fourteen six zero six three edward monro on behalf of themselves and all other similary similarly situated employees for says f t s us a l l c arguments not to exceed fifteen minutes per side mr similarly situated at some very high level of generality is still remains the case that the judgment should be reversed because the blink there's never a stablish that the witnesses or trial were actually representative and because the question of damages was never submitted to the jury either as to the individuals or most importantly as to the up in members of the collective but now let me start with the sixteen question of similarly situated deplaned to begin by positing that there is a uniform corporate policy that tell tale of which the tell tale sign a which is apparently that the company wishes to have its expenditures exceed its costs which would make it fairly unusual in business practice  but generally you know the policy as stated is a time shaving policy that is that amounts to little more than the statement that the company has he planned to buy only the overtime provisions of the f l a say when you get into the specifics of many different supervisors who when ordered deposed and testified justified to many different experiences some of them said that they completed their time she's correctly but but at the time she's were for lunch time and i wanted this of work to me and i know it's you know let's say you're right and you get to do it the way you want and you know and i realize it's hard to ignore be forced to concede anything but it seems like the kind of case that one could bring is a collective action in some shape or form will put the damages issues to the side how that would work mean is this simply a matter of subclasses is that the way it worked and if that's true whose fault is it that we didn't have subclasses is you have to wear you know protective gear to slaughter the pigs or you know things of that nature and that is compensable but the policies to say pay you only for five or six minutes and the claim is that it takes twelve or fifteen now you can see that there is a corporate policy that actually unifies everybody and they may be other differences and other issues with the case here you know the the problem is that the policy stated as such a high level of generality that even with the addition of subclasses it will become fairly unmanageable for your position is that each one of these people would have to have brought their own action well absent proof of true representative knows which is the second question really you've stated it i think well in the sense of you call it too high a level of generality but isn't the practical question here in essence an adequate level of generality in what is a regulatory enforcement you can see that this is not the same as class action in the general civil context we do though i think so then you  back to the question of of give us some guidance on what you would say is representative anough you didn't want to be pushed to saying that every one of them has to bring it differently but where is the guidance on what's representative enough in or my answer to integrate them by by pointing out that the the allegations and you know the claims and the legal theories in this case are virtually identical to those of the in the o'brien case with a but c but i don't think for the proposition that was controlling in that case i was actually going to point out that the issue on which this circuit and judge posner do agree is that the problem they he was identifying really sounds e you don't actually need to reach that if you credit the dictum in o'brian which incidentally was not essential to the decision but if you credit that as having been fairly stated it's still the case that both  your would require what amounts to commonality and typicality in order to conclude that the population is similarly situated let's not forget that in this case like an all class actions the caption of the case is plaintiff and other similarly look at what judge crabb did in the spring she gave the district court she did try to make it work with some plastics and ultimately the sort of five you know the case when she concluded that the experiences were too varied and the she had not been given a good trial plan that would allow it to work and so while i do not exclude the possibility that there may be cases including cases similar to this in which subsidises would be a management tool i do think that the  representation representational case how the burden of identifying what those would be and how a trial plan could be executed that would really honor representational proof and you raise the price and foods which is a question i'm going to have for both of you i mean i thought of tyson foods as mainly about damages but i guess it really has a liability component to it as well and i guess my question for both of you is do you have a preference as to whether we march ahead arguing is arguing for is a predominant reading in that is read into into sections to sixteen i want to say that it it should have no bearing on the basis of our the issue here is where that you can identify a practice that is stated at some meaningful level of specificity and we do have published cases you know we have to set the case in the ninth circuit with a garment workers all uniformly covered by the n f l s said collective action but it feels to me that your argument is there cannot be a category of cases in which there is a dispute on whether overtime was paid properly a whole category of employees ease your position that it has to be something such as darning and often that we all are just fine other hand many minutes as a comes to  plan which is a wage here to prevent or or or or suppress the failure or statement of over time worse not i think however that if you're going to have a discovery on those and then we jointly select a category or a group whose to present representational