right our final case is this morning is harper versus c r england number seventeen dash for zero zero eight counsel you may proceed because we can't even say on the record that that exists that the class is receiving any benefit from the settlement whatsoever and by that i'm referring to two which discussed our papers the harbor provision that was under this is a case under california law we're california of course had this one time opportunity to basically pay up a certain type of back wages avoid penalties interest other other things associated with those back wages that the premise of the whole process of the settlement here and one of the reasons that it seems to been you know rushed with a great deal haste to get it through by that december fifteenth deadline is because the parties had agreed that the safe harbor payments that were scheduled to be made it has been represented was represented below that these were scheduled and set to be made to the class  these were going to be visually folded into the consideration for the settlement which would include a great deal more than the minimum wage and rest period issues that would be covered by the safe harbor payments does it matter that that didn't happen that the safe harbor payments did not happen well it does in the sense that that's money that the class would have received but for the settlement  therefore it's impossible to say whether they would have been better off if the court had you know simply rejected the settlement and in allowed the safe harbor payments to go forward could you maybe elaborate a receives the payment as a safe harbor payment or receive it as a settlement payment money is fungible and they're going to get it anyway and so what what is your argument that they would've gotten more from the safe harbor payments than the class in the settlement payment over the fair enough i mean a dollars a dollar you know that it's in the pockets of the class and that's true but that's just exactly it we don't know dollars i think the players council actually made their own representation it could have been up to one point five million that and that's another problem we have with the record is that there's just it's almost a vacuum there's no way  evidence of the value of the claims die of the consideration it's all these representations that ultimately just come from the defendant itself as to whether you know whether it has much liability or what the damages exposure could have been you signed a lot of fun out of circuit cases to support your position that the settlement shouldn't been approved and looking at those cases and looking at the tenth circuit authority would you agree with me used in each circuit you know they talk about different factors each circuit inevitably breaks down into certain procedural factors to see whether there was a proper back and forth arms l same for all circuits that a settlement must be fair adequate and reasonable all the different circuits i think are just trying to reach that standard and i think to to especially the adequacy in assessing and again this would be the you know the ten circuits formula things expressed in the jones nuclear engineering cases i've got the name right i think there are three four factors in that case three of them are the procedural type i'm referring to but the number three factor is i think the crucial factor and i think is always a crucial factor in any settlement approval which is that it is the immediate benefit of the settlement worth the trade off against the potential you know a bird in the hand worth you know the potential for whatever is out in the bush and and any you know we do talk about the need and i do believe at least implicitly there's a need to to divine what the potential you know settlement discount is how are the claims being discounted but even if they're not if it's not being expressed in sort of a mathematical type or minimum standard of procedural regularity that's what the brief says but it seems to me the second factor and the third factor are related in especially when you mention the concept of settlement discount and why wouldn't the question of whether there are serious legal and factual questions placing the ultimate outcome of the litigation something you'd have to factor  comparing the settlement against what could conceivably happen down the road and doesn't seem like you address that second factor very much in your brief so i was wondering if you could think of that i could your honor and i think that is absolutely important factor obviously the for instance the greater the defenses that are available or the weaker the claims the greater the greater the discount that would be fair but i think it does come back to that again it can be considered in a vacuum the mere existence of conflicts over facts and was going to be in every case or when a conflict and you know the parties wouldn't be having a lawsuit in the first place i think that factor must needing to be needing to require some kind of assessment of the strengths and weaknesses of the points and defenses but again that by itself can only can only and if it's doing analysis correctly that says you know that the i think that they do the math and i see that there's this many work weeks in this many individuals in the penalties they could get you know a very sizable amount of money if they prevailed on her claims but i also see all these obstacles and therefore a settlement that a mere ten percent of the maximum amount is fair adequate and reasonable and i think that was the  a good exercise of discretion but if a court can't say what they could have gotten if they prevailed then saying it'll be difficult to get an uncertain amount doesn't advance the  very much asked whether the settlement is adequate that that's the way i would see that again i think that there are factors and i think that you can relate that that's how i think i would see that factors as relating to the substance of amount of the really how much how common is it for a district courts that are considering an approval to rely on declarations and statements of plaintiffs counsel as the district court here well i think it's i think it's commonplace for you know whatever facts they can declare and it would be entirely proper especially in a case well i mean it's certainly appropriate for the plaintiffs counsel to put forth their assessment of the strength of the case in the weaknesses of the case  in an in a different scenario where a case is further along and there's been actual discovery and investigations under the a lot more that they could say and i declaration here i think that the plaintiffs counsel declaration you know i'd have to describe it as as essentially boilerplate saying we received a large quantity of documents we looked at those documents and based on that we believe that the settlers there but there was really no connecting of the dots of you know this is the big problem there's others in our brief that's the main problem with the settlement i did want to address the issue the waiver to make sure i talk about that the they are contending the parties that because the written objections  the objectors were actually filed one day after the date in the class notice that that you know should put basically constitute a waiver and put the objectors out of court and i would disagree the court has to have a final fairness hearing any class member is permitted to object at that hearing and then in the evelyn case the supreme court case i think originally came out of the answer but the string court case that said there objectors have have standing said that in essence anyone who a boil not in essence said or you know anyone who objects  issue and frankly i would argue it was not untimely because the court order if you actually look at the court's order that set the scheduling for the notice in the in the final fairness hearing  objection should be certain filed thirty days after mailing of the notice and i don't think anyone heard anyone at the time or a rule six shooter that adds automatically