conclude that the credit reports were used for a legitimate purpose that there's nothing to that part of your argument but you didn't get to know each of the four times the access to what your client looking for here she would be looking at significant damages judge because then i would sorry didn't hear you what kind of damages you would be looking for significant damages what significant damages if it was used for a legitimate  what's the injury from the not getting notice on the four times it was accessed which is what you've devoted most of your argument trying to figure it out what is your client would be seeking had she received an order should have informed them right away that this is a forgery your client ignored lots of phone calls and other things so whether you could succeed on that is now i'm asking you to assume that we find that none of those other claims survived but you know she didn't get the notice what's the damage judge all those in those areas where she did not respond to the phone calls and only letters were after she got overwhelmed with personal problems  informed them that they this is a ford lease i know i don't know who you guys are why is that the notices were accessing your credit report how that would have told her you know tell them that the and then these people come and they're they've got an application i'm sorry you fill out an application for something that it entails are your good credit why would you expect people to check your credit you know she may she f application it's an application for a credit based transaction why would she object to be surprised that anybody is checking her credit rating that she authorized them or me to look up a credit reports and i a writing on a on a clean slate i wasn't suggesting that you didn't have a claim i was asking you what damages you were looking for the statute itself just does a provide statutory damages i believe so yes how much  your when your client was welcomed to this program didn't your client receive a copy of the signed contract with a forged signature not  there's an important point here which is the preemption issue the the the the federal law provides expressly for preemption of any state regulation with respect to the same subject as the federal regulation that the federal regulation requires the giving of notice in any instance in which somebody takes an adverse credit action based on information in a credit report i understand correctly and the state requirement requires the giving of notice any time one one pulls the the credit report and one pulls it for the purpose of deciding whether to give favorable or unfavorable take favorable or unfavorable action based on the information in the credit report now what is your argument why doesn't the why isn't why doesn't the state regulation concern essentially the same subject matter as the federal regulation and therefore be preempted by it when the federal regulation so expressed really focuses on that and says we're not we're not going to have any as to this particular regulation we're not going to quote minnesota statute the requirement that insurance companies not defy consumers before collecting their personal information does not conflict with the if theory and it is consistent with several f t c commentary decide whether to use the information to take an adverse action well whether to use information is a second question the first question is collection they're collecting the information now in the credit dataset case for example the statu that the two are not inconsistent and the issue is not whether they're consistent the issue is whether they deal with the same subject matter they deal with the same subject matter it's preempt you're saying that it different in various respects and it may be and it may be or in may be that they are compatible but the question is whether the state laws and forcible dealing with the same subject matter as the state law as it is of as a federal good morning may please the court my name is thomas j cavalier of calle gordon roy and i appear on behalf of all the respondents let me start with three bullet points the answer to your question judge jacobs is on page thirty nine of the judge forrest opinion which is he eighty one in the appendix she said quote defendants argue that plaintiffs and y f c r a claims fail as a matter of law because the n y of c r a only provides a remedy to new york consumers and because plaintiff is a california resident she cannot recover the plaintiff does not oppose the merits of this argument accordingly the court finds in favor of defendants on that issue precisely as you ask  a question and answer which appears at page a five eighty eight me read you a sentence this is the document that is richly agrees that she signed this is the application she says for a lease from a different less or whatever else may be true about the stock unit contains the following language it says you miss richey authorize wells fargo and or its agents and i payment to investigate the individual business history of applicant and each representative signing the agreement including yourself included investigative credit reports in order to evaluate acceptability into the wells fargo merchant services merchant program and if accepted to conduct further investigations from time to time thereafter and to report credit information it to others that's called furnishing reporting credit information to others as furnishing this is a case involving furnish i'm amazed that mr chateauroux is able to get through this entire argument to your point judge lavelle without discussing this court's decision in galper second circuit decision in two thousand and fifteen precisely on point he cites a ninth circuit decision and it circuit decision i don't need to