thousand and fifteen denial of class certification and its two thousand eight hundred refusal to would disturb or amend that denial the district court's orders contravene bold u s supreme court and this court's precedents on rule twenty three  predominance the washington supreme court's decision in brady vs autozone and state law defining what constitutes a valid neal break waiver this court should reverse and remand so we're on a standing theme today and  client mr brady retained in terms of an interest in this case he has it your honor we knew about new ruse and all of its progeny when we drafted the settlement agreement we drafted in mine he has two direct financial interests one  is that under washington rule of professional conduct one eight he is responsible personally for all caulked case costs that my firm has advanced unless the case is certified somewhat of an unusual rule but i have it here it says that the client is remains ultimately liable for such expenses unless and this is obsession to matters maintained in class actions this case in order if this case is certified then it maintained as a class action and he is no longer responsible for thirty five thousand dollars in costs i have with me here in the bill that i sent to mr brady last month will be sending him another one this month the costs are thirty five thousand five hundred and sixty two dollars  seventy three cents unless the case is certified as a last action he is liable for those cos that's his st direct financial interest the nd financial interest as judge posner recognize if the case is certified is also sufficient for article three standing so again we have it directly to direct is there something in the selman agreement or something in the record indicating the incentive an agreement well if you can agree to an incentive award your honor in a class action settlement it would have to be for the court to decide the ones of critical thing there is no release of claims in the settlement agreement that makes it different than any of the other cases that this court has decided there is no release of claims he simply said all his individual claim for value five thousand dollars a lot less financially than what his kids cost potential liability is and so i'm not understanding the role of incentive or it's i've certainly seen in other class cases where the lawyers have told the lead plaintiffs that they think ten thousand dollars would be an incentive or if the class forward so is there anything like that in the record there is nothing in the record i mean it would be it's kind of putting the cart before the horse the court would have to st certify the class and then there would have to be a resolution in the classes favor on the having no longer being responsible for thirty five thousand dollars as a matter of law is a personal financial interest and that is decision and to me why he would settle for five thousand dollars when he is potentially on the hook for thirty five dollars seems a little backwards a plaintive could end up having to pay out a lot more than he settle for there's got to be some more here than that that it had frequently was the law in discrimination cases until the two thousand and five tax reform act is called play there were lots of stories about plaintiffs having to pay more on the only settlement we settle what we could agree to a subtle meant for and that we did not include settlement of the fees and the cost there's no settlement of the cause in the agreement we reached an agreement that wouldn't would we men that we believe to mimic would have been the outcome a trial we believe defendants would have prevailed on their summary judgment for his claims prior to august bankruptcy and after he signed the waiver and we believe we would have prevailed on most of his meal break makes a lot of sense but that is the law and that's the law i've been dealing with since doing twenty years of class actions the fact remains in every one of my class actions we send the client a bill until the case is certified and then we don't and so it is a direct dollars release me from that and then the new named plaintiff would carry on the burden to care to to pay the car the r p c your honor is a governs the relationship between mr brady and my firm and so the settlement to go initially and get him out and the defendants were not good you could have agreed to release him from that i'm not allowed to do that under the rules of professional conduct until it's a maintains a class action right and in terms of the settlement they were willing you know that's not what they were willing to pay five thousand they weren't willing to pay forty thousand and that's where we were and this was an arm's length settlement for value that that so again i don't think there's any question about the article three and we will be very hard to sail this between the still encouraged us of no personal stake and no final water and well  telling me you can't really i can't so i i'm not aware it's ethical it's that it's an unusual role and it's an ethical once the case is certified as a class action then my ability to repeat repay it has to pay it is contingent on the rule again or it allows it requires it ok let's back up because that was not my understanding where is the required that is in brady versus auto zone your honor that is what we went to the washington supreme court on and they held consistent with the police case that it is important point there is an affirmative duty that's what the dispute was in the district the air in the district and so i mean you're telling me every day you get a look at the time cards of if somebody didn't take one within five hours you got a call into the office and say hey tomorrow you got to take