as your honor may it please the court this case involves the owners of a company who concocted a scheme to secure truck drivers for their business they obtained h two b v says under false pretenses and then recruited workers from mexico including our clients the workers alleged violations of the f s a and rico stemming from defendant scheme which were dismissed by the district court and the issue on appeal is whether the workers complaint adequately alleged violations of the f s a and rico i'll start with the f s a allegations and then moved to rico the district court dismissed the workers minimum wage and overtime claims under the f s a stating that the complaint did not adequately plead that workers recovered employees under the act and two that the allegations were not sufficient to put the employers on notice of their potential liability under the f l s a turning to coverage the workers allege that and gauged in commerce so we allege that they had the requisite volume of the business which was five hundred thousand dollars and then that they handled the trucks they handled sold or otherwise worked on goods or materials and commerce which is they well the handling clause within and enterprise coverage is very broad it covers anything that has been moved in commerce by any person and what we're is the evidence that what was all came out well that enterprise coverage anything that the trucks themselves we allege that the trucks themselves were moved in commerce and that and that they that they transported equipment and construction equipment and other materials in their trucks and for the handling clause you know the courts have held that virtually and every enterprise in the nation doing requisite volume of business will fall within the handling clause because literally any products supplies equipment were that are produced are shipped from outside of the state would would would result in enterprise coverage  driving the truck that was built in another state and nothing is that what you're saying hit the human interest of the truck came from oklahoma and it came to texas and the person drove it then that's enough yes absolutely the trucks the trailers and and anything that they transported that that was a part of commerce would be enough to set a very initial stage i assume he'll do discovery and the discovery you do is w the trucks come from and if they were all built in texas made in texas all the gas thing from texas plants nothing came from anywhere else and maybe that would be there for now but you're thinking there's enough indication that something came from outside of  yes as i said the handling clause covers anything and as you say your honor there was no discovery in this case we're just supposed to make a plausible claim and the court is to draw all reasonable inferences from the in the plaintiff's favor in this case and  all state versus palm back they found pocket cause at where rico plaintiffs were foreseeable victims of a friday island scheme and the resulting entries were the object of the scheme similarly here the employer scheme was just secure and  underpay workers and the workers were injured by the underpayment not only were the harm suffered by the workers the point of the scheme they were the harms the h two b fisa program requirements to prevent in addition the workers here are the best job that pays fifty dollars an hour you can't go out and get somebody from another country because you get american citizens you do it so that's a piece of it and so the problem is they advertise the twenty dollars an hour and that have been t so you know if you refer to many of the allegations in the complaint they are directly about the kinds of commitments the employers are required to make to the workers that they bring in under the program including the pay a pay wages reimbursement for recruitment expenses and not taking doctrines from their pay so to start initially i would say that the h two dollars b program has the effect of probably protecting domestic workers but to get to your point judge haynes it is not clear from the record we can it is not a fair assumption that had the the employers advertised the jobs correctly they wouldn't have been able to bring in the h two b workers to do prevailing fraud rico involves both this the claims made to get to the government to get the v says and also the things that they did when the workers were here and and the you know they're the real fraud is their failure to commit to the requirements of the program and this court in abraham versus seeing addressed the nature to be a fraud scheme where the court directly said that you know that case was dealing with the continuity question whether the fraud was was continuous however in abraham they said the allegations involving the scheme included not just put plaintiffs recruitment but also their treatment in the united states and so that similarly here you know we can't say that they weren't injured because the assumption that they were they wouldn't have been injured because they would have gotten the job wholly ignores what happened to them when they were in the united states the you have to ignore for example that they performed and i'm not saying again i don't mean to suggest in any way that it should be doesn't also protect immigrants i'm just saying that the structure is st set up to make sure that there are american workers available that's all i'm saying that they're getting back to boston applause it seems indirect not direct so how is it your rep well as they were directly injured because of their underpayment and the underpayment is is a market based prevailing wage rate right so we can't say if i was unemployed and you offered me a job paying one hundred dollars an hour and i worked and worked and worked and then you paid me ten dollars an hour we don't say oh that's sufficient because you were paid and you were unemployed before you had an advantage that doesn't make it a