mean something it's a bar that prevents means something but it is i read the jury instructions it was unsure to me what it meant there was very little in that instruction right well that the instruction says that the doctrine of stop all applies to sworn statements made to administrative agencies and pursuant to the i r s regulations which were at play here tax returns are sworn statements made under the penalty of perjury and it goes on further to say in determining whether plaintiffs leave sin and siegel are stopped from making claims for wages and over time you may consider whether plaintiffs leave sentence equal swore to the i r s that they were independent contractors and not employees so the jury was asked to find if they made this oath and if so there was a stumble that's the elements of a stoppel are making a representation to an agency that's all you need for a stop or stop all you need to what you're talking about when you have it with respect to judicial stoppel you have to have a sworn statement and i think that's clear here we had that in the record where the tax returns that indicated that the plaintiffs had submitted tax returns for their corporations they received ten ninety nine sworn statement you have so you have sworn statements what else you know and then you need to have an adoption by administrative agency and in this case you had the i r s that adopted  in fact there was evidence that on occasions even though the plaintiffs had earned over one hundred thousand dollars that the ag add they actually received a tax refund from the i r s so they paid  a plaintiff had submitted an application for disability and based on that application there was no proceeding there was no trial anything like that based on that application and sworn statement the that was proceeding whatsoever that it was just an application and i would say it's analogous with respect to an application or a tax return or you making a sworn statement to a government agency the i r s is a government agency the so security administration is a is an agency as well and so with respect to those to that with it so i think it's analogous with respect to the fact of the fact that in say flight and also in mitchell this court has consistently held that when you make a sworn statement to an agency to an administrative branch and that's been adopted than that is going to constitute a stockpile and the jury found you know if a record suggested that an employer was required it's people working at its place of business to sign an agreement calling themselves an independent contractor and people went ahead and file their tax returns on that basis nonetheless the economic realities are to the contrary are more in line with stablished case law about who zing one self as an independent contractor in line with what your employer required write well and judge weinstein in in lower court addressed that issue and he he applied what we considered to  be the independent contractor employee test where it's one factor in terms of the tax returns are one factor to determining whether or not somebody is an employee versus an independent contractor but that's not the question that was posed to the jury the question that was posed to the jury is even if you think that they were employees should they be so as stopped because they continued year after year of holding themselves out to the i with sworn statements saying i am not an employee of aqua life i am an employee of my own company know what that you know with a tax return that's the verdict form as a handwritten note  a factual issue it was something that was posed to the jury there was no objection of that by the plaintiffs and we believe if that was an issue that that issue was waived by the plaintiffs so as it was squarely presented by the lower court to the jury to make that determination what we believe the error was was that when you have a stop at all and there's clearly a finding of stoppel by the jury the application of that prevents you're relying on the language that judge sullivan just pointed to the handwritten note on page thirty four of the jury yes is that yes yes that's that's their finding of a stoppel and in this case the  contractors the jury rejected that they were independent contractors right they determined that they were employees checked no for independent yes right well what they did with the jury did grapple with was whether when they found a stamp and that was a note that the jury had provided whether or not they are precluded from awarding wage claims to the plaintiffs and judge weinstein said that they were allowed to do that we believe was in  respect to the breach of contract claims we believe that the court properly vacated the jury award there in this case as employees there is a  there were payments that were made to these individuals they continued week after week to receive those payments the act we asked even though there may have been complaints years and years and years of acquiesce whether the terms had changed or was just being delayed isn't that all in would not support then i know that once the evidence was was clear that with respect to the thirty five percent that they were told that they were that auctions were being made and they protested but they continued to work and the same thing with the ten percent as well as the five percent residual which we believe is subject to the statute of frauds which judge weinstein also found as well because it worked thinking of the same kind of ambiguity in the record that judge sullivan is pointing to and my own sense from the law that the burden really falsely employer to keep accurate records of who he or she is paying and for exactly what and the jury found to the contrary here in its warrant that they had not been paid fully and you called it a grave mathematical error in what they awarded but i don't see th record basis for holding that that they weren't paid for all the hours that work well with respect to the calculations what the what the judge had instructed the jury to do is if they determine that there was overtime do that the he shouldn't award them the jury should award half time because they had been paid for the hours that they worked but not the additional have time for hours over forty and when you slice it or dice it any which way with respect to the jury's calculations it doesn't make any sense it never comes out to that half time calculus which is what they were instructed to do ok so here i have had to just place or a line of questions counsel could you just reprise for me at least please the the argument with respect to the absence and the judgment in the motion for judgment as a matter of law of any challenge to the ten percent commission with respect to the ten percent your honor if you could just clarify that for me a little bit was an argument made and i will i will try to put it better i was an argument made in the motion for judgment as