ok good morning before we start the clock running i just have a couple questions because i have a lot of lawyer sitting in here so maybe i'll ask since appellant cept the podium first do you intend to use are you going to be the only your proposed to take five minutes on the issues of jurisdiction intervention and mr sanford will take ten minutes i believe that he intends to reserve part of the time for off and you can begin please the court this court has jurisdiction over plaintiff morals appeal under binding circuit law the leading case is no rules versus charter communications which is record on the intervention appeal in accordance with the ruse the release in the settlement agreement is limited to the plaintiff's individual claims further the agreement preserves plaintiff morris financial stake in the appeal on the certification by providing that he will be eligible for a service award if the case is resolved on a class basis therefore he has a concrete economic incentive to obtain reversal of the decertification on we think that the ninth circuit is correct in those rulings but there might be a circuit split intervention in into the existing appeal will safeguard against the possibility of an intervening change in law by preserving the party's intent in freeman vs handle at seven forty sec seven forty seven f second twelve ninety nine this court adopted the seven circuits conclusion in american made meat cutters that a district court can issue yes we would say that that the intervention streams alliance the litigation advances judicial economy secondarily it ensures that there is that that there is a plaintiff henri men but the court need only and overturn recent ninth circuit case law including jimenez torres and labor and this court would create a new bright line rule that would require plaintiffs to establish a class certification that one hundred percent of class members suffered injury the court below found and i quote substantial albion partially rebutted evidence demonstrating that cosco had a de facto policy of detaining employees in warehouses during closing procedures without pay the court also held that plaintiffs had identified common questions so the commonality isn't even it when the decertification the cour said they're still common questions that's correct you know her dominance that's correct but let me let me kind of take you through a couple of things that i want to sort of take off because i want your answer so what's your best case for your  burden shifting frame are used in international brotherhood of teamsters versus u s applies outside of title seven cases well your honor him as and then i circuit would be a case directly on point the but you don't really have anything that specifically says that burden shifting applies to wage in our cases right you're asking us to extend well that that's right the burden shifting that's right but the burden shifting question really isn't the the central issue in this case there are many different ways that a court can fashion relief in a stage two proceeding and the stage two proceeding need not involve burden shifting yes from let me just just to take a at the evidence that it was implemented that the policy itself didn't say employees have to stay in here in violation of overtime laws the managers are all implementing these in different ways at  stores and some stores there is no requirement that employees pay and work and accrue overtime without getting paid and so that was its concern as i understood about this predominance issue was there something wrong with that yes sure here's what the record clearly shows cosco had clearly written policies and had a lockdown policy perfectly reasonable as it is it's a loss prevention policy requiring all employees to be locked in to cosco warehouses at the end of the late shift then require them to be there in excess of forty hours work and not get paid for it i don't there is nothing in those policies that required overtime and well it required that employee the compensation and time card systems your honor required employees to actually clock out at the end of their shift and i didn't really understand that because the way the language looks and they have to clock out when they finish working but under california law that would be a question whether being subject to the employer is control exactly right tory fashion so so read those policies as saying during that period they were working for purposes of california law so i don't see anything actually requiring employees to be controlled to be have to spend more time than their forty hours a week and not get overtime well you're honest with your district court found to i believe yeah but your honor it's a legitimate open question for trier of fact to determine whether or not that actually is then costs go introduces all this evidence saying that the policies were implemented in different ways at different stores i mean it seems more like the wal mart dukes case where there was a policy a general policy saying we don't have a policy on employment hiring exercise your discretion and the courts say it's implemented different ways a different story so there's no common question there's no predominance your honor if i could just be really clear about what the policies dictate the policies mandate without exception that the lockdown policies are applied by managers in every warehouse throughout the country because go says these are evidence in some cases it wasn't it was implemented in a way that didn't  cause employees to but cosco was relying on a few declarations and some testimony that shows that some managers violated the policy it wasn't that managers had discretion to enforce the policy that's the wal mart case this is not a discretionary thing that you meld together but none of them say exactly what you're saying the policies mandate that the doors be locked and individuals stay in the premises while they're swiped out that's what the managers a violation of california labor laws that requires the employees to crew overtime for which they're not paid and that was the evidence that this record looked at said no it's different stories do it in a different there is like there is a teamsters where they have a discriminatory policy so i can understand that if casa go had a policy i think in jimenez there was a policy one of those cases it was more well there was a policy visit you have to you know you're encouraged to work overtime this is our certified by the humanise court saying that that question can go to a jury as to whether or not that unofficial policy was routinely enforced as a matter of practice and so the evidence of cosco was there at the policy of cosco the policies at issue here all lead to that inevitable conclusion if you have a lockdown policy that mandates people stay on the premises if you have a policy that mandates that people swipe out and there are waiting off the clock while managers take jewelry out of the jewelry bins and take cash out of the cash register and do a number of other for administrative tasks and then the inevitable result of that is that people will not be paid in fact i understand as well as a litigator argument that i guess i'm i'm just trying to understand why the district court was wrong in saying