good morning your honors the energy butros jr for the convenience of the court on that we're going to refer to my clients collectively as s o c i'd like to reserve three minutes for a bottle there number of reasons why the classification order in this case should be reversed i'd like to start with the first one that's been conceded on the class was certified for a time spirit period that spans two thousand and six to two thousand and twelve as the court knows the at the centerpiece of the classification order theory are these call notes which all come back to explain why they don't justify classification but plaintiffs concedes and it's undisputed the record that those call notes weren't used developed until late two thousand and nine and used in think from the record is that the district court certified the class based on presumed reliance theory i don't see that i actually did i have fought hard to save but it seemed to me what the court ruled was that the representation smain to the recruits were identical and the representation of a seventy two hour work week is a material term of employment that any employee would find i'm paraphrasing that anybody find very important and so reliance would be based on common misrepresentations turn concerning a key term of employment so that seems to be a presumption of materiality but not exactly  it's material therefore you can presume that every single one of the four thousand class members would rely on it that's the predicate for a presumed ally not finding i guess what are you maybe right about the answer but i just don't quite see it that it's presuming reliance it's sort of see it as if someone relied on it it would be identical in every instance because they would be relying on the exact same thing but i think regardless of how you characterize it i think the point is still available to you know exactly or even we don't think it is personalized let me put it in concrete terms in this case so first of all nevada says fraud cannot be presumed but as your honor saying the question is are there individual ised issues that would predominate and let's just look at the two class members who were deposed mr rice in grammar in terms of reliance did not couldn't remember if he had heard during the group presentation where the call notes were used any statement whatsoever regarding any kind of limit on hours he can't remember whether he learned it in a phone call with his recruiter or in an email so in a trial with him we'd say what's your proof that you rely on some uniform statement that was made based on these comments and there would be none well it's here it's even farther than that though because for some some people might not have cared exactions a whole other question they  wouldn't change their behavior and as i understand nevada law it requires that you to be able to show that but for this representation you might have done something different that's it there's somebody might have said well seventy two seventy five eighty i don't really care that that's exactly right and there there's a different basket of motivations in expectations and desires by these individuals it's different than the kinds of cases where you can reliance in just to give you one more concrete example mr darrow of the other class member who was deposed we did he it's not that he didn't care he says he didn't learn about this limitation until he was in iraq boots on the ground at a shooting range so he didn't even hear the representation and clearly it wasn't material to him in terms of some limit on our so that's really a fundamental fire on think about the thousands of people we'd have to the s o c would have the right to ask people if they heard the information did they care did it matter to them would they have gone and taken the job anyway for other reasons so you can't have a class wide determination one stroke that would decide this for rico decision at from a different circuit this court in the pool of case a rico case the client to find presumed alliance found that it to be a difficult question and in said forgetting to listen for clients and  that the that their material is on materiality without just assuming exactly assuming reliance that the the court if the court only went so far as to say well we can say it's material but then the question is materiality in this circumstance is so individualized you can't have a class action but i do think your honor in truth there's really no hints from the nevada supreme court that they would adopt this presumed alliance standard the most recent cases the j eight jones case that we've cited says fraud cannot be presumed it the case that the plaintiff relies on from one thousand nine hundred seventy three the johnson case says if we had a look at the expectations of the party and it talks about an alliance that would make it impossible to have a class and it drops a footnote and cites and number of cases including a couple california cases that but doesn't talk about prison reliance as in some cases courts have allowed classes to go forward that was in one thousand seventy three and since then now it once has been about a supreme court hinted that it would adopt the kind of sweeping presumption of reliance that plaintiffs are asking is i don't think it's the kind of disagreement or thorny question that would have to go to the nevada supreme court and it's just judge graber pointed out if we just look at what the district  a material that's just the first step in the question is would it be material based on the motivations and expectations of an individual party the the then the next issue and again this compounds the problem this is an oral misrepresentation case a narrow exception where there's an extreme situation where top down management has had people in a sales pitch usually for a product not for a job where you're going to be have a continuing relationship but where there's a memorized script that includes misrepresentations in there they're required they're trained to give that pitch and that's it the situation here is really very different it's trying to fit a square peg into a round hole to call these that a factual finding on the part of the there were factual issues you know denied some right right but in terms of the question whether the pitch was identical for that that's outside the context of summary judgment where the court can't make findings but now we're moving over to class certification representations made to recruits right down eichel are nearly identical that's different from finding that as a matter of fact they were in the court was i think tying it to the legal standard is this the kind of situation where you have a standardized pitch like in the first alliance identical so whether he used the term the pitch doesn't seem relevant let me address why it's clearly erroneous i this is not a case where that the only exposure the individuals had was to the recruiters using a script the call