collective action file didn't work even in the weren't even in the allegations so they came in later what difference does that mean well you don't have people just individuals would have been three out of the five people not not all five so obviously the people were popping into that complaint or that allegation they were shifting from from the other allegations into that allegation even to be candid with you if it was a twelve thousand dollar claim we wouldn't be here i mean cost to come here is too much to sort of think the general picture of this thing the sort of three information from the united states gover now the key to complaints over classifications and tons and tons of people on the job site that never showed up and certified herald's there was some f l s a i'm sorry there was some overtime in the key ten complaints that basis for the after the bench trial for judge jenkins finding that there was a there's no key tam liability which produces the trouble right and also in sweeps and all that any other you get up to six or seven million dollars just for traveling first the many hours they had an expert who didn't know what he was doing that's the fight takes ten hours to install this window when we put prove in court it takes forty five minutes ok and the we did it in deposition and we did it again in court that took away all the shortening of hours so that the failure to record hours and just for people who weren't present but at the end of the day the plaintiffs did partially sticks to the under a federal statute that allows the recovery of a reasonable thing right the plaintiffs exceeded under the f l s a individually for themselves not for the two point two million dollars was the answer my question yes or no they succeeded under a i think younger more years who didn't spend a whole lot of time on the case right and at the end of that they reduce the amount they actually requested by sixty seven percent right what's wrong with it because it's the result is absurd and the result through shows grand or twenty grand and legal fees fine and and the math he did was bad because he included in it the claim the thirty thousand dollars in order to get the multiple that he says were not recoverable for free so i think what you're saying there is two hundred twenty thousand and fifty thousand is better not with two hundred twenty thousand and seven thousand this really have a line exactly right that's what it really says that's what i say yes we have anything in addition to hensley some circuit court case where they're talking specifically numbers and saying this kind of relationship between thiessen results i apologize and i'm off the top of my head i don't i do think that there's got to be a point where it becomes the tail wagging the dog and i guess i have to take me back one step at a point it's recovered a total of forty seven thousand or something in the action right ok and so if you take that figure and not your seven thousand dollar figure it's not at all disproportionate even if the proportion is the touchdown assuming that proportion is the touchstone here's my question what if any do you have denied the fees on the breach of the contract theory and why did he do that probably because if he had done that then he would have to compare their we cover their fifty thousand or thirty thousand dollars to feed the claim under those under those sections which was three hundred thousand and declare that the plaintiff was the not the prevailing party but that's when it was you cannot use the portion of the case where defendant prevails just argument your fees and which eleven ninety four we go to the eight thousand it would not go to thirty and the reason it would not go to the thirty was because the eleven ninety four talks about over time i thought that was the one that felt with going on minimum wage is not primarily minimum wages either the wage workers and minimum wage is six twenty five i need for you to just assume with me that eleven ninety four apply for the sake of my questions because i want to be really clear about this if eleven ninety four apply and the fair standards act applies then they are entitled to fees that pertain to their recovery of the entire forty eight thousand or whatever it is correct if you assume that the didn't really wage minimum wages are not the same it doesn't say prevailing it says legal minimum wage or legal overtime compensate actually are there judicial decisions yes that there is a lot of people's decision out of sacramento that uses the talks about the prevailing wage being a minimum wage there's just levy who said in court one day that was the only reason then refused to follow it i have no idea what the california supreme court would do i was there to ally that case that says prevailing wages with fire sprinkler directly you have to sue on as a breach of contract on the third party beneficiaries o j simpson actually contradicts that because otherwise if it was the minimum wage and eleven ninety four of its quota was around during that time he would have been able to directly o j simpson says you have to do this either a why aren't we prevailing every every cause of action is about wages whether it's dressed up in seven thousand two hundred or whatever and to distinguish between the question you asked me and i claiming that they want for offsite work plumbing post literate work which was not included if you have that offsite work even if you throw it into that claim that's not the thrust of their complaint the thrust of their complaint was for misclassification and this expert has the finest how many hours ought to take what reality took i'm missing something ok one way to read this combination of eleven ninety four and two eighteen point five is turned she's eleven ninety four is a plaintiff's only statute that says that if it's a wage playing for overtime or minimum wage and i again stick to my guns i think that means the generally applicable minimum wage  everybody that you can look out to make minimum wage means with the status quo minimum wage right otherwise not the fact that it is a minimum wage rather it's minimum wage meaning minimum wage means the statue cosmodrome because you can't know what the minimum and i think what your honor was asking me is why can't i include thirty thousand dollars in there and then get to the five to one ratio which would make it reach a reasonable and the answer was if you look at the complaint then you can plead eleven ninety four in the complaint well it is there is there another each other and the lawyers could not be doing one without doing the other they prevailed on some state law claims as well as under the fair labor standards act it was one related ball of wax thank god almost fifty thousand hours that and that's the number that i'm going to look at in terms of the