may please the court my name is rachel b n and i represent the plaintiffs appellants turning first to the denial of classification the district court erred by failing to weigh the common evidence against the individual issues which the predominance analysis requires as i will discuss the common evidence with substantial and outweigh the purported differences among class members in the performance of certain management functions that class member spent relatively little time on as this  in myers versus hertz court the main concern of the predominance inquiry is the balance between the individual and common issues that balancing did not occur here in particular the district court did not consider several categories of common evidence that plaintiffs presented first the district court failed to weigh the consistent thread in nearly all of the testimony that apprentices spend a substantial amount of their day preparing food and serving customers and such several times of the district court failed to consider the ovens and there was a very full factual record here the district court does go through quite a bit of the evidence isn't this inherently a factual inquiry and subject to clearly erroneous view that we censor the findings of we argued that the court should take a do novo review first in looking at whether or not the court used the correct legal standard for predominance and we argue that predominance requires there to be a balancing analysis and there was no balancing analysis here the failure to consider several categories of common evidence that we presented was an abuse of discretion and so there can be a legal error that result of discretion either way the district court's determination with respect to predominance as and as i will discuss distinguishable from one another i mean do we second guess that to record evidence for misleading or and correct into we do we second guess those kinds finding certainly with factual findings there's a high standard for us to overcome them but we think we've done that here the findings with respect to the name plaintiffs that they were internally inconsistent in fact if you look at the testimony that the district court recite what it shows is very typical in a misclassification case a mix of exempt work and nonexempt work there isn't anything inconsistent that name plaintiffs said that they spent a tremendous amount of time performing the hands on food preparation and customer dong well what we believe the error was was that it didn't engage in the balancing i would i would sort of break it down into two pieces so the district court identified certain individual ice issues but predominance can be met even if there are individual issues the question is are those in developed individualized issues of the magnitude such that they will predominate over the common ones and there wasn't that analysis here the court didn't consider the common categories of evidence against those individual issues and i'd like to just spend a little bit of time talking about the common categories of evidence because they were really substantial here as i was mentioning we had this evidence consistently in the testimony about what apprentices spend a substantial amount of their time on serving customers and preparing food and in fact chipotle a reclassified its apprentices in california largely because they fear that if they didn't then they wouldn't be able to perform this kinds of hands on work they said we would have to eliminate shoulder to shoulder training and limit direct contact with our customers things that are fundamental fundamental the regulations concurrent duties test is the key merits question in this case so resolution of that issue alone would have significantly moved the ball forward second while as i mentioned we disagree with the district court's factual findings that class members managerial task varied widely and believe we have demonstrated that the testimony on the whole shows that they performed a similar set of duties to a similar extent either way the district court abused its discretion by failing to w these inconsistency against the commonalities including that all apprentices management functions are defined and cabined by company wide policies that impact how they perform their management duties including chipotle a scheduling tools which largely automate the scheduling process to police prep deployment tool which dictates precisely how food is prepared and customers are served to police hiring policies and we turn to the collective action because they do have some questions there thank you or the legal argument is is that the district court applied the wrong standard because it applied that that it applied to sliding scale standard  right well the the way that it conflated it is that it relies almost exclusively on its predominant analysis to conclude that collective members are not similarly situated and so in doing so it  applies a heightened standard to the similarly situated analysis which the weight of authority is that it is much lower than rule twenty three and in particular doesn't incorporate a predominance analysis so i think that's where how do  us this court has not determined what similarly situated means in the decertification context we submit it's a supplemental authority of the ninth circuit's recent campbell versus city of los angeles decision which is really the first standard that is consistent with the language that congress you want to of course want to stand here i mean we support the standard that campbell adopted which is this party plaintiffs are similarly situated and may proceed in a collective to the extent they share a similar issue of law or fact material to the disposition of their f l a say claims so as you can see from the language there to some extent it does reflect the commonality  analysis under rule twenty three with the cabbie in campbell that you know we're not necessarily importing some of the evidentiary standards under rule twenty three such as that the plaintiffs must make that showing by the preponderance of the evidence or that that necessarily means the kind of rigorous analysis of this record applying i guess what's referred to as the ad hoc rule the three factors was that is that your position that that was our position is that the court applied the factors incorrectly of course this court has not adopted the ad hoc test it doesn't have to can fashion its own test but if it did adopt the ad hoc test we believe the district court in correctly applied it because what it did was turn the factors turn it turn the analysis on its head it did not consider the similarities between collective members which is inherent in whether there similarly situated instead it only considered the differences between class members  i mean the conclusion was a comparison of the name plaintiffs with the opt in as noted above shows that apprentices had vastly different levels and amounts of authority in manager in exercising their material tasks that's that's barring the standard for rule twenty three that's just basically referring to his findings that were part of his rule twenty three analysis right well we would we would but we our position is that in only looking at the individual life issues and not looking at all on the carbon evidence the flaw is that there's a similar flaw here with respect to our argument on predominance and their argument on the similarly situated now analysis the court didn't consider any of the common categories of evidence in order to put any of these disks dissimilarities in context or to determine what weight they should get versus all of the common evidence