[00:00:00] Speaker 00: case number 14-7047, Whitney Hancock on behalf of herself and all other similarly situated, and Jamie White on behalf of herself and all other similarly situated appellants versus Urban Outfitters Inc. [00:00:14] Speaker 00: at Elle. [00:00:15] Speaker 00: Mr. Chernoff for the appellants, Mr. Burns for the appellees. [00:00:37] Speaker 01: Good morning, Mr. Charnoff. [00:00:41] Speaker 02: Good morning. [00:00:43] Speaker 02: May it please the Court, Mike Charnoff and Scott Perry on behalf of the Appellants. [00:00:49] Speaker 02: Your Honor, the posture that we arrive here is this is a case that was dismissed on a 12b6 without a hearing and with prejudice. [00:00:59] Speaker 02: There is no question or dispute that dismissal with prejudice is highly disfavored in this circuit, and particularly where there is no opportunity for an oral argument and no opportunity to amend whatsoever. [00:01:13] Speaker 01: Did you file a Rule 59 motion asking leave to amend your complaint? [00:01:18] Speaker 02: We did not, Your Honor. [00:01:19] Speaker 01: Why not? [00:01:20] Speaker 01: Wouldn't that be the obvious thing to do if you wanted to have an opportunity to amend to address the concerns? [00:01:25] Speaker 02: Well, obviously, we would not move to amend prior to... My question is, why wouldn't you have filed a Rule 59 motion? [00:01:33] Speaker 02: Well, I think we addressed it briefly in a footnote, Your Honor, but frankly, because it wasn't a question of one issue. [00:01:40] Speaker 02: The trial court, Sirianum, [00:01:44] Speaker 02: in complete contrast to both the 12b6 standard and the liberal standard required to construe a consumer protection statute, completely did the reverse analysis of every single element. [00:01:56] Speaker 02: And the court did not seem interested. [00:01:59] Speaker 02: I mean, that's the short version, is that this court didn't say, oh, I think this is a close call. [00:02:03] Speaker 02: Here's one issue. [00:02:04] Speaker 02: The court, from start to finish, started from the wrong place and ended far, far away in the wrong place. [00:02:10] Speaker 02: And frankly, we thought it was futile [00:02:12] Speaker 02: to seek a post-ruling opportunity to omit. [00:02:18] Speaker 02: That's the answer, Judge. [00:02:19] Speaker 01: And what injury did the named plaintiffs suffer from this swiping of their cards and then asking for a zip code? [00:02:33] Speaker 02: They suffered an Article III standing injury. [00:02:37] Speaker 01: Can you tell me what that Article III standing injury is? [00:02:39] Speaker 01: The name plaintiff's individually suffered. [00:02:43] Speaker 02: They have a right to not have their address and significant information requested during or as a condition of the transaction. [00:02:53] Speaker 02: That's a statutory right that's created by District of Columbia. [00:02:57] Speaker 02: And as soon as it's violated, it creates standing, which I believe, I know this court asked us to brief the standing issue, but I believe that the appellees have conceded. [00:03:06] Speaker 01: Well, you can't concede your way into jurisdiction. [00:03:08] Speaker 01: We have to independently determine that. [00:03:09] Speaker 02: Fair enough, Your Honor. [00:03:11] Speaker 01: So, I just want to be crystal clear. [00:03:13] Speaker 01: The only injury that you allege that the named plaintiffs suffered was that they were asked for a zip code when, in your view of the law, they should not have been. [00:03:24] Speaker 01: That's correct. [00:03:24] Speaker 01: You don't assert any other injury. [00:03:26] Speaker 02: There is not, and under the Floyd Line cases, that's all we need. [00:03:29] Speaker 02: What was the redress you were going to get for that injury? [00:03:34] Speaker 02: The redress is, there's two statutes here, Judge, one's the consumer redress. [00:03:37] Speaker 05: What is the redress you're going to get for that entry? [00:03:41] Speaker 02: $2,000, $500, and $1,500, but obviously multiplied by the number of folks that this affected. [00:03:47] Speaker 02: There's four stores of Anthropology and Urban Outfitters in District Columbia. [00:03:52] Speaker 02: The time period is three years. [00:03:54] Speaker 02: We are assuming we never even had an opportunity to do any discovery, but we have reason to believe that, at minimum, there would be at least one credit card transaction every 10 minutes. [00:04:04] Speaker 05: It does not. [00:04:08] Speaker 02: The word is address, but as we. [00:04:13] Speaker 05: No, if your answer is that a complete