i'd like to start with a little bit of context in this case people like mr prescott people with pus convictions you can for gainful employment often talk about finding a lucky break and by that they mean finding that rearing player who was fully prescott so he knew that mr prescott was still on probation at the time but still running decided to hire him for several years afterwards mr prescott worked at advanced towing and he proved himself at least in remains eyes but this all changed in twenty eleven one day running called mr prescott into office and fired him saying that he failed a background check but before  it true that your client signed a release allowing the background check to be run for the employer before advanced towing called him and fired him this cracker ok so the sequences there was everybody knew about the he and his employer knew about the prior conviction this question he worked very successfully for a number of years he says that the policy changed from aaa and auto club so then he signed a release allowing them to run the background check right that's right ok did he see the background who you are which was he was completely accurate how is it possible for him to assert that there are damages from the nature or timing of the notice i mean he's damaged by the change in policy which is not related to the notice the facts trojans are a little complicated but i have to disagree with your a presumption that there is nothing in probation can be can be reported i think no you honor the plane if we you've covered this in your briefing i think that's a that's a black letter law question so if let's assume if you would and i and i made a note that you because you covered that pretty extensively yourself in the briefing i understand that you disagree but on that point but but just if the background check is accurate if your client had a prior conviction i think he still was on probation what are your point to the the name of the statute this issue is not an accurate credit reporting act it is a fair credit reporting act accuracy is one of the four values that this act is trying to protect and the two of them that i can see that did catch a lucky break he had been a player who hired him even knowing he had of the prior conviction and he had an employer who was so sympathetic and maybe by that time so impressed with your client's work he was willing to ask for an exception this year right in two thousand and eleven or twelve whatever it was asked for an exception that fell on deaf ears so what is it that the fair credit reporting act would have allowed your client to do if you received earlier notice of the adjudication what opportunity did he lose here well if you rule out the possibility of disputing that old record the absolute record from the equation and then not much except to say that hey look i was convicted more than seven years ago and i should before you actually keep me as not meeting company standard be able to talk about what i've done so for ok so he would have been able to make his argument to aaa i guess and to the auto club that the port because because higher rights no longer the case right so yeah isn't that right that is correct ok so the argument is that the policy adopted by the call them the two clubs should have required higher right to give him earlier notice of the adjudication this correct so that he could have made his argument to the clubs that this really wasn't a report of a condition after all or was he supposed to make that argument to hire right to hire it i see because of the decision making power is still with hi right so why do you have a cause of action then against the clubs because well what gives you a cause of a cause of action as i read the statute the adverse action can only be taken against employee and he wasn't an employee of the club note in fact this circuit understands the employment purposes under the fair credit reporting act as as not requiring an employer employee relationship and in fact that's been the in of the employer rather employment purposes under the fair created putting out all this time at least since i hope versus retail critical praise i believe there's a fourth circuit case from back in one nine hundred seventy s the only looking at we're looking at fifteen u s c sixteen eighty one b subsection b three ok so what's your best authority for the argument that the education itself is an adverse employment act on and give up their contract with aaa or whether they keep the contract with aaa and suffer whatever consequences they got in the suit from mr prescott but i'm not i don't understand why aaa is on the hawk when it doesn't have the power to take an adverse action has a contractual relationship  keep their contract with aaa or whether they're going to fire or whether they're going to fire mr prescott and if mr prescott scott effect or claim it's a claim against hire i don't understand how he's got standing to sue aaa well you honor the question is whether by implementing this policy by having this desire and purpose to use mr prescott's report whether the article in aaa stepped into the role of the employer here traditionally the decision as to whether criteria i thought this is one of the arguments and i really want you to answer judge by question but just to be clear your your theory on this shifted over time and the district court was concerned that so are you back to the theory that associations as an american automobile association so with but you but you're under here under an adverse action and the adverse action section that's applicable here is the denial of employment and it refers to employment purposes and the not you're not defending that here today so how is it that mr prescott can be deemed an employee of trouble i or you want to adopt a theory that big that there's a chain of events here and that that simply because  has this this policy that somehow affects mr mr prescott that he can sue all the way back up the line that's a bridge that's a very broad very aggressive rating of effect but that seems to be that's probably your point yes your honor that is a plane that unless we have this joint liability for all the users of a consumer report then we don't have an increased prospect for ensuring that the consumer would receive a notice and find out about the manner in we'll hear from the other party has a criminal background policy that is part of this independent contractor contract that has been the policy since two thousand and four and it does didn't really change except in one really significant way in two thousand and four the required that the employer would certify that it was in compliance with the background check policy but the article didn't have any we have checking that just had to take the employers word for that apparently problems ensued so in two thousand and eleven they changed the policy to give the auto club a method for for determining whether the the verification or verify