please the court my name is james caan i represent the appellant's including carol williams in this matter this court or i should i should i should add i would like to reserve three minutes of my time for rebuttal this court should reverse the district court's grant of summary judgment because there were two errors two primary errors the first is that the district court did not apply the controlling legal framework for appellants disparate impact claims the second is that had it done disparate impact challenge to wells fargo's policy of summarily firing or not hiring incumbent employees and conditionally hired applicants who have section one thousand offense what's important here is that section mandate a very specific way and in fact section one thousand is a flexible statute that is non punitive in nature so how do we know what options were available when we need not look any further than wells fargo's prior conduct and treatment of other people with section one thousand offenses one of those include those included giving notice to folks with who had section one thousand offenses whether it was telling them they were being fired because they had a section one thousand offense telling them that they could get a waiver from the then this case start with the statute though because the what's alleged that the company has done the company is doing in compliance to federal law your honor the statute is it is relevant absolutely but because the policy that is being challenged by by the of helen's here is not section one thousand it is not the need to comply with section nineteen it is rather a more narrow challenge it is well fargo's exercise of discretion in how it chose to comply with section nineteen and the critical piece about that is that within the parameters of what section one thousand requires and permits there were a number of options wells fargo and any other bank has in terms of how do they what do they do when they were discovered individuals that they have in their employ have section one thousand offenses they have it's a bit of a law that the two sides that they can't the company can't hire them the federal inquiry is what is the policy that's being challenged where we're not challenging whether or not section one thousand applies here or necessarily how it applies we're challenging is how does wells fargo choose to to make sure were implemented right and i think what's critical is you're right your honor the f d i c will eventually determine if somebody's cements a waiver should they work are the eligible to go back to work for a bank that part is undisputed by when a bank is faced or learns that somebody has a section one thousand offense they can do any number of things they can put them they can give them notice they can put them on leave while they go get a waiver they can sponsor the waiver for those individuals and in kind of at the most extreme pole of those of those options they could summarily fire them there's a universe of options within the framework of of section eighteen so i think i hear what you're saying your honor but i think i want to be very clear we're not asking for alternatives that go beyond what section one thousand permits or allows we're simply saying that within the discretion afforded by section one thousand wells fargo selected summary terminations what does that mean that evidence that measured the consequence of that policy i e we looked at all of the individuals that were fired as part of wells fargo's summary terminations policy and looked at the differentials in terms of african americans or l terms of their exclusion rates versus whites and what doc did next the exclusion itself was not based on race it's based on convictions the the policy was a choice in terms of excluding or not affording people options under section one thousand that could have facilitated a waiver how do you know that what evidence is there that if wells fargo had given notice or sponsored all of these people for waivers that the impact would be any different that's an actually question your honor i think as an initial matter i would say that that is that is not in or the court did not does not need to reach that here in part because within th title seven framework the appellants were responsible to make a prima facia showing of impact which they've done with their statistical evidence and all they've just showed that summary terminations has a disparate impact but not as compared to the practices that you're challenging that's my question when it comes to the practices we're challenging within the title seven framework what's important is that if we can if and when we make the prima facia showing like your honor mentioned the burden shifts and wells fargo to prove a business as and job relatedness we submit that the record is very clear that they did not they did not pass or you know carry their burden to prove business se because there was no compelling need to summarily fire but what's your primary f showing that sponsorship would have changed the impact on any group here i understood you're saying sponsorship results in some people getting waivers but wow why wouldn't the wise or any reason to believe the waiver process is going to help minorities more than the whites what we know about the waiver process and and what's in the record is a pretty  robust series of evidence that in fact if folks are given the option of the waiver process or allowed to go through it that they will almost certainly get waivers if they're incumbent workers and that they will that there's a very high passage rate ok in the the first question first and then and then i will address that the evidence of less discriminatory alternative turnitin practices include that wells fargo sponsored seventy seven waivers in the past sometime between  performance evaluations that wells fargo conducted on an annual basis that included assessments about both honesty and integrity all of the performance appraisals that were available indicated that our clients would met or exceeded those expectations and then there's also publicly available information of an exceedingly high passage rate of of these f d i c waivers now to your second question how do we know if that's going to help and the reality is that if we look at it as the nonmoving party kind of the evidence that's most in the light most favorable to the opponents if you look at the seventy five out of the seventy seven sponsored waivers as being a ninety seven percentage passage rate if that were to hold true then then in fact there would be a decrease in the disparate impact because basically everybody would get rehired or would be hired in the first instance if it's one hundred percent and you have really shown th e bank says there are people who apply and then before there's a decision because they see the writing on the wall well really more like fifty five years and this is an important point that i wanted to make before and i think it is important to reiterate now the question of whose burden it is to show that matters in terms of the bigger framework are our prima facia burden was to show that the policy we were we're challenging summary terminations has a disparate impact on african americans and latinos we've done that you said the practice you're challenging is the refusal to give notice or sponsor waivers that it is the it is wells fargo's policy to s fire people when i