we'll hear arguments first this morning in case fourteen eleven forty six tyson foods versus booyah fuck e o mr philips thank you mr chief justice and may please the court this court has made clear that class actions are only appropriate when plaintiff's proof is tailored to their specific theory of liability in a way that allows a class wide injury to be determined in one stroke and that the lower courts must engage in a rigorous analysis in order to demonstrate that fact in th federal fair labor standards act the plaintiffs were allowed to pursue a class of more than thirty three hundred employees who occupied job more than four hundred jobs which required widely differing amounts of time to form their dawning doffing in washington as despairing well there are a number of answers to that scans were first of all if you if you just look at the activities that dr miracle specifically testified about for certain activities that he found some employees who take thirty plaintiffs are included in aggravated damages but you were the one that objected to a bifurcated trial and so far as an injured plaintiff's recovering that has to be determined on remand anyway  testified and demonstrated two things about that one that in general they way overestimated their own time and two none of their times were remotely the same as dr miracles time so we prove that second we cross examined dr miracle about his testimony and demonstrated again that his methods were completely haphazard and scattered and therefore couldn't demonstrate and this notion that you patch over the entirety of these problems simply by averaging all of the times of all of these employees is simply the kind of shortcut this court has has rejected in the past in both comcast a woman i'm surges mr phillips i'm completely out of loss as to what you're complaining about that's exactly what you did and what this expert did as a chorus i could tell between your expert that you used to calculate gang time and k time did exactly the same thing this expert did you came out with a lower number but you use fewer people at least their expert used hundreds of people instead of the few that you did i'm just completely at a loss would you suggest that if one thing if came into court that he could not use the this expert to prove his case circumstantially to show that in fact the average is this and he doesn't really know how much time he took when he does it now it may they were they know that people were working over forty hours to say we're time records with respect to that what you're basically saying is that clemens is completely wrong you can't estimate your time when an employer doesn't keep records we don't we don't have any quarrel with mount clemens the way it was written the amount clemens made makes a very clear divide between what needs to be proven what the plaintiff's burden is to demonstrate that he or she has work to be on the forty hour work week and then what happens if that overtime records so that affects you're right but there were a lot of people who didn't work beyond the forty hour work week hundred something odd people that their expert show didn't work of forty hours a cheery knew about those i and the jury rejected dr miracles averaging of eighteen and eighteen and twenty eight and a half and twenty one minutes and we don't know what the impact of that is what we do know is that fox calculated that a mere three minute departure from miracles numbers drop the damages award by one point four million dollars and drop the number of players out by close to one hundred twenty five so doesn't it small differences make a big difference and in this particular case and we go back to justice inherently flawed the problem with the methodology is it's applied to the theory of liability in this case it's one thing for an employer to say look we're entitled under the department of labor regulations to average as a mechanism for trying to avoid the kind of pic details and discrepancies that the court identified and clemens and said those can be disregarded as mere trifles were allowed to do that and the effect of what we in fact did here was to round up in order to provide more time to people than they might otherwise have gotten and indeed if you go to the pre two thousand and seven period when you're talking about the people who just put on the normal sanitary clothing they were they were all given four minutes of k time when they took them all about thirty seconds to do that so the idea that we could overcompensate somebody using those kinds of data is one thing but that's a vast difference from saying that nor to him to maintain under a rigorous analysis the idea that this can proceed as a class when all you've got is averaging across the widest imaginable range of employees performing different tasks with different requirements and indeed although i don't think i i mean you say the question is whether it can proceed as a generally even if they're brought by the government or even if they're brought by a single person and so the question that you really are putting before us is not a rule twenty three question it's a question of whether this sort of evidence complies with the mount lemmon standard isn't that right no i would go i would actually go at it the other way i would say that the first question is can you use this kind of averaging you know in a wrong mind case period under basic presumption we would think of this is very individualized but we have the basic presumption so the proof is not individualized and the same thing it seems to me is true here because of the mount clemens inquiry where it says if the employer hasn't kept the demonstrate that he or she worked the requisite hours in order to get past forty when she got past forty in determining exactly what the damages would be at that point it was reasonable because we hadn't because we because mel clemens didn't maintain  can produce the statistical evidence but if i were