elements of the executive exemption the second obstacle they had to overcome was the presumption under federal law and more importantly this case under california law that hourly employees are entitled to overtime unless those one of the things that the evidence showed is that the that the constraints on then by the manual the policies the practices of u p s that are so uniform and so mandatory and so incredibly detail d make their job routine repetitive and not one that actually sells independent judgment and i think that gets to your point that while conceivably you could you could have many companies where you have i can't do my job i can't get my job effectively and to constrained by the procedures i could micromanage that micromanagement micromanaged you see that we're throughout those comments you see people saying this would run a lot better if i could terminate the people who are interfering in the writing but i have no ability to do that this could run a lot better if i was allowed because i know what's going on out there on the street if i was allowed to change the practices here rather than have the practices dictated to me by the headquarters in atlanta who don't really know what's going on in the service or me just ask it a little bit different way because i'm having a little trouble you can't ignore the representations made to obtain classroom vacation you can't take positions your view is really that as a matter of law based upon the procedural manuals that these are jobs that that so constrains any discretion that almost as a matter of law that's that what individual evidence do you put on a trial because i'm having some trouble it's not a pattern and practice and it's not a typical discrimination case it's a misclassification case or at least ye testify about how the procedures and manuals are implemented and that in there just as we did it's time to judge it with the declarations from class members to show that their day to day work is completely constrained and th testify as to how in the real world those policies and procedures work so so long as you have one class member who could come in and testify recognized that they were probative in some ways but had trouble with the fact that there was no proof that they were representative of the class and i'm not exactly sure of the district the obviously those comments were produced by u p s and they reflect comments by hundreds of class members from the geographic location in this case involves if what you meant by representative that they were randomly sampled survey experts under d'albert pardon me did you ever get an opportunity to challenge the expertise of the alleged extra experts on statistics and so forth under the  about that after summary judgment while part of me how do you go about that at the summary judgment level i mean you obviously have an opportunity to to depose witnesses and raise that issue but it's not as if it were a bench trial which is really what when you read the opinion it's an opinion that would seem to be an opinion stemming from a bench trial where i doubted else it could go on about experts where a way of evidence could go on and deciding which evidence was more convincing but we were summary judgment on the other hand just because it comes down her down or it doesn't mean that they're still it's not disputed evidence correct that's correct and what we are saying that th neither are experts survey was excluded underdog or both were in there and the judge looked at one and found it to be more probative than the other found it to be last very good on the other although the judge had good morning my name is kirby wilcox i'm with paul hastings should ask in walker representing united parcel service and the subpoena united parcel service presented judge progress with representative evidence based on two hundred sixty doesn't lined surveys conducted by field research one hundred fourteen litigation job activity analyses conducted by applied psychological techniques thirty time and motion observations conducted by right management i just thought well you know we have read through the record and you have  impressive expert evidence but the question really at this stage is whether in fact there are factual disputes because although your evidence shows one thing their evidence  disputes that and in the record you have the judge saying things like well the comments are of limited value speaking to the are a series or there's a problem with these because the give these comments without context etc and that seems to me to be almost like the sense you get is that the judge was very impressed with your evidence because it's very impressive statistically significant down in all the normal survey techniques judges evidence did not bridge the logical gap between the circumstances of an individual and the circumstances of the class it's true all the evidence that they could have and we did  they post are experts we post their expert for the purposes of this it's all in the question is whether or not it's responsive the question is whether or not it's materially responsive  a good strategy thank you your honor i want to focus on two which is there's no indication that any of these comments came from any member of the class none whatsoever we're well because this is a class involving full time supervisors the comments regarding the activities of fulltime supervisors which these your right comment purportedly full time supervisors were misclassified as a rule using that evidence is that all that addresses is and under scrutiny fact that full time supervisors work under company policy and procedure it doesn't address the issue that judges progress and had to wrestle with which is within the context of those policies and procedures what is it that they do what is the realm of discretion an independent judgment that is available to them and why don't they declarations whether you like them or not why don't they because all that they addressed is the existence of policy and procedure and laments by those who are subject to those policies and procedures that today exist there is a law meant and a wish for greater operating freedom but those comments try themselves don't address the central issue before the panel and before judge progress of which is within the realm in which they were permitted to operate was the freedom satisfying of the obligation i don't exercise discretion and independent judgment as to matters of significance that's the question is will come up with evidence as to things that they actually have discretion also the list of things or supervisors can do capacities he made recommendations with regard to both hiring and firing and also when they are no longer where they fall they were followed he believes that they were followed that's his testimony so we really have a lot unilaterally hire