certainly understand but i would like to start by asking you about your insistence that in effect like who knew there could be summary judgment in this case you move for s judgment on the issue willfulness you put it in front of the court you argued hard for it and that it went against you and your assertion now is essentially a surprise fifty six now how do you square that answer their argument that you can hardly complain because you're the want to move and put it before the court sure as this court has previously found in gibson that there is an exception to the rule twenty six s notice issue there certainly on constructive notice that the court but here you are you're the one who was in effect telling the court hey there's no there's no fact there's no room here for any disagreement about the facts is it is your assertion that there's no room for any disagreement about the facts if you agree with me but if you disagree with me there's lots of room for disagreement about the fact is required i think it overlooks that the the burdens are the stand in the plot and that applies in some regions of motion when i when plaintiff moves for summary judgment they know that the court is going to consider all the facts presented in the light most favor defendant and then trying to or get to the court that despite that the court should still grant summary judgment it the whole purpose of notice is to give the party an opportunity put their best foot forward and all the facts were put forward measure for summary judgment that they could potentially lose entire case but it's been more detailed presented a more detailed analysis which i did in this we're trying to get specific and you've reserved for five minutes or both so we're you know  short on time here what what would you have said differently what would it what you would your argument have been that you didn't get to make because of this your honor i think we would have emphasized more the the fact that tory construction admitted that it knew the only reason it did not have to include the per diem in the regular rate was because it was a reimbursement in new it was not providing a reimbursement to the local police because  they were not incurring these expenses and yet it said we took no action to determine whether we were paying them correctly we lied on them to tell us whether or not they should accept extras  than troy is explicit acknowledgement that such was violating the law is that it also changed the way it treated the the payments in terms of taxes it started treating them as we just for tax purposes concepts of constructive notice i believe so you're on whip when it's a purely evil question because an argument a party is going to make when they follow a motion for summary judgment on a true legal question is essential the same when we're going to make an opposing point that's not the which we typically characterize as a legal issue that's kirkyard and if it may not be the case in this in this specific case but if this rule is and down that constructive notice panel so what what would you what would you have us do and in answering that i'm interested to know what you'd have a stew with the words that followed the word alternatively in that opinion i holding where a company made the curve in this case was a city made a decision regarding a certain type of pay and then never revisit it and took no steps to determine whether excluding it from the regular rate was in compliance and says some things about what the record indicates what what's your position on whether that's that all that being in the alternative is a holding that's binding on us or it could have a position on that i think i court called it it it it address the situation that would have occurred if some violations did occur after the amount and said that that would not be enough to be willful but that's  that's a pinion that's not that's not addressing the actual facts of the case which i think makes it tick right you're on our time now but we had two other questions and i don't know whether my colleagues want to address those here but there is one that and nichols respectively how that to be the case it's this is not a rule twenty three a class action where the name plaintiff has special legal rights as the certified plaintiff or where class class counsel in an opt in f and in f l if they opt in case all the options are on equal standing with each other for example courts in this circuit permit options to hire other counsel if they like they have all the rights district court had decertified the case below in this case the court is not the certified it just held a granted summary judgment for all the claims and so ms stone with along with every other opportunist essentially disposition here would we be reversing summary judgment and sending it back with things to proceed or simply instructing the district court to amend its order to dismiss without prejudice i believe the correct ruling would be for the certified under the collective action now there's pending motions that were mooted that the court did not reach and i think this court should direct in that event direct the district court to decide the motion for the certification or any other pending motions but i don't believe there's any reason to not allow the nine options to proceed in a collective action that has not been an issue for claiming to be interviewed how do how do we or or and why should we assume that if it were a bulk of their claim is probably under two years thank you you know and i don't know exactly so let me and they're free to voluntarily dismiss if they say that we don't want to proceed but up until this point there's been really no indication that they don't they're represented by my law firm have not sought separate accounts or made any other decisions to give up the case if they seek to do that it is it's the district courts discretion to allow them to simply proceed there's no mention in the statute or regulations regarding any claim if the only importance of the name plaintiff is that they found the initial claim