between the twenty three true class action for this purpose as well as a collective action or principals you're arguing as far as you're concerned equally applicable once a class a certified everyone is included sure but so but let me just say where i think we are in this case anyway is analogous to where we might be in a regular rule twenty three dollars case if a person proposes a class action and the district court decides to deny class certification at which point the law's pretty clear you just go back to the individual plaintiffs case you know sometimes those are economical to pursue sometimes they are but they but there is an individual so i understood your argument to be you know here this case begins with the language individually and on behalf of the group but miss miss fails to file her own intent to sue so the collective action is dead because of this procedural problem an affirmative consent to join the action that she is barred from pursuing her individual action right c but that may confuse the prerequisites for an individual action and the prerequisites for a collective action she certainly failed to create a come to be part of the collective action but i understand you to be arguing that doesn't mean just individual part of her case was gone that is correct your honor as this court is found is just that this and anything else in the record i know you say in your complaint and the initial allegations are individually and collectively but other than the complaint is there anything else before august of two thousand and sixteen that would during her deposition where she was asked if she understood that she was suing as an individual in an individual capacity and also as the class representative well that's when she herself said yes i understand that i'm that this is a little bit of a heads you win tails they lose argument because if the case law provides that for this consent mechanism of the statute does and she does not consent and then the operative complaint itself is termed the collective action and the headings presumably drafted by your firm so much your firm include collective action allegations as a headed as well as  national collective action pursuant to the f l a say he is it just the case that however the complaint is drafted the individual can go forward or is your argument the use of that phrase individually and on behalf of is enough because there's got to be some distinctions that that the draw the law is going to drop between an individual being able to pursue it individually than being a vehicle for a collective action the courts are unsettled as judge ma found that the that he could proceed as an individual in our case as far as the collective action heading goes in the caption that it was required by local rule in the district of in the southern district of own action and pay his own but had by those other individuals actually filed consents i'm not saying that they can't proceed individually at that point but had they already filed consents there so the senate foreign relations wouldn't  run as far as the main point is i cannot say your honor those of that case that i was talking about because part of i don't cerned with the consent or the reasoning behind the consent is they want to make sure that lawyers aren't just coming in on behalf of a bunch of people without the individuals actually agreeing to proceed and is there some difference here because this isn't just an individual plaintiff who's represented by one lawyer that you could be pleasantly say his person has agreed to the lawyer representing her eat both in an individual in a collective capacity whereas yes multiple plaintiffs that might be different says that sets don't have to follow any particular form that day if there are that a wide range of documents that have been accepted as consensus is there anything in the record that we could construe as a consent that was filed before collective action that it was a purported collection act like an action which made me wonder whether the rule of american hype applies here the statute of limitations is told until the collective action rejected so that was one thing i wondered about and another thing i wondered about his wife why you're reading out the fact that she says she's suing individually she says so in the complaint she says so at the  deposition your clients appear to have thought that all along frankly this case can't be worth all that much as an individual action if it's just an overtime f l a say for one person who worked for two years but be that as it may  i think that's plenty to show the individual action and i don't see why you file a consent to file an individual action your honor i think the complaint here makes makes it clear that this is a national and there is no doubt it's what i'm saying is if you look at the complaint the st line you hit is individually and on behalf of so we're just supposed to throw that away rule for the reason i asked the class action questions the usual rule for class actions and deeds far as i know the invariable rule for class actions is that when a court chooses not to certify a class then the individual plaintiff continues as an individual person or sometimes courts will look at the individual plaintiffs claim and dismiss it on twelve b six grounds without even reaching certification so courts clearly see that that individual plaintive who has to have her own standing and her own interests to pursue the suit wouldn't be an adequate class represented about that is they're both individually and on behalf of the class you're i respectfully i think the distinction might have been in the st question you asked mr smith is are you trying to make a distinction between rule twenty three classes versus of course a collective actions i think we are here well if you will note that there is there is no move for and in behalf of himself or themselves and other employees so it can be by one employee on behalf of himself and that's the language of the statute so i don't see anything in two steen be that's inconsistent with saying that the individual action is there regardless of the fate of the collective action respectfully your honor i think i think two hundred and fifty six needs to be deposition exchange where you guys say are you do you realize you're proceeding individually and she says yes and then they say and you realize you're also proceeding so it's sounds like at least on these facts we have dual characterized as those points which are similarly situated there's no set aside for a retaliation claim or an individual claim that applies soley to miss ness instead of the claims isn't that a pleading matter for you later on if the scope of the complaint that she's presented doesn't include certain things then you will appropriately raise that just as you would in any case brought against a client by an and alleges to be participating as a class in a in a class action or collective action has just met this done here the written consent requirement is required and getting to the judge say needs questions there is no written consent that has been filed in consenting to be a part of this collective action mr perfect i want to make sure i understand the scope of your argument are you saying that let's assume the complaint sufficiently alleged an individual action under two sixteen the for overtime are you saying that it doesn't matter as long as you're pursuing something under two hundred and sixteen b that you have to file a written consent no your honor what i'm saying is to the extent you are alleging a collective action and in this case that's what mr smith has done she she had a choice but if it is true well what if and i understand you don't read the complaint that way but what if it's what if she had a really read the complaint that she has sufficiently alleged both an individual and a f l s a class action or collective action which is your going which you have to file a joint complaint that she has alleged both an individual and a dual capacity claim so she is proceeding as a collective act and action and she is proceeding individually is it your position that she would still have to have had to of filed a written consent in order to proceed on that individual action respectfully your honor i don't know that's the issue before us at least from our perspective but no i don't believe that she was filing individual claims so for example if she had put a retaliation claim on top of the glut the matching plan she would not have had to file a written consent but that's not a retaliation individual claim for overtime which she can rial an individual claim for overtime under two hundred and sixteen dollars be so not separate claims but i'm trying to to figure out if you're saying that you file a complaint seeking an effortless a representative action claim that you always have to file a written consent in order to be able to proceed individually is that we're just saying yes your honor especially to the extent that your claim is it is part and parcel of the collective so in this case if your minimum wage claims or your overtime claims are based on a common policy and you are pursuing your individual claims in like manner based on based on that violation of a common policy you're required to file a written consent in order to participate in that claim which would be part of the court that if it that's only if it's collective it's certainly quite possible to pay somebody an individualized amount of money that they're due for failure to get overtime wages so and i might note just for the record that in these situations where there are many similar situated people that the normal rules of issue preclusion don't i don't actually apply because it would be inequitable either turns on whether or not the employer was provided notice two hundred and fifty six dollars applies only to collective actions not to individual actions and as far as the