have only two appeals to here this morning another on the briefs and we will begin with younger versus experience information solutions  r a the requirement to reinvestigate a consumer dispute is triggered when the consumer quote notifies the agency directly close quote of the dispute has to be a direct notification from the consumer experience has procedures to weed out purported disputes that don't fit this that come from someone other than the consumer the verdict in this case was that having a procedure testimony was that in fact this was a big problem that experian gets a huge number that are not coming from the consumer what there are there any evidence  improper or improper exclusion pattern mr younger there was not that exactly right your honor there was not evidence of even a single other improper exclusion experience witness testify that they get a huge number of these i think you can also look at you know congress is actually legislated in something called the credit repair organizations act basically to sort of  restrict these disfavored entities that you know have this business model of sending in huge numbers of things that are disputes that are not directly from the consumer w would suggest that there was a good reason on the policy for excluding the plaintiffs no evidence your honor i think that there is  could have happened and when you consider how many what high percentage are excluded it would seem like a race what gerry could could say this is completely haphazard policy it's hard to imagine how this letter would have been excluded given its nature your honor i respectfully disagree with the conclusions you're drawing because i think that in any system where you're getting these thousands and thousands of letters you're always going to be able to find something like this where it was improperly excluded i think if you look at the policy that is in the what's included and then there's a nd person who looks at it after it's scanned and they're supposed to look at it again to make sure that it is properly characterize at all right picking out one particular mishandle letter out of thousands and thousands doesn't tell you anything about the policy as a whole other than that obviously it argued and continues to argue if you look at page thirty seven a point of spurious plaintiff argued that the whole idea of having a policy like this was improper that experian is not allowed to just no foundation in the statutory text for spring even to try to determine before reinvestigating whether it's coming directly from the consumer so they are attacking the policy as a whole and of course it's important to remember that the way they argued it to the jury what they're arguing was this whole i don't know how to characterize it other than to say i won't characterize  this argument that based on something that wasn't in evidence that experience does this to try to get people to call and sell them things which they don't defend on appeal  which is based on something that wasn't in evidence and they were mischaracterizing the saying there was an unevidenced so they were arguing that the policy as a whole is evil and designed to make money and of course there are other courts that have address that this is to procreate to have a policy like this now the nd part of your question about whether there could also be an argument that it was willful and in his individual case i think that that wasn't the way they they argued it and if you look at that there was no evidence here other than to say that it was clearly you would need to show something  ff could have sought discovery on how often are these erroneous or really anything about the process at best i guess you could say that looking at those numbers without any evidence that any of them are being excluded improperly because again the testimony is this is a big problem they get a lot of these that's why they have the procedure a one problem though is that if they have letters that are directly from the consumer they employ a much much larger number of employees far more than you should and you don't then you avoid employing perhaps thousands of those agents well but i guess if there were some evidence that they were excluding more than they should then that would be a discussion but the problem here is you know our judicial system doesn't work on the notion of saying that well you know without any it's going to disappoint us right then of course but no system is one hundred percent accurate so yes that's conceded the question is whether there's any evidence that this was more than i mean there isn't even evidence that the system was you know let's say poorly designed or negligent in a broader sense there was a negligent decision in this case but to say you know they didn't put on any evidence  of the record and you know again i mean i think that the case is safeco and this court case is established that you know there's quite a high burden for ss claim and that again is even aside from all of the things that would require a new trial independent of any of that based on the completely improper reliance on this totally extraneous document that was knowingly represented to the jury it treated as if it were evidence and the centerpiece of the plaintiff's case what it what about the district judges conclusion that experience didn't take any of the steps that they could have at trial to mitigate that evidence having chosen to to ride it out there was no opportunity to rethink that approach now well it's a little hard frankly for me to understand that argument i mean as i understand it the idea is like i have to you mitigate the use of something that should never be before the jury and is still not put into evidence and is but is misrepresented by the lawyer basically testifying while it's not in evidence in the plan of say oh experian should have put in because the plaintiff in this kind of experience then should have put in the document the plaintiff was trying to improperly get in i mean that's not a remotely reasonable way of dealing with it and even if they had it still wouldn't excuse what happened in some ation where again this was not admitted into evidence and yet the plaintiff water made it the centerpiece of his argument to the jersey like well the testimony is experian doesn't do any marketing to people when they call in to say it's a real dispute and well you can believe that or you can believe