good morning ladies and gentlemen welcome to the ninth circuit judge fisher who is on the screen and i are honored to welcome our colleague judge larry pierce all who is sitting with us by designation from the district of south dakota so he has  exotic element to our hearing today we have five of them indeed indeed we have a five cases for argument this morning  first of which is gillberg versus california check cashing store so counsel if you'd like to proceed whoever is going first court like i presume all courts would begin with the admonition that you've read the briefs and you're familiar with the content rather than repeating that i want to try to emphasize just a few points that i think are the most critical and expand a little bit on an issue that was touched on briefly in the reply but since that time and with further consideration i've had time to think a bit more disclosure is somehow distinct from the f c r eight page called the disclosure and therefore doesn't need to be discussed and same with the disclosure statement well that's what that's what i'd like to elaborate on i think it's actually a different disclosure at the end of that employment application there is language that is on ambiguously language th typical consumer is going to view as of a kind with the language that's in the separate disclosure form that was addressed so you mean by that it it indicates there's going to be a background check done that contains some of the same language that's in the disclosure talking about your educational history employment history criminal history those types of things it contains the same laundry list of information and it says were  may be subject to a background check is what it is what difference does that make the question is you've got one document that is nominated disclosure statement that has the kinds of things that  release language it lacks information that needs to be in there to be a compliant disclosure so we have one active document that has characteristics of appearing to be a disclosure and then for the purpose of clarity clear and conspicuous disclosure of the employer never says you know that language in our application that's sort of boilerplate and we're not going to rely on the outer assert that against you or use that this is the active document that communication never occurs and so when you have to live document this is with respect counsel it seems to me what you're saying is that no matter what these folks put in a disclosure statement or an employment statement it has language in it that might confuse a regular person therefore it's all going to be treated as one how would you avoid that given your construction of this language i think you avoid that by doing what i said which is you indicate that you are not relying on any language other than one particular form you you have multiple yawning a big red arrows and point to the other one and say we are not relying on this is that what you do and i think that's the only way you cure it when you put to life forms and play that both have a background check language in them and the statute itself requires a standalone disclosure and the second part of the requirement is that  clearly in conspicuously provides that disclosure you've created confusion simply by activating two life forms now if we push the employment application to the side don't look at it at all and focus only on the document that's called the disclosure that form on its face fails to satisfy the requirements that this circuit has already clearly the f c a or a disclosure it contains information about new york in oklahoma and california whole variety of other information that contains and acknowledgement of receipt of other documents which i believe is an exculpatory type of provision if you ask a person to acknowledge receipt of documents and and swear that you have read and understand them your affectively eliciting could articulate a number of things you're almost and your three minutes up to you but what's your best argument you marshal a number of different points but you know what it what is it you want us to take to bed tonight be thinking about in this wonderful case i think i think the soli requirement is the number one most important requirement in the close second is the facial construction of this form violates the clear and conspicuous requirement because of all the extraneous language in a small fon good morning tim snyder on behalf of the defendant absolutely this case is really about whether siad extends to the type of stand alone page disclosure that's at issue in this case this really doesn't meet the soli requirement does it counsel i'm sorry it really doesn't meet this only requirement does it i i have difficulty seeing how when you look at the requirements of siad we can treat that document as being soley deal or dealing solely with the disclosure i think we can all agree that this document doesn't contain a liability really directly and that's the issue of first impression that the site had court said it was deciding and so the question is does the word solely singly entirely you can add whatever adjective or synonym that you want whether that whether this meets that and i would say it does and the reason is this everything in this document relates soley to a single transaction which is the employer requesting permission to obtain a background check report everything in here is about that there's nothing out of left field like a release or a liability waiver this is detailed information about the consumer's rights and that's what distinguishes this from say it because inside the court said what's the purpose of the standalone disclosure the purpose is to focus the consumer on the fact that they have privacy right this disclosure does that in fact i don't think we'd be having this argument if this disclosure just said a single sentence which is the first sentence of the disclosure that a consumer report may be obtained for employment purposes what about the fact of this goes on through your employer this isn't just just to get a job it goes on throughout the course of your employment that the authorization does that's yes true and that was that's not been something that anybody's complained by things very commonplace to get an authorization and a continuing one throughout the employment relationship so that's that more goes to the authorization as opposed to the disclosure there's two separate requirements in what about all of the different state disclosures you know nst of having a separate document for state or maybe even limiting it just so that you have different forms use one that just deals with somebody employing you being getting employed in california as opposed to somebody getting employment in some other state so these other states have well call me f c r a's and what they do is they supplement the federal f credit reporting act but if you look at what's being said about those other states laws they're all on the same topic which is you have rights when an employer asks for permission to obtain a consumer report and it's called out