greater control over what happened to the highly personal information they shared with their financial institutions the author of this legislation expressed her intent that quote consumers should be the final arbiters of what happens for personal financial information definition if the information was collected used or expected to be used in whole or in part for purposes of determining eligibility for credit insurance employment or other discrete purposes with this limited information that information is significant and there are three points of state like to address today first the state would like to give examples of the types of information that are not preempted under the ninth circuit's definition second mistake would like to address only information that is preempted on the ninth circuit's definition is information that needs the scope and the purpose prong of the definition this would exclude for example any type of app any type of information a consumer gives to a what i find where i buy it what magazines or newspapers i subscribe to what they were what kind of alcohol a person likes whether a person buys pornography all that information is contained in credit card statements and that information is certainly far afield not even be financial institutions without the consumer even knowing that that information was being sold and again that was precisely the policy judgment of the california legislature and i would just ask for the court to the findings forty fifty one forty fifty one point five which is not experienced information of a bank in other words is not information that a financial institution yet from its dealings with the bank for example when i apply for a credit card or information a bank may get from other banks experiences that information of information that of that financial institutions must analyze before share with affiliates is information that it intends to sell or share with an affiliate for marketing purposes information that would otherwise need the exception for experience information can be shared with affiliates but first the financial institution has to give the consumer notice and the right to opt out of that solicitation i give these two examples to demonstrate that it is simply inaccurate to say that financial institutions do not have the burden of revealing information that they share with their affiliates right now because they do they act of the term as a threshold matter does the information meet purpose and scope if they do then as far then it is off limits  district court should not have applied a reformation analysis but really should have just literally looked at the statute to see whether or not it was physically capable of severance doing so that are going to be also for at least two reasons first it would indeed violate sure it will be more of a limiting one i was going to make the analogy to cases in which they've limited first to many cases like the definition of information is limited to information that does not fall within the definition of the type of information contained contained in a consumer report and adversary has made a very strong argument for some points here but they're not the ones that are it is to she's present this case to you as though it turns upon whether or not there are parts of the one that could be applied separately outside the preemption that the court of appeals ordered that's not the issue the issue it was framed very clearly by the mandate and that was whether any portion of s b one survive preemption and understandably therefore in our brief to you and in our brief to judge england that's the way we argued the case because they have never ever been able to point to any portion any part of the statute that itself avoids preemption and the reason for that is that every word of s b one's eliot sharing cla applies not just to the protected information that's called a consumer report but also to all these other kinds of information so the task was one well how do we divide th question the comment this way it might be helpful if you have our briefs at hand you perhaps don't look at page thirteen of our red brief because i want to read from a statute and the statute is s itself it's the severability clause and it says this if any phrase clause sentence or provision is declared to be invalid or is preempted by federal law i want to emphasize that was preempted by federal law or regulation the validity of the remainder of s b one shall not be affected there by that is what this court's mandate really stand in slightly different terms but the point is this s b one was a very controversy of bill and the interest that i represent were very concerned about it for a lot of reasons it was in the orders of the state itself is presented down to judge england in the district court it was carefully negotiated over three years and this is the this is the clause that to me clearly requires a ruling for us in this case because the legislature wasn't saying well we'll accept anything the courts might come up with in their construction they were very clear that it had to be a different part a very manger and as i say they have never been able they have never been able to do that the reason i wanted to emphasize the words federal law or regulation that shows that this whole thing was negotiated decided by the legislature in the framework of a probable and indeed it happen suit such as we've brought so this is so carefully designed for that if you were looking at the think construct you can almost be in this in the last part of it that is you can reform our statute to knew that they could have sanctioned the kind of thing that the state is asking you to do because they often did that there are three cases that they rely upon one is of those cases the legislature had done the kind of thing that the state wants to do here the legislature had provided enough cases for us to separate applications severing application to me it should be the dominant factor and let's talk more about cop and cats and the other cases they rely upon in in those cases cop the challenge word was fiscal year that's a that's a phrase that you can you can put some interpretational in the caps case it was wrongful act in the one here it's one a broad facial attack on the statute we argued consistent with the plain language of the federal statute that information meant any kind of information court of appeals disagreed with us judge fletcher wrote for the front panel that no this is a special type of information it's only the information contained in the credit report that that's already been construed they want to further narrow that in a different way to somehow changed the meaning of the word information as it's used in s p one what they don't tell you and i'm sure it was an oversight on counsel's part is that the definition of the non public personal information is not only used in the affiliate sharing clause it's also used in the clause that prohibits sharing amongst third parties and that stays as it is we never made an argument as to that so the word information would have to have two different meanings under their approach one would be the one that incorporates the federal the federal law that was applied or the other would be in one that doesn't have that incorporation i've never heard of such a thing of taking this general definition and it's closely you know carefully defined it has to be one and interpret it one way in one context and another way in another context now i i can't tell you i wish they had i enjoy arguing in this court if i have more but i think there was uncertainty amongst the panels how they wanted to do it but they were very clear could've been clear what had to be shown and the state has never shown it and now let's talk a little bit about the new hampshire case because it too dealt with a new hampshire statute that allowed  severing of applications so that was fine but justice o'connor was clear in her opinion that at the end of the day this all had to be consistent with legislative intent and in fact the case was reminded back to the first circuit to determine whether the legislature would ever have sanctioned this kind of thing there was never a decision on that the case was settled so i can't tell you how it would come out but i can tell you this because it's state's own words it's at page seventeen of their yellow brief in order to have one of these constructs your word judge graver you have to show that it closely affects policy judgments clearly articulated by the enacting