thank you your honors and may please the court bradley hamburger for defendant an appellant came industrial tend to reserve at least five minutes for rebuttal this appeal under the class action fairness act concerns a narrow question whether plaintiffs complaint puts that issue at least five million dollars the district court remanded this case because it concluded that kane needed to put in evidence regarding the length of shifts that the putative cost members were believe was lacking i'd like to start with the nature of plaintiff's challenge in his motion to remain on the plaintiff and this is really important because there's a critical distinction under this court's case law between the two types of challenges defendant's allegation is evidence is that the only way it can be done how how do they put them to their burden of proof i understand that you know for pleading purposes they don't have to come forward costumers work part time and so you're assuming something that is incorrect and it could have been very easy i mean the plaintiffs here could have put in a declaration or even not maybe just a statement in their motion saying you know the plaintiffs coworkers these guys go workers they all were part timers and there wasn't any sort of assertion like that so i submit that you know at minimum they go they've so they they didn't come in and say you did it wrong and you could have done it another yeah i think that's correct i mean they didn't come in and say but they basically said what we've put in wasn't false and incorrect it just wasn't as efficient yet whether there was so so they basically said that there should have been more detail in the declaration and that's essentially wh  that isn't the end of the matter because as the reist case makes very clear a defendant doesn't have to come forward with evidence on all factors related to the amount of controversy calculation instead a defend can come forward with assumptions or reassess the specifically as long as they are reasonable and they can be grounded in and found in the allegations of the complaint and the district court here said no that isn't what we what was necessary what was instead necessary was actual submission of evidence of shift blame but i think if you take a look at the complaint well but isn't that the judge really saying that you didn't come forward with a reasonable here the allegations repeatedly talk about with respect to meal breaks and rest breaks of continual regular denials of meal breaks and rest breaks on behalf of the plaintiffs and the entire putative class i know that don't they have to be reasonable assumption and i think they are i think if you look at the complaint that there are the thrust of the entire premise of the complaint is that there were policies and practices related to security screening related to  california law you get entitle minter rest breaks depending on your shift length there's no allegation here that you know this is a fact that only a small portion of the class that this is this is a class of mainly part time workers and i w submit that if that was the case our assumption would not be reasonable if there was some reason to believe either based on the allegation of the complaint or based on the plains of statements in their motion remain or based on any evidence the plan to put  that that majority or even a partially part time workforce i could understand why our assumptions might not be reasonable but when you're faced with a complaint  an industrial cleaning business and so they have clients that contract with that need cleaning of things like oil tankers and other industrial operations so these are big jobs i they talk about the security screening they've been alleged that it takes fifteen minutes to take off and take off that year so the idea that this is a workforce of people that are working three hours not even getting one rest break i don't think is a reasonable you know assumption based on what was alleged and given the nature one more point on this the plaintiff in this briefing is focused a lot on the definitions of the two sub for each claim and they just put in the elements of the claim and those you know the ship plans are obviously elements of the crime but putting that aside the factual allegations as i mentioned before and this is for example eighty one  massive influx of cases being removed to federal court federal courts or courts of limited jurisdiction and we very carefully and very articulately define the class definition of the industry and the work that everyone would sell a class or over three and a half hours that the nature of the industry and the nature of the work is not part of that evidence is not part of the record and what we're dealing with in this case is is the damages exposure that just barely went over the five million mark they have one hundred percent of all nonexempt summary judgment type evidence in the form of a decoration demonstrating not generally but to the hani what the class was owed if you take the factual allegations in the complaint as true when you take a look at it landers and landers be focused on off the clock work which there is no record of the focus on respray violations which there is no record of these claims that we've identif are are very articulate and so what what specifically are the assumptions that they've made that you challenge and that you think that they now need to bring proof to support well as a threshold issue i would argue the any additional proof that they could bring at this time is our clothes once you know the laws are clear once a of litigation oh my question is predicate to that if it is what gives you a serve and challenge in order to trigger the factual presentation  because you have to contest it in order to make them carry the burden what were sacked lee tell me what were the assumptions you were challenging that they then had a burden to respond to have failed to me the case law repetitive we explains that it's defendant's obligation provide summary judgment i think evidence to the truck court substantiate their position and what's unique to this case evasive or not answering the question i just wasn't clear on what was being asked of me the assumption was that every single nonexempt employee who work in the state of california the four hundred and forty two dollars persons all words shifts over five hours to be eligible for a real grave and you say it you say and that's unreasonable because that's not a result because i think the court found that those are reasonable and i've handled hundreds of wage and hour class actions there is many times that you know there are many part time employees that are not eligible or a meal break it's possible that many or most of those individuals particularly familiar with defendants business model in terms of submitting evidence they have all the payroll records show whatsoever of including all for forty to over five hours what other dollars defendant in mosques keep track of all hours worth they must keep track of the start time well how does that make the how does that make the assumption unreasonable it makes it unusable when the defendant has the records and that in and points and identify the number of violations based upon the records so you object  is that right you're i'm not i'm not going to you know dispute obviously what judge works really is at this point it's quite possible that the defendant has evidence carefully circumscribed the class definition to include persons who work shifts and access of five hours persons who work shifts in excess of three hours and as lawyers and judges we make rulings based upon the evidence and there is no evidence for other that plaintive to be eligible for merely it's probable and we're dealing with reasonable estimates but if  based upon these facts and this small of a class even if we had an estimate of fifty percent of these people being asked numbers they still don't meet the five million m and they had their shots we disputed in the notice removal and you know one may argue that they didn't even come fly with standard fire and all of these other cases as they look defendants burden to provide evidence for the class and to provide evidence for the class the structural issue is you need to demonstrate who is the you know if they had substantiated the assumption you know three dollars or over five hours shift that the that at of any any other questions by by the  it specifically held that you do not need evidence on every factor of every speech you're on a country's requirement you can rely on reasonable sometimes based on the complaint in fact that's going to be necessary given calculating percent violation rate given the nature of the allegations in the complaint was conservative we're not claiming here everybody all four hundred and twenty dollars members never got a never got a rest break every day they work it's a twenty percent violation r but then when he got to the shift the problem was his he erred in requiring us to put forth evidence which again we will do if you remain on the case and give us that opportunity to do and we honestly did not believe that this was the argument the plaintiff was making based on his identifying the future of class with our client that included all of the people there was any suggestion that there was an isolated incident was some members of this was a workforce that worked part time if there had been we would have of course substantiated that and we still could do that and i think the simplest thing if the core is inclined to reverse it is to remain and give us opportunity to assess this based on the reality of what actually happened here which can be easily done in a very quick fashion and your hono