it please the court good morning your honors i am robert king represent the minor league players i'd like to reserve ten minutes of my time since this involves a cross appeal this case presents an overarching question is major league baseball required to pay minor league baseball players minimum or overtime wages to make out their prime official case that defendants are obligated to pay them under wage an hour laws plaintiffs need to prove to things that they are employees and what they do playing man minor league baseball is work now the defendants might still be able to avoid that obligation if they can establish either of the exemptions that they vary as affirmative defenses but whether baseball is work whether minor only players are employees and whether either of those defenses applies those are common proceeding give me your summary list again what were the easy common issues that can be addressed without getting into the weeds you listed whether their employees whether they are employees whether what they do their team related activities is work whether either of the two exemptions apply or they create a professional exemption or the seasonal amusement exemption those and those can all be answered on the basis of common class wide evidence so the district court was concerned about the choice of law analysis for the not on the for employ for players who are not employed in california and so it wouldn't certify the twenty three b three classes except for the players who were working in california correct correct so there's two questions i have for one is why wasn't the district court correct that there was a significant choice of law issue for the non california players and second it doesn't matter because as you're saying it doesn't matter because i think you  for california players well it wasn't so much nine california players well i don't know but i'm characterizing it as one california players because california was clear the sullivan that that case applies and california would put its wage in our laws on people working in california but the district courts it's not it doesn't apply to other players outside of california so as i have california you have the states in which they're working you have other states where there are clubs may be incorporated there's places where they may live and opposing councils as all of those states may have an interest in imposing their wage and hour laws to protect their employees outside of california so that was that as your courts concern yeah and to clarify what happened in california what happens in california is in the california league all of the work is done in california all the games are played in california all the travel is in california all of the training is in california that is also true with respect to the other two classes the proposed classes in arizona during the training seasons all of the training all of the games all of the travel occurs exclusively in arizona the district court says so what of the arizona doesn't have a case like sullivan well and that i think is gets to the heart of the district court's error it was it said it's not under the california governmental interest analysis the question isn't is there a case like sullivan the question is what are the competing interests are there any competing interests the first question is what but it's applied to california so the question is whether california has competing interests with these out of state players that have a district court characterized it well the governmental interest that's the confusion that that that is that that is not how the governmental interest analysis works typically anywhere else when you know the question is the first the first question is are there any material differences if there aren't any that were when we know exactly how does it have any overtime what material differences with respect to the wage and hour laws or material difference with respect to how and whether the state thinks that their wages our laws should apply to their two people the material differences with respect to the law that governs the various issues in the case and it is an issue by issue analysis as well so when the government when when with respect to the arizona class for instance the under the second step of the governmental interest analysis the court should have asked identified which states have a legitimate interest in having their law apply obviously when you're talking about weeks and months of work in  passage use it's has a real strong interest in having its overtime laws apply to its two people employed by its company is its residence in arizona well how do we know that massachusetts interest in having single state there are competing interests within arizona i mean it's not merely the protection of employees whose interests are at stake it's also the business environment as the sole interest talks about that a state may want to of colorado applies within colorado let me order let me get back to massachusetts interesting having it's over time protect its its residents right arizona doesn't have overtime so it has no interest in overtime so why wouldn't a choice of law analysis say massachusetts has a stronger interest because that's what i was just addressing the interest that arizona has in providing a friendly business environment in its state is reflected by the fact that it doesn't have an overtime law so that is an interest in what goes on in its state it wants to attract business but that's something that the court would have to evaluate and determine that  governmental interest analysis whose interest would be more impaired and the other problem with exportation of a and overtime law for instance in the example that you give is there is a presumption as strong indication of interest does arizona have that perception i think that's a generally universe well proposition i mean you don't know whether that will every side of the case all that available on it and it is true outside of  their laws should be applied extraterritorial a because they had a very strong interest in protecting their employees and making sure that they were covered so so in this area i guess a i'm sympathetic to the district court concern that there's a lot of different state laws it would have to look at you know i think if you also look at the a mickey the brief by the law professors who are the authors of the leading treatise on conflicts of law this is a generally not disputed proposition of law that wage in our laws operate generally speaking except for a few friends exceptions within the state whose state we're talking about where the work was performed and it makes common sense i mean one of the interests of every single state has in applying its wage laws within its own borders is the certainty can you imagine i can imagine outside the context of this litigation that these employers or any employers would be making would be advocating well we don't know which wage in our laws