recovery operation that's what i'm focusing on sure and the the f l us a claims are a floor of minimum wage rates the prevailing wage rate is much much higher they are not entirely overlapping claims that and there is probably a substantial amount of the work for which we are seeking a much higher wage rate under the prevailing wages than we would under the  that is that is one point the other thing is that rico is intended to you know give people civil remedies when when an employer and gate or a defendant engages in criminal conduct  it is a serious violation to commit piece of pride one for which there is up to two years jail time on its own so it is a simple serious criminal act that the defendants in this case and gauged in multiple times in multiple ways  and the to the plaintiffs in this case were that direct harm directly harmed because they put in they left their homes they travel to the united states and they put in hours and hours of work and they were severely under compensated for that work within the h two b program scheme they're also the best situated to sue because although you have noted that other united states workers may have been displaced by the f or perhaps other of black manned magic's or the defendants competitors might have been hard from the scheme the thing that the united states supreme court really wanted to caution against was having too much attenuation in determining whether or not you are injured and here nearly anybody else who would be a victim of the scheme would have to start with the original injury of underpayment of workers to derive their own damages in the case so the other issue is let's shift back to f l say we're going to address the issue of the amount controversy yes so the  point that the lawyers made was regarding the sufficiency of the f s a allegations and here a minimum wage complaint is sufficient if it pleads facts showing and at least one workweek the pl plaintiffs received less than seven dollars twenty five cents per hour for an overtime violation it is sufficient to allege that in at least one work week the plaintiff worked more than forty hours and was not paid time and a half for those overtime hours and we've cited numerous cases within the circuit and also in other circuits at page thirty nine of our brief and also on pages sixteen and seventeen of the reply brief here the workers listed numerous allegations regarding their work and pay that should have been enough to put the employers  notice of potential liability for example the complaint alleges that our way eighty six dollars paragraph eighty seven dollars that sometimes the workers were not paid at all during several pay periods in which they worked fifty to eighty hours this allegation alone puts the employer on notice of minimum wage and overtime violations in multiple work weeks furthermore at r o eighty five dollars paragraph eighty the workers allege that they work more than forty hours per week in all weeks that they were employed by the defendants and regularly work they worked and between july and september th at our way eighty two paragraphs fifty one to fifty three given the general pleading standard that the complaint need only state a claim that is plausible on its face and give the difference noted some of the claim  these allegations were beyond sufficient to meet that that standard there were two other points with regarding rico one was an open ended continuity which i addressed briefly when referring to abraham versus seeing in that case in this case the allegations begin an early two thousand and fifteen the workers were brought in under two thousand and fifteen and then in beginning of two thousand and sixteen they've made the exact same application seeking construction and similar facts in abraham versus saying that they found open ended can you continuity when there was no reason to suppose that this systemic violation would not have continued indefinitely had the plaintiffs not filed their lawsuit the last point on rico that was raised by the defendants was the joint grouping of jesse and carmen ramirez and allegations i just want to point out that there are plenty of individual allegations are always seventy five paragraph twenty three where are always seventy nine dollars paragraph thirty five dollars jesse ramirez signed and swore under penalty of perjury that the forms were correct knowing that they were not and many of the other allegations were pleaded together but the the best inference from those allegations were that there is nothing in this complaint that i can find that says even as judge haynes suggested that there is trucks coming from out of state or petrol or gas coming from out of state or goods or materials coming from out of state for purposes  all they're saying is that they get in under the hand so we need to find in the complete some sort of evidence are not evidence but an allegation that something came from out of state and the only one i can find that's even close is that is not a sufficient allegation of interstate commerce to trigger that say captain what's your best case that says that it's to reveal some areas my best case i understand that's about individual coverage but my point there is that's a that saying look if you just say there's a truck involved or there's gas involved or i mean sabrina is actually a very interesting case in the sense that it's about a hotel a hotel it's almost a parody of magic thing to be interstate commerce it brings people out of state to come and be treated at houston metals and that sorry and that was not found to trigger interstate commerce and similarly here i do not think that simply saying trucks and gas triggers interstate commerce under the st amended now let me turn to the regular situation the supreme court has been very clear that rico requires a direct the way i would illustrate that is my reading the very st paragraph of their complaint which says they we might my clients entered