thirty nine and a half hours and all of this overtime is going to push me over forty the mount clemens presumption wouldn't be available to me well i think that's exactly either way but at the end of the day i basically what as i started as i started my remarks is is that the core is that the plaintiffs are obliged to demonstrate that a class works on the basis of the substantive liability that they have to burden that they have to i think it's correct where we're an employee's records of time work are quote inaccurate or inadequate that's your case then the employee attempting to bring a claim can show time work by producing he has in fact performed work for which he was improperly compensated enough none of these employ a huge number of these employees have not made that showing where they did do statistics i mean no the many sneakers their employees used and when and so forth there is no way people don't keep sneaker records so what we do is we hire a statistician do you sampling and if he's a good statistician and uses sampling correctly we have probably a better measure than if we asked the employees to go back and remember how many sneakers they wore and what days and what hours fifty years ago might be just a party of your entire hypothetical is premised on the fact that they had already shown that they were injured in the first time some of them it might actually not actually did not wear sneakers during the period of time that the conspiracy has been shown to exist though we didn't know that at the beginning because we thought we could prove a conspiracy from january to december but we on the it up proving it from january until june so there we have it we put them in the class to begin with because we thought we could prove injury as it turns out we can't now i've never heard that you had to be able to know exactly how you're going to win your case when you form a class action if you don't know quite what the proof will be i mean isn't that a class actions work you know because i know it because there's a continu class certification decision is still open until the final until a final judgment is rendered by the district courts of the district court is a continuing responsibility in the face of challenges to the class sort of occasion to consider decertifying the class and we raise people will not recover can't we wait until the evidence is presented before we tell the people who didn't see the buy the sneakers and you don't recover the problem with this and this would raise exactly the same comcast problem is my guess is your expert testified about the conspiracy that lasted through the entire period and for whatever reason the jury rejected it just as it rejected miracle in this case and now you're stuck in a situation where you've got this huge judgment where we knew there were two hundred some people who but we now know there are more than a thousand plaintiffs and there of how many hours they worked without donning and docking the equipment that issue correct yes they were all right so i thought that dr murray using those actual records figured out how many people worked over forty hours but only because she didn't do that to say who's over for me she obviously identified some who weren't but she took miracles average numbers eighteen and a half and twenty one and  determine which employees were actually injured and which ones were not because i i gather because the jury rejected the full verdict that was requested by the plaintiffs they did not accept dr miracles  testimony regarding the amount of time needed to don in darfor employees in various categories and without knowing that i don't see how you can at this point mr frederick the same question how you can separate the employees who were injured from the employees who were not injured it's impossible to do that in fox who was the their expert who testified on the damages was very clear about that because it's not linear so that if it turns out that some period of time drops the number of employees who fall below the forty hour threshold plus the plus the kaikohe time but the bridge drop a receptionist really has seen a night on this point is the respondent going to say this is for remained or am i wrong but i would be shocked if he's prepared to accept a re me and i mean i'm delighted if he wants that aren't there further proceedings i don't there are there proceedings in this case it with a lump sum as a lump sum judgment but well i mean that has to be distributed so who testified about the myriad jobs and the and the wide range of dawning and doffing requirements for them and said that under the circumstances this is not an appropriate case interceding even a general even though at that point we don't know no i know we i mean we said in general we say classes can be certified i mean i think you could have certified a walking time class in this case i'm still having the same problem when i  question look the answer is of course you can put in your class people whom it will turn out are not hurt i have a class of people who were hurt by a price fixing conspiracy that lasted from january december that's what i said i have good reason to think it but i prove it only lasted two that's a failure proof half of them were not hurt ok so we don't pay them but the but that's the most common thing in the world the problem that you are just a prior because the problem there is the expert who testified to the conspiracy would have assumed that the conspiracy covered the entire time of its roof and therefore the damages number that that expert will put forward will be a larger number than what the jury comes back in based on the on the finding that there was a sort of conspiracy yes and there's no way to know who was injured in that context and who was not injured in that context and mr can identify the comes out of this and if it turns out that this class has been improperly treated so that there is substantial number of you tell me