i well i think it's in the end i'm not sure which part you're reading and maybe i'm reading it differently i agree that in terms of one of the places there was no use of the truncation charge if i recall the lunch or to do whatever you write down your time each time and there's rounding up and down which is perfectly fine if you're on the up or down not just in one direction at the end of the day you're supposed to enter into  do you but yes you betcha but that's not the problem and you're right but that's not the problem here's the problem if she gets on a date of let's say she gets the natal too and she writes down eight o'clock and she leaves eight o five always round billable under cohen as the legal and practical value of the relief denied would be destroyed if not vindicated before trial what legal or practical advantage parties are here nothing what in fact these part doctrine there is jurisdiction but maybe you can explain to me and i don't understand how they are affected by not the named plaintive is not affected  interest of a non party would be destroyed by awaiting final judgement i don't well certainly i can't psyche that would say that i'm trying to think if i read it that dealt with a class that had not yet been certified and i'm assuming you're including in your your search that  if and i'm not thinking of what it would be where the court is allowed to conduct these actions in the way the court in another words the court that would authorize the notice to go out and authorized what is allowed to be said i'm looking at the where we all to sixteen the is the section that allows collective action and that allows people to if you work for us i bank during during that period in you may have money coming to you contact i don't so i've seen those but no i i think those are two different things i think that the notice that the do it this way your town or right but i'm asking you something different where there is no notice or you just put an ad on late night t v and in the newspaper like one  if i don't know if the court had not entered any order and there was nothing restrict they had not said that there was a restriction on  contacting these people and there are restrictions but if there were not then attentional e if it were not volatile of the ethics rules one to do that i'm thinking yes it's rules think one of the reasons you don't have an expense to advertise it i think that's why sometimes you don't and they want the court to order notice that it will be interesting if you find something in the record i appreciate solicitation i'm not actually getting one where the other on that but i'm just saying that there is that it is clear that the individual can in some circumstances as score points out the notice could be expensive in this case i will point out however that of for at least seventy seven plaintiffs are in plaintiffs individuals whose time sheets the plaintiff used in their two submissions i can imagine it would be unduly expensive for those individuals to be contacted so that the the  testified there was some assumption that she had said that she never rounded never rounded up so it gets a little confusing but i think it's helpful to talk about that and not just in the context of answering that question but in the context of understanding why these are inherently individualized determinations on the merits of these claims the time sheet that i handed you is sharon harrington and what i want the court to understand is and then close of the bottom there on the right is this  rounding chart but there's a whole lot of variations in what could happen with individual employees and individual time she's because they walk in and the first thing they do is they write down their time mcnamara testified to and i think what ford is referring to is that ms mcnamara when she wrote her time down sometimes rounded up sometimes rounded down when she wrote her time now that's the first instance where rounding comes into play here and where you need an individualized determination then allegedly the rounding charge once you get a total amount of time the rounding chart then sometimes results in rounding up sometimes it results in round down so there's really two aspects of rounding here which you have to examine every single time sheet for every single week for every single point if there's a term now for instance well ok so in the deposition testimony and what i want to tell you about ms merkel mary in response to the court's question about her rounding not rounding up i'm just saying on page twenty nine of the brief she's asked if you come in from or luck from back from lunch at one o two what would you write down on your time sheet as your lunch in time and she said one one o'clock which of course would be giving her an additional two minutes of time if you came back from lunch at one o three what time would you put got in when you went to lunch when you returned from lunch and when you left at the end of the day now so so and there's other there's other examples you cite in our brief where that is the case so the first thing you would have to do to make  merits of any individual claim is you would have to find out from that individual like we found out from apple mary what did you do when you came in you sometimes around out did you sometimes write come in at one o two and  you total up your time at the end of the day and not everybody used it the same way so as this as this n c r provision illustrates for instance with miss harrington on this particular day according to her  she had if you will if you look at when she came in when she left cetera et cetera she worked six hours and fifteen minutes she under the under the rounding chart she should have written down six point two instead you notice that she wrote down six point three which inert her benefit in the next entry down same kind of situation if you add up the time that she wrote down subjective she had eight hours and twenty minutes under the rounding chart that should have been eight point three what she wrote down was eight point four now there are numerous examples of this which demonstrate that you have all these variations and you have you would have to look at each individual plaintiff and ask how did you record your time when your time sheet that you round up that you're around down did you apply the this this so called class is similarly situated is that for it when you get to the merits to in order to prove the case or to disprove the case you have to look at each individual employee and how they dealt with the time sheets and the rounding charts i might add you also have to know which employees used this particular rounding chart there were several rounding charts out there is that summary said that she used this rounding chart and she also used forms with other know right well but but but if the policy depends and if adjudicating the claim which is not just proving liability but also proving damages if that depends on looking at how people dealt with the policy on a real hard for