verdict form you know what i'm referring to a bit yes it has two questions to part two yes and no is right yes and as i read what the district court said it says plaintiffs have no objection to sub part two of question number one going on memory you didn't object to sub part two of question one as a juror instruction that's right you're going on memory yes sir and but you did object to question number one right question number one of the proposed body from i read you the whole thing if you want to make this really painful ok good this is the easy way that's true right you didn't object to sub part two question one you objected to some part want to question him one right as a jury instruction ok now tell me why that doesn't make pretty much handle this whole case those simple facts because not a jury instruction question there's nothing wrong with that question as a jury instruction but there's something wrong under rule fifty of letting a jury have an issue for which there and what i mean by that is this this plant had already been enjoined to pay and treat this work as compensable the jury was allowed to say no it's not but to cut meat safely and in a separate carry matter that doesn't contaminate the product and so tyson absolutely required them not just to go to the locker as and in  and get their knives hooks pills chain scabbards would but also get the safety equipment that would allow them to use those knives hooks pills in a safe and sanitary matter so it wasn't which was that which is now tyson that permanent junction holds that that that work and the time that comes after it in the continuous work or the walking the washing is compensable and they are as we speak permanently enjoined to pay that work how then can we have under rule fifty submit that to a jury and say well is what was the judge who ordered the permit injunction right or wrong that's not indispensable that you they are required on pain of discharge to go to that locker get those knives hook spills and other things that go with the knife safety in the sanitary equipment and take it to the line sanitize it all the way and be on the line before paid time begins but was the district court's rationale for submitting a question such as this to the jury under the representation that you make now about th characterization it just never really addressed the question of alvarez and reich and the it just decided that there were factual issues there were some factual disputes that had to be tried and that got swept in with counsel now there's instruction five defining these terms and instruction five to the jury the issue of work is defined defined it differently than the find couldn't the jury find that yeah the knives are necessary to the principal activities but a lot of this other stuff is that you could take it home you didn't have to wear it employee got a choice the knives are only what thirty some percent begins the other items that come after that including the walking the washing the sanitizing and other equipment that you pick up is part of the continuous work that they don't have each item doesn't have to sel what has to be integral in and spiritual is the first out of the start of the continuous work that the supreme court held that is what's called in the statute the place of performance the question is what is the place of performance th statutory terms this spring court said the place of performance at tyson if the locker that's where the employees are required to go to get the equipment and that's where the continuous work day begins  so the jury was not permitted to then say well we disagree that the continuous work they didn't really begin and that's what they did the identical facts the identical continuous workday there are two of them there you say there should be one right no i'm saying that the permanent injunction had already ruled on both of them the why do you ask the jury to questions that because we had already been denied a r fifty motion in order been denied this case is now going to go to the jury and we're going to have to struck the jury as if the injunction doesn't exist i couldn't i can't tell you even stand today that that instruction in the absence of the injunction in the absence of alvarez at the supreme court level is wrong but i can tell you that with alvarez and with the injunction and with the evidence in this case those questions should not have been submitted to the jury so is this such a manifest error that we should correct it it rule fifty is the purpose of rule fifty is to require juries to conform to the law they did not conform to the law they they took what alvarez  ruled and did the opposite they took what reich permanently enjoined and they did the opposite they took the management admissions that this work is necessary and you'll be disciplined if you don't do it and did the opposite and  saying that under rule fifty standard which is the issue can only come out one way that standard is is satisfied and then that those to that question the second one should not have gone to the jury has it been ruled on and it's in not in dispute and it's not a dispute that that work was not paid for that there they paid zero for the walking and washing time held compensable and alvarez they paid zero for well they paid four minutes for that for the knife related activities but the jury couldn't even get to the question of whether the four minutes was enough or whether the zero was permissible because they found it was libel to begin with it wasn't compensable to begin with and of course the  defendant is saying well that's an independent ruling that minutes the air on question one but it's not the once the jury found the work was not even compensable well obviously they're going to find zero damages it people rotate jobs there their duties change you don't have the same jobs from day to day or year to year about the month you're seeking damages for each day that they were they worked in so what you're telling me is  important part of their work as a member of the class i don't see how you're mixing up apples and oranges here again damages for members of the class well if you don't break you don't break that out individually for these people do you mean it there's no records that would allow you to do that that goes back to the mt clemens where class actions in these kinds of cases you know there's a problem with not complying with statute which requires that the what the way drunkards the time record to be kept and that's what about clemens is about that when the when you don't comply with the statute you can't the court is not supposed to give the employer a leg up for that violation everybody didn't vary by knife or not and i mean out of damages for everybody very good because though there was different mound of damages for those that were knife users on the days in your argument on the days that they were knife users then the people at jury found that the knife users there were even the knife user work is not compensable it also found that the days you were not and i feel is or was not compensable that on question