break every four hours when the california law provides that a ten minute break be given for shifts of from three to three five hours to six hours another ten minute minute break for shifts from six to ten hours and another break for shifts between ten and fourteen hours so employees working shifts of three and a half to four hours six to eight hours and ten to twelve hours in this case are called short shift mid shift and long shift did not  authorized rest break not only is there a written policy plan of submitted evidence that the policy was widely disseminated and odd isn't only corporate designees testify that the written policies are actual policy statement without the written west bank policy even though the two thousand and eight handbook contain the same compliance email with the in the lawful resprayed policy but putting that aside and accepting for the sake of paul oral argument which is there's a there's a policy that extends from two thousand and five to two thousand and twelve that is unlawful and autozone presenting a common defen saying that from two thousand and five to two thousand and eight they do have a policy that is lawful that that's what the court originally thought that there was a uniform in place but then later the court said ok well now that i've had the benefit of reviewing more evidence i think that was an error and there was at least sufficient evidence presented to cast doubt on the fact that there was a uniform policy in place during the class period at all and that was not why that rises to court the certified but that's an error because predominance isn't about uniformity it's about whether the common questions to common questions across the class predominate over correct that the court has to be looking at whether there's a dominance but the court cited it to evidence that indicated that dominance was going to be problematic and that was part of the analysis in the certification not only was the court's understanding that there was a uniform policy called into question but also there were over one hundred dollars declarations from employees that called into question the predominance analysis as well so i think to address the whole of the evidence that the court relied on in the certifying the case ok i like to split that up in terms of the the declarations that autozone presented brinker which is just directly analogous to this case the defendant presented hundreds of declarations supporting their their their argument that meal and rest breaks were taken the issue isn't whether some people have taken meal and rest breaks or here rest breaks under california law under brinker the legal question is did the employer authorize in permit a ten minute rest break and brinker i mean i can just read it says directly an employer is required to authorize and permit the amount of the amount of rest break time called under the wage order for its industry if it does not for example adopt and uniform policy adopted authorizing permitting only one rest break for waiver arises for a respirator that was required by law but never authorized for a break is not authorized an employee has no opportunity to decline to take it so here if they didn't authorize or permit the rest breaks it's true that perhaps way at the declarations set that the employees knew they were entitled to take it the the death the ration war all over the place but i think that the problem yeah i know it isn't the problem because i think the question you know under brinker a uniform written policy kuwait's a a common question for for the predominance in terms of getting back to my point about the lawful policies that lawful policies that all the autozone point presented those are common defenses across the class they don't create individualized questions they're saying that they have a common policy between a common lawful policy from two thousand and five to two thousand and eight in duke's the court said there you can have dozens of common questions that's having a lot of presenting extra common questions doesn't defeat commonality or predominance what they've what they've done by presenting a lawful policy is to is  is to add a common question that's that doesn't it doesn't create any more individualized issues because you can present this to the jury and say look we were we know we have a we were the plaintiffs allege that there was an unlawful written policy that's been implemented class wide autozone alleges that there was a lawful policy that's been implemented class wide from two thousand and five to two thousand and eight as a defense what's the answer to those for the purposes of the survey cation but as the court is well aware whether the policy is lawful or unlawful is a merits question it's not a question that is decided at the certification stage or at the dissertation stage so autozone did not compensate employees for still a store opening they did not clock in until the open door turned on the alarms and in fact autozone changed the policy on the off the clock for the store opening employees later in and eleven to add one minute of compensable time so that's an implicit concession that they they have a problem and the in denying and denying minimus defense doesn't apply in in four california wage an hour law i think this this issue should be we mandated for further consideration in light of those cases and finally claim the court made to clear errors it presumed that the claim must be alleged in some fashion and in some in some particular pleading style it does not the fact that that the nd amended complaint was pleaded so that the civil penalties war wedged under each cause of action doesn't assessed against other employees that's what this court said in the california supreme court