address, the answer is no. [00:04:30] Speaker 02: The problem is that the lower court started from the wrong premise. [00:04:34] Speaker 02: All Consumer Protection Act statutes must be construed to affect their purpose. [00:04:39] Speaker 02: In fact, the Consumer Protection Act, it says it right in the statute. [00:04:42] Speaker 02: It's great language. [00:04:43] Speaker 02: This judge did not do that. [00:04:45] Speaker 02: She started, everything was designed to [00:04:51] Speaker 02: disfavor the plan. [00:04:52] Speaker 02: So it's contrary to both the jurisprudence and it's contrary to Rule 12b6. [00:04:57] Speaker 02: And let me address that. [00:04:58] Speaker 02: I think I used one of these examples in our brief. [00:05:02] Speaker 02: The way this opinion has been written [00:05:04] Speaker 02: Because the trial court is writing in the word complete or full into a remedial statute, what it means is that I could go to the Urban Outfitters store, present my credit card, they could ask for the name. [00:05:17] Speaker 01: I'm not sure she said complete or full, and she said, I think, would you agree that if instead of asking for zip code, they asked for country? [00:05:25] Speaker 01: You live in the United States, you live in a foreign country. [00:05:28] Speaker 01: Would that be sufficient? [00:05:29] Speaker 01: Because technically, that's part of your address as well. [00:05:32] Speaker 01: Would that violate the statute? [00:05:34] Speaker 02: It's an interesting example, Judge. [00:05:35] Speaker 01: I don't know if... Well, it's a component of the address. [00:05:39] Speaker 02: Well, Judge, I mean, I suppose you're trying to go down the path of the slippery slope. [00:05:45] Speaker 01: Perhaps... I'm trying to understand what your legal theory is here. [00:05:48] Speaker 01: And I thought, you know, if it's component, it can't be any component of the address or else USA would work. [00:05:56] Speaker 02: Your Honor, that would be an awfully broad definition of an address, which is the ability to locate someone with some specificity. [00:06:03] Speaker 02: I understand that the Court focused on the zip code aspect in particular. [00:06:19] Speaker 02: The zip code, to be clear, I don't think I've conceded that, and we addressed this in the brief. [00:06:25] Speaker 02: Let me be clear, the zip code is an integral part of the address. [00:06:32] Speaker 05: person's name is also if this was a criminal they get that every time. [00:06:37] Speaker 02: I understand judge. [00:06:38] Speaker 02: If this was a criminal statute, we were dealing with strict interpretation and constitutional issues. [00:06:44] Speaker 02: I would understand and might even agree with that argument. [00:06:46] Speaker 02: This is a civil statute. [00:06:48] Speaker 02: It is a remedial consumer oriented statute. [00:06:51] Speaker 02: And under the reading that this lower court has provided, they could ask me for the street. [00:06:57] Speaker 02: I live on my number unit number. [00:06:59] Speaker 05: I don't think the court said any such thing. [00:07:03] Speaker 05: I believe I read this opinion, and I don't remember the court saying anything. [00:07:06] Speaker 02: The court didn't say that, Judge. [00:07:07] Speaker 02: What I'm saying is that her analysis is identical or analogous to it, and it gets worse than that. [00:07:13] Speaker 06: But wait, wait, wait, wait. [00:07:15] Speaker 06: Before you go there, where did you plead that they were asked, assuming a zip code is an address, where did you assert that the plaintiffs were asked for your [00:07:31] Speaker 06: your interpretation of address, ask for an address as a condition of the transaction. [00:07:37] Speaker 02: It's a fair question, Judge. [00:07:39] Speaker 02: We didn't, you know, if the critique... Well, then you dismiss. [00:07:43] Speaker 06: I'm sorry? [00:07:43] Speaker 06: That's 12b6. [00:07:44] Speaker 06: You dismiss. [00:07:46] Speaker 06: You clearly don't fit the terms of the statute. [00:07:49] Speaker 06: You're gone. [00:07:50] Speaker 02: I respectfully disagree. [00:07:52] Speaker 06: I wouldn't have even written anything if I'd been the trial judge. [00:07:54] Speaker 06: You don't assert a violation of the statute. [00:07:57] Speaker 06: What we assert is that there is a violation because... No, you can't just say, I'm here and there's a violation of the statute. [00:08:04] Speaker 06: You got to show injury consistent with the statute of effective theory. [00:08:07] Speaker 06: The only injury, the injury you would be asserting that as