initially i would like to try to reserve ten minutes the initial problem of this case is that it was decided prior to this asian the supreme court in wal mart which focuses can we achieve any answer not what the question is but can we achieve a dispositive answer and i believe that cuts across all cases where we're looking for a multipl these parties similarly situated right which it is and the question is what what standard should apply yes as i understand it there is no case on point in the ninth circuit on interpret ing what substantially similarly situated means for more on the procedures to be fall or anything we're starting from scratch so i think it would be helpful if both of you treated this as if we were starting from scratch in other words we don't have to accept anything that's out there which is mainly in district courts anyway and i'd like to know where we should start and what should be the standards we just start with the if there's anything with economical how can you say it's economical because in most of these cases it's partially you can adjudicate them on summary judgment when when you have strict evidence by counsel with with respect to this case and the other case it really is a question of what the supervisors knew the testimony but least by the affidavit says that everybody had different supervisors many times different supervisors within a same day because they were going to different is in the initial phases they deducted for anyone regardless of whether or not they got a code seven they do not keep the mandate i'm sorry i don't understand what that means i mean they  talk about hauled out of control officer is working i want to go to dot they deducted a half an hour or three quarters of an hour depending on what their code seven time would have been with regard to them and having and depending upon what precinct what supervisor what circumstance what these these the evidence suggests to me that these are all different well this is the fourth case i've tried your honor on l a p d and the first time they've tried to do this individual i supervise or a liability concept but there is the knowledge is imputed first and second it's not a delegate all knowledge the the fairly month pottery makes it very clear the duty is on the employer to track hours worked not vice versa so when we walk into this case we walk in and within the first seven or eight months of this case back when when i first filed that we made a motion for s because it was that basic and that simple and what happened and the judge defer thought of global question here the way these cases tend to work now is you finish discovery you finish discovery right on the merits of the case right no not the standard that i was presenting and what's the difference because in the summary judgment my side the moving the plaintiffs has has all differences that with the point i'm making is the the right to a collective action a statutory and that statute prefers because otherwise i understand that but i'm asking you why the way this thing as a volved where we have these two stages and the second one is after summary after discovery is completed and where one would all narrowly have summary judgment why don't we just have summary judgment i agree why didn't we but we did classify the evidence does not need to be rock solid no that's why i was leaning in first and foremost to the decision a wal mart wal mart makes rock solid there has to be sufficient to sustain your  yes and we sustain our burden with hundreds of affidavit filed early on in the case which are internally inconsistent in many instances and clearly point out other than your implication concept that you had different compliant written statement in all kind of hand books and so on that said if you're going to have more than six minutes worth of overtime you have to get the permission of the supervisor is that correct or not there is a policy that says that and it's written right it's written ok that's not the policy to follow ok but but the reality is that it's your burden right since they have that policy in writing it's your burden to show that th is was not what they did and you've got these form affidavits as my colleague pointed out almost a dental almost identical except the names are different just didn't give much credence to that they were just form documents how are we supposed to deal with that well you do you carry your burden or not let's look at you with the burden that i hand i have no burden to prepare the time records for actual hours worked that's the burden of the employer by statute i have no burden to make sure that some supervisor who may or may not be there on one day or another is complying with that that responsibility but what you do have a burden to establish and provide sufficient evidence to show that there is some sort of an unwritten policy that overrides what everybody agrees is a clear written policy even if that were my burden your honor it would not be my obligation to tell my client or anyone when they can do that that's the employer absolute burden and that regard they have to produce the time records joint when and where they worked but the declaration i don't see that says the things coming out of somebodies math as it was the policy in culture talk to me b told me they're trained in the academy they're trained in the field training program by what's known as real training officers this is the danger of passive voice you know active voice statement in here about you know john smith my supervisor in one in two thousand and twelve told me or there's nothing specific about who said what to whom when in this declaration it's just a general isn't just say you're supposed to your overtime he said there is no one written policy you must take your overtime if you don't have your overtime you can be disciplined and they said that several different times so if we can't relate that at this time period then you haven't demonstrated that this this training had anything to do with the relevant time period this training not only continue but the affidavit in desperation and i was that we put in would in fact postdate the two thousand and two also you have no absolutely no statistical evidence here we didn't get to that point and those surveys the surveys or the surveys are what the surveys are but they're not statistical we didn't bring  statistician in for a motion