apply because we have workers who are from out of state the certainty of who is paid under what law when they're paid how the to have to and i have other workers working there is i know that workers in colorado i just want to apply massachusetts law across the board it's much too difficult to have to do to evaluate every state's worker's wage in our laws here is the old ancient maxim when in rome do as the was the romans and that is that is what provides certainty if you're going to have employees you know there can be exceptions if you have a service person for instance who your company operates on where i'm from st louis is on the border of illinois you know a service person may cross state lines during the course of the day there are fringe exceptions but like sullivan when you're talking about days weeks and months of work within a state i think i think most employers would expect to have to compensate their law their employees under the law of the state for that work is being performed it's not unlike tax law you earn wages in a state you pay taxes it's no different than that so that is where i think that the district court went wrong and and a couple of respects on this issue as the defendants are continuing to argue right now there might be states with a different answer it's nobody has even though they advocate for the application of law in  of another state in arizona in florida there has been no identification of a definitive state interest in applying the law to territorially it's been purely speculative and hypothetical and fact the judge pirro said that about the defendant's arguments which are the same arguments that he made with respect to the dial of the arizona florida classes he said that he said in his order that the possibility of the other so that other states might have a state as strong an interest as california or an interest that's more impaired to california that that's purely speculation and that's all that we have so far and i think we've demonstrated that arizona and florida both have a very strong ai and i would nearly conclusive interest in applying arizona and florida law in those states now he's like you're going down your time you want to say some time for rebuttal but we have i have a few other questions on another issue so you had  deny classification to be two for the arizona and florida classes correct where did the district court go wrong or did the district court go wrong well in that respect and what i mean what is it the relief you're really seeking under the two and under b to the declaratory relief that is contrary to the position that pendants have always taken that minor leaguers are not are in fact employees what they do is work  and injunction compelling them to keep time records which they don't do and injunction compelling them to comply with arizona and florida wage law for the work that is performed in florida and  arizona is the choice of laws should drive that issue as well i mean to just quit seem to think so well the difficulty is in the very first step of the analysis when you look at the issues the core central issues in this case what does work who are employees do the exemptions imply the really are no there's no welter of varying state standards i mean on the definitions of work and employ that there is no conflict happens over time is overtime a liability issue or is it the damages issue in california where we have made a claim for overtime it's also easy to demonstrate because of the defendants have admitted they stipulated that they don't pay overtime it is a policy of major league baseball not the way over to the district court thought that there were you so so massachusetts as we pay over time arizona doesn't we're evaluating the courthouse revaluate who which laws apply and the question one argument could be well it doesn't matter because any differences between the two states rules go to damage is only but over time seems to be an element of liability so so that difference between mast arizona we've got a liability as well not just damages except that we are not making an overtime claim for the arizona class so that issue just simply would not say hypothetically i didn't look at whether massachusetts has a stronger worker protection laws in florida but maybe allows more for over time or allows over time for times that are not protected in florida with the liability or damages again it's not a claim that we're making on behalf of florida class because florida law does not so i think everybody's in there any players in arizona who might have an overtime claim you're you're not pursuing that on their behalf they would just be out of luck that because we don't believe that under applicable choice of all rules they have a calling for that forget that they performed in arizona or florida and you are a reserve the like morning may it please the court my name is lisa bloom and i represent the appellee is cross appellants in this case your honors i think that my adversary has skipped over an essential problem in impediment in this situation to class certification and the reason why the district court's order certified the rule twenty three california league class should be reversed and why the collect the f l s a collective similarly should be decertified while my adversary argues that there are common questions as to whether the minor league players are employees and as to whether what they do is work what he ignores is the fundamental issue in this case which is the issue that the minor league players are seeking payment from minimum wage and overtime and as judge pirro pointed out in one of his earlier decisions in order to determine whether or not there's liability from minimum wage and over time you need to know at least two things one thing you need to know is the number of hours that were spent on compensable work the other thing you need to know is the compensation that was provided for those hours i thought it was an disputed that they work some time and were paid nothing it is not under spewed that they work some time and were paid nothing in fact if what they were doing in training is work if they spent time training so if that is work they spent some time training and were paid nothing i mean that seems to be undisputed no not exactly your honor these are the class play ok here the california league class and the california league class exist during the championship season and the record is clear that during the championship season they are provided with at a minimum a monthly salary and the question with regard to the california class then becomes is there a way to demonstrate compensable hours on a group wide basis because otherwise there is no way to know whether or not they've been paid minimum wage and whether or not they've been paid over time i think what you're referring to were the allegations about spring training and spring training is part of the fair labor standards act collective that was certified by the judge and