tell this court the law is sometimes different in the ninth circuit than it is here in this court it is no question in my mind that you're going to follow galper and the only question is what does galper say and judge value ask the i think the absolute right question this is not a case of anything other than statutory preemption congress said the following shall be preempted and  court was asked how do you do that how do you interpret that and if you look at gallup or this court first said we look at the supreme court's learning which not surprisingly is you read the statute to try to ascertain congress intent and then what this court said is to the supreme court and they're quoting a case called dan's city used cars and the claim is quote with respect to close quote a preempted subject matter when it concerns the subject matter i believe those are the words  and they say accordingly we hold that sixteen t sixteen eighty one t be one f preempts only those claims that concern a furnishers responsibilities now in galper it was not a front issue here we are a furniture and then as this court said six that statute does not preempt state law claims against a defendant who happens to be a furniture of information the consumer reporting agency within the meaning of the f r a if the claims against defend do not also concern a defendant's legal responsibilities as a furniture of information that's this case and finally this court sided penalty partly this court's of the question then is this do galloper claims against chase concern the word concerned chases responsibilities as a furniture of information under the f c r a whether they did or didn't enjoy in galper as to chase they did not hear they do mr schultz or says in page one of his brief one of the questions presented is does a furniture there's no question the theory of his cases were a furniture of information and that's how judge forrest understood it and finally on the last page of the opinion we furnish the the the liability he's seeking to impose under new york law is notice is for taking adverse action based on information i'm sorry it is for you is for pulling a credit report right without giving right notice my point is why does that make him for it what does that make him not oh that doesn't make them a friendship they are from the statute we're talking about addresses itself to the subject of notice right about is notice the federal statute addresses notice the federal statute has a statutory preemption formula the supreme court and this court have said the way you apply that formula is you look to see if it is the same subject matter federal and state the federal statute addresses notice the state statute addresses notice that's one way of looking at it sorry that's the way this court looked at galper yes but i mean it's a question of how how broadly or narrowly you identify the concern of the federal statute and state statute and the contrary argument would be that the federal statute is about the notice that must be given when somebody takes adverse action based on a credit report and the state coroner the state obligation doesn't address what you need to do when you take adverse action that addresses the subject of of what you need to do simply when you ask for someone's credit reports of the argument would be they really they don't relate to the same subject matter that the state one doesn't concern the federal one they are different it just depends how how how narrow your broadly defined the subject matter i think i think that's exactly right i have two answers and first to get to that narrow construction i think that this court in the court the panel decided galper would be shocked to hear that's how you do it the subject matter and it is clear from galpin the subject matter is notice both statutes deal with notice that's what this court galper said you have to look at and once you get to that level the fine parsing of how they work is not required number one number two even the devil quotes scripture when it suits his purpose to adopt mr stores position if the correct analysis is conflict analysis there is a conflict there is a conflict mistake law in the federal law exactly we're trying to decide just about in the in one regime says you always give notice whether you're taking adverse action or not right new york state says you're going to go pull a credit would you give notice the federal law says you give a notice if you're taking an adverse action based upon what you did it's very hard to understand how those conflicts because one can you will comply with the state statute without in any way making interfering with compliance with the fed but that's what's not required but let me ask you something else that i haven't considered in relation to your answer to judge jacobs question is all this irrelevant in view of the in view of the plaintiff's  failure to provide opposition to the argument that it on the should we just rely on that on that essentially default with respect to the meaning of the state statute in that and then would that mean we don't need to deal with preemption but i would think so your honor i would also think that the argument i was prepared to deliver this morning was going to focus on a lot of anomalies of of matters of hyper technical issues of appellate practice we would just be ruling we would just be ruling not a meeting of the state statute but just that they appear bent on the claim were reached its decision based on the players failure to order them something correct we would say that was and it's not just that you can tease that out of the record  language i read you in response judge jacobs opening question is judge forest addressing that very subject and making the exact point judge jacobs made and that is we made this argument