legal standard and the answer to that is also no so you're certain the relief for the immediate relief you're seeking is either vacate or reverse the pending on how we we go i guess yes so i think at the very least they can or is required because the district court seems to  applied clearly applied to long legal standard but this class could this class be certified no so that's why we don't think there's any point in making or we just think that the order should be that a class shouldn't be certified if you do it on the record we have absolutely can do it on the record  that you have the facts as far as i can tell our undisputed and there are two main problems facing only affect you actually depended on the fact that there were some disputes that what was all well they might be  disputed facts as to the merits but there undisputed rest of the class action question which is whether st of all there are common questions that have common answers to common proof and nd of all whether individual ised inquiries predominate and just give you an example so as a couldn't one say well that's proof in the record that in fact there was a policy and that people would have felt that there was just no point in this that this was a kind of a wink and a nudge that american airlines a graph there's testimony about mr mcgrath who is a supervisor at one of the three workgroups who are represented by different unions have different procedures as to that's the mechanics work and understood i'm just trying to get to a point  you seem to be saying there's no evidence here that could ever support a class that was pushing back on that a little bit if they had the opportunity could they make a class of their own for class if you could if it was just a class of mechanic good ok so here's what we don't have any chance with a guy like mcgrath in place and he's acting american policy right so so if it's agreed that they can make the class that they had that it was actually certified because that class includes two other work to mechanics the evidence as to this commonality question is mixed so there are some testimony that mr mcgrath was just one of the supervisors in the mechanics rube would refuse exceptions but there's also  testimony to the contrary for example mister big who is a mechanic was asked point blank is there a policy against granting these kinds of except exceptions and he says no that's a page up what can we do evil that kind of reason to send it back even as the commonality because that the question of course and commonality is whether there is a common question that can be answered with common proof and when you have people even from the same work group saying some of them saying as part of a mission saying that there is a policy and others saying that there isn't a thing you do is you adjudicate these cases on an individual basis they're just not amenable to class treatment and even setting aside the commonality problem you still have a predominance problem which is not actually even a failure of proof it's much worse than that it's just in errant in their claims because at the end of the day the clinton years for overtime pay right now on th we're always in tyson food land because that's that's the case obviously binding on this court but what tyson foods held was not that when an employee doesn't hold records you apply more lenient will twenty three dollars standard what tyson foods held was that in that case there was sampling evidence presented by an expert and the reason that it could be proffered on a class y basis is that it could also have been proffered by any individual plaintiff in an individual quite right  tyson if you didn't have that the whole question in tyson was whether you could rely on sampling evidence and the court held that in that case you could because there was no evidentiary objection to the sampling evidence and it was the kind of evidence that an individual plaintiff in an individual claim could have relied on if you didn't have that entice and certainly the decision would have come out the other way since that was what the case turned on and more than that there is no obligation on employers part to have time keeping are indistinguishable to this case they both included grace period claims and those classes were not certified precisely because there was no way to tell from the time keeping records when people actually worked whether when and how much they worked outside of their allotted shift time and there's again there's no obligation legal obligation on the part of the employers for keeping that kind of information so there is no basis to punish the employers either on the wall twenty three or any other reason after all the reason that you have grace periods is precisely because they were like the common factor people watch t v in all that you want to give more regulars you seem to make the argument that look i recognize there's a whole bunch of cases left to be done but it's certifications to have a is enough to persuade me on the evidence and of course there's you know a half a page of only did the district court say it not just there but in other parts of the opinion for example later in the opinion with where the district court explained that you could fix predominance problems on a motion for decertification the side of fair labor standards act conditional certification cases but even if you just look at the kinds of things he says were actually proven in the record for example on j a fifteen the district court says no personnel personal matters were attended to while employees were clocked in that's one of the facts that you were lied on and the only way you could say that is by just relying on what they allege obviously the facts are completely undisputed that if not everybody at least most of the named plaintiffs themselves presumably the best point if they at testify but of course people would clock in early and they'd watch t v they drink coffee and all that's fine of course there's no problem with that but it defeats predominance for sure and the fact that the district court despite that undisputed evidence says that no personal matters were attended to while employees were clocked in just demonstrates that the words and the analysis that the court is using is not just you know he used the wrong words but he really applied the wrong standard to the facts and at the end of the day i'll save the rest do you think more discovery would be taken before if used to prevail on your victor argument are there more depths to take is there other discovery to be done for purposes of class certification i don't think so because the discovery we already have including most notably admissions from the plaintiffs themselves makes class certification here totally impossible again i don't see how you could try this case when the question is whether when and how much every single class member worked because after all again their claim is about overtime so under the new jersey wage and how often they have to demonstrate that they work more than forty hours in a particular week and weren't paid time and a half and so how would you ever find out for example whether anybody worked outside their shift time without asking them to think of the day there's no commie answer there's no common answer and even if there were some common question to which there was a common answer which there isn't individual as the inquiries would necessarily predominate individualized the go to the very elements of their claim would predominate is the question whether