to the six circuit clerk may call the first case he numbers eight hundred fifty two fifty eight and eight hundred fifty two ninety eight jesse peers at all versus wyndham they case in resorts incorporated at all or argument not to make the fifteen minutes of the limited time of the court would like me to go through the facts and the proceedings blow up be happy to do it and i'm otherwise happy to jump right and jump right in thank you the magistrate's findings here  cannot and is the law of the circuit he concluded that the sales representatives in this case were representative of the non testifying sales reps that their testimony was sufficient to show the extent the amount uncompensated hours that the small handpick sample of witnesses was sufficiently representative to show class wide live nobody in damages despite the absence of expert evidence or any other testimony that addressed the contention that the sample was reliable question as to whether it was reliable and representative the magistrate declared that it was his prerogative whether there is sufficient evidence in the record to support a conclusion that it can be applied to the collective action is decision reserved for the undersigned we would respectfully i'm not out of curiosity just one issue historical question was there ever discussion about doing this collectively in terms of liability but not collectively in terms of damages was that ever topic ever broached below no i'm not to my knowledge your honor i am certainly not part of the record there were separate i mean that the m intuition with the case is it would make some sense to have done that for liability but i i certainly see the problems that arose by doing it for damages issue and understood and i recognize that that that the question of liability is is very different from the issue that really arose here about the multiple ways in which the claims were advanced by various point of stairs to the way in which they had been directed to have some off the off the  clock work if you will multiple theories that were advanced from individuals that had a certain list let's talk about damages why the why did you have an expert who used the records to put together the expert testimony that's a real head scratcher to me well and certainly your honor it seems like one doesn't have to be much of an expert from my perspective to have poked holes and represented testimony for damages that seems like someone with the knowledge of seventh grade math would have been able to do it and yet you paying somebody all this money and using records that quite rightly or should not have been used well your honor i think that the magistrate judge's opinion focused upon that part of the expert's report and said it's right that's called low hanging fruit when i would have done the same it yes your honor well i i acknowledge that and that he found that it was not persuasive on that point in his ruling he didn't pay any attention to either or did not address either the testimony or the parts of the report that we would contend are the most relevant for purposes of this appeal and that was his emphasis that the plaintiff's class the selection of witnesses was not representative that was subject to selection bias in that there was no indication of eight ways of the rule that the witnesses were being selected what started with the idea of a representative group ultimately they selected roughly twenty out of twenty to twenty five of the people who had been in the original group with a client at that point prohibited from saying well we want to add another ten this was these were the plaintiffs witnesses that had been selected we did it and i got appointed others i'm sorry i get your point i'm a morning if you get my now the words they were non randomly select twenty or so out of the forty six why weren't you allowed to say we'll wait let's just even this out how about these seven or eight other people who had a much lower number of hours certainly the defendant had the ability to call those witnesses on its own we're talking honor and what i'm trying to focus on is the plaintiff's obligation to put on the case to demonstrate representative testimony and the value of the representative evidence it's certainly not encumber cocoanuts tiny's and i started with the liability it and that's you know there's something to your brief on this point but they do have more flexibility so it's just strange for me and now clements has this whole concept that says well if the employer doesn't have reliable  objective our reporting which is the problem here then they put their evidence on and you respond and you can respond with an expert who uses useful information or i suppose you could respond by saying why don't we include the plaintiffs in the quote random sample and i'm just i'm not i just don't understand what you guys were doing your honor i think the fairest way to say it is that we had taken throughout this litigation the position that that it was not subject to representative evidence there were such a wide range not only of the different mechanisms by which the plaintiffs claimed there had been a variance but witnesses very does much as thirty hours a week over every week over a three year period so there's an enormous difference between those who are claiming that they work eighty hours every week for three years first as those in the plaintiff's group who said fifty hours but i i get the point and what one way to think about it is that you were being very principled in the sense that you were saying you can't do any representative testimony we're just going to hold that line but what i don't quite get is why you could the alternative we still think you can allow any representative testimony at least on damages but in a minimum if we're going to use these representative witnesses you need to add these others because those were high ball estimates and here are some people that are in the low ball side and that will make it more fair that's the second part i don't understand you know