say that that means firing people with no explanation other than to say a record was found that makes you ineligible for employment with wells fargo full stop that was the policy that was applied the alternatives that i'm describing go to the fact that wells fargo had other options it could have adopted it had previously adopted in other situations but for some reason chose not to adopt or offer to the appellants and what title seven says is a very simple mandate if you can achieve the same business objective i e you can still comply with section nineteen in a multitude of ways and but one of those ways would reduce or mitigate impact you should pick that one as part of that burden under the business necessity defense and employer like wells fargo has to conduct some kind of search to determine whatever policy they want to implement to make sure that there are no other alternatives that could potentially achieve the same business objective and also potentially avoid impact here wells fargo's wells fargo's own witnesses admit they did not do any additional searches or consider any of turner to other than their policy of summary terminations under this court carry their burden for business especially so we don't even get to where the record isn't has hasn't been developed really when it comes to other nondiscriminatory or less discriminatory options that that was not withstanding there is as a very present amount of evidence nevertheless and the record that suggests if the waiver process were facilitated if wells fargo simply selected any number of options that had previously or otherwise offered then the  intended reserve rebuttal i do your honor thank you from the point of their conviction forward that is what made them an eligible that is what defeats their claims under title seven they lost their jobs or were not hired because of their convictions for crimes of breach of trust dishonesty or money laundering or not because of their race there is no evidence that there suffered any disparate impact because of a policy of wells fargo if anything if there was any preliminary showing it would have only been asked to the fact they lost their jobs not because of any practice wells fargo could or didn't do or anything else at wells fargo did or didn't do it was again because of their convictions we think this case should be looked at seriously in only in the context of section one thousand it's text in scope it's important and it's of its effect first is there was a process that was used by which thirty one thousand seven hundred sixty nine wells fargo home mortgage team members were rescreened for criminal convictions through that process four thousand seven hundred plus of them had flagged for convictions that implicated section nineteen or other disqualifiers and three hundred sixty one lost their jobs because of that that process involved many people looking at many factors and ultimately determining that they had disqualifying convictions that is they were employment ineligible and what plaintiffs have tried to do is they said ok because there was a disparate impact on african americans in three hundred sixty one we now have made a primal facie case but i think your earlier questions exposed that there was no problem of facie case made with respect to notices or leave or sponsorship and in fact of the court thinks about it they can't maybe they can't get there because there is there is missing causation there is there's always one thing that has to happen before any of the plaintiffs could come back to work at wells fargo and that is the f d i c would have to approve a waiver application and so if you think of it in terms of proximate cause if you think of terms of a chain of events there is a break in a chain there's a break in the causation but again what they're trying to say is well let us let muddy up what wells fargo's policy was why i don't understand your causation point i mean if they can show that waivers i have a fifty five percent waiver applications have a fifty five percent approval rate and means fifty five percent on average of those three and sixty one people would not be fired right but it but that they can't show that after i think your question was would they be able to show that african americans were more favored had shown that then you'd go to the second step towards co but he didn't show that all they showed was that there was a disparate impact by people losing their jobs through what they called summary dismissal so they're trying to have it both ways are trying to say the policy a summary dismissal and the alternative is something that we will get to later but then there they say we'll know their policy is the failure to give these let me also just discuss for a moment this idea that there is no business necessity judge hansen when he was at this record have had one of the few section one thousand cases involving the f d i c suing for an injunction to have a person that the bank who employed  injunction to the f b i see judge hanson found that there was no need to show irreparable harm what he said was that the statute itself the fact that congress had dictated that there was going to be a need to remove the individual that was all that needed to be shown we think the same applies here there's nothing more that's necessary to show need then the statute itself the statute says an individual cannot be hired or retained by a federally insured depository institution if that individual has a disqualifying crime for breach of trust dishonesty or money laundering all the plaintiff had that and so the fact that the statute existed and the statute also says that they cannot continue in the employment of an institution and the regulations of the the amount of pronouncements of the f d i c say that you can't continue to employ person during the pendency of an application for consent so you look at all this and you say that on its face is need one of the consequences to wells fargo if it were not to discharge the individuals the potential consequences mr khan says it's a flexible standard it's a standard it imposes a one million dollar a day filing and the potential for jail terms of five years and that standard is not only applied to the bank it's applied to the employee so long winded answer to your question just call them what is the evidence of irreparable harm sort of the evidence of of compelling need or reasonable me whatever the need standard might be it's the statute the statute and it's one million dollars a day fine the statute and it's a five year imprisonment well if this court were to go with what what their parents urge you create a hobson's choice for every insured institution i think what he's arguing is there's no million dollar following for giving advance notice well there's also cases it's really a waiver you can do those things without violating the statute but there's no requirement in the statute that you do them there's no requirement in most oregon or title seven well because it was a disparate impact of doing it the way wells fargo again but let  go back to that if his challenge is that the policy if you can his definition of summary terminations is this failure to give notice then he lacks any evidence in this record showing that that the protected class members were disparate lee impacted by the failure to give notice because what he has is that they were disparate lee impacted