record from from the trial court and so i hope that i can encapsulate some of them are maybe repackage them there are some issues that i think are particular that i would like to point out always beginning with subject matter jurisdiction never never waived and that time and time again in this case we see through all of the to all of the motion for classification argument at trial through jury instructions the the statements were made by the plaintiffs that the fees that were  charged for the processing and the so she did please with the visa application were quote illegal feeds that question right there as is to be presented first and foremost to the department of labor well you know i think i want to move this along on that one because i just don't agree with you and the reason i don't agree with you is that there's unquestionably federal question jurisdictional unless it is somehow been preempted or superseded by the statute related  and the statute says nothing in this subsection shall be construed a superseding or preempting in any other enforcement related authority under this chapter or any other act so i read that the other jurisdiction from clued in for a question jurisdiction is remaining very there was no decision that it was an illegal that those fees were illegal and yet there was the presentation that it was illegal and so that's that determination where those feels he's a legal or not was never made and that is something that the department of labor is set up to do investigate but it does not deprive the district court of jurisdiction because of the thank thank you your honors but that segues into another issue on appeal which is the fact that the department of labor was approached by the teachers  many of the teachers who were in this class they did investigate they investigated against the appellant's no determination of wrongdoing made they did investigate as against the school district rather than prosecute those or take those all cory decision there was a voluntary settlement and those school districts agreed to reimburse or to pay fees jump forward were at trial were at the time  having the judgment entered and there's no credit given and in fact there's a duplications once again under the argument that those fees were illegal to me that of the trial in terms of obtaining from these various class members their representation that they wouldn't follow through on any other reimbursement for these claims well actually there was  discussion about whether they would each class member would have to submit a statement under penalty of perjury an affidavit as to what other fees they are or amounts they had collected from other sources that they thought might be applicable to this judgment i don't know how that's administered i've not seen anything that is administered i've looked at the court docket sheet i don't see a single declaration submitted by any of the class members and yet they are happy and they're waiting for this appeal to be result well they are  saying that they've either not gotten anything or they've only gotten x amount and y remount amount remains to be paid as i read that order i agree with judge christensen the district judge understands the problem and he put something in the order however what i do find is that they are in this court in this judgment out there collecting and specifically they have received an order and have foreclosed house but the but the trial courts intent is housekeeping as we would call it  it's not happening and how that housekeeping there's no mechanism in place for that housekeeping to to occur there's no way to examine the veracity if there is a certification it's subjective on the member on the part of the class members whether or not they think that but they've collected elsewhere and they have the rights from the department of labor they have the rights to louisiana they have the rights of the philippines whether or not they think any of those are applicable against this judgment there's there's no check and balance on that but what is to prevent you so here's what that is what i understand that the district judge ordered we require said each class claim before they receive any recovery in the act and the action submitted an affidavit attesting that he or she had not received and would not pursue compensation as part of the other actions and then there was an amended judgment that provides  any payment received by a class member will partially satisfy the judgment in this case and orders class members to acknowledge to the cork receipt of such payment and partial satisfaction of the judgment this is record shows that it has not been done ok are out all right hasn't been done at this point in time you have a remedy you have a remedy before the district court to get that straightened out i think it may turn and address some other aspects of what is troubling i believe i would submit with the way this case proceeded those include that the second amended complaint which was the operative pleading that went to trial did not plead that little looters never are would be individually or seek to hold her individually liable there was no pleading of an alter ego theory against her for her company the evidence was not put on the jury was not instructed that way the special verdict did not ask for example whether she should be held or found individually this there were instructions provided and agency and i would have to double check alter ego alter ego that was pleaded and tried was universal placement and parse that they were the alter ego it was not the individual and the corporation and there was no motion to conform evidence to conform the pleading to the  the only thing that the jury was presented was whether pars and u p i were alter egos and so on many levels the fact that navarro was found individually is problematic there's not an alter ego theory that's been as against her that's been pleaded and tried there's not she's not found liable on the tort if you will of l she is found liable on negligent misrepresentation that when you submit should not have been classed certified she is also found liable under the c e a but that is a contract claim and the mere fact that she is an officer of the corporation does not give the law does not support that she can be found individually liable of the contract claim on the mere fact that she's an officer of the corporation so in addition