a condition of doing business, I had to give an address. [00:08:13] Speaker 06: You did not assert that. [00:08:15] Speaker 02: What I believe that we asserted in the complaint is that the credit card was provided and before the transaction was completed. [00:08:23] Speaker 06: No, no, it was afterwards. [00:08:26] Speaker 02: I think we're caught up in what we're talking about transaction, Judge. [00:08:30] Speaker 02: The credit card is handed over. [00:08:31] Speaker 06: First of all, there's no allegation that you had to give that zip code as a condition of doing business. [00:08:38] Speaker 06: The second thing is, on your assertions, not anybody else's, they weren't asked for the zip code until after the credit card had been swiped. [00:08:48] Speaker 02: That's the violation. [00:08:50] Speaker 06: They're not making it as a, you don't assert that it's as a condition of completing this transaction. [00:08:58] Speaker 06: They took the credit card swipe that the transaction is over by your assertion of the facts, and no one, according to you, ever said, I can't complete this sale unless you give us the zip code. [00:09:08] Speaker 06: They asked for a zip code, but you don't assert it was as a condition of completing the sale. [00:09:13] Speaker 02: The request for the zip code was made in the middle of the transaction after... It was made after the swipe, according to you? [00:09:22] Speaker 02: Correct. [00:09:22] Speaker 02: Before the credit card is returned to the customer. [00:09:24] Speaker 06: Yeah? [00:09:25] Speaker 06: And the implication is that there is a security purpose... You've got to do better than that in your statement of the case. [00:09:32] Speaker 06: Because the statute requires that it be as a condition of. [00:09:37] Speaker 06: That's the first thing I looked at, forgetting your argument on zip. [00:09:42] Speaker 06: whether a zip code is an address. [00:09:45] Speaker 06: Otherwise, the statute would be really bizarre. [00:09:47] Speaker 06: The statute says it has to be as a condition of doing business. [00:09:52] Speaker 06: And you don't assert that it was. [00:09:55] Speaker 02: Your Honor, at minimum, under the 12b6 standard, that all reasonable inferences be provided in favor of the movement. [00:10:01] Speaker 02: Clearly, in the temporal aspect of this transaction, the credit card is handed over, they swipe it through the credit card machine, and then they ask for the zip code so they can use it for their own purposes. [00:10:12] Speaker 02: The consumer thinks that they're using it in real time, like at a gas station. [00:10:16] Speaker 02: for some sort of correspondence. [00:10:17] Speaker 06: They may be using it for their own purposes, but it's not a condition of doing business, which is what the statute requires. [00:10:23] Speaker 02: I don't think the statute requires magic words to be used. [00:10:27] Speaker 02: I hereby require you to give me the zip code as a condition. [00:10:37] Speaker 02: They're not. [00:10:38] Speaker 02: Why are they not in the ones? [00:10:40] Speaker 02: Because that's actually being used for a security purpose where they're in real time corresponding the zip code of the billing address of the credit card holder. [00:10:50] Speaker 02: They're actually verifying that it's the correct user. [00:10:53] Speaker 02: That's why it's fraudulent. [00:10:55] Speaker 01: That might make sense if the statute had a security exception, which I think other states do, but this statute doesn't say you can ask for it for security reasons. [00:11:05] Speaker 02: The answer as to why the gas stations are not in violation is that there's no person requesting it. [00:11:12] Speaker 02: It's automated. [00:11:13] Speaker 06: I can't get my gas unless I put that zip code right. [00:11:17] Speaker 06: That's a real condition as opposed to what you're asserting in this case. [00:11:21] Speaker 02: Well, maybe we should sue Exxon, Judge, but having said that, we sued Urban Outfitters. [00:11:25] Speaker 02: And what it comes down to is that's the most consumers believe that just like when they're having to put in that information at a gas pump, [00:11:34] Speaker 02: That's what they think is going on. [00:11:36] Speaker 02: That's exactly, with the left hand, they're swiping the credit card and they're putting the zip code information into their own database, which is completely fraudulent and deceptive purpose and violates both the Consumer Protection Act and it violates the Consumer Information Act. [00:11:49] Speaker 02: And I appreciate the court's questions, but