so we will move along at this point to case number three on our docket which is richard anderson against weinert enterprises incorporated number tw let me piggyback a little bit on tom judge what question could you speak to the move this issue here if the f l s a collective action is out and we're just talking about the rule twenty three class action is there any financial interest and so the incentive award is that provided for and i'm not asking for any details of course here is that provided for in the attorney client agreement that would exist between for example yourself and mystery anderson or is that i'm trying to put some meat on those bones here i think is part of the practice and  jump in right away i'm not sure that you can understand why you're making this argument but i'm not sure that we can disregard the people who have been hired since the time this class or this medication began because isn't our review for abuse of discretion on this class certification question and isn't it the case that thirty seven is right at the margins you know some judges might see in a particular case and the right numerosity there but other judges might might doubt that it's there but in what way did district judge greece back abused his discretion when he thought well for this class about that to be honest you know i don't know that you have to you know go find somebody from hawaii to be part of every class so that you impracticable jointer but but in a broader sense didn't judge also note that under the the law that you're trying to proceed under there's a possibility of getting attorneys fees award and some of these other purposes of class actions might be served in a different way i think it's thirty seven people who all are in the upper midwest region those are in wisconsin maybe a few people in illinois or maybe somebody in minnesota whatever so you could actually bring them all in and the again shuts case suggest that for plaintiff class members that's that's ok since they have the ability to opt out if they wish to do so it's a twenty three dollars class but it why is that so i mean that's assuming they need they need to travel why do they need to travel why can't you just make a phone call to him and say here's the nature of the lawsuit that we're contemplating would you be interested in joining they're going to answer that yes or no and then from there you know you see how the chips fall with respect to whether somebody i don't know wants to serve in iraq or tory on him or take their deposition or whatever but which they normally can't do quite possible to take a deposition outside the district which litigations pending happens every day it just it seems mr ho that i if i must have misread your argument that what you're arguing is that hey look there is at least a prospect here that two of the thirty seven dollars can't be joined because of where they where they reside now or something what i'm wondering about is but in when you make that statement in your brief you don't accompany it with citations  authority it would suggest if we can identify one or more where it's conceivable that there's some difficulty that that defeats joinder for the whole group what authority supports that proposition i think that's the plain of the implications of what you're saying there are many cases in which plaintiffs from state they are pursuing litigation against a defendant who is in state b and that is because maybe state b s the only place where you can get personal jurisdiction over the defendant so you know you get local counsel and you get days where i was actually not even a big deal but this is been going on for more than a century so i'm get your argument that you didn't have to sit there you know at once a week sending them a letter saying and is and are you still following this policy that it's a permissible inference that since they defended it  are please the court jennifer auther on behalf of weiner enterprises inc the district court properly exercised its discretion in denying class certification there's been no showing that the court had an erroneous view of the law or  erroneous assessment of the evidence in fact the court properly followed the teachings of this circuit in cases such as marcial by declining to engage in speculation about the numbers in the class but can i ask you miss walther the thin one thing that bothers me about the district court's treatment of this is its assumption that these people the two thousand and nineteen people who had been hired were sort of speculative future people that they weren't  nobody knows how many people weiner does going to have working for in two thousand and twenty three i take that point so it's not like an injunction case that there was a concrete knowable number of people maybe it would have made a difference in the just reports thinking on numerosity maybe you wouldn't have i really couldn't say if it had been forty one people instead of thirty seven maybe the judge would have seen it same way but i think his understanding of the status of these new hires is problematic well your honor whether they were future hires and certainly at the time that plaintiff made the motion to certify they were future hires but whether they were future hires  identified current potential member of the court still did not have any evidence in front of it at the time it made the decision to determine whether the putative class members would satisfy the  get the names and addresses it would then be plaintiff burden to provide that notice and see see what the numbers look like the judge is always free to reconsider tentative thought on class or if because the court was within his discretion to look at the evidence that was in front of him at the time and there's no rule or case in this circuit that says that the court has to rely on prior hires to predict new hires so even at the time of class certification or even at the time that the court rendered its decision it did not know whether in the st instance the plaintiff had satisfied his burden of proof as to whether the number of employees were sufficient and  addition the court was very concerned about speculating even whether those employees would have been subject to the same policy whether there had been changes to the policy but whether that would whine or it's i mean if you're worried we are we don't want to spill too far into the merits and one has the sense that weiner was stonewalling a bit about whether it had changed its policies or not i would have thought defending the policy so vigorously is a good sign that you still have it and of course even a voluntary change in policy can be undone might be enough to court a case so i'm concerned about that and and weiner it's forthrightness in assume that this is still weiner's policy weiner is wired holds all the cards here weiner could say oh you know we threw that policy out here's a completely brand new policy in this whole case is moot well then in effect judge  shifting the burden of proof to defendant to prove the negative when rule twenty three dollars is quite clear that the plaintiffs carries the burden of proof on each and every element of the case and the only times list scott free did that doesn't mean that the defendant can disregard relevant discovered requests that there's no worries me about this i too am i understand judge and that would worry me too if there was any evidence on the record that that was true but there's no evidence in the record that that's true we did comply with our discovery request and notably the plaintiff did not raise any issue before the district court on any kind of discovery dispute did not ask for more time