you know there are some other issues with the c e o a claim but so we've got these these these pieces that wove together at the trial leading classification evidence jury instructions you know the whole process but the pieces all did not fit together and so we've got this this this continuation of the due process problem that we submit began with the the motions for classification so going back to the for example the items with the damages award at classification the plaintiff submitted that damages would have to be calculated on an individual basis they submitted that there were common questions of fact we disagree but that even so damages would have to be calculated one by one when it came time to but when the individual class members command seeking money they're going to have to prove it up individually well i mean that's that's that's normal procedure i understand it but we have this representation that the plaintiffs made to the court saying we admit that th there's not a common question of what the damages are and it's going to have to be dealt with after trial well what each one has to prove their own damages i guess we'll wait for them to say what they did or didn't match the other one o the other aspects about a couple of the other aspects about the classification is going to the negligence misrepresentation claim and  tying that into the question of whether lavar can be held properly under this case as having the judgment entered against her personally what they said was  misrepresentation with the class motion is completely different than what they said the misrepresentation was at trial and so there was not this common question of fact  that the motion was made on the grounds that she didn't tell people in advance what all the fees were that they were going to have to pay them when it comes time to oral argument on the motion the misrepresentation is that they entered into contracts but she didn't keep the terms of the contract so for example the chair the contract said that they don't pay their placement fee until later in time but she required them to pay it before they left the philippines then the misrepresentation a trial is that she did disclose to them what her profits were going to be off of the fees that they paid so so this is moving target i would submit certainly a lack of due process she doesn't know she's informed one thing as notice of what she has to defend against but it keeps on changing even so you don't have this overriding common question of fact that you've got this this you know it almost seems as if it's just a matter of convenience is the case unfolds as to how you are going then that the judge saw a spontaneous should have decertified the class with respect to the negligent misrepresentation well what we're arguing is that question not have been certified you know but that's different from the argument you're making because you're saying the evidence that was advanced or proffered with respect to the national certification was one thing but then one trial comes along the evidence is different so are you arguing that it's the difference in the evidence there's the problem or you are you doing that the evidence in the first place was insufficient for the certification i'm we're arguing multiple strands so one is the evidence was not sufficient in the first place for certification we're talking about the negligent misrepresentation we also argue the same with respect to the trafficking and the prejudice at trial with all of that evidence that came in yeah so let me ask you about this one both to negligent misrepresentation and as to the trafficking obviously the jury comes in for the defendants on the trafficking claims so in one sense this sort of occasion issue becomes moot and the only thing you've got to argue as to why it's not moo about one paragraph in your brief in which you say that because that was a trial all kinds of damaging evidence comes in and you list the categories of damaging evidence but it struck me as pretty much all that evidence would have been relevant to others other causes of action th stressed because of having children with with some kind of disability or needing some kind of special care or whether or not someone had asked a family member to help them getting the funds to the united states whether or not someone felt stressed by those or overstressed by them so that they were oh maybe felt coerced that they had to go through with the process written statement of what the fees were going to be before contracts were entered into although that evidence strikes me as at least potentially relevant with respect to the reliance under the negligence cause of action and reliance being so individual that again is one reason why there was a the certification was erroneous because what i understood to be your primary argument here is that an element of there's this trial was was i think about eight days long you know the bulk of the pleadings that over one hundred pages of it the bulk of the motion for classification all had to do with the trafficking that we go fast forward to the end when they're seeking attorneys fees and the bulk of the work was for something that they did not prevail and yet they got more than in attorney's fees for that for that prevailing on the california employment services act i would submit so so you do end up having all of these pieces that weave together that key military really or you can say you know some jump out as being more important you know scream out that there was a miscarriage of justice that that there needs to be reversal and and the case handled correctly beginning at that point in time with not i thought it was well you can runs on your i've got a question with respect to your contention that the negligence misrepresentation part of the class action was improperly sort of fide yes the recovery under that looks to be entirely subsumed in the items for recovery under the  isn't that right under the sea a for example they were given as i understand it money that they paid pars there was no pleading or proof  under negligent misrepresentation with the same checklist yes no yes no yes now well the award damages under two can only two categories for negligent misrepresentation those precise categories are also given damages under the ca so even if the negligent measure of his inclination class goes totally out the window the amount of money that