except for those slated it down there are people who opted in the people who have been who have been under compensated because of this particular scheme and who could claim that because they weren't allowed to participate their due process rights we were allowed to participate they just didn't a thing well others but others didn't  i mean there are two different classes here right there the twenty three b three class and there's the f l s a collective action which have now been merged in and the judgment so there's no reason to look at this so you think of there are twenty three b three class of individuals and you know  there so that means there are literally thousands of of absent class members whose who are who are either entitle to are not entitled to damages without any ability to know whether they were or were not injured and therefore under those circumstances what petroleum is that the defendant has a right to be sure that the mechanism by which the judgment ultimately is injured across the entire class is such that it that it protects us as a collateral st do you have a theory as to why the jury awarded less than half of the damages that were requested did they i i take it they didn't identify particular workers they did not identify that they were good they just did they disagree with the eighteen minutes twenty one minute they had to have disagreed with it and there was good reason to do that because if you if you take the testimony of the four named plaintiffs they they were significantly different than the than the eighteen and twenty one minute times and so the best evidence was that miracle by this method of sort of of nonrandom observations of self selected employees came up with widely wildly extravagant numbers and the jury rejected them and it was the plaintiff's decision to go for the for the entirety of the claim rather than question at the start because it really was your decision not to have a bifurcated proceed and where it would have been clear it would have been through separately in a highly mina stereo way which worked over forty hours and and having made that decision you're in a position now where you're saying oh there's one some there's one judgment we don't know what to do with it but an in essence what's going to happen is that it's going to go back mant and the judge is going to do something that looks an awful light lot like the bifurcation that you rejected which is the court will say now we figure out in this highly minister ariel way who worked more than forty hours and so who's entitle to share in the judgment the bifurcation the plan as opposed to things to say about that first of all they took it off the table themselves not us we did object but that wasn't wasn't rejected because we really objected to it they they pulled off the table so i don't think you can put the burden on us but second of all the bifurcation they proposed was the first you were going to decide whether miracle is right or not and that means whether eighteen and a half and twenty one can be averaged across your class and then the second part was going to be fox testifying about how to slot that in well that's not that's not going to may help with respect to the to the uninsured to the injured class members but it would not have remotely helped with the more fundamental question of the in adequacy of this as a class action device where you patch over the problems of this of this class a bit by simply averaging interviewed absolutely helps with the question your second question presented which is this point that you're making that there might be some people who didn't work forty hours who would nonetheless get money and it absolutely helps for that it takes care of the entire problem that leaves you with only your verst question present were it which is this question about was the class too varied and on then i have to go back to this to this issue of it's not a class issue it's an f unless an issue under mount clemens as to whether this kind of statistical evidence could have been presented it and my answer to the men clemens one which i was i'm not persuading you on is if the way i read clemens it says you don't go to fair and reasonable inference and on the liability phase you're only doing that on the damages phase and i would still argue here that even if you used the fair and reasonable inference standard it won't be satisfied by what miracle did here because it's one thing to do some kind of sampling it's another thing to say i'm going to take wildly different thirty seconds versus ten minutes and average everybody across the planet without any chief justice and may please the court let me start with your question justice kennedy because there absolutely will be remain and proceedings on the presumption that you found the judgment of the eighth circuit so that the money can be allocated and we know the names of every single person who would be entitled to an award based on a very long spreadsheet that dr fox compiled in conjunction with dr miracles analysis and so on you're right justice kagan if there is a pot of money based on the jury verdict that will be allocated assuming that the court affirms the class certification shit well there's no question the money can be divided up the question is whether it can be divided up between those who were actually injured in those who were not actually injured so suppose you have  employees one worked one was count one was was given credit for working thirty nine hours a week one was given credit for working thirty eight hours in week one was given credit for working thirty seven hours a week without knowing how much additional time the each employee is entitle to you can't tell which one of those which if any of them was injured and you can't tell how much additional time the employees were entitled to without knowing what the verdicts and we would say that if the jury with evaluated the evidence within the realm of what was presented