reasonableness of the funny and to which we respond so if it's all one ball wax then we're prevailing and then and and and this trial was not about their six weeks of overtime this trial was about everything else that for the law firm were to spend hundreds of thousands of dollars worth of time to get seven thousand dollars and it was also doubtful my client would have spent hundreds of thousands of dollars defending against that and you asked the originally that was an offer of judgment the answer is no because nobody was worried about twelve thousand dollars on this thing nobody was thinking about it in alaska we've had been with will for many years and that's the way you turn a small loss in three wins with an awkward itself lost the case to me under to a statute to eighteen point five they brought a wage claim they were they they are the ones who really wanted the pain anyway you know these people are long gone and there's and they're the ones who lost everything they can recover not a penny and they recovered not a penny on behalf of anybody because after all according to them the f l s say was for individual and therefore not on behalf but not by the union to keep notes anyway just in case i want to hear from you and an invite a minute of rebuttal place michelson on behalf of plaintiffs respondents with respect to the issue of what constitutes the minimum wage under eleven ninety four if you take a look at the respondents supplemental excerpts of record and i'm looking now on page one thousand nine hundred the merits appeal which is a portion of the phase nine contract for the airport but we want supplemental after several record page one nineteen which is a portion of the contract involving things nine and under paragraph twenty five it describes the bailing wage scale and says the i'm quoting now the minimum compensation to be paid for labor upon all work performed under this contract and then it goes on later in the contract and we've also have really doesn't really contribute very much i mean that's the contractual amount to be paid in the question is not what the contract says that's what the statute means i understand that and then when you look later in the contract the contract references the statute and now i'm on page with the son who has to reference the contract in order to incorporate the contract doesn't matter that the contract references the statute well the statute then describes how you go about determining the minimum prevailing wage and it references the labor code and the labor code specifies in section one seven seven two point three that it's the department of industrial relation when i try to figure out what reasonable attorneys fees are on a suit for money damages i tend to start with the very ancient custom of american attorneys of one third cont so you win seven thousand dollars for your clients through a little you're entitled to a little over two thousand and three fees you win fifty for your clients you're entitled to an analyst at seventeen thousand attorney seems to me is you've got these two that these chinese wage earners getting nickels and dimes while the lawyers get big bucks it creates an incentive to use them for cannon fodder instead of getting them a quick settlement well as posing counsel admitted there was never an offer of judgment in this case with respect to the five name plaintiffs under their f l s a cause of action and under their labor code causes of action simply no offer  i understand that you want to get millions of dollars and put them out of business neither side they didn't make an offer of judgment neither side was trying to get these people that were entitled to seven thousand dollars their seven thousand dollars there were multiple causes of action it was our position that all of the workers on that project were entitled to get the proper prevailing wage rate and that was involved in both the false claims act cause of action and also in the section seven thousand two hundred costs of action those are you know meaning you're admitting then that there was no serious attempt to get seven thousand dollars for the people that were of seven thousand dollars there's always a serious attempt your honor to try to settle cases from my perspective with counsel representing the chicken come to you and say well we think this is a seven thousand dollar case here seventy thousand bucks go away that's correct with respect to the name plaintiffs i mean there were still other nobody it was nobody cared about the name plaintiffs here is far as i can do respect your honor i in my co counsel cared very much about the name plaintiffs and that's why this action was brought on their behalf because they were not being properly paid under the prevailing wage laws and under california state law and we also felt that other workers on the job were also not being properly paid and in addition this is the city and county of san francisco and south san francisco in the city of milgram the u s government were not being properly acted toward with respect to the false claims and if you take a look at the judge chain for getting lost on all that right we lost because the judge determined it was negligence rather red rather than recklessness otherwise they would have won on the false claims that costs about actions that will that he the wager at that time city employee in charge of wage rates called in the pay and that was wrong you know if you when you read the transcript and we've included that in the in the packet your honor if you take a look at page of our supplemental no and the reason was is because under the contract that's the responsibility of the contractor to do that and it's not the responsibility of the awardee nature and if you take a look at the supplemental excerpt of walk me through the logic of how the seven thousand why the attorneys fees were awarded based on fifty rather than seven ok with respect to  analysis that judge jenkins did and he did a very thoughtful analysis usually using the factors in hensley focus i'm trying to get the law here right the logic is after the lodestar was determined and based on his experience with the case and based on what had been done in similar f l s cases that he cited in his decision he determined that a sixty seven percent reduction so far has not said a word in response to my question which is why should the amount of success be treated as fifty rather than seven for purposes of the attorneys fees award and the reason that the judge gave attorneys speace judge jenkins was silent as to whether the other two were appropriate with respect to the point is we have sort of the eleven ninety four sections eleven ninety four of the labor code and section with respect to the third party breach  contract action and section one twenty one one thousand and twenty one point five with respect to