the court theatre butros for wal mart i'd like to reserve three minutes for a bottle certainly this minimum wage case must be considered against the backdrop of both the purpose of the minimum wage law which is to provide a living wage for  individuals and a wal mart paying the highest wages in the trucking industry and often in excess of one hundred thousand dollars a year and having one of the lowest attrition rates in the industry and the fact that the primary component of the fifty four million six hundred thousand dollars verdict is for the ten hour layover periods where drivers were prohibited from working and in fact were free to engage in rest and sleep leisure activities regular recreational activities where the court got with got it wrong and found that based on the plan the written pay plan alone wal mart controlled the drivers and and that if if the written plan was applied the court held them and paid the gratuitous inconvenience fee the layover needed to be taken in the truck it doesn't say that you have to take the layover in the truck and in fact the testimony of summary judgment from m represent the what is wal mart said there are no restrictions about where and when a driver can stop to take his layover so long as he parks in a safe and legal place drivers may drive outside of their routes in order to find a place where they would feel comfortable for the layover and there and this was his docket number one hundred and ninety point one so the court found it summary judgment though there was control as a matter of law based on the policy and then told the jury that we think as a at a bare minimum that requires reversal and a new trial does that supplemental instruction do this year are the supplemental instruction really didn't help at all in fact it i think it shows that the jury was wondering what what could be worse for a defendant than to have the jury told that the court has already found that and ruled that there this previous from the policy statement wal mart's reiver pay manual subjected drivers to control during the layover periods the supplemental instruction came when the jury asked what that meant literally what control in those lines of the jury instruction meant the court explained what control meant but did not say that this instruction was superseded or that otherwise was in a political so the jury was told mart followed its policies then you must find control and we think that was highly prejudicial challenging two sets of instructions the jury instruction number sixteen which is the one i think you've just been referring to as well as the original one honor and also the instruction that went to the minimum wage claims regarding rest breaks in the inspections the court that there were two instructions one at the beginning and one at the end of the suggested that those were designated as unpaid and that that that if wal mart had followed its policies than those two were uncompensated which just wasn't correct wal mart intended to pay for those breast brakes and inspections and should have been entitled to prove in the driver should have been required to prove that they weren't paid that's the other thing in this case just jumping to the classification issue none of them unnamed plaintiffs prove their case and this was a class action in reverse the for example one of the name plaintiffs testified that he never took rest breaks and he was supposed to be representative of a class of people who weren't paid for rest breaks they t in so we have a situation where the expert testimony was used to create a fictional composite plaintiff that doesn't exist based on average is looking at i think forty forty class members that didn't include the named plaintiffs so we have a situation where no individual claim to prove that they were compensated at less than minimum wage for any single hour no driver proved that they were deprived of their freedom and their ability to do what they wanted on their layover so it really is a class without the headless class as we called it in and that started at the beginning that this is been sort of their get their excellent lawyers but it's been a lawyer driven class when the state was lifted in two thousand and twelve the plaintiffs found that two of the class name plaintiffs had died and one was no longer interested in being the named plaintiff and the plaintiff's lawyers disclose that they no longer felt comfortable having the last person be the class representative so they got some other plaintiffs and then a fad from walmart right  they they sought an order from the district court seeking discovery so that they could find new plaintiffs and as we argue judge seiler that was just beyond the jurisdiction of the district court and i look at it this way if if my friends on the other side were had brought a case for one plaintiff or injury and then that plaintiff decided they didn't want to go forward could they have come into court and say my client doesn't want to go forward will you help can i get discovery to find another injured person and the court would of course say no and the only reason that this was allowed to go forward was because it was a punitive class action at that point but as the supreme court held in the standard fire case which we say the fact that there's a uncertified class doesn't change the rules doesn't change the power of the court so you can counsel may ask you that the original for you mentioned what happened to several of them but wasn't there one remaining who would qualify isn't that enough to retain jurisdiction if there was one remaining your honor who who did not i mean the final i got the exact language the counsel informed our side that they were not going to be able to carry forward with him in the others as class representatives and they disclose we don't have complying class reps to sign individually the alternative dispute resolution form so that he would technically and i know the plaintiffs argue this they hadn't dismissed that person but there wasn't a controversy that that individual wanted to press against wal mart in court so that's why we think th person decided they didn't want to litigate so there wasn't a case or controversy that gave the court the thory to order discovery article three courts don't sit to assist people in finding clients and in the fact that it was a class action does not change that equation so of the four plaintiffs two had passed away one didn't want to press the lawsuit any further knew what about