an employee or put him on the payroll and the judge jumps in to the conclusion that all of the point of his pointed evidence or no special procedures the hire fire recommendations says he has not provided evidence tending to undermine the testimony the referrals are nevertheless given special weight  establish the legal standard the legal standard isn't the absolute power to hire fire or to make recommendations that affect someone's status the question is whether or not those recommendations are given particular weight that i just said and how do we know that's representative i mean it's like every time we have a piece of evidence that you don't like it's not representative but if you do like it's representative that's why i'm having some trouble and maybe i different way of trying  trying to understand your case what they need to do to defeat summary judgment in your view they would need to provide representative evidence that this classification of full time how me what a witness would have to say or what a piece of paper would have to say my piece there would be in your view say ok we give up we go to the girls will someone let me give you two be if there were uniform procedures that constrict that don't dictate every aspect of what someone did and i think you're talking about this  case it's responsibly every aspect like when you go to the bathroom i mean there is no such thing as no sort of job in america that i'm aware of that is that is our point your honor is that there are before a jury there would have to be evidence that was predictive of the circumstances of the whole but your honor raised this issue with opposing counsel with multiple different positions in multiple different  like who's going to go up there who's going to testify and what are going to say what are the documents so one possibility you alluded to was they could have an expert who gave their correct yes your honor but you don't need to survey do have a survey although you don't like it but we don't believe it but on we don't believe under the circumstances of this case and that's the critical issue it's the circumstances of this case that any one individual can speak for the whole well wait a second so there's no way for them i mean i don't know if you know they want to leave but there's basically no way for them to when you're saying no there is your honor but i think by producing hundreds of witnesses but that's but that's not the way trial of class actions are handled but it  hundreds of witnesses if there were not going to be a serving there would have to be evidence from multiple individuals who could address the circumstances of the whole that happens can't happen but it if i were a manager or supervisor here's what i would do i can't do any of those things i complain to miss so and so about that she says read the book but that is missable it would be admissible your honor but it's not addressing the question whether or not have all these rules and they say that the rules are only the backdrop against which i may exercise discretion i'm telling you this thing true i think you know why isn't that the jury that says well you know we're going to figure this out and you i believe that the consequence of the rule that your take your lading is that in a class context one declaration irrespective of it's linked to the fortunes of the class is sufficient to defeat summary judgment and that's not the rule that's not the rule i understand that would not be true and that would be a banned rule as anybody can always come up with one declaration and here and here we have twelve well but you also have sketchy but admitted to surveys correct the two surveys neither of which are addressing the degree of freedom with which fulltime supervisors perform the because we have evidence indicating that eighty two percent of the members of the class are actually sizing choice choices when and when making their decisions on a day to day basis and what jurors you do not have to allow this testimony which you are not bound by you to give it such weight as you consider to be worth taking into consideration the experience education training the reasons for the opinion and that's all jury work and they can have experts coming up you know these could be all hired guns they could have all sorts of matters that could be argued in civility to a jury why  admonition from the united states supreme court and from the california supreme court is that these matters be addressed with representative evidence for the reason that we're not going to have twelve hundred people testify and when united parcel service plays by the rules and submitted that evidence they're not entries my questions respect the expert testimony well being a jury question the the expert testimony from mary spain opponents expert does not creat we're not at this point arguing because that's what the comes down to because once it's here that i'm left with all these aren't the greatest questions i'm going to benchmark them against those on the other hand she has a point maybe you disagree with that but i'm kind of feeling like we're in a it goes to whether or not there is a genuine issue of material fact correct and we don't believe that it creates a genuine issue of material fact because even though it's been admitted no material information regarding what full time supervise the jury just listen to all that and say wow that's a significant things they can't do if you have a significant other things you can do it follows that there definitely can't be a significant  think you can do so it's just the flip side of your argument and that's what the jury couldn't determine that i couldn't i don't believe that a reasonable juror your honor looking at the testimony of ten individuals could conclude that the rule at united parcel service was that full time supervisors are routinely misclassified that so you should go to trial you have another opportunity to argue  summary judgment set aside and now you're going to try this case how are you going to show your material issues of fact from a pragmatic point of view in a class action of this size just give me a nutshell a practical matter it comes down to working out with opposing counsel went through motions in limine and with the judge about how many witnesses will be called and what we did here was not just submit you know twelve declarations from a bunch of buddies that all work in the same hub we submitted declarations from people that that worked in various locations in various positions and were representative of the of the different jobs that were at issue you're talking about declarations as opposed to are not supported to leave from potential class members they say on their face and they were produced because they are from the supervisors and going through those comments i think it's clear that there is the general