the supreme court says he's never the last have to establish an actual or imminent injury i understand how with this kind of violation there can at least be a risk of injury but it appears to me based on the allegations of the complaint that the plaintiff knows and fact that this is not an enforceable debt against the plaintiff so that there is no risk of  and i would disagree with your honor that that's not in the record once he's obtains lawyers he's able to learn that but there's no evidence in the record that mr show wasn't worried about this wasn't concerned about this we simply nor is there an allegation that he is there is an allegation that he and the class members were put at risk of an injury and i think being put at risk of the injury is enough i think this court in  attorneys judge that's after the fact that's after the violations well here's the problem week when we analyze standing we have to analyze it at the time the complaint is filed and judge i think that that misses the point here because let's say in the case of the text messages in this court certainly been very active as of late standing in issues such as text messages fact the violations that are rec there the fact that the person knew the text message was illegal which is the case when they filed the suit or that the truncated or improperly truncated receipt was illegal at the time to an individual who knows the law perfectly well and never for a moment would think oh my gosh i better make a partial payment or whatever would fat person have standing to bring this claim i believe they would have seen it bring the claim because it's an objective standard it doesn't depend on what the actual recipient was but it is a factor that would make you know how w at risk of injury well because they had the right to be free from illegal debt collection activities and congress that so you get this so it's just the fact of a statutory violation of a substantive right as opposed to just a m a procedural right well what is the value what is the value of the right which we're talking about a mandatory disclosure or the you know the notice can't be misleading what is the fal that right other than to protect against an improvident payment that is the value of the right to protect against ok and that's not implicated that's that's not even a possibility for my hypothetical recipient who knows what the law is and what his or her rights are but it's not a matter of notice of a proper notice it's of deceptive or misleading it it's a matter of whether the statutory violation is concrete or real to you so something of course is just a procedure so for instance there's been a number of cases now that have said  let's say the validation notice that six thousand and ninety two g were collection letters as you have thirty days dispute the debtor things are going to happen there's been a number of cases litigated where people have screwed up the validation notice they've put a writing requirement in where it's not or taken one out where it is and the courts are split seven circuits that's just a bare procedural right you lose six circuit said no that's  important procedural right you when i was a plaintiff's lawyer would never think that i would quote a supreme court justice let alone your former boss but justice thomas says twice now said most recently in frank st as bob was in in that case where they sent it back to the th circuit plan of seeking to vindicate a private right need only allege an invasion of their right to establish standing that's exactly what happened here invasion of a right there is no evidence here that they stop trying to collect this debt fact the only reason this debt was stopped was because the client filed bankruptcy and i think a trial would come out that one of the motivating factors was these people are still coming afterward that i've let me get a number of these cases and i've actually had similar testimony where with the defense lawyer they're carefully working and through the disclaimer see you know no you can't be sued for the debt and to a man or a woman the consumer just said ok i see that now with you here but why do they keep bothering me for this debt why they keep telling me i'm going to lose my rights or lose a benefit i don't respond quickly and in fact that's exactly the position this court was  in favor of the consumer because they found that that would deceive or mislead no one the consumer filed that lawsuit they knew they could be sued on that debt by then it's the same as in this court in the holzman case which was a non disclaimer case but by the time that attorney employ it up so to speak they knew they didn't have to pay that debt or could be forced to pay that but that's where the harm was he had to get a lawyer to d and therefore i hired a lawyer and paid the lawyer one hundred dollars or one thousand dollars or whatever none of which is alleged in this complaint right because it didn't happen here right didn't happen didn't have to pay anybody right usually doesn't write right you get to a lawyer and a lawyer says right they can't come after you leave and come after you and they don't charge him for that right but here's what i can do you know i can bring a lawsuit the problem is i don't know when back in that context how that plaintive can establish a concrete injury well conquered injuries are deprived of a truthful collection notice limitations in alabama it's six years to file suit affectively on the f c area of seven years to credit reports from different states it can vary it still may be a benefit if it's still credit reportable in this clearly that there are some statutory violations that don't count as article three injuries sure so if you think that giving a misleading notice to plaintiffs who wasn't was never misled and would concede to never having been misled if that's good enough to qualify as an injury what's a statutory violation that would be too abstract here's some examples that i was given over the course of being debating with judge posner judge easterbrook in the th circuit hypothetical about the zip codes from right but in this case you know that statute is broad says no false just after misleading statements and then they write you in black ink there's no material you know concrete is there because there is no harm it doesn't do anything bad some asserted recent case so so in your position i'm just trying to figure out what the line is so you're saying if if the violation is of something that just wouldn't separate notice of why they were denied employment and instead of being given the separate notice it was included on another piece of paper when the court said that was too absurd because you actually got but  violation is giving a notice that could could clearly mislead some people i believe that gives everyone standing regardless of whether the individual plaintiffs might or might not have been misled that's your position that is my business credit that's correct and in this case if there had been evidence that mr druce shell was a law professor and ok understood contracts he would lose he would lose not because the standing he be injured by the conduct the plaintiff has to allege an injury or a country risk of injury and in this case there are several days to be not only concrete it has to be particularized particularized means it has to be individual to the blind that is correct your honor and in this case it's not because there's no dispute that under alabama law this debt continues to exist that under the f t c p a middling can e five things there that the thing i really wanted you know talk about at least st that we must talk