good morning martin and i are pleased to have our colleague from the district of columbia circuit judge great catch us here again with us this morning he's  he's taking on extra work back coming in and helping us for no extra pay and we're grateful for that and we learned a lot from having colleagues from other courts  o with us and maybe some day we can return the favor right thank you very much ok we're going to kind of start where we left off get straight to the heart of your argument in the limited time that's available to you pay attention to the traffic light system red means stop now if you're finishing an answer to a question yesterday i had an advocate was quite aware of that that was mindful of it and wanted to give out that time and ended up having a minute less of rebuttal but consciously made that decision that was very well done by that lawyer and i appreciated that but usually lawyers don't want to do that so just be mindful of our time so our st case is cooper versus mental in credit  good morning your honors my name is david chammy and may please the court i represent the appellate keith cooper both individually and in his role as class representative for consumers similarly situated in the state of  georgia i know that your honor stated that you've looked at the briefs and read the briefs but would you like a brief recitation of the facts i don't know that that's necessary as you know the court posed to the parties a question of just disability standing and that was not something addressed in the brace but as you well know that's a threshold issue subject matter jurisdiction the power mr nikolaus had violations of the statutes that harmed him in the past or put him at risk of any future harm and so some of the considerations in a cloud were whether or not there was any risk to future harm right now whether was any real risk of future harm and t law recognized that there can be bait based on a violation of law a risk of harm to an individual and and  that gives rise to a statutory damages remedy one question though is it's one thing to say that there was a risk of harm when the violation occurred but when the complaint is filed it seems to me that the standing case law from the supreme court tells us that we have to evaluate whether the plaintiff has either suffered an actual injury in the past correct or is today as of the day of the filing of the complaint at but i think the supreme court stated that that congress has the power to or at least that it's we should be looking at it as instruction their intentions and the f t c p a for example is intended to protect the least of us the key to consumer from deceptive and misleading information not unlike the havens case this report talked about truthful information well misleading and deceptive information can also be untruthful  but and that is the harm right i mean the statute as defines the harm as the receipt of deceptive communications about it and and that's precisely our argument your honor and here's why and here's why so until mr cooper hopefully many many distant years in the future passes this particular that buyer or any future that buyers who they may sell the debt to can pursue him as long as they don't violate the f t c p s a and that's the issue that we have what hell is it that you could be entered by the receipt of misleading information if you are not misled well your honor this is an objective standard not a subjective standard so whether or not mr cooper himself was misled is irrelevant well the problem as i see it with that is that the supreme court's case law about standing requires us to address what whether there's an actual or imminent andry for the individual plaintive that is concrete and particularized particularized meaning specific to that individual so if mr whether or not mr cooper suffer harm is not something or whether he was misled is not something that can be decided or determined at the summary motion to dismiss stage mr cooper hasn't been given an opportunity and he has to allege enough facts to establish standing right in what we've alleged and i and i agree with that your honor and i agree that you need to allege facts so the proper assuming that the district court believed that there wasn't enough facts alleged to allow them to make that determination th stand here in the at the moment i'm not positive but i would i believe we did i just i don't think the record reflects that but just the complaint allege any injury other th receipt of phone a communication that you say is misleading the complaint as drafted states that it does identify what was misleading why it was misleading but in that doesn't allege that any later harm the fell mr cooper might have befall on him right well i think that he would have hired a lawyer or but he did hire a lawyer but that's how he got here i mean i think the reasonable inferences that he received a communication that caused him enough concern to seek legal help and i don't think that mr cooper needed to plead in his you don't think that's an injury i think it's an injury if a consumer receives that  the fact that he was receiving communications for attempts to collect on debts that were sold that he could no longer be legally pursued for them although the least consumer and granted as a lawyer i may understand the disclosures but most people i know don't understand here's my problem your client understands as of the date of the falling of the complying that that debt is not enforceable against them right as it obviously after seeking legal counsel he would be informed and was informed that make it could not say edges that it's not legally enforceable he clearly understands that of course that the advice of counsel by that point he understands it to did he have to pay the lawyer he would be responsible for legal fees of course for pursuing any claim was in the contention if the concrete andry and this is where i think we fall back on the supreme court's interpretation of receipt of truthful information when why the f t c p a s different than the new york statute at issue in  york statute in a cloud when is this court identified that that was protecting other individuals here or the f t c b is not targeting the protection of other individuals it's intended to protect the yes but the recipient and the reason is because that if the recipient gets this gets misleading information there's a risk that that recipient will then act on it and away as alleged in complaint the the plaintiff might for example be misled into believing that they needed to make a payment and as i understand the allegations of the