discovery the issue of whether denis are similarly situated to name plaintiffs is to be determined by a preponderance of the evan i was asking not the standard of proof not the burden of proof rather our stand now the standard of review i think both sides have said it not to be abuse discretion but i also think you've agreed that the court that this court has not made a determination at least in a presidential opinion that's correct  on the standard of proof you suggest a preponderance of the evidence and the f l is a mechanism is kind of an unusual bird it's not a twenty three mechanism obviously you don't have the whole detail procedural rule which establishes it governs how the a class is actually assembled and governs other aspects of it but the oddity seems to be this two step kind of so called certification if that's what it is at the outset i agree that in and of itself was really just kind of a pleading standard at that stage not quite a pleading standard normally you come forward with some declarations she come forward with sending her loss something pleading plus but the second stage in reality turns out not to be a sort of occasion stage but invariably a decertification request normally it's a decertification request but in this case wal mart was content just to let us move for final certification because it was content to just regardless of whether you're moving for final this or sort of and but the question here and by the way i'd like to reserve for a minute is were rebuttal to twenty six but the question here preponderance of the evidence but the question is what evidence is relevant and for that purpose you need to apply the correct legal standard and the correct legal standard is something that this court reviews the district court did and the error of the district court is what the district court required was the rule twenty three legal standard i've heard dominants why do you say that what situated there is but your jordan's question is what is that it suggests that the district court applied will county three standards rather than the similarly situated standard that we look to and it is a right what do you what are you looking at  opinion because what the district court did is relied on differences that are legally immaterial well i'm not sure i follow your logic you may not agree with how the district court came out but that doesn't mean that the district court judge look to differences that are legally immaterial what i mean by that but that's the district court that's just a way of saying it was wrong right and i know why the wrong standard no that's not what i'm saying what you look at and what courts look at what the o'brian case says if you look at the theory you look at plaintiff's theory now what is that mean what it means is what is what the schizo frank isn't it because it talks about different facts it talks about different kinds of things that a district court could look at to say well you're not similarly situated if a theory was all you needed then no difference would make a e second circuit case in miers the hertz vs eleven circuit case in morgan the family stores what's the difference the same issue was being litigated whether or not there was an executive exemption to the fair labor standards act but what the court looked at and what turned the case in more again in favor of class certification of a collective action was the commonality of a common handbook as a matter of fact the eleventh circuit called it a one size  we've got one at least a couple dozen more than that actually a difference of contractors who are working with their employees in various places a confess i know i don't remember precisely how the district court it but they would be different subject to different some different offenses perhaps and statue in patients the fences in certain instances and perhaps joint employment defenses and others i mean these are all things that this report looked at and said you know what i think there's enough going on here that's different that even though everybody is saying in the end hey we didn't get paid what we should got you know we were we were misused served that it's different enough that there's just they're not truly similarly situated why can't the best record look at that the district court can look at that but the district question focus and the area of the district court here it's focused on legally irrelevant facts is that because situated so he really relates to the cause of action or a legal theory rather than the facts and circumstances of the kids assertion in the same claim the fact though they are similarly situated not necessarily what they're all what joins them all together here is a common policy enforced by red mark maintenance manual all of the contractors were banned on by well marts inspection daily inspection as to whether or not the cleanliness of the stores met well marked standards  raised anything other than the means and methods by which the employees the cleaning people actually perform specific functions and how they were seen in the school has actually and that's exactly the point when when how is that relevant to similar situation because the issue that's being determined here the only legal issue as to liability is whether these perfect analogy this was because he said it describes it talks about your case it's talking about the end result they want it doesn't say and you will  have employees report in this fashion and you will pay them in this fashion and you will do x it's talking about how you clean the rug how you wax what you put in the toilet to clean it how does the fact  does that contribute anything to whether because they situ and when you control the work when you control your work just like when you control the premises by the key contractors here didn't have  the type of clean that would be done and whether in fact contracting would be done to the store managers it makes no difference because the well mark maintenance manual it's  asserted class are similarly situated absolutely and that's the meaning of morgan fee family dollar stores carry when you have a one size fits all manual that