the presence of the th one i know there were some concerns about adequacy of that remaining but that plane that was still there the plaintiffs are still there your honor but at that point i go back to the example the individual case the lawyers had a client who did not want to press the case and they did not want to represent that client so they they needed to find another client this was four years after the original case and so yes technically the person was in the case but in terms of a live case or controversy and we've cited cases from you know where the case from the th circuit other cases where courts say the fact that the persons may still be in the case if they're not willing to come into court and litigate and there was no evidence that that person was there wasn't a case or controversy and yet we've had years of litigation  since then and and i go back to the classification issues that experts testimony is divorced from the individuals who were inserted in the case so even at the end of the case we really didn't have individuals who are representative of a class we had averages created by an expert that contradicted the experiences of the individuals the case was still in court at that point it had been dismissed that mr judge that's true your honor so it was in court but he didn't see the name the last named plaintiff in court you saw the lawyer saying we don't think this person can be representative we need new plaintiffs and they filed that motion and so we think that's a real jurisdictional case but it also a problem that requires everything to be vacated but i'd like to just go back to the layover point on the the issue of the legal question because i think two cases from this court decisions and the recent department of labor opinion are decisive and require judgment as a matter of law the main thrust of the core holding of the district court in the plaintiff's arguments were that because wal mart paid a forty two dollars in convenience fee to drivers who decided to stay in the sleeper berth that was that showed control and that allegedly we don't think this is correct but assume it is they could only get that fee if they stayed in the sleeper berth that meant that they were under california law under control and therefore needed to be competent for the whole ten hour period this court's decision in the nance case applying oregon law which is very similar said that it looked to federal regulations which prohibit drivers from wor mandated by federal laws to give the driver's arrest uncompensated even when the truck was moving what about the elements of the written policy that the district court thought exhibit control the exceptions must be pre approved by management and also that you have to park the truck at certain locations and under certain conditions those are all in the category judgment of the practical limitations that for example in the augustus v a b m case the california supreme court said the fact that there are practical limitations if you in that case it was you you had a ten minute break therefore you weren't able to go anywhere you wanted you were limited by where you were there but then had to eat the meal on the premises and couldn't eat it in certain areas so there was a degree of control that wasn't the sort of control that required compensation because it was voluntary and here back to your st question your honor the plan itself it said a layover journey when taking a mandatory d o t break and is not paid in conjunction with any other type of pay the intent is to pay drivers for layer layovers taken in the tractor cab and then the exceptions say that permission to get paid to lay over and there's no pay required under federal law or california law nobody else pays for these layovers wal mart is giving more pay than is required and yet we have a verdict there is requiring it to pay for ten hours for everyone even if they went water skiing or went to a casino or when that went out and just did things on their own which they did did they have to get permission from wal mart to do this no your honor and in fact the record that was why going back to summary judgment a as i mentioned his declaration said drivers are not required to stay in their trucks throughout the layover in my experience in dealing with drivers almost all of whom do leave their vehicles to eat at a restaurant go for a run pick a shower or use a restroom testimonies this time is their time that's what federal law requires and so under this court's decision in taco bell some the fact that you voluntarily say i'll take the forty two dollars if i stay at home i don't get the forty two dollars that's your choice if you stay at home you can stay at home and that's what the record reflected there were some drivers who testified at trial that they thought they had to stay at in truck but that raises individualized issues that really go to again why there should never have been a class  d on these issues the drivers are doing different things every day highly individualized their testimony shows that and that's why we think judgment as a matter of law should be entered the case should be reserved and at a bare minimum a new trial in the thank you your honor michel ruben may it please the court there was a lot packed in there but let me start with the question the judge siler just asked in response about permission i want to focus on the layovers st i'll get back to the case or controversy the evidence fully supports the properly instructed juries special verdicts yes the manuals do say that advance permission is required and they're phrased in the conditional they say if approved the testimony of witness after witness is st that the drivers needed permission from a manager to sleep anywhere other than their tractor cab there are dozens of witnesses who said that the layovers have to be in a safe secure area richard byers they couldn't conduct personal  you had no place to sleep but inside the cab will be frank them more importantly permission was not always granted to leave the cab you could ask but st you had to be in a safe secure location and as james easterling said if you're hauling like a load of computers or a load of tv's or something like that they're going to say no you have to go somewhere else and stay and then you have to stay with the truck it depends on what you have in the truck how full that is and where it is whether you're given permission or not so this is not automatic this is not like taco bell where each