a matter of law that that challenge to the jury's award of ten percent commission you know the second one i believe it was and this is just based on my memory i will say also that the jury verdict did not  out between the thirty five percent the five percent and the ten percent although it was requested in order to make things a little bit more clear in terms of any pipe of appeal but there isn't any type of segregation by the jurors in terms of thirty five percent ten percent five percent and so it is it is quite muddied i would say but i believe that we did a search and address all the different components of the commission claims  on controversial where on lester's they prove that their verdict was of sheer surmising conjecture without any actual evidence to support it this is not the case in this matter simply put because  jury sat for three weeks listened diligently to multiple witnesses deliberated for four days using calculators to arrive at their calculations they evaluated the witnesses the did appear and they valued the witnesses that did not appear or for example defense counsel produced witnesses that appeared and then were directed by judge weinstein to come back later to produce evidence that they were reporting to testify about and then fail to return the credibility was properly evaluated by the jury the credibility of witnesses and the calculation of damages was properly evaluated by the jury as well and absent exceptional circumstances such determinations should not be overturned turning to the point briefly of a stoppel i notice the court was interested in this particular issue and for the concept of judicial stoppel we need not only a statement a sworn statement but we need a prior proceeding where the statement being made in a present proceeding is contrary to the prior statement that simply put is not an issue here there was no prior sworn statement contradictory to the statements that were made in this case that would be applicable secondly equitable it would require a statement written statement to the employer that induced such mental response again defendant so very short of that burden there was no statements only items that were produced or the ones that the defendants didn't shred and didn't show any kind of written statement that in any way induced reliance by defendant basically was a part of the instruction that i don't checks that it was proven it was an affirmative defense it's listed as an affirmative defense the jury checked the box and there's nothing in the verdict form the says if you check one of the form of defenses don't do damages so they went ahead and did damages anyway but instruction sets that they may consider the tax return issue such as the stop all parties topple in consideration in addition to the other items under the economic reality i think would the most important issue is whether the est applicable against the plaintiff's arm to benefit the defendant some here the situation is simply not as such there was no statements made to the defendant in any way introduced inducing reliance as far as equitable stop was concerned and there was no prior proceeding even if we were to consider the tax returns sworn statements given to the i r s then there is no jury award saying that the plaintiffs had assented to the modified terms of their at will contract by continuing to work on this basis over time i wonder if you could explain more why you think the district court was wrong and file a finding that there was an ass sent by both of them in continuing to work under those terms and actually have the same question with regard to the commissions paid to put stuff in leaps on  that basis versus a groat gross basis all of these folks continued to work under very ambiguous circumstances over extended periods of time and the judge was concerned about  he pointed out the portion where the thirty five percent was due to the corporate plaintiffs and there were two duction if you take a look at the verdict the it's clear the jury did not award any of the deductions that were being sought as far as the corporate plaintiff for commissions the only award that was given was for the residual five percent commissions based on the maintenance contracts and that's what the judge said was incorrect because the statute fraud right spang that was forward or waived or modified simply put for ratification you need an individual needs full knowledge of all material facts there was never any even a claim by defendants that they paid in full for these commissions there were much less any evidence produced other than admitting on the record that they shredded documents not related to any way figure out how commissions were calculated and based on what the plaintiffs but but again the plaintiffs both continued to work having never had a true up and having and some general idea that maybe this was partial but there was no written contract on which to base that  assumption so why was it wrong for the district court to say listen you know you lived with this for a long time and we're going to the strength of the jury's finding it was improper in the sense that like i said there was no full knowledge of material facts by ms what ifs and what facts were they not fact they were not aware of exactly how much they were owed because they were denied access to the information that information was an exclusive control in possession of the defendants and they were despite repeated requests deny such access so while they felt that they were due additional funds they had no way to delineate exactly how much and based on which dates and performance of which they also of services true with respect to deductions as well they were not aware of what was being deducted are you referring to the auctions from the thirty five percent commissions to the corporate plaintiffs yes that was also very difficult to ascertain they were not aware one hundred percent of what was owed and there was as far as the thirty five percent is concerned there was a dispute between the corporate plaintiffs and the defendants because the corporate plaintiffs claim that they were due thirty five percent from the gross whereas the defendants were claiming no from that and that was the issue there but again corporate point was never had to obtain full records of what all their sales and everything w now to point out why they would continue working why the lower court made the mistake first two thousand and eleven in this capacity she was on had a heart attack and during his recovery she was the only wage earner so for her to abandon the only job that she has when he's recovering from a heart untenable and basically the fans took advantage of it and said well you can work for what we're paying you or you can go find a job somewhere else the same happened repeatedly with mr siegel thankfully her husband did not have a heart attack but what happened was he was also working through vat cat in