testimony at trial why did you not already agree to representational testimony in this case testimony because we haven't had the discovery i will point out that our all times what we had the question of certification the certificate and the preclusion of represented the testimony in front of judge donald at no time did she rely or on a theory a waiver and in fact when she alternately so ordered the trial plan that was submitted by the plaintiffs in twenty eleven i believe it was in april twenty seventh her so ordered trial court to ask her to enforce the stipulation if it meant what they now claim it meant and you are do either of my colleagues have additional questions let me let me ask one final question i recognize i think the point you just made resonates with me that you're not bound to it but in a practical sense other than making the argument for complete decertification did you make at trial or otherwise what you might say practical arguments about on representativeness for example did you say we've got we chose ten technicians and none of them or anything like what you did or that judge sutton asked about subclasses in the sense of what the district judge had before her did you make these kind of practical arguments that as to why they would not in fact be representative based on facts yes we did where would i look for them we file a motion to decide to fight the class and in addition a motion to preclude the use of the representative that's ok if that's what it's for then i can find that and finally sort of trying to work with the confines that the trial court had given us at the charging conference we proposed the jury verdict form that asked for express finding to the question of representative ness of the trial witnesses and for it please the court counsel adam hanson on behalf of the a pelleas the district court did not abuse its discretion in this case in sort of find the clique cases a collective action under two sixteen b in managing the trial or in awarding damages and this is really an exceptional case in an outlier in three important ways that really drive the resolution of this appeal the first is the volume of common evidence in this case that's frankly rare to see in fair labor standards  cases showing that you have a unified defacto policy of shaving under reporting time by this company no for what it's worth i saw a unified motive i did not see a unified implementation of that motive and it seemed to me even at discovery it was apparent that there were different ways we'll accept the motive but even in discovery it seemed there were different ways of implementing this so called company y policy there are certainly differences and i will i is who's representing whom i mean there's a lot of question begging going on i don't know why after representative discovery given your theory of representativeness f t s could not file for summary judgment not to decertify but to say we want as a matter of law we're going to put forward mr smith who was told to report every hour and he was told to over report he's the representative we went as a matter of law i'm pretty sure i know your answer to that would have been he doesn't represent everybody else right i think the answer that would have been mr smith doesn't exist because there was no one that was told to report every hour you not in this record i mean if the f t s was given opportunity to present a defense trial they called for executives what they didn't call is a single employee who said i was paid for all my time was it what i asked a question about after discovery was there not a one of the fifty that said i was told to report every hour there was not one of the fifty that testified that had he reported all of his hours there there was testimony among the fifty i don't know what they were not what they did what they were told to do that's my that's my question is what they were told to do there was conflicting testimony on that point but if you there's a great deal of consistency across the board conflicting in the sense there were some plaintiffs that heard different messages from different supervisors that's what you mean by conflicting there's can conflict as to the means but that's really yet i mean a supervisor can say can state the policy in so many words i mean there's testimony for example that we cited where the supervisor said either you subtract the time or all do it for you i mean the difference between a case where you've got a common planned to under report time and one where you don't is because if you're talking about this really is a company that has a lawful policy and maybe there's an occasional deviation from that lawful policy that would support a finding similarly situated under two sixteen b but the motive does matter here because if if the company says look you don't report your morning hours today you don't report your evening hours today those those employees can participate in a single collective action together because all that matters is the underreporting is occurring and the company is requiring it you don't think the different means is exactly what you need for simply situated i would have thought the different means suggest they're not simply situated and respectfully disagree i mean it's the means can matter in the right case but what's important in this case is looking at the total mix of proof you've got the president the company going around to different sites instructing technicians on a report over time that's in the record you've got  you've got to print the president and c e o of the company instructing managers to instruct the technicians to under report over time you've got people complaining about this this is the administrator who testified in plaintiff's case and she for testified she got wage an hour complaints every day and nothing was ever done about it so you've got this this common means of of underreporting time and it's not it's not as if the policy is you say the seventh