good morning everyone we're ready to proceed and you may have noticed we have a guest with us this morning we're very happy to welcome to our court judge giuliani a very distinguished jurist and we're happy that he's part of lakes case and a second from the eastern district of wisconsin which is the time warner case they got here a little bit different routes of the great lakes case while the spoke the old case was pending before the supreme court of the united states based on standing grounds which the district court granted in these two cases where people were appealed and consolidated here what we're asking for relieving from this court is as to great lakes to reverse and find that they're standing in remand the case back for final approval hearing for time warner to reverse in remand the case back to the district court pretty soon district of wisconsin for further proceedings  mandatory disclosure document under the cuff c r a and so you could speak to his injury what i'm trying to understand is how he suffered an invasion of privacy when he doesn't allege that he misunderstood the disclosure or would not have given consent had the lie billy waiver not them a part of the disclosure certainly your honor it is a starting point that the supreme court has recognized that there are situations including the spokeo cou because obviously in the situation where someone has waived their rights or believe they've waived their rights and now files an action of if if nobody filed an action that the defendant would be able to continue to violate those rights and there be nobody who would have standing in that circumstance but here there's no allegation that additional information cost him to not understand the consent no allegation that he would have provided consent or but for the extraneous information on the form no allegation that additional information cost him to fail to investigate what it take advantage of the f c our rights and i don't see what's so extraordinary about this case that an injury can't be at least pled or or shown and that seems the preliminary issue is that while you argue three different injuries and you're briefing you have you did milledge any of them in your complaint so  waive those but i don't think soriano i when you look at rule eight rolaids says here's what the pleading requirements are we have to plead subject matter jurisdiction which was done you have to plead that there is a claim which was done  the releases are seeking which was done the spokeo case suggested that perhaps on of him pleading you need to do something more than it you need to provide the basis for standing and i would say to the court if that's in fact what the rule is going to be that we would file an amended pleading and we would do that and we would plead number one that this was a situation where a perspective where lisa claims that congress claims that violation that this is when you've asked somebody to release their substantive rights that that certainly meets that criteria so we would plead what's necessary pleading is in fact require that what injury as  been asked was realized because you're saying there was a procedural violation of sorts because a waiver was included on the on the same page of the document what injury did you suffer as a result of that it's more than that it was simply included on the same page it was infects having somebody in in this case with time warner fifty some thousand people waive their rights prospectively where the u s supreme court has said that cannot be done the u s supreme court has recognized that that's an injury for the last seventy years from the o'neil case which was what injury did he what injury did he realize as a result  guess i would say he had several and his number one is the c r a specifically says that employer you cannot obtain a consumer report on an individual you haven't seen we're giving you that we're giving you that there is a violation or let us assume i'm not saying we're given but let us assume there is a violation the problem is the injury right where the injury is that it an employer is not permitted to obtain that will turn on the light on leases because of not an injury what did you lose right there the injury though that flows from that is a privacy injury right because now the employer unlike that the two cases this court decided the whoville a case and  myers case where the court said no information was ever provided to a third party here the information was provided to a third party unlawfully and so there is an injury of privacy injury and there's an injury from an informational point of view has been recognized by the courts to the waiver confuse him in terms of understanding that he was disclosing his information to the prospective employer i don't let him back to the waiver have i don't know that that's in the record your honor i would tell you that for pleading purposes we would plead what he would say that's factually the case so all ness not in the record i guess it but it is certainly the case the employer may be obtaining the copy of your consumer report in a private information in that report that document is what should tip people off to exercise their rights and get a copy that report here what it is that document says don't waste your time because you have waived those rights prospectively so i know what impacted that i mean he fully intended to allow this disclosure to occur right that it didn't confuse him or impact the ultimate disclosure that occurred what he needed a job right to meet he applied for a job he did need a job or was he just trolling for a lawsuit he needed a job and he accepted a job with time warner and worked a net job for three months so it's not a situation trolling but i would say around or even in the circumstance where there's trolling is think you're using that word  of the u s supreme court said with testers which would be very similar to what we're talking about here that they have standing and the court looked at the in the havens case look specifically at what is that what is the statute same statute said that all persons had a right to not have these misrepresentations as to race me if they were getting housing in this case from a trolling point of view that the supreme court has recognized that those those individuals do have standing draw that line and i would say the ninth circuit drew the line under the very same provision with this very same set of circumstances having a prospective release of claims and drew that line such that they found that there was standing and there's not a reason for this court to do otherwise i would also say that the two things the court has supreme court has already assisted th e courts of appeals is where do you draw that line where there's a prospective waiver of substantive rights we know that in the two employment cases they got to the u s supreme court those are the  case which involved a fairly good standards act in the alexander case which involved title seven in both of those cases the court ruled prospective waivers are not permitted and the reason is because it's easy to see what injury would be the injury would be that people would not exercise their rights in the rodriguez case which we provided to the court in our appendix the judge in that case walk through the various studies that in fact substantiated people not exercising their rights when they felt that they had potentially waived