waiver swallows a lot of territory we don't agree your honor and again the department of labor and industries which not only wrote the regulation but the waiver policy and the policy of the l and i is the only source for a waiver in washington as  prior agreement that you say they recommand does not require this is from the state supreme court recommends but does not require obtaining a written request from an employee who chooses to aid me a period so they  don't indicate that such a prior documentation is required we know that there's a difference between a prior agreement in a prior documentation the written requirement is  is recommended the prior agreement that there has to be an actual agreement is required under the washington law and so we agree it doesn't have to be in writing it's prefer lobel it would be in writing i want to just state your honor just to be clear that the issue whole issue of in to the nd meal break subclass we do have two separate subclasses here one the st meal breaks up class where they have a lawful policy but unlawful practice about failing to ensure the breaks the nd meal break policy defendant in this matter autozone agreed in the settlement agreement that it would not use the settlement as grounds to contest jurisdiction in this court so i don't believe that i can advocate on that issue well you can address the questions of the court however and i have a question as to whether opposing counsel cites and an ethical rule saying that mr brady is required to pay the class costs of thirty five thousand dollars unless there is a class certified could you advise us about the nature of this ethical role that how it works in his class actions i well it does put us in an awkward position your honor in that we agreed we wouldn't use the settlement agreement as a reason certainly we have to obey the orders of the court and well that's the problem here is that we have staff i mean it's not it's not an argument you can either party can waive standing is something we've got to find and so i understand that you don't need to be in here arguing it but we've got to find it and so if the parties are going to help us i suppose we could you know go appoint you know the state bar  in and explain the rule to us and we never agreed to jurisdiction and did not mean to usurp this court's authority to decide its own jurisdiction in any way we said only that it's just it's just hard to ask the questions and not be able to get an answer and i do apologize for that but we felt that that would be breaching the settlement agreement i can point out as a way of answer it in a factual matter is that the stipulated judgment does provide in the stipulated order that each side bears its own costs and fees i don't know if that addresses the issue specifically but we are not prepared to talk about that at the rules certainly if you order supplemental briefing we were not going to violate a court order and i do apologize for the awkward position it's put us in but that is what we agreed so i would like to move onto the merits there's three points i'd like to discuss st is that the district court judge richard jones did exactly as the scores instructed in evaluating evidence and conducting a rigorous analysis of the twenty three criteria the nd point is the judge jones correctly found that the manipulated data these lists of time totals that was submitted by the plaintiff cannot establish on a class basis case under the washing supreme court's test enunciated in brady versus autozone and rd that judge jones correctly found that waiver is a predominance defeating affirmative defense as was discussed a little bit before requiring substantial individual evidence st judge jones correctly exercised his discretion and conducted a rigorous analysis holding plaintiff to his burden to affirmatively demonstrate through evidentiary proof that the class meet the requirements of rule twenty three he assessed the evidence submitted by both parties and it's important to recognize what evidence the plaintiff submitted plaintiff essentially submitted a lists of names of employees dates and then total times of over any time that was over five hours but these were not time records these were excess spreadsheets that planes have generated through a number of processes that they themselves using bookkeepers and  internes generated so judge jones looked at that evidence looked at the evidence submitted by autozone and determined that the evidence was unreliable defense move to strike the plaintiff the judge did not rule on the chance granted their motion to go in front of the washer supreme court to determine the state law issues and the washing supreme court agreed with judge jones ruling that there was no strict liability under washington law it did break that that could make a prima fascia case right the court held that plaintiffs need to introduce evidence that they did not receive a meal break a timely meal break so if there was evidence that showed that they didn't receive a break that could mean a prima facia case but point of didn't submit evidence that showed that plaintiff submitted evidence that was again a list of names and time totals and they want to walk into the court room and drop it on the table and say here's a list with time totals we win and that's because strict liability but the russians supreme court judge joan said no there is no strict liability you have to come forward the prime official case and plaintiff own client plaintiff's to his own client testified that those time totals don't necessarily mean someone didn't receive a break so did the district court say did was the basis of his decision that  fascia case there were two bases for the decision st that mr brady could not make a prima