circuit the seventh circuit standard that was why there's also the the the the abuse of discretion standard in the seventh circuit after s when she has gone on to affirm a certification in cases that are quite similar to this one you know you have to look at but she does listing reasons in support of the district court's exercise in discretion to decertify you're saying the seventh circuit cannot even follow that case i was just saying i'm saying the seventh circuit under the abuse of discretion standard recognizes that there is a pocket of discretion that the district court has you might have cases where what looks like the same case one district judge would certify one would decertify and they'd both be right for that certainly reasonable and especially given what happened in aspen she judged because you've got what appears to be a judge who's willing to certify the case of the district court level and has been she says ok plaintiff's lawyers you know give us subclasses come back with a trial plan based around these parameters in a court of the judge posner the plaintiffs rather truc it's really against this backdrop of a common evidence that you have to evaluate the differences in this case it's not as if you've got a company that says we don't want people to take lunch they just want people to perform their work on time with  within the time frames that the cable companies set forth so where you've got this common policy of just saying look get the work done don't report all the hours that's where the means of underreporting it really is you know  it's insufficient to defeat the similarly situated standard to print on the other side about tyson's food so what's your preference is your preference we decide today or wait for the court's decision in that case i think same answer has to plow ahead with you know there's always the possibility that tyson could have some bearing on this case but there's a standing issue that's not raised here in a that could be just enough procedural factual dissimilarities that it makes sense to it makes sense to proceed and we'll see what the supreme court does i want to move on to discuss the trial plan in this case the trial plan that was employed in this case was not a novel invention this is the same trial plan that the district court used in the ma clemens decision and it was the same trial plan that the supreme court ultimately blessed in of course how the supreme court allocated the birds in that case some of clemens had three hundred plaintiffs very similar to this case eight of those plaintiffs testified and what the just recorded among clemens should look very familiar based on the record in this case the district court took the testimony of those a point of us which ranged from thirty seconds of walking time to eight minutes of walking time ok that's a variance of sixteen hundred percent and the district court said i'm going to apply the average of that amounts to each to we're not going to accept that that's too speculative and then the supreme court of course with that trial plan in mind said that's not fair the employer has the obligation to maintain records and when the employer fails in that obligation the employees and the supreme court use the use the singular it's that was more common back then but an employer or the employees are allowed to prove the amount an extent of the unpaid time by just a reasonable inference and then only then when that when the burden then shifts back to the defendant the defendant can then come in with now having the burden of production and disprove the reasonableness of that interpretation or offer specific evidence that employee a john smith  employed b john doe in fact didn't work the amount on unpaid time absent that the supreme court said the district court should make an approximation of damages and that's exactly what the district court did in that case with three hundred people and th area which it seems like the certification the damages issues over overlap a little bit because you have a common motive in that case and common means and isn't that isn't it fair to say now clemens i mean you've acknowledged in this case they weren't common means there was a common motive but when you say now clemens you had a common motive and a common means of implementing that motive i think that's right but i don't think the distinction matters in you know with respect to this means question and i think another place loaded you agree if i'm right that it's a problem it's a problem for certification and damages i don't think it's a problem for certification in damages i mean you could be making a point if it's a problem for one it's a problem for both that's all i'm saying i think they are going to related i would i would agree to that to that point i would also look at it you know the seminal case for certification is this court's decision in o'brian and i mean that what the certification case the district court for this this court in o'brian specifically held went out of its way to disapprove of what the district court did say this decertification order was wrong now the o'brien had some other holdings but rule sixty eight and as a result of those holdings there was no reason there are really no plaintiffs left as a result of those alternate holdings but you know as to that common means question this is what i want to get at judge sutton is you know brian i think it's fair to say that the court described to come in means the court described off the clock work and then the the court described the editing of time punches so in that case i mean you could make an analogy to this case you've got this off the clock work and that and that's the way that o'brien described it and the and the brian court went out of its way to say this should have been certified that the similarly situated standard is lower than twenty jointer that it's lower than the predominant standard and a rule twenty three in the should have been certified