it's called arguing in the alternative it's not conceding the point it's just saying we're stuck with a magistrate ruling against us on this threshold point well on on the the certification the denial of the certification that that was a ruling that was four days before either before trial commenced it was after discovery but just before trial that's the same time at which  i think ironically it was just two days away from the time in which the judge disqualified the plaintiff's expert so to the extent that they had intended to have their case include expert testimony as to the selection of witnesses and the estimates on time the judge granted the motions strike that expert and preclude any of his expert testimony during the trial what's your main complaint about  are main argument your honor would be that the class should not have been certified and should have been certified because of the wide range of the three different classes of sales representatives seven different theories that they asserted that  various individuals had they claimed been subjected to to lead to a very wide variance in hours the fact that there was a very wide variance in earnings on the the value of time that individuals had so it's primarily i think your honor on the surf occasion because absent the certification it would have been a case about the test to find witnesses that's why quite frankly our suggestion for remedy would be to remain on th we would take that position that there are individual defenses that should be presented which we don't have the opportunity to present in this action as a practical matter if it had been broken into groups that were  better groups with greater similarities so that they were similarly situated it could be done in that way was there any effort to do that was on when i was well i only heard by agreement basis i'm sort it did want i know you were already asked whether there was any attempt to separate liability and damages but did you make any arguments that there should be at least there should be subclasses she's just she's responding to what you said you said they could have they might have been able to do it if you'd had different subclasses and she's saying did you try to do that i was responding to the judge  on on remained as to how it would be addressed great that i was asking you said at least there should have been you know you could have grouped them and i'm and i asked you whether you made any argument or request for subclasses i think i did not believe that it was really a challenging of the representativeness of the witnesses that we took in all the ways i say until until less than a week before trial that was the argument pretty certification that we were advancing i do think it's somewhat so i'm not sure i understand the answer now to judge cyrus question do you think if it were remained did it has to be what what should happen  you're asking for every man it seems to me it's fair for us to ask what that looks like to say that of course hundred fifty six liability in damages trials is it three subclasses is it liability once and then separate damages you tell us because it seems to me we're entitled to know what you plan to do if you win of course first we would ask that it be reversed and remanded with entry of judgment for the defendant because we believe using the mike clemen analysis that in fact the plaintiffs did not meet the standard of a just and reasonable inference on it as demonstrated but i thought now clements was the damages case it it was your honor but if so if there's liability you wouldn't win it's a matter of law and there was evidence of liability but my point your honor is that the mount clemens case was used to establish liability in this case on the argument and if and i won't because of the time i won't recount all the briefing on that but the argument was made that there's a just and reasonable inference they comes in mind clemens and yet the district judge the magistrate rejected that i think it's a pretty hard case to say you should when it's a matter of law on liability and that seems to me under certain let's assume there's some there is some liability what that's what should this look like on remand if you get what you're asking for it frankly it should go back it should be decertified in the courts address the liability to the individual testifying plaintiffs the name plaintiffs in this sewer stablished from their own testimony and from the other evidence that they presented in support of their claims whatever they had as long worked over time as opposed to taking that reaching some kind of that the plaintiffs took all of those numbers and came up with their sixty i mean reality mainly the answer to judge side of this question is it really does have to be one hundred fifty six trial trials no no your honor i would submit that while they would be dismissed without prejudice those who are who are not the name plaintiffs may may not proceed on this if they don't have additional evidence on it if every single one of them wanted to pursue it they would have the ability to file new individual actions but but i do if you're asking what i would request and what i would intice to pay it goes back and we resolve it for those who tried their cases the  were twenty five plaintiffs he testified about i don't obviously that is all of that were being represented in other words the people that didn't testify weren't opposed because they were being represented by others evidence they would have a shot a memory manager to say at a minimum to file an affidavit to say will here's my claim as to why i work more than forty hours a day i'm just saying i get your point if you don't think it gets to one fifty six no i don't i mean seventy seventy of the plaintiffs in the class the names were never mentioned in three weeks of trial this was a case about a much smaller group of individuals with but that's what a representative case is of course of course so that they they absolutely have the right to pursue it but i think that the record