versus genesis health care position in this appeal is that there is no difference between this case and this court's previous decision in weiss versus regal collections in the weiss decision that involved the rule twenty three a plaintiff but here we have a statutory form of aggregation with an op dan and why it why isn't that different from this particular well that's a difference i don't think is a difference of any relevance though your honor here you have congressional inten displayed through the actual statute of juice into section two sixteen but there should be a collective action mechanism in place for the trial of these cases for the handling of these cases in the wise decision you simply had a rule twenty three displaying congressional intent cases should be tried treated under rule twenty three for all the purposes that underlie rule twenty three the distinction between those two devices it has no bearing on the analysis that was set forth and weiss that has to do with the concept of relating back in time the decision of when the case transfers essentially from an individual plaintiff litigating on his or her own to a representative action and the reason that relation back had to occur in a wise has to do with the  potential for moving the case through an affirmative effort by the defendant to sensually pick off the plan of at the outset a name on a be three class action everyone is in from the beginning unless they eventually opt whereas here on the opt in there's only one person who starts and then the others have to jump in to make it affirmative decision yes that's absolutely true but in the wise decision that that distinction between the opt in and the opt out mechanism bore no bearing because both in both cases this case in the wife's case there was a moment in time where the plaintiff was susceptible to having their claims muted because nothing had happened with regard to the classification decision that's the reason why in the wife's decision they had to employ the relation back to us if there was something unique about rule twenty three the granted the plaintiff in a wise decision which had done nothing more than the complaint alleging the class allegation if there was something unique under rule twenty three they gave that plaintiff a claim or to create a controversy or a claim beyond just their individual claim they would've had to use the relation back wasn't there a distinction in weiss in terms of recovery that could be had if it was allowed to proceed as a class action and that under the fair debt collection practices act congress had provided for certain damages on a class and he says that otherwise wouldn't be available you don't have that here you don't have that here and the courts did mention that in the opinion but i don't think from my reading of it that that with the decision ultimately turned on i think it ultimately turns on the court seizing upon the relation as a way to prevent aggressive defendant from forcing the court's efforts to analyze whether the case should be treated as a class action or will twenty three there and what we're simply asking here is that we use the same get involved in this process oversee that process and allow for the collective action devised set forth and to sixteen b to take place there has to be that conditional certification process that has to be an analysis all family of one of the claimants  similarly situated doesn't make doesn't make any difference whether the conditional certification has been dropped now from role twenty three although it still is it's in the it's in the statute this doesn't make any difference i don't think so your honor because under rule twenty three the court at all times have the ability to reanalyze the class anyway i think that that change in the rule will twenty three just really pertain to the timing of when i was sort of occasion decisions were circumvent this collective action process like i said and weiss it was it was trying to sort the central twenty three here we're trying to circumvent to sixteen day and that you know and ironically it shouldn't be lost on the court that the rule that they're seizing upon to do just that is sixty eight and the underlying promised policy of rule sixty eight is to get rid of cases that eliminate unnecessary litigation well if this is allowed to go forward and people are going to pick off from their claims you're going to have a  litigation on the same exact issue whereas before they could have been tried in one case with merit is not lost i mean i hope it's not lost on the court that no good is being done by allowing the defendant to pick off a plaintiff in this manner  can this be easily remedied by plaintiffs counsel my having starting off with let's say three or five or ten point zero s it could it could draw from some other decision a lot of this out there that says that once one or two or more people have opted in then you're already past that point of being able to be picked up the problem with that is if that's what we're left with then we don't have the benefit of the hop in the british mandate which is to allow the district court to get involved in the this process otherwise it's the wild west again which is what was happening before the hof in the rush case the whole purpose of it was to allow the district court to get involved with the process from the outset to make sure that the notices were fair and timely distributed if we're going to go back to a to these cases because now plaintiffs aren't going to even have a court gauging any analysis they're not going to be any opportunity for the court to do that analysis the fifth circuit in sand has talked about the need for the motion for conditional certification to be manager or giving us a short period of discovery prior to filing that notice motion the other reason in the reason we asked for that short period of discovery is that we had simply our one plaintiff who based on her testimony and her statements  seen something happen that work that clearly applied everybody else in the workplace however the standard for conditional sort of occasion is a little bit of a moving target in our circuit with the district courts some courts have required nothing more than allegations of a policy like that but then the latest trend that we've seen in the district courts is that they require something more in the phrase that they've used as a modest actual showing to us in our intrepid station of it that we need something more than just  of our plaintiff in order to satisfy that standard not much more perhaps we wanted to obtain that information through a short period of discovery with the defendant so it wasn't as if we were being dilatory and we were letting time slide by we had a process and by the way we think actions or class actions or representative actions a few well those are true and two sixteen b contacts the only difference is like i said this is created by congress and their intent comes through the actual statute where the mall twenty three a comes through the actual  resolution in one proceeding whereas if you didn't have that mechanism in place in the same for rule twenty three or more to sixteen b you would have a proliferation of litigation so these things are still there the all these good reasons why picking