fees this case is a case brought under the fair credit reporting act quicken tragedy is a consumer under that act he is a person whose consumer report was obtained by lenders obtain consumer reports in the way of a list based on criteria that are specified to the lenders in order to obtain those lists in order for a prescreening list to be provided to a lender that lender must have must be ready so humiliating about this one well it doesn't have to be humiliating to create a right of action and opting out is not a prerequisite to having for the protections of the fair credit reporting act the go all the act one of the primary goals is personal privacy privacy of information and whether or not a person ops out of prescreening they're entitled to not have their consumer information accessed based on an a or impermissible purpose but what's your entry here mr mesereau your you're right there a title not to have at their information accessed under the prescreening unless they opt out that specifically provided for under the fair credit reporting their work was just through for me please i hear you're saying right of privacy what what's the injury based on the right of privacy standing does not require the same type in this is that the problem for standing is not harm for purposes of damages i understand that for purposes of standing it you can't just say right to privacy you've got to felt more plausible allegations as to what is that right to privacy i'm having a hard time understanding what your client's injury is based on privacy as a result of the fair curve pointing out people are entitled to not have their information about their credit scores their their you know whether they file for bankruptcy whether they owe money or don't owe money all this kind of in from all that type of information is maintained by the credit reporting agency sierra's and consumers are entitled to have that information withheld from anybody unless they have a permissible purpose and when a person that doesn't have a permissible purpose obtains that information which is the case here that person's information is given to that it's taken all in variations are that did a firm offer was extended right i mean your client said i think in his deposition testimony that company that purportedly or the company that obtained the list data by innovative solutions d b i right didn't know they couldn't say one way or the other whether it was sent and importantly and i don't think your your colleagues on the other side of this are going to argue that is as a factual matter it's it's as clear as day that no from offer was ever sent out well here is what they were taking in their might in may when may well have been won on the mistaken view it came from trans union or whatever the trans union was in bankruptcy owed equifax the defendant over a one million dollars equifax is fully aware of the fact that they were in bankruptcy they were participating in the bankruptcy they had terminated their right to obtain consumer claimed injury that western sahara received credit information about your client is that what you're claiming the right to privacy violation was are you claiming it's the failure to receive a firm offer of credit after getting that it has nothing to do with the failure to get the the offer of credit or not or for not exercising the offer of credit is the private the right to have your information kept from other companies and so it's the fact that his some i don't western sierra wouldn't not have or some have real time information that they would not get that information real time because the system is set up in such a way that all that some of the t v i has to do is sign onto it into a computer and they can order these lists without western even knowing at the time so your privacy violation is based on the fact that d b i get credit information about your client correct through this prescreen process correct that's the thrust of and it was going to somebody that did not have a permissible purpose and d that i didn't have a permissible practice that they couldn't have because western syria they were supposedly working off the back of western sierra was supposedly the lender that was supposed to honor these pre  st place we have a right as consumers to avoid or not have a situation where our information is available made available to people who don't have the authority to have it that's one side or miscible purpose under the statute is sharing that leads to the extension of a firm offer correct if it's a legitimate firm offer it could not have been a legitimate firm offer under these circumstances when wester sierra had been terminated from its right to obtain present one was this is where it seems to get speculative in my mind because suppose for example i know counterfactual but suppose for example that mr crabtree took him up on it got it looked at it said yeah i'll take him up on the offer of credit ok at that point in time when everybody checked it all out they probably would have realized that that contracted been terminated but would that have prevented western sahara for that matter st ohio from st look we got to stand behind the offer credit don't stand behind the offer of credit and violate the f c c are that what you're doing when you go down that respectively respectfully when you're when you go down that road what you're doing is you're adopting this concept that the defendant has raised which is that no harm no foul because it's it's not a for not there's no injury in tell you try to take the person up on the offer what we're saying is you have the right to have your information protected from disclosure in the st place when the we were sippy end of the information does not have the principal it seems odd to me about it that w of ok in the st sentence at the top of page eighteen i've experienced his opening brief the circumstances of disclosure here is that an accurate depiction of the circumstances and if it isn't what is inaccurate and i am limiting my question to the st sentence of that page only describing there are the circumstances of disclosure here and i'm asking if you agree that that's an accurate depiction notably the circumstances of the just closure here is that we're authorized to receive the information from experian just two weeks prior and who remained at the time authorised to receive the same information from other credit reporting agencies navigate plaintiff's claim that he suffered any concrete injury as a result fit st of all i don't know if they were authorized by other credit reporting agencies so i can't respond to that but that's from fact excuse me i couldn't have gotten it for her for instance from transact you mean trans union that may well have been but even if that's the case the company and we're talking about western spirit