for the trial court, on a 12 v 6 standard, [00:11:55] Speaker 02: I even had an opportunity to cite to the cases. [00:11:59] Speaker 02: EC versus RCM of Washington, Inc., which is from last year, 92, 83, 305. [00:12:04] Speaker 02: The entire purpose of a DC remedial statute is liberally to accomplish their purpose and extend their coverage. [00:12:13] Speaker 06: But you've got to assert an injury that is cognizable under the statute. [00:12:19] Speaker 06: You haven't asserted the injury that it's cognizable under the statute. [00:12:23] Speaker 06: This was done as a condition of doing business with the merchant. [00:12:27] Speaker 06: You have to assert that. [00:12:30] Speaker 06: That's true. [00:12:31] Speaker 06: You don't have to prove that that assertion is correct. [00:12:34] Speaker 06: We'll assume it at the 12b6. [00:12:36] Speaker 06: But if you don't even assert it, you're out on 12b6. [00:12:40] Speaker 02: Let me try to address it this way. [00:12:43] Speaker 02: Radio Shack, which I understand now is a bankruptcy. [00:12:46] Speaker 02: If you may recall, if you're wondering from time to time, I'll ask you for your phone number. [00:12:49] Speaker 02: And most people, [00:12:51] Speaker 02: are sort of taken aback by that. [00:12:52] Speaker 02: They don't want to give your phone number. [00:12:54] Speaker 02: Because they think, why do you need my phone number to process my credit card? [00:12:58] Speaker 02: And they'll even ask it, you know, when you're paying with cash. [00:13:00] Speaker 02: And they want it for their own advertising purposes. [00:13:02] Speaker 02: What's going on here is that under the guise of some sort of security or other purpose, they're asking for consumer information that they're not allowed to request. [00:13:11] Speaker 06: Well, we're going in circles. [00:13:13] Speaker 06: That's not what the statute says. [00:13:15] Speaker 01: Let's see what everyone else has to say. [00:13:17] Speaker 01: Thank you. [00:13:28] Speaker 04: Good morning, Your Honor. [00:13:29] Speaker 04: James Burns for Urban Outfitters and Anthropology here this morning. [00:13:33] Speaker 01: I was very surprised that you conceded standing, given that the allegation that a mere violation of a statute creates an Article III injury is a hotly contested issue that the Supreme Court has wrestled with. [00:13:47] Speaker 04: Yes, I understand that, Your Honor. [00:13:50] Speaker 04: Our reading of the cases, particularly Bell v. Howell, Bell v. Hood, suggested to us that if you allege a statutory injury that at the trial court level it's within the discretion of the trial court and it's best in most cases for the trial court to view the elements of that claim on the merits [00:14:12] Speaker 04: and to reach the issue under 12b6 rather than dismissing on jurisdiction. [00:14:17] Speaker 01: Well, the Supreme Court has spoken a lot more recently than Bell versus Hood. [00:14:21] Speaker 04: In the Clapper case. [00:14:23] Speaker 01: In Clapper and Lujan and said that merely asserting that the violation of a statutory requirement is your injury is not necessarily going to be sufficient for Article III standing. [00:14:37] Speaker 01: It's very much an open question. [00:14:39] Speaker 01: And they've been crystal clear [00:14:42] Speaker 01: in more recent years that you do not get to leapfrog over standing and decide a merits question. [00:14:48] Speaker 01: And so I guess I'm a little curious. [00:14:50] Speaker 01: It seems to me that it's a very open standing question here, but we're not getting any arguments from your client when it would be, you're out of the case. [00:15:03] Speaker 04: Well, Your Honor, we're out of the case either way, as you say, and I think the more appropriate way for us to be out of the case, in fairness to my client, is for the affirmance of a ruling that... It's not appropriate at all if there's no standing. [00:15:18] Speaker 01: It is unconstitutional for us to do it. [00:15:20] Speaker 04: Yes, I understand that, Your Honor. [00:15:22] Speaker 04: I understand that, Your Honors, but I think Bell v. Hood's direction that the district court should address it on the merits, and the words used in that case and more recent cases by this court and others is, unless it's patently frivolous. [00:15:39] Speaker 04: And I don't hear the court saying that their claim is patently frivolous. [00:15:44] Speaker 04: Quite frankly, we did raise... I said there's a lot more casement law than you have read. [00:15:48] Speaker 04: We raised subject matter jurisdiction as a basis