[00:00:01] Speaker 02:
Okay, each side will have 10 minutes for argument.

[00:00:03] Speaker 02:
I understand that the appellees are wanting to split some of their time.

[00:00:08] Speaker 02:
You'll be required to manage the clock.

[00:00:12] Speaker 02:
And if the first person arguing runs into the second person's time, then that's just gonna be what it is.

[00:00:20] Speaker 02:
We're not gonna split the time for you, but you can watch your own time and then divide it as you wish.

[00:00:25] Speaker 02:
And Mr. Thompson, if you'd like to reserve some time for rebuttal, you may do so, but please keep time for yourself.

[00:00:32] Speaker 02:
You may begin when you're ready.

[00:00:34] Speaker 01:
May it please the court.

[00:00:35] Speaker 01:
My name is Russell Thompson and I represent Ryan Six.

[00:00:40] Speaker 01:
Six challenges multiple orders on appeal, but I'll begin with discussing why the district court erred in granting IQ summary judgment on the basis that Mr. Six lacks Article 3 standing.

[00:00:52] Speaker 01:
First, Six suffered an intangible harm similar to intrusion upon seclusion.

[00:00:58] Speaker 01:
and analyzing intangible harms for standing, the Supreme Court directs courts to give deference to Congress's judgment and identifying and elevating an intangible harm to one worthy of statutory protection, two, to determine the kind of harm and if it has a close relationship to a typical type of harm, and three, that courts must not require an element for element perfect match.

[00:01:23] Speaker 01:
The Constitution empowers Congress to decide what degree of harm is sufficient, so long as that is similar in kind to something found at common law.

[00:01:32] Speaker 02:
Does the standing analysis change at all by the fact that Mr. Six actually sent a letter requesting documentation of the debt, that he invited communication

[00:01:46] Speaker 01:
If he had invited communication, it might change the standing.

[00:01:49] Speaker 01:
But in this situation, Mr. Six did not send any letter to IQ.

[00:01:54] Speaker 01:
Mr. Six sent a dispute letter to a credit bureau to dispute a debt that was reported on his credit report.

[00:02:01] Speaker 01:
That was by a different council that was representing him with respect to the debt prior to I only became involved in the lawsuit.

[00:02:08] Speaker 01:
But my understanding is the reason for that is that credit bureaus can simply reject disputes from credit repair companies as frivolous so that they're sent often in the name of the consumer.

[00:02:20] Speaker 01:
But taking a look at the letter itself,

[00:02:23] Speaker 01:
that I think we point to in the reply brief.

[00:02:26] Speaker 01:
It's very clearly directed to the bureau and not to IQ data.

[00:02:30] Speaker 01:
It's asking for a response from the credit bureau, and that's simply how the Fair Credit Reporting Act works anyway.

[00:02:37] Speaker 01:
You dispute with the credit bureaus, the bureaus send that investigation to the furnisher, and then the furnisher responds to the bureau, who then responds to the consumer.

[00:02:46] Speaker 01:
The other thing that I think is important here is to look at the actual letter that IQ sent, the offending letter

[00:02:53] Speaker 01:
is not a response to a dispute.

[00:02:55] Speaker 01:
It doesn't provide any verification of a debt.

[00:02:58] Speaker 01:
If you look closely at it, it's an initial correspondence under the Fair Debt Collection Practices Act.

[00:03:03] Speaker 01:
It has the initial notices required by section 1692 GA that are required to be sent in an initial communication or in writing within five days after.

[00:03:11] Speaker 01:
It contains the E-11 language, known as the mini Miranda, that's required in every initial communication with a consumer.

[00:03:20] Speaker 01:
This is just an ex post facto argument

[00:03:22] Speaker 01:
to try to avoid liability here, but it's very clear that IQ data was not responding to any request to a dispute.

[00:03:29] Speaker 01:
They were sending a collection letter thinking it was the initial communication being sent to him.

