issue regarding lexus nexus and the motions to maintain documents under seal on appeal moots the issue that we raised with respect to them from the district courts or  sealing documents and if this court says that they can be maintained under seal then that district court cannot accuse its discretion so the remainder of the issues involved experience there are two substantive issues essentially and one procedural issue the substantive issues involved the fair credit reporting act i specifically fifteen us the sixteen eighty one see which requires any credit reporting agency who reports he bankruptcy honey consumers credit required to identify not only the chapter the bankruptcy that's being know filed but also if the consumer withdraws to bankruptcy before final judgment and that's made known is through a certified document to the credit reporting agency that that must be we've reflected on the credit report the second substantive issue under the fair credit reporting act is whether experience process is reason both to assure a maximum possible attack or see if the information contained in the report could you explain that statutory standard to me reasonable procedures for maximum possible accuracy sounds to me like a contradiction of terms it sounds like something that congress would write under i'm trying to imagine what our environmental laws would look like if we said if congress had said an industry misuse reasonable measures for maximum possible pollution reduction you'd have no idea what that means so you and i believe you i believe it's that cora poulos court that used a balancing test to balance the heart potential harm to the consumer with the potential palmer is it correct that plaintive childress claims only statutory damages corrector so unless you can come forward with evidence of a willful violation she loses correct corrector ok so is there any evidence that a credit reporting agency can tell reliably reliably and automatically the information that you say no your honor there's not evidence of that in the record as it is now the evidence is that lexus attempted one point back in two thousand through two thousand and five to indicate on the  be liable it would pose a pretty serious risk of violating the fair credit reporting act right here what so is it your contention then that a credit reporting agency has a legal duty to go through bankruptcy dockets by hand to evaluate whether each dismissal is voluntary or involuntary you know you are i believe that yet the evidence isn't that that is the only possible way to do it was ten years ago when lex s p term and that what they were doing at that time was not realized is there any evidence that it is feasible now to do this reliably and automatically know it got an attack specifically so how could why don't you lose them because it's their burden to put forward evidence to establish that it cannot be done statute does not require to report a bankruptcy is being withdrawn if it's manual examination of dockets doesn't sound like that you know you kerry can't be the person the bankrupt can't can't he or she  to notify the consumer portie agency that i mean you can get your consumer report right yes and if you  ask for a correction you can your honor why doesn't that take care of the problem because the burden is on the credit reporting agency at the beginning when the issues its report to make that determination and make that notation understand this then you that they send the bankrupt the report right gesture well why can't the bankrupt then say well you've made a mistake or your information is incomplete  and here is you know consumers who go through bankruptcy to understand all the legal ramifications of everything that's in that credit report where is the congress has put the burden on the credit reporting agency to make that notation if upon receipt of certification and receive certification and your honor since you've mentioned that twice let me address that the certification in these cases is lexus warranty to experian that all of the information that they provide through the pacer system is reliable and accurate well ok with that goes back to my question though if it can't be done reliably and automatically there's no not making the notation now whether they exercise reasonable procedures there are two different statutes there the willful violation is of the failure to know the withdrawn aspect of the credit report good so you're saying there is then an obligation to go through every docket that results in a dismissal manually without being asked to determine whether the dismissal is voluntary or involuntary you know you are hired and saying that it is the purdon of lexus and experian to come up with sophisticated enough procedures if they want to do so you're saying ok so there's a willful violation for failing to develop a technology that as far as we know does not exist it is a willful violation to not follow i think h you think it's feasible  determine whether a bankruptcy has been withdrawn automatically automated no we have not established i don't know what you meant by that i'm asking you whether it's feasible for them to do that yes jani it is feasible if you want to go to judge hamilton's extreme of going through each one manual yes it is feasible is expensive very much so but that is what the statute says well what makes you think the statute is supposed to impose unlimited costs on the credit reporting agency i believe the statute at a minimum requires attempts to comply with the statute and that has been no attempts over the last ten years as evidence that the record to develop any kind of program that would comply with the statute but we don't know whether it's possible to develop such a program and we don't know that it's impossible today do you agree that the pacer system fails to differentiate between voluntary and involuntary dismissals i know you i don't agree with that i agree that on the docket on the top of the docket page all testified in her deposition she could read it in determine whether or not consumer filed a motion to dismiss the bankruptcy how many consumer reports does experi to