to decertify that's not that's not the pick the purpose of the motion is to determine and a common answer resolve the common question i mean my problem that i'd main problem so far is that the district judge answered that question no i mean and eight answer in the guise of a motion to certify in i think maybe shouldn't have but he emphatically answered a no on the on the and not merely limited it to the discovery i whether or not there could be a collective action i understand and so that's what i'm saying i'm not saying we finished ours i t make is that the point at which these decertification motions were made in the in the unease in the two different cases that are combined part of this appeal these were made ten years after the initial lawsuit but was very close if it had not already passed and the purpose of the most making the motions was to see whether or not the case should go to trial as as a collective action or not and anything always troubles me when you back the merits and you either a class action or a collective action and in one sense that's what happened here but in the other sense one could view this as being the americans and i was there anything that happened here that was different without the live testimony of the decertification at that point yes i do was there was a eight days of live testimony in the nolan case which is the same issues and the same the same department that that judge fisa presided there is soon to two stage process i guess we can assume we're going to follow that everybody does but we haven't but the second is what standards apply at this point there's i mean some of the cases put out these three factors the three factors  factors are a why for example insta fact and they just seem as often happens with three factors chess somebody made it up that if the tickler set of circumstances and then they keep getting transposed to other so for example the fact that that there are various locations and different job categories and so on could matter a lot in some circumstances maybe in this one and another as it would not matter at all because if you had people in a lot of different places but an announce policy that we're not going to pay overtime for x and one matter where people were right so why are we looking at that why is that a factor by itself well it's a factor here because of the law that i don't answer that i want to know what should we just go ad hoc should we i mean how do we decide what similarly situated isn't a circumstance how first was similarly situated not identically situated and then there's this factor about  was the second supposed factor the well the defenses that are available other fences are ok and then fairness and procedural considerations would be the one which is totally they don't know what it means doesn't sound like a very useful standard so what standard should we apply well i think when you look at those three factors that say essentially totality the circumstances well should we consider the question what would happen if we if it isn't sort of what would happen here and i mean i understand the concern that these are very unwieldy but if they're very unwieldy then if you have i mean there's the truth of the matter if you had twenty five hundred these cases it would be really unwieldy right that i mean some sense and if there are in fact if this case would not survive summary judgment i mean what not what survives summary judgment as to that there just isn't muster nothing no matter what but if he didn't exactly say that maybe somebody should exactly say that we call home well you know if i can't judge judge freeze wasn't looking at he was looking at this from a decertification a decide on the merits but the problem with that is that your honors when you talk about implicit policy when you're looking at individual people doesn't matter whether there was an implicit policy or not the question for them is what did their supervisor know their supervisor know that they work on compensation over time whether i mean if somebody actually came in and said when i went to police academy they tell me no matter what's in a piece of paper don't put in you know i mean you sense a bad idea to put in small amounts of time or if that was they were they video saying you shall not work uncompensated overtime this is a violation and please discipline and fired for working for violating this rule so that there were such people actually just yes we presented that in the decertification motion there there were there were actually employees who were fired for violating the overtime policy by not reporting overtime and and there's that we submitted evidence of there were there was even a plaintiffs submitted of a sergeant who was a plaintiff who said that they they would never let one of their subordinates work on consummated over time they made sure that if they work less than an hour they got paid for all overtime work on a change of focus just for a minute one of the things that judge cited was the real case which dealt with orange county but substantially similar allegations what what if anything should we take from that case  case there were about eight hundred or so plaintiffs in that case who were sheriff's deputies the case was decertified like this case and they were told that that they had sixty days or i think a sixty days to file a new lawsuit one hundred thirty of them did file individual lawsuits those cases were consolidated invention subtle so i mean that's as far as is what to learn from that it's the same thing here which is the twenty five hundred individual plaintiffs could have filed individual lawsuits and they they didn't they instead filed sort of these many collective actions along the same lines as as this case which which were also dismissed but not of course implicit policy question is the question that runs across all twenty five hundred officers potential cases so i've i find it difficult to see how it would be efficient to  decertify the case when the case could have been proceeded as a collective action and then case bifurcated have some consideration of this question of is there an implicit policy  current record that's within with witnesses and evidence and the whole the whole gamut and just decide as a common question whether there's an implicit policy or not and then once that's decided if if the conclusion is that there was such an implicit