there's evident as implemented different places at different stores so i don't see the common question about whether so the common question would be is what costco did or does that individual stores with respect to these policies deprive employees of overtime pay did yes did costco have these policies in question i do if the  the implementation is different from store to store which is what they just record apparently credited the costco evidence then your honor there at the district court still found the common question it said predominance was the the issue that's correct and but you were arguing that you argue that the district court said everyone's got to have the exact same damages which i don't agree with you that that's what the disappearance said i don't agree with that but but on the tyson issue the district court said you can't use an expert to for liability and tyson now seems to say that you can under certain circumstances ok so the district court in my view may have made an error that but it was prior to tyson so the district court doesn't know that but is just tyson really help you doesn't need just does it need to be remanded for the district court to apply tyson in the first instance that is that is exactly what i was going to propose in my ending but i'll have i'm happy to pose that right now to this court in light of intervening case law including tyson's which is directly on point in this case including jimenez which is directly on point this case and we submitted to the court the to matter which is also directly on point those three cases taken together clearly would suggest reversal is not happy but you still have wal mart talking about this type of evidence and tyson you know tyson really hedges to attest well sometimes yes sometimes no well let me ask you specifically about tyson tyson you can use this expert evidence as a permissible means of establishing hours worked in a class action but you have to show that each class member could have to deprive them of overtime could point to examples of the store where the policies were were implemented different ways so i didn't see how tyson actually helped you and your honor i think there are numerous cases that are instructive on just that point class cases are about what is routine when the teams looking at tyson so you'll have to tell me what evidence could an individual class member an individual employee at a store where the policy was implemented lawfully could use in an over time case against costco your honor plaintiffs would introduce evidence that involved the policies first and foremost and the jury would be asked to determine whether or not those policies applied routinely across all cost the warehouses the supreme court in teamsters and wal mart policies or apply retain lee but the question was were they implemented in a lawful way i mean that's the difference between teamsters where there was a discriminatory policy as opposed to here the policy is not unlawful but the question isn't whether or not the policy was always applied in every instance every day the question is whether or not there was a standard operating procedure to follow the policy and we haven't as this entered operating procedure for how it was implemented vary from store to store i mean that was there evidence well there is some evidence there is there are a few declarations and some testimony that suggest that cosco managers viewed the policy as discretionary but in viewing it as discretionary they violated the policy so what cosco would have this court believe is that violations of the policy it made exceptions and violations of a policy should govern the legal determination here and the question for a jury wouldn't be whether there are exceptions the question would be whether the policies were uniformly enforced as a general a wal mart problem here in the sense that there were people in the wal mart group that they were saying they didn't get promoted and never even put in for a promotion or they weren't even in so you've got people in your group that have never been held over well in the wal mart case the question for the court was was was discretionary authority given to managers enough of a glue to resolve the case on a class wide basis the court held no to that questions well your honor with all due respect i would i would disagree with the characterization of it being neutral i think if you take the lockdown policy in combination with the compensation policy in combination with the swipe out policy morning morning runners david could do for cosco the answer the question that both judge callahan judge could ask which one has to intervention is yes if if this court decides that morrow has standing the the motion to intervene is completely moot the court needs been no time on that because the only purpose of the motion intervene was to provide backup appellate standing and if you've got an appellant with standing there's no need to consider the intervention question says look when we read these these policies together they necessarily require employees to work unpaid overtime and although there may be individual cases where managers violate the policy those are just exceptions but the general policy company wide requires unlawful overtime under california law or at least there is a common question as to why isn't that correct well for one reason that assertion is directly contrary to judge creoles direct finding he specifically found that the alleged policy does not necessarily result still set there was a commonality he said it was coming out and so what was the common question or the common question said because judge could it was referring to an contention by my friend here that these policies necessarily and always created unpaid overtime and in fact judge judge judge curry identified at pages twelve to fourteen years of his opinion he had benefited substantial evidence to support his conclusion his core finding that individualized issues predominate he found it different ways in which a teamsters case because member in teamsters the finding was that it was a standard operating procedure by the company to discriminate against people on the basis of a basis protected by title seven so that's the standard operating procedure so there wasn't that so if you find the standard operating procedure you found viability already now the question is who is harmed by it then you go to individuals here and we're not we're not at that stage here and out and if you look at the him in his case i would suggest contrary to my friend that can't teamster's is not cited in support for him and as i can't find any ways in our case that uses the teamsters and the duran case in the california supreme court case that we discussed in our brief expressly rejects teamsters that carter didn't know about tyson because it hadn't come out yet and he basically said that it exploded an expert on liability issues wright said you can't have that you are correct judge  has given us a new a nuance on that yes should that just should we re mandate back to the district court to apply tyson in the first instance to c f because their expert didn't know about tyson either right there was a factor study that was critical to proving liability in our case there was a factor study done by dr