into the scheme to bring foreign workers in under the guest worker program at the lowest wage possible well below the local prevailing wage which defendants would have had to pay if the feds had accurately described the work that is not so the defendants would not have paid the prevailing wage of twenty dollars an hour to  they say they should get the delta the difference between twenty dollars an hour and thirteen dollars and seventy two cents a hell or maybe less than thirty two dollars depending on whether you believe we even under pa that has a big logical flaw in it because no one dollar would have gotten twenty dollars an hour if the fraud had not been committed they would have gotten zero dollars and i don't say this to defend what my clients allege done i'm not trying to a direct proximate cause for the purposes of rico i think we can see that and we can see that holmes you can see that in heaven let me just briefly touch on foreseeability that my friend on the other side mentioned but i don't think we have a lot of argument about it any group is very clear that foreseeability is not the standard i understand that in normal common law proximate cause foreseeability is one of the only a necessary but not sufficient basis for direct cause judge chain's you said something about how the fact that the h two b fraud it was committed did not actually lead directly to the underpayment there worse another set of decisions which was to underpay these immigrants that's exactly right that's what the sets once us has that if there's a set of actions occurring later that breaks the chain that's exactly what happened here to ensure the bay area we don't know when they made the representation what their intent was it could have been a lie all the way through or he could have been a later derived law like now we don't have very much paper our employees both h p v immigrants and american citizens i think that's right your honor i don't think that makes any difference to the proximate cause analysis but i think that's true as a matter of is harmed directly by this and could bring a regular suit there's tax revenue that's lost and i'm sure the united states could put together other causes of action and then we look at the complaint itself and the plaintiffs are very clear that it hurts the competitors of like magic and that is a direct harm if a competitor or a black magic is being undercut on their wage costs because black magic is committing these a problem that is a direct proximate cause clay and might be able to be brought under so that's certainly a much more directly then we can look at other immigrants to the united states other people who want it should be beezus you know this is a limited bucket of visas and these days it's even harder to get this as i understand these people are taking away two b visas from other people who deserve them and so that's another set or plaintiffs and then of course american workers which is exactly who this program is meant to defend and protect those people can bring claims let's say there was a set of particular american workers in this area who had their ability to drive heavy trucks taken away by the fact that labor was being brought in from south america or from mexico at less than probably ages they too might be able to play and those are all direct claims in a way that this is stepping back just a little bit i do want to make the point that we don't want  retail into a super charged phone and say we all know that rico is an extraordinary statute it unleashes treble damages attorneys these it's stream lee difficult to deal with so if they had f l s a claims they should bring those if they are breach of contract claims in state court which they might hear they should bring us but i don't think that we should turn rico into a substitute for them say the case i sent you from the th circuit on thursday d says that  expressly i know that's not presented here i wasn't trying to assert that you can dismiss on that ground here because i leased wasn't able to make that argument because it hadn't been brought up in the district court but it is an important point that i think one ought to keep in mind when doing the process of if i could turn next to the rest of the f l s they are and so i've already said that i don't think they get there on the handling clause because they haven't there's not a single sentence in this complaint that says anything about any item coming from say it is all of us to unbelievable this you could have all these trucks all this gas and all this other stuff and not a whiff that came across the border etc it just seems highly unlikely not just not plausible or whatever but highly unlikely that all of that is created in texas and not a whit from anywhere else since we know for example that vehicles even the ones that are supposedly american vehicles like cadillacs are made in other countries and then japanese the apples like toyota's are made in the u s and i mean we know that and so i guess again we're just looking at a very will say as the person they are you're working at a hotel and they were driving a truck and they were driving people around houston those all be exactly as true under your honour's argument or you know s if course it's quite impossible that that truck was entirely me texas it's quite impossible that all the fuel came from texas it's implausible that the all the guests at the hotel that were brought in to houston came from texas i'm sure some were and some probably were from state and i think that if that were the rules of radio has to come out of the way and so does hennigan which is the case about the i think it's the person at prison who's running sort of a barbecue operation or something that is the individual focused on the individual as opposed to the handling and the enterprise yes your honor absolutely that one is an individual claim but i think it's a it's the same pleading if that was commerce there or do you