at trial that's going to get special deference in our legal system and so when those monies get allocated ordinarily a district judge is going to do so want to basis either a pro rata for all of those which all of those plaintiffs who were found to be injured in the two hundred twelve were identified by name by dr fox tyson knew about them before trial did not move for summary judgment as to those two hundred twelve could have easily severed them right out before this case went to the jury the second way is that dr fox did an analysis using miracles averages and then added them to the number of minutes worked by the particular employee and so based on vast number of got above the forty hour threshold now the evidence at trial that it came in by tyson's own witnesses was that the average worker worked forty eight hours per week before you even got to any of the counting of the and that the plant rance on saturday sixty percent of the time which would be a six day work week and so the evidence as the jury was considering it found the vast majority of the class members were already going to be in overtime status and that's why the focus of the case came down to whether putting on this gear which was standard sanitary gear for every single worker in the class was compensable or not you know where i'm from we don't know why the jury reduced the requested damages by that they gave less than half i mean it could have been because they thought the evidence on the ones who just put on smocks or whatever as opposed to the ones who had the mesh  armor so i don't believe what you said about the ones who don't put on the mesh armor so we're going to observe dollars on that but i believe the village idiot here the experts testimony on the ones who put on the mesh armor so we're going to award that or maybe they thought you know they would just discount the whole thing or maybe you know we don't know why so because of the used average statistics over varying jobs with even your expert admitted varying times depending upon the classes there's no way to tell whether everybody who's going to get money was injured or not well and tyson had an opportunity to ask for more specific instructions in fact their instructions were the ones that ended up governing the trial set to the extent that they had a complaint it would you have you have i understand it but you have a nor substantive answer because it's one thing for us to write an opinion saying this is a horrible problem but they didn't ask for instructions so don't worry about it well i don't another thing we didn't know whether we should address the mechanism by which this was presented to the jury and then we can deal separately with  substantive part mr chief justice let me say this that in all of these instances where there is a challenge between an aggregation or something where you could ask the jury for a more particular artist decision there's always a tactical and strategic decision that the counsel on both sides are making in the parties on both that sounds like the same answer you know but what i mean is there are substantive has said yes we could say ok the problem is they didn't ask for a special verdict they didn't divide it between the people who were engaged in different functions during the killer's stunners and substantively the way this is handle typically is that you would do a pro rata distribution of the jury for proceeds to the members who are found to have been injured substantive answer we have a way but i'm a puzzled by the same thing so you put yourself in my puzzlement the there is a green room a yellow room and a blue room right now we discover with our statistical experts that in the green room doffing a dawning of those people on average some more some less but the sampling shows it's half an hour in the blue room it's twenty minutes in the yellow room it's ten minutes so we add those three numbers to green room yellow room and blue room people and we get a number now that number in individual cases will be wrong but that's what averaging is about and if there is no other proof in the case well is that good enough well let me let me address that question in this way because i do want is that's a substantive issue i think it is not cocos we be going to skip had additional information and testimony and mr ch justice on the variations i think it's important to take into account what actually is going on with these dr miracle observations about the thirty seconds first of the ten minutes what dr miracle of served using the videotape in the men's locker room was that some of the men put their gear on in the locker room and then they went down to the wind that might take them ten minutes to do some of the men put on part of the equipment and then they carried the rest and they put it on while they were walking to the production line or while they were on the production line itself and they were not i suppose some of them like to chat while they're putting on the good in others or more down the you know let's get this on as quickly as possible to and some of them have different sorts of jobs that require different sorts of equipment and that's what the district court rejected the district court said there was not evidence to support that that the other without evidence to support that they'd have different equipment that they put on it was minimal what the district court and what the court of appeals found was that the differences in equipment were were about this thirty second to ten minute difference was in fact not an accurate depiction of the actual time that it took because the time clustered around the average that was his testimony and that if you took into account the fact that they might be doing it in different places you then see why averaging works and the reason averaging works is because the workers were rotating among different assignments some of them might start the day in a non i've capacity and so putting on all their