behalf of a balance your heart voice or voice of this so i know you've read the papers i just have a few summary points and i'm happy to answer any questions and i'll reserve the balance of my time for republic well that's all that's required if the court had a problem with the evidence that was submitted it was incumbent upon the district court or vice opportunity to submit this will evidence similarly if plaintiff challenge it which they didn't down below assuming we were to remain to the district court to allow the parties to present evidence and argument on the amount of controversy in your view should our decision address on my the issue of the pleading standard under the supreme court's decision for shifting statute or they're available by contract did you make that showing here i believe that we did in that the benchmark of twenty five percent is standard and there are several cases and from this court that ha the this court's opinions both in chavez and in france that perspective attorneys fees should be considered the district court's decision in this case was not that the trees he cited in the notes removal were and reasonable or it's your burden to show i think by a preponderance of these would be reasonable and then there's the include to the extent that they're challenged by either the district court or in this case plants or respondents otherwise we've met the standard under their turkey if there are challenges that your me maybe i'm write which makes it difficult to fully develop the record and respond to it so i do appreciate that we're here today before your honor's to discuss it i do believe that the district court challenge that it's unclear to me on what basis the district  we were being held to a legal certainty standard and that's where the district courts remain in order stand stem from and this record view that under the preponderance of evidence standard that should be applied we've met her burden then simply that should but it was a removal so if additional evidence is required and they're challenging it at least here then we should be provided an opportunity to present that evidence right so that's what i forgive me i'm good i'm just trying to get  energy remain what should district courts do in these cases not so much this case but what should district courts do in these cases because i don't think whether it be this circuit or other circuits you want to see all of the sudden  should do your honor i can tell you what we have when you suggest we i would suggest that that the v issue orders to show cause regarding jurisdiction i've seen many all places no and in the only in the case where the court itself has a question about whether or not your station exists if the court has no question and it's not challenged by the non removing party well then there's jurisdiction unless it's later proved that that's based on some false assumption isn't there or there there are certain assumptions that at the pleading stage the case law would seem to say that you can rely on and that there could be that there could be challenges later as to that but it seems that the district court may have just the district court appears to maybe have imposed on mary at the burden of proving its assumptions were correct and that it that it that it in fact violated the law and did so as frequently as assumed in the estimate of the man in controversy and that a bar or a louse for a chain of reasoning that includes assumptions so that the district court the argument i guess what i'm seeing is it seems like sue a sponsor didn't allow for those assumptions that the raised chain of reasoning of the assumptions and that's just at the the  stage i would agree with that and i think that really does go to the heart of the issue of whether there is a reckless amount of controversy can at the time of removal here the bulk of the mountain controversy comes from  and certainly my client would be happy willing and able to submit additional information to show that point but once they do that there still needs to be judged callahan's point the assumption of a violation rate we  that there's some assumptions are going to be missable for sure but just as you haven't had an opportunity to really support your notice there's been no opportunity from the other side to take shots at it so it feels to me that word that this  about talks about if that opposing party or the court take issue i think it uses the word challenges challenges and in this case i think it's fair to characterize the district courts respond to order as a challenge to the removal a challenge which we had no opportunity to respond to ok with what significance of any does the fact that in state court now they've  specifically addressed that exact point your honor and the court was clear that stipulating to less than five million dollars controversy is insufficient to deprive this court of jurisdiction for a couple reasons but primarily this isn't that same representation does it make any difference it doesn't your honor again it's not certify case and if you were to send that back to the district court the district court will be looking at the amount of controversy at the time of removal because what standard fire said that a supreme court that they said that because a punitive class representative cannot find an absent class before class certification right that's correct to the stipulation that the simulation has you respond to does not dispute the the violation rates that the opponent is using the respondents mean issue here is with the fact that in the notice of remov that was filed and then the permission to appeal that was filed no disclosure was made with regards to the permit the petition to settle that was entered into in the orange county  to some of our cases some class action that you know it seems like the district court was operating under the premise that removal you know should be looked at it skeptically and that it and there's nothing in our case law that in fact our case law is to the contrary saying that under cafe that you know that there are they're entitled to certain assumptions that just the  the district court just said hey sis ponto boot and there was not you know there wasn't any opportunity to even go any further than that so i am wondering why doesn't the supreme court's decision and  cherokee in our decision and abara require that they just records decision be vacated and of the parties can present evidence and argument on the amount of controversy on all submit to you that we don't even get to that in this particular case for this reason in don't know how you can what legal authority is supporting your argument that the defendant suppose and taken at the merits of the plaintiff's case like merit summary judgment briefing in the recent state