[00:03:34] Speaker 04:
And if I may jump to a different issue because you have short time, one of the issues that you raise is whether the district court incorrectly converted the motion for partial judgment on the pleadings into

[00:03:52] Speaker 04:
into something else.

[00:03:56] Speaker 04:
And my question is why the ruling on that motion has any relevance because discovery was completed, motions for summary judgment were filed, so why didn't that just kind of get overtaken by events and such that we don't have to decide that question?

[00:04:15] Speaker 01:
Well, I think the motion for judgment on the pleadings was a crucial point in the case.

[00:04:20] Speaker 01:
It kind of involves the sanctions that issue here as well, because it was only filed to push the issue of Rule 11 and whether Mr. Six had standing outside of the threat of Rule 11 motions.

[00:04:31] Speaker 01:
By the time it was filed, the pleadings had been closed, and these accusations of Rule 11 violations were just hanging there over and over.

[00:04:38] Speaker 01:
I think the District Court of Pines in one of the transcripts

[00:04:41] Speaker 01:
You keep raising it, you keep threatening it, and I haven't seen a dispositive motion on it.

[00:04:46] Speaker 04:
So what relevance does that have now that we've gone past that?

[00:04:51] Speaker 04:
I guess that's what I'm wondering.

[00:04:53] Speaker 04:
Why do we have to figure out whether the specific procedure of calling one thing another thing matters anymore?

[00:05:01] Speaker 01:
I mean, at the end of the day, I don't think it's the most important issue on appeal.

[00:05:07] Speaker 04:
But why isn't it sort of gone?

[00:05:10] Speaker 04:
now that we're at the end.

[00:05:12] Speaker 01:
Simply to avoid it in the future and to clarify the standard for pleading affirmative defenses, one of the arguments we make is that Twombly and Iqbal apply to affirmative defenses, and that that's relevant because people assert, defendants assert numerous defenses, give no basis, and there's a limit of 25 interrogatories.

[00:05:30] Speaker 02:
So you really have to... Is the relief that would be granted by a motion to strike an affirmative defense any different from the relief that would be granted through a motion for partial judgment on the pleadings?

[00:05:40] Speaker 01:
I think maybe there's more entitlement to amend on a motion to strike.

[00:05:45] Speaker 01:
A motion to strike can only be filed within certain time limits, and at the time the motion for judgment on the pleadings was filed here, it was 53 days, I think.

[00:05:53] Speaker 02:
You were asking essentially to strike the affirmative defenses that were in the answer that you felt were not sufficiently, that didn't have any, the failure to state a claim, right?

[00:06:08] Speaker 02:
There were like I think five,

[00:06:10] Speaker 02:
different from the defenses that you were seeking to get judgment on.

[00:06:13] Speaker 02:
So the relief would have been the same whether it was treated like a motion to strike or a motion for judgment on the pleadings, right?

[00:06:20] Speaker 01:
I think they would potentially have a much better argument for a leave to amend on a motion to strike, because it could be more of a, on the motion to strike it's more of a failure to state a claim sort of a thing, and judgment on the pleadings, seeking a judgment.

[00:06:34] Speaker 01:
You know, many years ago in an unrelated matter it was similar to a counterclaim.

[00:06:37] Speaker 01:
We kept filing motions to dismiss, they kept getting granted, they kept amending.

[00:06:41] Speaker 01:
Eventually you have to move for judgment on the pleadings and get some finality on it.

[00:06:45] Speaker 02:
Okay, so what standard of review should this court apply when determining whether a district court properly

[00:06:51] Speaker 02:
construed a motion for judgment on the pleadings as a motion to strike?

[00:06:56] Speaker 01:
Well, in determining the resolution of a motion for judgment on the pleadings, our understanding is those are reviewed de novo.

[00:07:03] Speaker 01:
But I think even under an abuse of discretion, the Corps abused its discretion.

