good afternoon made it please the court this case is no different than the reverse is southwest airlines which i had the pleasure to argue before the court last year as a lawyer there is standing here for a federal court to the court in miller was focusing of course on whether this was a major a minor dispute in union representation and whether the possibility of some kind of collective bargaining was enough to give the kind of concrete injury that we need an article three but i'm looking at fifteen a and i don't see what there is for anyone either an individual or a union to bargain about i don't see how a union could bargain away the duty of the private entity to develop a written policy in the st sentence and i don't see how a union or an individual could bargain away the private entities duty to comply with its retention schedule now there may be plenty to talk about under b and g because they both refer to the subjects acting either by themselves or through their authorized representatives but i read and fifty eight to impose mandatory duties on the possessor of the information if i may know where miller did address this issue i don't i'm going to use miller i mean could could you just answer my question do you think that a union could bargain in a collective bargaining agreement to tell a private entity that it's ok with us if you don't develop a written policy i think the issue is yes we're not yes or no could could they bargain over either of the things in fifteen a yes what would that look like you don't have to develop a written policy you don't need to comply with retention guidelines it's that you can't implement any you know his work environment that policy failed to publish the protocols so what i'm saying is that may or may not be true but that looks like b to me that doesn't look like a a use addressed exclusively to the private entity when you look at miller and page ninety three and have no problem with the fact that miller holds that the union is a legally authorized representative that miller holds that there can be bargaining whether it's a management rights clause or something else over the way in which  workplace is not use biometric data that there are non disclosure requirements which is what de covers and of course this case isn't about b indeed because the district court found that they were preempted by the l n r a fine no no issue there but what i just don't see is where bargain can happen with a mandatory duty on only the private entity with the individual not even singled out as somebody with any rights under a i i have no quarrel with with that statement and in miller but notice that b talks about no private entity may collect capture purchase whatever whatever the biometric data  certain things happen and then d is talking about disclosing regis closing all the rest of that that's what you bargain about i don't see how you can bargain away as a as an individual worker good duty of the private entity to comply with its established retention schedule i think you're a rd party best and i just don't see where the private right of action has an comply with retention schedules how can you do them now but i do not think that dakota could implement a policy that and indicated or impacted certainly you're on earth to further answer i'm just making sure they answered all of your questions section b and section of that do not address retention and destruction schedules from those in possession data and what miller said and what brian confirmed was that there was standing to hear the section fifty eight filing in federal court because in this particular in way there's i have a completely independent problem with what we're going to call the nd sentence because of course bryant drew a distinction and said we're not saying anything about the nd part because it's not here yet the theory seems to be i'm afraid that if you don't comply with your retention schedule and destruction guidelines there might come some time in the future when something bad might happen to y and what that reminds me of is the supreme court's decision and clapper against amnesty international which was i mean not b p but it was about a policy of monitoring telephone calls actually rose out of national security interests but the important thing that the supreme court says in clapper is that the the fear is just too remote to support article three standing it's not concrete enough it may be individualized these people are saying i think it's my calls that are going to be monitored but we know from spokeo that it's got to be both individual and concrete you can't dispense with either branch of those and i look at that last sentence and boy i have trouble thinking of anything that's other than white speculative and so the grounds for standing under section  while the plaintiff alleged that there was a risk that there doubt in my the this and did he fail to allege that the data was actually being disclosed it's also consistent with what this court said in both bryant and miller which and originally district court judge asked and that was standing on the basis of retaining the data indefinitely miss  commented on that risk of dissemination there's a sedition in that she is a risk of breach due to the time of indefinite retaining a debt she's not arthur and actually alleged that dakota disclose pretensions and an allegation of a wrongful disclosure in addition to rockall detention or retention of her data that it now that an injury separate and apart from the risk of rockall disclosure her property in remarkably maintaining and retaining without her permission as an element again that was missing in dakota and gives her standing under fifteen a separate and apart from the federal labor law issues that we identify in our group also in paragraphs and paragraphs fifty miss fox obliges that she was not sufficiently compensated by dakota for retaining his her dad and the dad of all the other similarly situated plaintiffs again here she's alleging monetary injury and when you talk about particular to her she says she would not have agreed to work part of code that for the money that  she knew that they would retain her definitely definitely just again alleging an actual injury particular to her now looking at in the labor market text this is a quintessential mandatory piece that is her standing under section fifty ed and if as we argue the actual implementation of the retention and destruction schedule is a mandatory topic of bargaining so too is allegations are allegations such as these that dakota has breached is retention and destruction obligations and those those to to develop or not the will of the retention and destruction policy that it did with respect to these employees and whether in fact violated or exceeded those national rights and implying or not a such that scheduled to these employees here and if an arbitrary are found that dakota did not have the ability to implement a schedule or to retain the data in violation of the requirements of section fifteen then it could order a change of conditions or that the practice be start and it could result in the union demanding wage concessions in order to allow those were never in a union and we wouldn't be here now that's because under this court's holding in the bryant vs compass group case a plaintiff bringing in a section fifteen that a claim under the illinois has to comply with that policy with respect to the st component the court in bryant's didn't state that there is no standing because that is a duty that the collector would go to the public at and the vending machine owner oh those duties to the public at large anybody anything sheehan's this is we're in the employer employee context and setting aside the union one union point and i don't understand the argument that the plaintiff has no standing to bring in fifteen any claim because she has not suffered an injury she's clearly