three days to that because it was a notice was going out by mail so i think even that would have to make it three three days and make the filing timely but also it was served timely and there's no prejudice the court heard everything at the hearing and through the briefs i think it frankly would have been of use of discretion to you know bar any consideration of the objections since the court and i think the court recognizes below it has a fiduciary duty to the class you know it's not an issue of private interest of the objectors and if an objection that non frivolous objection to the settlement is brought class certification challenging that and in responding to this could could you make cards it seems to me like that why isn't that the threshold question why would you do that before you do so well that the courts have allowed this you know a higher standard of scrutiny because the case has not been certified as a class immune adversarial setting it's basically just coming as a stipulation you know for the parties but rule twenty three and in this case would be a rule twenty three v three class because we're talking about monetary recovery rule twenty three of these three is you know there there is no exception just because of the settlement the same requirements must numerosity not a problem here but you know all those issues have to be satisfied in the settlement context just as much and in some cases more than an adversarial context and  forth for any of these name players to show that they were adequate or typical or that they had any of these requirements again it was just sort of done on the representations of again of the defendant which i think are and my understanding is the rule requires rigorous analysis of the elements to determine whether a class should be certified if i were to look for this rigorous analysis from the the name plate this works in the same truck driver position operated under the same piecemeal piece rate type of compensation structure operated of the same millbrae policies there was potentially problem in terms of the tiny right with where their claims arose and how the classes to find her at least that is what i read i understand it is that they are contesting this contract claim what he fails to which is that my clients are typical and the claims like this are common to the hostlers because they all the primary claim that they operate in this piece rate system and therefore were denied rest breaks and minimum wage compensation is the same for everybody i was a little confused about the class certification and the way it was handled and the fact that at some point there was a labor sub class there was use for each subclass that that kind of wash out and correct it just we put those in for purposes of of a contest with classification but when the defendants no longer contesting the securing class certification and given that that argument was made and i was wondering well then why if it were going to be all these problems wouldn't those problems be addressed potential for the class not to be certified in the contested format and that common for every case that settles before classification these these cases so regularly before classification because if you gain justification the defendant is in the position of this court we're supposed to review the decision of the district court and the district court doesn't tell us anything about the district court rigorous analysis it's very difficult here to figure out what and the reason being is because we're not going to reweigh these issues he i think i think the court was with was right on point with the second third factor of being related and that's i how we how we evaluate each of the claims and i gave him you know the maximum exposure that we calculated using our expert and and using the the payroll records the employment documents and that requires the court to conduct a trial with a little well there's a full blown evidentiary hearing on the one hand but there's also providing some support for and the valuation on the other and i think the district court in a good position to decide whether he needs more information or not and he asked very probing questions at the at the hearing at the at the hearing and and he was satisfied with the responses and so that's where we get the  everything and considered even the objections in detail i mean went back and forth there was i have no doubt that the judge sentenced fully aware of what the claims were about and was satisfied that it was that it could be and our position we look at it as a claim that was worth potentially a million two million five of the highest density defense looked at it as a claim that was were slightly under a million dollars and that's because the very way you can calculate what amount is due and in fact the constitutionality of that provision is actually in the court of appeal and in california it's a really unique novel issue that came up in a lot of these cases that there there's a lot of confusion over what exactly needs to be paid and if it had been paid and they didn't comply with some of the other requirements that they lose there's a fiber defense is if it's a voluntary  certified the class also in the record defendant's hearings when somebody at the declaration from gary thompson in which he identified that all three of the nameplates attended the truck driving school and at least one of the name mitchell had signed a similar contract and that contract actually ran into the period at issue here it's very important in a case like two that with respect class certification the claims do not have to be your client came up with for the safe harbor you should have confidence in that number because we look at that number very closely we look at the wages that have been earned in the end you have all we have a number i mean why doesn't anybody show that work  e calculations are very complicated in terms of how you arrive at that number it's a four percent of gross wages and there's a credit that can be given for the upper one percent that if you paid some additional nonproductive time on an hourly basis in fact th this correctly arrived that well and i think you're one of the think that that is relevant is at most the top number could have been one point five we believe with the credit the one percent reduction and calculating the number correctly it would be a million connection between the second factor and the third bag or the second factor to take counsel were were over time so if you can try to compress the rest of this i'm just going to the other there were other significant offenses in terms of the individual arbitration agreement which question any further questions i think that'll do it thank you mr hanson do we all mr randall like a little time i think we can well at that that we just go over three minutes that's let's let's let's take another minute if you if you needed which is something that especially given the nature of the different types of claims that could potentially be real conflicts between the different types of people in this class at rates that low for instance of people with contract claims who have who are primarily interested in there may be people who don't have a contract claims and also the safe harbor provisions these are being taken away from a certain group of people that would have been would have received those and that is a group that is something less than the whole class so there's probably a very good argument that there should have been there are conflicts within these groups of individuals as to what they should or should not have been getting and under the settlement they just get one on differentiated amount and that kind of that that's exactly why i would class or vacation is forced as bring those issues to the surface and decide whether subclassing is necessary whether there were conflicts  in this case don't even have standing put them in conflict with the people who did have you know real good contract claims so i think that's important counsel i think we've probably reached the end of the time