and that when they found a motion for can just certification the court  that context is important i think there's there's nothing in the f s a statute that requires an employee to file a written consent to become a party plaintive that says that that document has to be has to stand on its own to give an indication that that person wants to be a part of plaintiffs in foulest and butler the court said that you can look to the context you can you of the litigation you can acknowledge that this person sat for a deposition this person in the tourney this person in their declaration which was filed in support of a motion for conditional certification referenced the underlying facts of the litigation and identified other individuals as mr we did here but we know we can look to conduct so what what is the threshold how would we how do we draw the line to say that this declaration constitutes a consent but some other person who does a fact witness who filled out a declaration that's the complaint itself have any bearing on this i believe you can look at the entire with a geisha as a whole the fact that the person's name is on the complaint and what do you rely on for that which case they have or what authority do you have that we can pull that  i don't i don't think so you are because if it is stone was filed it in support of a motion produced will serve cation was alleging the underlying facts that support her client and also identifying other potential options ok frankly we move thinking that the claim is time we're going to the three year statute and we continue to assert that that it is even you know if you accept that the consent form at mistah well the march twenty second two thousand and sixteen commenced the actual it would still be barred how how do you i'm just curious how you can defend the summary judgment that the district court issued when in front of the district court your side made the argument that there were issues  that needed to be addressed on a willfulness your honor we didn't make the point that there's issues of fact that need to be addressed on well perhaps that was opposition to the plaintiff's motion well to avoid the entry of judgment yeah so there suddenly i put it to the same i put it to him there's issues of fact if it favors you but there's no issues of fact if it's going to be summary judgment for you the fact issues disappear not a common not uncommon occurrence in cross muffins for summary judgment here genuine disputes exist regarding whether troy recklessly disregarded civility obligations that's a quote in a sentence stand at all by itself here genuine issues genuine doesn't count if the court on its own motion because you didn't move for summary judgment if the court on its own motion decides hey i don't think there are issues of fact here you're good because even though those in summary judgment you're in a very different position when you're moving for summary judgment well that's in fact mr miller's exact argument right now and ask him the questions about you moved how can you complain and that's the argument you've made now you're making his argument for a larger well well no i'm not and i'll tell you why because i think the differentiating factor in this case from all the other cases the talk about sort of shifting burdens in a context like gibson one thousand and fifty six f issue for example is that the in responding to that burden your is your assertion the court was you cannot possibly grant summary judgment because there are material disputes of fact on a fact issue but i doubt you're saying there are no disputes fact on a fact issue because they had the burden of proof that's that's all that's a logical thing that just doesn't seem to follow i got all i don't think it's a fair characterization and it's because when you're opposing summary judgment what you're saying living horse good but when i've heard that argument made it's in the context of cases where the where the burden of proof is actually in play and somebody is wondering about how the bird moves here if there's an issue of fact it doesn't matter who's got the burden of proof if there's an issue of material fact no matter who's got the burden of proof summary judgment is supposed to be improper because rule fifty six says you can't granted if there's a genuine dispute fact i'm trying to figure out where you're getting the theory that if there's a dispute a fact it's still ok for summary judgment to go your way where it will fifty six or any of the wasso see it with you do you find a rule that says a material dispute a fact evaporates if the rulings going my way i think it has to do with the burden of proof in the fact that with throwing up and again i don't want to be redundant or not answer the question and and maybe it's not capable of being answer same awful it's a completely legitimate pay practice under the right circumstances provided that certain criteria are met and there's no doubt or there's argument in this case that some of those criteria as a certain of the employee were not met then isn't indeed but we're talking about whether there's a material issue of fact you're right whether the record can be read to put willfulness in play their argument is hey we told the court we had record evidence to show they knew that you could conclude from what we said they truly knew that they were giving produce them strip people who were local but they knew that these things were going to be and needed to be considered as wages their count told him so and they in fact counted them as wages when it was to their benefit on their tax returns so they knew they were given what amounted to wages to local people and yet they didn't include him for overtime they they point to record of us now you can say we don't like evidence or it's you know have to view the record that way or but we've gone back and looked at the record i mean why why isn't there a nothing there at least to do exactly what you said in your briefing to the district court and say there are material disputes a fact here because i do think that if you