for dismissal below. [00:15:51] Speaker 06: I mean, I think you're twisting Bell v. Hood. [00:15:55] Speaker 06: Bell v. Hood has generally understood to me we can find no jurisdiction in that strange circumstance that what's before us is just patently frivolous. [00:16:06] Speaker 06: It's not a pure jurisdictional case, but the court said it's something, someone comes in and said the world is, the sky is falling and I'm suing, some absurd thing. [00:16:16] Speaker 06: The court said, if it's just patently frivolous, we can throw it out on the stand. [00:16:20] Speaker 06: It doesn't say what you're suggesting. [00:16:22] Speaker 06: That is, that the court should jump to the merits. [00:16:26] Speaker 06: That's not the import of that case. [00:16:28] Speaker 06: The import of that case is that it's a category to determine jurisdiction that doesn't necessarily look like jurisdiction. [00:16:36] Speaker 06: That's all. [00:16:37] Speaker 04: We cite as well in our brief Carr v. Tilbury from the Seventh Circuit, which seemed to me to suggest precisely what I just described Bell v. Hood as standing for. [00:16:50] Speaker 06: Not from the D.C. [00:16:51] Speaker 06: Circuit, though, right? [00:16:52] Speaker 04: That's not the D.C. [00:16:53] Speaker 04: Circuit. [00:16:53] Speaker 06: Well, that's where we are. [00:16:55] Speaker 06: And we've never said that. [00:16:58] Speaker 06: But it doesn't matter. [00:17:00] Speaker 06: I think the question of my colleagues is you've got to address standing if there's a standing issue. [00:17:05] Speaker 06: And I don't know how you can have standing, even if you can rest on a statute, if you're not asserting the injury that arguably would flow from the violation of the statute, which isn't asserted here. [00:17:16] Speaker 05: Why don't you concede that you wrongly conceded standing? [00:17:22] Speaker 05: You're up here defending a point that doesn't seem to be in your interest. [00:17:28] Speaker 04: Well, in all candor, Judge Santelli is most assured to be in my interests not to concede standing here, because I believe in all... No, no. [00:17:39] Speaker 04: We have a miscommunication, Your Honor. [00:17:42] Speaker 04: I believe it would be a terrible mistake for me to say there is no standing here, because I believe this case deserves and should be dismissed on the merit. [00:17:57] Speaker 05: I understand that, Your Honor. [00:17:59] Speaker 05: Even if the result would come out to be the same party winning, we've been, we're told that by the Supreme Court. [00:18:04] Speaker 04: I understand that, Your Honors, and if Your Honors believe that there is no standing under Clapper and that Bell versus Hood does nothing to permit Judge Howell to reach the merits, then I understand you will be compelled to dismiss on jurisdictional grounds. [00:18:19] Speaker 04: I think that would be in the facts of this particular case, [00:18:23] Speaker 04: quite unfortunate because all it would do would allow these folks to go back with this exact same claim in the DC court system and I think that would be not only inefficient but it would be a terrible injustice to businesses in the district trying to obey the law. [00:18:51] Speaker 01: Do you understand? [00:18:52] Speaker 04: And I do not dispute what you were saying, not one iota. [00:18:55] Speaker 01: So you might be sad or disappointed or less happy with winning on that ground. [00:18:59] Speaker 01: Do you understand the plaintiffs to have suffered any asserted injury? [00:19:04] Speaker 01: Since you've given up on standing, what do you understand their article for injury to be? [00:19:09] Speaker 04: It is most assuredly not the type of standing required under Clapper because a threat of potential privacy violation or whatever doesn't satisfy Clapper. [00:19:19] Speaker 01: Do you understand them to be alleging that this is a privacy invasion? [00:19:22] Speaker 04: What I understand them to be saying, now at least, is that the violation of a statutory right under Wharton v. Sedlin [00:19:32] Speaker 04: is sufficient for standing, and my understanding of... Even if you, the plaintiff, have not suffered it. [00:19:40] Speaker 04: Yes, there is DC law in that Grayson, the Grayson case from the DC Court of Appeals indicates that even if... DC Court of Appeals doesn't determine Article 3 standing. [00:19:53] Speaker 04: I understand that. [00:19:54] Speaker 04: I understand that. [00:19:56] Speaker 04: But that they interpret it as the DC. [00:19:58] Speaker 06: But wait, I want to make sure I'm understanding what you're