this settlement with the attorneys general which legit you know there is like if you go through it it's it's a settlement with a bunch of different entities you know including experience just one of the entities the only thing in the with this sort of marketing going on is as our caller refers to an anonymous consumer complaints about some credit reporting agency but not saying which one  doesn't say no or it doesn't say that experience did any of that so and it was part of a series of practices that wasn't the only focus of the agreement so you know there isn't anything in there that even has been evidence could have i mean there isn't even a good faith basis frankly for anyone looking at that and saying that it even alleges that experian how much is what it is which has said they may please the court let me begin with the point that was raised by judge grant because i think it's the centerpiece of the case they intended to apply  suspicious male policy in this case and they did in fact apply and to the point of whether the policy is willful or youngers exclusion is willful strikes at the heart of this case the policy itself is not only a willful but an intentional violation perry credit report let's start with the statutory text the statutory text says that a dispute has to be processed unless it's privileged or irrelevant there is no exclusion in fact you for a suspicious piece of mail that is then directly sent from the consumer right so it is determined that this was not on its face was not sent directly from the consumer their obligation hasn't been triggered has it i agree with that the legal obligations are sixty one odd but let's think of it in the context of what they say their suspicious mail policy is designed to do number one and then number two what happened here the suspicious mail policy they say is designed to root out claims that don't come directly from the consumer well of course these categories in the suspicious mail policy on both sides and things like that have nothing to do with suspiciousness beyond that what i mean why do you see have it's one particular  to categorically restrict no because because there's nothing in the act that says saying that it has to come directly from the consumer there's no definitive law on that that says a statement or a statement sent by a consumer on behalf of or by a lawyer for example that that's just categorically out if the consumer has active involvement in it there is pretty persuasive authority for the fact that that can be covered the walker involvement by the consumer if there's some involvement by the consumer that's going to trigger a sixteen a when i'll be a geisha again but let's look at it in the context of the facts of this case and in the context of what sixteen a when i was really reaching for which are disputes about line items on credit reports ok a dispute when a consumer since in a dispute the credit we're reporting agency is the gatekeeper as as the court knows for all these disputes in the united states they are the ones they the centerpiece of this entire system challenging iranis credit reporting when that happens when that happens a consumer is sending in something saying i have something on my credit report that is wrong that presumes that the better than your client not necessarily judge and i'll tell you why for two reasons number one the policy itself the testimony is of course that over two thousand disputes per day out of the between three and ten thousand received are getting kicked under the suspicious mail policy that needs to potentially on some day two thirds of the mailings coming in are getting kicked logic only tells you that a number of those are are  apologize for talking over you on the phone that the reasonable inference from the evidence is just that the court can look to that been we probably should have submitted to the supplemental authority wigan's versus st advantage is the new case from about  is in that case they cite to the fact that the failure to show in that case that the the actual practice that led to the fickle violation did not result in any other violation was not  se indicative of a lack of willfulness or certainly did not exclude the inability to recover peanut of damages or anything like that because logic could tell otherwise and that's even in that case and goes back to that regarding prior criminal convictions in a credit report and what was happening was lexus nexus a lexus nexus affiliate had a had a screening process under which for common names people with common names they had they required three markers in their policy three identifying match markers in order to attribute a criminal conviction from the public records to someone that the evidence in the case was an actual practice they didn't follow holding it to the st party request but number one you have an inference based on the volume that's kicked out secondly when wasn't a great portion of your willfulness proof this  questionable presentation that your lawyer your trial lawyer made about this consent decree which i've read which says nothing about the defendant marketing the defendant marketing to customers when they send in these letters using these letters that marketing is mentioned but there's no there's no real honest know under the s m p that's why so this notion that there was a mistake is a wall it's simply wrong that properly applied there s and p as it is written the policy itself is a violation and that's really what distinguishes this case actually  policy required this letter to be excluded what was it not that it requires that it allows it allows ok ok so that's different that's different it was a mistake you can't tell me oh can you that there's a particular provision in this policy that kicked this letter yes the policy the policy gives the mail clerk discretion and i agree and under and n we all agree it was a mistake it was kicked by a mistake but you can tell me there's a particular criterion that would cause this policy this letter to be kicked out of them the discretion given to the employee says it tells the consumer this we've received a suspicious mail request in the mail regarding your personal credit report and determine that it was not sent by and then this is the kicker suspicious requests are review security personnel that's just a false statement testimonies admitted to that in the case who work regularly with law enforcement officials