already for each defendant the second issue was an improper instruction regarding the elements of retaliation and the third issue we brought up was the good faith defense being given to the jury instead of the judge deciding it addressed the first issue the most important one about determination of separate liability for each defendant and there were four defendants in this case jenny hahn the wife of the ex wife of the husband jackie g who owned two businesses a massage business and a restaurant and these two businesses were completely separate they did not share employees they over this entire case because of the single enterprise test and that's a jurisdictional requirement that's not a joint and several liability test and there you just look at the revenue of the two businesses and if they're big enough then the presented dismiss hong was had any interaction relate with the spa in place she said she testified she felt the towels and stuff like that but she never gave our paychecks she never directed them to do and he substantial manner and her ex husband jackie de was the one who paid the employees did all that stuff you have record shows hiring and firing authority or taking time off i think there was evidence presented nifong did fire one and they did hire him so i can never find any when she did hire one of the restaurant employees while jackie g was in china or something like that so that was a one off instance which had one employee employees taking time off there may have been some testimony regarding that but like i said the real management control was under her ex husband he's the one who hired and fired he's the one who set the payroll about the paychecks she's not the one who set the payroll and gave out the paychecks he wrote all the paychecks she may have handed out some paychecks at some point when mr jackson was gone but she was not the one who wrote the paycheck there's no  testimony regarding that and why it's important to test each liability of each defendant separately because the jury instructions that said is jenny hong an employer of bo th the restaurant and the massage store i don't say are you the employer of the saw star using employer of the restaurant and didn't ask those two questions separately and then the jury could have analyzed it separately because like i said that's the primary test you would do to impose joint liability for like a joint employer so there instance there's a case where you have to restaurants and employees six switch back and forth between the two restaurants there you have it  situation and it's an appropriate pose joint liability on on the two employers for the employee but that's not the case here there's no evidence that massage employees work for a restaurant or vice versa nothing like that and i'd like to go quickly to the retaliation claims i think this is just compound in the errors made here is in the in the retaliation part of it the judge instructed the jury you only need to fear adverse employment action you don't need to actually have adverse employment action occur and there the employees testified well when when we were going to testify labor commissioner my employer told me don't say something randomly don't say too much and the jury instructions said well when the employer jackie g said that to the employees that statement and i feared that if i signed this i'll be fired if i did not sign and i would be fired that there's no there's no testimony at all saying well if you don't do this i'm going to i'm going to terminate you and then there are cases saying well if you threaten or terminate someone that might constitute an adverse employment action here there's no testimony regarding and i don't think you can make that argument that to but i mean in the course of closing argument was any argument made about that phrase no there's no objection to the instruction saying you only have to fear adverse employment action in order to satisfy the elements retaliation but it's just plain air just say that if you fear something might happen to you that constitutes adverse employment action even though no threats are made and the only thing the don't say anything randomly don't say too much i mean don't say too much that doesn't mean that they're going to chairman at you if you say too much doesn't mean that under any common sense interpretation and then the third issue is the good faith defense and that the courts are all over the place regarding that issue but the statutes clear it says that the good fa whether or not you are paying employees good faith and paying employees actually believe you're paying the correct amount should be determined by the the judge and that's in the statute and the courts have reached give some affirmative indication that he's creating it as advisory in that which you say yes or at least thinking about it he didn't mean think about he just the jury read their conclusions five minutes in the jury comes back and says what he agrees with so he just but that is that's not the main issue on appeal though the main issue on appeal is separate out your best now is it's my last argument but the main issue on appeal is that the determination for each defendant you got to separately determine the liability of each defendant and that was not done here at all and the same argument applies for jackie g as well he also appealed the case where the day the judge could instruct the jury well you look at the restaurant business you look at the spa business did mr jack e g did he have a good faith defense or either of them because the spine ploys were compensated entirely differently they were like independent contractors so could he have had a good faith defense there because he was paying for the room and board he was paying for the food was paying for the transportation and he was sharing other grabbing with them and their revenue fluctuated depending on how much they're making so he could have had a better good faith defense there than rather than the restaurant and we had no opportunity to raise that issue if you just look at collective liability saying well it's a single enterprise so libel every everyone's liable but that's not the test the test is it should have been a joint several  please the court and went for the secretary of labor just to address your question about the standard overview here plane just a few defendants do not contest that they did not object to and in fact affirmatively agreed to the jury instructions in this case so plain error is the crux interview for the jury instruction arguments and as this court has explained in city of sonora it's on monk decision explaining its interpretation of rules of  procedure fifty one to two where no objection is preserved this court will consider whether there was an error if that error was obvious and whether that error affected substantial rights which is quite a high bar and on top of that already high bar  this court will consider the cost to correct and will only correct a jury instruction where it finds clear plain error if review is needed to prevent a miscarriage of justice which really requires a harm great enough to them pair the fairness integrity or public reputation of judicial proceedings which is simply not the case here there is no plain error in the jury instructions as to  individual employer liability or willfulness and certainly no obvious error this case was presented by both parties as to these two groups of them please together and that is indicated in part by  the stipulation from defendants that mr hong kong who were calling jackie here was an employer along with the two business entities of all of the employees all eighty two employees who were listed on structure but it was contested as to whether or not the other defendant was an import all right that's correct in fact that was the only contested question of liability in general was whether johnny weir who he al out was an individually liable employer at the spa and the restaurant and so that was made clear i think the the all else position was kind of all or nothing that any room in the jury instructions for the jury to find that she was an employer but of the employees of one and the price versus the other any room in the jury instructions for that determination your honor the jury was instructed to determine whether she was an employer and they were given trial exhibit eighteen with