employee decides for himself or herself whether take a discounted meal you must stay with the truck unless given permission to leave and that permission may be denied and if you don't get permission then you may be in the situation of for example will be franklin who was fired wal mart conducts truck checks many witnesses testified about that they have operations managers and safety managers who come by during layovers to see where the truck is parked and whether the driver is inside of the cab dick posting was fired for being home without permission david jennings three hundred and sixty one richard byers three hundred and seventeen same thing wal mart did in fact discipline people for not being sleeping in the truck for the full time without having asked permission this was for wal mart's have some witnesses who said they could just do anything they want to do that as counsel was stated here they had some and and judge  said that that was quote equivocal testimony at best but even so if the witness i'm sorry if the jury was properly instructed there is ample evidence certainly more than substantial evidence  so getting back to judge a scanlan's question was the jury properly instructed the answer to that is the supplemental instruction on the layovers because they don't know what it what about jury instruction number sixteen line twelve the court has previously found that the policy stated in the pe manual subjected drivers to wal mart's control during layover yes it is i understand that's what councils concern is that judgment but even if that were error and it isn't what is a jury question no no the judge repeatedly emphasized the distinction between what is stated in the manual and what happens in actual practice and the judge said all i've decided is what happened what the manual states and it's up to the jury to decide what happened in actual practice and this is what the supplemental instruction says and critically after giving the supplemental instruction wal mart except that it wal mart not only didn't object to the supplemental instruction but it affirmatively said what you just proposed is a fair compromise we can live with that that's  and ninety six so what you say when the jury asked just can on focusing specifically on the language you identified what is quote the jury instruction has it in quotes the transcript doesn't walmart control mean in lines twelve to thirteen the judge said to determine this is the instruction to determine if a driver was subject to wal mart's control during the layover which was the principal issue at trial which all the witnesses were talking about you must determine whether the driver was able to use that time affectively for his or her own purposes she then gave the two examples the st one from mendiola and bono which said that when an employer directs commands or restrains an employee from leaving the workplace and that's exactly this case because you have to stay with the cab during the ten hour layover then that can be control and then she quoted from the meridian versus royal packing the california supreme court case when the agricultural workers have to take the bus even if they can read on that bus and perform other personal activities if the location is restricted if you are not permitted to move where ever you might like to move and the testimony of witness after witness said for wal mart's benefit to protect security guards do the contents of the truck and to save fuel for wal mart's benefit so you can't turn around and go home without permission which wastes fuel you have to stay with the truck unless a manager concludes that the truck is sufficiently empty or the goods have certain values and you are parked at a wal mart distribution center that has ample security otherwise you're not going to be given permission and you risk being fired a dick post and leave franklin work now the the cases are talked about taco bell briefly there the evidence was undisputed on summary judgment that each employee could engage in personal activities even sleeping showering eating reading watching television and browsing the internet they could also leave the premises on request if there is relief available that's very similar to this case and that is one of the cases that in the supplemental instruction judge wilson instructed the juries about simile in really the instructions were faithful to the district court's decision on partial summary judgment so let's go back to that decision on summary judgment because i think that that ruling then drove the way a the instruction the original struction was formulated with regard to the layover issue they were in the jury had a question about that then the supplemental instructions were issued on the written policy that the district court err by essential taking the legs out of wal mart's case by not allowing them to argue whether the written policy was susceptible to a different interpretation though the house also sensually arguing that look you don't get paid during these mandatory breaks unless you take it in the cab so all of these things getting permission and error in partial summary judgment is necessarily harmless in light of the evidence presented to the jury as just marvelous in the sense that it drove the jury instruction right that that the written policy asked written if applied as written a sensually when plaintiff's counsel objected to the giving of a supplemental instruction said no i'm going to give it because the jury has listened to weeks of testimony about control during layovers and it's their decision the manual on its face does in fact say only after receiving approval from member the transportation management is it permissible to take your layover break at home if for prove you must safely and legally park in a secure location and the intent is to pay drivers for layovers taken in the tractor cab and the exceptions must be approved prior to the layover the following  unacceptable and may lead to immediate termination on offer as break at home that if applied by its terms is control under of the under the california cases that i cited so she was right on partial summary judgment but even if she weren't my point is it makes no difference because the jury was properly instructed must be presumed to have followed the instructions of the court as to case or controversy if i may move on to that point there but they were trying to say the lawsuit any longer right no that's not true donald bryan the evidence shows he lost