the record shows that during the time the players spent in spring training they receive room very seaboard and in fact some of them are actually paid so again you're faced with the same problem how many hours did they spend on compensable work and what were what did they receive in compensation for those hours and the problem in this case and the reason why the plaintiffs klatt california league class n f l s a collector should be just decertified is because the plaintiffs have not provided a basis for demonstrating  solve the problem which is also reflected in the record yes they have invoked the continuous work day somebody did and i know they did or you were the district court did i think the plaintiffs alternately i mean this is i'm sure the courts for a million with the procedural history of this case this is the plaintiff's second attempt at getting a class or class a certified and so in the course of these proceedings yes the point of said they were relying on the continuous work day doctrine the continuous work day doctrine has two important requirements you need to know when does the first whistle blow when does the first compensable activity begin and then you need to know when does the last whistle blow when does the last compensable activity end so what the plaintiff said as well we can demonstrate that because we have a survey that our experts done the problem with the survey and they just quit so that was ok well the basically originally originally in the first certification procedures the district court said the survey was not ok it was a public they they were i refer to them as a pilot and then the main study right and i and one of the i think the biggest problem well i don't want to call it the biggest problem but a significant problem with judge pirro certification order granting certification of the california league and the f l s a collective is that he did rely on the survey and actually in his twelve ninety two b order certifying the question to this court about the f l s a collective of he said that if the survey if the survey fails there is no class and the problem with the survey is that what it measured was the time that a player most often arrived at the ballpark and the time that a player most often left the ballpark it did not in any shape or form measure compensable activities and in the record it is crystal clear based on the testimony of the name plaintiffs themselves that players come to the ballpark for all kinds of reasons that have nothing to do with what could be considered compensable did they had other evidence besides the survey correct for california they had the schedules and one of the actually reads they had actually your honor they say that they have that but if the court takes a close look at the record this is what you will find the first thing that you will find is that there is not a schedule in the record from the california week the second thing that you will find is that if you look at the survey itself there is no way to tell whether any of the respondents in the survey were actually people that participated in the california leak the most that you know the most you can tell is what major league team did that player play for but each major league team has six or eight affiliates and all of the teams that participate in the california league their affiliates are spread there not just in california they're all over the place so the data in the survey tells you absolutely nothing about what happened with players in the california league and this other evidence the schedules that were submitted to the court again they don't come from the california league so the courts really stuck with nothing there's no way to quantify compensable time and that that problem is further exacerbated if you look at the expert reports that they have not quantified that they say that i'm not so much the quantum that the amount but what period of time they only seeking over time they're seeking a minimum wage minimum wage and overtime for the california class that's correct that's correct and so that wasn't so for the fistula class in california it's for the period of time when they're in spring training know that there's the california we class that applies for players that participated in the california league and then with regard to the n f l s a collective of that is comprised of players that participated in spring training  may have participated in extended spring training or the instructional leagues in california no ok those are just in arizona and florida right exactly and also it wraps in any players that would have participated or did participate in the california league the problem so that their focus is on the california league minimum wage and overtime is exactly right for work well done  for the championship the gym shoes so i mean they are there should be schedules there aren't schedules in the record but it's a couple of other really important point about the schedules the sketch the evidence in the record is that schedules to the extent they exist are aspirational meaning in on any given day any given thing can happen that can change what goes on on that day a player could get injured it could rain so the schedules don't tell you exactly what happened on any particular day and interesting only enough again going back to the schedules that are in the record the ones that are not part of the california leak and the data in the survey itself well our expert and it's in the supplemental record as the supplemental excerpts of records looked at the data and looked at the schedules that had been provided from outside the california league and you know what she found interesting lee enough that the schedules that were provided for teams that that the schedules are in the record the start times and the supposedly end times don't correlate to the survey respondents who claim to have played for those teams and what do i mean by that i mean that the survey respondents who may have said that they are arrived at the ballpark at the earliest time and left the ballpark at the latest time those were not players that played for teams whose schedules would have also  arrival time earlier departure time in fact it was just the opposite so there's no way even based on the evidence in the record to take the survey respondents compare them to the schedules and come up with some reasonable admissible or did he say that's reliable or did he make any determination all sort of on the reliability of the survey so there is a reserve that for trial so he just said this is the method by which you can prove your case and its looks fine for purposes of class certification he denied our dauber motion as to the main service but where we believe the era of law exists and where judge spiro signaled that he may not have applied the proper standard in evaluating the survey in his twelve ninety two b order is that the survey the question is whether or not this survey allows the plaintiffs to