by their criminal convictions and disqualification but nothing see for some reason tends to give more waivers to one group or another well first of all there is no no record to that effect secondly it's hard to imagine that there f d i c would be able to engage in either discriminatory action or affirmative action in granting waivers and most of all this idea that there's a requirement for notice if you look at the e e o c massive pronouncement on use of criminal conviction record in employment it talks about how laws like section nineteen immunize employers from the disparate impact and the disparate treatment claims and it specifically says in a section that deals with waivers that an employer need not sponsor a waiver need not proceed to get a waiver so they're creating this warning from there it's the e e o c is guidance on a rest and convictions and it's i did wonder even if i did wonder from the plainest point of view how you could tell whether the bank would sponsor any particular person even if it had a policy that allowed for sponsorship resume it wouldn't be a blanket sponsorship of everybody who's been convicted of money law and i guess that's the that's the next case that your honor if you go with plaintiffs here then the next case is well wells fargo discriminated on how it granted or how it's chose to sponsor waivers and it that because it didn't uniformly do it it did it based on the nature of the conviction of the crime so some section one thousand grams are worse than others i don't i don't think there's a standard for that if i the it's it's you do it your risk if you think about this if you had four thousand some people that were implicated in this process how could wells fargo go forward how could any employer go forward with the waivers and if you look at that the sponsorship of the waiver is something that is in many ways invasive of a personal project of an individual whether they want to seek it or not and it's requires references it requires individual i'm not aware if it's in the record all that mr kahn pointed out to you if it is i don't believe that there is evidence in this record saying sponsored waivers receive any greater attention or grant individually sought waivers i don't think that there was a policy for or against it i think that it may have been done on an ad hoc basis but this record does not show that there was a policy to grant or to advise people or not to or to withhold that information but there is in the record there's the employee handbook information which in several places talks about section nineteen it calls it fiery after the changes in the legislation in two thousand and seven or two thousand and eight and for breach of trust dishonesty or money is your maybe what you may be ineligible for employment and so it doesn't say it doesn't say the next to do with well we have but there the idea of notice there's not a prescribed foot  question was notice that there's a way to avoid ineligibility well it tells you about your analogy but you know i'm sorry for the indirect way of getting to the answer the answer is that an individual certainly has the ability by looking at the handbook to say well what fiery are and they can go to google and put in fiery or they can go into google and put section one thousand and they can find out everything they want to find out we have testimony and in the right heard that wells fargo didn't do that but we also have case law if you look at the mailing case which is from from again judge hansen in the northern district of iowa he said notice was not necessary he said it wasn't necessary for a very important reason that the person who has been through  criminal proceeding and a conviction and had notices all kinds of things throughout the process and as we argued to the district court we think it's important to note here this idea of notice that again is not going to make somebody eligible when they're not c approval and the other part about notice is the people don't get notices about all kinds of laws were soon that were charged with knowledge of the law it's not an employer's duty to tell employees to file their taxes it's not their duty to tell them not to speed on the way to work well sometimes you have to talk about f m l a and other such but your honor i'm around the time i answer that question congress is dictated certain notices like the five in one posters that are in the break room in this courthouse honor we have a fundamental disagreement amongst counsel about what's the proper framework and i think that it is very clear that the way to assess this claim and therefore wells fargo's motion for summary judgment has to be within the title seven frame nineteen requires something is not what is that issue the issue is that title seven requires wells fargo whenever it makes or implements a selection criteria to make sure that if it had if it if there is impact arising from that policy that it tailor that policy in a way or consider alternatives so as to minimize minimize impact they were asking wells fargo here to treat its section one thousand compliance practice is no different than any other of its selection processes that are also subject to title seven scrutiny and need to comply with with with title seven now i think it's important to clarify again what is the policy we're charge we're challenging we're only challenging the policy as  fargo implemented that was they fired appellants and told them you have a record that makes you ineligible for employment at wells fargo that's all they did that is the policy we challenge we say that that results in disparate impact dr bendix analysis confirms that where wells fargo's other behavior comes in is only to inform the court about other alternatives that it could have thought of should have potentially thought of but did not apply or consider when it was discharging our arc might our clients and as to the plausibility of complying i think the as to these alternatives again within the framework we only get to that point if wells fargo can prove that there is if there is a business assessing and again they need to prove it there is an irresistible need to summarily terminate and they have to prove that they've searched for alternatives they didn't do that but as to the possibility of these alternatives wells fargo did this they offered richard eggers continued employment and six months leave to go get a waiver they did that at the exact same time that they fired summarily with no other information our clients how hard is it for wells fargo to give people notice to say hey we're firing you but we're firing you because of section nineteen and there's a secret process that you can have you can of you can apply to they did that for richard they've done that for other individuals there's no reason why they couldn't do it here and finally i would direct the court to dr hughes report where she talks about methods where the court or the wells fargo could easily come up with a system of sponsorship that is manageable based on its own print practices of assessing people based on honesty and integrity with their performance evaluations those are all things that are possible we would ask that you reverse the district court's order like mr thank you were thanks both counsel for your presence in the arguments you provided to the court the briefing you submitted will take you case under advisement may be