convinced a different panel of this court that identifying the wrong original creditor and a collection letter created a material risk of harm to a debtor even if your client never got the letter that specifically that's what the court in two ways and the first is that one the information as congress already found was immaterial having a credit card receipt that just had that just been different it's either a violation or it is not but congress had agree it's a violation i agree in congress issued a clarifying act so your argument i mean we found there there was no harm from that violation and the question here is how was he harmed when the letter was never seen by klein because it's a different sort of circus and in that case the point of that law was to keep information away from identit people can misuse it and so there was never a chance because he actually got it had it would have a different that's a factual issue as to how damage the nexus between the violation in an actual injury and i'm still having a hard time distinguishing our prior precedent that requires that nexus what the difference it here is is it wasn't just that they sent it out in the ether sphere they targeted him as that we found the court found last time they they put the letter novel up they put the proper postage on it they sent it to his parents last known address for his to his last an address which prints the left and in fact nothing card throughout this entire case has argued he must have received it because they took the step but your client says he never saw it and the parents say we never received it so there's there's no evidence of the record that anybody ever looked at this letter correct and we don't dispute that but we're saying that spokeo doesn't require that he actually sees and in fact if you supreme court said it has to be both concrete the injury in fact must be both concrete and particularized a concrete injury must be to facto that is it must actually exist when we used the adjective concrete we have meant to convey the usual meaning of the term that means essentially the injury has to be real and not abstract so what i see here is a potential procedural violation but what i'm missing is whether it meets the definition as the supreme court has indicated of a concrete injury meaning a real injury and i don't know how you can have a real concrete injury if you if you don't see the letters well about two sentences lay out the end either right where but about two sentences later just we don't make clear that the risk of a real harm could create was an actual injury the risk and i think that's the key word there rejected that argument in the a b m parking case that there was to basically holdings there the central holding in my opinion is the reason why there was no risk is because it didn't have the sensitive information it had information that congress had already said and clearing i fact w immaterial that's different from this case where this court has already said the information was material and it was only by happenstance that he didn't get it and essentially what this court did before is that judge risks sort of lucky that he didn't receive that letter and had he received that letter you knew you were running across the freeway i'm sorry you knew you were running across the freeway here you didn't even know we received the letter i think it's a silly argument but let's move on to another question that i him if we reject your argument and shift in the burden of net worth of the defendants isn't the case finally over yes ok if you and if you reject well not if you accept the argument on the article three standing right so i trust that argument who has the burden of proof it's hard to get that for sure there are i think the district court and placing the burden on tertium and ignore three basic rules of  and the first one being that whoever and when an issue and yours to the benefit of one party the burden is properly placed on that party this damages cap is put there purely for the defendant's benefit so that's the first person part the second i think maybe the more important provision is when the one party has a peer access to information that burden that porsche rightly have the bird but you have plenty of opportunity to discover that information that you  know you could have propounded in iraq or tories taken that position and we did your honor and up to a point but again i think you can say that in every case you would always have an opportunity to provide discovery to get someone's medical information you always have opportunity pound discovery to see if a pattern violation it was willful the point being and this is a widely recognized rule that when one party has a peer access it should be that party and again if it's an element of the handwriting or the element of that something that submitted to the jury yes so that's something that you were affirmatively presenting in asking the find are fact to the term and just be clear we're not saying we don't have to prove our entitlement to statutory damages we had every intention of going i'm trying to figure out how the case will be tried because that in part might provide the answers who has the ultimate shirton of proof because if you were to proceed to trial on a case like this and you would have to basically present the title and the statutory damages to a jury and ask a finder of fact to say i'm entitled to half a million dollars because their net worth is greater than that or i'm entitled to one percent of their net worth because you know that's that's but i don't think we're going to ask if that's the case the defense intitled to basically just sit back and say why don't you prove your case i don't have to put on any sort of a case but that may provide the answer as to who's got the burden of proof that's what that's where i'm going with the trial question and i don't think we would have to prove which damages cap we would have to prove and we go through six hundred ninety two k two b which are the factors and we would say you know the resources of the of the debt collector the persistence the frequency and the jury would come up with a number so how is what evidence are you going to give to the jury so that they can formulate the number again we'll go through all talk about that the nature of the not compliance we'll talk to try to prove that this was a serious violation we're talking money what evidence does the jury hear in order to determine whether or not the amount of damages exceeds the lesser of five hundred thousand dollars or one percent come of the net worth of the debt and that's what i'm saying the defendant would have to give up after the jury has issued an award or is has come up with what can we protect are you saying is that we're going to apply the black box theory that i'm going to show that there was a technical violation of the statute and then i'm going to ask the jury to pick a number between one and five hundred thousand dollars and whatever number the black box kicks out is going to be the damages award but what evidence does the jury get from you in order to help it determine what the appropriate measure of damages it is again in any case where you're seeking only the additional damages under the statute there's no number you can point to there's no medical expenses that are as you can hire a forensic accountant you can conduct appropriate discovery certified accountant gives you his opinion as to the net worth of the business and you submit that evidence to the jury and if the jury agrees with that evidence and your expert you get the maximum amount under the statute isn't that your burden on damage s i think again that's putting the cart before the horse because before the evidence before the jury before we even present what we're saying is before we even decide whether that we're entitled damages we have to decide what the maximum damages are  ll in a personal injury case you can't just come in and say my client was run over by the defendant and therefore i want a million dollars you got to give the jury some evidence in order to pick the right number here you're not given the jury anything other than an argument that the defendant violated the statute but this isn't a person because there's a statute that says we're entitled the damage i think i understand