achieve perfection in reporting withdrawals no you are to bankrupt them right to be billions of dollars you don't care you know you're out of his our position that they have done nothing over the past where they have to do in order to comply well i really seen that over the past ten years that there has been petitional sophistication in what i mean you assume why don't you try to find out because that issue is not there at before the motion for somehow your position your position is it doesn't combat or what it costs them they have to do it they go broke too bad that's your position because you haven't made any effort to find out what is feasible and say well if it's feasible they have to do it which would be a perfectly reasonable position but maybe it's not feasible and the only evidence we have and the record your honor his why don't you produce him it why don't you go look and find evidence because the evidence we had was that they tried it and then they determine well why don't you hire some expert to advise you whether it is feasible to do what you think they have to do and you go back to your honor's previous question and bank right i want to get back to my previous question why cancer my current question why don't you hire an expert to advise on the feasibility of what it would cost and so on if we had had more of an opportunity to do so when that he she became apparent to us when they filed a motion for summary judgment we may have been able to do so however i'll just say when they filed for summary judgment that you would this was a new regionally the bankruptcy was filed because they did realize that you couldn't discharge student loans in bankruptcy correct or and so that was the only reason that the exceeded their assets correct and so they go and look it up or somebody tells them in a hurry those that's not dischargeable correct so they think that innocent mistake if that's what it is should not be blended with other people who filed bankruptcy and for whatever reason either dismiss it terribly when they find out there you're up against it or something or they don't want that on their record or something or it's been dismissed correct and you want something to somehow separate them out for making a i won't say it's a dumb mistake it's just a mistake correct and i guess they think that damages the  it's our position that voluntary dismissal would be the same in the equivalent of withdraw and under under experience and turn over classifications and that's that is ho define withdrawn it's a balance her dismissal but there can be all sorts of degrees of withdrawing can't there there can be in this case it was a simple mistake on what is just chargeable but there could be other cases with far different reasons for dismissed with all the point is you don't withdraw unless you file for bankruptcy if you file for bankruptcy well that's something that that banks are very interested in agency report to reflect whether it's a chapter eleven or chapter thirteen that could have ramifications to you as to whether you're seeking or told this charger coverage that you have or if you're continuing to try to pay off those stat think i have answers to the first with regard to scoring it's my understanding that it would not be scored scoring what scorers and lenders fannie mae those folks care about is did you file bankruptcy that i think when they crafted this statute recognized what i heard counsel concede which is that this is impossible to do on the front end this is not something reported by pacer it's not something that one can do in any kind of automated fashion and suggested otherwise and congress included a clause precisely for that reason that says look this obligation doesn't kick in unless and until you receive documentation certifying the draw in that instance experian has procedures in place so i was i was startled to hear mr palmer say that we've never done anything to comply because what we do is when we receive documentation from the consumer the one who would actually know about this who has been behind the docket who knows the inner workings of why i things happened when we received that documentation our procedures are in place to add a statement to the file to that effect where do we find that in the record that's that's in our brief and in numerous places plaintiff's brief ignores that fact entirely the district court relied on that in their holding that our procedures comply with sixteen eighty one cd one because when we received and i could point you to the to the district  court page eleven of the district court's opinion the court finds that experience does comply with sixteen eighty one c the one with its current procedures of noting a consumer of records upon receiving additional documentation indicating that the petition was voluntarily dismissed and that therefore no violation occurred with respect to mr childress so that is the notion that we have no procedures to deal with this is is frankly just false we do when we receive the information we add the notation now honestly it doesn't happen very frequently but it does happen and when it does happen we our procedures kick in but i to support that but even more importantly as judge hamilton noted there's only willful claims here this is a class action so plaintiff can't allege negligence because that would destroy her ability to serve by class so she violation well the safeco case of the supreme court sets a pretty high standard here and if it says that a violation of the cannot be a willful violation unless it  clause upon receipt of documentation certifying withdrawal to mean what it says that we need to receive something from someone else some additional documentation which is precisely how the district will read it or secondly under safeco an objective lea reasonable reading of the statute even if alternately held to be wrong or can't be a willful violation in here you'd be pretty hard pressed to argue that experience reading isn't at least objective a reasonable well how do we know that the district court said so in fact the district court said plaintiff preferred reading was itself unreasonable so