before we turn to the main calendar today we have two motions that are set for argument in addition to those that are that we're taking on submission the first of these is goldman sachs for says christina ostrich petition it raises important and recurring issues a class action law in the employment context in this circuit that this court's guidance is needed on these issues we believe are likely to evade this court review the first issue which the second circuit has never addressed why is it likely to evade or review well because first of all there's going to be pressure to settle that's been recognized and other twenty three have petitions sec it but the the rule as i've always understood it is a death no rule is this a case where goldman sachs is just going to be brought to its knees by how many plaintiffs are there here more than two thousand two thousand that the amount of money at stake is going to push you that you'll have to settle this case and will go away well your honor to have a c case rejected the death knell notion but more importantly if we actually go to trial in this case we would have literally hundreds of trials that would go on for years and so the issue that really the court needs to address which it has never addressed in fact the courts never taken a twenty three f employment class action case is what does it mean to be a common mode of exercising discretion keywords in the wal mart case that have been reflected in lower court decisions  hundreds of cases but never by this court in the lower court's decision the court relied upon a case from the seventh circuit or a case from the fourth circuit but not a case from this circuit in certifying what we believe to be an unprecedented class of more than two thousand professional who are and north of hundreds of thousands of dollars some of the millions across many businesses at goldman sachs now the second reason why the court should grant certification we believe here is that the district court committed clear what judge francis held correctly we believe was that there were countless individual factors that would affect how this would all be played out at the end and judge torres seemed to think that under the black letter title seven law all you would have the only the only thing that a defendant could do was to show that there was a business as a for the challenge practices in the challenge practices here are three sixty reviews which folks have said are really good practices which should be encouraged another reason for this court to hear the case but under black letter title seven laws recollected in the statute in wal mart itself in the chain case from this court the defendant once there is let's assume you get passed and the court finds that there has been a pattern there's a there's a business process has an adverse effect on women there is no question as judge francis correctly held that goldman sachs would have the right to litigate on a case is recognized as a reason for granting twenty three f review and they have a c case and in other cases but that's always the case right well then you would never have twenty three f review if it's to me tomorrow developed the death knell standard and have s he may have loosened it but still there's been no ruling by the second circuit on any twenty on a twenty three up petition class the there's been no decision by the second circuit interpreted in wal mart in the context of a class action such as this not one case but in addition as i pointed out earlier clearly the magistrate francis's decision was correct and that the lower court misapplied the teamsters burden shifting process and basically held that we did not have the right to challenge on a class member by class member basis why the employment decisions were made and that's clearly wrong under black letter law and that reason in of itself as a reason for this quote was one to come up actually at the damages phase we were really talking about a liability phase right now where you're looking at statistical evidence which really only has meaning in the context of the whole workforce respectfully know as judge francis made clear that's a liability issue causation is a liability issue so if the question is for example in a particular employee's case how was the three sixty review applied did that employee was that the basis for the decision to goldman sachs for example these are hundreds of business units and was there a budget in one business universes nothern that's where the employee got the compensation that the employee received those are issues under black letter title seven law that goldman sachs can litigate at the liability stage and so we're literally looking right now at hundreds of jury trials because this is a damages case under b three and they're seeking compensatory it please the court my name is the and shaver i represent the plaintiffs and the class we ask about the petition for discretionary review be denied for two reasons the first is that this case does not present a compelling issue of law which the second circuit  resolve right now and the second is that this case will not terminate the litigation and escape review goldman says there are two compelling issues of law here but both are actually very well settled the first is whether goldman's right to present affirmative defenses as to each class members in title meant to relief precludes predominance and the second issue is whether commonality can be established in a disparate impact case challenging discretionary turning to the first issue of predominance an affirmative defenses no one not plaintiffs and not the district court disputes that goldman will have a right to present affirmative defenses to each class members entitlement to relief but there is a well settled title seven framework for when and how that happens and that is only if and after plaintiffs prevail on their burden of establishing a prima fashioned case of liability for disparate treatment or disparate impact and the district court followed that well established framework here and found that the individual issues did not predominate over the common issues of liability treatment both seem to raise a question of whether something