so i think that answers the question about means it certainly can't be that that you really got one hundred different policies but if you're looking at one policy some variation in the manner in which that implemented simply because the company wanted to save money that gets you there that gets you there i also want to address the point of this agreement we were speaking about mount clemens the the trial plan the amount clemens court employed and the burden shifting framework which is the same the same problem with the court adopted here but there's an additional reason to affirm the trial plan that the court had here and that's the parties very early in this litigation struck what i would call a grand bargain with respect to the course of this litigation were at the very end of discovery defendant had taken very much discovery they want to discovery on these three hundred opt in and the plaintiffs objected to that and we were able to resolve that discovery dispute without court intervention but the deal that was struck was you will get discovery wide open discovery on these fifty people or we choose forty and you choose ten but but we will go to the district court and propose a plan for representative proof based on these fifty so i mean i mean if you're not listening to them but the response to that is you can't know until after discovery whether people are similarly situated or whether this works as a representative i mean that's right i just have no idea what you mean by of the agreement there grima doesn't preclude their motion for decertification that the agreement really says look we'll discover in these fifty you bring your motion for decertification if the plaintiffs prevail on that motion for decertification this is the trial that we're going forward with these fifty so it doesn't preclude them for bringing that motion for decertification but what it does preclude is a complaint about the structure of this trial based on the way we focus refocus though then on the motion for decertification which are saying that's where they should have fought it what's your view of what the discovery showed that is is it simply the same thing we've talked about that they say well sometimes they said do it this way sometimes they said do it that way or did they discover some of the people that didn't have any problem at all that is if i were on their side i would pick the ten people that you think we're the most honest well there are time and then hope on them about what in fact happened in your view what discovery showed is a tremendous pattern of underpaying over time and the fence was able through the cross examination to show i think that there were that splits were similarly situated although not identically situated you could certainly find somebody and say you know november fourth two thousand and nine you took a lunch didn't you yes i said you know i really took a lunch but on that day i did on this day you you were sick you came in late so you right time yes i did you know that happens once in a while but the great bulk of the evidence the great mass of the evidence the pattern from which one would deviate was this on lawful policy and this goes really to the last point but what makes this case unique is that you know under the supreme court's or t v jordan once we have a trial the trial record supplants the summary judgment record and f t s was free and did bring a motion to decertify after trial based on that best evidence under the federal rules of evidence and under mount clemens f t s had all the opportunity in the world to call technicians let's start with a group of fifty if there was anybody in that group of fifty who didn't work any overtime  or you know could take the stand and say i was told to report all my hours and that's what i did they could have presented that they didn't that's because that person doesn't exist there was nothing in the district court's orders that preclude them from calling non plaintiffs simply a regular employee case i think you can see consider both but the what's the point what's the point you're making and i'm missing the point you're making about the meaning is that the trial provides a mechanism to continue to answer the question yeah i thought that your answer was the you can consider both that's right you don't just go back and retry the s j motion one of the trial is a provides a mechanism for course based on the discovery that it was had also that try yes the trial evidence can supplement the discovery evidence that's the point you're making ok making is to the extent there was anyone that could have been presented at trial to substantiate that point that i was paid for all my hours there's no one off that's the thing i'm struggling with i mean if they already had deposition testimony that makes those points it seems to me they did it makes no difference that they didn't put that person on a trial when it comes to decertification that's the point i'm making and i want to make sure i'm not missing something though i think that's right but that are still an obligation to mount a defense and last point i'll make is that you know the supreme court in this court has said that the failure to put question on the calculation of damages go one point five multiplier versus the from all to acquire you briefly explain why there is not a problem with record over time yes so that there's a legal issue here about whether the one point five or the point five multipliers should apply the judge donald ruled it should be the one point five i think everyone agrees that when an employer is paying a piece for at work or on a prospect of basis that the governing regulations allow for the total paid to count is the one of the one point five whereby the point five can be added but it's our position that this regulation does does not speak to the situation here where you have off the clock work in that situation the employee is essentially working for free and