complaint which we have to accept as true might might be lead in making that partial payment and to a decision that basically revives the debt is that right that is right and that i mean that's clearly alleged in the complain it seems to me the problem with that is that the plaintiffs allegations also establish that the plaintive understands that that is that something he shouldn't do hasn't done and won't well if if every play if only plaintiffs who have actually made a payment are the ones who have standing and you may never have an opportunity to get redress for consumers who have yet to receive these collection letters the intent is to protect not only mr cooper but other consumers and i have five extra minutes i'm going to roll over a little bit into my rebuttal time your honor ok but the intent is to protect not just mr cooper but consumers similarly situated who haven't had the wisdom to seek legal help and identify these who then have identified these collection letters and in fact in a way to be able to say it will have legal counsel tell them if the problem is that article three to case or controversy requirement s so that we're not just up pining about things that really just don't matter but this court already considered post pokey oh in church church be a creative health have considered considered in the context of the f t c p a the receipt of truthful information and i believe that's an unpublished decision out of the th circuit but the court did find post pokey zero but the f t c required truthful information and that gave standing to the plaintiffs in that case issues in spokeo would likely have given the i think it was justice thomas and the four dissenting incurring justices against berg sort of my or found that the information in and of itself had given the consumer standing in spoke o and didn't need to go right now because the information was pretty sensitive it was release of false information about the income the marital status the health of the individual right without easy to see why that's a concrete injury and the court analogized it the court said that would be tortious at common law this seems pretty different this seems like it's creating a statutory claim for fraud in a case where there is neither reliance nor resulting harm so i understand your honour's point except that like i the intent of the f t c v a is not to just protect mr cooper it's an objective statute which requires us to look at it from an objective standpoint so how would the least physically to consumer read mr interesting if the district court did not decide this though based on standing right now your honor you did not did not look at the law standing right correct but i don't know why you would want to start with the merits determination by the district court when talking about future heart as in the past i received misleading information that in and of itself congress has defined as an injury why isn't that enough well the receipt of the letter itself a how and to what end and to what you there's no allegations in the complaint that show how he was misled in what way and so you can see what he says it's a deceptive a letter but it's only it can only be deceptive if one is deceived or misled or could conceivably be misled them so that you know yesterday we had this exchange about you know ask your colleague does is it your position that trichet would have had to make a payment and ordered to suffer injury sufficient to have standing and he said yeah and then later he said he didn't understand my question what is your position about that does it do in a war in your view with this mr cooper have had to have made a payment in order to have an injury sufficient have standing under the statute he would have had to made a payment an order to have standing for the claim that he is asserting that the possible revival of the statute because that is a necessary condition of having a statute expired that revived but it's not even sufficient there are other ways other things under georgia law in a very state by state but under order to have standing for this claim yes sure i think the way it came out yesterday just prior to hypothetical back my colleague and said if the claim were stated differently and based on just to receive a letter or because i had to go hi lawyer said this does not enforceable against you then there's no standing that your position i think that's right your honor and so i have a i have a hypothetical and i know this isn't the facts of this case so let's just all that happens you know i go to a lawyer because i'm so scared about this letter and the lawyer says it's not collectible don't worry about it but i just don't believe the that i'm still worried about it is keeping me up at night i'm afraid the lawyers wrong and i bring suit say in all that standing there standing  i don't know that it would be standing i'm certain have to be plausibly alleged you know maybe emotional harm or something like that i suppose yeah i do that you know a lawyer has told me it's not enforceable but i inferrable from the facts that you make a determination on toby six about what you know whether i'm plausible about what whether i'm upset or not well if you're saying you're upset because you don't believe the plain language of a letter that is undisputedly true then yes but no no i mean we're assuming for purposes of this that this is i think i'm saying the letter was deceptive menorahs told me it's not collectible i don't believe my lawyer i'm upset about told me this is not enforceable because the statute of limitations has expired but i don't believe my lawyer then have you alleged that it's misleading using false information and things that are stepped up but the disclosure language itself is a true statement both of the law and what will happen based on millan's own policies there and he wouldn't have been sued so it's not a plausible allegation that it's just saying that it's deceiving or misleading doesn't make it so you have to say how plausibly alleged how it is misleading why was this misleading and what way and to what end here the allegation is that because they could have potentially tricked him into making a payment reviving the statute then being subject will bring the georgia statute back into it but that's what that's different because they didn't tell me if i have partial repayment robots the whole debt so that's still based on that the latter isn't isn't really sure starts worrying about his situation cardless of whether or not that would be a sufficient article three injury i didn't read the complaint as conditional and it's a