generally speaking i think what the judge should have done here is examine what are the elements of a twenty eight o two client for expense reimbursement and if he had done and looked at those correctly and identified those correctly he would have seen that the answer to that varies from person to person he can still do that we send it back right he can still do that if we agree with your opponent he could i mean i would suggest here this is basically interlocutor right completely i mean one of your options could be to set forth a correct standard of what it means to be a necessary expenditure and send it back to judge spiro to decide or you could look at the record as i think we have done and based on the admissions and made by opposing counsel that this is an optional expense and more than about half the people don't concur one of the two expenses that it just there's no possible way to find that it could be certified and you could just order him to deny certification but that would be empty oh don't let's assume for a moment that at least in my case i think the district judge did consider the underlying legal issues and twenty eight o two and you took the position the bank did that that non mandatory expenses are per se non recoverable under section two eight zero two the word mandatory i wouldn't quite agree meant that the bank was saying these had to be expenses that they had to have that it was necessary it wasn't optional it was necessary right and that only those are recoverable what's your you had a really quite different factual situation you did in the sense that this similarity was there was an expenditure that the business company encouraged employees to that had a policy that said you had to comply with the dress code policy and one way to comply with a dress code policy was to wear stylish wet seal clothing and and that sense here i think it's actually further away from that that he thinks a stronger argument for it being required because there at least was a requirement to meet some kind of dress code policy there's no requirement here whatsoever to send mailers to your customers there's only a general expectation business and you can do that a lot of ways that don't involve fascinate or the web sites and in fact to the contrary in the compensation plans itself it says these are optional programs you are not required to participate in and i think to go out of this field and the only way to reasonably accomplish that would be driving a rat not the employer could say i didn't say you had to drive or you could walk everywhere or you could try to do the job by telephone but that would be inconsistent with the expectation participate but the other cases work and you can atlantic i mean if you can't get closer than you can you can is the exact same issue for basically for wells fargo and these programs in that case  there was the same fast mail program there was arguments that management had you know made directives that lead people to feel that they needed to participate in this and the court denied classification on the basis that you don't know that across the class it could vary based on what one particular employee said to one different manager and that's the record we have here as well and that we submitted operations for a handful about fifteen people who explained different situations about what the did talk to their managers about or what the value they get out of fast mail and it shows variation that's never been reminded by the other side what judge pirro found was common is the job description and that there was a  fast mail program and also websites that's not the right question and the fact that there's a job having a job description they all originate mortgage loans doesn't answer the question of whether they reasonably were required to participate in fa or have a personal websense do i think the player tries to conflate a little bit this notion of necessary and reasonable by pointing to twenty two to see and i'm not sure if you're under sort of question about that but involuntary grissom i think it's important they're there they talked about were reasonable this time to analysis they said that you have to look very specific facts to determine whether something was necessary i don't particular circumstance and in that case an  explains how the fact the employer offered him a lawyer doesn't mean that it was necessarily undeceive for him to go get his own lawyer and he said for example there could be specific facts or maybe the player is dragging  it was mild there's no if nothing in the record or similar to that there's nothing here that shows people need to use this program so i think on the twenty eight o two front if you have been to other questions on move on to actually one of the thing i forgot to mention the leading california supreme court case on expense reimbursement is good to services hard hanks said in our papers i know it's a little different because it assumes an expense is necessary and it talks about how you go about  obligation to reimburse expenses but it gives an example of when reimbursement would be required and they say is when quote employer requires employees to drive on the job so even the california supreme court is using this language about it being required as opposed to something that might be helpful ok so you know for the questions about that i'll move on to labor co chair for the issue here is  when it isn't with a with an incentive pay situation that the obligation is triggered to that that the competition is earned for purposes of labor coachable for and i think both sides have pointed to the peabody case of the california supreme court and also there's a deal is your opinion letter two thousand to dash twelve dash over nine dash two that say that as a general matter when something is earned is contractual but if it's necessary to calculate something before you can actually figure out how much this commission is the employer is commissions and earned until those calculations d four which is at page four fifty six of the record it sets forth a specific example of how commissions are calculated i just read from it if it says commission and it says gross commissions will be is what you are and it says right path section five a day of the comm plan that subject to the commission reconciliation process set forth above net commissions gross commissions less hourly pay advances shall be paid on the last paper each month so the reason is relevant is there's a whole process has to be gone through beyond just granting permission credit before you have a calculation and  that is you have to have the employee's hours because one of the elements of the downward adjustments is our all the hours employees work for the month or pay twelve dollars an hour for and that's a debit in the formula to calculate commissions you don't turn in their hours until the friday of that week so let's say the month ended on a wednesday the employer isn't going to have those hours until a couple days in the next month or so in a situation where the pay is earned after the end of the mother employers they haven't released until the twenty six of them up to pay those t's unclear when these commissions are earned according to the standard of peabody and in the d c opinion letter we have a reasonable amount of time to calculate the commission and it's certainly not that very same day so i think if the court instructions we have proceeded in this case as the district court noted under theory one under the direct discharge of the duties and that means everything correct because the question is what is reasonable under the circumstances which gets to the next qualifier of when an expense needs to be reimbursed because it not only has to meet one of those two theories direct to structure duties or