protective gear before they started their shift didn't make sense they would carry it to the production line they'd be pulled production off the action line told you're going to be in a knife capacity get your gear on they would put their gear on at that time so when dr miracle is observing in the locker room how long it takes for people to put their gear on and take it off he's not he's not counting he's not taking into account the variations in the work style mandated by the combo your your submission is that in fact well what what about eighteen and twenty one you must have thought there was some difference well they were walking to a different part and they were divided into they did have additional equipment in that one but we divide it in by departments and we can identify the employees in the two different  variation that is these trouble some of us the thirty seconds ten minutes you're saying it's not because the thirty second person is actually going to spend nine and a half minutes at the end of the walk and the ten minute person spent all the time at the beginning of the walk and there's no difference between the people who clean up and people who actually slaughter the hogs because the cleanup people are going to slaughter the hogs for hours at the end of the shift and the there was rotation among their own witness testified to that effect that's it j two thirty six he said they rotated quite frequently and what he was explaining was that you might start on a particular assignment and in dr miracle is taking a two day snapshot right he's looking at video and the  workers themselves are testifying that the actual donnegan doffing basically clustered around the average that's what we should again i there's a basic issue that's presented but you're saying it in addition to avoiding it because of the objections or lack of objections at all we should not be reaching the substantive issue because in fact there was no variation in the time that's what the both courts below found and and so when you're based with a factual record here that comes up here the fact that the employer did not keep at it records well had this can't be employer kept records this would be a completely easy case for classification purposes because every single issue would be done by common proof in the employer big charge with not keeping adequate records but not following every single person every part of that person's day you spend four hours on this line four hours on that line you have to you have to put on a certain kind of dog in the employer really keep records for every single employee it's actually simpler than that justice kennedy is where you place the time clock if they put the punch clock before it right outside the locker room so that the workers as soon as they went in the locker room punched in this problem would have been  eliminated because at that point when they were putting on the protective gear the sanitary gear and then they are walking and the walking is uniform for all class members the sanitary gear is all uniform for all class workers so when they're putting on their equipment in the locker room if they punched what is claimed to create the discrepancy right but if you take that sanity i'm just saying if you view them from the question of commonality in predominance which i'm trying to address the first question the sanity or yours all same for everybody the walking is all the same for everybody and then the question is can you use averaging because of the peculiarities of the fact that the doffing of this basically the same gear was occurring in three different places in the locker room walking down to the production line and on the production line  difference between a cavil our belly guard and a plexiglas tele guard or a mesh metal mesh pellet bellegarde we're talking about the basic same kinds of gear we're talking about different kinds of gloves but those variations were presented to the jury that found to be minor and the district court concluded that they were minor difference a difference the question is not whether there whether the protective gear is different from the other but it's whether protective but the point was mr chief justice that if you were on knife duty at a particular point in time you were going to rotate frequently during the course of a day or from one day to the next and so you were charged always to have your gear ready to be put on if you were put in in life clemens well just as county i think mount clemens answers the question of this case i think that given the way the evidence came in and the averages here we snowball one so even if there was not a special mount clements rule where there is a burden shifting framework the answer should be the same so that's exactly the her hops i read the question the first question i'm taking it literally said whether differences among individual class members may be ignored they were liability in damages will be term used to testicle techniques that assume everyone is like the average i thought the answer to that question is yes and it depends of course you have to be reasonable i mean that's why i use the four room we don't know everybody in the room but we do is we take an average in the room if it's a good statistical average why not now i want to i don't want you to agree with that if that isn't the law but i don't see why it isn't well just do agree with that position but we also agree with justice kennedy that because of the mount clemens framework overlay for fairly standard sac this is an easier case than a case in which there was not that substantive law difference because if you were to take one individual and you were to see used the same evidence it would be representative proof you'd have the same burden shifting framework that's why all these arguments about dr miracle really are merits questions they're not  chew bear a knife during the day you're going to be paid for that time anyway that you're on the