although you find that vastly different that the they are vastly different across their collective do you need to do all that other stuff well they that the court found that they were vastly just acknowledging with a finding the court found they were vastly different with respect to certain discrete management functions it didn't consider what the evidence shows they spend a substantial amount of their time doing which he gives an illustration right i mean he basically refers to his rule twenty three findings of fact and then he gives an illustration with kelch who's who worked in both oregon and kentucky right right she is she is the one example he gives of why is she had two different experiences in two different restaurants that's illustrative are you saying he needed to do more than that he needed to go through in his opinion all thirty seven her you know it's thirty seven states it's five hundred sixteen hopkins you need to do it five hundred sixteen times no he didn't need to do it five hundred sixteen times but we presented a tremendous amount of common evidence uniting all of these collective members not just a uniform job description and a uniform classification and repeated admissions by chipotle a that all of these collective members have the same core duties and they can they be s situated even if there are vast differences i think that probably day it depends on what those differences are so for instance are those differences immaterial to the exemption question line with the crude chopping vegetables and things and then in kentucky it was only thirty percent of the time and the rest was managerial stuff that's that would sort of end the inquiry right there well it might end the inquiry with respect to her but saying i think that there are two things i mean one is that he just didn't analyze or consider the bulk of the evidence that showed that apprentices were largely consistent not just in terms of what they spent most of their time on but also in terms of these particular management duties we also disagree with his characterization of the evidence and his specific factual findings because we don't think that they're supported by the record and they o thank you good morning your honour's richard simmons shepherd mall and may it please the court to begin with i would enjoyed the opportunity to respond to just judge chin's question which was can they be similarly situated even they'd be similarly situated in the overall sense that all apprentices are one job description there are many common issues and yet there can be differences among vast differences in the particular circumstances and yet they would still fit within the purpose of the statute no i don't believe so and if i may answer that in context and i will begin with the two sixteen b analysis of similarly situated consistent with what i think the court's attention is focused on at the moment the district court evaluated evidence at great length that was before it and determined that disparities in the primary duties actually performed the standard adopted in miers made apprentices have differences in their duties that were so great that it could not allow any representative proceeding to go forward the only question for this court to determine is whether the district court applied the correct law to hold that the plaintiffs failed to meet their burden or you understood you agreed that the standard under two sixteen be as lower the standard rule twenty three i do i do i think that's clear and and and on ph seventeen the district court employs this concept of a sliding scale and does seem to say that the bigger the classes the more the analysis will mirror the rule twenty three analysis i mean is that correct as a matter of law well first of all the court prefaced its comment at page sixteen well he did not apply a sliding scale standard i will say by the way that the quote of integrated which is what the plaintiffs hinge their entire argument on is simply a quote the court first identified the three pronged analysis that has been followed by district courts in this circuit for many many years the so called ad hoc test it first quoted the three prongs of the analysis then put a heading under disparate employment settings in the text of the decision and under that it began with a site to end a grid which had a sliding scale reference interestingly part of that very same quote appears in ruiz back and look at the big picture putting aside class action but the collective action five hundred and sixty employees have opted in they've said we want to be in on this it would be would be difficult for them to bring individual cases it wouldn't be cost effective center and there certainly are many common elements there are many disparate elements but isn't this the kind of case that would seem to fit within the concept of a collective action i don't believe so your honor i think consideration is in terms of even the third factor fairness and procedural considerations so it is something that we think about well if i could your honor i'd like to address the first factor to begin with because the court first identified the just employment settings and in that regard it had talked beginning at page fourteen of the opinion of the order of both the vast differences that existed in different employment and after it talked about the differences in management structures some restaurants had g m some did not some had restaurant rest for tours others did not some were run just by apprentices such as the kentucky restaurant that was run as ms kelch wished it to be run those were factors analyzed and is under the just great employment settings analysis and if the court finds that there are vast differences in the employment settings caused by differences in management structures in sales volume in managerial styles of the various apprentices in that impacted directly the way in which apprentices perform their duties as big class actions are try i mean every once in a while one will go to trial but but you don't need to have a perfect similarity right you try the common issues and then you have the individual members of  the collective action can then you know whether it's in front of a special master or subsequent it's many trials i mean there are mechanisms where where it seems to me why would that be more efficient you deal with the comm first and then you have the individual follow up and there may be the the person from kentucky who doesn't belong or the or or the person from new york who does but you look at those things after you deal with in a more efficient manner with  common issues well your honor i think the court devoted literally five to six pages of its analysis to addressing the different factual situations and allegations regarding primary duties that more than forty apprentices testify to either in declarations or in deposition testimony or in both it talked about those disparities that's critical and those are factual findings of the court which is you noted at the outset are entitled to considerable deference and should not be overturned by this court given the dissimilarities and the disparities that have been testified to it is not just ms kelch is testimony that is important although it is important because as was pointed out she said that in oregon she had a general manager or who oversaw her in limited her leadership abilities whereas in kentucky there was no general manager a difference in the employment setting and she was free to manage the restaurant as she wished but the court did not leave it at that the court had already said on three pages of its order that there the plaintiffs had testified