you know billions of instructions it also has to be necessarily incurred as again this court o'hara noted and i was differences are made along the merits that applies to class noted that the legislature has now defined what necessary expenditure is and says yes there expenditure is what is reasonable and it's clearly not just talking about attorney fees because the legislature sad not including but not limited to attorney's fees to the legislature clearly meant that definition of necessary i reasonable to be political beyond just attorney's fees and go to so the catoosa recognize that because they do see to determine what is reasonable for reimbursement for mileage and not only that they actually paraphrase in their mind what is the test for necessary and they said what is necessary turns the reasonableness of the employee's choices here there is a kind of question is it reasonable for these officers to choose to buy two marketing tools that wells fargo marketed to them told them not only was it reasonable it was vital it was very helpful it was necessary to promote more months sales and that was their job so we have got to set a recognizing that twenty two to see definition of doesn't mean mandatory doesn't mean required means reasonable under the circumstances and they applied it in that case and reiterate the standard in a way exactly how the judge pirro side  instructive because the grissom's turns to black's law dictionary definition they didn't use webster's they went to the black's last act definition of necessary which says necessary has different meanings in different cont what is reasonable in the circumstances and that's what grissom said necessary means and that is exactly what judge spiro used to determine whether there's common evidence now whether we win or lose who knows but we have common evidence everyone's doing the same job everyone and everyone agrees that that job is to maximize one sales and having trees that wells fargo has these loan officers it is vital to use our web our wells fargo bennett websites here you know as well as you know your opponent is suggesting and in fact that you're at too high a level thank you these are all loan officers and we're all doing that is not what counts here but rather in the actual performance of their jobs whether they had similar situations was everybody required to use these particular methods were these events is common to all of them but your response to that my these individuals websites are vital they don't say for some people they said to all loan officers it's vital same thing with fast not it's really really useful it's really important you should use it not under reasonable for any loan officer to make the decision to buy wells fargo's marketing tools and that is the kind of question that i think the subject to a common answer they make provide their evidence to show that it wasn't reasonable whatever market these are these marketing products to these folks to your koreans they get a commission that the sales managers get a commission on the commissions earned by the loan officers so everyone is benefiting from drive oh no when they convince a loan officer to buy into one of these programs oh i don't know if the marketing program gets a commission on how many people purchase it they might do well st position that we are here to prove that all of our class members are required to purchase clothing or are required to purchase these macintosh and this district courts in both situations took them at their word and as you do on class are you measure plaintiff's theory and whether produces common questions that can be answered with common evidence and so in that instance in both cases they said there is no common policy mandating that you buy our clothes or mandating you buy our marketing tools so you're going to go manager by manager we again have a does different theory we're under the direct discharge of duties theory which by the way this court you know here i get recognised direct question not judgement to your question on to a four i don't think there's really any difference in what this of opinion between mr kaufman and myself and what the standard is it's when was the commissioner and p that step is know it that step is tied to events that are are determined in that same month in which the commission creditors are so there's a two step process right moment politics the compensation programs all of them say your commission is credited to you when the loan funds we look at the end of the month what months have funded and that is when we give you the commission credit and that determines the gross credit commissions now we need to back out of that loan referrals and ours and the money we paid he has an advance for hours work but both of those things are determined in the same month because you it's the hours you work in the month in which your loan closed and by his own example i've been very happy the worst case scenario the bank all the events all the conditions precedent required to calculate these loans occur in the month in which we are talking about in the month that the loan fund is if the work is done period and the question coming election is that reasonable if your position is that it doesn't matter if there are distinctions from person to person for partner referrals for example person a may have a partner referral person b may not your position is doesn't matter it does determine the common question one level up from there it doesn't matter because all of those events you just did then a fight again occur in the same month in which the loan fund right but that the fact that there's a different net dollars at the bottom of the debt doesn't matter the fact of the matter is all the events required to make this calculation occurs in the month in which the loan funded in the month that the loan commission credit to access the data regarding those events are you saying that all the data necessary are at all times in the possession of wells fargo so for example ours to be deducted that would be in their possession at the end of the mother certainly within two or three days after the end of the month and within the time period referred to into a four yesterday and i think the records clear i think that person most knowledgeable thirty six witness admit to that at the very worst that wells fargo has a policy of requiring time records be submitted on a thursday i grant you that those can be submitted after the last day of the month but still within the ten year window that the employer is required to calculate and pay if you have nothing further i think not thank you thank you  is nothing to do with this case that involved nothing about expense reimbursement was addressing expense reimbursement this notion that morgan they argued a different theory of liability than the plaintiffs arguing here is just not true the her employee for all necessary expenditures were losses incurred by the employee in direct consequence of the discharge of her duties heat of his or her obedience to the directions of the employer necessary modifies everything this notion that if it's not ordered it's not there's no necessary requirement is not true and even if there is a reasonable as to necessary which i agree all that means is you have to think is it really heated necessary by the same route under a reasonable looking at all the circumstances and there's plenty of variation in the material evidence that mention it some people use this to get people somebody else might be part of a community where they have their own forms of bringing in clients or don't involve mailing to them there is no evidence of a common answer to that question i think your time is up but i think you thanks to all counsel for their argument in this case the case of wind versus wells fargo bank is