[00:07:07] Speaker 01:
It was not moved under that rule.

[00:07:10] Speaker 01:
We specifically opposed that in reply.

[00:07:12] Speaker 01:
And as discussed, we couldn't have even filed a proper Rule 12F motion at the time because it was precluded by the federal rules.

[00:07:23] Speaker 01:
If I can, I'll just, I guess, reserve the remaining three minutes.

[00:07:27] Speaker 02:
Okay.

[00:07:27] Speaker 01:
Thank you.

[00:07:28] Speaker 02:
Ms.

[00:07:31] Speaker 02:
McManus.

[00:07:45] Speaker 05:
Good morning.

[00:07:45] Speaker 05:
May it please the court, my name is Erin McManus on behalf of IQdata.

[00:07:49] Speaker 05:
And I would like to reserve three minutes of my time for my co-counsel as I would be addressing the first issue and answering questions as it relates to the issue of standing.

[00:08:00] Speaker 05:
And she would be able to address issues two through six as it relates to the other issues on appeal.

[00:08:07] Speaker 05:
But I obviously can answer questions as well if something comes up.

[00:08:11] Speaker 05:
And before I start on the substantive arguments that I would like to address, I do think it's important that I address something that was in Six's reply brief, as I think it's pertinent for the application of fact to law.

[00:08:26] Speaker 05:
On page nine of the reply brief, Six asserts that when IQ data sent him a letter in the mail, that Six received a text slash push notification.

[00:08:37] Speaker 05:
on his cell phone.

[00:08:39] Speaker 05:
And I just want to clarify that that's not what the record reflects in this matter.

[00:08:44] Speaker 05:
And that's not what he, when he cites to the deposition of 6, he starts on page 89 of the deposition.

[00:08:52] Speaker 05:
And there's no mention of any push or text notification.

[00:08:56] Speaker 05:
But the deposition page immediately preceding that discusses that 6 testified that he receives an email

[00:09:06] Speaker 05:
through the postal service when a letter is received.

[00:09:10] Speaker 05:
He never testified as to any text or push notification.

[00:09:15] Speaker 05:
And while the full deposition transcript was not part of the record, but as this was brought up, we certainly would be able to provide that to the court if the court feels it's necessary.

[00:09:28] Speaker 05:
But as it relates specifically to the issue of standing, we believe that the district court correctly found that there was no concrete injury here.

[00:09:38] Speaker 05:
And that's mainly for three specific reasons.

[00:09:42] Speaker 05:
First, the injuries that were alleged, to the extent injuries were suffered at all, were emotional injuries.

[00:09:48] Speaker 05:
And as this court has previously found, emotional injuries are not sufficient to confer standing pursuant to

[00:09:55] Speaker 05:
an FDCPA case as the Adams case that was specifically referenced in our brief.

[00:10:02] Speaker 05:
And the second issue that the district court correctly determined that six did not suffer a concrete injury and therefore had no standing was pursuant or based on the injuries alleged by six.

[00:10:16] Speaker 05:
He would also need to show that IQ data was the proximate cause of those injuries.

[00:10:22] Speaker 05:
And the record reflects that to the extent 6 was injured, the injuries were relating to the underlining debt itself, not the violation that was alleged in the complaint, which was that IQ data inappropriately sent a letter to 6.

[00:10:41] Speaker 05:
Larger reason is that while it is possible and it is can intangible injuries can be elevated to a tangible injury sufficient to confer standing on a concrete injury.

[00:10:53] Speaker 05:
But for that to happen, the injury must be so closely related or akin to the type of injury that is addressed and heard by the court system.

[00:11:05] Speaker 05:
Now Six asserts that receiving a letter in the mail was an invasion of privacy, specifically intrusion upon seclusion.

[00:11:15] Speaker 05:
But we believe the district court correctly found that that is not the case.

[00:11:19] Speaker 05:
Now we know that Six in his briefings cite to the Hall case, but we believe that holding is misstated.

