in flushing opted in which case after discovery need district court dismissed the midtown employees similarly situated the named plaintiffs mister jin who worked in the kitchen at the washing at the same time however also after discovering it certified a class of employees up washing restaurant including mister gin and misters in her who had both presented testimony in discovery m in the event however that did not happen so we were left with mister ginn and mister witnesses who had been witnesses throughout discovery and throughout the class opt out period  this discrepancy between the witness list and the witnesses that plaintiff actually had available to present that the court seized upon of its reason for decertify in the class somehow class members not coming forward to testify is supposed to reflect poorly on class council inability to represent the class however class members are of course free to come forward or not as they wish no matter what effort class makes to contact them and we did make an effort to contact one of the major benefits of participation in a class is in fact being free to do nothing and be represented by other class members the court knew when it certified the class of the witnesses available to class at the close of discovery where mister ginn and mister it may have expected that the list of available witnesses would expand in response to the notice but not doing so is not a significant intervening a bench within the meaning of the julian ok so events not going as the court expects is not a significant intervening event in its self is me and events failing to change from a prior set of circumstances can certainly not  intervening event an intervening event requires some check tool to change the circumstances not the circumstance remaining the same and i just found the significant intervening events point to is there any precedent of our court that says a significant intervening event is necessary order no your honor because it's an interesting point it's not in the language of the rule and i and i found a good amount of nd district court authority but i was just unable to track down any place where we had planned on that so i was hoping you could help me i believe must say is also a summary order that we cited but that was also a summary order of firming a district court decision well either way moving on to the merits of your argument is that what was wrong with the lower court's conclusion i mean there were if you were going to call only two of thirty eight dollars class members to testify how how would you be able to prove this the flashing establishment claim because as i understand it there were no pay records to prove the hours that any of the class members work so with with only two dollars witnesses doesn't seem like it it could have been in the interest of the class plaintiffs to go forward  that's not correct your honor there were extensive records disclosed those could have been all those would have been authenticated by the employers who had kept them and had disclosed them during  discovery and post certification and also the two witnesses would have been able to testify as to their observation of other employee use hours worked actually had available and all me the reason we had investigated the opt outs is we thought we spotted what were regularities in the  form they seem to have been all been mailed from near the restaurant and similar on below person to have not borne the identification numbers that we had sent out on the opt out form for those individuals brought that out and so to depose the managers and the employers at flushing restaurant as well as the opt outs themselves we conducted the depositions of the them which moreover would have been difficult some of them were current employees some of the former employees give me but this is ultimately a side didn't form the basis for the court decision that was grounded soley in the decision in the inability to call more than two witnesses because nobody else  being not class member so having opted out there was no indication whatsoever that they would have come forward witnesses for the class at trial  considered the factors and also a balanced prejudice from a lack of adequate representation against catches from the certification or chalmette prejudice from lack of adequate representation is greater and the judge had experience with the case knew the attorneys and handled the motions and was in a superior position to make that call this is not an tampered with a class formation process the court delayed the trial for the two months and set up a schedule of depositions of defense managers and twenty through the evolution of pretrial letters and at the pretrial conference two weeks before trial before judge ross you know judge was still discussing it at that point counsel still had dozens of class member employees witnesses listed on his witness list that were going to testify in person and revealed for  in view of the fact that substantial testimony is necessary in this case to establish the class claim policy flat rate pay ascertain what their testimony would be preserve testimony or procure testimony at the trial that is a significant intervening act it's part of counsel  requirement for a significant intervening event and you know here you know whether it's an act of a cull mission or omission you know attorney has a to do sh with prejudice because of the violation of the two dismissal rule and it was affirmed by this court though i don't think there's any need to go into that in more detail but i think it is relevant to the the end of discovery in the case which had been proceedings and two thousand and sixteen last related discovery was taken during the discovery period this was not the starting line this with the finish line and this is what the court found adequate for certification in the st place to witness it with respect to contact made for to the class members we were relying on a list provided by the defendants for their contact information they provided mailing information for the class members and phone and text message information for some of them we used the latter where we could but we didn't have for everybody conference isn't what it is and what the issue here what that issue here is the decision of the district court and the decision of the district court was not grounded in any counsel investigation of the opt outs who were not part of the class and not represented it was grounded in the discrepancy between the witness list and the witnesses available to class counsel with respect to the point about individual testimony necessary to show a policy of underpayment that is not true sorry a policy of payment a flat rate that is not true that would have been shown by reference to the documents that were produced in discover and returning again to discovery the requirement to investigate the claim is what was done during discovery if this class had been certified very early in the case before discovery then that would be a point but the fact of it is that discovery concluded discovery was taken with respect class during the course of regular discovery and on that basis at the finish line of discovery  that would have that should have impacted the court decision to decertify i think that thank you yes i will take the matter under advisement thank you both that is the last case to be argued this