meet the requirements of rule twenty three whether the survey is admissible or not the way to which a jury might also mentally applied to the survey is not the question here the question here is to the survey give the plaintiffs a vehicle for meeting the requirements of rule twenty three and he said yes he said yes and nationally and then in his rule and then in his twelve ninety two b order he wasn't he wasn't too sure and he did make the point that if the survey fails if the survey doesn't work to demonstrate what's necessary for a continuous workday then i wouldn't have certified the california league class and if that's a really important point because the problem here is not is the survey admissible is the survey reliable the question is does the survey provide the basis for demonstrating hours worked on a group basis do you mean do we review that for abuse of discretion yes or for it's clear it's reviewed for of discretion by the end a piece of that is whether or not he did commit an error of law and the error of law that one among the errors of law that we believe he committed is that the survey does not meet does not allow the plaintiffs to meet the requirements of rule twenty three because it doesn't provide the basis for determining hours work on a group basis so you had an appeal from the from the district courts of california class certification and that's for and to slow to do one thing more about  because i don't think you should address their their appeal on the the arizona and florida classes yes of course but that is starting to run out of time i'll give you a little extra time but i want you to so with regard we believe that they just report correctly denied certification as to the florida and arizona classes one basis upon which we believe that this report was correct was what we've just been talking about the inability to quantify hours worked on a group but the other issue is this issue that goes to conflicts of laws and i think the first the fundamental fact that ties into class certification here is not a question of whether alternately massachusetts law will apply new york will law will apply our zonal law will apply florida law will apply the question is will the court have to do a conflicts of law analysis and will that analysis be different depending on who the player is and there's no way to answer those questions other than by saying yes because the players come from forty eight different states and among those states  states like massachusetts states like new york states like oregon who have states like washington who have things like over time they have things like longer statue of limitations and you have players who are in florida or arizona for a short period of time in the entire baseball year because remember the name plain just in this case they're seeking compensation for three hundred sixty five days a year of baseball related activities so you have to measure the time spent in spring training versus the entire possible universe and the question isn't alternately whether massachusetts law where the employee is working applies because that's not the law start with that and the problem for class certification is that you have to do the conflict analysis and that's what destroys the predominance and the other piece of that is that's nice for them to say that but i bet you and we've cited the court a number of cases for example in massachusetts where massachusetts protects its residents and inhabitants that may perform some work outside of the state and i betcha that like their name plaintiff brian corey corey who played for the red sox signed his u p c in massachusetts spent time during the championship season in massachusetts spent no time in florida except during spring training betcha that plaintiff is going to argue for application of massachusetts law he's not going to want to forfeit his overtime and i think i might disagree with them on what florida law says about overtime but you better bet that he's going to argue for application of massachusetts law when all he has to the championship season now this is has to spring training the stand that but you say that's de minimus so what's the big deal so he didn't get overtime during spring break well the question well i don't agree i agree that it is diminished in terms of the time spent with in florida versus the time spent with in massachusetts but with regard to a clean case seeking minimum wage and over time the court will still need to do that conflicts of law analysis to determine whether or not mr corey for example is entitled to a minimum wage and whether he's entitled to overtime and how many years a c entitled to that for does he get the benefit of like a point to for example from new york just up person get the benefit of the six year statute of limitations or let me let me ask you this so when you do a conflict of laws analysis you applied you apply the law the form correct the conflicts of laws of form that's right so the i mean but you'd have a tough argument to say that california law will anybody but i don't want to go there right now i want to just i want to focus on arizona and florida ok so the district court is trying to decide what  they the plaintiffs have identified and they've narrowed their class and they said we only want to file we only want to pursue a subclass of arizona plaintiffs who have worked in arizona and are entitled to minimum wage in arizona right that's their class and the same a similar class for florida plaintiffs that's what they could that's their argument all right so that's their right but that but that's the class the proposed to the district court that's the class that what they proposed to the district court was an arizona class and a florida class yes where we got into the conflicts of laws issue is that in order for that class to meet the requirements of rule twenty three you've got to show that you're not going to have a predominant weight when the weight of that so the district court says ok what law is go apply to that arizona class in florida class all right they might like to say well california law should apply because it's so great right well no no no no no that no no not california l what lar we going to apply and so the court then goes through the governmental interest analyses and is judge of this is there's probably a conflict between you know california and arizona and you get down to the to the bottom of the a no step and then you ask well which one right the third step and they come back and they say well you know every state should apply you know want to apply its law to work performed within it but they're wrong and that's the discourse and the district court at the end of the now says yes we're going to apply we're going to apply your claim for minimum wage we're going to apply arizona law why does that make sense because that's not what the governmental analysis tass well for the first problem is that before you could even get there you're