is sam hahn and i represent karen miller the appellant in this matter may i please reserve three minutes for rebuttal in two thousand and thirteen one point six million consumers including karen miller ordered their own consumer credit file from trans union using trans unions website the lower court holds that none of those consumer credit reports that were disclosed to the consumers are governed by the f c r a at all that decision is harmful to the consumers contrary to statutory language contrary to public policy and contrary to precedent in this court should reverse at the heart of the matter this court has already held that the f c r a is remedial legislation which is to be liberally construed in favor of the consumer and lower court's decision is contrary to a liberal construction of the s f c r a and in fact the lower court's construction of the statute as harmful to the consumer also this case comes before the sixth circuit today on our procedure of a motion for summary judgment and under summary judgment karen miller is  non movement and all of the facts should have been viewed in the light most favorable to the nonmoving party my client and the lower court should not have engaged in fact finding which it did and therefore this court should reverse we begin with the language of the statute information that dr miller received in response to a request came from trans union itself it was delivered from trans union to miller via its wholly owned subsidiary using the trans union website but at the heart of it all  information did come from trans union it did not come from trans union interactive and the evidence for that is actually found in the records trans union produced two reports one in june two thousand and fourteen and one in july of two thousand and fourteen which clearly show that those reports came from trans union but it was merely delivered to the consumer by trans union interactive and those two records from june two thousand and fourteen and july of two thousand and fourteen clearly show that the person that ordered the report was karen rebecca miller that it was recorded on october third two thousand and thirteen and it was delivered via trans union interactive one and in those same reports there's a second entry a second order that shows that trans union interactive ordered a report on october third as well and so while i might trans union interactive to you i might have ordered their own report there's no doubt that in the record karen miller ordered her own report as well and that report originated with trans union not with trans union interactive if we want to focus this case down to the heart of it there are certain some things that are not disputed in this case first of all trans union fully concedes that disclosures to consumers are governed by section six hundred eighty one g and they also concede that if this october of two thousand and thirteen report that miller ordered is governed by six hundred eighty one g then it should have included all of the information that was in our credit file including all of the promotion inquiries trenching and also concedes that that october report that miller ordered didn't include any of the promotional inquiries and it and finally trans union concedes that all of those promotional inquiries that were omitted from the october of two thousand and thirteen report were intentionally omitted deliberately omitted and we looked at the file and that for the record at page eighty five ten fifty three this is our number sixty eight trans union certified to the court quote because the credit monitoring report plaintiff purchased was designed to replicate a credit report it is not surprising that it did not contain any promotional inquiries and so at the heart of it there's no question  information that should have been in that report was deliberately omitted and that's one of the errors that we bring to this court is that the lower court found that there was no willfulness in the standard that the lower court used was an improper standard language of the order  thousand nine hundred forty two is in the record is there is no willful noncompliance when defendant exhibit no ill will toward the plaintive and acted to fix the alleged problem the question of whether or not isn't that because they argue that the report karen received was a credit mark for a report and it was their belief that it necessarily needed to exclude that type of information for that type of report was not a credit report and that's where i think the the lower court made the error and i think trans union made a bad argument as well the lower court held that there was a credit monitoring report this third type of report that's not governed by the f c r a at all and unfortunately if we look at the consumer reports or the structure of the statute the statute divides from sorts into two categories one is a consumer disclosure where a consumer orders their own information the second one is a credit monitoring credit report where a third party orders the consumer's information and there's no third category of report the district court in this case held that there is a third category of reports one that's not governed by the f c r a at all and essentially said that this credit monitoring report is a disclosure that a consumer orders for the consumer itself but it's not governed by the f c r a and the plain language of the statute shows that a consumer report is one that is i'm sorry a consumer disclosure is a file that is revealed to the consumer so if we're looking at section six hundred eighty one g the plain language of the statute says that if the consumer orders the information it's governed by six hundred eighty one g if a third party orders the disclosure it's governed by six hundred eighty one b but there's no third category that where the consumer can order something and it's not governed by the f c r at all that would leave such a gaping hole in the f c r a that anybody could designate their reports as a credit monitoring report in the century escape liability under the f c r a secondly there's a court precedent that shows that if the consumer orders the information the consumers own information that falls under section sixteen eighty one g and this is johnson versus equifax from the southern district of alabama which held that consumer reporting agencies file that it reveals to the