the seventeen two hundred cause of action judge jenkins never reached those issues with respect to the plaintiff's motion for attorneys fees he didn't reach those issues with respect to the defendant's motions for attorney's fees and specifically rejected the defendant's claims for attorney's fees under one ten twenty one point five and under does labor code know your honor the judge in my review of the ninth circuit authority the u s supreme court authority the district court who has the experience of the case is supposed to take into account a variety of factors it's not a simple mathematical calculation that's this especially the case with regard to the fair labor standards act where you're trying to enforce an important statutory protection of making sure people get the proper minimum wages on jobs and i ask you about ten twenty one point five opposing counsel as i understood it said that the district court has specifically refused to grant plaintiffs any fees under ten twenty one point five is that your reading of what the district the court made very clear that the court viewed the recovery the plaintiffs received as compensatory damages under the f l s a and not simply as a nominal amount the union moved on any claims against the employer and he didn't lose on any i think the answer is obviously yes one that can be didn't lose on any where czerny's fees are awarded while on a two way basis when you look at the statute the union was only involved in the  claims act causes of action and the seventeen two hundred cause of action the union was not involved in any of the other causes of action so the causes of action involving the fair labor standards act the causes of action involving the labor code violations the causes of action involving the third party breach of contract the union was not involved in any of those causes of action with respect to the false claims that cause of action the standard is clearly frivolous which judge jenkins determined that the false claims that causes of action not to be clearly frivolous with respect to the seventeen two hundred cause of action the analysis is under quote a civil procedure section ten twenty one point five where you have to where the defendant would have had to provide some kind of public benefit and not be litigating the case for its own business reasons and the judge specifically found that the defendants were not entitle to attorney's fees under ten twenty one point five the unions not liable but we don't do the parsing in order to decide whether the fifty year of the seven is the right measure of success as explained with respect to the causes of action we t attorneys fees under all the costs of action under which the individual workers were successful in order for the union to be held responsible for attorneys fees they need to be involved in the cause of action that would be the basis for the attorneys to be award and two hundred the plaintiffs were the prevailing parties in that regard in the sense that they got a recovery of over thirty thousand dollars is there any authority that says that the traditional one third contingent fee cannot be among the story that we've sided with respect to false fair labor standards act cases that it's not as important in a fair labor standards act case as it is and other kinds of cases because of the important statutory federal policy in trying to make sure people are paid the proper minimum wages and over time compensation now with respect to the collective action issue there were only two causes of action that involved more than the five plaintiffs that was the causes of action related to the false claims act and the seven thousand two hundred cause of action all the remaining causes of action including the fair labor standards act cause of action only involve the five name consequently there is simply no basis and when you look at the nature of the cause of action to assert that that was the collective action the seventeen two hundred cause of action is a different cause of action than the then the fair labor standards act cause with respect to labor code section eleven ninety four there's nothing in the case of authority that we cited in our brief at page twenty five and there's nothing in the specific language of the labor code itself that limits that to rulings of the industrial welfare commission or industrial welfare commission orders where you have not need to wait on that t d even on its own terms which only specifically addresses the fair labor standards act because as was pointed out it's a clear if use of discretion standard the judge clearly did a very thoughtful decision he went through all the various factors and he determined based on his experience of the case that the sixty seven percent reduction was appropriate after the plaintiff's counsel had already significantly reduced their fee workers therefore in terms of analyzing that motion you need to look to see which causes of action was the union involved in and and as the judge pointed out in his decision the causes of action that involved the labor code violations were not the causes of action which the union was involved in that was part of the faces that judge jenkins relied on in making the determination that there should be no fees awarded against the union now with respect to the fair labor standards act issues one of the issues that was hotly contested had to do with whether prevailing wages were required to be paid for work at the warehouse and for work traveling between the warehouse and the various houses and such jenkins found in favor of the plaintiffs and that was part of the time that was utilized in coming up with the award under the fair labor standards act and there's both federal and state authority that al supports that determination which even to this day the defendants are still contesting so as you can see from the record that basically even up to today the defendants have not given up on a variety of issues with respect to even the fair labor standards act and that this was not a simple case that was readily resolvable at an early stage of the proceedings with respect to the five named plaintiffs who ultimately pick sixty seconds i'd like to reserve whatever time i have to respond to that response the winner below doesn't get to give the rebuttal argument on oral argument first you asked about settlement negotiations and  criteria for five people this benefits what can't apply ten twenty one point five can apply to their benefit because it doesn't benefit a large group of people that is the one of the criteria for a ten twenty one point five and the third thing is the seven hundred two hundred is enabling statute it doesn't have its own terms and the enabling statute here was a wage claim and two eighteen point five of the labor code says any action doesn't say a statutory three