especially in light of the of the trial testimony in this case which says that the the amount of the straight time that was paid see if our math is on the same page as i understand it if you pay piecework and let's say they do enough pieces to get five hundred dollars for the week if they actually work forty hours you'd call it twelve fifty an hour if they actually work fifty hours that's still ok you would just call it ten dollars an hour of straight time and so forth that's right we ok so far  once you went to the trial and you got these averages as to how much unrecorded time they worked why wouldn't you do it exactly that way you would say ok you clocked forty hours and you were cheated turns out you really work fifty so we call it ten dollars an hour and we had half time to that and that was what i thought the court did he should have done here  there something wrong with my methodology there is in the context of this case which is trying to reiterate the point to me to judge strands to hopefully make it a little clearer but d under the regulation there is this presumption that if some of the employees paid properly for all his time that the straight time covers all the hours but here they were there was a witness for f t s that testified that this pay the straight time pay was strictly for the recorded hours in other words the  correct me here if i'm wrong i thought your proof was and that's what it was calculated on on average these guys worked you know ten hours or seven hours or whatever the number is so once you have that number you should just add that to the you you would knock down the straight time proof same thing i just said right if you take exactly the case i gave you five hundred dollars of piece w they really work fifty hours so there are straight times should be ten dollars an hour and you give them half again for their ten dollars of extra time i think over time we're in agreement that you can do that on a prospective basis but once you cross the bridge in the employer issues the paycheck and says here is your pay for these thirty recorded hours let's use a better example thirty five recorded hours and there's no there's no pay at that point for them for the ten unrecorded hours at that point him but on a piece work basis they don't get any pay for quote the unrecorded hours they get the same paycheck it's just what's the right number to calculate the overtime on that's right up to forty and then up to forty so again am i right that if this was a fight between working thirty and working thirty five there'd be no damage ok i think we've got the mr hanson started by putting the volume of common evidence but he did not really cite any other than a dental plan to violate the law i think is useful to talk about some of the actual trial witnesses because they have helped to drive the point home we can people who testified from that office justify to the contrary tellingly in the course of his employment mr munroe became a supervisor and then the general manager of the memphis office which would make him the tool by by by which our alleged corporate policy was actually being executed now how on earth can somebody like that be a representative of the people who claim to have suffered from this practice and how is it that while he testified that he did everything right level thing through very different and opposite means it is logically impossible to extrapolate from these witnesses who their representative of with respect to the absent collective class now i will say that you know where the court gave it to reason for affirming and it was the defeat of liability which were to were not shared by the by the by the absent members and that's clearly true here and if any  i don't think that there is any basis in the regulations for this prospective retrospective sort of distinction that the council is making i want to emphasize however that the case went to the jury on a question in which the plaintiffs bear the burden of proof without any evidence whatsoever of damages we objected the evidence was the testimony of the technicians as to what the average claimed hours were those go from eight hours to twenty four hours it is impossible to know which of them is typical of anybody else and there is no support for the average of averages but keep in mind that if all of that were right then you know the jury heard literally no evidence on what the time work was in so in a piece work system in order to compute damages you would not have any damages as judge bach to point that out until you hit forty hours and therefore if the jury was never asked to find out what the actual time warp was on weeks you would not be able to calculate what the rate that applied to the damages is so you're saying the eight to twenty four was the testimony as to the amount of unrecorded time which there were specific findings as to the argue that if they say there were eight hours unrecorded that doesn't matter if they were regularly working thirty hours so here's some evidence that they were only working but i think that point was argued to the jury the problem is th degree was only asked to answer the question in grows with the plane that was opened down war over time and the point that i was making is that if you accept it when you say and i won't hold you to the word it wasn't intended did they work overtime that implies you started with forty hours no i think what they what they actually were asked to say and this is question three in the in the verdict form and i am grateful for the correction is how many unreported hours aborted owing t the point is just my final point is damages are an element of the plaintiff's claim if there is zero evidence before of the jury and because allision of damages was performed after wards even if everything else i said today was wrong that would still require  i'm going to disconnect from the courtroom and i will dial up in the reading room and i'll take just a few minutes