consumer and not a third party is governed by eighty one g e and also in two thousand and four spectra versus equifax from the district of connecticut hold that when a file is released to a consumer the file is termed a consumer disclosure under sixteen eighty one g and so here  if we're too liberally construe the f c r a in favor of the consumer to create an entire category of documents called consumer credit monitoring reports that's not governed by the f c r a it all would be contrary to the liberal construction that favors the consumer as a matter of fact it would be harmful to the consumer because in the one point six million people that ordered the reports in two thousand and thirteen alone have no remedy under the f c r a had there been a violation for those particularly reports you  district court cases are there any contrary district court cases the only cases that i could find your honor were these two that hold that if there is a credit and if it's disclosed to the consumer than it falls under sixteen sixteen eighty one g disclosed to third party it falls under section six hundred eighty one beat i couldn't find a case that held that there was a third category of reports that didn't fall under the f c r a at all we're asking this court to reverse the lower court's decision because number one the statute the plain language of the statute shows that sixteen eighty one g governs disclosures to the consumer and here there is evidence in the record to show that miller ordered miller's own report from trans union and trans union provided that information it just so happened to deliver it through its own wholly owned subsidiary trans union interactive and miller had ordered from trans union interactive would be able to prevail if miller had ordered it from crane jr interactive if that information was sent to trans union we would still be able to prevail because the order was made from trans union and secondly the record does show that the order was sent to trans union and trans union was fully aware that trans union that order came from the consumer for the consumer's own credit file and that trans union did transmit that information from trans union through its subsidiary to the recipient who was the consumer and so at the end of the day again we're on a posture here from summary judgment where if there are facts showing that the order was to trans union trans union received that order and sent it back to the consumer those facts alone should have been sufficient to drive summary judgment and if the district court finds that the order was from trans union and not from our i'm sorry trans union interactive and not from trans union then it again shows that the lower court and gauged an impermissible fact finding at the heart of it your honor there are sufficient facts to survive summary judgment and also the construction of the f c r a which includes an entire category of documents that is not governed by  a would be harmful to the consumer and for that reason we asked the court to reverse the lower court's holding so if i could just summarize in terms of where you say the fact dispute is you say that you ordered it from trans union the trans union received the order and trans union sent back the information to you and that at least there are facts that support your position and that that that is the crux of your claim that you have a sixteen eighty one g violation here honor and those facts actually do come from trans union's own evidence and secondly in terms of willfulness i don't think that there is a dispute at all the trans union does concede that they deliberately omitted all of this information so if the october two thousand and thirteen report falls under section six hundred eighty one g then willfulness is is established or at a minimum there is a genuine issue of material fact with reference t morning your honor may i please the court my name is william brown and i'm one of the attorneys for trans union l l c in this matter the record in this case  demonstrates that plaintiff has not provided evidence on several key components of her case in chief with respect to the relationship between trans union ms miller presented no evidence conducted no discovery the only evidence in the record below is that there are two separate legal entities which must control unless the plaintiff puts forward evidence suggesting that you can pierce the corporate rail or ignore the corporate identity but what about his response that she sent her requests to trance you well we e service agreement which she read and agreed to before the credit monitoring report was provided to her that's in the record but all also read it because i think it and it reads as follows the fair credit reporting act allows you to obtain from each credit reporting agency a disclosure of all of the information in your credit file at the time of the request full disclosure of information in your file out a credit reporting agency must be obtained directly from such credit reporting agency the credit reports provided or requested through our site are not intended to constitute the disclosure of information by the credit reporting agency as required by the fear cou report a new act or similar laws under the fair credit reporting act you're entitled to receive an annual free disclosure of your credit report from each of the national credit reporting agencies for more information visit the credit the credit report section in the learning center available from most pages of the website so plaintive was aware of what she ordered from home and the  ability to order a consumer disclosure if that was her desire i do believe that plaintiff misstated the content of section sixteen eighty one g it does not say when a credit reporting agency provides any report that it's a consumer disclosure what it does say is when the credit reporting agency receives a request from a consumer it must do certain things in this case trans union never received such a request planter's counsel refer to evidence in the record regarding inquiries on later credit reports inquiries appear at the end of the credit report and does a date every time a consumer's credit information was provided to a third party pursuit section sixteen eighty that was provided formatted as a credit monitoring report and provided to ms miller there's no evidence here that ms miller was confused or