good morning honor smear piece the court alex machinery on behalf of appellant plaintive freshman i up i like to reserve two minutes of my time for me please be reminded that the time showing is your total time remaining thinking on the  two issues before this court the first issue is whether the plaintiff has article through standing to bring a claim on the sixteen eighty one b f and the second issue is whether my client sufficiently alleged and cause of action under sixteen anyone b f and worse with respect to the first issue that this record suer spondee concluded that my client or that the plaintiff here does not have article three standing and specifically because there was no concrete harm however the complaint alleges that kept the one up taint my client's credit report on numerous occasions without a permissible purpose therefore invading my client's right to privacy yawners no credit report contains numerous confidential information address name employment so security they'd of birth things like that answer all my client never authorized or i should say capital one never had a promise of a purpose or pain my client's credit report so that's an invasion of privacy that is a concrete harm as recognized by the ninth circuit invent patton and i as well as  a harm of people pulling other people's credit report without a permissible purpose so they an act that the f c c or a specifically section six hundred eighty one b f to you know remedied at home accordingly on her stairs article three standing with respect to the second issue so is it your argument that in the abstract without showing any individual lies harm like somebody using her credit information that just the mere fact that the credit with access is sufficient injury yes your honor because it's the intrusion that causes the liability here it's true upon looking at financial information looking at private highly confidential information  would you calculate damages on that injury right so we can't conflict conflict standing requirements with a cause of action so for standing purposes all we're focusing on is a concrete har the concrete harm here is the invasion into the private information into the confidential information and then the f c r a assuming you can you can then prove your cause of action the f sorry then why it's hurt saying the ninth circuit you didn't really apply the complete test you didn't look at the concreteness so therefore we're going to remand and have you have the court look at that and subsequently actually the ninth circuit concluded that there was a co harm and remanded it back up and these to the to the district court so it wasn't an issue where the allegations was insufficient is more than once or didn't apply all of the factors that the next supreme court felt they should have done and yous here well here we're talking about a substantive right right so we're talking about someone invade somebody invading your privacy so for example let me give an example on let's assume that prior to me coming here today i is what is basically saying the judge has no standing to come after me for doing that isn't that invasion and i need to and i invading your privacy and looking at all this private information why am i entitled to do that why do we have all of these laws why do we have hip hop but so far if you done exactly that i wouldn't really feel you were injured well that that's that's i don't know how you would think when it did happen and had no consequences what would be my somebody is looking at my credit report you know why do we even have section six hundred eighty one b why is it even there talk to congress about that but the question article three is a concrete injury to have an invasion important issue here and you know i was saying that you have no harm so the next time i look and access someone's medical records and look at medical records that's different well it's an invasion of privacy it's financial versus medical so the credit report is sort of like a blood test that has everything about you in the credit report so why should someone look at anyone's care about without a permissible purpose i think i did in my reply on the other reply i don't know if i cite in my opening brief  the article three standing issue but also mentioned that there's a decision by the lower court here to dismiss the case on the basis that it failed to allege sufficient facts to state a claim under sixteen eighty one b of the f c r a the matter is been fully briefed on article three standing the court's obviously very well aware of the jurisprudence that's come down since spokeo so unless the court has specific questions for me about article three i would propose that i would direct my time to time to let your response to opposing counsel's position the accessing private information with concrete injury spokeo tells us that we have to look beyond the pledge violation to understand what the appreciable risk of harm really is in order to do that it's can textual and by that i mean you have to focus then on what provision is alleged to have been violated bro shock from the seventh circuit tells us that even under an article three standing analysis harm has to be plausible on the ninth circuit what do you do with the language and i came that seems to give credence to the odd well the problem that i think we have is that still in this instance we don't know specifically what right of privacy is being implicated and the reason for that we want to see what the financial privacy but even within that your honor we're focused in on section hundred eighty one b which talks about the permissible purpose for accessing a credit pool report within that there are in numerated provisions in the court looks at which provision within that statute is actually being clarify your honor so let's examine two different permissible purposes and i think we can understand why the privacy interests would be vastly different in those contacts on the one hand a permissible purpose could be for employment related activity or employment review the court inside tells us that there are two distinct substantive rights that that could reflect a concrete injury so there's a right to information and there's a right to privacy those privacy interests or vastly different than what would be implicated by for example prescreening in the prescreening context congress went to great pains to narrow any privacy concerns and in expressed the stated that in order to mitigate privacy concerns they took three specific actions forced prescreening one is they limited the amount of information that would be available to banks and creditors