saying, because you're really going for a feel. [00:20:02] Speaker 06: You think that a person can assert and achieve standing by saying there's a violations of a statute of going on. [00:20:10] Speaker 06: Have you been violating? [00:20:12] Speaker 06: No, I'm not asserting any personal injury, but there are violations going on. [00:20:16] Speaker 06: And we would have to address that? [00:20:18] Speaker 04: Judge Edwards, I moved on standing below. [00:20:22] Speaker 04: I don't accept their position. [00:20:25] Speaker 06: Do you think that we can address a case like that under established law? [00:20:30] Speaker 06: I think you can address a case where the plaintiff doesn't assert the injury that might flow from the statute. [00:20:42] Speaker 06: Doesn't him or herself say, I was injured in a way that is cognizable under the statute? [00:20:48] Speaker 06: But there has been a statutory violation. [00:20:50] Speaker 06: You think we would address that? [00:20:52] Speaker 04: If the statute provides for suing on behalf of the public, I'm not sure that that would be improper. [00:21:01] Speaker 05: I'm not even sure what that means. [00:21:04] Speaker 04: I'm sorry, Judge, I couldn't hear you. [00:21:07] Speaker 05: Do these plaintiffs have the advantage of a statutory right to sue on behalf of the public? [00:21:13] Speaker 04: The DC statute, the Consumer Protection Statute, apparently permits a claim on behalf of others, even if you are not individually harmed in the way that Clapper would suggest. [00:21:26] Speaker 04: That is why we felt this was a murky issue on standing. [00:21:29] Speaker 04: and why we thought it was best to address it on the merits. [00:21:32] Speaker 04: And we believe Judge Howell correctly did address it on the merits. [00:21:36] Speaker 01: Can I ask you something about, if you want to talk about merits, there are four zip codes in this country in which one person lives according to the 2010 census. [00:21:48] Speaker 01: One person zip code. [00:21:50] Speaker 01: As to those people, the zip code is entirely identifying. [00:21:55] Speaker 01: So why wouldn't [00:21:57] Speaker 01: zip code apply as part of the address? [00:22:01] Speaker 01: It's as identifying as anything else. [00:22:04] Speaker 04: Well, first off, the plain language zip code, even by the definition that the plaintiffs embraced, wouldn't in every circumstance other than these four circumstances you just described not work. [00:22:18] Speaker 04: But in those particular circumstances, [00:22:20] Speaker 01: Well, either the zip code's in or, you know, either we need full address. [00:22:24] Speaker 01: Would your theory be that if they had name, street number, city, state, zip code, but just didn't have, actually they had even the number of the building, but didn't have the apartment number, so it's not a complete address. [00:22:38] Speaker 01: Would that violate the statute? [00:22:39] Speaker 04: I would certainly not counsel my client to do that. [00:22:43] Speaker 01: The question is not what you would advise your client. [00:22:46] Speaker 01: My question is, would that violate the statute? [00:22:50] Speaker 01: It's not a complete address. [00:22:53] Speaker 04: I guess it would require one to assess whether the component of an address that had been requested would be sufficient for you to show up at their home, which is their address. [00:23:08] Speaker 04: In those four circumstances, that zip code might do it, Your Honor. [00:23:12] Speaker 04: I acknowledge that. [00:23:14] Speaker 04: And that's why I am thrilled that Judge Howell recognized that there were multiple [00:23:20] Speaker 04: fatal errors. [00:23:22] Speaker 01: I guess I'm back asking for an answer to my question because you said you'd have to assess and so I'd like to know what your assessment is and that is if you have everything in the address except apartment number. [00:23:32] Speaker 01: Does that violate the statute? [00:23:36] Speaker 01: Assume all the other elements of the statute are also satisfied. [00:23:39] Speaker 01: We're just trying to decide whether that's addressed within the meaning of the idea. [00:23:42] Speaker 04: I'd like to make sure I understand your hypothetical, Your Honor. [00:23:46] Speaker 04: So you're saying if after the credit card was swiped, the Urban Outfitters Clerk said... Assume every element of this statute is satisfied, whatever facts you want. [00:23:56] Speaker 01: They said, is a condition [00:23:58] Speaker 01: of me processing, I'm not going to push this button here until you give me your entire