your argument what you're saying is that if you have to try a case like this you would basically be asking the jury to damages based on the factors are laid out among which include essentially the creature says that the violations you're sensually arguing that the jury looked at the frequency and persistence of noncompliance look at the extent to which the noncompliance with intentional look at the nature of the noncompliance things of that sort right and right a jury would come up with a number and then perhaps have the court cap it or something like that so as i understand your argument you don't have to basically prove up the net worth because there are these factors that you can throw out for the jury to consider in determining how much that story of a war to be damages the only problem i have you i understand the argument correctly forever and the only problem i have with that argument is that among the statutory factors that you need to throw out for the jury to consider is the resources of the that collector and so without understanding what some discovery on what the defendant company is worth it's hard to give the jury  damages cap which is damages caps are traditionally because they're for the benefit of the defendant it's the defendant's burden to prove not an affirmative defense what as judge and when pointed out what i asked the jury to come up with a number and say they come up with a dummer of five hundred one thousand dollars it's then up to the defendant to say well no no it shouldn't be but you can't just look one of the considerations from the statute and the but they're going to resource this first of all that's different from resources a different from networking you know it doesn't say financial resources it just has resources which can mean a lot of things that could be the number of employees they have it could be the number of computers and telephones that they have to leave or you have zero evidence that there's a positive net worth in all the discover you do know that i disagree are we do you have evidence that there is a a a positive network within the debate came down to whether you value the distributions the seven million dollars of distributions to the partner as a liability so you could have a net negative net worth and i was positioned you shouldn't since we were last year and a lot of happened and one of the most significant thing that we think is happened is that the case ended and we think that happened on july fifteenth two thousand and sixteen on that day we were and the net worth issue that we were just discussing and since he didn't have evidence sufficient to show the network the defendant the court dismissed the class claims now he had two options to appeal that ruling at that point if you wanted to everyone you could go to trial it was set for monday and it was only supposed to last a couple days and then after the trial was over he could have appealed from the final order and he would have been  challenge to the judge's ruling number two he could have asked the court to certify the issue under two and then he to be and say hey this is a unique issue please give me discretion to appeal and then he could have this court if they  greet either one of those things would've been fine but he didn't either instead he turned around and said i'm dismissing my entire case right now with prejudice and then i'll see what the circuit says about all this and one and found that it wasn't a final appeal order or if you use the analysis that judge thomas did in his concurring opinion under article three under either under either analysis microsoft really evidence of any positive network well you're up to your last question no we there was no evidence of a positive net worth after this court reversed in two thousand and twelve we went back down to the district deposed tax returns were turned over checking accounts check financial information and after all that extensive discovery we got our way to trial and and the day before trial announces it's it's their burden to show net worth and so i don't i don't i can't prove it but it's their burden and so put it on them in the court disagreed but there was plenty of evidence regarding that worth the problem for mr georg was they all point to the fact that it was substantially negative and that's why he didn't want it to be his burden but let me ask you about the district court's opinion which i generally think got it right except it kind of implies that you need  example but it didn't appear to be just an example of appeared to be kind of a requirement to prove that worth it and i didn't think that was right well i believe what the district court was referring to is the only appellate decision i'm aware of that's chimed in on this is the saunders case of the seventh circuit and in that case the the the the seventh circuit said look if you want to determine net worth what you do is you you look at the the book value of the defendant and that you because your honor thank you for asking this statutory scheme under title seven in the grand hernandez case is quite different than here under the f t c p a and there you have the caps that are sort of lurking out there but there's a sort of a phase one a trial where you go forward and the defense team is the plaintiff bears the burden of proof to demonstrate that there is damage of some amount and if and only if the plaintiff is able to do that the jury's excused then there's the second proceeding where the judge hears evidence on whether the caps apply and where we have the caps fall during that second proceeding the defendant bears the burden of that's what we think of the case the case with a vacation would be over we think the case we don't think it's a it can be appealed but to the extent it can be appealed the net worth issue the district court got correct on the on the when so you know that was not the option and going to trial on just an individual claim runs counter to what the law the court said to microsoft because then you're guaranteeing piecemeal meal appeals because even if we won we'd have to come back down to are  article three issue even though it doesn't look like there's much chance of success on that in terms of the financial information and mr tell me what is correct that after we got back we fought for that and we did have to fight was one of the reasons why the burden should be put on them again because you're insuring unnecessary the discovery battles if you put it on us but we got information and we believe we did prove a positive no more than they had made it a positive net worth because what it was did i misunderstand that well if you don't think that was a concession that there would be insufficient evidence of worth to go for but maybe i i misconstrued your answer in his question maybe i misconstrued the question and that is to say if the burden of proof is on us and we're not was the burden on the defendants not the point well it was an art it was our considered that they had to go first and they had to produce that evidence and had they produced evidence we would certainly have the burden to combat that evidence which but they didn't have it over this record that you were prepared to go established of proving that these distributions should be considered or not considered she felt that that required expert testimony and we didn't have an expert on that subject well that is a pretty technical i guess of taxation issue more than anything else and again that's why it came down to whose burnette was it was our position that they had where they were going to fail their burden of proving that negative net worth because they didn't designate an expert let me ask you about your discovery issue even if the burden was on the defendant did so have to discover what their position was with regard to that w and say here's the information and if it's credible the know what tourney's going to proceed with the case is a class action so that's why i think it's in the benefit it benefits the policy all the policies involved the putting the burden on them on the title seven know but i would say is when we talk about the elements of the court the case is time and time again when they describe the elements of the f t c pay claims it's was it a debt collector was a consumer that did it violate the statute there