in the skinny and williams has said this so the court made it clearer by saying that that th for business expenses we embarrassment other other claims in the in the complaint that just somehow vanished into the ether you know the you know because we didn't try to certify these claims because they're their representatives they're inherently representative but somehow the court decided that we didn't have any padded claims left because they weren't there we didn't move for serve occasion and you know that's a clear violation and voluntary dismissal of the claims to the extent that the court would allow a carve out which the parties did agree to to carve out the class certification denial an appeal  classification the parties did not carve out any other of the court's rulings parties did not carve out the rulings on summary judgment they did not carve out the denial of the motion to amend the complaint addie pagara representative claim and they did not carve out the settlement of the individual claims so the fact that plaintiffs settled those claims received consideration and voluntarily dismissed those claims we submit this court would have no jurisdiction on appeal jurisdiction and of course the fact that he dismissed his individual claims meant that he was no longer an aggrieved party and could no longer have a a paga claim and that's as to the summary judgment in those claims as to  the classification of course the question would be whether or not even the parties could carve that out we would submit that under baker versus microsoft that's a different case where the plaintiffs voluntarily dismissed their claims of so they could get jurisdiction and the court said well that's a sham dismissal you can't confer jurisdiction that way but inception cases by this court including bob it versus arguments of my counsel as to the decertification of the rest break case well actually let me start with the pago going a little backwards as to the pod to the extent of this court substory stiction on that issue the district court did not presume that it must be played in a specific way the district court correctly noted that you file the case you played it as a class which you're free to do you amended your complaint to add a representative paga claim in the st of m complaint and then for some reason in the nd amendment complaint you specifically voluntarily dismissed your representative paga case and then we litigated for re did discovery for years only asked for the certified rest break class conducted discovery on this he did not allow them to add it so the fact of the matter is that that it wasn't a matter of just how it was plaid but it was also the fact that they did not have a cause of action for paga in a representative employees were treated the same with respect to a specific policy because they were classified as exempt and with respect to try no part of the court's decision on the off the class case has to do with the diminished doctor and judge bryer never ruled that the fact that you flip on the switches or turn on the alarms is de minimus and so therefore i'm denying classification on that that was never a factor the fact of the matter was that the only evidence submitted is autozone had a checklist saying get when you get into the store in the morning turn on the light switch one i'm not aware of any authority that says telling gate an employee to flip a light switch is suddenly compensable work time nor does he even indicate would say that kind of activity which is truly seconds as opposed to her where they actually after clocking out have to go to another computer system had to do some clear end of the day paperwork after they clocked out and the evidence there was that it was four t minutes chosen or said you can't say that that's de minimus but they did not a limb in a they said that there is a place in california law for something that truly might have been a mess and i would submit that flipping a light switch would qualify if it's even qualifies as control suffering or permitting to work i would submit that asking an employee to turn on the light switch by the door as you walk into a dark store is not suffering and permitting them to work and same with the alarms here the evidence was that as employee as st of all only the manager can turn off the alarm he unlocks the door to employees show up manager walks in the alarm pads are right by the door testimony was it takes two seconds you punch in the alarms off some of the alarm code is by the register right where they clock in so all plaintiffs submitted by the way no testimony by any class member that they had to go through this process rather plaintive what they did was they obtained alarm records they obtained clocking records and they said well look sometimes the clock the alarm turns is disengaged at eight o four and the employee clocks in at eight away but what judge correctly notice was well why is that st of all the alarm records and time records were not synchronized sometimes you a clock in before the alarm was turned off because the clocks were us improvise and secondly the question would be why what did the employee do after the alarm was turned off to the employee go get some coffee did they take a smoke break where they just hanging out in the break room  why did they not clock in right away you can't answer that without individualized inquiries so just prior did not abuse of discretion in determining that there were not common asked answers to common issues of proof on the off clock on the off the clock case and that it would both be unmanageable and there were not predominance was not met with respect to the rest break counsel argues that judge dreier conflated the issues when he made a determination on the merits