american airlines had a policy of discouraging people from asking for compensation for work done during the grace period or on meals is that a common question it's a common question but there's no answer through common proved so it doesn't satisfy commonality that's that is is there whether there's a policy or not there's no way to know whether there's actually a policy well it's if there were a policy would only be a skull scene the same way you had a policy that allowed there are three different workgroups heard st of all so we have that problem there's no evidence at all from the passenger service worker and the only evidence from the service worker is to the contrary if you're just talking about mechanics let's take it out of let's just indulge in a hypothetical like always allow for a moment isn't it possible that there could be a business somewhere that says setting aside even setting aside predominance the actual testimony from the name plaintiffs demonstrates that whatever the policy is it is not applied to class members in the same way there are twenty if that testified that they had no problem seeking exceptions so they're just alleging a policy that as a matter of fact doesn't exist or at least doesn't exist in a way all we have to show is it doesn't exist in a way that applies to class members in a common way but even setting that aside you cannot solve the predominance problem in this case even if you had a common question because even let's say there was such a whole series was that because it be images you've made that no no it's not damages d it's not damages it goes to the elements of their claim that is whether they work more than forty hours a week in a particular week but weren't paid time and a half the st thing they have to show is whether they work outside of their allotted time or there are a lot of ship time and the only way to figure out whether somebody worked outside there a lot of described the class certification decision is requiring rigorous analysis some statements in the in the opinion depart from the standards we've articulated you know how it ended and your have a series points to allegations that initial evidence you know at this juncture pleading requirements other statements perhaps you can persuade us why our language from hydrogen peroxide should be applied and i think it should be applied in your honor but i think what the court has to do here is to look at the substance evidence there's no more discovery to be completed in this case we agree that discovery is already completed with the exception of some additional depositions that we're taking now with the court it is it analyzed all the evidence it looked at the deposition tween scripts to look not only at the t is the conclusion summary judgment i began i can explain why the court used that language we were in the pool and i restate as we were in the middle of discovery and i'm not sure that we get we have multiple tears where you have a hard time explaining see if you can explain this mr seale bit the court has a responsibility to say it in a twenty three dollars class action you can't do conditional certification yet it says it will will go ahead and certify it we'll do something differently the court always has the ability at any stage of the case and there's still some discovery an expert discovery to be done to decertify the case and i think what the court d was referring to i can't read its mind but at this juncture it was referring to the possibility that  honor i would respectfully refer you to this this soft insert what the court did the language doesn't necessarily comport with the the specific language that this court has articulated in dorset now that other decisions i can't refute that the only thing that address by mr let's get that there is of literally no way to try this case without asking each individual defendant did you work more than forty hours that week and were you work in when you were on your grace period or at meal time i don't wait actually have common proof on those questions you can your honor we speculate with the court has made very clear and tyson foods and other cases that you can use represented evidence and what we have here is a situation where every client that i would think again if we look at the facts here we know that every single point this who was the post in this case testified that he worked before ships after ships and during that period so the friend that does not dispute that every single plank of said that because somebody said yeah we all did that so how do how is the court's opposed to know with a common statement that yes we can give money to all these chiefs for older they did receive one we don't even know as to your own name plaintiffs what they're entitled to not entitled to the court has to make an important distinction is that as to what the liability d aspect of the case is and what the damage aspect of the cases there are two issues here in order to establish your claim we have to show two facts one that the class members work not how much they work but the damages question when you say that's damages question not much answer mr let's squish that no that's not just the damages question that the liability question because you don't know whether somebody was owed time and a half unless you know whether they worked more than forty hours and even week and that is an individualized d inquiry period that yes your honor if it is the damages inquiry we don't dispute that no it's actually the ridges maybe i've got maybe you correct me if i'm wrong or correct him if he's wrong is it or is it not the case that you don't even have a claim for damages if you didn't work more than forty hours in the week correct ok so if you don't know whether the person worked more than forty hours in the week because you'd have to drill down and ask each individual person ok let's look at your records looks like you are there thirty eight hours in this week now how are you going to prove you were two hours in your grace period your meal period i mean that's a that's not a just the damages question that's a liability question yes your honor it's a liability question and it's a damages question the liability question is d did it you work that's the liability question did you work every single claim to pester by the work there was no contrary evidence in this record on like other cases but the plank this work the next question is how long they worked how long they work is it damages question in the court and pricing foods are abundantly clear which is crossing with each other can we or can we not agree that it is a liability question and not merely a damages question if you didn't work more than forty hours a week if you didn't work more than forty hours a week that's a liability questions and it's also a damages question it's both right but it's it is more than a dam if all those want to say yeah we were you won't know in any given week whether they are entitled to overtime without an individual i see because you don't know how much time they worked in a week without doing an individual record search and then ask them in that week grace period because the default in the system is yours you're shown as not working there's no i'm struggling to understand which a representative evidence would be there's no  there's no record of any sort of people doing stuff during meal but times or during the grace periods or when they're off the clock except for anecdotally right there's not some record being kept someplace oh this person was