decades before so clapper didn't change the law regarding article three stand you know i think honestly if there's one point to take from clapper it's that it's what you would describe as your stereotypical standing case so it's a case where somebody brought a a lawsuit was to strike down the law in effect to legislate through the courts and you know in clapper number one they applied and especially stringent standard because of the nature of the of the issues before it because it was an attempt to strike the purpose of the court held that these it organizations had standing based on the fact that some person even though there was no identification of that individual in the future may bring a lawsuit under those voting  ecause i think everybody will concede there's that that's an interesting issue for us to talk about but this is in addition to the violation the what you're talking about is maybe somebody is go get her down the road if they misuse the data that they got these tell us that allegation right well i think the allegation is that they've already been damaged by the fact that their information was stolen and i do think that the facts of this breach are important because it's something that the a car stereo and a laptop i'm sorry actually there was backup tapes contain personal information this is an instance where somebody walked into the largest health insurer and new jersey and sure with three point seven million individuals in a negligent treatment you can imagine if nothing if there's no risk of harm that comes from it for some reason you wouldn't have a case right would have standing i thought i thought you were arguing that this was targeted does of obtaining the personal identifying information and personal medical information such that the risk is greater in this instance than it would be where cars broken into whatever series take it absolutely and that's exactly what who and i think we're pretty familiar with the facts there were a number of tests of laptops and the only allegation we have about anybody being compromised identity compromised is mr redner that's the only allegation we have in front of us so one could infer that unlike neiman marcus the point of the facts was not the data but the laptops so i'm not sure that this helps your argument necessarily i believe that the most logical inference you know given the facts i stated and the fact that they found two computers containing the personal information of eight hundred thirty nine thousand plus people on computer hard drives in that building you know broken disable the cable locks and left without being seen on the security cameras supports that those laptops specifically targeted ok for the information contained there on my mean but what it what do you do how do you respond to judge jordan's concern about certain certainly impending harm especially in light of reilly we have a precedent that  the language rightly appellants allegations of an increased risk of identity theft resulting from a security breach are insufficient to secure standing does that mean that we just talked to us about what are we to do with that language well i think that again i think it's a you know as an all standing inquiries it's a fact based inquiry i believe the facts here based upon riley's own language are significantly more in favor of back to the risk of harm cases five years has passed since reilly we you know just you know based upon the allegations of the complaint it is common knowledge data priests are real problem right now we know a lot more about what's going on there real black market that exists for this data and it's harming it's even spokeo the court said after citing clapper the violation of a procedural right granted by statute can be sufficient in some circumstances to const to injury in fact in such a case of plaintiff need not allege any additional harm beyond the one identified by congress is that our case that's exactly our case the figure was passed in part you know so to protect the privacy of information provided to the consumer purporting agencies i mean that's the information doesn't really talk about protecting the information so how can we find if we try to decipher what's broke he was telling us you have to identify presumably does the via the statute separate sort of a substantive right and if the substantive right here that you claim was violated is the provision that says a covered agency should not furnish information but here we don't have a furnishing we have a set so what right is implicated by the statute but i believe that th experienced myself and it's spokeo is something of an opaque decision but i think i can help i can try to help the court walk through these how i view this application here good one what it should begin by helping us with the injury constituting harm being certainly impending that was a standard that the court of plied which which feels a little different that material risk of harm doesn't it's it sounds a little different i would i would venture to say this your honor in cla court has a very long and detailed analysis of the issue as to what constitutes enough evidence enough information to be sufficient to support standing in the court uses it settles on the certainly impending standard clapper it could sound different my view of it your honor although there's no explanation of that in skokie decision itself is that the court was not trying to alter the standard in any prior decision it was using frankly shorthand to talk about some risk and there is no because there's no conclusion is that it doesn't in the end make a material difference whether we're talking about the material rest or or certainly impending standard in caught in copper and here's why so what spokeo says i think clearly is that the mere violation o be real and not abstract plan can be a risk right it could be a risk of real harm because just being asked quoted perfectly the language where the court talks about a violation procedural r injury it's referring to it's justice who does own decision could you comment on justice thomas concurring opinion where he talks about the difference between enforcing private price and public rights and that in certain circumstances the invasion of a private right you know that itself without any other allegation of actual harm would be sufficient to confer standing and then he gives an example trespass as an instance of the invasion of a personal right there can be and for which you have standing to sue even though you have not suffered actual harm right and i think i would i would comment on his his opinion by referring back actually to the majority opinion because it does dovetail back into asserted is the kind of injury the courts have typically historically recognize or and sometimes may be relevant look at congressional intent behind what congress and that's what we're dealing with here right i mean exactly it's well and know what was it stating they had just described some things about this fellow that was it