interest but he never withdrew these and he still is in the case he no longer is a class representative there is a distinction between a class representative and a member of the class and for a case or controversy you have to have a plaintiff who has a valid claim or is asserting a claim but  and thirty two that's a declaration from counsel that's a declaration from counsel about what he heard a transcription of a voicemail which simply said and i'm quoting from the declaration carol hampton is interested in backing out as a class representative it doesn't say he has no claim he is not pursuing a claim mr hampton is interested in backing out that's that's projecting ahead to the future so as long as any plaintiff continued to have a claim there was a case or controversy i want to move to the cross appeal if i may have a quick question what about the question adequacy two years before the classification motion was even filed what plaintiff's counsel said is in the voice mail which i don't think is even admissible evidence but the voice mail said that in the future he is he may not the acceptance of mr parrish's declaration which plaintiffs objected to said they had no opportunity to cross examination to cross examine and besides lacked foundation was hearsay because that was the only evidence of subjective good faith and he repeatedly says in paragraphs four hundred and seventy eight and twelve what wal mart understood or intended without any basis for that and then even more important the five factors that judge will stand identified did not pertain to the specific violations they talked about as mr boutros did the policy over all the low attrition the high compensation but what one thousand one hundred and ninety four dollars b specifically says is that you get liquidated damages unless the employer can prove that the particularly act or omission giving rise to the minimum wage violation was and subject of good faith and to the employee had reasonable grounds for believing the act or omission so at a minimum we need to remain and so on the liquidated damages issue because judge alston in addition to relying on a declaration that lack foundation and was not subject to cross examination was abruptly objected to stated as for reasons five factors including citing testimony that she had previously struck herself without realizing she had done that five factors that did not tie to the particular layover pre and post expection and rest break violations there were at issue and that was definitely reversible error that authorizes at least but add another minute on the clock thank you no your honor let me go back to the instruction it cannot be overstated how prejudicial that instruction was the jury was told that the court found that the policies controlled and if there was control walmart was trial i'll give you an example here's a play the plaintiff's closing argument the judge in another instruction on the layover instruction has already ruled that the pe policy that the pe manual subject the drivers to the control of wal mart during their ten hour layover then in rebuttal after we made our arguments mr artinian said he asked you to decide whether the drivers were subject to walmart's control during a layover periods you don't get to decide that the judge during instruction the court has found the pay policy is written subject wal mart drivers to control during layover periods but the sentimental instruction came after that it did your honor and it didn't say it didn't say this is a correction earlier in the cases we point out the court did correct an instruction and said this is a superseding instruction so the jury said literally pointing to the lines in the instruction of the judge said the court has found control the jury said please tell us what control means you know you want the jury divan that wal mart did not have control even though the handbook stated we wanted to be able to once while we don't think that the handbook did say that and in fact the judge got it wrong in summary judgment there was a declaration explaining the drivers were free to take their break anywhere they wanted how can you decide a summary judgment that the policy actually says there's control it but that and that but isn't that here then by the supplemental which says you get to decide whether the driver was able to use that time effectively for his own purposes well i think that the court was just the court didn't tell the jury ignore what i told you before but the court was defining control is the jury asked for it bare minimum was completely confusing in the record your honour's threw out the trial plaintiffs were objecting when wal mart would try to put on evidence of what the practice was they would have jacked in talk about the prior rulings and so it was just a mess and it was highly prejudicial in the jury by asking that question was confused this court's cases say that if they are going to correct an instruction there it needs to be the jury needs to be told the other instruction was incorrect this is now you instruction here the court just said you asked what control meant here's what it meant it all right as a court to do that we did not the jury asked the question and then wal mart did say that's a fair compromise if you're going to define control but it did not instruct that the prior instruction had somehow been remedied and i know the court gave me a little more time on this question that we've actually taken you over time but i have a question further for the record page to thirty eight this was the evidence we put before the district judge as to what the plaintiffs told us about the the plaintiffs so it was a voice mail from counsel that said that one plaintiff was interest not interested in backing out his class rap were knocking me able to carry forward them as class representatives so it's in it's in this record it was before the district court and so that's just inaccurate and page sixteen of their brief they sorry  forty two in saying it is true that two point us died one inform plaintiffs counsel that he had lost interest in continuing his class rep in the th was the subject of some concerns by plaintiff's counsel about whether to continue so it's in the record the district court said that the problem was that they did not have class representatives but because of the unusual circumstances the court could use the article three machinery to help them recruit new clients and we respectfully submit that's not appropriate in the