start to end day ok so you're not going to get fs l a for that so it's only the people who start out the day being required  count our study only took into account the walking time so he's not going to get credit for the fact that he's doing work by putting on the gear while he happens to be walking if he is pulled off the line during game time while the hogs  going on on he does not get extra minutes because the supervisor says we need you with knife so go put your gear on he's counted as part of gang time at that point so say ask you to clarify something before your time runs out because it's u nclear to me from what you've said in your argument why did dr miracle come up with one figure for employees on the processing floor and another figure for employees on the slaughter for if as i understand you to have said this morning all of the employees basically do both of those tasks and spend an equal amount of time on them so they can all be considered together i didn't say that and if i did i was i misspoke well  the within the department they would perform different tasks some of which would require a knife and some which didn't and it was within the department that the average is that were being observed we believe a fair average is in the line of the fact that we're looking back in time and we're trying to recreate what happened in a in a three year period that you know was where within our no records and so within the department what the court found was that there was consistency in that the differences were minimal the reason why there's a three minute difference is because one is longer it's a longer distance for walking to get to it and there is you know more to be done but i want to make clear that we broke this down into the two different departments because we could discern those but i would submit that let me ask you this if the court is writing an opinion over reaching the result you want what is the standard we put representative evidence everett evidence of injury is sufficient if what would what do we write i think what you write justice kennedy is that in this context where there was an expert who said that the average is a clustered around the averages and that based on observations where the work activity the dawning and offing that is contested here is occurring in three different places it's fair to treat the employers because the f l essay is a remedial statute that is designed to protect workers who can't keep these kinds of records that's why that's this a little bit too specific for the broader standard for the average was possible if there's no other way to do it if  a case that has a special policy then there are those and quite satisfactory to me well i think every case is going to be different as we would all candidly recognize in an antitrust case is going to be different from the labor case and that will be different from and i think you do have to look at the substantive context in which the averaging is going to occur so that any deviations at least are explicable here don't you also have to say that the jury accepted the average and that doesn't seem to have happened here well when the jury comes in with with less than half of what the averaging would have produced her how can we say that there's been averaging the averaging i think you should  from the jury's award of damages to the injured and it was instructed not to give damages to the uninsured workers in a fully charged with that the fact that awards a lesser amount may be based on its own doubts about the number of minutes or or the quantity but those kinds of calculations i'd submit justice scalia we have always defer to juries in the way these kinds of damages are calculated thank you counsel broder mr chief justice and may it please the court justice kennedy i'd like to begin with your question about the proper standard to apply here the government thinks is the standard that the jury was instructed on and this appears that j a four seventy one to four seventy two the jury was told in this case that they could only rely on the representative evidence if all of the employees performed substantially similar activities and that substantial similarity is what we think is the proper standard to determine whether an inference here would be just a reasonable you think how do you know they relied on the representative evidence the number was was more than fifty percent what was asked the expert was cross examined we don't know for example that they rejected the eighteen minutes but accepted the twenty one minutes the fact that the jury did not give you the damages seems to me to call into question the significance of the statistics well i think it calls into question whether the jury agreed with the actual time estimates but i don't think it undermines the conclusion that they found that there was proper representative evidence here because they were instructed that they couldn't award a recovery to the class and to all of the non testifying employees unless they were convinced that they all perform substantially similar activities so i think we have to infer that the jury found that all of these activities were similar that there were not material differences of the kind that mr phillips has referred to today because the jury was instructed that that was the only way they could ward class wide find a finding here a class wide liability  representatives statistics i don't think they would have had any basis to do so and at the end of the jury instruction on representative evidence was which was an instruction that tyson requested the jury was told quote the representative evidence as a whole mess them straight that the classes entitled to recover and i think that there was an ample evidence basis here for the jury to conclude that there weren't substantial some substantial dissimilarities among the task that were being performed in these dawning and doffing activities it's useful i think to review that record