was given for the c a a includes precisely a my own amount that was given under the neg misrepresentation we care because of due process we also care because if the c e a had been itself also properly focused upon their items that they've given awarded damages under the cea that they cannot recover damages on so for example under the cea they say that they didn't want to have their contracts with u p i voided and they are and the statute says you get a return for the amount of money you paid for those and the district court's judgment is really not of issue in this appeal the jury concluded after a six day trial that the appellants have violated the california employment agency in point counseling job listing services act and aborted approximately four point five million in damages for those violations now here on appeal the appellant's do not challenge the district court's judgment as to the employment act violations they do not challenge the district court's decision to allowing employment act claim to proceed on a class by basis and with the exception of their double recovery argument any challenge to the damages awarded for the employment act violations were waived by virtue of not their field raising below and maybe reading between the lines of the argument i just employment agency as any person natural or legal who for a fee procurers employment services the evidence in the record shows that in this navarro personally collected fees from class members and directed those fees into her own personal bank account she is therefore an employment agency under the act and can be held directly and personally liable for employment act violations what's the relationship between ms navarro and the u p i ms navarro is the president of the  i and u p i as sole decision maker there is also evidence in the record suggesting she participated and directed in the activities of u p i she was present in these meetings in the philippines she herself made decisions about what representations would be made to class members she delivered contracts and organize the process and so taking the record as a whole there is evidence indicating that she herself failed to comply with the employment act and violated the terms of the statute this may honor and it's not certain it's an argument that the opponents have raised on this appeal i should note that the appellant's largely focused their argument on whether this is an agency or a corporate veil piercing issue but in our view it's quite simple she is an employment agency under the act and can help be held personally liable for violations now even if we were to assume that she's not an employment agency and that this is an agency or an alter ego issue we do note that the jury instructions for quite clear on this point and injury instructions were jointly prepared by the parties and submitted to the district court the jury instructions that supplemental excerpts of record thirty nine to forty two state that in order to uphold  pelleas jointly proposed and under the invited error doctrine we believe that they have waived any challenge to that instruction now the evidence in the record is more than sufficient to show that both she herself committed violation the employment act and that she participated and directed the wrongs of u p i and indeed it shows that she organized these meetings she's the one who failed to disclose the fee schedules in accordance with the employment act she collected fees without written contracts and in violation of the act that both her and u p i failed to notify class members of their right to a refund and that mr borrow divided fees illegally with an attorney agent in violation of the statute so we think the the issue of whether she can be helped personally liable for the approximately four point five million damages that the jury awarded for the employment act violations is quite clear there was also another issue raised five talents as to the damage of this lord of the double recovery argument i'd like to focus on that a little bit and clarify that there has been no double recovery in this case to this point as to the louisiana judgment there has not been a single penny collected by class members  for that proceeding now as to the department of labor and the p o e s the philippines overseas employment agency there is no admissible evidence in this record suggesting that class members collected anything from either of those proceedings now the only question for this court is whether the district court's judgment as it stands whether there is any evidence in the record to suggest the amount of damages awarded should be reduced and in this record there is no such  if at some point in the future the appellant's do discover evidence were evidence emerges that there is a double satisfaction appellants will have ample opportunities to raise those issues with the district court and indeed under standard california procedures appellant after a judgment has been issued that may petition the district court for a partial satisfaction order and they present evidence to the district court showing that a partial satisfaction has occurred in the district court has the authority to reduce  recovery the district court in this case actually went above and beyond that ordinary procedure by establishing this affidavit procedure it allowed it required in fact every class member to execute an affidavit before collecting on the judgment starting under oath that the class member has not recovered anything duplicative with the district court's judgment in this case out one factual issue i would like to be clear on on the issue of whether the department of labor has refunded all the fees the record in to authenticated letters that the two parishes a small portion of the class members received certain amount of fees from the school districts the cattle parish and the jefferson parish there is no indication in the record what those fees were whether they were duplicative with the five categories of fees that the district court's judgment was based on and there is no indication why those fees were awarded so at this point there is no indication that the district court's judgment is duplicative with anything and again if at some point in the future palance wish to raise this issue with the district court it can they can what about the issue of the certification of the negligent misrepresentation claim well you