well here the next case schwartz versus h s b c our honour's the violation alleged in this case pertains to h s b c s fell year to place on the fronts of mr schwartz's periodic credit card statements in close proximity to the due date that your client actually standing there has to be an injury in fact a causal connection between that injury and the complaint of conduct and a likelihood that the injury will be redressed by favorable decision now this court in the struble case which was  opinion held where congress confers a procedural right in order to protect a concrete interest a violation of the procedure may demonstrate a sufficient risk of real harm to the underlying interest to establish concrete injury without the need to allege any additional and additional zona tallackson the original and in the struble opinion any additional harm beyond the one congress has identified a me ask you about the risk of injury though here as compared to as i understand it there is no question that your client got the original notice right the original notice in when he first signed up for the credit card oh yes the accounts  requirement that each state has to have the same notice provided it right in a conspicuous place next to the due date on the film last the point is that it is said each each notice has to happen but when you've been given the notice the risk of didn't jury is impressed isn't obvious here isn't struble unless you telling me that you know about day fifteen or day twenty your client forgets what he's already been told so i'm not sure that a requirement that a notice be repeated without a further allegation presents us with the same apparent risk the initial account zero to opening disclosures can come years before i'm not disputing this but it suggests to me that your client having been given a notice that he might have to plead something more to establish particularized injury than someone who's claiming that while there was a notice requirement and i didn't get it at all that presents a risk that he or she won't do whatever the notice tells him has to be done but where you've gotten the notice that's not is apparent to me your honor people don't necessarily know that there's going to be a penalty imposed on a penalty a p r and what the penalty a p r is for that particular month for all the mr schwartz might have known the penalty a p r was not being imposed that month and he could miss that payment without a penalty a p r being imposed problem is that the district court dismissed this for failure to plead injury and i've looked at paragraphs twenty four forty three and forty six of the complaint which appeared to be the injury pleadings the first two are conclusory and they're based on the class the third which is particularly klein is even more conclusory so i'm i'm trying to figure information so we've alleged this core requirement of giving notice and we've alleged the absence of this core requirement to give notice but in a circumstance where you acknowledge that you got it initially yes but your honor the initial notice pleading that your client no longer remembered or something to suggest that he's injured but your honor congress held congress added this requirement in the card act which was passed about ten years ago congress knew that these knew that these penalty a p r s were being imposed without any additional notice so congress added this requirement to disputing it they resist the requirement i'm only disputing asking you how we can tell that your client suffered  well the injury in fact is the risk that he's going to be have this have this imposed there's no way for him to know that there's even a penalty a p r is there is there a risk of real harm from this procedural violation when a year earlier he had been given the warning but at least a year earlier yes there is your honor first of all people don't necessarily know that there's even a put a penalty a p r for that particular month it doesn't make sense that it would vary from month to month oh absolutely there are amendments constantly m credit card agreements over the course of time i had a case here it was about fifteen years ago miller versus wolpoff judge sot among you were noted that the initial account opening terms and conditions frequently go into the circular final those were exact words people don't necessarily keep those initial notices and don't and need to be reminded and that's the harm the congress specifically had in mind by requiring that that be put in in the fact that they amended ten years ago to add that to the card act to specifically telling the fact it had to be right next to the due date and that the amount of the penalty a p r had to be right next to the due date and then the requirements within the regs e implementing regulations on this so it has to be on the front page conspicuous location conspicuous place conspicuous notice people have to be given that warning argument b if he had received a year's full of monthly statements correctly satisfying the the requirement and then the thirteen notice of the thirteenth statement didn't provide the notice you have w credit card companies they don't necessarily impose them anymore he could for we'll go you know what there's no penalty a p r this month i can skip a payment this month or not suffer adverse consequences maybe i'll borrow more from this credit card  he misses that due date though the effect here is radical and to for sure he would then have injury in fact if he did that my question to you is what is the what is the basis for finding a risk of injury here the fact that it's not on there the fact that when it comes to sitting there with a pile of periodic statements from different credit cards you don't know which credit card you're going to go with and furthermore if he misses that due date and has to be right next to the due date conspicuous location and on the front page if he misses that due date