concluded our briefing in this case and that is the moran ski vs godiva case was a published opinion and it was issued by a panel of this court and the reason that that case is significant is because it concerns at least with respect to the access digits portion of this case an identical situation and moran skee you had the first six digits in the last four digits that were printed on the receipt and the question was under fact is that sufficient to confer article three standing with respect to this case we have two types of receipts we have receipts that contain the first six digits in the last four digits just like the  did receipts that contain the expiration date that's printed on the receipt and as you're aware facta prohibits both the printing of more than the last five digits it also prohibits the printing of the expiration with respect to the case there's been a petition for rehearing that's been filed again it is a published opinion it is from this panel i'm sorry from a panel of th court the mandate has not yet been issued due to the filing of the petition for rehearing but nonetheless it's significant because according to the holding of that case at least with respect to the excess digits portion of this case that case concludes that article three standing is satisfied should we wait to see whether the good decision for rehearing used the nine and the mandate issues before we p d if i think that would be a wise outcome at least with respect to the access did i mean just isn't there ok is there a case before the supreme court that might bear on this that the court is grant cert on i don't believe so i know that there were other circuits that had decided factor cases and there were petitions that were filed at least and i want to say at least i know in one case it was filed and it may be in two cases but those petitions were not granted violation was willful well i don't know that this court has to look at it in the first instance if you recall with respect to the district court the district court addressed the first component of article three standing the injury in fact issue and it in its opinion and it held that all of the other issues that were raised by the defense are deemed to moot and it never got to those issues we certainly argued against the the defense's claim that rule twel six was not satisfied but weak so what you're saying is we could leave that issue for the district court to address in the first instance on remand about whether there whether there's enough here to allege a willful violation yes absolutely and with respect to that of the court's interested in hearing about our thoughts on that even if you asked about it be right it may be best for us not to address it in the first instance i guess it's a legal question  so if i think it should be left to the district court because it was never addressed and you don't have a record to go on certainly you can take a look at the comply but if you're going to look at that with respect to the question that you asked a few minutes ago with the u s supreme court held there is a state of mind and if you look at the pleadings standards that are codified by the federal rules specifically rule nine be ruling be expressly states that malice tat knowledge and other conditions of a person ma persons mind may be alleged generally and that's a direct quote from rule nine b plus i mean even if even if for some reason you were found not to be sufficient to establish waffen s s couldn't you still proceed under negligence theory well i think i mean it would be a different obviously different penalty provisions but could you not still assuming th arguments had any merit which we don't believe they do and let's suppose a district court got to the twelve b six issues and said well you haven't played it adequately well we'd like to request leave to met and frankly with respect to that issue  cases we actually gave notice of its violations and at least one maybe more of miss taylor's receipts occurred were printed after we had already given fred's notice of its violations so  it's not in this particular complaint at least it's not spelled out in those terms but there is a reference in this complaint that says that fred directly has knowledge that it is violating fact and if we need to embellish those claims further a ticket wait them further we can do it and that's what we'd request from the district court and the same is true as judge rosenberg pointed out with respect to negligence climb we'd leave those options open and that's why to your question judge prior i think it is left best of the first instance of the district court with respect to that you have a de facto violation based on the nature of the fact the statute it also held that even if the de facto a violation a fact is not sufficient to satisfy the article three require met that you have this additional injury in the form of the receipts already been printed the damage has already been done and if the receipt is printed then you're centrally shifting the burden  where a fact requires a merchant truncate receipts the obligation is on the merchant if the merchant doesn't comply then what happens is that burden that statutory burden is now shifted on to the customer and the customer has to undertake efforts to either keep the receipt safely in his or her possession and or otherwise keep it safe or dispose of it so that it doesn't fall into let me ask you a question let's say just devil's arcade advocate here let's say govern your case if anything our case is stronger because godiva concerns the first six and last four digits here you have the first six and last four digits plus on certain receipts you have the expiration date happens to the petition for rehearing and whether the mandate issues let's say we did what you said as i understood it you said we should do the prudent thing which is we wait to see how that how that turns out assuming something doesn't move the case or something like that in the meantime we get it we get it the non bank opinion probably the prudent thing for us to do at that point then would be to ask the parties in this case to give us supplemental briefs about the effect of the buck opinion right that's certainly one option i think that at least as i say can't really know whether that on bank opinion how it would affect us in this case that that's true and i think that i think that if you look at the moran scheme opinion as it is if the moran ski pinion stands then at least in this case with respect to the excess digits portion of it it's binding it's binding on this panel and that disposes of that portion of the case if it becomes if the mandate is issued and that means that article three standing  satisfied at least with the excess digits portion of it there is the balance of this case where we have the expiration date portion of it so that that that that is different and that would have to be addressed tom's got here but you've got five minutes for rebuttal thanks let's hear from is robert the court i'm christine roberts on behalf of the freds entities the district court ruled that plaintiff tiffany taylor did not carry her burden of satisfying article three standing requirements because she failed to allege an injury and in fact both as certainly honor out agree that it changes the landscape but what i want to address is that even if and regardless of how the court addresses the injury in fact portion of the district court's opinion as counsel indicated that his record did not reach the other grounds in our motion to dismiss and wash it away i believe that this court could affirm on other grounds this is a motion to dismiss we can also let the district court address it in the first instance right yes that is a first sentence isn't it that is something that's an option that this court we would say that this is a pure issue of law whether or not the amended complaint satisfies yeah that's drugs well basic sense but it may be that if he alleges more in an amended complaint it can satisfy the standard of the bleeding standard right we've seen other courts that have district courts that have denied requests to to replevy to allege additional that is an option for this court to do i you