was that there was such wide variance there were some that i made there were individuals who received under the allocation a district judge will get a quarter of a million dollars of overtime there are other people who will get very small amounts because of the very limited tested effect us that the magistrate has retired as a as a matter of setting the law of this circuit in the stablish in what is necessary for a representative action to go forward it should not i recognize that it is a matter of she dish will economy it's going to be more difficult to send it back and i think frankly the magistrate indicated that before trial that he was what what would have stopped you from i mean you you say there are some that work maybe two hours of overtime so what would have stop you from calling those people would have stopped us from doing it we could have put on individual cases in that i do think that as as judge sutton recognized it was a matter of taking a and standing by a principle an admirable principled stance but we don't agree with that so basically you lose weight across the board because you didn't make these individual we we lose and  the court takes a position that represent th their representative evidence can be presented without any expert testimony supporting it without any indication that representative testimony is appropriate despite that why disparity just like i just want to make sure that i  white's questions so i didn't you say in your briefs things like how unfair it is like a due process violation to rely on people who work thirty hours more than forty as the representative employees and her questions are such a fair question because you're saying that's very exaggerated there are some people who may not even of work forty hours why would you not put them on and examined them and in the stablished that gosh there's not even a violation as to you or if there is a violation you only work three hours over forty and a week what is the answer to that question i think that that was essentially a principled and strategic decision as opposed to an effort i do think that the judge commented a number of times said and in his opinion commented a number of times that it was already a long trial and so while he asserted several times that defending could have called subclasses we would say that that would take the position that would have been inappropriate but it would be do with the fact that the the ballpark estimate and you know very pragmatic by the trial judge in good faith and all that i can certainly understand why he did what he did but there is no way to justify the hundred fifty three hours that we you know you can read and spend the rest your life reading the record and you would not come to that number the one hundred fifty three at an average how he averaged it out all right this is part of your complaint you guys are everybody's complaining that it's i mean the one thing you agree about is that the dollar figure used by the hour figure used is wrong or not supported by the evidence so how strange well it is for us in this situation to have something that the record just not support both of you don't think it supports it i mean i've heard of this just to me and i must say put my cards on the table really shows how crazy it is to be doing representative abbott ends on damages in this this particular case i mean this was not dawning and doffing where it really is fair to say it takes about three minutes on average to put the clothes on or it takes about three minutes to get from the the the the rest room to the floor those make sense it makes no sense to do it here where they had so much flexibility in terms of how that so answer it how you will but it's  memorandum found the plaintiff's witnesses to be highly credible found the defendants witnesses to be not credible and also found that the time records were grossly grossly inaccurate so it also realized that perhaps the selection of the people that testified were not really that random there was a risk of cherry picking i mean obviously plaintiffs are not going to pick the lower estimates so well in terms of the just it just doesn't it really does seem like due process problem i must say after the poor after we had our pretrial america initial case management conference and that was for discovery ultimately the court allowed the defendants to depose all forty seven people and i think fifty two people allowed the  defendants to take whatever discovery they wanted so i think you're making it seem like you can deal with an evidence problem with more process and to me the key observation from tyson's foods is this is an evidence question and the evidence question is don't think of it as a multi plaintiff's case think of it as a single plaintiff f l s a case what evidence would be fair to use for the plaintiffs in estimating for three years worth of work that's that's the way to think about the case and that's that's taking that straight out of tyson's foods and what i'm having a very hard time understanding is how you can use twenty thirty whatever the number is for the one fifty six when even the twenty and thirty are all over the map so you just wouldn't it wouldn't work if you were doing this kind of testimony for one person how can it possibly work for one fifty six that tyson does not does not abrogate mt clemens and once we showed that the calm records were accurate inaccurate then we could prove that our work by justin reasonable inference in the burden shifted to the defendant to that's why the similarly situated is so critical that's what you have to you don't just say some of the situation the abstract you have to say similarly situated sufficient that you could do represented testimony that would satisfy the rules of evidence that's the link to tyson's foods you have to do not clemens with tyson food if you do just one due process problems you doing together you avoid the due process problem but they are similarly situated they all had the same job duties and responsibilities engaged in