well st of all just wired didn't rule that any of the policies were lawful counsel at the time appellants actually conceded that the policies outside of the two thousand and eight policy was lawful but what they had represented to the district court was that autozone and this is in in their classification briefing and in fact is in their appellate briefing here the autozone had a common written policy that was unlawful on its face and that's why the case should be certified the district court accepted that it's true and certify the case and all the district court did on decertification was say well all right that turned out not to be true there's actually multiple policies here there's a policy before the tooth out a written policy before two thousand and eight there's a power point presentation in two thousand and eleven that explained that you do get breaks between three and a half and four and between six and eight there's a subsequent policy in two thousand and twelve that basically no one ever argued was facially unlawful so judge wright said ok there's a host of different policies here and also we can't look just at the face of the policy to the exclusion of other evidence the evidence was overwhelming that during the entire class period the way autism operated was on a two hour rule every hundreds i think one hundred and thirteen class member said yeah it was explained to us we have a two to two rule take your st break after two hours take your lunch after two hours you take your next break after two hours so under any circumstances it's not just that employees as your honor asked well is it just that they took happened to take their breaks or that they knew they can take their breaks the testimony was actually that they knew they can take their breaks they knew they could take their breaks because they were taught that you take a break every two hours and the other important aspect of this that was always lost a little is plain just focused on this one policy for this one period of time that articulated if you work a four hour shift one break if you work a eight hour shift to get to breaks what was ignored was the fact that shifts were scheduled for forty eight hours no one schedule as a part time or schedule for four hours as full time your schedule for eight no was scheduled for three and half hour shift no schedule for a six hour shift so the fact of the matter is selling somebody that if you're scheduled for hour shift to get one break and you are scheduled for eight hours you get to break is not on lawful that's a correct statement the law what they're focusing on is well it didn't tell anyone that you get a nd break if you work sixty eight hours that didn't matter people got a nd break if they work to sixty eight hours because they got a break every two hours so if you're on that eight hour shift even if you happen to leave after seven hours for whatever reason you took a break at the six hour mark you took a break at the two hour mark it took your lunch at the forty five hour mark you took your nd break at the six hour mark and so that destroyed the we going to try this you told me a class or to cation that there were rest break logs and that there were audit records and that you'd be able to prove this and it was just a matter of damages well it turned out when they came back to decertification that they elected not to use th not that they didn't exist but they elected not to use them there's a warehouse full of rust break logs and played this had access to that they went in they looked at them and they decided and this is a declaration filed by plane discounts on the hearing saying we looked at those and we decided that they weren't useful to us they weren't useful for our analysis so we chose not to use it instead we're going to use this expert and this expert conducted a survey with a and judge bryer exclude of the survey because it was unreliable three point four percent response rate out of i think twenty two million two hundred and thirty thousand class members they tried to reach ten thousand dollars they only spoke to three hundred and forty three dollars and of those they asked they asked the questions and they got the responses just prior said well st of all that response rate of three four percent is to love jukes held eight percent wasn't sufficient as a response rate you didn't do an adequate pretest you did a pretest on five people out of over twenty thousand dollars class members and your pretest really wasn't sufficient to determine whether the questions you were asking were understood which was bore out by the fact that when we took depositions people we asked the same exact questions that were asked in the survey people a new i california law requires there to be a written formal policy for meal and rest breaks or is it unlawful to not have a policy that was never the theory in this case the whole theory this case is that there was a written policy apply to everyone but there that is inherently a representative claim there is no individual claim so there was the notion that an individual settlement would would defeat a pad that action and wipe out the claim and leave it leave you with no standing makes no sense in light of the fact that there is no individual pag a claim to be sure the california supreme court is currently hearing can be rains which is which deals with pag penalties in the complaint we've provided the litigation notice to the elderly da we were authorized this private attorney general's under the statute we can collect civil penalties for for violations against other employees that's it that's what the action is so i don't understand this whole notion of class you know individual claims class claims it's a representative claim you know