upon a prescreening review that's by statute the other thing they did is they made sure that the inquiry for prescreening would not even be visible to other credit there's also in the statute and then thirdly and this is perhaps most importantly for defining what the privacy interest is thirdly they created the right to opt out so a consumer can opt out of having his or her credit share with would be creditors out in the world who are prescreening for firm offers of credit so in this context your honor it's important understand that the right to privacy we're talking about isn't uniform across the entire statute it's limited and it's can textual and the problem that we have on this case and this is really what the court seized on below is that in this instance it's not plausible we don't know which privacy interest has been implicated because there are not facts alleged right of privacy concerns what a rise of counsel i will point of supposed to know that your client access that for a proper purpose so your honor that gets possession custody and control of information that would informed her would have informed her of potentially what the permissible use was the capital one engaged in and that is simply referring to it's our position that plaintiff had an obligation to come forward with more information about that credit report an example would be if it were a promotional inquiry and plaintiffs could have identified that just by looking at the credit report that tells us an awful lot about what happened here that tells us an awful lot about what the permissible use would have been it tells us that it likely would have been perfect for prescreening it tells us that likely there would have been a firm offer of credit made afterwards it also tells us all the other things about the protections i just mention and that the information would have been limited in other words capital one would have only seen very limited information about this individual it also your you give it as hypotheticals what would happen in this case regrettably your honor that's part of the problem is we don't know there aren't sufficient facts alleged despite those facts being in the plaintiff's possession at the time she filed in the client possession of your client they are in the possession of my client but my client isn't put on notice yet of what the exact harm or what the exact violation is will generally congress congress created a protection here and of the fair credit reporting act and in the overall rule your credit is protected and then it provided exceptions typically in pleading standards exceptions are affirmative defenses by your client by the defendant so white why shouldn't you have the burden of proving an affirmative defense for the exceptions that appear in the statute there are two reasons for that your honor first is that  the authority cited by plaintive and appellant here for that proposition is an app as to this case and i'll get into that the second reason your honor is that that proposed interpretation runs contrary to the express language legislative intent and sound policy considerations that attend the fair credit reporting act evocative edge is in apis it in this instance for two specific reasons number one is that case and by the way this is the centerpiece of plaintiff's burden shifting argument that case dealt only with the fair debt collection practices act has no mention whatsoever of what a viable pleading standard should be under the fair credit reporting act that's reason number one reason number two is the statute that's at issue in yvonne it deals with an entirely different structure so that statute was a two tiered exception beginning with the words except as provided in section sixty ninety two b you cannot you simply cannot lay that on top of six hundred eighty one b here under a completely different statutory regime and have an apples to apples comparison congress with the legislature was explicit when it said that it sought to provide recourse for unlawful access of credit reports not any access of credit reports congress also clarified th intended to create a benefit to consume rumors through the sharing of this information so if congress were to open the floodgates and allow anybody to sue merely because someone access their credit by the way congress recognized happens continuously it would do great harm it would have visceral rate the very benefit that congress sought to confer back to the consumers and with that your honor i'm out of time there are no furthe report was access now if they are defending claims that it was for prescreening or anything else that burden is on them to bring facts to the front of the district court to so look we had a permissible purpose but right now the case is so paintings of the statue that it says that the general rule of liability is as a soloist a person shall not use or a pain a consumer report for any purpose unless unless is an indicator of an affirmative defen rule of liability exceptions so in the exception suspend if it kept the want and we know that the rule of law is that when the exception benefits the person claiming the exceptional came in the benefit of the exception that person has a burden of proof that supreme court precedent that's ninth circuit precedent council may i ask you are you familiar with the recent decision and versus state farm yes i lie so it appears that in that case we say that in addition to alleging that your tory violation to confer standing there has to be some concrete harmon in this case it appears that we gave as an example that i did it then if was so suffered as a result of the improper improper invasion of privacy why should we have a similar requirement in this so pained it was an invasion of privacy issue in the sense that the entire credit card number was printed on the receipt so that right the invasion of privacy other people could see the entire credit card number and it seemed there that we saw that's a technical violation but there is no concrete injury that came after that right so let me let me just let me just explain what the differences and that and that particular case i believe the pain the volunt defendant had to then do something where the information is disclosed to an unauthorized third party whether the ticket gets lost whether there's a data breach but the distinction here is that in our case plaintiff never gave the credit report to capital one so that stop is the invasion the company never invaded the painters right to privacy in a paid of couldn't show that this information was was was was fall into the hands of unauthorized third party to invade