your honors may please the court my name is john egan i'm here for the plaintiffs i'll begin by addressing the case that the court asked me to address could you pull that microphone for us or some reason i'm just having a terrible time hearing this morning ok broadly and you know i think the best practices are not to include f l s a claims in an opt out settlement that the cases that we set it on pages forty dollars to forty two dollars of the brief lay that out the issue in rango was the trial court in the state case did so anyway included a very broad settlement release that included f l s a claims and so the issue in that case was do we have to afford full faith and credit to that state court settlement even though it may have been too broad and the answer was yes we have to recognize the state's ability to do that whether the state was right to do it or not the state did it and so we have to allow that to have this precludes of effect that the state court would give it in our case we don't have a settlement we have a jury verdict with a difference well the difference we give due respect to a state court judge who just like we do with settlements you know they're both entitle to of the you know the full credit yes but this is here and we apply race you to kind of principles to both that's true and in this this state court settlement in wrangel said anything that's factually related and the court in that case said here we're only ask whether the settlement which wrangle did not object extends to her current claims that plainly does but in that case the in wrangel the court specifically said you know whether or not this settlement would be approved and whether or not it would have raced you to cart effect it was cast more broadly than that in other words it's not just in race two to cut it there are several  just whether it's factually related in that case the settlement said anything that's factually related whether those rights could have been vindicated or not and in oregon and federal race you to cut a law if the rights could not have been vindicated in the original case they'd they are not precluded in a subsequent case or in it separate case so it was the breadth of the state just so it's a what we're saying that they couldn't have brought the fs l had it would have been removed the defendant indicated where intention to do that and then and then the plaintiffs couldn't pursue their state law clintons moved anywhere they tried to and then it there were no federal amends and it was remanded to that state court was remanded so because of the specific elements of the f l s a they say you can't be a party plaintiff to a case unless you opt in and if a settlement says you're a party anyway i don't care what the f l s say says that we give full faith and credit to that but that didn't happen here here we give regular rule oriented race to get caught effect to the state court verdict and in this case we had a state court decide that the two cases would proceed in tandem did this take were perceived as a class action yes it was noted glass yes is a notice on the record i don't know that it's in the excerpt of record but it's certainly in the record it is yes you know where and i don't believe it's in the excerpt of record it was certainly in the biled in the district yes it was filed in the district court because plaintiffs made the argument as to waiver in the waiver part of this case plaintiffs argued to the district court notice was given to the state court class action members after the state court had already ruled that the two cases could proceed in tandem and so therefore the state court class action members did not receive notice that they would have to opt out in order to preserve a related factual that's the current that's the general rule but there are several exceptions one is waiver one is if the for if the if there are formal barriers to achieving the full all of the claims in one case which the state court agreed with that the the sun size of the subclasses in the state court would prevent their certification under the federal rules because under the federal rules all subclasses of the way you define the classes in the state casing to be different in the way you are suggesting the district would have would have defined the classes here would have proceeded with the classes here i'm not sure that is the case i mean there were some classes in the state case that were when they were certified but they were oppose d based on the on a some class level by the defendants and definitely in the state court case so that acquiescence by the state court meaning the state court decided they could proceed in tandem the two cases and after judgment the district court was was required to accord that decision with precludes effect the state court decided that the cases could proceed separately and that case went to a judgment and the district court ignored that by imposing its own judgment on that also is why didn't you just litigate litigate both cases in federal court because we couldn't have certified the state classes in federal court for us supreme court precedent says classes under fifteen are by are per se not certifiable under rule twenty three dollars in oregon a law that says anything any subclasses can proceed as long as the total class is sufficiently numerous that's that's the rule that prevented us from pursuing the whole class action in federal court and we should say the state court judge and the plaintiffs both offered the defendants the ability to pursue all of the claims in one click in one case as long as it would be in state court where the plaintiffs could still certify their classes and subclasses and the defend stated on the record that they preferred not to pursue that what were the some classes in the state court how big were the two minimum wage sub classes for the two different restaurants were fourteen and seventeen and that's the way they were defined in the state court in the state court that the the court certified one class rather than the subclasses as they were as we move to certify them because it didn't matter in federal court it would have mattered that each of the subclasses did not says people are not party plaintiffs to any case unless they opt in and these planes these federal court plaintiffs did not opt into the state case they by definition in the f l s a cannot have been party plaintiffs to the state case and so that element of race  carter was not met and i should say this the district court indicated that the defendants had not waived race judicata by waiting four years and bringing it on the eve of trial because there was no state court judgment but  circuit law is clear that you can waive claim preclusion by failing to raise claims splitting prejudgment and that's dodd vs hood river trujillo vs city of ontario clements vs airport authority and colonel vs tenneco oil all of those cases said that if you don't if you can't a disk a defendant cannot let two cases proceed in tandem and then object once once of them once one of them reaches judgment ok thank you thank you very much counsel the matter submitted at this time in the last case on the calendar has also been submitted so that ends our session for today