address and let's put it here on the credit card transaction form, but give me everything except your apartment number. [00:24:11] Speaker 01: Is that a violation? [00:24:12] Speaker 04: I understand that you've assumed away all of the other elements and we're focusing on the address. [00:24:17] Speaker 04: I understand that. [00:24:18] Speaker 04: Can you tell me, Your Honor, or is your, in your hypothetical, do I say to you what street do you live on, what house number, what town? [00:24:28] Speaker 04: Is it each one of those? [00:24:29] Speaker 01: Everything except, yes, everything except a requirement of me processing your credit card, Ms. [00:24:35] Speaker 01: Customer, is that you put right down here on this credit card transaction form. [00:24:41] Speaker 01: All of the others except leave out the apartment number. [00:24:44] Speaker 04: I would never counsel my client to do that and I would not be surprised if your honors ruled that that was seeking an address violative of the statute. [00:24:53] Speaker 04: That would not surprise me. [00:24:54] Speaker 05: The short answer would be yes, that would be a violation. [00:24:56] Speaker 05: Is that your short answer? [00:24:59] Speaker 04: I believe this court would find it to be a violation. [00:25:03] Speaker 01: And if we had street address but not house number. [00:25:06] Speaker 01: So we had the street, the name of the street. [00:25:08] Speaker 01: White House, Pennsylvania Avenue, Washington, D.C. [00:25:12] Speaker 01: I think they probably have their own support. [00:25:13] Speaker 04: Quite possible. [00:25:14] Speaker 04: Quite possible. [00:25:15] Speaker 01: It doesn't have to be the full address. [00:25:19] Speaker 04: It has to be the address. [00:25:20] Speaker 04: That's what the plain language says. [00:25:21] Speaker 01: But not the full address. [00:25:23] Speaker 01: I thought you just conceded in two levels. [00:25:25] Speaker 04: I'll concede if the elements of an address are sufficient to identify where [00:25:31] Speaker 04: someone actually lives, that that would be a problem under this statute, yes. [00:25:35] Speaker 01: And then on your credit card transaction form argument again, I just want to understand how this statute works. [00:25:42] Speaker 01: If as a condition, so I show up at Urban Outfitters and I hand over my credit card and the clerk says, I will not process this credit card sale unless you type into our computer here your name, address, full address, and telephone number. [00:26:01] Speaker 01: But by the way, that's not the credit card transaction form. [00:26:04] Speaker 01: That's just our separate database. [00:26:06] Speaker 01: Type it all in. [00:26:08] Speaker 01: Does that violate the statute? [00:26:09] Speaker 04: No, it doesn't. [00:26:10] Speaker 01: Because it's not. [00:26:11] Speaker 01: What do you understand the credit card transaction form to be? [00:26:14] Speaker 04: Well, in the olden days, when you did credit cards, there were paper slips. [00:26:19] Speaker 01: Today, what do you understand the credit card transaction form to be? [00:26:21] Speaker 01: If I walk into an Urban Outfitters today, what is the credit card transaction form? [00:26:26] Speaker 04: The only thing that could possibly refer to in today's transactions would be your credit card receipt that you get after the fact. [00:26:34] Speaker 04: And if that's not... What about the keypad that I'm typing my PIN number? [00:26:39] Speaker 04: Oh, certainly, if you were required to type it into the keypad as a consumer, [00:26:45] Speaker 04: Before they swiped, there would be an issue there. [00:26:49] Speaker 04: But that's certainly not a forum. [00:26:52] Speaker 01: Do you have anything else? [00:26:54] Speaker 04: If the court has no other questions. [00:26:59] Speaker 01: All right, Mr. Chernoff, we'll give you two minutes for rebuttal. [00:27:01] Speaker 02: Thank you. [00:27:02] Speaker 02: I just have two brief points. [00:27:04] Speaker 02: One is to address the last question raised. [00:27:07] Speaker 02: And we addressed this, I thought, at some length in the brief. [00:27:10] Speaker 02: The requirement in the statute is disjunctive. [00:27:12] Speaker 02: It's a request or record the information on the credit card transaction form. [00:27:17] Speaker 02: So to the extent of Urban Outfitters' position is that the credit card transaction form, as it was contemplated 16, 17 years ago in the statute, was written, doesn't exist anymore. [00:27:25] Speaker 02: And therefore, they can do whatever they want to