those rights so we believe that the supreme court has helped us draw that line where we have perspective waivers of substantive rights do you suggest that this waiver chilled the any intention that you would have had to challenge the disclosure had their rights in fact chilled nobody could ever printing one of these cases because there never would be standing under that analysis for these kind of violations you know to say some time for rebuttal i do you your honor may i please court joseph ozment representing the time warner cable defendants and with me this morning is kevin st john who represents a great lake higher education i'll be arguing this appeal on behalf of both ellie's and this consolidated appeal the main point that we would have is that if these arguments of the appellant's are suggested it swallows spokeo whole because these are what he's arguing about is conjectural hypothetical injuries injury in fact his pleading is devoid of anything of that nature as to him which is why his his both his briefs and arguments to the court don't discuss his complaint they discuss hypothetical conjectural injuries to suppose a third part you could make arguments like that conjure up manufacture arguments about any statutory violation if you were allowed to make these hypothetical conjectural argument which is exactly what spokeo says you can't do you must have an injury to yourself the point of himself that actually exists and then how do you distinguish that sayed case counsels were lying a lot on that night circuit case yes your honor and so i had recently came out and  issue for whatever reason the ninth circuit did not seek supplemental briefing post both e o and issued a one paragraph six sentence opinion on standing with due respect to the ninth circuit if very cursory and rudimentary analysis and what those six sentences boil down to six senses boiled down to your honor is that congress passed a statute created a right in the statute to  stand alone disclosure and with when that right is violated there is necessarily a concrete injury respectfully that is exactly what spokeo says you cannot do that is the exactly the analysis that spoke sent back to the ninth circuit because it and it is an insufficient analysis those six sentences don't discuss anything about how you get any type of concrete injury and it completely ignores the central teaching of that even in the context of a statutory violation you must show a concrete injury the nine circuit completely blew past that and this court has already in both miers and said warner and great lakes made a facial challenge now in the time warner case that case had proceeded far enough we had taken mr gross extent positions so in our briefing in the district court we also made a factual challenge that was based on and this is in the record in the supplemental appendix before the court the factual challenge and this is important because it goes to what they said that they would plead on re man and i would like if it was remain and i'd like to discuss that for a moment but in his deposition  that before he ever came into contact with either one of these defendants even though he was only deposed in the time of the cable case he admitted that he had educated himself on that c r a writes he met with an attorney to worry about his at c r a rights of he admitted that when he saw the forms in the time warner cable case that he understood the disclosure he understood the time warner cable would be obtaining his consumer report intended for them to do so when he filled out the consent forms those admissions while they occurred in the time warner cable case were broad enough to cover the great lakes case as well because they they speak to this actually are a business he was running in what he knew and what he understood before he ever came into contact with either defendant so while they're talking about what they would plead if you sent this back and require the district court to allow him to have another shot at it they can't plead what has to be pled here and we're talking about the disclosure requirement and i would like to focus the court that that's what this case is about what he pled in the district court is a violation of the standalone disclosure requirements in both cases sure the complaints do mention the waiver but it only mentions it as an example of extraneous information that violates the standalone disclosure me ask you this could a liability release if included in the disclosure confuse a job applicant about his right to refuse access to this consumer report no your honor i don't believe so it and importantly mr gross it does not allege that here and he cannot allege that here given the admissions that he's already given under ruhleben he would not be able to make an allegation like that do you agree that the inclusion of the liability relief in the disclosure is a violation of f c r e is there a i agree that it would past will be six and may stay to claim i won't per se agree because there are some courts out there that have held that that it is not and or that it is least is not a willful violation such that would allow recovery of statutory damages but i would point out that the case was about stand alone disclosure the briefings below were about standalone disclosure and the waiver being a violation of standalone disclosure but not all of these harms that he claims stem from the waiver itself the appeal seems to be about a completely separate argument that was reached in the district and we've raised the waiver issue there which will stand on our pay for but now they're arguing that just the waiver in and of itself is a completely separate car congress hasn't said that there is not a provision in the f c r a that says waivers are bad and a waiver is a per se for life of the x e r a and there is a cause of action for that but that seems to be what the appeal has morphed into is them trying to argue there is a independent cause of action based on the way the congress wants to do that they can but they have the case law that they discuss about waivers and the supreme court and for years holding a waivers illegal all those cases say is of statutory rights are not forcible they don't provide a cause of action for for including them in an s c r if i in an s c r a disclosure form or anywhere else any additional questions and he is in his deposition his testimony was that in february of two thousand and fourteen that's the first time he went to a lawyer learned about rights under the f c r e o he didn't have this knowledge that's be suggested second with time warner you applied in september of two thousand or two and whether you spent twenty hours educating himself congress hasn't said that somebody who looks into that seem correct that some bare procedural violation that doesn't give rise to standing here that's not the case here there is a specific law that congress pas that said this was you have to give this simple disclosure has to consist solely of one sentence the one sentence is that the employer may obtain a consumer report for employment purposes and here that's not what we have here we have not only the unlawful release but we also have in the time were four pages of information as part of that disclosure document that is not in fear of procedural violation asking somebody to release their rights prospectively under a law and in no circumstance can be appear procedural violation