dictates that afternoon your honors may have please the court david murray for apple the wal mart stores we do agree that the a standard of review of the certification question is an abuse of discretion and we would also urge the court if you're going to address the precise burden of proof at the certification that it should be the preponderance of the evidence standard for the reasons that we outlined in our march sixteenth letter brief how would we avoid talking about what the standard of proof is i don't think you can and when you focused us on that question we went back and looked at your guidance and some sick we looked at the cases that are side at their we looked at the cases that chief judge brown cited in his decision all of them talk about a more rigorous analysis at the certification a heavier burden that the plane to spare they have to make a more factual based showing so it all it all points in the direction of a preponderance of the stamp of evidence standard and you folks actually agree on that point right yes i think we have agreement on the standard i think the discussion about the wal mart manual that really goes to a question of joint employers this more than similarly situated it would be a basis and i think  judge brown noted this in his decision to look at the extent to which as an alleged joint employer wal mart was exercising supervision over the workers but it doesn't go to the question of whether they were similarly situated for purposes of the wage injury that they allege and on that ground as judge a chief judge brown's decision details over twenty citations to the record evidence the compensation practices of the different contractors resulted in different types of wage injury you had some folks who in fact said they did get paid overtime but not every week others who never got over time some people claim that their wage injuries were they didn't get checks for the last two weeks of their work others claimed we had to pay the contractor security deposits and when we left the crew we never got that money back there is some commonalities in it i mean the they have some issues in common we have to do with wages the determination of whether the wages were fair or not it's really a mathematical issues and it's much more than that because the nature of the wage injuries are so different so you do have for example some of the op tents who said we work forty hours a week it's either the biggest the biggest issue is not being paid overtime that's probably the issue that you see in more of the opt in claimants evidence but not the only one i mean there are those who in fact didn't work more than forty hours a week those who said they did get overtime on occasion aren't aren't you the answer if you would  or from the letter actually march ninth one twelve where they say look there's always going to be some differences here and there and i mean nobody's going to be identically situated that the things that the the defendant i s are pointing to the things that they point to are really just minor differences that don't undermine the basic commonality here which is wal mart was stiff and everybody should have gotten paid only for their work and they were in the fact that the stiff mr a in this way and his be in that way is relevant to the point that they were employed fashion that wal mart ultimately exercise over and they were not the unpaid what they were and that's the common point that's what i think to be their pitch that it really let is a theory that these were undocumented workers and that they were taken advantage of and not pay a statutory minimum  in some way or another but the problem with that general theory is it doesn't pass the similarly situated test within the meaning of section two sixteen b i'm trying to get out because the point of the collective action under two sixteen the is to allow the representative testimony of a few to establish a wage a violation that then demonstrates the harm to the remainder of the op and claimants and that was not possible in this case first of all because the nature of the wage injuries varied based on the compensation practices of the various contractors and one possible answer that the commonality goes only so far as that these various plaintiffs are seeking the same or similar remedies but the differences that stand in the way of a determination similarly situated go to some of the other factors yes i think here you have you have both a failure by the point is in fact i would say their own evidence to refute it that they were similarly situated to the name plaintiffs but you also haven't it's very well accepted in this circuit in other circuits to additional factors and that is either individual differences that would make collective treatment to determinations the district court relative to manageability and or unmanageability given the various differences that the district would perceive here yes i think chief judge brown as the trial court was in the best position to look at the evidence to consider how would i try a collective action under the circumstances and as you see in his decision he didn't reach the ultimate determination on any of the individual defenses he just examined them for purposes of manageability he also looked at the fairness and due process concerns of trying to bring one hundred ten people who worked in over one hundred thirty stores in over thirty states for seventy seven different contractors and he said clearly the concerns about judicial efficiency fairness due process weigh against the collective action i think that this court should give trial judges a lot of deference in making those determinations and certainly one of the abuse of discretion standard given the evidence here what  brown ruled was certainly within the range of permissible decision it's just saying your claims or back wages specifically failure to overt not not in every case your honor there are some options who really did not have overtime claims we also have a problem in that a number of them were time barred what are the claims the have i'm sorry is that what the size overtime that there were security deposits that