suffered  she's alleging at least a privacy injury and both subsections of the statute protect privacy interests that's the whole point of a minute meeting retention protocols destruction protocols and then requiring compliance with retention protocols and destruction protocols it's to protect the privacy interest in the biometric manner and actually and that's the kind of injury that you've after owning this scene and it may be the case that that occurs in a controlled environment like a workplace that wasn't the op facts that was decisive in bran s in that section of the opinion here we've got a employer defendants and the employer owes duties to the work force under this statute not to the general public at large because it only collects its employees biometrics and so we have to understand the alleged injury in that context and that context you're saying my client didn't get her biometrics destroyed when she left the company and so that's a and as we tried to lay out in our paper as if this were just under the destruction component of the a i think it's probably likely the case that they're standing by but there's also the other components and brian went to pains to point out that there are two aspects of that and under that aspect we have a duty that's been s just to employees because of course you know the ball is not just a workplace statute it's not just a deployment statue it's a statute of general and i do think even in the bryant case it derives in an employment setting i recognize it's different from this case on the facts but we still had an employee in that case and you know  rejection and so they were together you don't you can't separate them as you're arguing you're arguing that there's two species of claims and one can state you know they're standing under one in federal court or at least potentially standing under one in federal court but not the other they can't be they can't be just connected that way they must work together all of the i will express some sympathy for you because when the amendment to bryant came out  it went out of its way to say even though we found no standing on the st part of a we're not saying anything about the nd part of it so that's certainly not holding but i wonder if you look at this from a different point of view do you think there is a private right of action for the individual whose data is being collected to suit to enforce some or all of part believe so i believe so i think that's under the explicit language of the book that it does provide for a private right of action it doesn't distinguish between the various components you know we we have always looked at that statute in a certain way that there's you know generally not always but generally in a fifteen components there is then the fifteen b components and a fifteen d so b indeed sort of are related to each other we always thought because they talk about this informed consent regina and it also talks about how an authorized representative this is explicitly in the statute like a union could consensus on behalf of an employee and that's where miller comes in so we understand that fifteen a on the other hand it doesn't talk about how the the subject of the collection in this case employees have to do anything they are not really providing shorts on her one hundred and fifty eight they don't really need to do anything it is the collector that simply has to act or not they have to x number one component of it and this is where bryant comes in is that they have to comply with it in terms of its return should a disruption schedule because it sets forth specifics on timeframes of says you have to destroy debt or what it's no satisfy the burden of showing injury from an alleged failure to comply with that schedule is it the failure to comply with the schedule in the guidelines that causes injury early is it just the even even an authorized disclosure might violate privacy interests well if you know something done in compliance with the statute i'm just trying to figure out where what does that what does the private action look six points out you know there were certain facts and bryant there were certain facts and miller you know we can always look at the facts but we also need to work with the language of the statute so i think that i think we could have a situation where there is a duty to have a public schedule and that is for everybody and that is universal you've got to post this thing and it's got to be compliant with the statute in terms of how you retain it and how you destroy it if you're a private entity that collects problem isn't even whatever the schedule may be the schedule has limits substantive limits and aides got to there's a three year period of time that can last after the person's last interaction with the private entity and so on but then there's a this statement unless there's a warrant or court order for example the private entity has to comply with its retention schedule and guidelines and  if what if they didn't but they did something equivalent or they did something better does the person have a right of action to complain about that violation i in the situation you describe probably not  i don't think so but i can easily yeah i can easily vision a situation and i think this does happen where an employer does have a great policy and is never implemented in practice i think that happens or there is no policy and then the practice is sort of either haphazard it is not in compliance with what the statute mandates in terms of the three years or when the debt is no longer present i think what the statute tries to do is to provide some certainty to provide saw you know some some regulation here and some information of course to the subjects of any collection mr going to this intersection between the components of fifteen a in your complaint in the st cause of action you've effectively included both components correct yes there are failure to institute maintain an edge here to publicly available retention schedule the adherence language which you reference in the title of a cause of action as well as looks like paragraph seventy five that goes to the compliance with the schedule is that correct  dollars and the same is true with regards to the nd which is why we do think you can split them up i don't know that it's fair to say that for example the entity fully complied with the st car but not the  nd and therefore there is not no liability or vice versa so i think you know there's multiple requirements here under fifteen a and the certainly we're where we read brian several times and there is language in there on how you know that is a duty to the public and i think what we discussed earlier you know this idea that th you know unlike the net that involves consent which is something specifically provided by underbid where the union is explicitly set a great authorized representative you can act on behalf of these folks no such language is under sept section fifteen a i do think that is a important difference and of course it has nothing to do with what timekeeping device they did use or how the employer records employees data which is the key difference here there's a duty to negotiate those schedules retention and destruction schedules with the union that is in addition to having a duty to publicly post the policy it is not free to implement a policy crisper that union bargained workforce with respect to time keeping practices including retention and destruction schedules without going through the  separately exactly what this fox as attorney said is true here she is alleging failure injury due to roe tension and failure to destroy that is section fifty eight her allegations are sufficient  contemplated in and for those reasons we respectfully request that the district court's opinion be reversed and that the case be directed to be remanded consistent with thank you very much and i thinks to both