[00:11:28] Speaker 05:
In fact, that Six asserts that the receipt of an unwanted communication

[00:11:34] Speaker 05:
is enough to confer standing.

[00:11:38] Speaker 05:
But what the holding in the Hall case actually said, it was a telephone TCPA action, and the holding was that when somebody was on a do not call list, the receipt of phone calls or text messages in that case was specific to confer standing.

[00:11:57] Speaker 05:
There is no mention or discussion of any letter that was being sent.

[00:12:01] Speaker 05:
However, we believe that the district court

[00:12:04] Speaker 05:
correctly applied the other circuits in this case, specifically the 7th and 8th circuit and the holdings there, the Ojaba case and the Pachio case that we cite, and those cases found that

[00:12:19] Speaker 05:
The receipt of a letter was insufficient to confer standing because that's not closely similar or related to an invasion of privacy matter.

[00:12:29] Speaker 05:
Because when you receive a letter in the mail, you have control over when you go retrieve that letter from the mailbox.

[00:12:36] Speaker 05:
You go at a time convenient for you.

[00:12:37] Speaker 05:
I mean, to the extent you even want to go to the mailbox that day to retrieve a letter.

[00:12:43] Speaker 04:
Is that a fair distinction, though?

[00:12:45] Speaker 04:
Suppose instead of a single letter, which is what happened here, and potentially not even intentionally, although that issue's not before us, that's one thing, but what if you get daily letters from a creditor, one after another after another, and you don't even open them, but isn't that potentially a cause of stress or invasion of your...

[00:13:14] Speaker 04:
personal space.

[00:13:16] Speaker 05:
Yeah, and all the cases discussed, it is fact specific based on that.

[00:13:20] Speaker 05:
So, I mean, I do think if you're potentially receiving a letter every day for two weeks, three weeks, or possibly even a shorter period, that would possibly be sufficient to

[00:13:31] Speaker 05:
But I believe the cause of action would be a different violation than what was alleged.

[00:13:37] Speaker 02:
Are you then now talking about a difference in degree as opposed to a difference in kind?

[00:13:41] Speaker 02:
I mean, we're not to look at whether or not there's a difference in the degree of the annoyance or the intrusion, but just whether the kinds are similar.

[00:13:48] Speaker 02:
So a phone call similar to mail.

[00:13:51] Speaker 02:
And I think the argument you make, which is mail is somehow different in kind because you can choose not to go get the mail.

[00:13:57] Speaker 02:
I mean, doesn't that also apply for a phone call?

[00:14:00] Speaker 02:
You can choose not to answer the phone?

[00:14:04] Speaker 05:
You can choose not to answer a phone.

[00:14:06] Speaker 05:
I mean, to the extent you've had your phone turned off or you remove it from the receiver, you obviously aren't going to know per se that there has been a phone call.

[00:14:16] Speaker 05:
But most of the cases reference and distinguish that you're still going to get maybe

[00:14:22] Speaker 05:
a beep notification or your cell phone, it starts flashing that somebody has called you and still interrupting your day to the extent you were at work, you're getting these notifications on your phone.

[00:14:33] Speaker 03:
To that point, counsel, and I know that you made comments earlier about they said this, but it wasn't in the record.

[00:14:41] Speaker 03:
I'm just giving you a hypo here.

[00:14:44] Speaker 03:
What if the individual does get pings on their phone whenever they get an email?

[00:14:49] Speaker 03:
And one of those emails is from United States Postal Service informed delivery, I think is what it's called, saying, hey, you have mail.

[00:14:55] Speaker 03:
And so it's popping up.

[00:14:57] Speaker 03:
And so they click on it, and they see, because those are generally scanned to you, so you actually see the letter.

[00:15:04] Speaker 03:
And they see that it's from a collection agency.

[00:15:07] Speaker 03:
Does that make it any different than a text message?