evidence for example dr miracle testified that the times clustered around the averages he had seven hundred forty four videotaped observations as well there was the testimony that employees frequently rotated between positions including between those jobs that used a knife and those that didn't the employees who testified at trial had times that came in very close to dr merkel's averages and i'll just refer you to mr logan who testified that j to sixty and to sixty five seventeen to nineteen minutes mr bal there is said eighteen to twenty two minutes mr monti said around twenty minutes as well tyson itself apparently didn't think that there were these material variations when it was calculating the cake time using a study that was very similar to the study that dr miracle employed here and use  sentially the same methodology in that circumstance tyson thought that it would be appropriate to treat all employees in a uniform way so i think it's critical here that we have a jury determination upon a proper instruction about representative evidence that there weren't understanding is that there were differences in what you were paid depending on your position when you're both you and your friend are telling me that well we shouldn't treat those drugs differently because they often switch back and forth well the jury concluded here that those jobs didn't require materially different gear so i think that the pay rate which was evident from tyson's own records hearing could be calculated through these kind of mechanical damages calculations doesn't signal that there was different gear it might signal that the work being performed on the job w somewhat different and require different levels skill of skill but i think it's clear based on the jury verdict in this case the plaintiffs were able to prove their claim with classified evidence and at this juncture it's something of the reverse of what th other cases where the court has recognized that sometimes the certification decision overlaps with the merits of the claim and you have to consider at the outset whether the plaintiffs will be able to prove their claim with class why did you concede that if this were rule twenty three action and f l f f l f s only were not involved that it would be a much closer much more difficult yes i think it would be much closer and here i think that this really gets at the point that the dispute here doesn't turn on a free standing rule twenty three requirement stands it turns on the mount clemens standard amount clemens does adopt a special rule tailored to the fact that there is a record keeping violation in this case that prevents the employees from being able to prove their claims with more precise evidence we think you agree consistent with the rationale amount clement's mount simon said that when the record keeping violation prevents a determination of the amount of time spent on these activities then you should be able to come forward with a just a reasonable inference and not put the burden on the employees to prove that time with precision and when that exact same fact is relevant to liability in so far as it's necessary to prove that the employee is pushed over the forty hour week threshold then we think that all of the rationales that animated now clements with equally apply to the determination of that particular fact in that context but we think about some and signaled that this might be an appropriate determination at the liability phase because it recognized at the outset that the burden of proving that you have performed work for which you were not properly compensated shouldn't be an impossible burden that was the language that was used in the opinion and so i think that whether or not now time is decided it certainly it's true that it should be applied in this context to the particular fact that was relevant there i am i'm go try to phrase what i understand the question my colleagues have been proposing but i don't think either council has sort of gotten that or maybe it's so obvious that we're missing it ok clearly the experts here d joy said i'm using a hypothetical there's ten minutes of overtime and the figure that comes out with ten minutes of overtime is a million dollars now the jury comes back with half a million dollars how do you know that what they said is i half the time five minutes or the jury said i think it's eight minutes or fo slaughterhouse and three for production line people so it averages out to five now ok how do we know what the how the jury calculated  answer is that we don't know for sure just a set of my or that's what my colleagues are saying so the question is your adversaries claiming that there might be some people on the three minute side we're going to come and collect it pro rat share who really weren't injured because they had were thirty nine hours and fifty seven fifty six minutes something like that so why is it that it's fair to distribute this award program well i think that it's not clear yet exactly how the award will be allocated and those will be left to the district courts discretion when the case returns for allocation at that point tyson can come in and it can make these arguments a bit thinks it's unfair the district court will be well positioned to determine whether tyson waived the claims by actually asking for a lump sum for dick here and whether tyson even has a stake in this issue given that it's a liability one increase why would why would i  care they had to pay the same amount of dollars exactly justice ginsburg and i think that that shows that tyson might not have the requisite stake here to be able to challenge the allocation but i think that overarching point to keep in mind is that the issues with allocating this award were not the inevitable  result of the class action mechanism they don't reveal some defect in that mechanism there were any number of ways to account for this problem that trial could have been bifurcated between liability and