have got it right in evaluating the evidence that was put forth in the record evidence right that's the way we haven't been the judge had to look for you know when we would have to look at the evidence they've put forward and say no reasonable person could look at that evidence and say they're sent least a fact issue here right acknowledge ing that in fact the judge was in the process of fact finding here because if what you're telling me is that we need to look at what the district court did here and say it's a clearly erroneous standard then you're telling me that district court found facts well your honor if you look back at some of the third circuit cases  standard aren't we asking just the question whether as a matter of law the district court was correct that no one reasonable juror could look at this and decide to question in another way i agree with you ok and that we're not talking about clear  and if we were you'd have to dodge it you're going to lose because he was doing fact finding how how do you say were last year i don't want to get too far off the point which is here the evidence was there reimbursable expenses that there are that the company knows there are employees who live locally and therefore are not incurring those expenses and the company took no action despite having multiple forms in its files to identify those employees with even though it had permanent addresses for them and it continued doing that even after at least as far as the s implications it recognize that these fees had retreated as wages why isn't that enough on the other side to create a genuine issue because mr dongs employment and did in march of two thousand thirteen the change that implicated the i r s issues that you're talking about mechanic and issue was two thousand and fourteen long after she was gone you're you're now you're trying to pin this specifically to ms still we're talking about a collective action here with family and i think the ninth circuit expressly says that they distinguish themselves and say we're not falling down on that point do you think that how he says that this is in effect a class action the how he says it's not a class action so it's three case the question is at what point in time does the name of take on an interest that's beyond themselves how and how it discussed the fact that there was there and and add that not an adverse judgment so that the only order that says that the court is dismissing the case into entirety without prejudice to plaintiffs pursuing their state law claims in the pennsylvania courts so as to it in an adverse judgment that precludes them from pursuing their rights in federal court doesn't that make a difference to whether these these well options can remain as as plaintiffs whether they should continue to be as parties and i would say this i think that the the district court's order on what happened to these options is not crystal clear i think it is in bigamous frankly because there is no doubt that the claims of the options were not resolved  on to say and you watkins you can go to state court and do what you want to state court which further makes it sound like the district court knew the district court was talking about not ins as plaintiffs and seems to indicate that since you can go do your state law stuff i've ruled on your federal law claims and indeed what i've been saying is on a statute of limitations ground which is a merits based decision so how do we get to your position which is it's clear that this was not a merits based decision because the judge entered summary judgment based on ms stone's question there's no doubt about that because of the consent form and the time it had nothing to do with the other option that may be true if we judged was think in stone loses but then this but then the judge says and all of you guys lose too and leave doesn't that actually make the again mr miller's case which is the judge here unfortunately erred the judge ruled on  says if the judge says you all lose plaintiffs your case is dismissed that is you lose and you can go to state court and pursue state claims how is it clear that how is it clear under halle and third circuit precedent that dismissal of the options should have been without question that the options are free to go with the because halle says if the decision results in a complaint that no longer has a collective out action which happens here correctly i apologize i don't know what the court was in the courts mind when they when they wrote it when i read the order i thought on the need to type maybe want to just stop through all the way i don't know all i know is that they didn't address the claim on the merits i think for the reading the order that they clearly didn't touch on the timeliness of anybody else's claim that in touch on the the underlying merits of whether they were paid or not paid properly whether the opt in to continue as as plaintiffs and in the case were to proceed would be a matter of the district courts discretion and there's no discussion here about how or why that question is being exercised i don't think that's two hundred was stark the third circuit's opinion was started which said is that a district court has no power jurisdiction to rule on the merits of the claims of individual opted members of the puter class when it does not grant certification this is a collective action that it was already as a corrective action as well it was a that yes how how he did say that but that was in a case where there had not well with eck into we're down to two minutes so let's leave this behind and move on to another topic in the reply brief the stone says look we endorse the proposition that the that the defense is made here that that if the twenty eleven email  did not establish awareness of a should establish willful office a violation then then mr o'hare choice corporate designee testimony does not either in other words they say we're prepared to accept that this is like  not for the two appellants in that case i would i would like you to take that on right they seem to be saying in short