here because that's th only entity in the scheme that's all that can get this consumer reports it's supposed to be the lander it was no longer authorized to receive the information from experian and that's what that sentence says authorized to receive information experian just two weeks prior w litigating with them over money owed by western sirrah to experience how can such a company be making mortgage loans to be accessing consumer reports for purposes of making mortgage loans experian has this supposed to have this goes back to the whole purpose of this if c r a or what the primary purpose that we're complaining about here a c r a is required ever reason the procedures in place to avoid the this the disclosure of consumer reports to those that don't have permissible purpose in a situation like this it is a poor into that concept that they're giving consumer reports to agents of western sahara when it's on it's flat on its back bankrupt and doesn't have any money in the litigating with that company and they terminated their right to those things that's the privacy violation we have a right to have our information kept from companies like that if this if i'd like to reserve my time that's fine for you know you can reserve a minute and ears good morning your honor it may please the court adam weir's i'm half of the penalty experience much has been written in recent years about so called no injury lawyer driven litigation this case i submit presents the peak such example the entire case was contrived by counsel working alongside his clients who used to operate a lender called western seer in an effort to exact revenge against experian related some totally irrelevant side issue counsel was provided a half decade old prescreen list saw a name he recognized called the person and convinced him to fi the so called injury suffered by plaintiff relates to something he knew nothing about for six years could not have cared any less about and as his testimony demonstrates still to this day is not sure what he is actually supposed to be upset about this case does not present the court with an actual case or controversy and the district court properly recognized that and dismissed the case for lack of article three standing this case relates to a nearly eight year old prescreen job initiated an agent of a lender called western sierra back in two thousand and eleven western sierras prescreen jobs were initiated pursuant to a contract a contract it had with a company called trans that that provided a platform the agent testified that it sent out a firm offer of credit letter as required by the f c r a to everyone on the list plaintiffs whose name was on that prescreen list says he can't recall if he received it but if he did like most of us he would have simply ignored it now at the time experian had terminated western series contract due to a business dispute but western sierra's separate contract with was not terminated and western sphere and its agents continued with business as usual apparently under the understanding that trans act was using only trans union and equifax data to generate prescreen plaintiffs now alleges that the prescreening inquiry was impermissible because western c e o s contract with experian had been terminated and that he was somehow injured as a consequence notwithstanding clear evidence that the offer would have been honored if plaintiff tried to accept it so the not the notwithstanding part of that's the rub of the case right so mr masur says if that initial sharing if you will of mr crabtree his name appearing on that prescreen this was not authorized contracted been terminated it's at that moment in time that his privacy rights are infringed upon at least for purposes of article three standing in what you want to do and i i totally understand why is you want to say well look where that lead that led nowhere because if you got a firm offer he's already told us that he'd likely threw it away and would have done anything with it and even if he had sought to there's no reason at all to believe that offer women backed right so it what point do we ask the standing question here what mr masur is claiming that his injuries are privacy violation and he's saying it's a privacy violation because there was a violation of a statute that was in acted to protect privacy but if there was no violation then there was no privacy har if you got the firm offer if the offer was firm there is no privacy harm because by definition it was allowed under the statute point one point two is and this is a  reason why there is not a privacy harm even in transit even if western sirrah would not offer honored it doesn't matter because the privacy harm here is simply western sahara having his name never told it to stop initiating jobs indeed western's years various agencies some of which were owned and operated by the owners of western europe were but it's business as usual so it was going to be initiated through transact under the master code marketing agreement it's not a privacy violation if western sierras would have received that list anyway and this goes to what the seven circuits i think grow shock and grow shaq there was a f c or a provision at issue that the th circuit found was an acted to protect privacy and there was a violation of it but mr mr mestre would have you say that's the end of the story you stop right there that's a privacy harm that's all you need to know but that's not what the seven circuit said the th circuit says you need to go a step further and say was are actually privacy harm and in that case they said no in the reason is because notwithstanding the alleged violation they are there was some extraneous information provided on an authorization form now was standing that the guy was the plaintiff was going to sign it and they would have gotten information the same is true here you have to look to see whether there actually is name is going to data biomass in western sahara in any event there's no privacy harm there the collateral attack on what's going on in the background didn't impact plaintiff's privacy at all so another point would have been your point is that this is inevitable and the inevitability was all part of perhaps for trans union or one of the others equifax or somebody or it's all part of alternately an extension of a firm offer ok so if we hypothetically forget this case for a minute and we have a we have a sharing of information on authorized because a contract had been terminated or something  where it's not backed by any intent down the line to extend a firm offer would that state an injury so you have a you have a really good fact in your hand here right in your  you're you're playing it you know well but change that fact in the scenario you you raised where so i don't think there would have been a privacy intent