because it was removed for diversity in the state subject of law applies the application of federal law is different from state law and this was raised clearly in the opening brief on pages twelve to eighteen appellate did not respond to that particular issue of the plan that is in focus here you know not statistics no numbers no you know nothing in except the fact that this particular guy is held there and he was even older when he started so the question is if you don't you have to prevail if at all just  this plan and can you do that exactly what i think we can do i think you look at the point and one hundred percent of the people with two years or less are not subject to being terminated and you end seventy five for that those people are disproportionately under forty i would say anything that is graded on the basis of a graph based upon years of experience he's got to here we have this morgan stanley when it framed this purposefully made this a boring evacuation even though it had access to the e o one status of everybody in the company  i purposefully i mean we could have bombarded you with a mile of facts here the thing that fact of the matter is that one hundred percent of the people who are in two years or less and seventy five  for some of the people in twenty five months to forty eight months are exempt from being terminated or compared with any other person so this is not to say you don't know whether they've made a dollar for morgan stanley ten dollars twenty fifth my client was just short by three thousand what it was not considered in the plan was pas production that reflects adversely against senior what was not included in the plan was anything consideration of the eight hundred thousand to one million dollars that was sitting in morgan stanley was brought there by mr pujols what was not considered in the plan was a program that morgan stanley sponsored a few a couple years before that which switched stock brokers strong being paid on a commission they says to being an asset these now that was done by financial consultants it is my understanding of california law the burden is on the the people who are presenting the plan to justify how it needs the standards of the classification of no as you indicated in your first question the question is a closer examination plan itself if the plan itself absent the factors that should have been in the in the frame and with the fact that anything that has a disparate treatment over a stair thing based on experience has got to affect senior people more than junior people but how do we know that given the record we have here front of us and we know from your clients that they take on people at age forty seven so if your client is anything other than an absolute solo and in the company we're going to have people in that first group the train through twenty four months who are forty seven forty eight years old they're not going to be entirely composed of kids me and without some data as to the age of the people in that group i'm having to guess at what the actual impact is even once i kind of figure well tends to be people the beginning or younger of that that generally is true but i'm supposed to guess at this i don't think you guessed it this i think the plan by itself on  says we are going to impose this one of the blind way because if we try to do anything off an analysis of it it would be prejudicial your point is well taken however my client was forty seven but he was an that i think that was part of my argument i have no i'm not going back to that particular issue at the point because it was real money not calculated historically under the labor code you have to make those monies paid go to the extra effort if you're terminating employees which is a fundamental public very large corporation is required to do the calculation and to pay them on the basis of the information they have available and on sales commissions unless there is something yet to be done by the to thirty days pay it's not a it's not a heavy fine but the shower that he was worth and it's one thing if you see it if it was on earth that is if there was something but the simple thing is the question of if commissions are turned there are many salesmen where there are things that have to be done after the sale before he's fully earned his commission but in selling a st the employer and mind you the employer why you have this particular thing of reduction in force well ahead of time could have put into effect all the steps necessary in the tories plentiful spawn of those are in the record we conduct took place deposition and the plaintiff conducted depositions of some morgan stanley employees so there was no ambush there was no rush to judgment the case did move doesn't make a lot of sense because let's say you have somebody who has worked one week out of a two week period thought he would have been so he is fired everything before his he would be paid for the week that he worked my you would be that case or title to the half months drop and at the end of the month when the company conducts its end of the month f a comp calculation he would be entitled to the remainder set a circumstance here you know in this case of the commission policy which i believe the d s really the letter that we relied on i said is reasonable when you hit it you have a just described the practice there is nothing in the record that it's specific as to mr pujols financial transactions for seniors well i think you have to take a reasonable custom but i think it's a reasonable impose that requirement under these circumstances and i frankly based on this record because the companies has a practice of calculating all of this money and the  the whole california colleges restructure your payment schedule right because you don't pay people i mean anything you pay people on some regular schedule and the regular schedule presumably is altered if that's people are fi right so so your schedules already screwed up so why is this different well it's it's different because under the policy at the time it wasn't earned until date they've been able to determine california law or a complete file record as to why they can't or in the next case you get like yes compile yourself a record makes it clear why you cannot comply with with it's not a lot of money at stake on this point obviously but it was entirely production driven age neutral the determination was made that people who had not been there long enough period of time did not have a sufficient track record on which to make it such that production dripping it radio at the time but they were they were just not included in this particular process if they're not producing they're going to be terminated but it does take a period of time to learn in this selection process those people were excluded but they're sometimes or not but those who are loyal to the financial advisor always have the opportunity to stay with the financial advisors entirely the customers trust but there's no evidence that this was part of some scheme to deprive mr fusion or anyone else of their customers they have the absolute right to follow the financial one as a river he or she may go plan what was not considered like past performance the like and shift from two from commissions to last for days just common sense