off to go forward there's actually one more than that in this particular context when you have two sixteen day under under the statute the statue of limitations continues to run for the class members of the that are out there so this is even worse than the wife's decision or the wife's contacts because here you have all the more motivation for a defendant to use this picking off tactic to effectively a road the class down to nothing  consequence is that the statute will run for all those people and they will never receive notice of all that a geisha and never be afforded the opportunity to opt into the litigation and that is express lee kuan cited by section two sixteen b and the relation i'm sorry no your honor because i don't think that the certification motion frankly has any impact there's no such thing really as a class certification motion underwrote six to sixteen the this nomenclature that has developed through case law like doesn't really have any statutory basis there's no there's nothing in section two sixteen b that says you get to send notice it is a function in creature of pop and versus or sterling versus hotman roche the supreme court in the case management orderly joinder of parties that's what two sixteen d is it is a joint or device no where is the word class or certification i should say even mention and  moved so the question is what status is there and it's well if you let the alleged class certification which in which is really nothing more than a motion for notice relate back to the filing of the complaint that will somehow people with rights but that's not how two sixteen be works if the court goes ahead and grants notice conditional certification be you call it what you will notice will go out doesn't mean anyone joins the cases still moot relate back that motion to the filing of the complaint it has no once what how many people as it were out there in the universe that could possibly join of all joined but in this case to to be honest right now it's a lot i mean it's in ex five thousand another nationwide i don't know the exact number why shouldn't weis be extended to this context well i think first of all weis is designed to address the tension between rules sixty eight and rule twenty three correct that tensions those those tensions don't exist with two sixteen bit and if we go right to the policy reasons that underlay well actually let me take this and they don't exist in two sixteen b because because of the nature of the device and the remedies provided for under the fair labor standards act so if we look at the policy justifications in wife's what they call picking off i think we call this a valid settlement of a claim when it gets more than  one as to whether they are similarly situated such that the case can proceed to trial collectively you know the not to rule twenty three there's no such thing as an absent class member in that's the real big hitch here because you  the procedural device of moving to certify the class that is a function of rule twenty three that procedural stake is not existant in a two sixteen b case and the eleventh circuit in the name plaintiff has a procedural right analogous to that provided by rule twenty three such that they can continue to claim a personal stake but wasn't that i thought the airbuses and camera granted also i guess the lights are a case that smith was that there was an actual voluntary settlement that they accepted the offer and they settled up with you and they're out i don't think that that was a determining factor in camera grant or the smith case in the ninth circuit i think that was it a distinguishing factor cited by what ifs the voluntary differences between two sixteen b and wrote twenty three were lost on the sandusky and when you read that opinion they talk about this very point because they say if we are late back the conditional certification determination which again remember is just let's say notice out then suddenly you know the plaintiff so they'll be standing there's nobody else in the case yet it's not that in the plaintiffs actually realize this issue because if you look at page six of their reply brief they don't talk about relating back the conditional certification decision they talked about relating back the opt in notices that is a major difference because you can't relate back to off the notices because the fair labor standards act is very clear the statue of limitations runs from the day you file your consent form so your right invests on the day you file your consent form it can't relate back to the complaint and i think that that in page six of the the appeal of helen's brief reply brief where they say the opt in notice asked to relate back it's because i think they understand that cameron grant banks the sanding argument now i want to go back to the weiss policy decisions you know why is it i think an interesting decision and i think largely ultimately is driven i know you're on the road is largely driven by the statute that issue there that you had a class action remedy provision that was different from the individual rmy provision that made paying off that individual remedy provision a smart such that you never ever would get to the class action remedy provision frustrating congressional intent that issue doesn't exist under the f l a say because because there's one remedy provision you get what you get you get back wages doubled in the event of willfulness attorneys fees and costs that's it now but it might be in this case it conceivably could be for five thousand people correct but it could be four or five thousand people anyway because unlike a real twenty three class you're not bound by a judgment so if you choose not to participate you can tell you right you if you choose to file your own you can you could have four or five thousand individual lot just as easily how many of these claims are out of time so far already i'm well none of them are i mean because it's a three year moving window and you know to be honest with you the sort of chicken little fear that goes on around these cases that  unless you change your practices or you could end the practice or to be a discreet you know topic that happens but going back to the policy issues that underlay weiss you know the first one that you mention about is that the relation back allows players to reduce the spread in this case she gets her fees and costs costs reading can enhance the means of private attorney general involvement want no need to cost for it because it's taken care of by the statute second it's well documented that the two the nature is a substitute for the private attorney general there is no private attorney general under the fair labor standards act there is no such thing as a representative action now the third policy issue noted and weiss that it allows all claims in one proceeding you might end up with multiple proceedings i suggest that that is always a possibility might not happen i don't know but the fact of the matter is that policy justification along can't provide standing it's not a substitute for a personal stake or interest in the case and what the plaintiffs have never done here is articulate what their personal interest or stake is in this case going forward and the relation back argument because of the peculiarities of