facia case on a class basis he didn't rule on any merits he didn't decide whether anyone did or did not receive a meal break simply that the evidence submitted this concludes are evidence that substantial other evidence including plaintiff's testimony showed did not show that someone did or did not receive a break he found that could not prove a case on a class basis and therefore didn't satisfy rule twenty three dollars and he ruled that the waiver defense that the washing supreme court stated in each instance the defendant can bring forward a waiver defense that would require significant individual evidence and so that also defeated predominance so there were we do not agree e s c six which is the administrative policy for meal breaks states that a writing is recommended but not required the watch and supreme court in the brady decision noted that a writing  webster that says that waiver is simply a voluntary relinquishment of a known right that can be done express doesn't talk about writing or verbal but an express or commune for from circumstances including conduct and eli in its briefing to the washing supreme court conceded that a writing isn't required but that testimony can also support a waiver defense so the watch and supreme court didn't limit waiver in any way and i just i guess i'll quote from the six all it states is if an employee wishes to waive then the employer may agree it doesn't disc talk about writing it doesn't talk about verbal it doesn't talk about an agreement in advance it simply says if an employee wishes to waive then the employer can agree to that an employer can agree to it in advance an employer can make it known that if you want to switch your break in it doesn't impact other people you can go and do that as long as the agreeable an employee may waive that's all the guidance and so i want to go back to the prime official case issue because i'm not quite sure i fully understand what your position is is your position that because waiver can happen in a bunch of different ways including informally that's why the evidence presented doesn't meet a prime official case that's not the sole reason what what plaintiffs do is they they put this list together and we pointed out in our motion to strike that there were errors that caused those time totals to be incorrect they nine which is part of a motion to strike in any event they say that these time totals five hundred and one to fourteen dollars or whatever show that someone didn't receive a timely meal break because someone needs to clock out to take an unpaid meal break but the evidence including in really primarily from their own client is that that doesn't necessarily mean someone didn't get a meal break you don't always clock out he had meals on the clock paid meal breaks no clock out there it would be eight straight hours ten straight hours he got a timely meal break but it doesn't show on the clock time he also testified that other employees in his store ate almost a lot bigger than so on that balancing on the burden shifting analysis that the washington supreme court set why wouldn't you figure that out on the on the nd prong where the employer comes and says this wasn't a violation because planes we don't classification you are not weighing the strength of evidence in the way that you're going to do when you actually prove a case we're trying to figure out if there's enough to address the elements of classification and so i'm i'm struggling a little bit with it seems like some of your arguments go to the weight and strength of this evidence the merits of this evidence as opposed to how the evidence would be used in a class analysis well this evidence wouldn't benefit a class analysis because again their claim is they can prove their case with just this list and this list doesn't show when people actually received a millbrook there are times that there was testimony that there were times when block time was put in wouldn't show me a break but people got a meal break there were times when manual time was added because of a missed call a time clock that wouldn't show isn't your point just that for purposes of class certification this is an individualized inquiry and therefore it's not it's not subject to or should be subject to classification because you can't i mean you can't just look at one thing and say ok these people fall on the side these these other employees fall on the other side it's so individualized that it's not it doesn't work classification well that's exactly right and that's what judge jones said he said if you look at this list you don't know one way or the other you have to go to individual evidence there has to be more evidence and ultimately it breaks down into an individual question because if you determine from one person on this list that they did or did not get a break it has no impact on anybody else and so each and every individual has to have an individual determination regarding whether they received a meal break for there to be a crime of a shell if if if you were wrong that written require written agreement was required before hand presumably it wouldn't be individualized because then you could pull up just data that said hey these are written waivers these are not written waivers but if you're correct that it implied waivers satisfy that then it seems like that that that makes classification pretty difficult here absolutely there were the two bases one promise facial requires individual evidence because of the way plan to put their case together the other is that the defense of waiver requires individual evidence because there is absolutely washes but it's no more that type of evidence i mean if it was a real if written evidence was required it would still be individualized