policy and each individual circumstance could be addressed one by one and i suspect a lots lots of them i supposed to consider the merits at that point correct i wouldn't say i would agree with that he was considering the merits of the argument because the the during the facts of the factual presentation to determine whether there was sufficient evidence to support that argument yes he was a what what would what standard should he be applying the summary judgment standard we've been talking about sort of like a j mall has this  and which supervisors were involved and so on and that they had simply not met their burden and therefore under summary judgment or any other standard that the plaintiffs had not met their what they had to prove and  advantage as well right because then you have an issue preclusion on any issue if if you win and you don't have to let it get in twenty five cases it's to our advantage but it's still the for each individual plaintiff they still have the if there is no winner in policy they still have the issue of oh that's interesting like you guys there's no there's an written policy so let me ask you something you have and i would like to know what you think well i think that the since the plaintiffs in this case are the name the name plaintiff subtle thou and the parties that appealed to decertification order had actually been dismissed so as we noted in our in our briefing they they were not even and i get the sense because the only people who really care about this now are not the personal settled out but everybody else who are party plaintiffs according to the statute that's what it calls them right there they're the actually opted in they are in the case and why can't they appeal with the fact that they've now been thrown out of the case at from the final judgment because that's when you appeal things like that you  well in this in this particular instance because they then went and filed separate actions and that's the subject of the other appeal that's in front of you are the other actions that they wanted filed so then then you have a situation where there are two different intervene and they sit out there and they're never even come into the case but they still my understanding is have some way to tempt to appeal the fact that they weren't allowed and i think it i think it interveners like in the case they were actually in this but when you say this the right that each interview the individual plaintiff has is the right to pursue their f l say claims that was not of what you're saying but why don't they have a right to pursue it within a collective action if there are probably in a collective action the statute says out of this case on the ground that they weren't similarly situated they say they were and they won they're asking us to let them stay in the collective action because that's what they think they can meditate better so the fact that they can go to something else isn't much of an answer it that's not true i don't agree with that they with all due respect your honor counsel can i ask you this on the appeal ability question i don't see that any of the parties has raised this issue and certainly no one has briefed certain about the collateral or doctrine does it make any sense for us to get involved in the appeal ability issue in this case because they raise it nobody but nobody briefed it you point to yes i mean we  this aspect of the case in effect is ready for us to make any determination i don't believe anybody raise this aspect of it and one of the ways that you get to appeal in the least potentially is to follow in the collateral order doctrine what does that fit as my colleague mentioned earlier i didn't see any briefing on that that i missed something i don't believe there was any briefing on the i think story ok i just want to go back for a second to the judge fees decision on the certification on the motion and what standard of review should we apply abuse of discretion or don't know i believe it should be abuse of discretion and why because it's not an issue of well it's an issue that judge feels may factual findings and the sufficiency of the evidence the sufficiency of the evidence for the case to proceed as as a collective action  and the determination as as a sufficiency of the evidence there is something that is really inherent in the district court's case management responsibilities and the ability of the district courts to manage their cases is reviewed with an abuse of discretion standard thank you thank you very much to be brief i think one of the major questions is come up in this hearing is what is the proper allocation of the burden on a motion to d certify and here what i think i have a primary concern about is the skewing of my client's burden of proof that is their their burden to address for two reasons one it is a it is a non delegate well duty you may not delegate the record keeping on overtime to people who have no idea how to track it they have no training that's not their job and i will tell you right now that if that's the other thing you  structure this case in science or stand as a structural case in which you said that and i don't think improved that the system that was set up to determine whether people working overtime or not was inadequate system that the people on the shop were not monitoring the people on the bottom adequately that that's not really the way you set the case up but then you set up a saying that there was an implicit policy not to do this somebody was telling people or they were understanding that they shouldn't do it rather than what was probably really going on which was that the people at the top really didn't want to do it but some of the people at the bottom were in the middle word following that and the people at the top perhaps weren't monitoring enough but you it has to be somebody above a supervisor that can tell you not to work or work that's not true the judge fell for her that was late and he attempted to put it on our back to show that overtime had or had not been worked by people who had no idea what compensation in overtime one of the f l s say with time and all the intricacies of collective bargaining they have no clue that's not what happens and that's where the issue rubs and the other part that i like to make and i don't i'll be quiet ok code seven we we'll legs code seven and they acquiesced and corrected it