notes here this is undisputed in the record in the on the evidence they were notes in an outline there was no requirement that they be read verbatim or even that they be used the individuals had kind of free reign to do whatever they wanted the recruiters themselves created in notes in order to make sure they were covering all the bases the other thing your honor is that the notes themselves do not include the misrepresentation that's at the center of the case well you know all all of that seems to put blinders on to the fact that the contract between your client and the united states provided that there wouldn't be more than seventy two hours a week so that the idea that that was told to the recruit more than plausible isn't that it's absolutely more than plausible that recruits were told that they usually be working at seventy two hour a week i mean that's not not usually the contract says no more of the contract does say that but the no evidence that the recruiters were looking at the contractor that the individual oh my dear are you right here arguing that it would have been a clearly erroneous for him that the court to have concluded that they were told what the contract required that of your client so it just seems not not a stretch well let me put it look at this way or are the call notes themselves don't include the contractual language from the department of finance there's also the record undisputed in this fact that when the u knew that there were understaffing issues and they're trying to provide security it's a unique situation that the government said you've got to man those posts in the company wanted to give people a day off and and and  so on that front your honor that's you know it's a factor but let me go back to the the disclosures there were other means of communication as i said this wasn't a one time deal there were the disclosures even if we assume they were somewhat uniform there were other discussions and as i risinger says he may have learned about this in a phone call an e mail episodic communications we have to know what every person knew what they learned what they heard and if they relied on it you just can't have a class action under those  seventy two hour hour work week with one day opera week and that this information was reciting to recruits looks also that mr santon testified recruits were told it was a seventy two hour work week week six days twelve hour days and then but gravy testified it was s o c s o c s intention to limit the work week to that schedule as to the latter evident seems the call scripts describe twelve hour shifts six days on one day off  and i know you point to certain other points i just don't know if it it's enough to counterbalance and to say that the district clearly erred well i think let's if we just assume that the those issues that first mr mccartney for example testified also that the recruits knew that they were under staffing problems and they might have to work more mr bogart said he hoped everyone else was using the call scripts count the plaintiff has made some  bold statements that go far beyond the record in this case there were no instructions to the call notes mr bogart was testifying about what he knew about how he operated but if we're going to look at the written documentation the frequently asked question sheet  said twelve hour or six days a week but these are subject to business seeds and operational requirements and it was clear that the refund calls q and a's this wasn't the kind of standard pitch where what was said here's the general rule that was it there were other discussions so we don't know what each individual knew and what they found important in what they relied on i see my i'm getting to even you  an abuse of discretion standard and then you go down from that as far as the things that need to be looked at on whether or not there was an abuse of discretion whether or not the court considered in a proper factor omitted a factor law false representation has to play a material and substantial part in leading the individual to adopt the course of action that they adopt and that seems very individual because if someone had been told you know truthfully you know you're going to work eighty hours instead of seventy two they may have said i don't care and  i don't really see how that susceptible of class treatment as distinct from the contract claims which is this is the contract and it says what it says and they either follow it or they don't because it doesn't that sort of individual use the word infirm what the district court says is there is circumstantial evidence upon which a fact finder could conclude that there was just a full justifiable reliance but but it's different in every instance because that let's assume that the same false educated on that but it seems to me that you have to demonstrate that it leaves the plaintiff to do what they did and that but for of a false representation they would have done something different and that seems very individual to me well nevada law follows  z court or california relies on the substantial factor test for justifiable reliance in a fraud claim and then went ahead and affirmed class certification based upon circumstantial evidence that allowed the inference of substantial reliance it's the exact same thing that we're facing with here and it's the reason why and really the controlling case is here it's johnson and meyer johnson was the first case from nevada that the nevada supreme court on class certification regarding fraud and that was the one where the nevada supreme court said as a general proposition you don't you get it's hard to certify fraud class because of what you your own are saying there's individualized issues but then they go on and say that's not to say that a fraud class can never be certified and then they provide a footnote and they cite a series of cases from different jurisdictions where in a fraud class a certified one of them being the vasquez case so you have the johnson court specifically referencing a fraud class case that was certified based upon inferred reliance you then have the myer court which comes later and they refer back to johnson and they they say it's very important to know and to paraphrase that the reason the johnson claim was not certified is because there wasn't a common thread of fraud what what would be the practical results yes and i know you don't agree with us some of my colleagues might not agree with us but if we were to hold that the contract based claims were properly certified but the frog claim was not how would that play out i mean the class of them proceed on the class the contract claims i mean at that point and the fraud claim obviously would not we'd have to decide what to do with it whether you know is because mr recent would still and that is an individual claim but most likely the contract claims would proceed at that point but i think it's important and there's a there's a very