fernandez who tried to estimate how long till pull kill pose and joe repose west of there experts does is it just takes the just and reasonable inference doctrine that once applied only damages and now applies it to liability so if they were all all the employees were subject to the donning and offing policy question that the expert addressed was how many minutes is it exactly so here the argument as i understand it is all lawyers are subject to this unlawful required overtime lock down required thing at the end of the shift in our quest by our quest by the by contrast is grossly overbroad our class includes anyone who clocked out a after closing time in anyone on a weekday who clocked up between eight thirty and who left by about eleven eleven thirty at night the topo itself wes maybe three to thirty minutes depending on various circumstances that occurs generally early in the evening the plaintiff's class addresses the entire class of people who left any time during the evening many of these people by definition would never ever be subject to a top all original report do away because they were always on the clock during the topo and the jury pool here the point you made earlier judge  tyson an individual a single employee could have relied upon the study that was done to determine how long his or her individual case the the the da da thing took and our case there is no possible way will that i think that subclasses with theoretically be a possibility but that's where we get into the abuse of discretion standard there are a lot of things judge korea might conceivably have done and we can all sit around and second guess how a trial judge should have done things but the abuse of discretion is whether he had substantial evidence to make his findings that led him to conclude as a reasonable person might that that this that the individual issues predominated the howard versus c v s case that we recently cited is an example of this court saying sure we may have come to a different conclusion we may have found that some pharmacy data was reliable while the district judge found viable but it was an abuse of discretion for the judge to make that call and there's an allegation here that if a manager does the right thing and does not deprive an employee of any pay that he or she is somehow violating the policy that's just totally untrue that's that's not supported by anything that judge courier found in the record and excerpts record one o four and one of five for example there is a management memo that catalogs best practices for costco managers to apply to to implement all of these policies security policy the pay policy and the policy which hasn't been mentioned yet today the policy by the other side the policy that cosco forbids off the clock work and pays for pays for  all time under the control of the employer and george curry also found that cost could took special efforts to make sure people were paid if people complain about it not being paid they could go to their payroll corps they could go to their manager cosco would make good on that this isn't a case like the apple case at the other side sides where by policy apple said we're not going to pay for bag checks that was ample policy in this case cost goes policies are all lawful and they're all consistent with each other they can be applied in such a way as to just leave someone on the clock i'm sorry we have someone off the clock without being paid but that's the exception and have to rule that's not the intent of the policies bright line rule of one hundred percent injury he certainly mentioned as a fact that not every class member is going to be injured as a result of these policies or that simply a factor that goes into the overall calculus in his ultimate determination that they were not predominating common issues so if there was a store this gets a little ticked at callahan's last question if there was a store where the management implemented these policies in a way so th side had identified a policy where costco manager did this did implement the policy in an unlawful way i think that the and if you met numerosity and other elements of a class action sure in theory that class could have been certified as to that warehouse just as in the in the wal mart case one of the suggestions was to certify it in a warehouse by warehouse for for wal mart but that's not the course that the plaintiffs here took they took an extreme position of trying to on the size of the class to deny sort of occasion well that was certainly one factor among many i mean certainly if you have five hundred employees versus thirty thousand if you're a practical trial judge trying to determine whether i'm going to do many trials that's something you consider in the apple case they talked about judge also had twelve thousand employees and he very ambitious he said ok we're just going to have an old fashion claims process but and that's one good for judge also  suggesting that was an abuse of discretion but he also could have said also exercising his discretion saying that's just too many many trials and also in the apple case it's worth pointing out that judge also up to certify their class was very creative he need to find the class as anyone who for reasons of personal convenience brought a bag to apple so he recast the issue so as to certify it and then and a decision that came down before the appellant's reply brief but is not reported in that report brief the judge also gave summary judgment to the to apple the employer in that case on the basis that since the employees had the choice of bringing a bag or not then under the overton versus disney case under california law there was there was no being subject to the control of the employer so even in that extreme case that they're  suggest the judge also up certify their quest knowing he was going to have to conduct twelve thousand many trials honors the court to certify the class in this case because it held that there is no class wide method of determining whether how often and for how long class members actually experience off the clock work as a result of the policies we wouldn't be in the situation if cosco had kept records which they're statutorily obligated to do by not keeping records cosco now says well this is too complicated in the judge agrees there are too many issues about what the appropriate proof is at the class stage the district court got it wrong there are common questions that drive the  the issues in this in this litigation at the liability stage the issues that judge curial identified as being appropriate in this analysis is really appropriate for a second phase and judge you asked earlier about tyson's i think tyson's is directly on point here tyson is like costco fail to keep records that would have shown whether how often and how long each individual employee worked off the clock tyson's like cosco argued that certification was improper because there were too many individual eyes issues the supreme court upheld certification allowing common and representative evidence especially where defendant fails to meet its statutory obligations to keep the records citing mt clemens that's the case we have here and plaintiff shouldn't be prevented from putting on a case at trial because cosco failed to keep records