consumers. [00:27:27] Speaker 02: And it can never matter, because that form doesn't exist anymore. [00:27:30] Speaker 02: The statute is written in disjunctive, and the request is the violation. [00:27:34] Speaker 01: Can I ask you a question? [00:27:36] Speaker 01: It sounded to me like from your certification argument that you thought it would be better if the D.C. [00:27:43] Speaker 01: Court of Appeals were to decide these statutory construction questions rather than this Court. [00:27:47] Speaker 01: Is that my understanding of your position? [00:27:49] Speaker 02: It is, because I think... Why did you sue in federal court? [00:27:54] Speaker 02: Well, we just that briefly, um, your honor, because we were probably going to end up here anyway. [00:27:59] Speaker 02: And for efficiency reason, we had a number of reasons why we felt that efficiency reason. [00:28:04] Speaker 05: And yet you want us to certify the question. [00:28:07] Speaker 05: Well, you know how long it takes to get a response to certification from any state, including district. [00:28:14] Speaker 02: Your Honor, the question I was responding to was, why did we file a federal court a year and a half ago? [00:28:20] Speaker 02: And the reason is that we didn't anticipate that there was going to be any question about what the statute says. [00:28:24] Speaker 02: The statute says what it says. [00:28:25] Speaker 02: It does not say complete or full address. [00:28:28] Speaker 02: And so the Consumer Protection Act, as I mentioned earlier, actually says within the statute, you must construe this broadly to affect its purposes. [00:28:36] Speaker 02: the Consumer Information Act doesn't have the exact same language. [00:28:39] Speaker 02: So to the extent that creates genuine uncertainty, if any court's going to eviscerate this Consumer Protection Statute, it ought to be the D.C. [00:28:46] Speaker 02: Court of Appeals and not federal court. [00:28:50] Speaker 02: So I just want, last point briefly is [00:28:53] Speaker 02: to go to your example about what, you know, he said he wouldn't counsel his client to do it. [00:28:58] Speaker 02: It's worse than that because of something called the enhanced zip code, which shows up in the addendum to our brief. [00:29:03] Speaker 02: An enhanced zip code is the five plus four that commercial businesses typically use. [00:29:08] Speaker 02: The United States Postal Service, a federal creature, wants all of us to use it, and we mostly don't. [00:29:13] Speaker 02: But because that is the complete address, as this trial court has read into the remedial statute, the clerk had asked for my [00:29:22] Speaker 02: straight name, number, unit number, city, state, and my five-digit zip code, and under this court's, the trial court's analysis and under Urban Outfitters' position, that's okay. [00:29:34] Speaker 02: And that, remember, this violates not just the Consumer Information Act, but we haven't discussed much, the Consumer Protection Act. [00:29:40] Speaker 02: It is an independent violation to make a misleading statement. [00:29:44] Speaker 02: When you're making that request, during the transaction, whether or not you actually say, I require [00:29:49] Speaker 02: your zip code in order to process or complete this transaction. [00:29:52] Speaker 02: The request is a misleading request. [00:29:54] Speaker 02: Is the request a statement? [00:29:57] Speaker 02: Yes. [00:29:58] Speaker 02: For our purposes it is. [00:29:59] Speaker 05: For your purposes it is. [00:30:02] Speaker 05: Can I take you back to the gas station a moment? [00:30:05] Speaker 05: Part of your response was it's not a person you're giving it to. [00:30:08] Speaker 05: That says retailer. [00:30:09] Speaker 05: It doesn't say person. [00:30:12] Speaker 02: It doesn't judge. [00:30:14] Speaker 05: So it would be a violation then at the gas station under your [00:30:19] Speaker 02: I have to think about your honor. [00:30:20] Speaker 02: The truth is that the I have thought about it. [00:30:23] Speaker 02: I understand that it's addressed. [00:30:30] Speaker 02: It's addressed in I think maybe one of the California Massachusetts cases, but there's and perhaps because in those jurisprudence, there is a specific exception. [00:30:38] Speaker 02: So there's not here. [00:30:39] Speaker 02: It's not obvious to me. [00:30:42] Speaker 02: It's not one here. [00:30:43] Speaker 02: It doesn't have security in the end part of me. [00:30:46] Speaker 01: Thank you very much for your time. [00:30:48] Speaker 01: Thank you. [00:30:52] Speaker 01: Take a five minute recess.