damages his justice kagan noted that would have solved this problem entirely but tyson opposed it be altered in this case to exclude those individuals who were working the requisite number of times ultimately there are any number of mechanisms that could account for this issue and none of them demonstrate that this class action was improper they went on utilized only because of tyson's own litigation opinion letter to the industry saying that it was clear that you had to pay for actual time worked and of course the secretary has limited resources and can't conduct enforcement actions for everybody elation of the l s a but it is the department of labor's position here that tyson wasn't violation of the l s a both by not keeping the actual records and by not fully compensating the employees for the time worked in this what do you think an employer you know what do you think an employer should do about record keeping when the employer believes that certain activities need not be counted under the f o f o s a so is the employer it may be that the employer is stuck with the choice that it makes legal judgment it makes but is it supposed to keep two sets of of records so the amount of time that it thinks the employee is entitle to compensation for and then there's some additional amount of time that it might be argued that the employee is entitle to compensation for  make clear that the employer is stuck with its mistake because it said even when the failure to keep records grows out of a bona fide in the state about whether the time should be compensable whether it was work that's still the burning the framework applies but i would also note here that i think there was d let me answer justice alito has a point in the and the observation here where i mean the reality is that in the reich litigation we were told that the ordinary says sanitary equipment was not was not within the dawning and doffing requirements and never a problem  the and so as a consequence of that frankly we didn't monitor this that's not a complete defense but it at least explains the sort of the equities of the of the situation second my good friend tells you that the district court here found that all of these things are very similar the reality is is a pe p eighty seven a the first time this issue came up with the close certification the district court said there are some very big factual differences among all these employees and the basis and the only reason the district court didn't agree to certify it at that time was because he thought that the gang time was somehow the plot of the tie that binds this all together well the gang time was nothing in this in this litigation and the reality is he made a mistake then and every time we came back to decertify this class based on more and more information about made a finding that there were great dissimilarities shows your honor it did yes i think that that's on page eighty seven a of the petition of the appendix to the petition just as if it's in the first certification decision justice kennedy the answer your question about how do you write an opinion and when is it close enough averaging is a permissible way of going about it when the evidence is clear that the that the basic activity is homogenous and that would have been true for walking time there was there was literally standardized walking tongue that's what i call they use yes and that's the way that that's why and utilize walking time because some people are faster than others correct right but my point here is that in general everybody agrees that's a reasonable way to proceed that's my point here we're not talking about a modularized because there are vast differences than the evidence is absolutely on the salable on that and with respect to mount clemens in the first place i don't think clemens should be extended to make a fair and reasonable inference standard of the presumption apply at the liability phase and i think the court was spring extremely clear and not want to go down that path but second even if you thought the presumption should be applied here i would argue that the miracles evidence as as you know through cross examination and examination of other demonstrates that this is not a fair and reasonable inference and on that score system either to quotations i'd offer up one comes from this court's decision in wal mart when an expert's testimony does nothing to advance a part case the court can safely disregard what he says and then what judge posner said in a very similar phillis a case what cannot support an inference about the work time of thousands of employees is evidence of a small and representative sample of them and that is precisely what we have in this particular case the with respect to remain and we'd be happy for remaining to it for allocation of that's permissible but as i read the final judgment of the district court is judgment and of about six million dollars to these name plaintiffs and that was affirmed there is nothing in there about how this is going to be allocated under these circumstances so if the court believes there's got to be a separate proceeding of allocation the court hopefully would order that although i think there's a more fundamental decision the court would have to reach and then finally with respect to who has the burden of dealing with this problem it is the plaintiff's burden to sustain the justification for a class all throughout the proceedings until a final judgment is entered and we came to the court four times asking them not to certify this so to come back in at the end and say well since it says we were able to try this without any ability to put for any of our individual defenses with respect to any of these individual employees except for the four who actually testified is exactly what this court said and wal mart and comcast is an impermissible way to define the class the court should the courts should reverse in this case to clear the class decertified