participate in interstate commerce or more and the court said no with respect to syria maybe that's a surprising result and it certainly was surprising to me when i st read it but that is what this court said you know by the rule convertor that's what i think it covers yes it's about the individual park and not the enterprise coverage here but i think it's about the c d c and that is i understand your honor you know me not to agree amount question because to me this is your argument about the pleading of you now this is really kind of inconsistent with the tyson foods case from the supreme court which while it was about something slightly different makes the point that you don't have to know every nd as long as you are again mausoleum less is what happened and they said there were these weeks that we worked fifty to eighty five hours did not get paid overtime there were weeks we didn't get least close to an approximation of how much money they should have gotten but were paid and here the allegations are pretty broad i mean they say we were you know we work between forty and sixty hours they can say fifty or fifty five you know whatever it employer has to keep track of this kind of thing and we're not going to let you out of like i said your honor i think it i don't have that's not my strongest argument i'm not going to say that i can win on that one although necessarily i think it this court could take the opportunity to say what they need to do in these kind of cases they get through the plausibility standard and i think it ought to be a little higher than this but again don't have a case other than the district court cases that i've cited in my brief that says that directly so you know i can't really fight with tyson foods on there in that respect but i do think that just like this you just said there were things that were omitted that could have been put in here and made the plea was if i could spend the last two minutes of my time talking about the amended complaint which i think we haven't gotten to before i think the district judge was well within his discretion to deny i think that brings it well within the district courts discretion especially because the prejudice to my clients at that point we've won the case affected there is no final judgment yet because it's a it's a quirk of this case that know that the best practice there if you can is to admit attach an amended complaint and if you can't do that then you should explain what you would please that would make your complaint better but they put their all their eggs in the basket of fighting on the merits that's a perfectly good decision you know it's one high paid many times that i'm not castigating them for that but the point is that when you make that decision mr jones now has already to dismiss the needed to plead facts showing similar things to the supreme you and had a good case it's those cases are totally different the pleading standard would be different and so brainy you know for example involved a case where they had already determined that the district court that they didn't need the business value sales of five hundred thousand so the only issue was whether he himself was personally engaged in palmers they didn't address whether driving trucks would be handling because they never addressed handily in those cases they're not appropriate cases and the reason why mr makoni and can't find cases that talk about that that say that we need to be more specific is because there aren't any of the cases that deal with the handling clause say that it's very broad it encompasses nearly any enterprise that meets the requisite volume of business and we have cited those cases in our brief  i believe at page thirty five with respect so so we i don't think you can use so bring your heading in or any of the cases that have been cited for this position and he as as was helpfully pointed out we did a legit our way fifty five that by hand by driving and fueling trucks that had moved in interstate commerce that was part of our allegation as well turning to proximate cause so turning actually the nd part about the let's say is the sufficiency of the allegations yes the tyson in that the supreme court in the tyson case cautioned against making pleading and in person possible hurdle particularly when most of the information regarding the hours the space the specific information that you would need to make a calculation are all in the custody and control of the employers they are required to keep those records under the law i would also point out that our allegations include that they didn't do it our way sorry we have alleged that our way at eighty five that that they didn't keep the records as required by the law so you know which was that other issue in the tyson case if they haven't kept the records then that's another question about how us stablish proof you certainly shouldn't have to do it at the pleading stage  before there's any opportunity to exchange information turning back to proximate cause under rico mr mccauley actually on the go to say i mean if i say i problem i mean yes i should be keeping track of my time but that's not the same thing as the employer keeping track which then is much more solid evidence why do you think that supports the  exactly and all we have to do is make enough for the defendants to be put on notice that there are violations this isn't a this isn't a case where the allegations are they worked on average thirty seven hours that doesn't it doesn't allege overtime violation if you say that in this case the plaintiffs worked more than forty hours in every work week and were never paid one dollar and one dollar half times and overtime rate and in multiple work weeks they were not paid at all  and that should be sufficient also the only case the kit one of the cases that were cited in the employer's brief is johnson versus heckman it was cited for the proposition that they need to demonstrate how much was