court can be considered in assessing the amount of controversy your honor the the appellant's knew that there was a class action settlement preliminarily approved in orange county as of the date of the removal in their motion for summary judgment declaration they've held and says we contacted the plaintiffs counsel and informed him that all of your claims were released as part of the separate class action settlement in the orange county superior court this is to be arguing a version of a binding traditional admission or something that they're underlying are you are you arguing they are bound by an admission of judicial admission correct leading or ok have we ever getting back to just go and question of wherever it taken the state court statements in this kind of situation where is a class settlement providing for release potentially to all of our plaintiffs claims none of them is accurate that a federal court now they're in state court they're appealing here but there they got kicked out and so they've got to deal with what they got to deal with there then never got a chance in federal court to even you know the judge said hey i'm getting rid of this they're out and not if this was all on the table all this happening over here and state court now i'm struggling to understand why that wasn't  they did offer you know that they did or didn't opt out of that prior case it just seems to me you're confusing what we hear about we're here about whether or not this case should have stayed in federal court or whether or not there should at least they should at least been given an opportunity to validate the amount of controversy requirement which led them to get the state court you know when i was a myth that this case should not be the one where that's decided for the reasons that i've mentioned earlier because of what the procedural background is in this particular case that's the decision of background is this was a soused order entered by the court and the parties like you say didn't get this far and the district court hasn't had a chance to really assess your challenge to if there's going to be one certainly the district court challenge that the figures if i can just use that term the notice or well let me ask you this on the issue of attorneys fees your belief is not even address our decision in french versus transportation do you agree that under fritsch perspective attorneys fees must be considered in the assessment of the amount of controversy ya know it shouldn't be considered because that's ok but that was before french right now i mean you're in the th circuit are you telling us that french didn't say that the no we're not saying that you're on the right so then violation rates there do you agree that under fridge perspective attorneys fees must be considered in the assessment of the mt controversy they just only if the underlying numbers are not pure it should be considered but again the underlying considered and i just want they must be considered in the assessment of the amount and controversy that right frisch so correct crown and less you can tell me that french doesn't find you or this court because it's a th circuit case and we're sitting as a three judge panel and we have to follow our own precedent the only one that can change that is an some i think extra confusion added here because what the defendants did in their notice of removal is peg i guess he's calling it a standard posing council cutting a standard twenty five percent rate and that's not what fitch says so it to the extent you're talking about thinking that the the other components of your damages claim are were proved in a way that you think is insufficiently particular that was that they were speculative then twenty five percent on that is speculative i appreciate that argument i think i think you've made that here argument that i want to focus on is obscene posturing the case and the fact we don't get to these issues that this case should not be the one where this issue is decided for the very simple reason there is prior to the notice front of us and we have to evaluate on a sewer sponte motion were a bara holds that they're entitled to certain assumptions that a bar we held that the removing defendant may rely on reasonable assumptions in assessing the amount and controversy so why are marriott's assumptions about the frequency of violations alleged in the complaint and reasonable for just the purposes for the meal period by about i'm sorry the overtime violations and one to top of five rest break violations per week so thirty minutes where do we stop how is this not a speculation how do we know if there is yawning defendant is aware of the information to support this or provide evidence to support this particular removal defendant just reached a resolution as i mentioned so they could have  assumptions can be made to the contrary to defeat the amount of controversy requirement here whatever plaintiff or a defendant says here today is exactly what we're left with just pure speculation saved the day for you and standard fire insurance personel seems to say exactly to the contrary now that's not even just the th circuit that's a us frame court so do you agree that standard fire says that that correct or whatever it was an argument that the fence knowledge regarding plane is worth here is an additional statements to you that we stipulating our claims worth less i understand the standard for as up occasion if it was just present in the same paul case are pretty clear about that and it doesn't take into account the strength of defendants or opponents defenses so the issue is not whether or not that ultimately they'll prevail and went out on the case the issue is whether the amount being sought by the respond in this case exceeded the five million dollars controversy at the time the case was opportunity to litigate this that that's fair game for the plaintiffs to offer in challenging the mountain controversy part again it's a difficult situation and that will be asking the district court deal so they have a pretty good idea that you know contradicts what's happening here would that be fair game it would not it to the extent that what had plaintiff agreed at the time to limit their complaint based upon the terms of that settlement when we it then certainly it would have however they knew about it yes appellants knew about that some at the time but so did respond and respond and nonetheless proceeded forward with their complaint as framed so in other words you re gardless of that settlement they were still seeking that amount of controversy and so that supported jurisdiction and well that would be your response but i'm trying to figure out whether you think they could make argument against you probably answer the question appreciate it thank you