this court should reverse the class certification order because the evidence in this case which we carefully examine in our brain doesn't permit that type of common findings that supreme court precedent requires and plaintiffs happened i will probably repeat this several times during my argument the burden to establish with significant proof that there are common questions that can yield common answers that may be but the question is yes you do that i agree that that alone in certain cases but that's not the case here we need to go back to what wal mart and person stoops says when a class is attempting policy this sample of evidence which we go through in great detail shows such wide variations that there is no sense in which i mean some of the evidence may demonstrate a claim exists a demonstrated claim doesn't exist but when it comes to the basic and foundational questions whether overtime was worked off the clock whether it was work off the clock because of a common policy whether individual managers knew about work taking place off the clock and suffered or permitted it there is simply no significant proof convincing proof which you're under this is evidence doesn't permit that frankly is detailed in the brief and i won't go through with numbers and for everybody and the students here but we have a substantial number are being detailed on our brief i think pages sixteen to thirty three and mellows who were supposed to said they never received an instruction that they should report over time they were actually told report over time and you will be paid even if you don't get permission  the twenty five m l that the special master highlighted in his report wouldn't believe it was fourteen out of twenty five reported over time mr richards and tim who provided into robert tories but not a deposition said yeah i worked overtime all the time and he did it with his manager and his manager said he could report it i'm highlighting vision or judge making not to say oh nice are a bunch of individual claims that fail but to say is it yes or a question does it look like tyson foods as opposed to dukes there for instance in tyson foods every employee who went to the packing plant for that the court in bell found that there is plentiful evidence of and i'm underscoring a company wide policy and how did they prove the existence of a company wide policy there was a branch manager who said that bag regularly required off the clock work and that a regional manager told plants managers not your record over time because p n seat had a policy against paying for overtime mean big it was statements from high level managers second and there are three differences the court now that the employees had common experiences and number of people making the same allegations are quite strange is managers for overtime on those memos refract managers doing what they're supposed to be doing and that is telling people that they need a secret approval also pointing out in many instances someone is putting in an awful lot of overtime but low productivity like an associate putting in watts of time and not producing very much work asking and making an inquiry you seem to be billing nine hours every day is that because you're billing for the lunch hour or are you working at lunch and if you're working at lunch asked for pre approval for that overtime i work at the rep both the email there's not is not evidence of a company why state of pennsylvania that we have for instance where it's wrong officers in pennsylvania who are operating under a common policy implemented in that region there is no commonality on th or whatever either an injunction for instance that's immediately appealable that if this other ruling is in extra complete intertwined with over wrapping with the ruling and here your honor i will say that similarly situated single f l as a violation policy and proof of that policy or conduct in conformity that policy proved a violation as to plaintiffs sounds to me an awful lot right or similarly nothing to the single stroke language out of wal mart so if this court for instance agreed with me that there was no commonality under wal mart and tyson foods and reverse the claims and are state law claims based on the same theory based on the same proof their certification theories are the same common policy implemented throughout buy the premise that in certain circumstances it might be easier but in this case societally exist in this case it is the same i can't find any material difference that one representative class members evidence can prove the evidence of everyone else it's not like case infants as i've explained that notion of whether they're similarly situated so you can prove violation for all plenty of what the represented evidence i don't see any distinction between that and a common question common answer so that you can decide in one stroke the claims burden both for f l as a final certification stage two class certification in the first instance and plaintiffs new for class certification under twenty three we oppose that and we also cautioned well of course not to treat these two different sorts of vehicles to say your honor i don't know if i can respond to that you and i agree and you are a more detailed way other than they w broad brush other than to return to my view that when we talk about the answer in pendent jurisdiction precedents in this court and looking for are the claims intertwined is there an overlapping  at bottom corner to the decision on whether there was an injunction had something to deal with the question of whether summary judgment was appropriate and viability of the underlying claims so that a decision that say issues i'm invoking instead this court's definition of circumstances where it's appropriate when there is an overlap and in terms of legal theories underlying  between those testimonies are far different are