reasons simply relate to the failure to present miscible evidence to meet initial burden that the moving party had and they don't require this court to reach a rather unsettled question as to an interpretation of the federal credit reporting act specifically whether or not and what the what the phrase in connection with means in the context of obtaining someone's consumer reports you can make  promotional offer of credit however it's quite possible for this court to simply reverse on the grounds that the defendant they owed to present admissible evidence to meet its initial burden of showing they offered to support their position but why shouldn't it becomes considered the delete declaration up put it out i would see it this way if this court ordered me to serve notice of something on all the other parties to this litigation it is myself or my office i would have to prepare the proof of service under penalty of perjury your honor could not state in a declaration a sworn declaration that my office served a document on someone without running afoul the hearsay rule and that's exactly what we have here miss for unknown reasons the defendant did not bring in anyone from the company that actually mailed the promotional offers that company was cold try when all right even though this is supposedly some kind of agent maybe it was maybe the company doesn't exist anymore and that might be part of the problem here  if instead of bringing in a decoration from someone who actually mailed the document in question they brought in a declaration of their own employee who was familiar with the business practices of the defendant not the other company of the defendant and who said the defendants records apparently showed that they designed a promotional offer and there's no question about that that's fine she can testify about what the promotional officer offer would have  and that they said it should be mailed out to all these people on the list say it was a list of a thousand persons that's fine she can testify to that but she didn't mail it and there was nothing from the other company trying when the mai company said they mailed it and there was nothing from the defendant to say we know it was mailed because we got responses back and there was no there was simply all mislead was able to say was that based upon what our records show it would have been mailed out but she cannot say it was me all out anymore than you can say that my office mailed something out perhaps if you got it in the mail you could say it appears my office did it out because you got a copy yourself but we don't have this this situation here there's no one who said they ever received this promotional offer no one testified my client said she didn't recall receiving it now true it's you know years back and we get tons of these kind of junk mail things all the time so you know it's some whether someone can even remember at this point it is difficult to say there's no way we could get around that problem but they could have found someone who could attest that it was actually mailed out and they did not know returned to the defendant and put into their fowls why would need be appropriate for someone from the diff in this company to access those records and the instate that those records were given to them in the in the context of managing the promotional well why isn't that a business records exception to the hearsay this several cases we cite the block case and the davis case and the addressed this point the problem is the business record is the defendant's record of what the promotional offer supposed to say and how mailing list of who is supposed to get this so it's not that something's being returned to them that was already in their possession what they gave they gave those copies i presume of those ten to try when if we take her out a word and we say and they said mail these out to everyone mailed this example are ok that's fine but we don't there's nothing being returned from try when saying this confirms we have mailed to the thousand people on the list there's nothing if you study her declaration carefully  you'll see there's nothing she's because she specifically says she got anything back and she have to say that to see if she said that the third party mail house printed and mailed the firm offices offers this she have to have a copy of something that was she said from her own personal knowledge well that's the problem she doesn't have any personal knowledge the case we cite if she attest that she has to explain hello someone would have personal knowledge so yes if she mailed it herself or someone or company she would say it's pretty it can be assumed from those facts she would have some basis of personal knowledge but if an unrelated company at a different location mail something out or is told to mail something out that does not give you another fax to support personal knowledge of  is not sufficient or has to be supporting facts there are no supporting facts in her declaration it was crafted very carefully not to say more than she could really say and to say what they needed to say they put it in  foundation so there's something of a tension between what some courts say about all fifty six and what other courts say but the bottom line is if there's no evidence it is evidence that down the road there will be no president of a company saying that according to my employees this is what happened and the court basically said well he's a president he's going to know what's happening in his own company and he can there's no there's no evidence someone from his own company isn't going to come testify the problem is they got this other company mislead doesn't work for trying when she's not the president of the company has nothing to do with it well but is there any evidence in the record that the defendant could later present the evidence in the form will trial from trial if you have a company we don't even know it exists ok all she says is it was mailed out by a company called quote try when this there's no evidence as to the existence of this company there's no evidence they will show up so the answer to your specific question is yes if you're the president of the company there's good reason to believe that you or your employer will be able to testify at trial however if you're the president of company a that is no basis for you saying that company b will show up at trial there's no relationship between the two if they can't even get a declaration from someone in this trial when then what makes you think they can have someone actually come testify at trial from trying when there must be several issues explored in the context of the summary judgment motion on the issues you're raising now in terms of whether or not someone from traveling and could be produced or whether or not the business exist with those issues explored in the district court i made the objection but these particular issues about whether or not the at the gate it is miss will is inadmissible based on the fact they try when and that there may not be an opportunity to follow up at no idea i'm not asking if there was an opportunity conduct discovery i'm asking you did you raise to the district court judge these precise issues yes i about whether or not there would be the likelihood of precise point that you're raising here today was that precise issue raised before the district court i did not say in the specific words to district court i don't and leaving caught there was even oral argument this is already in their opposition in my reply i said who is trying when we don't know you know we don't know anything about this company but i don't know what i specifically said they would even show up i didn't even know they existed or not what the issue is in my mind the issue is whether or not the affidavit should be allowed out on the premise that at trial it miscible even if we assume this is hearsay and trial and miscible evidence could be submitted that would alleviate any concerns about issue to me and i'm i'm concerned that if this issue was not raised in aired at the district court then perhaps it's not one that we should really give a lot of credence to because here about traveling and not even being a company and the inability of someone to come in at the trials to certify the information that was in the affidavit or is that argument made in the district court plus it or implicit time limitation between pouring a credit report in the open offer of credit and at the district court the plaintiff initially took the position there some thirty day provision but we know