anywhere behind the sharing to result in a firm offer so that it isn't the ex that's a quintessential privacy violation he might say that and he might be right but that's not the facts here and you know how i know it's not but the facts here are in this is critical i think to analyzing your question dan ridley the owner of western sahara testified under oath if it came from trans union we would have honored that's what he said so this isn't the hypothetical you're ready maybe there's injury there or if it was a good but but here it would have been honored he said and he has to say that your honor because remember this he owns another agency like da it's called direct performance data they're doing the exact same thing in the exact same time they're also pulling prescreen list back by western sierra she owns this company the brunt of the same people they otherwise is violating the  willfully every time and that you have to the point right so if if for example i know it's counterfactual ok but if for example mr crabtree had accepted the firm offer credit called a number sent a postcard and whatever you do right western sahara her st ohio for them they could have said i you know what this was sort of sent in error and there are that contract that have been terminated or expired had they done that that would actually violate the statute right it would and then his injury would be that he didn't get the benefit of the bargain he didn't get he didn't get the firm offer i think i don't like i don't say his privacy was violated because my privacy is violated a lead to no benefit well i think it would depend on what the company what happened at the time company at the time which it a one million made it and it had it had a right to access the data if at the back and they they don't honor it he has standing because he's been denied that benefit which is the congress bargained away his privacy and in fact the the initial i think there could be if for example experian was knowingly giving a list to a company it knew was going to misuse that well are a couple of ways one is and this is very common in the preschool screening context a lot of times the lender who makes the offer isn't the one that actually fulfills the loan they will arrange so that's something that easily could have happened here and secondly experian doesn't know and can't be behind what's called the machinations of the bankruptcy it's assuming that companies are acting i don't believe in deed mr ridley another point that your daughters touched on and in the question of mr masur that i think is important is this notion that plaintiff's theory is based exclusively on conjecture if you start from the premise which is correct that if you offer sperm then there's no privacy violation because there's been no statutory violation play and he's in spokeo says you know you can't conjecture is well this is all conjecture what would have happened if he a different person received this and actually called it what would have happened if you did call it and wasn't your receive the call well what we know from the record is it's even in plaintiff's briefing they didn't have visibility to which bureau's sending the data who's they the western sierras so someone called the sloan in they would have mr crabtree call this and i have loved to accept this great offer i received in the mail western sahara would simply accept it because it's they assume it's based on transitive data and even if for some reason in the back of their head they were thinking oh man there's a chance this is experian data in which case for some reason we don't want to do it they don't have visibility big they can't they can't back till that point it's never addressed that or or or come to terms with it instead the only way the only argue the plaintiff makes parsing tells they simply say and eighty one and b i i don't know you are well it's your you've you've brought a claim right under that provision of the f c r a and as i understand proper standing analysis you need to need to ask the question is the plaintiff within the zone of interests of the statute under which they brought a claim yet and when i read sixteen any one n b a it's very hard for me to envision congress contemplating someone like equifax invoking that provision to sue if it just seems to me to be a provision that's all about consumers and harm to consumers your hon don't i believe you are and i have it in front of me now go ahead any person who obtains a consumer report from a consumer reporting agency under false pretense or knowingly without a permissible purpose shall be liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency so this this statutory provision is directly i think under this provision series the only entity in the zone of interest the to the consumer report need a you don't you don't read that is more about protecting consumers it might also be about consumers but i read it as certainly giving the consumer reporting agency as being in  made the comment about mr ridley and his testimony importantly most important of testimony to mr ridley gave was that that western seer would not and did not have the capability of honoring the firm offers of credit if source it's totally irrelevant to this yes maybe that would not all been legitimate for them to do that again they're in bankruptcy counsel talked about well bankruptcy you know that might not have been they might have been able to do something because they there might be a arranging of credit use that term there's nothing in the record about western sierre arranging credit or doing anything with respect to these from office what's clear in the in the record is that they were in bankruptcy over a one million dollars experian and had been terminated by experian from the right to obtain consumer reports counsel you mentioned grow shack grow shaq is a completely different case because in that situation the  harm that was protect sought to be protected was not that of the type that we have in the situation which was not a privacy act or privacy violation and that in fact there was nothing in the record as to how the consumer might have been conspicuous about this extremist information council also mentioned spokeo which is precisely what protect shows why we should be protected here the to test whether an alleged intangible harm has a close relationship to is traditionally been regarded as providing the basis of for a lawsuit in english or american courts here privacy of course secondly congress's judgment as to the injuries it sought to elevate to the status of legally cognizable injuries here the f c area and privacy rights those two things meet up and say that we've got standing so ok for those reasons we asked you which are in the court's decision ok thanks thanks to both both counsel for cases submitted