there was nothing else going on right and that was enough for the court to say maybe that's concrete you take a look at it actually section fifteen u s c section six hundred eighty one he is the reasonable procedures provision and it talks about having companies put in place procedures that require prospective users of the information to identify themselves through a for the purpose for which the information is sought sort of by the information will be used for no other purpose there's nothing in there about protection from it like it's about to judge schwartz is question the improper furnish suit it's just not good on that doesn't mean the law that's a good question but in this case i think the answer is no because the supreme court the majority opinion spokeo does say for standing purposes under twelve b one when you're trying to analyze whether or not plaintiff even has subject matter the level of injury for purposes of injury in fact for purposes it's been sixteen eighty one subsection b it's talks about the purpose of this sub chapter is to require that credit reporting agencies adopt reasonable procedures break in quote with regard to confidentiality so is there anything that we can take away from that and how it overlays on the furnishing provision exactly right here on our company shall be with regard to whom it's about with to whom the credit reporting result procedures provision the kind of harm the harm that the congress intended to be elevated to the level of injury for purposes of standing and the fifth circuit does have a case of i if i may or which was not cited the research projects but since this issue is emerging the crowd and concludes that the harm this is a quote the harm figure it envisions is disclosure not that reasonable procedures were not followed and then something about happens well that you know that just feels so much like  admission of liability but not liability it off but a recognition that there's a risk of harm and so what does it prudent person do to avoid the risk of harm they procure insurance was as to things a that's a good question about two things on that first of all the court did address this and really did consider the fact there was credit monitoring offer there and didn't act about it as something that would suggest a risk of future or harm or over that and scream court decision in class where the court did observe that even though even spokeo word or nickelodeon which we can talk about as well the facts alleged not the speculation alleged but the facts alleged not are so in both adobe and in even marcus the two for putting aside whether the might reasonably if you're viewing all the facts only most fail to the plaintiffs might say they didn't take those laptops at random they took those laptops because they had personal identifying information so  are on different right so let me this very important i know my time is up after that question because these are two very important things i think i should i should add on this point point thing one is riley five years old which is which is not that old and indeed has been a leading president in this space ever since it was a cited not only that but the legal standard applied by this court in riley is almost verbatim the precise same standard applied by the supreme court in injury under spokeo because the allegation of injury there was one i was talking about before this the kind of injury that was recognized historically or that congress intended to be remedied here and that injury was the decided on is unlawful disclosure closure really protecting precisely a lot of disclosure the firman of disclosure which is exactly what it is about the unlawful disclosure not about the fat yes one more sure i'm going back to justice thomas opinion and he said in that case they're dealing with section six hundred eighty one b said require spokeo to follow a reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates if congress has created a private duty or personally to robyn's to protect his information then the violation of the legal duty suffices for article three injury in fact is that the nature of the inquiry we should undertake with respect to the allegation here the alleged violation here whether or not no question that the recognition that in some instances the violation of the procedural right created by statute in some circumstances would be sufficient and the question i think is is this type of statute we have here i don't in this case because the thing disclosed has not caused injury there's no injury in fact under riley are we because i think just asking suggesting we should look at them separately are you suggesting we should look at them i think companion i think you can look at them both separately speculation about getting it some other way his second fact is that somebody filed a fraudulent tax return and his name was used me and his and his wife's name but as we've also argued his wife's social security number which would be needed to file a tax return was not even was not alleged to be on the phone laptops and comes up with with arguments in his brief as to how well somebody could have gotten her social security number fact that we did not lessen the complaint that his wife's information was in there you know doesn't mean that the income tax return the fraudulent income tax return was not as a result of the theft we notified the district court and i know it's not rev or if we were it would be given leave to amend or we amended we would have alleged that the his wife still security number was provided along with the application so to state that hey we need to jump through all these hoops and come up with an alternative source of data rigorous information was in the returns we do allege you know more than plausibly that it came as a result of the breach and the fact that his wife's you know that's specific allegation wasn't in there especially for  markets are argument was that the the letter for guarding the data breach and the off of the credit monitoring one of the comments from judge what there was that you know doing so it was a recognition that there was a real risk of harm because otherwise the defendant you know they're new in markets would have been acting in an economically rational manner and that's true here too as this leverage to real risk real or certainly  i think it's always been on a sliding scale but a real risk of harm or material risk of harm or an actual risk of harm i mean if you look back through the decades that the language that's been used just as  story well i will say in the in the in the p f chang's case there was a dispute between the parties as to whether the information was actually in place and information was actually solon and whether that information cost any harm have you know i think our applications established got a sophisticated that at the very least i mean it's still a laptop from health insurance caters quarters with cameras and twenty four seven security to choose those two laptops again authorize