happened to somebody in particular as a result of this practice yes you're out or so in a disparate impact case it's slightly different for each theory of liability so in a disparate impact case the first stage one is whether plaintiffs have identified a employment practice whether that employment practice causes a disparate impact on a protected group and as a district court found here that all rises and falls on common evidence typically statistical evidence then the burden shifts to goldman sachs still in stage one to show that that challenge business practice is a business necessity if they do plaintiffs to prove that there is a less discriminatory alternative business practice available if plaintiffs prevail at that stage then the case moves on to stage two in which class members are entitled to a presumption of discrimination but the defendant has the right to present pretty to rebut that presumption with evidence that a employment decision was made for a lawful reason as to each think that they can establish it as they have a right front that's likely your honor because as a matter just as a practical matter when you're talking about a disparate impact case what each class member has to show and this was in the robinson case for example has a great discussion of this is that they were subject to challenge practice and then there's a limited number of affirmative defenses that the defendant can bring such as you know they were on leave during that period of time they signed a waiver releasing their claims and there are a number of defenses that can be litigated on a common basis and so what when these when this type of issue has played out in practice when these cases have actually been tried in the circuit what's happened is sort of a funneling through you know written questionnaires and other means funneling of the people who are actually going to come forward and seek individual monetary damages and then those are of two those people is no one we're happy with that we're not going to ask for any money well your honor first of all there's a slight difference as to the promotion claims here and the compensation claims here so for the promotion claims here it's going to be a much smaller number of people because there's a limited number of promotions that were actually available so what the court did in united states v city of new york was very instructive here in terms of using a streamlined written questionnaire process to identify who those class members or who were actually going to be entitled to the promotion so that's one thing for the comp for the economic damages your honor there are a number of management tools at the courts disposal to streamline those individual ised hearings us to damages which the district court here noted in her discussion of superior dorothy she said look i'm weighing the common issues of liability i'm weighing them against the individual i used issues of damages here i'm finding that it makes sense for the class to proceed as a whole on these common issues of liability but i retain the ability to address individualized damages issues by certifying subclasses for certain types of damages or by decertifying of the damages  you can establish a disparate impact we would have the ability to beyond establishing businesses se but on a class member by class member basis challenge the app that challenge liability challenge causation exactly your point  judge lynch and if you look at judge brack didn't say that he may be wrong but i thought she said that there were a limited number of defenses such as waiver that you would be able to establish that maybe that's wrong but i didn't hear her say causation was one of the things that could be fought ok well let the but i think the bottom line here is where the decision below in rejecting the recommendation of judge francis and by the way we never had oral argument in below in the district court he she said to judge it judge said it was fundamental error in judge francis recommendation on the question of predominance and that was the question of causation and liability which was the linchpin of judge francis is decision below and so the way the district court gets around predominance is the district court presumes all we can do is contest business assessing the which is wrong black letter law in fact that was rejected by the second circuit in cheyenne by the supreme court in wal mart and it's and it's contrary to the proper functioning of the teamsters standards and we're now looking at it but if the judge doesn't like you causation doesn't that mean that pretty soon you lose and then you get to appeal and say this whole thing was a travesty i'm i don't believe that's correct your honor because i'm central understanding are there going to be two thousand many trials and therefore this is cumbersome and we need to review the class action determination or is the problem really that the judge made an error of law in thinking that what she's going to do is not have two thousand many trials you see the difference and which i think i think though your honor there will certainly be many many many trials even under the judge's view over damages right and these are highly compensated people very complicated under fifty four b these cases would never come here for years because you'd have to give us fifty four b on the first one so we could be stuck in the district court for  there could be a massive amount of judicial resources spent on this and judge francis decision was correct as a matter of law and we're now litigating a major's plumbing class action in the southern district that's premised on a clear misapplication of title i can't think of a more clear instance where this court should exercise its flexible discretion under rule twenty three f and hear the case particularly when there are other issues like what is a con mode of exercising discretion your job you're asking for is to have the case heard and wrecked heard will decide who is right about them absolutely correct as we're in a situation here now where we're looking at literally hundreds of trials and lots more litigation when in fact the decision below is premised on a clear error of law thank you very much