believe judge fletcher was correct that the court may not decide this issue because the negligent misrepresentation claim was subsumed by and duplicative with the employment act violations and here appellants do not challenge the certification of an employment act claim and they do not challenge the jury's findings of employment act violations so even if that negative misrepresentation claim had never been certified we believe the result would be exactly the same now even aside from that issue if the negligent misrepresenting a written misrepresentation claim were separate we do believe that the district court could have properly certified and negligent misrepresentation claims hypothetically this court has favored class treatment for fraud claims when they proceed from a common course if there's a problem that wasn't really mentioned by counsel with respect to the negligent certification of the night was a misrepresentation claim and that is rely on the district court declined to certify the fraud claim on the ground that reliance was going to be necessary yet seemed to overlook the fact that reliance was necessary for the negligence claim so if if the negligent claim were not entirely  argument first and then i'll turn back to the negligent misrepresentation claim on the prejudice argument i think there's initial matter we don't think that the certification of a class has any bearing on what evidence may come in well yes it does in the sense that if view had certification been one i had named plaintiffs in this case would have had the right to bring the trafficking and negligent misrepresentations claims on an individual basis and so in our view the testimony from the name plaintiffs could have been offered in support of an individual claim now separate and apart from that we think any prejudice argument in this case has been waived because they failed to address this issue on a rule forty two b motion if appellant's at trial were concerned about the prejudicial effect of multiple claims being tried together the proper procedure would have been asked to ask the district court to bifurcate the trials between separate claims it's very much i don't find them very persuasi improperly certified and you need two different trials good luck with that one that's correct your honor we believe that in any scenario these claims would have been properly tried together and it's been used in a motion to sever for several trials would have been frivolous that's correct your honor now though don't argue to me that that's the that's the motion is that a broad well your honor it goes to the issue of prejudice and in many ways if it's similar to a situation where a defendant agrees to being tried with another defendant but then on appeal raises the argument that the evidence introduced on behalf of the other defendant may have prejudiced the trial we believe that in the ordinary course the district court would have denied such a motion and the common core of facts would have been properly brought as a single trial but we're aware of no authority in which when a single trial is being brought on multiple claims that that could unfairly prejudice the jury in some regard now on that let me go at it this way was prejudicial i'm not convinced about how prejudicial it was but i'd like to you tell me why you think it was not prejudicial there are two reasons your honor and first and foremost when you view the jury verdict as a whole we don't believe there's any indication of prejudice first and foremost because the jury actually found in a palace favor on the trafficking claim and moreover under the employment act the jury had the option of  so what's your number between one and three and they said no multiplier what are the criteria under the statute to have a multiplier in our view your honor and there is no law not what your view is understood your honor there is no required for the multiplier is the way the statute is written it suggests that it's a multiplier for punitive damages and so extrapolating i think that for the jury to conclude and indeed the jury was instructed on this particular point to conclude that a multiplier was permissible or or should be applied that the jury had to find additional facts in support of a punitive damages award and here there was no such determination by the jury and your honor separate apart from the jury's verdict your honor mention that much of the facts in support of the trafficking claim were the same facts that would have and alternately could have been offered in support of the claim the fact that there was a common scheme to risk represent the fees that class members were required to pay the amount of fees that class members alternately paid how that affected them these are all issues that would have been relevant to an employment act claim not only to the violations but ultimately to the damages of ward and in particular because since the employment act allows for punitive damages the district court could have properly allowed all this evidence to come in in support of not only the violations but ultimately what damages the class member suffered now there was also an issue mentioned by palin's about the liability for the fees paid to parse and i want to point out as an initial matter we believe that any challenges to quote unquote sufficiency of the evidence raised were waived by virtue of them not preserving that through a rule fifty the motion in this court two motions are required to preserve a challenge to a jury's determination of the facts it will fifty eight motion before the jury renders it verdict and a rule fifty the motion after the jury issues its verdict and here a talent's filed neither of those motions they did file a rule fifty nine motion to and then the judgment after trial but that motion not challenge sufficiency of the evidence to support the jury verdict instead it focused on the question of whether as a matter of law the judgment should be reduced because of double recovery so there was no challenge to the sufficiency of the evidence  trial and so under this court's precedent this court is barred from reviewing those facts and that goes both to the finding of liability under the employment act and to the ultimate amount of damages of the jury awarded class members but separate  d five twenty three also allows for compensatory damages above and beyond restitution so the jury properly could have