inconsistently so as to make them disparate and not similarly situated that's the finding of the court with options it also address that the clients consisted of six separate states right the proposed class yes right i didn't see any that the plaintiffs had failed to offer the district court any analysis of the differing rules and exemption criteria in each of the six states so they failed initially to get to address or meet their burden they simply said that the standards and criteria in the sixty eighth would be quote identical close quote the district court then hasten to point out that he disagreed and they were not identical he then provided illustrations of the material differences that existed under the laws of some of those states including criteria having to do with the percentage of time that can be spent on nonexempt duties and people still qualify a that reason the obvious reason of the court pointed out the rule twenty three appeal could easily be disposable because the players failed to establish the appropriateness of classification for each of the six states that was a result of their failing but the court then pointed out that it would have to be addressed with individualized proof and a series of mini trials in the context of that analysis and it went from the discussion of the failure of the plaintiffs to establish predominance to their failure to establish superiority so the court did address that issue and the problem was created by the plaintiffs there's some tension with judge carter's commonality finding under the rule twenty three analysis and then his predominance findings and then his that which the predominance findings then sort of carry over into the f l s a collective analysis and you don't seem to be defending his commonality right i think this is the very same issue that this court wrestled with in miers were talked about the difference between commonality under rule twenty three a and predominance under rule twenty three b three and the court pointed out in miers and judge carter pointed out here there is a difference between mere commonality where common issues exist and the issue of predominance where the real question is whether or not common issues predominate and here judge carter did specifically address that and he stated among other things that the disparate accounts of the way in which apprentices perform their duties and the authority that he chad was fatal to the predominance analysis you are then you're not taking issue with his commonality findings no i believe there is a commonality does not equate to predominan in the judge pointed that out and so taking the commonality you don't take issue with it and put it in the context of the collective actions of the commonality not support the argument that they're similarly situat do not believe so your honor i think if the court applies the three pronged analysis which both sides advocated to judge carter there's no dispute about that that was the standard that both sides said the judge should apply and in response to that he did apply it it was the standard used in district courts in this circuit even though the second circuit has not previously articulated a different standard but it has been applied in cases that have been affirmed by this court would it make a difference if we apply the ninth circuit standard to the well i think not and if we take a look at the campbell verses los angeles city of los angeles decision one thing that is really important to note is that the ninth circuit concluded that the district court had applied the wrong standard yet nevertheless affirmed the decision because the right result was achieved and that would be true here too i do not believe that the ninth circuit standard which rejected the minority rule and the majority rule in devizes so rule is a correct rule and i am from california by the way nonetheless i think the ninth circuit got it wrong but what it did get right was the fact that even if you find the district court applied the wrong standard you nevertheless affirm the decision because it is the correct result thank you thank you thank you very much the trip back to california to hear the rebuttal i mean california to your honors if you agree that rule twenty three is not the correct standard for similarly situated that similarly situated applies a lower standard than rule twenty three then the district court's finding that the plaintiffs here met commonality should decide the similarly situated analysis certainly if this court adopts the test that set forth in campbell because it it essentially mirrors the commonality finding and in fact campbell said we even think it should be somewhat lower than commonality so a few a few brief points there's really no place for a sliding scale analysis under two sixteen b two sixteen b s says in a very straightforward way you can proceed as a collective so long as you meet the similarly situated requirement there's no issue about how many people you are what really matters is whether or not you've established a common policy that applied to this group of people regardless of how many there are in this case we had a relatively small collective in comparison to many collectives that have been certified  just turning to some of the differences that the district court thought would make a difference here in terms of determining the primary duty of the job things like sales volume the management style of the general manager  whether or not there was a general manager or restaurant or whether the apprentice was the on duty manager those are the types of factors that courts have repeatedly rejected in these kinds of cases recognizing that in no restaurant or location are all class members going to be identical to each other in any employment case the live human experiences of these class members are going to distinguish them and we certainly don't claim here that all apprentices are alike but there were these we would argue that the court should apply it to novo standard in terms of whether or not as a threshold matter the court adopted the correct standard for predominance superiority and the two sixteen b analysis it can illegal error was not engaging in the balancing analysis that is what predominance requires and there was no balancing of these individual eyes questions to determine if they were of the magic magnitude to make those questions predominate going back to the similarities with respect to certain management functions so he didn't consider ok if people do have these dissimilarities in whether they have the they've they've scheduled employees many times or just a handful of times is that really to make a difference alternately in the predominance analysis we're not looking for everyone to be identical but whether they perform the same baseline responsibilities which they can even if some people scheduled somewhat more than other people for our case we asked the court to certify state law classes for each state law we had a class representative for each state law the state law is at issue here largely overlap the the difference is that two of the six state laws have a quantitative analysis for what their primary duty is and the other's look to the most important main principle of the job they track the f l s say so we didn't think that distinction would make a whole lot of difference because we're going to look at the same evidence regardless of whether you use a quantitative test or not and in fact the f l s say and the state laws that are in quantitative still consider the amount of time spent on exempt work it's just not a dispositive issue thank you thank your honour's thank you