't pass the smell test similarly one discussing the effects on the consumers behavior i urge the court to look at reply brief page ten to kimber and turgeon cases even though the effect of the ninety eight declaration for this case is kind of irrelevant given that we're talking about the arbitration local rule seven issue we talked about on reply brief page eleven again it's ultimately about is the document admissible does it have a foundation and it doesn't with regard to this idea that they could have exempted arbitration they did the that is the clause how else do you do a concrete ban on arbitration other than a clause that says buyer shall not use arbitration that is that was the exemption your honor so to say well if they wanted to they could have they did and that's what we were talking about similarly the courts of the district court's decision that talks about claims against the borrower that's the language of the court invented and pulled out of thin air and lastly my opponent said that there is no subsequent agreement and this is why we needed someone from the correct credit or we needed a foundational witness because they would have said by the way this rusting happened by the way we sent out new agreements and by the way this