both groups of employees and they were also instructed to ensure that there was representative testimony to meet their findings for all of the employees so that in order to check the d that both of the businesses were being operated as a single enterprise under common control and unified operation for a common business purpose and the is the significance of that stipulation is that both parties were presenting both to the court and to the jury that these were a single enterprise with two establishment was the jury made aware of this to pollution yes your honor it was read to the jury just prior to the jury instructions  vision evidence was put on to prove her employer's status to both groups so if they had not found her to be an employer of both groups they would have needed to check no on the employer status and just to touch briefly on the withdrawn instruction instruction number fifteen which might help them mentioned that instruction would have advised the jury to consider each defendant's liability separately which is exactly what the jury did the first question on the verdict form was whether jenny's out was an employer and one she was determined to be employer to be an employer all the parties agreed that the verdict form would then treat the word employer to include or defendant to include anyone who had been determined to be an employer and after that point it was proper for the jury to consider the defendant's collectively in determining their liability can you  look to what a reasonable employee would understand in the circumstances of that workplace and it recognized that the question is whether a reasonable employer would find the action materially adverse and  view here is that defendants created a an environment in both work sites where employees understood that if they didn't comply with the order to not speak to the department of labor to lie to on this issue you see my problem with this instruction is it really says some future action is an adverse action almost doesn't make sense going grammatically does it your honor in this know what it says if you read if you read the words of instruction it says that an employee may suffer an adverse employment action if they are afraid of some future action which would negatively affect the employee right so a fear of the future action itself an action no one says and that adverse action but i don't it doesn't make too much sense to me and then in your argument you just said now one and the supreme court environment could be an adverse employment action you want to have to be in this case we're arguing there are two pieces there is there is a direct action which is telling each of these employees m to that they should not exercise their right to speak at the department of labor or and or that they should create falsified employment records that actually is your implied threat as judge jones said earlier you know i suppose you could construe that that kind of warning implies a threat right exactly or it might be and then the other part was the other part was what you said there were two parts to it the second part is the environment that was created so several of the employees who testif said that other employees also believed that if that if they didn't comply with these orders they would be retaliate against either by withholding their last month's pay or or some other adverse action and so you know brett that the employer would take some adverse employment action against you like withholding your pay cutting your hours firing you but but the way it's phrase is really awkward i don't dispute that the phrasing is somewhat awkward but the facts in this case was it was if anything was argued to the jury as to what constituted  you know your honor i don't want to misrepresent what was in the transcript but what i recall is that it was argued that by ordering the employees not to the average action was ordering the employees not to exercise their right  communicate with the department of labor and provide accurate information about their hours work to the department of labor just to very briefly turn to the good faith argument that the threat but then what  or that he would lose his job in the earlier time that he that he was ordered to create false records and mr shinn affirmed on cross examination that he felt intimidated and discouraged from speaking to the department of labor so the harm was  was not being able to exercise their right to communicate with the department and also the fear that they would that they would lose their jobs or lose pay to turn very briefly to to the good faith argument  just to clarify that the court did in fact exercise its discretion to to determine whether liquidated damages were appropriate the court stated as much may not in those words but stated at the end  trial that that he expected that the secretary would request liquidated damages and he didn't see any reason not to award them which which indicates that the court understood that it retained discretion over that decision  and in fact it exercise known manner in which this case was presented to the court that would have suggested that this issue needed to be decided for the spot in the restaurant employees separately the the facts here that underlie the will difference to the willfulness determination here because this the s l s a violation being carried out at both establishments were identical they were failing to record hours regardless of the manner of pay they were making no effort to determine that the pay the minimum wage and overtime requirements they failed to keep records and tell they were informed of that obligation by the labor department and then as soon as they learned of that obligation they began to affirmatively falsifying records and order employees to use as much so that there are sufficient facts in the record for the jury to have found that the parties were willfully violating the full essay with the spine police and the restaurant employees and a number of the facts overlapped for that to that are so it was reasonable to instruct the jury to consider the group as a whole well i have this this is this is kind of a side question you don't have to answer if you don't want to but you know whether this kind of verdict is i'm just curious dischargeable in bankruptcy i don't know the answer that question your own all right thank you thank you very much little well my client one of my clients to declare bankruptcy but it was not a stretch for other reasons which i won't go into not they went into a determination the merits say that but i want to address the single enterprise argument you have because i think that's very important so the single enterprise is a jurisdictional requirement and if if the if these two enterprises were not put together then the court would not have jurisdiction over this case you with your every employee here that's a different sort of stipulation if you laid it that you were part of a single yes but there that's a common control so we admit that he owned both companies had come to control over both that's the only admission that he owned both companies not admitting that his wife is jointly and severally liable for both and for both employees of the spa and the restaurant that's an entirely separate issue which is if she can be proven to of exercise control on either one of them she's cooked all no no that's where the joint that's with the joint and several i believe the task comes and into that that's the joint employment situation where if one employer is controlling the restaurant and the employees are working together restaurant yad joint and certainly liable that that's not the situation here well problem for you is that it was really stipulated and tried that way by both sides yeah i mean that is a record for you know that is a problem that the jury was misled in regards to that and they probably read the jury instruction saying look it's a single enterprise why don't we just impose idling on everyone but that's not what that's not what was stipulated to  stipulated to that they have jurisdiction over this case and not and the never agreed to withdrawing that jury instruction of or fifteen we said he got in and separately determine each defendant's liability all right we've taken you over your time but i think we've got the arguments from both sides pretty well in here and i'll submit the matter thank you