below he punted and she ruled against him on the basis of his failure to respond on the merits and similarly to me just note before i sit there lots of things in this case like that for example rule sixty b in his opening brief is no no discussion at all of rule sixty his reply brief is a big argument that the rule sixty motion was properly was improperly granted i think he waived that the significance of that is this i know we're not talking about that part of the case this morning but whenever in this case he's asked to say where is all where all these are no facts here in judge forrest could not possibly have been more correct she wrote a very careful very thorough very professional very workman like opinion and she opened by saying this case never should have brought it's frivolous what i was told for years where the facts are not the facts this whole argument proceeds as though it's an appeal from a motion to dismiss under twelve b six and not a rule fifty six appeal this is put up or shut up time and when the question was called he had no facts he just talks about things that are pages and pages of his brief without a single citation of the record when he does point to the record or two things he points to frequently one is the attorney general's papers those aren't before this court that was the subject of his sixty b motion he asked her appeals in stockman said the reliance is not an element it's hard to imagine why it wouldn't be the new york court of appeals as it is so is that an error that requires remand and i ask you question reliance on what well reliance on the deception but deception i know what they mean is the claim here your honor for deceptive business practices and i would assume i would assume that binding somebody to a case the entire basis the cynic qua non of this bogus lawsuit is the allegation i think it's at seven seventeen and a seven seventeen it's underscored in the in the second in a complaint she never told anybody that she claimed that signature was not hers until after two months after the civil court action was filed every argument in appeals brief assumes exactly the opposite of what i just said it's counter anything about the collection business and mr brown testified two pages later i don't that's not my department i don't do that and we can have it can i finish my thought judge so if you mean plaintiff's assumes the most fundamental element of the case which is that there was a fraud here and then everything follows his entire brief is predicated on that you're saying that the the the the forgery that we're required to assume is correct that the forgery would have been done by that the plaintiff initially dealt with and not your clients who who in six now know that that happens to be true but that's not my point if i'm not being clear let me try it again it may or may not state a claim it may be legally cognizable maybe i doubt it but maybe to sue someone on a contract which is contains a signature you know to be forged that's his theory of the case that's what  played everything follows from that when i ask you not facetiously judge reliance on what so he says in there the court when we've made the argument that some underbridge the supreme court said somebody has to rely he said well it's a court clerk realized when he issued the subpoena passing what else is wrong with that argument if the court clerk was misled and relied he was misled by and relied on the fact that this plaintiffs that the plaintiff blow in a civil court action filed an action knowing it was a forgery it is now crystal clear no one knew was a forgery no one no no no defendant therefore the defendant committed no fraud listen to this litany of things that are in his brief all of which fall out if you understand this why does the deceptive act or practice have to be committed by your client if no mayan's is required and if if the if the victim assuming it's a that she's a victim has to spend money defending a lawsuit that has no basis and and and because the signatures forged even if somebody else forged the signature and not making the argument somebody else forges a case that's not my point at all my point is if you file a lawsuit with a signature on a contract that you know to be forged yes it's theory is it's a hobbs act violation it's mail fraud it's wire fraud it's all the rico predicates everything else follows that's just theory this is richie admitted repeatedly in discovery that she never told anybody connected with the defendants although she had ample opportunity to do so because they constantly called her up when she castigates them for of course she never told anybody it was not her signature two months after the civil court action what that means is there is no false statement in the civil court action because no one knew it was a forgery and that possible source of the knowledge that it was ford is not the only conceivable  question is not whether she knew it the question is did we know it because we didn't know it raises q question one would he have known would your clients have known it because miss richie told her and you've pointed us to the fact that she didn't sal anybody anything and correct much later or could they have known it because they were the four jurors and my understanding and please correct me if i'm wrong is that you're saying no evidence to support that was a deep strike because she signed her lease application with another party will call them the middleman the middleman has a contract with your clients that says we're going to provide you with leases and we warrant that they will be validly signed and will indemnify you if they're not absolutely and there's no evidence that your client ever originated any leases so the circumstantial evidence only admits a middleman who