one they found both set because it is only an issue of damage what once once you admit you didn't pay for work that you've been enjoying to pay that's been hell compensable the only issue left did well how much back pay is there what's your evidence as to how many days  that an approximation is put in with the best efforts possible because you don't have the records the employer that has a full chance to come in and prove with a more precise set of evidence who is doing what when or give an estimate of it but that's not our burden because we don't have access to management in the same way we don't have access to to the evidence in the same way and that's that's the very point of the mt clemens holding thank you mr wiggins your time's expire have please the court i will address mr wiggins as points but i would like to start with the waiver issue which we believe allows us court to dispose of all the trial issues were raised by the appellants as the court's just been discussing the jury independently found zero dollars in question three and i am going to argue why it is clearly independent instruction number two the jury instructions which the plaintiffs did not object to said the named plaintiffs must demonstrate the elements of their claims for each member of the class which goes to judge beams just last question to mr wakens the plaintiffs did not take the position that mount clemens required them to approximate for some people or others they agreed to a jury instruction they had prove elements of each claim for each member of the class in an unpaid overtime case as would you got approved for each class member under lopez and kerr maty there's two ways of analyzing the waiver problem here one is what the courts of called the waiver doctrine which is discussed in writing miller section four four seven eight point six and all the court decisions we cite on page twenty three of our brief i won't get into a deep discussion of this except the a great discussion a right miller by professor eg cooper  about why there's various labels the courts of appeals have used for these doctrines sometimes they're called law the case sometimes a waiver doctrine sometimes harmless error it doesn't matter all the courts including the eighth circuit going back to at least one thousand to the court settlement remained to the district court it's true on a second appeal mr wiggins argued in his reply brief that well we'll get to that when we get to the second appeal he's asking it to you to send it back down and then we'll have a case even though it's been a and then he's not barred till he comes up here a second time but this court actually dealt with that issue and bethia versus levi strauss it's not in our brief because i didn't know he was going to argue this nine sixteen f second to four fifty three this court's decision in the district court and did not cross appeal that even though the plane it was the appellee that plaintiff was forever barred back in the district court from raising those damages again and we've cited a number of the cases that discuss this principle carmody says it is well it says if there's a failure to prove damages or renders the other elements of the case immaterial then that's not a class action but it is making the point that once there's no damages there's no case from paid overtime no mr wiggins just argued the question three was not independent he says it's obvious to him that the jury's answer of zero damages was infected my words not his by their ruling subpart to a question one that can't possibly be true and here's why first of all the jury instruction eight said if you find in favor of the plaintiffs on one or more of their claims then the plaintiffs are entitled to recover damages the judge said it that way because he wanted the jury to think sub part part two of question two were different claims he didn't call it a liability problem and in fact it's not a liability problem there independent grounds the plainest both have to satisfy to establish company ability then you go on to analyze liability how do we know the jury went on and it wasn't infected turned over to the second page of the jury verdict form they considered our defense our de minimus defense why would they have done that if as mr wiggins says the jury thought we weren't liable they didn't they went on to answer a question to which is what the jury director says to do if you answer yes to either part of question one they considered our defensive diminishment and they rejected it ok so now they think that there's a question of liability if they can prove unpaid overtime for each member of the class under instruction number two they clearly concluded the problem here was you could not prove unpaid overtime for each member of the class about question for you left out maybe the about your good faith well no the judge independently instructed the jury and we had a long discussion with the judge about this that he wanted a special verdict form so the could be an independent basis for that and at the end of jury instruction nine i think it's the end of the penultimate paragraph it tells them you are not to allow your consideration of the good faith defense to affect your determination on the other issues in the case and as we all know juries are presumed to follow their instructions and the plaintiffs do not argue to your honor's on this appeal that the answer on the good faith infected any other part of the deliberations so clear at nine tell me where it is and nine you have nine  handy i think i'm looking at the right set of instructions he said i'm going to structure the jury i look at the right direction to go at age sixteen is something the policies you're considering should not affect your independent judgment on the facts of the law as i've instructing you in this case in deciding whether the pressure from push of dawning doffing at issue is compensable so he evidently not to feel what you to fifteen feel in question three it doesn't refer to question three at all i do and i was on to say and whether tyson foods is paid sufficient compensation for these activities that's question three so he's saying don't let it affect your deliberation on questions one two or three that's with the second part of it saying it's not very clear is it you think it's clear well it's not clear they were if your honor doesn't think so it's wait they don't argue the answer jury's answer to good faith infected any other part of the liberations the reason it's not briefed is because they didn't argue that i would like to address some of the points mr wigan said and then get to the middle period which maybe they've just dropped from the case but it should be dropped from the case as judge jury properly dismissed it when we talk about the russian junction first of all the plainest way this argument in the district court they argued when we moved to consolidate all these cases for multi use trick treatment for pretrial purposes mr wiggins filed a brief on behalf of the clients in this case and all his other clase cases saying each case had to stand on its own facts