would be pretty easy to determine but if it's implied then i mean that could be satisfied one hundred different ways i assume i agree in verbal as well and there's substantial declaration testimony and plaintiff's testimony that he would verbal yway have to work through lunch to leave early in this washington burden to prove it affirmative defenses must be considered and as this court held in in true health if an affirmative fence requires individual evidence then it is predominance defeating and there is substantial evidence in the record showing all of the individual facts the people that testified i needed to pick up my child early from from school so i would verbal leeway or i needed to go to medical appointments so i verbal verbal leeway in addition to the implied waiver which is demonstrated by plaintiff's own behavior in that he would often stay past his shift and stay past the mill break at closing time so he would be the one to grant the waiver and ask for the waiver so it because he was a manager although an hourly employee and so those types of required presumably there were some written waivers granted and so would there be a subclass i guess it wouldn't work that way because it is written way or they wouldn't be part of the they would be part of the class  defendants answer questions that they're violating the settlement agreement no i would not i mean i think this is a question of what the law is an article three and i don't think the settlement agreement creates the problem article three probably you wouldn't be opposed if we got counsel back up here for a minute and perhaps staved off a supplemental brief i think you know this area is quite nuanced i actually expected supplemental briefing on this and so i would actually request supplemental briefing let me get to the merits  because st of all these are not what these manipulated data ok let's just be very clear they have a policy only unpaid meal breaks paid meal breaks are not allowed under auto zone's policies or that that doesn't mean that in by practice it doesn't happen sure but it's a policy violation and there's no edit they have no data saying how much it happened and appeal paid meal break under washington law has to be thirty minutes in uninterrupted let me let me st deal with the prime aphasia case because that's the most important part the part washington supreme court said we satisfy the prime official case by providing evidence that someone did not receive a timely mail break that was in the context of the very time records here this idea about manipulated data is something that is not the posture of this case what we did was simply take there they have required to punch in and punch out for meal breaks because they're unpaid and so we took the data that they gave us showing when you got punched out all we did is put it in an x elfs head straight there's no manipulation they moved to to the waiver argument let me be very clear your honor we did does not have to be a written agreement but against under the only so source is the text of e t s six and the department of labor industries has written a brief not only in the supreme court but in this case saying the district court misinterpreted the waiver rule that they wrote that's pretty powerful evidence there has to be a prior agreement washington leyburn industries rejects implied waiver let something different implied waiver simply means waiver through default i didn't take a break that day that means i waive it the only source for that is the judge leighton's opinion in the eisenhower case and the reason he said you could do that is he said there was no duty to provide a break the there's two different versions of implied waiver your honor which they didn't actually i mean that's unfortunately dicta your honor that one sentence and the washington i mean you have to go back to the policy there's only one source here is the six and it says there has to be a prior agreement i didn't write that the i guess the point is unless you're going to get into a written agreement it becomes an individualized question it and i write so once it becomes an individualized question you have a problem classification except when their evidence except as to the witness falls completely short of meeting the legal standard and that's true health says that you can only consider whether the defense is predominantly fitting based on the evidence asserted we agree the written waivers are easy and  we agree most of them are valid there's a couple and says i don't care when i get my when i eat lunch that's not valid before mx's we agree that's easy the burble waiver the waivers can occur but there's literally none of the evidence that they submitted a verbal waivers is sufficient to meet the standard but do they have to submit the evidence or do they just have to come in and say look this is part of the evidence that's required and we're going to raise this is an affirmative defense it's an individualized find out the whole point is is what they're using in this would mount clemens teaches you is that if they kept followed best practice and even kept accurate records who verbal you waive we wouldn't be in this situation it allows companies who don't follow best practices to get out from a class action and punishes those who do because then predominance it wouldn't be a predominant defeating defense that's the problem again what we have here and again none of this is relevant to the nd millbrae class because a solid argument to make at this time on the ethical rule because there was no briefing in advance and this is kind of out of left field frankly but we would participate in supplement or briefing happily given that point of won't hold us as violating the settlement agreement