about because it's just disability issue it's an issue of subject matter jurisdiction it's an issue about whether the court has the power to entertain this case that is correct whether there is an adequate allegation of an entry for purposes of standing that's correct and that's that's where i was we don't analyze the merits for that purpose doing it you deny your honor and for purposes here the next undisputed facts will point out i think is crucial and that is that mr to shell did not don't deny that a risk of injury can establish standing a threatened injury can establish standing but it has to be imminent and under the supreme court's decision in clapper which this court discussed in georgia sufficient here the chain of possibilities that would have to occur to make that risk of waiving his statue imitations defense and being sued is several steps he would have had to make a payment that payment would have had to be in a sufficient form to constitute revival under alabama law i mean you simply cleared it in your view of the world and order for him to have standing he would have had to make a payment pursuant to that letter i believe so yes and i don't think even that alone would be enough because there were so other steps required before he would be subject to losing that defense middle would have to consider it revived middle would have to sue him and arguably although it was mr tompkins now if he if he sa alleged if the plaintiff alleged i was misled by this in violation of the law and because i was misled i made a payment that i would i mean if he paid money that would be coming that's classic and really without any paying money because of the deception that's that that's the allegation that i said and in the hypothetical and i know that's a traceability require me said you payment the injury that i was addressing what i heard or maybe i misunderstood judge martin was the risk of injury by being sued or losing his statue limitations defense in the future i don't think a payment alone would do that but had he alleged that the payment itself was the injury and it was only made because he was deceived then yes your honor i would concede that he has alleged standing in that case but but again that is that is not what he alleged allegation there was that the debt collector had failed to tell the plaintive that she had to request a validation of the dead in writing it left out the words in writing and the th circuit concluded that she likes standing because she didn't allege that she had tried to dispute or verify her dad orally and therefore lost or risk losing that those statutory protections that she had complained only that the notice was missing and she didn't suggest she would ever use that notice and that there was not a risk of losing her rights because there was no prospect that she would have tried to exercise and here i think that's analogous to mr purcell's failure to make payment he never took any steps in response to the letter he claims was missing information and was misleading in order to hit suffer that there was not sufficient standing even for leaving out they require disclosure under the f t c but those are situations where the congress has decided that certain disclosures and certain rights are required to be disclosed and that some plaintiffs may have stand in court some courts have determined the players may have standing if they're deprived of the right to exercise those rights that's not we have what we have here here the sections issue are not sections that require some express the numerator right to be disclosed instead they're more don't do bad things don't be misleading don't be deceptive and don't be unfair and so in that situation plaintiff has to show that that bad thing harmed him otherwise it's just a defendant unlawfully harm a type allegation that walks right into spokeo as being a bare procedural violation that the goes standard or that there's an imminent risk of future harm correct correct and so that's that's our basic point here is that i never by not alleging that there was any right that he was deprived of or steps that he took in reliance on this letter he was not injured and that is all i have said about standing lists the court has any further questions for me on that if you'd like to hear about the merits i'm prepared to argue those but you seem most interested in the standing questions this point provides for standing in fact the th circuit i can see is case disagreed with this court and i think that some of the procedural requirements of the act one could hardly say they're bare naked procedural but the right to be free from false deceptive or misleading collection actions are substantive they're a concrete injury they happened to my client there's no record as to what the effect of that was to him but that's the point that was made in baez which was we'll see what the person testifies to were they dislike misled were they deceived you don't have to damage yourself to have standing in the fair debt act the fair debt act protects people from the attempt to harm people now if the person had paid in response they just provides for actual damages we have a statute that is statutory and actual damages are there actual damages for this letter no we're not alleging that we asked for statutory damages and that's all article three standing requires several tells us to look not just at what congress tries to make your address e injury but to common law analogues sure is there any pedigree in common law for a fraud claim that doesn't require either reliance or damages has there ever been a tort for making a misleading statement on which nobody rely on which the plaintiff does not rely i don't think there is a common law analog to this judge but i think this is one of these statutes that they came about because they were very concerned that people lying and cheating to consumers caused real harm to them the receipt of the letter causes the harm it's not until it's not one that you can go oh that's worth x you've got a letter in your discomforted that you're worried that you're going to have to pay this debt or that you're worried that they keep coming after you this wasn't just a one time letter this isn't the  what the i forget which judge it was well it's a one text and it's like a fly by there in you or something to that effect a paraphrase this is three different letters and the record doesn't reflect how many other letters are and we just know of three letters and this is a defendant that is relentless in his collection efforts remember this is the defendant this this court found to be filing time bar proof the claim being improper the subnets the supreme court reversed that  debt for a few pennies on the dollar and then tries to get people to pay by all means necessary i'm sorry but you know if you know what it is i want to answer it and i mean you're the expert in this area and you said you weren't aware of any common law and i see that but i mean had there always been like a traditional violation where someone makes a false statement or a negligent mis representation or you know  practices act law that would bring teeth to those kinds of violations i see my time is up to well to make sure i understand what your argument has been which i think you were time back to what you said earlier you're saying there was no common law analog in the absence of our lives damage i believe that's correct which is why the statute was passed which is that which is correct judge i don't know that's that's that's your argument that's my argument judge yeah ok i think we understand your case and we'll be in recess until tomorrow morning