know it would urge the court to look at the american plate and look for those allegations of willfulness as we've articulated in our briefs that if you look at this particular complaint and look at what has a lead it's been alleged and as councils indicated that the a proper analysis as under safeco the birth of the two thousand and seven supreme court case the question of whether there is is answered by looking at whether the violation at issue is a result of a reckless decision not only that the defendant knew of the statute and failed to comply in our papers we cited the crew party weinmann case of the southern district of new york and in that case if you look at that case if you look at this case and you look at the specific allegations there are quite a number of parallels just as in that case the plaintiff they are alleged number one that car companies merchant that court held that was not enough under safeco you have to plead and i'm quoting from safeco sufficient facts to support a plausible inference that the defendant knew that it conduct was violating the statute and not simply that the defendant knew about the existence of the statutory provision at issue if you look at what the plaintiff has alleged as a violation it's that there were two receipts that had the digits  that had the first six and the last four digits but those two receipts did properly truncate the expiration date and remove the expiration date then you have another receipt one receipt that allegedly  expiration date but properly removed all of those digits so what the complaint alleges is that fred's complied in part as to all of the receipts at issue and so that doesn't plausibly suggest that the defendant acted knowingly or recklessly to violate fact that there's no reason or factual basis to support a claim on this or recklessness here and said we have facts that that maybe show that you know that the expiration date was removed from some the digits removed from others so there's not a plausible basis from the facts to conclude that that that fred's knowingly willfully was not complying the other thing that's significant about the allegations in this complaint is if you look at this complaint and if you look at the others and in in these lawsuits that have been brought across the country you really can just remove that the name of the defendant and insert a different defendant it's the same cookie cutter complaints that we are seeing from jurisdiction to jurisdiction with a couple of minor changes rest for example with respect to the receipts injury in fact prong of article three standing just contrary to what the district court ruled that is contrary to what the district court ruled in this case right and so we would have to reverse and remand if we didn't that we would wait for the on back opinion to issue in which case then we can ask for supplemental briefs about the effect of that isn't that right i think that's right your honor and i think that that again we do think that that year this court could proceed with with going addressing the willfulness prongy and affirming on you know the alternative basis that the complaint in this case does not satisfy rule twelve b six that and does not meet the plausibility standards cite us a we're not inclined to do that and the first instance ok then what we really need to just do is wait from risky right i think that that  is certainly an option that this court can proceed and of and if the court asked for a supplemental briefing after moran to be we'd be more than happy to address any additional questions one other question is there a case in the supreme court the united states that we need to be watching to in the congressional record that congress did recognize the potential for abuse of lawsuits here congress was expressly concerned with abuse of litigation and that that is part of why you know we submit that this this these cases should be looked at seriously in addition to the fact that that article three applies no matter what congress said but given the balance of congress has a terminations that there is a potential for abuse here coupled with the constitution's requirement that in every case the test of article three has to be satisfied we would ask the honorable court to  you were that they filed a motion to stay yes and it was granted by this court that was a situation where both parties if i recall correctly requested the stay and it was and this court entered the stay pending the disposition of the moran skee case and as of my question is is there a reason why you haven't done that we actually i'm glad you asked that question we sent over the tarp inion or at least reference the tarp it in to defense counsel and we suggested to defense counsel that we should stay briefing on this case because moran skee has been fully briefed and we expect an opinion there we were inclined to have the same situation in tark but we didn't get their consent and therefore we had to proceed with briefing this case with respect to the comment about abusive litigation practices that is not before this court i would also point out that congress had an opportunity to revisit this particular statute in two thousand and eight through the clarification act and they did and as the ninth circuit pointed out they had a prime opportunity as what they called it to make changes to the statute to the extent they believe that any of these provisions including the remedial provisions were unfit and they kept intact both the liability provisions and the remedial provisions going forward from two thousand and eight with risp the only change that was made was they cited two merchant confusion as to whether the expiration date portion of it was required to be truncated on receipts and so with respect to violations of that portion of the statute that occurred before june two thousand and eight they said we're going to give you a retroactive immunity for expiration date cases prejean two thousand and eight but going forward everything stays the same and so in our  mind the remedial provisions whether it's the negligence provision or the willful violation provision those are all kept intact and to the extent merchants violate the law they if a court finds that they're like they were the defense is asking the court this court to make factual determination as to whether they were willful they were not willful and again all of that should be visited in the first instance by the district court i do want to point out however that this idea that one of the things that defense insole said is that this complaint is cookiecutter or generalized and first of all it's not true but even if you have instance where a complaint mimics allegations found in other factor complaints it's not uncommon for that to happen because a lot of the same notices a lot of the same practices are engaged in by the c so for example the f t c has given notice of this the credit card intermediaries like bank processors have form notices that they have sent to nationwide merchants and so a lot of these allegations will repeat i had a case that i was involved in which is  entitled the shaft d c h a versus american ballet and limousine inc it was out of the district of arizona two thirty four at sept third nine sixty four at pages nine seventy nine seventy one in response to this exact argument that court said quote that these allegations are repeated nearly verbatim in another complaint filed by the chef is irrelevant to this analysis it is perfectly plausible that alleging behavior by national corporations and federal agencies would be repeated in similar actions with respect to the rule nine b issues that i laid out that case also addresses it it's a state of mind pleading not a particularly difficult thing to do with the four can look at other cases like the to two thousand and sixteen west law three for a three to zero five period versus in and out burgers two thousand and seven west law one of four zero eight six four where courts have addressed these very types of arguments and they have shot them down in the context of rule twelve b six motions they cited to certain other cases one of them was the rosenthal case and in that particular case there's a follow up