body that's a test i think it's just that since cats and coffee as well but here that can't that certain intent that it's told us about our that is protecting individual well that that's that's part of it but it's by no means all of it we did call your attention to a decision of a california court after this one the registry case there the kind of evidence that was mustered to satisfy this difficult test was far different they had legislative reports they had all kinds of things to try to satisfy it and the court of appeals the california court of appeals in that case said no that's not enough under this test here our case should be a for sure i because we have this carefully crafted severability test for this one this isn't some general broad severability for all things it's crafted for this complex situation not talking about complex complexity let me refer to another part of justice o'connor's opinion where she says we federal courts should not get involved in complex line drawing and then she she characterized what that meant there's a lot of complex line drawing that would be required in the construct that the state is asking you to order i'm not saying that there i never said there isn't some possibility of complying with the statute they've they've tried to make it look like that's our argument it's impossible to comply with we never argued that we argued to judge england what i'm arguing to you today and we were right then i think and we are right now now  i'm trying to think whether there's more that i that i need to say that you're interested in hearing but  requires the grammar grammatical grammatically at least several bow it requires something that's the same thing as no portion and it absolutely requires that the legislature would have preferred this to anything else to what we're suggesting there are all kinds of complications that do arise and it's that show that the legislature couldn't have example there's a notice requirement that you have to give to every customer of your bank or whatever it is and that's that's it is that we were strict information has to tell these consumers even though now the most personal type of information like character mode of living reputation that kind of information in a in  a consumer report is not restricted in other words you don't have to simply try to put some gloss on the word information in s b one assist you you've also got to deal with problems like that noticed requirement because no bank could basically make that representation in the current circumstances and you also ask that ask yourself the question if this kind of really important personal information isn't protected any longer and it's clearly not if it's in a consumer report then why in the world would the legislature have got created this very difficult regulatory situation finally i think this is them i hope a clinching point  like california frequently does in this case they enacted enormous penalties for a violation for example if you send two pieces of information to different consumers negligently you didn't mean to do it you're trying to comply with the statue but you're negligent if you do that you're subject to a fine of five hundred thousand dollars five hundred thousand dollars think of how all that could accumulate as you go through this process i say it's not impossible process but it's a difficult process of drawing the distinctions between information is if you bundle these credit headers then it can be and on a later page page twenty seven of their brief they say correctly that whether something is or is not in a consumer report is something that the pens on the end tant at the time of collection can you imagine that kind of litigation fueled by these enormous penalties that the state can  an assert that gets into what was the state of mind in intent when this was done at that time again not impossible but very difficult and these enormous fines take this case out of you know it's there's nothing like it in any of the other cases where there's been this kind of statutory quote graphic of march but of course they could pass such a statute if they chose to do so they think that bothers me about this case maybe you can clarify and i don't know you have a couple of minutes left this panelist alert to what they were doing you have two former law professors and a chief judge who's not known for a lot of i q and they come up with this language in this language must mean something and it strikes me that if if they wanted to take your position they could have taken at the end of that case what if they have to send back why if they agreed with your argument why wouldn't they just have made their decision here favor that well here's what happened judge wallace they didn't really rule for us the way we wanted them to we off we offered and you read the statute it's the language of the f b i preemption clause that's all information all information was constitutionally for protected they they rejected that argument and crafted their own net much narrower well not much narrower but still narrower version of what was and wasn't protected they did that there was no argument before them like i'm having with you today about well how do we slice and dice this that was something that had to be done in the aftermath of the way that the court of appeals interpreted the the word information if you is correct as to what the panel says down to do and what the district courts result was would you call the injunction that was entered we think the injunction as entered by judge england is proper probably correct we have a cross appeal here because we had we wanted to make it clear that to this court that the injunction should have not used the word to the extent of this preempted because that could be confusing it could lead to for future litigation all we're asking you to do though today in terms of relief if you agree with our having said that position doesn't that indicate what the district judges view actually was i think the district court thought this your honor i genuinely do know that what he thought was look i have said that you can't you can't draw the separations it's too hard to do that and that means that the hope for the whole provision of the affiliate sharing provision in whole is preempted hunt pretty sure that was his intention it would be helpful for you all when you make your decision to remain and it and give him another opportunity and of course we would aid him and our suggestion let's just see this case again well i don't know whether he i'm having some difficulty well i think i can only speak from you know observing him and not perceiving but i'm almost sure what he meant was look what i said is that the whole of the whole affiliate sharing causes preempted injunction you know thank you very much thank you extent it's not preempted circuit's definition well ok i know that you disagree with opposing counsel in that regard i'm just saying that your contention is that the judge in the body of his ruling invalidated the entire we said earlier financial institutions make that determination all the time with respect to information they receive they have to analyze to see if it makes the purpose requirement of the essay right secondly the penalties are overstated first there's no private right of action i know you have a lot to say about this point but before your time runs out i'd like you to respond to one of them one of the arguments of opposing counsel and that is specifically the argument that excuse me that and looking at the legislative history i would point to pages nine of the appendix in which the author said consumers were concerned about their financial privacy because two different parts of the test one part of the top test seems to ask what are what are the there page eight thirty three that supporters have expressed intent that even if the stack of history untouched as presented as to some institutions we still would rather have some protections versus no protections and i going down to the going back again to what is the intent of the legislature intention to limit severability expressed its intention by saying we're going to allow severance only in certain situations and not others can they do that and if they can have their say i do indications of what the legislature wanted it is clear that the legislature in this case would have preferred to have a week in statute no statute at all and that's the difference by the way with respect to u t registry muti registry the court said no there is no evidence