good analysis done in the c d c matter out of the tenth circuit and the clay matter of the eleventh circuit where they talked about this proving reliance based upon circumstantial evidence and what they talk about in the predominant factor because that's what we are talking about here today is you are going to try and prove reliance based upon common evidence that is what is being submitted here is common evidence to infer to assert common general circumstantial evidence that can then attempt to be rebutted and then a fact finder is going to determine based upon what it's heard either that there was reliance based upon the circumstantial evidence of that was not whether or not you may be able to point in actually this court in the  vs blacky case actually did a analysis where just because there's going to be individualized issues in rebuttal because there's not going to be individualized issue in our case in chief it's going to be in the rebuttal and in the black vs baraki case from th circuit this court said that the right of rebuttal does not preclude predominance of common questions that the appellants might be able to defeat reliance as to a few class members does not transform a common question into an individualized one that's exactly what we have here  what's important is kind of the peterson n h in our block case out of the northern district of illinois did a good job what is being raised here are is conjecture hypotheticals about what people may have done you know they may not someone might not have relied upon this they may have gone a different about we have nothing in the record to support that mr rich injure himself we said well we have nothing in the record to support the opposite either really because you don't know whether somebody says three to eighty three through two or twenty two to eighty four and i asked the question of you would agree with me that working six days a week is very different than working seven days a week and she agreed with that and i then asked a the follow up question is you would agree with me that someone would want to know if they were working six days a week versus seven days a week and she said yes so their own witness admits that this is something important you can then go to the call script that they provided and the call scripts are  three eight zero six one of the frequently asked questions was are there legit days off so this question came up so much that they added it into their calls groups and when you know what was going to be asked is is there a legit legit day off and the answer was yes there are legitimate days off the schedule is six twelve so we have this evidence in the record and i think this is where it gets to the clear error of judgment issue is it implausible illogical to have for the district court to  conclusion and based upon basically the admissions of the defendant's no then you have on top of that the declarations of the various witnesses e r one nine one a through one nine one b and then s e r one seventeen through one forty one these are all the witness declarations that say this was a representation that i took when i accepted the job that i was going to work six twelve so there is ample evidence in the record for that for some fact finder and that's really what it is is could a fact find rely on this evidence and conclude that there was justifiable reliance on the situation we're not getting to the merits and we may go to trial but bit by bit you're skipping over actual reliance and other words you're saying yes it would be justifiable if people relied on it but how do we know that they did i guess that's really my question but agree with you that it would be justifiable and it would be important to know on all of those things but don't we still have to know whether they well it's interesting about employment cases employment class cases people make is used to secure employment except offers for different reasons correction isn't that a problem here and in maybe in a typical employment situation i might agree with that this is obviously a very unique situation which i think everybody is acknowledging this like you know mr makary refers to this is going to work in an austere location you know people die doing this job this is not the normal you know i'm going to  be a dealer at a casino or something of that nature people are putting their lives on the lines the department of defense said i think it is critical that these people do not work more than seventy two hours a week to preserve their energy and so that they don't get exhausted and and endanger themselves any more than they already are so you have ample evidence in the record on that but again it's you can prove actual reliance based on director circumstantial evidence and in the vasquez case there was an eight fourteen  california supreme court noted that oftentimes circumstantial evidence is far more powerful and compelling than direct evidence because if you put a plaintiff on the stances did you rely on this yes ok well that's a fairly self serving statement you know that any pla is going to make when you look at sort of circumstantial evidence which is usually usually objective and unbiased and in this case is coming from the defendant that is far more powerful onto the issue of whether or not somebody actually relied and so this again i believe gets back to the issue of we're talking about what an actual fact finder might find a trial and they may say your common evidence that you provided is insufficient and therefore you lose but that doesn't mean that we lack predominant i think it was in the the decision to prescribe the drug is an individual decision made by physician reliance on many different factors which vary from patient to patient so why how do you distinguish that from this kind of an employment case even though it's pacific employment right and i've read the viruses and i understand that and it's i think you would go to this and again these are all very case specific types of situations you know when taking a drug there's a benefit to obviously taking the drug versus the potential side effects and someone may say well you know i think the benefit i have an affliction so the benefit that i'm going to get i'm going to go with as opposed to the potential side effect that may occur but in this situation where everybody ha determined that nobody is disputing this that this is something that is critical you can know why you cannot work these people more than this because that is going to put their lives in danger it's a substantial factor somebody everybody says somebody is going to want to know that when they're making the decision on whether or not to accept employment because it's not you know to your honor's point it's not that they're working eighty hours a week for seventy two hours a week it's that they're never getting a day off you have to look at it in that sense it's not that i'm going to work six days used but the record shows