that that's not in the statute so they've kind of backtracked on that and now they're arguing for a kind of more nebulous reasonable less requirement that can only be determined by a jury which of course would provide no certainty for anyone in contravention of the statute this statute does have timing provisions they have thirty days a provision sixty days and even a reasonable as twenty provisions but not with respect to what is being sued on here and obviously congress could have imposed a timing limitation if they wanted to but they did not to to for them to retain liability under sixteen anyone in council opposing counsel is more fundamental argument is that the league declarations should never think considered in the absence of the league declaration there is no answer is no on page sixty of the e r he doesn't discuss try when but he does not say i don't think someone from trial and could come in and testify at trial and of course they did not you know this wasn't a surprise how we were going to prove this up they did not serve any discovery they preferred to do is kind of sit back and try to only form over substance but address your point on the specific similarly declaration i think they have mischaracterized insane she's trying to you authenticate and get it mitt in someone else's business records but that's not what the declaration says the declaration says that she reviewed access if she's an employee of access which is that her consumer report was pulled for purposes of sending the mailer and then she attaches the two examplar mailers to your declaration so i mean this is this is how you prove up a defense in this respect and at that point the obligation shifts to the other side to either you know raise a disputed fact related to that or if they believe that she was not  why did they not serve us discovery request or ask for her deposition you can't sit back and just kind of speculate about what she knew or didn't know or what other records might be out there but she tried when was the one that sent out  mailers there's no question about that but her own an affidavit or her declaration says that access record shows that it was sent so we think that that is certainly capable  even if you say well there may be some question about the admissibility of the declaration as it is certainly at the time of trial you could come in and have some oil and produce the underlying business records to the extent that they were necessary  but this was mr merger and it seems to me that the argument your opponent is making is that levy was not in a position to be able to testify that she said the male it would have to be somebody some other organization would have had to do that what's your response well you know there's no role i don't really understand that argument because she is in the marketing position at access so she the one that oversees this entire process as as explained in her declaration so i think to get back to maybe i was appointed to her aunt's and made earlier you know it's possible that and again this isn't in the record but it's possible that tribal and sent verification to access and that's the basis for her knowledge to me she simply testifies that based on her review of the records it was sent so i don't i don't really know that any more is needed then that your honor but i think that when you have someone that is performing the marking function as ms lee was that's that is certainly within the realm of her knowledge i think the case that they point to was when you had member testifying about how a prison operated and that just that didn't make sense for that person to be testifying in that respect but that's certainly your honour's we believe that the lead declaration it was it was not an abuse of discretion for the court to consider that and for all the reasons we explained on the legal issues which i didn't really hear being that being challenged today that certainly the court's decision should be  thank you let me be clear that this is it was a surprise that they were going that the they were going to rely solely on evidence from a woman who never mailed anything to anyone that the mailings went out i didn't necessarily think it was going to be a big issue it wasn't even a focus i was focusing on the legal issues at that time so when i saw got their opposition in the reply we made proper evidentiary objections on the road to peace x which does require personal knowledge it's right in the statute but that case if someone swears to personal knowledge that generally is adequate in this or kirk case sh a case you are specifically says it is not adequate unless the underlying support the personal knowledge that is if she says that she looked at their business records and the business records contain the information she's swore to by the promise she didn't say what she looked at she might have just looked out the packet they sent to try and win the mail then assume they were mailed we just don't know if the court reverses they'll have a chance to present better evidence that the end of the day for them and then the case and whether or not they still exist or anything like that but i made it every day ensuring objection and burden is on the moving party to come up with an exception to the hearsay rule and they've relied on the business record if that's true and their personal knowledge is a specific time limit that a company has to send a promotional offer once it's obtained a consumer report for that purpose but there is a connection requirement if event a occurs today and event b caught  in one hundred seven days can it be said that event b was in connection with the event eight maybe it depends on a lot of facts a different depends on what the events were why there was a delay in all that that's the trial the issue of fact here i'm not saying this is specific timeline or deadline but he seems to be saying there is he seems to be arguing that as long as that event b ever happens if they pull your consumer report today and a year later they send your promotional offer that's ok because there's no specific timeline that there is no specific timeline but there is a connection a nexus whenever it's said that something has to be connected to something else that's a factual issue factual issues are normally to be decided by a jury not by a judge as a matter of law why as a matter of law is it ok to wait one hundred seven days just because there's no specific deadline that should go to the doctor the jury should decide to have a case of whether or not something is done in connection with another event is a matter of law a question of day i would say probably as a matter of law the two are connected if they mailed the ten years later maybe as a matter of law they're not connected to have a case and this is it there's nothing you're on is no case on this part of the law it's a completely open it's a blank slate right now you're faced with a situation where a judge said as a matter of law if they weighed one hundred seven days as a matter of law that's ok it's can never be a violation a i'm sorry did you make the in connection with our going to the district court that that was a matter of fact yes yes this was thoroughly briefed on it before the district court and it's also been well briefed by both sides on this matter but let me just if i can just give us one last know i'm finished there's an abuse here that could occur and that and that's what we really should be looking at is is this doesn't even matter who cares or is there some way this is abuse is the law it can abuse along this is what they can do companies can do if they want to extend a promotional offer of credit to a a large group of consumers but they would prefer to do it to certain consumers better credit profiles then the worst credit profiles they can go buy  ball ten thousand names and divided them into groups and then they can send out the first batch of offers to the best credit people and if they get enough business that way then they don't maybe they don't need to send the rest if they don't then they want to stock interior and so on and work their way down which means they're fishing don't hope point of this law is to stop companies from hitching from pulling people's credit reports and then picking and choosing who they want to get the disposed to send them to everyone at the same time making the exact same offer to everybody that's explicitly in the statute now we don't know that's what their motive was we don't know why they did it because there was no evidence they never presented any explanation why they