you've misread syria vong syria in its primary holding indeed found there was enough to find a will violation but the one person who could have made that case didn't appeal what's your response what they're doing is analogizing be healthy for can change and pay practice to that in but they're actually saying you did it they're case it's really the same thing because in two thousand and fourteen i tend to prefer but again this phone is long gone so there can't be evidence of what on this post facto asked that had nothing to do with the fact of the matter is when she was working for the company nobody ever complained about the practice nobody ever put the company on the nose if it was a potential problem and they didn't know simply because nobody was complaining and then you know so the first problem and then you can go into the reckless disregard of promise but here i think the judge got it right in context doesn't it just mean something that was glaring or obvious in terms of what employers should have recognized i understand that egregious ness and the subjective factors that sometimes go on the words after alternatively of syria are are they i'll turn of holding that binds us or they dictate you know i don't look at it as a quote unquote alternative home i look at it as a judge basically making a determination based on the ruling and saying by the way based on all the other cases i've seen i'm comfortable that this is the right one ok so in effect it's big right it's there they're given additional reasons but the the holding is the holding where i don't think court says h what constitutes willful blindness the supreme court and global tech laid out two requirements that the defendant subjectively believe or know that there's a high probability that a fact exists and second that the defendant  deliberately avoids learning whether the fact is this is true or not why don't we have exactly that situation here and it willful blindness that rises to the level of that that is willfulness because there's no evidence that there was a reimbursement that and not meant to be something to be used as wages and they say that o'hare says that they always knew that long before the accounts talk about it and yet when they asked people  about whether they should get the perdiem or not they said you just tell us if you don't want it right that's korea accountant could a reasonable juror look at that and say well that's an effort that's that's an effort it willful blindness because no rational employer believes that an employee is going to come forward say yeah don't give me money it's just a way of saying we don't want to know we just don't want to know but there's that it doesn't mean i'm surely they'll say ok we'll give it to his wages they might very well say irrational employee would say if i say no to that money i don't get that money and that this is the way the employer sets it up so it doesn't become wages not i'm putting it to you in those terms not because i believe that that's what the record shows but that it isn't it at least a question that a rational jerk could look at and say well maybe that's willful blindness i think that's a stretch to willful blindness because it basically renders every violation of the effortless a a wonderful monitor potentially it well not everyone just ones where it where an employer says tell you what i'll give you a pretty i'm and you tell me if you don't want it but again you're about whether it's permanent address was a local address that troy had that information its own records in the forms and that that the placing of the burden on the plaintiffs to come forward and ensure compliance w demonstrate could constitute a consent and there's no indication in its opinion that that was because there was no explicit reference to the action or that playing its role in the action so if we can infer from around indicating an intent to pursue the collective allegations of the complaint i wanted to clarify something in the record and i because you make the argument that because  stone only worked for three days there was no overtime that would be part of the march fifteenth paycheck but i had appendix forty six which looks to be the time entry list there is that because there's only three days in the limitations window you can't go back the other two days and add them into that one because of your argument that last paycheck she doesn't have a viable effortlessly claim what's your argument that the omission of that overtime in the march eighth paycheck doesn't need testified it's wages it's not it's not wages it's a reimbursement several times acknowledge that construction had a practice of hiring local boys yes most of their workforce was like ten or it meaning they're skilled workers that go to these pipeline construction work sites but they're not going to bring in people from another state to do an administrative task oriented manual labor task and for that then a practice of hiring local toys and knew that it's in a temporary local address or the local permanent address and so i'm just nothing unreasonable there's no evidence of willfulness in asking employees to to point that out if  in fact or not i think what's wrong with that i think it's very unreasonable to expect a employees specifically an hourly worker making a lower wage to be responsible for pointing out no change of tax treatment that happen perhaps after they change their tax remit but before then the court doesn't need testified in three different places unless they told us otherwise they got the perdiem meaning if they did it for some thirty they never exclude the per diem or they never included the perdiem for any employee in the regular rate so maybe on a case by case basis someone slips through the cracks and poor construction acting reasonably  you know doesn't conduct an in depth investigation into whether this person's address is really their permanent address a case by case basis maybe that's reasonable but in this case they didn't do it for anybody they didn't do it for this case sixty opt in plaintiffs and in the