to obtain more discovery further we know that at least one of the named plaintiff in the kidneys aachen was employed through march two thousand and nineteen and there's no reason why he would have been unable to either know or obtain that information so there is no reason to shift the declaration and i read it in connection with the deposition testimony that judge wood is referring to it seems to me that whether the there is sufficient consistency of policy that this is really a non issue i just i don't see how mr anderson may have failed on another front but i don't see how he's failed on the on the policy front here at all i mean he's he's explained how he does his time keeping the company was not same what are you talking about we change that policy two years ago in the deposition and so i think i think i mean for me i'm i'm past that when at least in my own mind the question that i have is about the on the numerosity point than the thirty seven was there anything that prevented mr anderson in that declaration from offering more detail about the roofing businesses seasonal employment and saying you know i've been here a bit here's what we tend here's what the company tends to do in the season and so if it follows suit for this upcoming summer i expect that we're going to have a total of fifty four dollars employees there was nothing preventing mr anderson from doing that he would the record shows through mr weiner its declaration that mr anderson was not employed after two thousand and eighteen so he would not have had firsthand knowledge of what happened in two thousand and nineteen a lever mr chocking was a named plaintive in the lawsuit and was employed through march of two thousand and nineteen so certainly he would have been qualified to up provide that information if in fact he had it so in addition the plaintiff has talked about whether we could identify the individual employees through the defendant's records but the court has determined that issue as to whether  it was a little tiny mom and pop that had ten people working for that would equally be strong evidence on the other side yes and typically the cases when the case is discussed to ascertain ability issue they discuss it as a separate factor from numerosity and in the cases where they find that the fugitive class members are ascertainable they can already determine that the class would be sufficiently numerous or we don't have that issue in this case because we only have evidence of the thirty seven dollars employees but you know we if we just regard the new hires and the likelihood of new hires and i guess i'm a little worried about siloing the evidence quite that much oh you know this is ascertain ability this is numerosity this is something else evidence is evidence and as you discover who is out there i e you ascertain you're learning something about numbers to and it was within the district court's discretion to to look at those numbers and to look at the evidence that existed in the district court was following this court's rules by deciding it didn't want to speculate not only about the numbers but whether the policy would even have applied to these employees or whether they would have suffered the same type of harm so we know for example that mr chalk in all below the plaintiff it pointed out he had paid travel employed and the only time mr choppin was affected by the policy where he had paid travel time and that subsequently worked over time which is the issue in this case was in may of two thousand and eighteen so we don't have any evidence about whether any employee either did or would have been affected by the policies sufficient to allow them to become members of the class isn't that of their it's question no it goes to the question of whether they could be included in the class because only those individuals who could be harmed can be included in the class well and that means employees who i mean so you've said actually that mr johnson is one person is not a great amount of money but that's of course a reason for class treatment not a reason against it that was the one occasion but the allegations are that this was a pattern that many of these  employees experienced a pattern that's only been shown to have existed through two thousand and eighteen and which the court did not find there after within his discretion was sufficiently probative to prove the truth of the fact as to what happened in two thousand and nineteen so are you here telling us that wired enterprises no longer has the overtime pay policy that is described in this complaint as we sit here today that's correct where's the evidence in the record of that it's not in the record quite troublesome as well to one of which you make if anything in your view of the district court statement that participation participation in the class action was likely to be low in light of the fact that courts look at a number of factors to determine whether is joined or is impracticable one of the factors that courts look at is the size of the class and the court noted correctly of that the size is relatively small it thirty seven members and that is sad and it appears that interest in the case would be even weaker based on the fact that only three individuals opted into the f l s a collective action so again he's looking  all twenty three it's an opt out scheme i don't know like they're trying to handicap their degree of interest or they're there are likely degree of participation isn't that neither here nor there but if it were so dissin arrested they could opt out well this court m s been shot has noted that those two standards really are collapsed and so they're i'm not sure what their collapse indeed we've said that you can go forward with you know count one f l us a count to  twenty three count so there are we have recognized that these are different standards and different frankly different dynamics correct but is is talked about there really right in front of me and it says there is the case law has merged the standards but in any event i apologize i don't have it in front of me i just have t in any event there are other cases that emphasize and actually lots of literature you look at the allies aggregate litigation project the opt in format which is you know one that actually many people think would be a good one to have for someone more they're not bothered with the burdens of litigation other than the name plaintiff there are practical differences and certainly there are reasons and theories as to why employee is may not opt in to the f a class but there was no evidence that any of that happened here and again it was within the court's discretion to consider those factors and the court here looked at that is only one factor amongst many i don't think the court found it was determin and certainly you know if that weren't considered i don't think the court's decision falls because he still found that it was impracticable based on the thirty seven employees based on the three and in addition  consider the fact that this is not the type of case where geographic diversity renders joinder impracticable wells all the members were concentrated within a fifty mile radius and all within the court's jurisdiction and the the law doesn't require them to be in state the statute specifically refers to jointer being impracticable which by definition means incapable of being joined and the fact that one or two may be out of state doesn't mean that they're and in fact the court can easily manage any issues that might arise as a result of that then finally before considered that the amount of damages did not render jointer impracticable because the prevailing parties