the the twenty four poor excuse me the twenty seven point two four percent interest kicks in rather than the twelve month and twelve point ninety nine percent interest that he's got so he's actually being misled into believing that he can miss that particular periodic payments without any adverse consequences with respect to the penalty a p r in fact there's not even a notation on the front page that there's going to be a penalty a actual damages and there are no actual damages that have been alleged in this case and in fact there's been a series of medical complaints that have been filed in this action and in the operative one the second amended complaint the plaintiff attached  declaration that h s b c had filed in connection with an earlier motion to dismiss and that included the applicable card member agreement and it also included information regarding the plaintiff account in in certain circumstances even without actual damages being a procedural violation may be enough right in certain circumstances they're still there still there are instances but there still need to be facts alleged that demonstrate a concrete and particular injury and x can be that this is the notice you're supposed to get the notice would would be pertin to understanding your own obligations such that if you don't understand the risk that you could be in violation or in somehow in a worse situation that's what struble basically said was enough so in this instance as your honor indicated in your questions to plaintiff's counsel there was an initial disclosure which provided the information regarding the penalty a p r but each statement that's in the record here there is information addressing the penalty a p r the claim in this case is that your monthly statement conforms to the law we our position is that yes in our cross appeal we're challenging the district court's ruling that a claim was stated in connection with a violation of teal and on the front right by the by the amount due how can you claim that th satisfies that because that statutory provision must be read in the context of the agreement which requires providing a notice before implementing the penalty a p r and in this case we know from the information that's even attached to the complaint there was no penalty a p r that ever was implemented we don't know that at this point are you representing to us that if if this case were to go in discovery that your client never seeks to collect on a debt before product providing them with notice and an opportunity to pass a within the context of this claim and this plaintiff which we think this guy this plaintiff has to be able to state a claim just as with standing and case in contrast at class claim but he still needs to establish that he has a claim he still needs to establish that he has satisfied a concrete in particular into the injury that allows him to move forward it's not  jurious because you don't impose this a p r until until you provide notice and presumably an opportunity to pay the debt is that what you're representing to us that that's how it works our argument is is focused on this particular plaintiffs and my question are you representing to us that your client does not impose the penalty until it gives the consumer an opportunity to tell gives the consumer notice and an opportunity to pay the indebtedness you are i'm not in the position to address and because you're not in a position i don't think you can a bear procedural violation of this provision was sufficient the district court determined that she did not need to reach the question of whether this presented a concrete and injury because there was absolutely no fashion doesn't that really miss the question isn't the question whether a bare procedural violation without more is enough to confer standing under spokeo in the subsequent case law from this court there still needs to be well play allegations an injury there's there's the question of a violation but you then have to allege situation when there's a when a big bear and there are situations when a bear procedural violation is did the district court analyze whether the bare procedural violation of this section was enough without any additional allegations of injury i think the district court correctly viewed that when you have a bare procedural violation you are still required to allege facts showing that there was a concrete in particular arising actors okee oh i thought in spokeo the court basically said that it depended on what this was not given that some notices have an implicit risk others were found not to in the court indicated in spokeo that the plaintiff must clearly allege facts demonstrating each element of standing right to pull dealt with any number of notice failures and explained why some implied a risk of injury and others did not but the problem that the district court found correctly we view is that there was no linking of any congressional purpose any reason behind the statute to this particular plaintiff as your honor indicated in questioning plaintiff's counsel they had an opportunity to amend they did three cursory allegations two of which related to the class and the district court correctly in our view and certainly not an abuse of discretion viewed that as failing to carry the burden to alleged facts that demonstrate that this particular plaintiff suffered a concrete in particular as an industry that injury there's no allegation that this plaintiff reviewed the statements that this plaintiff made any adjustment of this plaintiff's position regarding credit there's simply no allegations at all dealing with any impact any affect any consequence at all as to this plaintiff and we believe that under spoke and under all the case law from this court that's followed that that is an obligation they had to plead that's what the district court found and that's why this record didn't need to reach that next level on your cross appeal can