sales they had if you picked the right level of generality your level of generality is they were abused in terms of over time violations that your level of generality that makes them similarly situated and that's not sufficiently similar situated to allow this kind of evidence in a representative prove context well they were similarly situated in that they were subjected to the same billygoat policy of being forced to work off the clock but your best case that you're reliable there to show that th we have no complaints about the way the judge tried the case or has complained about the damages that the fifty two hours after going through and saying that the plaintiffs proof was highly credible  nothing in the record showing that the debt the whole january february issue which i think the judge found significant well with due respect to the judge he was incorrect on that because the average is estimated averages that the sales representatives testified to took into account cheney wearing them were some of them i think some of them it and i think most most dead for example there were some of the less productive sales representatives they did not work in january in february so that those were not included in calculating the average number of hours worked some of the higher producing sales representatives because it was still the slow season they had to be there so so adults taking them why does it make sense to have a this type of representative case for damages i mean you have some people who never worked in january and february and you have others that had plenty of hours all throughout the year that didn't affect the average number of hours they work during the recovery period for example if they work they didn't work january and february when they testified as to the average number of hours they work week they took into account that they weren't there working and we didn't include that in the calculation the flipside of that those who worked long hours during january and february took that into account but but the whole idea was that the judge was going to come up with with one number right that was going to be apply to everybody so how does that work i mean i understand i understand it may even protect the defendant a little but how do you compensate the class like that on an estimated average approach your honor and there was no we disagree that was not wide variation in the amount of time work per per week the average the evidence about when the discovery people left work force that evidence with the discovery people left work yes for the like in the morning or when the work that would be in the afternoon usually i think in the same day there well they all testified they all testified that they were required to go to work late because the building the lower produce where is the testimony for the sub class but there's three different groups of sales people to discovery people where tell me where in the record give me a page or something as to when they generally left work you can't just say they worked all over i think that money back to your that your whole generalization is always their work more than forty hours a week that's not helpful but what is the testimony as to that group there are nine of them i think and only one testify as to when they left work you had his testimony of the discovery representative plus the testimony of the other sales representatives in their observations to discovery representatives were the last to leave because they would attempt to make a sale but as with the last to leave me in terms of making either backing up fifty three hours or sixty three hours what does that mean there was some variation but it was generally five six seven o'clock at night and ok so if i go to the where where am i going to find that five six or seven o'clock and i think if you look at the testimony o the discovery representative who testified as well as the other which one should we use for the savage which one off the top of my head i would have to go back and dig through the transcript to see which witnesses testified about discover s only one discovery which there's only one discovery salesperson that was the representative testimony well that's that's not correct your honor because we had other other plaintiffs who worked in in house and  frontline who testified how discovery worked and held that but the discovery representatives had to stay there i think all you said is they left later ok so that means all they really are saying is they were still there when they left ok that's all that means that doesn't give us any indication whether they stayed a minute later or two hours later i'm asking you so that that group can't be helpful that leaves the one person what did the one person say what was this representative testimony about half of the nine skiver salespeople as to how late they were when it comes to the end of the day what is that off what is that generalized off i used to really straightforward i'll show you off the top of my head i don't know exactly what the witness said i don't know john and i would my understanding is there's nothing on that but there were other witnesses to didn't williamson testified that the discovery representatives had stayed later so close it fell apart that just proves they were there when they left right isn't the point the discovery people stayed later so the all the other witnesses wouldn't tell you when they left they would just say they were still there and are we on the same a missing something no no and i mean there's there are variations cannot help you in terms of calculating a number because it all goes at the end of the day every witness testified as to the average number of hours they were per week so what time they got there a what time they left on a particular day didn't matter did it it did not matter for our thought that's the way this this case was tried it was just this rough estimate and this is just so astonishing to me and then the rough estimates become representative testimony for these hundred and