working well that's the only way they could prove their claims your honour's record anecdotally if you testimony but the kind that doesn't that make it different from tyson food they make it it makes it different from tyson because it tyson you doffing because that was part of every single person's job they had to be doing it and so you could say based on representative evidence this is the average amount of time it takes to dawn a doff when we can use that as a proxy here we don't have anything like that where you can point say everybody's doing that thing and it takes approximately this much time to do it there's there's nothing like that in this case is there but what i would say two things there are one is whether or not work is required whether somebody told somebody to do what is not an element of a liability on the new jersey was somebody could be working whether or not required as long as the defendant knows or should know that they're working through that requires compensation i'm trying to focus you in on tyson because you're leaning on it hard and i'm trying to get you to either persuade me and my colleagues that were wrong in thinking that tyson was allowing represented evidence because there was an agreed upon thing that everybody did and an agree situation in tyson foods but they were moving aircraft they were engaging in training they were completing paperwork i don't think the cases require it wage an hour class actions that or the class members have to doing a specific type of universal work in order to establish th only way to predominate standard is satisfied is if the court accepts that when an employee clocks in a checks out the employees work if not then the case would devolve into a series of individual i think worrisome then a little bit later in that same paragraph the court says defendants are correct defendants are correct how how does that how does a case in that statement from the morale a score help you there i mean they in your client's favor it went on and said made the requisite showing explained commonality by unrebutted declarations showing that they did in fact work it certain points but but on the premise the general premise that about predominan every point the fanatic case like this case testified to that they were engaged d in a work they did different kinds of work they work at different departments but the court found the knack cases like i think the courts are applying here with the district court found here that the overwhelming nature of something to which you can common sense i'd like to separate out for the court that the commonality prime and the predominant crop commonality on the federal two hundred and thirty eight to only requires one common question that's apt to drive a resolution of one key you just want could be a fact of wall so here we have multiple common questions did american have a shift base timekeeping policy that's a common question that applies to everybody the caveats the good question and they are but we have other common questions did undisputed american workers no contrary evidence at all that's the work truck damages krom which is a separate element which a court case in food says is not a barrier to finding the dominants it's always going to be always in every class action wa in our case an individual increase concerning the amount of time that employees work at this court was to find that individual inquiries regarding damages is always a disabling issue one predominance then no class action concerning w which is directly contrary to situation we have here we don't have a single declaration american submitted not a declaration no testimony from anybody not a single document this proving that employees will working during grace periods so that could be a situation like us airways with was very that the predominating focus was on the worker problem and that we could deal with damages i mean on a separate foot you could bifurcate question to damages you can use affidavits you could use declarations as i said tyson foods has damages is not a barrier to find  are just a few points st of all i think i heard counsel say that you can't determine on a class wide basis whether anyone worked more than forty hours in a week which i think is correct and that just destroys at least predominance in this case and requires an order how much they work to to get them over forty hours you have the question of whether somebody work it's true that these named plaintiffs say that they worked sometimes beyond their allotted shift which was true in morocco with some  like they also say they could can't tell you when how often how much and all that but this is not the kind of representative evidence that tyson foods allowed as i said the representative evidence that tyson foods allowed is the kind of sampling that individual would be able to hold up hold up and say i'm using this to prove my own individual case or to make it count as argument if we insist on commonality damage will never never be able to survive which class well st of all again this is not with respect damages with respect to liability and i think the argument that you'll never be able to certify a wage ques is wrong for a few reasons the st st of all many if not most wage in our cases are brought under the fair labor standards act rule twenty three dollars doesn't apply and this court pointed out that it's there is really no disputing the in the depth testimony and everything else that each of these people did work well as each of each of the named plaintiffs say they were put they don't provide any basis to conclude that anybody else in the in the class did you know they found the best nine plaintiffs i assume that they had but even beyond that again this is this is a overtime claim so take mr gonzalez he's a part time employee let's see works twenty five hours it doesn't matter whether he worked  beyond the twenty five hours you still have to get to forty even to even to show viability and then the rd kind of case that uniformly would get certified is the morose case because when you have records that do actually determine when people actually worked there's no problem demonstrating commonality and usually predominance knowing nothing else about the case but when you have a case like this it's not only where you don't have records like that but where you have affirmative testimony f the plaintiffs yes we sometimes drink coffee and watch t v in the light that makes it just like angeline's and babineaux where there is no there is literally no way to determine whether when or how much somebody worked without  without asking them and then just one final point i don't think it matters in this case but comcast and other cases make clear that even if you thought that this was a damages issue which we don't think it is when you have damages damages issues that overwhelm other common issues there's no rule twenty three exception for damages usually what happens is you have to have individual d damages calculations where you have sort of a class wide basis for determining damages but if if you thought that this was a whole case would still be about whether when and how much somebody worked how would you actually try this case without calling every single person the only way you could do it is by undermining the defendant's due process rights and actually defending the claims against them and by undermining the rights of name plaintiffs unnamed plaintiffs who would be precluded if if the representative representative bevan's here weren't good enough