big if if he had taken advantage of the options then he might be exposed and even then it was only be if he took advantage of the payment options in particular ways because of the ga statute the letter for example offers to call and make a payment over the phone that certainly wouldn't affect a revival under georgia law it also offers to make payment online and maybe argue whether there's a writing or you can mail pain and we can return the coupon it's not altogether clear and it's certainly not  that that coupon itself will be a sufficient writing under georgia law to affect revival of the statue of limitations he also could have instead of sending a check you could have put cash in the on globe as part of his partial payment plan and that wouldn't have affected a revival and statute so that's actual or imminent to be clear yes your honor but when we're talking about future injury it has to be an imminently impending and not based on possibilities or speculation and that's for clapper in this court's opinion the georgia republican party quoting clap standard mixes up the substantive standard for liability under the f t c p a a with the requirements for article three standing i think that is right i mean i think that's confusing but so i mean what you're talking about  case on standing and said the unsophisticated at least this is a consumer standard is a rule for interpret a debt collection letter to determine whether it is misleading it is not a rule permitting those who have not been injured to vindicate the rights of those who have and that's wh not because of the letter that he got not because it was deceptive or misleading they were he didn't talk to the lawyer about anything else but that deceptive the letter he may have another claim but it's not under the sixty nine to the f b i know it because there's nothing he's not to a lawyer because he got this letter and didn't know what to make of it and was concerned you think no standing well that that's a different question from the allegation of th alleges that and he paid the lawyer that's an injury isn't it yes you're right but that's not the facts that we have here and i think that makes a difference because of the claim that's been asserted and the lack of allegations directed to his particularized injury i know were over but i'm sorry just one quick question on the merits the district court construed this notice as making an unequivocal promise not to sue even if the company received a pain a partial payment fat revived the statute of limitations is that your position w that promise made in that way i think that yes my position is that the letter means what it says and if you were you are representing to us as an agent of your client that your client would not sue sent the letter and that's the letter and that's on it in the end because that's the servicing arm of its parent company which is just a holding company that buys the debt so that's middling funding it's not a party in this case but that's the structure and so middle of funding doesn't help one person as  ok thank you that he understands that that's not true well of course but they're going to still and can still attempt to collect from him in the future and the fact that he and he won't be misled because he knows that he knows the truth and understanding your honor that he entered he understands that that a partial payment could revive the statue limitations and that the statute of limitations has expired of course and that therefore he's not responsible for and it's not an enforceable debt but again we cannot turn an objective statute into a subjective statute it's whether the communication itself is not something about the statute i'm talking about whether he suffered an actual injury or he said imminent risk of suffering line and it's whether he suffered an actual injury at the time he received the letter wrong and i understand your point about that so your point is i mean this case really rises or falls doesn't it on whether the receipt of that communication which you term misleading is in and of itself an actual injury for purposes of article three correct and  is then then you have standing if it's not be done based on nick allow and i think the way this conversation is going i think that's the way the court well i mean look if we push back if there's something more here that i'm missing let me know what it is so so i think if we were to take the f t c p a at its face and say that as soon as a consumer learns or becomes educated  about the language in the agree or the letters that is misleading they therefore now have i guess they're no longer misled and therefore they can never have standing i think that's a problem because then the in that argument the problem with that argument is that that would require us to say well if congress has said that this is a problem that needs to be remedy that we have to defer to their decision about that for purposes of basically policing our own understanding of the case or controversy requirement of article three and it is been it's been true since almost the founding of the republic that congress has tried to give the federal judiciary jurisdiction over things that the federal judiciary has decided it doesn't have the power to decide under article three that's what you  know what were those cases about the invalid the revolutionary war wounded who wanted you know the congress was going to create a process where the wounded from the revolutionary war kid could a pilot for a pension and after the courts decided whether they were entitled to it or not it would be subject to the secretary of war to decide whether to approve it or not and the supreme court said sorry you can't do that so we can't just defer to whatever already said to us though that if you have that this type of harm untruthful harm in disclosures is forgive standing i mean that's the havens case the consumer had no intention of renting an apartment your client just got this misleading communication that works your honor the plaintiff in haven's knew it was false and i don't i don't know that i regard it as worse if i go out and seek information and i'm told and i want the truth and i'm told are false i don't know that i view that as less of a harm and if i get a communication in the mail then i never saw it in the st place that didn't mislead me but it did  but i don't think that that is the allegation that it misled your client well well if there's a paragraph in the complaint essentially says he was see this information it was misleading and he was harmed by it because of the because it was misleading it's a