environment tightwire it yes to require so at that point what happens is  that auto club just has access to these pass fail determinations that they access once a year in determination of whether the contract should be renewed with the towing company the towing company gets the consent from the gets consent from its employee efore the background check the towing company sends that with a contract that the twenty company has a higher rate to run the background check hire right runs the background check gives it back to the employer and the employer takes whatever adverse action the employer is going to take based on that the only information that the auto club has and aaa the national association has no information is that once a year they can go on a portal and compare the employees of the employer with the pas fail determinations to make sure that the verification is correct there is no adverse employment action that is taken by the auto club the audits are only causes the employer the actual employer to  i have the policy as far as the laws now concerned as a matter of contract so regardless of the justification for the policy the existence of the policy and the existence of a negative report are causally linked to the to a person's losing their job that's the client least in terms of standing now whether they can avoid those consequences is another question but i don't understand why that isn't an adverse action within the meaning of the statute it's an adverse action taken by the out of club here on it is instead yes had an incentive to to stay in the program but what if that what if what if higher rights report had contained information that while not inaccurate was not permitted under california law to be reported that is that the extent of the of the report exceeded the law in california does triple i still get to go to events towing and say you got your fire this guy here i could just point out that triple i did not or the out of club did not go to advanced towing at all there is no communication between the and advance towing at any time during this process the question is different the questions a different question what if the report had shown something that california doesn't allow them to show even if accurate the california didn't allow it after a certain period of time to be reported out and he was entitled to a clean slate and they don't have that anymore so to know would there be a claim there against them against the two clubs if they had an illegal policy is what you're saying yeah that's exactly what i'm so there would be a claim you know either they relied on and on and on and on i would say no but i would also say that there's no evidence in the record that aaa or the other club does that in other words they check and if if there is so let's say hire right has this report that's not compliant and it does  fail determination and then the employer doesn't quite fire him the only evidence there is in the record is that auto club when it checks annually those in talks to them so all we have is that there would be some conversation between the auto club and and then sterling and is it would be the auto clubs policy not to renew advanced towing contract for the following year if they knew that the they had an employee who had a record even if the record was older say i don't want to hire you because you have because you're a felon even if it's older than ten years all we're talking about is the reporting requirements what what is permitted what is not permitted in california i'm asking a slightly different question but the problem that labor be able to would it be would be within aaa he's own policies just say advanced towing no contract for this next year as long as you've got this guy we don't care that's not going to show up on his or we know about it would not your honor the policy itself incorporates the time limitations the seven years from the date of probation terminate so the policy is entirely compliant with the law so you're very clear that you think he's on the merits do you want to talk about standing yes honor it is the defense position that he has not shown any actual injury as a result of anything that the auto club did so as a result of any claim against the out of club there is no injury because the report was accurate he got notice he got a chance to talk about it with his employer the employer and mr prescott sent letters to the auto club and therefore there's no injury and he is not have article three standing for purposes of this appeal what do you argued today is that he's got an argument that he should have been able to make to the clubs that that the report should have been clean because his probation very status shouldn't have been reflected on the report that that's what he lost the ability to make that argument but your honor he doesn't have a right in other words the report was clear i suppose that's on the merits right doesn't that go to the  looking at going back to him just go back quickly to the statute for a moment in the statute does say that this statute has to do with reports that are used by someone intending to to have an adverse employment action for employment purposes that's what we're talking the only we're the aaa is intent used to cause an employment action i mean the whole point of the policy is that you want the people with whom you have a relationship to hire and fire certain people depending on their criminal background check that's the whole point of the policy is about employment so i still don't understand your position that it doesn't fall within the statute it's it's just a little tenuous you honor and there is the connection is tenuous and there is no direct relationship between the employment status of mr prescott and the outcomes of policy out of club adopts a policy that is company wide it applies to all independent contractors they don't know anything about mr prescott they don't know who he is they don't know when his input when his background check is being run they don't know when he gets the results they don't know what the results are they don't know any of this and so other than if you were to say that adopting the policy is an adverse employment action there is nothing that auto club does that it impacts mr prescott's employment and and no court has ever said that adopting a background policy for your independent contractors constitutes adverse employment action and that's all we have here is adopting the policy and requiring the employers to certify that they have in fact complied with that policy and for that reason i think that the auto club does not take action for employment purposes they take action to verify their independent contractor certifications and or section for employment purposes for that reason both the procurement purpose employment purpose and the use employment purposes they go hand in hand together those phrases must be consistent they're used consistently within the same statute if advanced