that's at the last page of our appendix page five thirty three he won that motion so he's now judicially stopped to argue otherwise but in their summary judgment motion in this case they took the position rice was obsolete they opposed every stage before trial counsel isn't it undisputed that i remember a thirty percent number you need to correct me and tell me what by thirty percent number is i thought thirty five percent of the time was spent on knife activities it's thirty five to forty percent did not use nice sixty to sixty five percent use knives of the wrong way but it doesn't mean they're always using the knives thank you i had the wrong way and there's no evidence on the record on who those people were and so here's so it was disputed mr wiggins in his argument told you it was undisputed that we have to pay for these activities we made that stipulation in the case in the first appeal but not here and here's why because they wouldn't agree with us the rush was binding half of the rights case went our way the tenth circuit agreed with us we didn't have to pay for any of the standard items of the sanitary garments it was only when they lost s judgment they suddenly gloms onto a new theory of the case that they wanted to claim rice was controlling for some things and other than the council they objected to subpart one of question one of the verdict form we keep talking about and they said knife related activities is the reason they're objecting is correct jury because the tenth circuit had previously ruled it wasn't compensable so it wouldn't be binding on it or if it was it would help us not him that's why they didn't object to so part two that's probably dispositive except i would also point out they made motions in l arguing that rice was obsolete and it was only in their fifty rule fifty motion after they'd waived in the jury instructions that it suddenly tried to argue rice was binding but even if it's binding it's moot it doesn't matter because they won the work question the the one thing that we lost on and rice we lost on in this case as well that worked so it doesn't really matter on the knife carrying theory mr wiggins just argued about he said that the alvarez court said you had to pay for a knife carrying there was no such theory in the district court in this case it was made up for this appeal the complaint doesn't talk about knife carrying there was no request to put in a jury instruction on knife curing none of the pointed out we don't know who use knives and who didn't and in fact one of the four plaintiffs who testified out of the three thousand plus plaintiffs in this case was a woman named u one of the four people who testified i'm sorry of michelle leffler she said forty percent of the time she donned her items on the night related items on the gang time and why is that because as mr reagan said they rotate well that means that people who wear the non compatible items are doing their dressing on unpaid time and that's fine according to the jury and the ten circuits opinion and rice and she said forty percent of the day she only put on those nice related activities that mr wing is complaining about now on paid time that's it pages circuit right now talk about this report that is the ninth circuit ruled that the knife related activities were compensable we won in that case and on the standard items and sanitary garments the sanitary garments for reasons don't don't apply here but  basically admit i'm saying to de minimus defense because we lost that in the jury here but what i'm saying is the supreme court held only that walking time was compensable and the expressly say they were holding only on the walking time issue they just assumed the activ compensable because coming out of the trial an appeal in that case we didn't challenge the compound's ability of those activities so the holding which is that walking times compensable is non controversial and we accept that and the jury was properly charged here  wiggins says let me ask you a question the issue of whether something's covered under f l i say is that a question of law no your honor and here's why this court has this issue was before the court  lopez there was a lot of briefing on it the court didn't hold on it because plaintiffs had waived the issue in skidmore versus with the supreme court said all cases under the f o c it must be decided on their own facts the eighth circuit has cited skidmore versus where for this are resolved the final question as to whether something is or is not covered by a fell asleep only if the facts are in dispute that is if the facts are undisputed the court can apply the law to those fac that's true of any issue on summary judgment where facts are disputed this court has consistently said juries must decide them this course said so in the cross vs arkansas forestry commission case neighbor says the arkansas forestry commission case  couldn't get the benefit of right and the plainest argued that alvarez had changed the law in this area judge jarvey accepted that and said you know what we'll let a jury decide we'll charge them properly they don't appeal on the way the judge charged them about the meaning of right in fact mr reagan says the jury didn't know that we were really held to pay for these activities that's not true the jury was expressly told in jury instruction nine entire history of the rice case and was told the the history of the al supreme court so they knew full well that there had been a prior injunction the point as we reached an agreement with the department of labor afterwards that said we don't need to pay for minutes for these activities and that was what the good faith defense was about which since he didn't period we had the judge driver granted a summary judgment in the middle period we had nearly the same argument in the lopez case in two thousand and two as judge benton's opinion for the court said two things are clear the test in this circuit is predominant benefit and second it's court in lopez said the plainest cannot get around that by seeking to carve out portions of the middle period and claim they're only suing for the minutes at either end of the meal period that's the court's decision by judge ben six ninety f third page eighty one here the guyton plaintiffs in this case don't deny that they had pursued nearly the identical theory in the district court in the lopez case and lost it on appeal here their theory was that other than the four to five minutes maximum of close changing time the rest of it was for their benefit they stipulated that stipulation nine of the joint pretrial order and now an appeal issue called the midship shut down theory there was no such case tried or presented to either the just record on summary judgment or the jury they have no response and we point out in our brief that there was no system in the district court they cannot now appeal because theory they didn't pursue below we would ask the judgment  to figure out and but we appreciate your help in doing so and consider your case admit it and we'll pick get it get it done as best we can thank you