the fair labor standards act doesn't save them and they acknowledge that in the reply brief when they say they need their opt in notice to rel so in some your honors i think judge belsen read all of these issues before him and did a very thorough analysis of the case realized that the tensions that exist between rule twenty three and rule sixty eight don't apply under the fair labor standards act if you don't voluntarily accept the offer of judgment now when you say the import of the other cases i don't know well well the idea being you can't pick somebody off if they're representing others here you have a multi stage process you have to file the claim on your own and then you have to means themselves to get enough opt in plaintiffs through word of mouth through the internet and whatever it may be to do it themselves so if you don't do that let's say you don't line them up the count or the council doesn't wind them up to begin with and you make them an offer but they haven't yet settled with you why isn't that important here because what in effect a person saying to you i want to preserve my right to seek to represent others two things one it's not an offer of settlement and that in the traditional sense because in this occasion it simply was offered everything she could possibly recover that has never been contest so it's not compromise or claim for me she was offered everything so you go over everything that she saw on her own but eventually she's made it clear that she's going to seek also on behalf of others the fair labor standards if they opt in course that the fair labor standards act does not permit a plaintiff to represent other plaintiffs there's no it's not a representative that is the issue that cameron grant thoroughly and i think properly dealt with there's a lot of district court and he's out there that have wrestled with it as well you do not have a right to operate in a representative fashion allow rule twenty three or as a private attorney general and a fairly long it is what do you think i'm sorry i was president when it's actually acknowledged that in their brief page twenty three of them pottery there was a proliferation of fair labor standards act cases probably five out unions nameless faceless people huge claims and several congress didn't like the onslaught of litigation as a result entered into the act of the porta invision some form of collective action here and it could be that for the next one hundred people that file you may make group sixty eight offers a judgment and pay each one off so i so we could carry it out to one thousand people i suppose but under those circumstances you still think that the purpose of the opt in provision would not have been  a perfectly appropriate procedural device it was used in this case and it has to be followed through on in the district court so they have several times congress has tried to amend rule sixty eight to exclude class action some collective actions collective group actions whatever they may be and on two occasions i think the ways opinion out of those efforts were rejected and to the extent there is a congressional intent to be heard maybe that's where it's coming from i see my time is up your fine in this case is that an employer in this case has no personal stake remaining in the case there is no personal stake that she could assert like a rule twenty three point of kant to the certification decision itself because the certification decision doesn't rule sixty eight or the fs l a as to what you perceive the congressional intent is and i don't know who made that there have been efforts to change will s sixteen the statute itself says that let alone the hofman the rushed supreme court decision when the statute says you can bring the action individually on behalf of yourself and others similarly situated the distinction everybody seems to be tripping over here and it's not a relevant one i but i would suggest regarding the violation back is the distinction of how these classes are defined under two sixteen v that the representative playing up doesn't really become a representative of any body then i was true until file there is somebody that s situated who affirmatively consents to join the litigation so there is that some moment in time the creation of something more than just an individual action at some moment in time that plaintiff becomes a representative they are not a representative under a rule twenty three analysis where that automatically the representative of a defined class that the plaintiff described at the beginning of the litigation but they are representative of a class the sensually self defines but if you can if your client had voluntarily so which was here be able to say that case was not moot i think that then i'd be up against the sorry your honor because to be frank with you i think that the difference here i think is that which really saves the day or really i think it's just strongly in favor of ruling in my favor on this is the whole idea of preventing defendants from picking off a plaintiff which stores the purpose of will twenty three under weiss here to sixteen bit i wrote them and doesn't a voluntary acceptance for some is employed with genesis only for a limited period of time she no longer works there and that may be used to effect change that matters not so much for her but in matters more importantly for other people that have come and gone from that institution because the statutes are running it is mr b dressed correct it is a three year sliding targets it's a three year lookback the way i refer to it but there are a lot of people's claims that are quickly becoming stale because they haven't received the notice or writing opportunities aren't working there and so their claims stopped yes and the idea that well that's just the consequence of the sixteen the mechanism i think it bears noting that that was the same class a quest for the absent class members in whites because all we had there was a complaint filed with allegations of a class action  certified and there's some tolling going on there because there's an allegation but ultimately once the case was dismissed had that case not been salvaged to the relation back dock and those people were out on their own again and then never would have received notice of anything so i think it's very important not to get caught up in the idea of what the certification is versus a representative action i think the point is that under do sixteen b as well as rule twenty three both of these cases move beyond individual cases some point and become representative actions and at that moment in represent the class the dr of relation back what have been necessary that's that was the main thing there the main thing is you had a belated back in order to allow the court to engage in the rule twenty three analysis of whether the case should be certified as a class action so the idea that you know represented of after the motion certified were after the sort of occasion under rule twenty three has some procedural right to maintain the claim on behalf of the class that's great and that's true and that may in fact be something of a difference between rule twenty three and the f l court would like to have a transcript made of the argument and we ask that both parties share in the