me to imagine all th i think there's room to say never under the collateral order doctrine but recognize that there is the possibility of getting certification under section twelve ninety two b and the court judge justice stevens in the  longer grounds for or for jurisdiction but the court said you know congress considered this and and dealt with it with section twelve to twelve ninety two b which allows them at the first level  in cooper's richard library in cooper  he is i have i think this is a page force must be for thirty seven u s for seventy four and he talks about the principle vice of the death the death knell doctrine which is again would have allowed  of certain on final orders however congress carefully confined the availability of such review when he talks about how you have to go through the district court first and then you have to go through the circuit court he says that this screening procedure serves the dual purpose makes it hard for arnie i mean can hardly ever rather than never well i don't know if it makes it hardly ever i mean you can find cases if you look at the cases you know none of these cases that have been cited in the briefs where they reached the merits of a certification if you have ever been based on a collateral order doctor but you can find some of these cases and i can find them if you like that have been certified under twelve ninety to be so i guess it does mean a hardly ever i mean it would not be easy to do but if you do want are you told us that it's never under under c filed you know when you look at what's going on here you folks you post to the court may not be aware that that we have the appeal from the certification order in this this is before you today we have the mandamus from the certification or this before you today and we have in december of last year the plaintiffs filed another appeal in this case from the order not certifying the other class of plaintiffs in this case so this is a this is a wonderful example if you know if this can happen then we know from we know from supreme court precedents that there's supposed to be a great deal of discretion for courts overseeing class actions and if you open up this can of worms and allow just just the peels whenever somebody wants to walk in to file a notice of appeal in a case such as this from every decisions being made or from least even every certification decision that's going to wreak havoc in a system that's supposed to be devised to agree to give a great deal of discretion however in said but it's pretty clear that you would have to you have to go through an individualized analysis of every time sheet of how people use their time sheets of whether they use the rounding chart of how to one point seven million  dealing in pam when we're dealing in tenths of an hour she has not accurately recorded her hours but your conversion chart if somebody is is honest and accurate two different things in this consistently devalues the amount of time that you're that you're employed to put in it does not consistently devalue if the employee's time is a divisible by six minutes so if the employee comes in right right on eight and leaves etc etc but for any leather determination i work an extra five minutes every day of my life under this chart i will get i will get i will get an even number of hours of work eight hours and five minutes every day of my life or u s bank i'm never going to get any more credit than for eight hours a day if you applied every if if if if all of the numbers were correct and you were you were putting an exact number down on your time sheets and you were using the rounding shark not everyone did either of those things the end you weren't  weren't divisible by six minutes by six minutes and he said yes this particular chart would round out but i want to make one thing very clear because the court was asking about the policy and what makes them clear this this case at this point and this motion is not about a policy it's undisputed in the record that u s banks policy was to round to the nearest tenth of an hour an hour the issue here with regard to this order is this particular trip this particular rounding chart ok this is not the u s they have backed off or they would they're one of the same other not murray herself used three different rounding charge during the relevant period it's going entirely possible that that the plaintiffs would have used more than these those three because what happens is they get posted the current one gets posted on the internet employees run as to whether each each charted particulars is the same as every other chart well i think if you were conceivably if you were doing f r c p analysis and you looked at that the commonality issue i think that i'm not sure how you come out on that but the similarly situated analysis in the courts are clear on this and doing that in doing the in looking at it requires that you look at it again your goal is to see if you would actually have to sit down and look at individual adjudication and so the answer the question in a similar know how she applied the rounding chart and the answer is it would be impossible if you walk in the court that they were trying that case you would have to look at all those issues in order to  you please the court in terms of what you would have to prove that trial perhaps counsel is overstating the case a bit because it's up to the employer to keep accurate time records it's really not up to the employees and these records were reviewed by the supervisors or at least pierces in the process so yes people make mistakes when they're entering time i'm sure that that happens and i'm sure that you can pick out some time sheets that are a problem but all in all that particular truncation chart was used widely by us and as a court notice when ever you use it you're going to lose hime unless you happen to enter a number that ends with a zero for every single entry including lunch and your lunch time well put in for six point three supervisors and i don't have it in front of me but i'm sure you're reading it accurately as i said it would be very easy to find in any list of a time for is that there were errors in terms of how you would show this double in terms of computing damages which is where you would be as want to uproot once you showed liability which one convince words about this but the trun and there was a statistical analysis done by like us showing you know what the likelihood was and so forth over all of these plaintiffs in terms of having to depose every person to say well did you you make a lot of mistakes as a as an ordinary time of doing your numbers i mean i don't think so i mean the treasury start speaks for itself either they did it accurately or they didn't but clearly that was the policy of the bank they published it they had their people use it and for the most part they didn't use it accurately using the truncation chart so what's so hard about that really when you come down to it one thing that was brought up and i apologize for not knowing