[00:15:10] Speaker 03:
That there is no photograph in a text message, presumably.

[00:15:12] Speaker 03:
It's just the text of,

[00:15:14] Speaker 03:
Hey, we're calling you on a debt collection.

[00:15:16] Speaker 03:
Please be advised that everything you say to us will be recorded and may be used against you, whatever.

[00:15:22] Speaker 03:
But here, they're actually getting a photograph.

[00:15:23] Speaker 03:
They see it.

[00:15:25] Speaker 03:
Is that different?

[00:15:27] Speaker 05:
It would be different in possibly bringing in the cases that more discuss the text messages because of a push notification you are getting an alert, but you sign up for push notifications or you can disable them on your phone.

[00:15:40] Speaker 03:
You can disable the text.

[00:15:42] Speaker 03:
You can put it on silent.

[00:15:44] Speaker 05:
Yeah, I mean, you could disable to receive text messages at all.

[00:15:48] Speaker 05:
And if that was the case, I do think the line of cases would be more applicable to what would be the text message and phone call cases.

[00:15:57] Speaker 05:
But since that wasn't what happened here, I think it stays in the receipt of letter category.

[00:16:03] Speaker 05:
And I would like the remaining almost an and a half for my co-counsel.

[00:16:15] Speaker 00:
I wanted to quickly address two of the questions that you had asked Mr. Thompson.

[00:16:23] Speaker 00:
First one is whether the communication that was sent out from SIX directly does invite the response.

[00:16:32] Speaker 00:
I think that it does.

[00:16:33] Speaker 00:
I think that CFR1006.6b2 addresses that.

[00:16:38] Speaker 00:
It specifically states that when a consumer initiates the communication, then there's

[00:16:44] Speaker 00:
an ability to respond.

[00:16:46] Speaker 00:
And then the definition of communication is defined to conveying the information regarding the direct indirectly or directly to any person.

[00:16:55] Speaker 00:
So I think the definition of communication as well as that regulation allowed this letter to go through.

[00:17:02] Speaker 00:
Additionally I wanted to address the motion for a judgment on the pleadings issue.

[00:17:06] Speaker 00:
I do think the district court properly converted that.

[00:17:10] Speaker 00:
First of all the request in that motion was only asking for

[00:17:15] Speaker 02:
dismissal of some, but not all of the- What's the standard of review on appeal for analyzing the district court's construction of the judgment on the pleadings motion as a motion to strike?

[00:17:28] Speaker 00:
I think because it was properly converted, that the standard would be abuse of discretion because of the proper conversion.

[00:17:38] Speaker 00:
If it was improperly converted or if it should have been a motion for a judgment on the pleadings

[00:17:45] Speaker 00:
then it might be the other standard.

[00:17:47] Speaker 00:
But because it was proper, it's an abuse of discretion.

[00:17:50] Speaker 00:
And then the reason it's proper is because it only asked for dismissal of some but not all of the affirmative defenses.

[00:17:57] Speaker 00:
And so you can't even get a judgment if he got the full relief he had requested.

[00:18:24] Speaker 01:
So with respect to the partial judgment on the pleadings the Ninth Circuit has repeatedly

[00:18:30] Speaker 01:
affirmed orders granting partial judgment on the pleadings.

[00:18:32] Speaker 01:
There's no Ninth Circuit authority saying that that's improper.

[00:18:37] Speaker 01:
So I'd just like to throw that out there.

[00:18:39] Speaker 01:
But turning back to standing, I think it's important that counsel conceded that the frequency of the letters matter.

[00:18:46] Speaker 01:
If they sent letters every single day, if they sent them weekly, that that could confer standing.

[00:18:50] Speaker 04:
Let me ask you something that appears in the district court's opinion and ask you to respond to it.

[00:18:55] Speaker 04:
One of the things that the court said was that

[00:18:58] Speaker 04:
the deposition of your client demonstrated that all of the harm that he suffered related to the underlying debt and not to the receipt of the letter.