his capacity and whenever i'm a c e o would raise the issue of i believe you owe me more money i will leave you not paying me in full all of a sudden any service calls that would yes your honor it was broken down specifically which commissions war being sought the five percent residual the deductions from the thirty five percent and  the me the ten percent from the sleaze i'm a siegel and i believe it's extremely important to point out there was never one check and i used over and over again with hundreds of checks that ever said paid in full for any whether they purported to be for a particular month or a particular service every single check said partial or advance including the check issued to miss siegel after she no longer work continue failure to pay until after that final check when no for the checks were forthcoming can i ask one other question in the district court's opinion on pages five and six he says that with regard to ms leave soon the jury awarded her twenty five thousand six hundred eighty dollars for hourly compensation and then he says that under the under the first new york labor law they awarded her twenty five thousand six hundred eighty dollars for overtime pay and the same parallelism he recites in a different dollar amount for  forty eight thousand three hundred twenty dollars for hourly compensation and then forty eight thousand three hundred twenty dollars for overtime pay are those meant to cover the same hours or those separate sums for separate considerations i and maybe it comes out in the wash with the final damages chart but i wondered whether you understood the jury to be awarding this these unusual kind of very precise separately for different compensation elements do you see what i'm referring to yes ma'am the jury actually in the jury in the verdict sheet itself specifically delineated that for a period of time for commissions to do was august first two thousand and eleven through july twenty third two thousand and twelve the commission's due were in the amount of eighty seven thousand nine hundred eighty nine thousand and i'm not talking about the commissions i'm just talking about the hourly that you had a mixed result in light of the fact that he reversed the commission's verdict but why do you get attorneys fees contract claims at all and shouldn't the attorney's fees only be for time spent on the labor law claims unfairly rescinded that claims your honor in this particular case for three years that was the specific question my clients were claiming that they were do commissions and standard for the attorneys who determination that there was no way for the case to proceed on me on for example in a new york labor law claims of only two plaintiffs without involving entire issue that was underlying it if it wasn't for the way defendants chose to pay the plaintiffs claiming that they were paying hourly wages also together with commission but only to the corporate sullivan's question the answer would be no there would be no attorney's fees with respect to a breach of contract claim you know there's a statutory mechanism for f l us say in new york labor law claims i want to ask you another new york fairly standard claim which was your argument that the claims of leaves and in seattle should have been dismissed because they didn't file written consent to suit forms i have been doing this this long only a couple of months but that's to have struck me as about the most frivolous argument i've seen so far what on earth is your basis for saying that they had to file a consent to sue form in a case that's not brought as a class or collective action  statute says that and there's case law that we say we submitted that supports that position that the named plaintiffs also need to submit and one court said as odd as it may sound that's what the interpretation was so that you know that's their interpretation so with respect to just a few touch points one with respect to the breach of contract claim there's absolutely no evidence in the record with respect to the individual plaintiffs having a contract with the defendants in this case all the payments were made to directly to the corporate plaintiffs and so we believe that in addition to what the lower court decided in terms of that there was an assent to additional terms there's absolutely zero evidence that the individual plaintiffs that's siegel leaves and whose daughter had any type of individual contract they never got paid there 's no evidence whatsoever of that with and with along those same lines you know it's the these cases in terms of the at will contract have come up before and courts have said that look even if you say i'm going to pay you twenty dollars an hour and you end up paying the person fifteen dollars an hour the employee if they continue to work has assented to that no new terms and that's really no different here  even if the point where the plaintiffs to know what the terms were in fact where there were elements of commission elements of hourly basis where there was no accounting given and where the amounts seem somewhat random to them where the and where the employer kept putting them off apparently in terms of any accounting or reconciliation your honor with respect to that there were monthly commission reports that were provided to the plaintiffs each month they went through them  so there is evidence of that there was indications on the on the pace paychecks that were given that indicated whether or not it was commissions versus services that were rendered but the  it's only after the there are employment stopped or when their services stop that they come and say look we had a problem i'm owed all this additional money ten percent thirty five percent whatever it is five percent etc they could have said whatever they wanted to but the courts say look you need to timely repudiate on something and so effectively what the terms were was that look we're going to pay you and it may be whatever we decide to pay you in terms of commissions but that may be that may be ultimately what the contract was  say within a few months your honor you know if you're not getting paid the way you think you're supposed to get paid that would be timely repudiation not yours and yours your honor so i'd also just say one of the no with respect to the attorney's fees  that there was a demand in the complaint for twenty five percent of the recovery we believe that if there were any attorneys he's although we believe that those claims should be dismissed but if they were the man who was twenty five percent  and that's what they should be entitled to and with respect to your honor's point about some of these claims breach of contract or claims that it appears that they all all determined by the jurors for his corporation imperials seventy seven thousand five hundred so i think it's just it was the jury wasn't exactly sure how that had a place that plays those amounts thank you i think we