and regulatory agencies another false statement admitted to to identify fraudulent and deceptive corresponde so the s and p response is i processing of dispute is an expensive business for experian independent of the thirty one dollars a g agreement i'll address that momentarily it is an expensive proposition six hundred dollars disputed agents are employed if they process the additional two thousand per day that are coming in imagine how many more people they would have to employ and that really goes to the question of how what is the appropriate amount of peeta damages to force them to change this policy because they have problem with the government and we don't have any evidence t credit reporting entry which is going to be the lion's share of what comes in to any credit reporting agency i've got something wrong on my credit report those are all going to be not suspicious in their own right because that again when a consumer sins in a credit reporting dispute they know what's on the report there's nothing suspicious about that to start with you're just it's not the consumer saying hey send me a copy of my credit report that's a different that's a different situation i think this is worth pointing out at the end of closing experience council tried to turn it around on on the plank and said this interesting when you haven't heard anybody come in here and say i'm the person who decided this was the policy and we're going to have to have it because it's going to make us a lot of money you've heard mr steele speculate about that but i suggest to you there's a reason you haven't seen that they were trying to find that out and could so they tried that they tried to tactically at trial turn skillfully turn that around on the plaintiff and say they didn't put the thirty one i g agreement in evidence for a reason they didn't want to show you that and that didn't work and now they're complaining it's so in came in i think without any mention to the judge i understand use contend that the defense lawyers didn't defend against it are you saying that the inference is you offered it for the jury in your arguments and all your client sent this contest letter in march the th so say it got there you know april st or nd ok before you serve your lawsuit on june th in the normal course of business not not because of this lawsuit at least the normal course of business is what judge cornelius said and i looked it was before you served your lawsuit they corrected this problem apparently on their own bat if it's in the normal course of  january it's not like he got a judgment and the next day turned around what i'm saying is they went on their own in the regular course they claim this before you serve your lawsuit within sixty days of him sending the le are probably cleaned up the trade line that that's generally what would happen if the furniture is is on the ball but you know so particularly when they have gotten sued a consumer wants that off their report promptly right so it took seventy policy would be permitted under the statute but this but that this is an on reasonable policy i think it's potential that a that a directly the because of the word directly a policy could be used if it were truly designed to root out something suspicious this is not that what about this mr graham what if the policy was that that a letter from a consumer supposedly from a consumer that on its face makes clear it was not sent directly from the consumer can be excluded and you can send out this this possible if you if you read directly very broadly then it's certainly possible but a policy that allows for exclusion under any scenario where any piece of mail could be looted and bear in mind no one has ever said that let me start this quickly with where mr green just left off which is saying that no one says that they're mischaracterizing the policy or or have it wrong no i very much to say that i invite the court to discretion you know if the envoy excluded it's not what the policy says if you look particularly for sixty five dollars it specifically says are supposed to look at you know what is included in open that if there are attachments for example that show that the consumer personally participated then they're supposed to not treat it as a suspicious  been excluded right was nevertheless excluded because of the policy that the policy was applied excluded and and and you recognize that that that should not have happened that was wrong but your corporate representative really couldn't explain why well your honor i think what you're asking is an important question and let me speak to that because i don't think that that's actually mr green is saying that the representative testified that it was properly excluded under the policy like that this worked as intended that wasn't the testimony i would look at a two hundred and forty three dollars of the record she was saying it was excluded pursuant to the policy like that's how it happened but at the same time she was saying it was  excluded and if you look at the policy itself it clearly under the policy shouldn't have been excluded so not to return is not a reasonable jury listening to that testimony say well the you know the policy excluded intentionally something that it should not i don't think actually a reasonable jury could have but since my time is and i invite court to look at the festa money but just very quickly here the other point i want to make is you know just on the two thousand per day that whole argument is premised or based on the assumption that it can't be that experian gets that many letters that aren't directly from the consumer the problem is there's no basis for that assumption and there are a lot of credit repair organizations out there that are frauds finding on that have you know i i can't i would have to look back at the letter and and look into that because that really was was not a focus of the case i think that as i recall the testimony about it there were statements about working with law enforcement that experian did in fact work with law enforcement to try to there i don't think though that that was certainly that wasn't how the case was tried and you know no i don't think that as a basis for finding a willful violation of the of the statute  statutory violation is whether they violated our duty to reinvestigate not it's not a requirement about what goes in the letter i think we understand your case