[00:19:12] Speaker 04:
So if that's true, even if there's a theoretical opportunity to have standing in this situation, why wouldn't that be the absence of

[00:19:27] Speaker 04:
harm that would defeat standing?

[00:19:31] Speaker 01:
Well, he would still have, if you're trying to get at the tangible harm, he would still have intangible harm via the intrusion upon seclusion.

[00:19:39] Speaker 04:
Well, but that's why I'm asking you whether the court was accurately describing the deposition.

[00:19:44] Speaker 04:
The court said that all of the harm he suffered, the stress, the anxiety, the I can't sleep, the anger, related to the underlying debt only and not to the receipt of a letter concerning the debt.

[00:19:57] Speaker 01:
Sure, with respect to the tangible harm, with respect to... No, but you're not answering my question.

[00:20:03] Speaker 04:
I'm asking about what your client testified to in his deposition about what caused him the intangible harms of stress and sleeplessness and whatnot.

[00:20:13] Speaker 04:
Was it the underlying debt only that caused him those harms?

[00:20:17] Speaker 01:
No, no, of course not.

[00:20:19] Speaker 01:
He knew about the underlying debt.

[00:20:20] Speaker 01:
He hired counsel for the underlying debt.

[00:20:23] Speaker 04:
Right, but what did he say about what was causing him

[00:20:26] Speaker 01:
He said he got the letter and he read it and he got angry and he yelled and he took a day off from work and he struggled with sleeplessness and he struggled with his appetite.

[00:20:37] Speaker 01:
And I think a lot of it arises because of what the debt was for.

[00:20:40] Speaker 01:
He obviously didn't think he owed the debt.

[00:20:43] Speaker 01:
It arises from an apartment with his ex-wife.

[00:20:46] Speaker 01:
So it brings up all these feelings.

[00:20:49] Speaker 01:
I think maybe one of the examples we put in our

[00:20:54] Speaker 01:
Our thing in here is that's what debt collectors do.

[00:20:58] Speaker 01:
They increase the emotional burden of not paying a debt because by the time it's in collections, they've already depriaturized that debt because they have limited funds.

[00:21:08] Speaker 01:
So collectors want to increase that emotional burden.

[00:21:11] Speaker 01:
by saying, you know what, I can't stand these letters and calls anymore.

[00:21:14] Speaker 01:
I'm just going to pay it so I don't have to think about this time in my life and everything that goes around.

[00:21:19] Speaker 01:
But he didn't get angry and yell because, oh, it's about this debt.

[00:21:23] Speaker 01:
He got angry and yelled, like, why am I reminding of this?

[00:21:26] Speaker 01:
Leave me alone.

[00:21:27] Speaker 01:
Why are you continuing to hound me?

[00:21:29] Speaker 01:
especially where I have an attorney, and Congress recognized that.

[00:21:33] Speaker 01:
Congress said, you know, listen, you have an attorney, don't contact the consumer directly.

[00:21:37] Speaker 01:
Consumers are very susceptible to these things.

[00:21:41] Speaker 01:
They're abused, they're regularly harassed, and that's a problem.

[00:21:45] Speaker 01:
And, you know, when you hire an attorney,

[00:21:47] Speaker 01:
They shouldn't be allowed to circumvent them to get around it because that's what they're trying to do.

[00:21:52] Speaker 01:
Increase that emotional harm, demand payment, get them to pay, get them to not pay another bill instead, and get their money.

[00:21:59] Speaker 01:
And that's exactly what Congress wanted to avoid in enacting 1692 CA2.

[00:22:04] Speaker 01:
So for those reasons and as detailed in our briefing, we'd request the court reverse.

[00:22:10] Speaker 01:
Thank you.

[00:22:13] Speaker 02:
Thank you, counsel.

[00:22:15] Speaker 02:
This matter is now submitted.