we reach it  before we resolve the standing issue i don't believe so your honor i think if you decide that the district court if you from the district court's decision on standing then that is the cross appeal if you reverse on standing then i believe you can much litigation in all these cases if the creditor just followed the the language yet your honor again we believe that the information was repeatedly disclosed in a number of locations and that there was specific obligation made sixteen thirty seven b twelve b says that it has to be conspicuous notice together with the applicable penalty annual percentage rate which is not included at all in your in your notice in close proximity to the disclosure required under subparagraph a that's the disclosure of the amount that is due and owing and you're also say that you know this we're reviewing this on a motion to dismiss there was very limited there was taking the piss when you why you don't comply with that rather than getting us into these discussions about whether on the back without the annual percentage satisfies the requirement that you're out of the the allegations of your honors there was more in the complaint of the three paragraphs they referred to by the court the second amended complaint paragraph twenty four forty three and forty six refer to let's see twenty four was upon information a belief the consumers of the class suffered a concrete harm in the material risk of concrete harm because the bank's omissions or misstatements impinge on their awareness of the cost of credit and then there's forty three which also refers to impinging on consumers awareness of the cost of credit in the class allegations paragraph twenty three we defined mr schwartz as being within the class we have the leap him in warning class the class consists of all persons who since one year before the filing of the first amend the complaint were furnished to billing statement by the bank that phil to disclose that a late payment would subject balances on their accounting look like he's a class member of the ways you could try to pursue a class action but your allegations in paragraphs twenty four and forty three are on information and belief which does not pertain to here i mean you're not in it you're not you don't  that's required is an allegation that there was a requirement to give the notice and an allegation that there was a failure to give the notice and if that goes to a core provision of the truth in lending act then you've stated standing then you've made out a sufficient allegation of standing you've actually survived this or standing problem that's my reading of struble i may be wrong on that but that's how i understand spokeo we don't reach a more or issue under the truth in lending act then what am i going to be paying what is the cost of credit what is going to happen to me if my finances go sideways and i can't make that month's payments and i'm having problems and i've got to decide which of the various bills to pay if i don't make this payment going forward i'm going to be hit with twice the pen and twice the a p r i'm suddenly going to go from twelve point nine nine percent to twenty seven point two four percent from a market rate a p r to something that's completely unbearable and this is this is precisely what the truth in lending act was now we've alleged that he did that there was an obligation to give this notice and we've alleged that there was a failure to give this notice and we even attached a copy of the inadequate notice which by the way the defendants eventually did correct but at the allege that they're pointing to occurred more than a year before the filing of the original complaint more than a year but filing of the amended complaint the district court relied on one decision from it from another district court that is against the clear weight of authority on the question the district court recognized that its rationale was inconsistent with a case called for when versus world financial network which relied on the seventh circuit opinion called goldman versus  national bank and both of those cases treated an omission which is what is being alleged here as triggering the statute of limitations as opposed to a situation where there's a false or misleading or inaccurate disclosure which is not being a here so consistent with the it's in our brief that the the weight of the authority the the claim is time board and indeed this is a key this is a claim that when they the complaint was first filed wasn't even included it was only in an amended complaint that it surfaced for the first time really following you i understood because i like to say that it was timely for non disclosure is within the twelve month period and so i understood that each statement involves a separate file ation and that at least to the extent there's a statement without the notice within twelve months that they could sue why i think that's true that's not a continuing violation that's a separate violation the way the plaintiff has alleged while the way it's viewed out in the in the case law and that there's a lot of case law dealing with finance charges so they are viewed as you look at the time of the first violation when it's a statement within twelve months they got a timely playing consistent with the rationale that on the weight of the case law you're not you wouldn't treat a notice violation differently than you would a finance charge you look at the time when it first occurred if the same thing happening over and over again that that is not extending out the statute of limitations you have to be prompt with tiel claims it's a one year statute and it accrues the first time it's suable that's the seven circuits words when it first becomes suable and the fact that there may be subsequent events that happen later does not create a separate event that provides a basis to file lawsuit thank you thank you very much serve decision