going to have to do the analysis are there other state laws that might have an interest right do those are those state laws different than the law that arizona and at the end of the day which state has the greater interest and install them and the piece that always gets lost in that case is that the court actually did do that analysis at the end of the day so the fact that you're going to have to do the analysis and that analysis is going to be different for each of the players because the players don't all come from california to arizona wouldn't it wouldn't that depend on let's say you know if a player was asking for over time the class on overtime then i think you know you might have a really good point they're not seeking over they're seeking minimum wage i don't think that's the end of the inquiry and for example let's use one of their name plaintiffs joel weeks joel weeks played for the giants right here play for the san francisco giants he scouted in california he signs his u p c in california he spends every single day of the offseason in california he goes for four weeks to arizona what rate of minimum wage is he entitled to if i'm joe weeks hum going to argue that i'm entitled to the minimum wage rate in california as opposed to the minimum wage an hour let me ask we're seeking you have the right to opt out if you want over time if you want this you want that opt out file your own law suit so yes in the purest sense mr weeks or whomever would have the right to opt out but the question is will the court be required to do an individual ised analysis for each of these players under the conflicts of laws principles that apply here in california and the answer is yes the court will be required to do that and the fact that the court is required to do that just royce predominance and judge pirro was correct when he recognized that that was a basis for not sort of fine the arizona of florida classes order denying the arizona and florida classes from being certified thank you thank you it is true that up for the claim of damages for the b three classes that the plaintiffs will ultimately have to demonstrate the number of hours worked on average under tyson foods and with respect to the california class the amount of compensation that players are see during the championship season will certainly have to be taken into account in the analysis and and just be understood that with respect to the training season classes i and maybe i misunderstood counsel but as judge page fifty five of his order which is our one fifty nine virtually all players were unpaid for their participation in spring training extended spring training and instructional leagues they were paid there and as he recognized if we can demonstrate that they were there and did any work we've demonstrated a violation of the minimum wage laws in those two states for those two classes so and with respect whether or not we have changed our theory on appeal and now rely solely on the survey that's simply not true that page twenty three of our reply brief docket fifty three we have a graphic that demonstrates it actually demonstrates and i don't think we explained it quite like this but it demonstrates what we can prove without the survey and what we can prove with the survey without the survey we have the bulk of the california right correct and to the training classes arizona florida california recognize the continuous were de dockery yes every jurisdiction pardon me from th their own do they have their own continuous work day doctorow no i mean this is where you find states just typically follow federal law on these issues so i would look in california law i would find that they have adopted the yeah i believe follow federal law on this issue ok and with respect to schedules by the way what we have in the record demonstrates that we were relying on sc schedules we have hundreds if not thousands of schedules in the record  and that's only those are only exemplars that's a that's a sampling of what we have there been more schedules produced sense we put those in the record and you can find and i can provide the court the pacer site to the district court's docket this is r thirty seven this is a california schedule so the fact that it didn't make it into the excerpts of the record on appeal is not doesn't mean it's not there and to the extent that not there in the district court we have a lot more than what we put in  so we do have california schedules there are five there are eight california affiliates in the california league right now five of them are california major league teams the other three are not with respect to  the issue of whether or not the schedules are reflective of what happened across the board and reflective of what the players said in response to the survey we have provided the court a chart it is it can be found that if you are page one through eight summarizing the testimony of thirty eight players about the routine nature of the work quotes like except for the difference in the names of the coaches in the color of the paint on the wall you know the routines were the same whether or not they happen exactly the same time on the clock every day or for every team the amount of time spent was roughly the say i see that my time has expired or how do you respond to counsel's argument that in arizona and florida there is no claim as i understand overtime right hardly in arizona and florida there's no there's not a claim for overtime correct ok she just pointed out though that with respect to minimum wage a player safe from with respect to the work that he does in another state for days and weeks and months at a time he stuck with the law of the state where he performed the work i mean i as a point to sawyer would love to make the argument that my opposing counsel has suggested but it's simply not  it is not a and it's not the interests of the plaintiffs that counts in a governmental interest analysis and by the way is as the miki point out the the state the test that most other states fall the restatement the significant relationship test is not very dissimilar they're very similar tests and the question is what is the state's interest what are the competing state interests and which state's interests would be more impaired if it's law were from many jurisdictions around the country that demonstrate that the critical factor in the run of the mill case like this case is where was the work performed and that's because the interests of the state and ensuring as a predictive matter not as  know trying to root divide equities and a case like a car accident case that happens out of state you know some sort of choice of alliance but in terms of predicting and regulating conduct the certainty every state has an interest in the certainty that an employer knows when the employer when the work is being performed in that state other than fleeting forays across state lines you've got to apply the law of the state where the work was performed