concluded in this case that the appellant's conduct caused the damages which included say that parses a branch office and so looking at the evidence as a whole in the record there was substantial evidence for the jury to conclude that pars should be treated as a as an agent if you counsel tell me how do you think the jury got to the damage award it's a good question your honor and if you look at the jury's verdict at two fifty five in two fifty seven they identified five categories of fees from which the award was premised own records which we've given supplemental excerpts of record to seventy five show that when you add up those five categories of fees you actually get to a number of five point zero five million as opposed to four jury awarded damages for approximately ten thousand per class member for the placement fees five ninety five for the credentialing fees three hundred twenty for the visa fees and a thousand each for th the interesting thing though is when you look at the appellant's own business records when you actually add up those five categories of fees you go to a number higher than what the jury assumed through its averaging i think appellants may raise the issue of improper averaging in the honor as you noted that's standard procedure in a class action like this and indeed it's actually and he's your situation here because we have on a class member by class member basis the amount of fees they pay those records are excerpt of that two hundred thirty two of the supplemental excerpts of records so when each and every class number comes to collect on the judgment he or she will have it exactly now that they're that they will be seeking for the five categories of fees that the jury ultimately awarded i'm not sure this is relevant to the legal questions in front of us what happens if after all of the class members have come forward and taking into account whatever affidavits they and  filing or don't file and we pay out every one of the class members that which they are entitled to individually we've got a million dollars left what happens to that money in that scenario honor i'm not sure that's been worked out either by the district court of between the parties i do you know in this case given that the five categories of fees actually exceeds the four point four seven million awarded by the jury we believe if the thirty three hundred forty seven class members come forward that the fees were actually exceed the amount that the jury awarded and so each class member will have to have a corresponding percentage reduction but that was not my question my question was what happens if there's money left over  in and that's now your honor i'm not exactly sure i think that the class ministre it or would report on the ultimate number that's remaining from the from after the class members collect and i think in that scenario the district  would have an opportunity to decide whether the funds would go back to the defendants or whether the funds would go to for example a cypre nonprofit or something of that nature ok i realize you're pretty much out of time but i am curious about the forty percent reduction that the court made to the attorney fees request and i'm just wondering what sort of support you can give us for what the court did there in terms of your fees well your honor i think the district court started from the principle that when common theories are being brought even if there's different claims that attorneys fees should not be separated on a claim by claim basis but instead should be presumed under california law  that the work should was aggregated and directed at a common set of facts and so what the district court did was start with that principle but then decided look we will first reduce the fees award by anything expressly and explicitly done for the t v p a claim we will then take the time entries that presumably go to multiple claims and under the court's discretion it believe that a an additional twenty percent above the twenty percent that pelleas council had offered was appropriate in this case to reflect the fact that the trial may have been shorter for example if you were deaf a quick deposition questions may have been asked but ultimately what the district court started with the foundation that there were a common set of facts that went across all these claims and so it presumed that the attorney's fees in the work done was necessary for the ultimate judgment for those reasons your honor we believe that this court should affirm the district  trial was had you know we've got these pretrial conference is that we can read the transcripts of them and then we've got private time or you know off out of the jury some other transcript hearings and then we've got post trial transcript hearings and what i do notice going on throughout all of this is that these questions regarding the effect of evidence or the effect of the judgment in louisiana or  whether or not defendants can even be held liable for the actions of pars all of the there was a decision made it kind of seemed to be a kind of amorphous kind of process that was sought that was creative you know out on an ad hoc basis that this was all going to be dealt with in post trial briefing and you know they have it but i mean you know that if you're going to challenge the sufficiency of the evidence you've got to make a motion under rule fifty a mean i don't even leave the bench when the plaintiff rests on a case once we get the jury out because i know there's going to be a rule fifty b motion made every time and and i i don't know how you i don't think there can particularly troubling though is that post trial there is the decision made to order that if there's going to be the desire on the plaintiffs part the class part to hold part to hold defendants liable for the actions of non issue there's not going to be that effort by the plainest class to hold the in the sayable for the actions of parts i do want to address briefly you're over time so i'd better be brief thank you class trial no opportunity to bifurcate because their individual claims were not tried and footnote six in our brief opening preview has many many examples and citations to the record of a lot of evidence that came in under the trafficking claim that would not have come in the big issue with california employment agency our claim is is the damages and we believe that that's not addressed just by