very clearly new york maine applicants and bold underlined that doesn't render this in conspicuous or or hard to read somebody from california say would hit that bullet point and move on but if they were to read it they would read about their rights in those states which frankly matched the rights under the fair credit reporting act to obtain a copy of the report to obtain to have the ability to potentially correct that information and i'm sorry look at you engine even him the state disclosures mixed in with the federal requirement so we know from side you can have a liability waiver and the reason you can't is that undermines the purpose of this notice because you court explained a liability waiver draws the application away from the rights they have to the rights they have to give up and this disclosure doesn't do that everything in here is explaining consumer rights related to a single transaction the whether the consumer will consent to obtaining a consumer report so it's it's very different and i would and i do argue and i will argue that because this all goes on until it doesn't say that it can also can things state disclosure requirements also now if it's always sort of well it doesn't mean that that wasn't the issue before that court whether state disclosures would render a violation we cited the court to decision from the central district called nori in which that district judge like the district judge in this case said look closely related disclosures that are not liability waivers that are out of left field so to speak that focused the consumers attention on the rights that they have don't undermine the congressional purpose here and so this is very different from siad in which the ninth circuit actually reached out and held that there was a i had to talk about the limited liability waiver but in this case here and it's just some some notes i have this this document has statements about state laws that were in place of all the gillberg statements about california state law have to divine what congress intended here i mean the reality is they want it to be as simple as possible none of these documents is simple for it to anybody but a reasonable person can look at them and the question is what does the word all of that so called surplusage relates to consumer rights in the context of obtaining a consumer report from playing it purposes this disclosure of soley relates to that transaction could you take out the new york in maine disclosure and would it still be compliant yes you could but does adding that additional information that explains it impresses upon the consumer the importance of this decision and the rights that they have does that violate the congressional purpose behind this sole document disclosure what about the notice regarding background investigation how does that fit so your bring to the authorization paragraph ok so there in the acknowledgment piece what i would say is an acknowledgment that you have read a document and by the way the notice regarding back investigation is simply the above paragraph their knowledge in that they received and read the above paragraph and then the summary of your rights under the fair for reporting act is e r one ninety four through ninety five and that's a document created by the federal trade commission which explains what your rights are as a consumer to correct information in your consumer at least those particular items are merely repetition of what the government has already said elsewhere exactly they're not they're not distracting they're not pulling away they are in fact i would argue that the acknowledgment itself is impressing upon the applicant the importance of this decision which is fully in line with sayyid one more comment on say ed is that the court there found a will l violation now in this case the district judge never got there because we were focused on whether there was a violation at all but your honor recently in the shaab vs experience case found no violation but then went on to say if there was a technical violation it's not a willful violation as a matter of law and certainly if this court was troubled by the additional frankly pro consumer information in th disclosure i think that this court could affirm on the alternative grounds that maybe there is a technical violation here but that that violation is not the word not objectively unreasonable not so out there as to constitute a willful violation because in this case the plaintiff e r ten eleven has acknowledged she's not seeing actual damages here she's speaking seeking a statutory damages which you only get if you show not only a violation but that the violation is reckless or knowing and if this missed the mark i would submit it missed it slightly technically but not in a if this court wades into the terrain of attempting to fashion extra exceptions it's undermining precisely what the siad decisions the statute is not written in a may have an authorization a line that says i authorized the back if i may counsel i have articulated the these issues well both of you in your in your brief but i want to follow up on a point your opposition mentioned you could see that if if in fact there was a failure to put something that was solely dealing with this down here this is not an intentional thing it's  violation that should generate any liability resulting from some kind of science or is there i think that given the language of the statute the answer is yes it would constitute a will is even if even if i mean you had two very learned counsel here you disagree strongly about what this word means if two intelligent people have that disagreement how can you penalize somebody having science or when they have a different interpretation of somebody else unless it's so obvious that everybody knows that this was an intentional violation of the law so i had said this is the very first time anyone's addressing the soli requirement and yet that court still found that it is so obvious on the language of the statute that the surplusage is a violation that it would constitute a willful violation the no reasonable person could read the could say six if you have the some parts added things that were added in here at least according to your allegations i think it suffers a similar defect in that the more material that's there and the more dense that is the less clear it is to the typical consumer the less likely they are to actually absorb what's there i can tell you the best disclosure form i've ever seen was a piece of paper that had a big bold face label of the top saying it was an f c r a disclosure and about two inches worth of twelve point times roman font that said we're going to perform a background check and it's going to look at your character reputation education history criminal history and that's it no authorisation no nothing they put the authorization on another form but that document screamed out when you got that piece of paper you almost couldn't help but read that single two sentence document perhaps you should offer yourself as a purveyor of such documents they might these cooped