that she was unable to comprehend the very clear language that i've read to you in fact one of the things that the district court found was that ms miller presented no evidence at all on anything neither on liability nor on damages i don't think it's fair to say that the the f c r a prohibits anyone from producing any product that isn't a either a consumer report or a credit or a consumer disclosure when when i was inquiring at the end of your opponents argument about sort of the simple format of the case it was that the facts show that miller made an order to trans union trans union received that word or trans union sent back information to the consumer and your opponent says there's a fact dispute on all of that and i understand that your position is that it's not but are there facts that support your opponent position such that summary judgment obviously would not be appropriate i r there are facts that show that she made the order to trans union trans union received the order and trans union sent back information no your honor or facts about none of those or is there one key fact that is missing there is actually supporting none of those because what happened was ms miller requested a credit monitoring report from t o y t u i then contacted trans  union for credit information in the form of a credit report which would be covered under the c r a but once you i received that information they formatted as a couldn't monitoring report which is a service commonly enter you know offered to consumers in the in the millions nationwide this is not a usual procedure or anything that's going on behind closed doors  objection that you're making is that it was a credit monitoring report that was given to her i t you with information that you provided to  correct that it credit you can feel free to tell me where i'm wrong but your position also entails the view that a credit monitoring report is not covered by below so there's really no record for this and certainly the district court never had an opportunity to weigh in on that but i would say that a credit monitoring report is not covered under sixteen anyone sixty one jake is a direct to consumer product offered to consumers to help them monitor their credit and the way that's done is by providing them with a report that looks exactly like what their creditors would receive should they apply for credit that clearly explained in the materials and there's no doubt that ms miller knew that's what she was requesting and receiving in her deposition she confirmed that she signed up for credit monitoring services and confirmed that within the period for cancellation she called and cancelled so that she wouldn't be charged for  my understanding of what the district court did was that it decided that there was not a consumer reporting agency involved because the request was not  my correct and summarizing what the district court found i think with the district court found was that plaintiffs were the burden of proof fail to provide any evidence whatsoever as to the relationship between t u r a and tr well within his rights to grant our motion for summary judgment and that's because because there's no evidence according to the district judge and you that  is the current reporting agency i sent of the circumstances that's going to be left for another case where the record is properly developed so in conclusion i would just like to reiterate that credit monitoring is a very common practice in the united states it goes on hundreds of thousands of times a day the product and the process are very well described in the materials that the consumers review prior to getting their credit monitoring report  including the language that i read from the service agreement which lends itself to no confusion nor any issue of fact as to whether or not the plaintiff knew exactly what she was ordering and what she was getting and importantly how to go about getting a consumer disclosure if that's what she wanted to do but there's no further questions thank you please court i only have three points on rebuttal your honor first judge moore you asked whether there was evidence in the record to show that dr miller ordered the report from trans union itself and not from trans union interactive opposing counsel it said that the record is completely devoid  that evidence i'd like to point to some of the portions of the record where does show that miller did order her own consumer report from trans union page eighty nine hundred forty and this comes from the judge's order because this is one of the things that he found as that he said was in the evidence but disregarded at her deposition on august twelfth two thousand and fourteen miller testified that she obtained the october two thousand and thirteen report by going through annual credit report dot com website to a trans union website  probably discounts that saying whatever she thought she might have gone to ordered she was mistaken that's a factual inquiry that's improper in the record page would have been consistent with the agreement that she signed on reflecting the agreement is actually buried in a click wrap agreement that's not on the main page of the delivery itself and so when the consumer signs up or and says this is what you're agreeing to and there's a link at the bottom of the page and truth be told i don't think any of the consumers who are the least a few security consumers will click sure i do and that comes from a record sixty three three and sixty three for page eighty one thirty five and nine fifty two again if we look at the record it doesn't show that trans union ordered something on behalf of miller it shows that miller ordered it via trans union interactive and so the record that trans union has objectively shows that the person that ordered the report from trans union was miller not that  not a deposition that looks like it's a brief picture of the one nine hundred forty is the one nine hundred forty is from document one or two which is the amended entry in order and the reason that i'm citing to that is because that section of the order actually shows the judge  here's what miller submit says her evidence but i don't find it convincing and the i don't find it convincing part is a fact finding which is improper on summary judgment lastly trans union says that we never argued the six hundred eighty one issue in the lower court