that for the half of the class period from two thousand and six two thousand and nine and i think it was just highlighted by your cop colleagues these scripts were not did not even exist in the district court seems to have  concluded that issues predominated during the first half of the of the class period so is that problematic it's not in that and i think we brought this up actually in our brief the we certify the class of the entire time here because that's what the statute allows us to go back to what the iraq to you know the end of two thousand and nine that's fine because there's no class members that exist apparently before that based upon their verified responses  if the court wants me to to address any of the we basically have two issues that have been raised here which is predominance of manageability i don't know of or superiority and i don't know if the court wants to get into those issues but certainly the  superiority issue that was raised basically was two issues one was the amount of recovery and whether or not because the amount of recovery was larger if this is proper for classification as an initial matter because the vacation pay was taken out that drops the claims down to i think around forty thousand but i think what's important here is because we're not operating under a nevada statute or anything that would provide for attorney's fees you're talking about a forty thousand dollars recovery is the maximum that you're going to get going up against what they define in their own call scripts is a two billion dollar conglomerate the the potential to recover versus the cost of litigation is going to be one of those negative value type situations which is why you don't see any litigation on this issue so i don't think the dollar amount is anything that weighs in favor of denial of class cert on manageability it's kind of arguing the predominance issue again effectively the same arguments but there's two cases that we cited in our brief garner v healey case which is out of the north district of illinois and the in re sugar industry and i trust case that of the eastern district of pennsylvania what they talked about as if there is going to be this issue of individual reliance raise you can face the trial if you really want to you can have the you know the first three elements dealt with in one phase and then you can have the individualized issue of reliance to the extent it's going to exist in a second phase and manage it that way along with  damages it's not very complicated to ask basically the series of question of you know did you rely on this or did you not it is nothing difficult in managing that kind of a class structure and the last thing i want to hit on i guess is th e rules unable ing act in article three standing issue that was raised because the appellant just submitted a supplemental citation two days ago again and this court noted i think they're misinterpreting what our position is we're not saying that  it's ok for an injured person to collect money at the end of the day what we're saying is it's kind of a premature topic to bring up the class may include those people now but when you go through the trial those people get ferreted out you will have a damages phase where if somebody didn't work more than the six twelve then ok that person is not going to collect any money if the but it's far is the reliance issue again you can deal with it in this phase issue that way or if the fact finder says no based on the evidence before me i believe that the class relied on this representation you know other way to deal with that is to define the classes as persons who work six yes correct because that defines the non injured out of the picture right and it's very easy to to deal with because it's in the record we have the time sheets that show exactly what everybody actually worked that was signed off on them and you can go through those time sheets and say ok so this person worked more in this person didn't i see that i've gone over so thank you you have some time remaining thank you just going to pick up with a question you asked what would happen if you left the contract claim in the case there'd be even more individualized issues here the contract doesn't include a provision regarding the work week at the district judge found that it would be possible that via factual issue that the plaintiff's plaintiff would be able to argue at trial that the provision regarding employee responsibilities it says they would be responsible for duties and responsibilities customary for the role subject to also additional duties being imposed by the company so it made clear the company could add additional duties but the key here court held that that extrinsic because it was ambiguous under the data law extrinsic evidence comes in to determine the true intentions of the actual parties to the contract and we cited the shelton case which is a great example the court there said this  about a supreme court that when the temp big us extrinsic evidence comes in then the declarations of the parties the statements of the parties the course of conduct and performance by the parties is relevant so let's bring it to this case with just respect respect to mr risinger he performed under the contract just like mr shelton did he mr shelton was a divorce case and they said well you paid this amount so that must have been your intent mr risinger perform for four months took a vacation went back to iraq and get him credit for that went back to to keep working he when he resigned he sent a nice letter saying how honest the company was those are the kind of facts in an in an individual case that would be tried and that would have to be replicated four thousand times in a class action trial over a contract law mr darrow the other gentleman who was deposed he did not he doesn't claim that he learned this information that it was in his mind when he signed  district judge found was ambiguous to mean that you would only work you could never be required and not everyone works seven days a week that's just incorrect the record doesn't cite that but that would be the kind of inquiry and as the court is well aware the supreme court in the tyson foods said you can't change the standards because it's a class action and both sides have the right to put on the evidence they would an individual trial if there's a common course if there's a commonality if there was a clear provision in the contract and it wasn't ambiguous maybe we'd have a different story but we had the court found that it was a phantom the provision floating around the contract so the trial in just an individual case would be is that phantom real is it part of the contract and that involves very individualized evidence that would make a class action unmanageable inappropriate it would cut off the right to defend itself and therefore would violate the rules enabling act in rule twenty three thank you thank you very much the case just start