we wanted to get for this court to come all the way around to find experience violations will by the consumer prior to filed a final judgment the the c r a in this case experience shall include in the report that such case or filing was withdrawn upon receipt of documentation certifying with drawl experian complies with this in several ways each of which lined up with the this court's prior precedent and what congress said first we've discussed this when we receive the documentation from the consumer the district court called this additional documentation we will add the notation that's precisely what the statute calls for that's precisely what we do secondly on the front end we report precisely what pace reports pacer says that a bankruptcy was dismissed we reported as dismissed plaintiff wants us to go beyond what pacer says and enter the subjective and try to find out the reasonings for why the dismissal came about but the record evidence is undisputed that's impossible it can't be done in an automated fashion it would require a manual hand review presumably by lawyers or or at least paralegals and even then it would be imprecise and this court has already has stated time and again including the henson case most notably that there is no obligation to go beyond the face of the judgment docket you can rely on it for being accurate because if you have to go beyond beyond the face the costs are astronomical the plaintiff would say well tough luck you know congress said they had to do this so it doesn't matter how much it's going to cost doesn't matter if it's impossible well but that's not what the statute says the statute says you only have to defined very broadly and it also includes any time there's anyone asked to see your credit so when you get a letter in the mail congratulations you've been prepared so if you count all of those it's hundreds of millions ok in terms of just how many consumers asked for a copy of their file disclosure i don't know the answer that i can only assume is well into the millions on him how many consumer bankruptcies due process in your database each year each year there is approximately a million ba obviously basically try to cover the national database yes this is our database covers you know every person in the country over the age of eighteen unless they have lived entirely off the grid will have you know some information in their file it's terrifying but that's why we have it so the district court found our procedures reasonable well let me i want to add one more thing about the hanssen case because i think it adds additional support for our position here the ens says not only are we entitled to rely on the public record but that if there is something in the public record that the consumer wants us to know about something in addition or something wrong that's they need to come and tell us something to the effect of bankruptcy voluntarily dismissed or withdrawn at the request of consumer and so that would that would appear right there and that does happen and that's how we comply with the statute   core recognize that under safeco if something is is not a violation of clearly established law it can't be a willful violation there's no court has ever told us that this statute means what plaintiff says the f t c has only spoken to on it by saying if a bankruptcy is dismissed that fact shall be reported so the f c c is saying we shall report dismissed and so in that setting even if your honors were to say well you know plaintiff's reading it you know maybe that's the reasonable maybe that's another reason we're reading or maybe that's what congress intended at you you need to come up with this you know impossible algorithm then very quickly we honor going back to the cost of what it would cost to experience under the statute experian does not have to report each of these bankruptcy but if it does report them they have to report under what chapter the bankruptcy code that they're filed and if they're withdrawn out of the statute says or a statute says whenever a consumer reporting agency prepares a consumer for that she will follow reasonable procedures to assure  evidence in the record as to what it would cost you have but you don't seem to you seem to acknowledge any obligation on your part as a plaintiff have to put in evidence in support of your contention that they're being unresponsive don't you have the burden of proof we have a burden of proof your honor put on summary judgment proceedings are burned it's not kick in until the y you can't just say that well we don't have any evidence but on the other hand the defendant has failed to prove that his position is correct you know what you're arguing yes your honor but that's not true under summary judgment proceedings we have to respond to what they filed they didn't say they didn't produce any evidence of what the cost would be so we don't have any obligation to do their work for them to establish what those costs are but you surely don't doubt that the costs of compliance would be considerable at all your pardon we do not doubt that now if the cost would be considerable why wouldn't that be a prime offish a case of when reasonable procedures  you have not produced the slightest bit of evidence we even though there is this obvious issue of reasonableness and we know that they prepare millions of these reports and we know that each of these reports would would have to be read by a lawyer or a paralegal to see what the basis for the dismiss know i disagree with the last part of your statement because i don't think that it's hobbyists that it has to be read by a lawyer or paralegal that's what they've just said you look at the docket entries on a bankruptcy docket  can tell who filed the motion of combat you can't be serious yes i can anyone anyone you can hire what a high school sophomore or what anybody who's going to tell who filed a motion yes you are because the pacer documentary shows not only who filed the motion as in the party it also shows which attorney filed the motion and all you have to do is cross reference back to the first page to find out who the party was and who the attorney