far less material than the similarity suggestion that your folks didn't show up at depositions will happen i do you know defendants five another one was not available during that month that would have been available in the next month one said she would come and then didn't so it's that i'm not sure that's not her seven but it's all part of the ones that they say we didn't lost that motion because of their own this conduct and they could have brought their managers they could have had affidavits from the man who's we know what those individuals were doing we had their records we know that they recorded over time did they record a lot of overtime know which goes well no just she was not eligible for overtime but a jury could infer that that instruction from the regional manager being tired new england area she was essentially acting division manager telling m l o that they're not eligible for overtime during this  and if he saw more than five hours of overtime he would send an e mail not to the line manager who then would actually cite some discretion now he would send it to the division manager and he's going to with three of those at the entire company i want we there's three and then there's two he will send an email t division manager and a regional manager and the two of them would figure out what was happened and so we see that we see this email from john kraus we see the individual reporter six hours of overtime one week and then ten hours of overtime the next three weeks and he john carroll says i did produce an incidental overtime one to three hours which is consistent with all the evidence which is normally three hours was approved people asked where just some people not everybody but some people but he said but this is something different this is unacceptable and he said you know i don't i'm sorry i do not have an o t philosophy talk with the new manager he was probably happily coaching about it not knowing any better and so he said then he goes in and he has there's substantial that is in the record bed you know production is not a good metric for work because when production is well they have a network that the hospital they have to go call referral networks i ask because you know one question is class which is a court to find a class as all the subclasses as defined by the special master and the special master special master as a master to define the classes within a certain period of time three years from back well not  incorporated by reference i believe to the page numbers that discussion from his first report so the definitions in the first record is included by reference in the second report it's not we don't think it's a confusing class it's everyone m l o who works there in each state during the statutes of limitations for that state and that is it's in the first report or in detail there was a typo in our motion and the special master corrected that which the court is allowed to do the court can redefine as if there's an error and that's in there so we you know we are and all the claims are all the claims are certified so all claims are certified no parties uncertified at this point  i think i need the definitions important because it needs can you decide one without the other and for me and here you can decide rule twenty three without you have to decide rule twenty three separate from deciding for us under under deval it's a different standard resolves everything we think there's a there's walk a single policy that had an impact on you know on them working off the clock there's the block recording the fact that they allowed all these individuals to support and submit fictitious time records without revealing the time she's there's andrew mcnally god coming down on five years so we think there's different steps to this policy and actually the varieties of the testimony gives us an opportunity to see exactly how the policy right if he didn't have this where i didn't reckon you would know they would say well what about these people who recorded three hours of overtime doesn't that mean there's no power say no because we talked to them and we said oh they too said that they were not all of the work the real refined hours work they really are i'm not going to repeat at length big duke says if that the weather you can't frame whether a common policy exists as the con question the court said never instructed me not to book over time they told me to book all my hours i was told that i would get paid you get paid even if there is isn't pretty proof all the command for instance t your hours so the bottom line is these variations defeat any possibility that we can go to trial and put on the seven ends and come to a conclusion that there has been a  evidence it's not like hasten foods it's like dukes there may be a manager here or there that will did his individual discretion and put the hammer down and told his people he'd better not be working every time that is not a uniform power sink commonly implemented across all of the class they also like to point out citizens really did and this is a relevant fact that they paid a lot of overtime over the class period sixty thousand hours and say to the portions of the record in the brief paying a mystery point two million dollars the five year honor who they didn't produce plus the other for work are selected plus randomly selected nothing folks and the numbers in our brief these are paid people making a lot of money producing a lot of loans and booking a lot of overtime and getting paid overtime so to sum up with the two steps sections that seconds i have this record and the variations in the record demonstrate that that cannot be done and i would ask this court to reverse the class certification order with respect to write ability in damages we talk about damages in our brief because right defeats commonality equally difference similarly situated on this record