warranty the validity of the lease being involved in whatever forgery i thought that's why there were two parts to your argument and i did i miss everything you said judge reggie is one hundred percent accurate and that's exactly the conclusion judge forest came to for which she's criticized by my brother here she concluded that the forgery if it occurred must have occurred at the middlemen that also is not in the record with the point of situation it is summary judgment it is rule fifty six the plaintiff who has the burden of all of these issues has to a deuce evidence from which a reasonable jury could find in his favor this plaintiff a deuced no evidence whatsoever hyperbole lots of chatter lots of talk lots of allegations lots of you know wild things lots of talking about other cases other people none of which is in the record i started say before going to places where the attorney general's papers which i believe are not actually in the record and the other thing he cites to a lot  a series of are a phase promulgated by him a request for admissions which my client never admitted to they objected to them and they move to strike and judge forrest said in her opinion i'm taking all of them not to rule separately on the motions to strike but i will mentally keep in mind what is not a properly before me so it's a little murky but certainly when he says x is a fact why is fact and gives you a side i know you're not as i've looked at every single a side that i gave you those a sites are invariably to the questions he promulgated request to admit they're not our responses we on the other hand did exactly the opposite we relied on mrs richie's admission that that she didn't tell anybody about the alleged forgery till two months after the civil lawsuit so the court lawsuit we gave you the page where we asked the question we gave it a page where she admitted it when you gave your testimony i hate to sound pedantic but but if you carefully read the other side's briefs both briefs and you check every single citation which i have done there are enormous numbers of them where you scratch  say must be a typo i don't get it i mean i passed the pages that are upside down which i asked him to fix that it's not there there's no evidence or no this is his entire argument is a reasonable jury could find whatever the validity of that mode of argument is on a twelve b six motion that's just not good enough it doesn't cut it on summary judgment this is put up or shut up time i believe it was emma lazarus who famously wrote you know give me your affidavits give me your facts you know give me survey record citations and i will open the door to the golden courtroom but failed to do that i'll slam the door in your face and that's what judge forrest did correctly correctly and she also said it was frivolous and she also said it should have been brought and she also said pla spent years misrepresenting there or what the case is about right thank you thank you your h let me begin with a very significant fact that the just finished telling it on us that they didn't know when they brought the civil court action that the lease was forged ok moment this is do or die this is summary judgment let me let me let me clarify that judge in in a situation like this when a company is going to rupee in practice of defrauding people it is not necessary that you that you have to prove that it picked this one guy in order to defraud him because he didn't pick that guy it is defrauding everybody and that is abundantly borne by the evidence that we brought out we brought out evident in fifty nine other cases we're going to we don't consider it enough to allow suit in one instance that there have been similar actions in other in other instances you've got to have some evidence here and i i left out one what i think i fact when i catalogue some of the evidence with mr cavalier and that you client applied for a lease on a certain piece of machinery and she got that piece of machinery and she paid for it for a number of months on the terms of the lease that you're now saying is bogus she returned it as i understand the record not because she was saying i have no ok you know at a minimum there might be a quasi contract claim here and so i don't know how the lawsuit is a fraud if they've got a quasi contra she didn't even know firstly she thought it was a cancellable lease with those people and these both will was one more question if i may right do you contend if you contend that your papers on the summary judgment motion before the district court advised contained information showing that the defendants have a anything i'm sorry how does a lawsuit the fact that there were fifty nine lawsuits without evidence of the judgments proved and no no not without evidence of judgement without fifty nine lawsuits brought despite  nine nine hundred  through ninety two thank you thank you may i just ask you the first pages you cited one twelve to one fourteen or your statement of undisputed facts and mr cavalier i thought the business in the attorney general's report was submitted with respect to an application post judgment application to vacate the judgment for relief from the judgment that is correct well then it wasn't part of your papers on the summary judgment or no the nine and that the nine my question was what did you submit to the district judge on the summary judgment motion did you have anything before the district machinery and then starts paying for it why isn't that effective adoption of the lease of alicia didn't even know existed she applied for a lease not and the lease was to get machinery and nine ninety three ok well we we have a lot to read thank you both will reserve decision the last case on calendar is labor versus warden's taken on submission please adjourn court