thirty other people but i think they don't go back to that the case was tried without limits there was no there was no never was it that we were limited to forty seven of the randomly selected people for the initial discovery purposes and the same thing with the defendants i mean so i get your point your point is they could  brought in the other hundred thirty people but that doesn't answer the question whether the people that did testify including this one discovery person or representative witnesses or representative evidence works and again i really think it's an evidence point but i again i go back to mount clemens in the estimated average i mean we hear of one hundred fifty six plaintiffs testimony was presented from forty what was the amount clemens repeated act that was led to overtime i believe it was off the clock but i got that what was the common act and other words here it's people staying late to close  deals i don't think that was a dining adopting case was that how long it takes to get from the put on your clothes to the workplace case no i what was the common act that led to the i don't know was under counted i'm i don't recall  the common act is requiring to work off the the clock whether that be telling the sales representatives make sure that you're not on the clock forty hours having the sales reps clock clock out early clock in late not clock in it all so it's there's not subclasses these are all it's not like in monroe where you had ace where your honor brought up the issue of a subclass being necessary because one of the ways that off the clock occurred was not necessarily a n f l is a violation here these are all ways in which the company accomplished the illegal scheme of working the sales representatives off the clock so they didn't have to pay them overtime having a lot of this discovery people come in and like have how do you know that is the way we quantified it at trial was the testimony as to the average number of hours that they work per week as we did with every every witness so that's how we reconciled the there and nobody said they work two hours after the rest no they all have their testimony was that they were required to they were the last shot where the if the in house and front line sales representatives failed discovery was the last shot to try to sell them a trial package for for wyndham's wind ups timeshares but that the proof we presented of forty forced witnesses of the plaintiffs is twenty eight point two percent of the class which is far more than what was upheld in monroe and we cited in our brief numerous other cases so with all due respect our proof on damages w representative we presented testimony of twenty eight point two percent of the class we presented documentary evidence on top of that so when you take all the collected proof it warrants a sixty three point six six hours and  the judge gave no rationale of how the defendant's roberte rebutted the burden after we established the time records were not true but if we don't think it should be sixty three or whatever years is we don't think the fifty three can be supported by the record but that was just pulled out of a hat but we do i think that in other words i know you didn't even get the option you want and i'm just i'm just making this up but we don't think the evidence supports sixty three we don't think the evidence supports the fifty three what do we do at that point i think the court can make a determination based on the record and we should we pick a number the rain where batters a fact i think you could pick the number or you would remain back for the with instructions to rule consistently with the record at the district court but not on liability liability to a judge with a new judge with either a new judge we've we've judge but that would be on damages only a la bill liability we submit is this and i don't i don't know exactly what we should be doing with this but i am sympathetic to the point that there sure does seem to be evidence of liability i gree with that and i can see i'm not i'm not that uncomfortable with even doing that class white basis or collective basis the damages seem to me a complete mess i take it there's been no settlement conversations with there have been not not a while have you invoked our person paul calico sheriff i don't i don't think we did that in this case awfully good he's he's really good i mean i mean it's up to you but if i were in your shoes and i'm i'm happy to have us postpone something for a few weeks to let you have that chance but we're not going to waste our time if you don't want it so why don't you guys talk about that at some point  calico we raised this point but it seems to me we're thinking about  rebuttal on the last point you raised we would finally accept an invitation to to the ho we'll have mr calico call you both and it's obviously confidential and we won't do anything till he tells us to we don't wait long we're speaking for myself i'm very impatient we may have met you may have noticed that l the case we would rely on and think that is most controlling and influential now was that tyson's food person who thinks it's a case that really establishes the proper standard on it now and and and case in that there was an agreed upon representative sample in the mid road case and as as we established the last time i was up here there was never an agreement on a representative pool and while there had been numerous references to how it started out as a representative pool it didn't end up that way the plaintiffs expert was put out the witnesses were not selected at random by plaintiffs to put on but they were the ones  so really it is not as easy to make an argument that there was a representative pool from which the testimony was drawn as it was in the case and you think that's a significant difference or yes or grow because of you for your helpful briefs and argument thanks for answering our questions we appreciate it we'll talk to mr calico and his services are available as long as you want them thank you