were paid to get the jobs and those security posits were never refunded that there were several instances where often claimants allege that they left the crews and were not paid for the last week or two or month of their employment which would cover not just overtime obviously but also  if they had if we thought they had waived it could they legitimately say hey wait a second even if you believe that the people who said we didn't get over time are so different from the people who said we only got overtime occasionally you could handle that by just saying ok we'll have represented testimony from once from another subs i mean why why was it an all or nothing thing the request by the plaintiff for certification was all or nothing as i'm sure you've seen in the record the difficulty that chief judge brown i think focused on is the lack of connection between the various opt in claimants they were in many instances just one maybe two who worked in a particular store together and so in order to try to demonstrate through representative testimony what the practice was that led them to have that particular wage injury whether it was not being paid over time or not receiving their security deposit back was going to necessary a lot of separate individual lives trials and at that point you've got wal mart witnesses coming in store managers assistant managers what does has a lot more play in the joints than the more regimented and i would suggest rigorous standards of twenty three i think it does one when i look at it and only look at the cases and i try to discern what the guiding principle should be it seems that you have to find that there is a single f l s a violating policy and that the proof of that policy would prove a violation as to all the plaintiffs that are being put into the collective action and then i think the recent dukes case where again it's in the rule twenty three context but it does talk about the ability to use represent representative testimony and when you can draw a reasonable and fair inference is judges based on that testimony and i think in this case the chief judge brown clearly saw that that was not going to work because there were so many different aspects of both the wage claims but then also proving up the joint employer question proving up whether certain plaintiffs were time barred proving up whether wal mart had paid these contractors more than enough money to pay their workers in turn a lawful wages you're suggesting we we have something akin to an analog to adequacy here i think you have a a statutory prerequisite that is is absolutely essential but has to be met and if you don't meet that should be the responsibility of the named plaintiffs who are proposing a collective action but if you were to say should a judge have that burden of trying to parse out what subclasses might be appropriate here i leave it up to you claimants they had never set foot in a lot of the states where these other workers worked had never been in the stores didn't know who their contractors were so there was absolutely no way that a couple name plaintiffs in new jersey who worked in a local wal mart could testify as to what an independent contractor and the wal mart store manager did down in georgia or over in texas or out in california with any degree of reliability that would past due process about saying well we we if the theory is that that that's happening no matter where wal mart is operating that you could have a sufficient we representative testimony from the named plaintiffs to cover those working conditions and could and addressing in that the fact that you know we were we just were lucky to get paid but we're lucky to get paid well this had ever seen the wal mart manual so none of those individuals would be able to testify about how that manual did or to not set any sort of common policy it's purpose of them and it's a good that's a good question because we don't know the extent to which was actually used and it was actually prepared by johnson wax which was a large vendor of wal mart it was not a wal mart document and so as best we can tell if it was used it was used in the breach and it was certainly not used by any of the folks that we spoke to through class discovery in this case i see my time is almost running out i've not even touched on rico or false imprisonment i'd be happy to answer any questions you have on that or to continue the employment records the people who are in the contract clean groups the contractors kept the records wal mart did not have records for these independent contractor employees if you have one question workers represents a break in the chain of causation proximate cause problem and and i'm wondering how that it's illegal and earth the fact that undocumented workers are not entitled to earn a legal wage means that if they have worked they are protected under the f l a say for statutory minimum compensation but only for work that actually performed and so it's compensatory it's the balance that courts have try to strike in light of urco and i think what that means for purposes of this case is there's really a direct proximate cause analysis because if the only injury wage injury that these workers because of their status kind of legs is the statutory minimum to the f l s a for work actually performed then that tells you the only place that their injury can result from and that's an f l s a violation and that is not a predicate act so well we talked in our letter brief about that that status being intervening i think it probably isn't because you never have to get past the f l a say but if you talk about that as intervening looking back well good enough if you're saying that you're not sticking with that no i think it's just another way judge jordan to analytically see that there's a disconnect there's an attenuation between the actual statute that gives rise to the only injury from a weight standpoint that these individuals can seek redress in the united states for and the immigration law predicates and the money long predicates and then voluntary service to predicates and so on and he was very thank you very much what counsel just said is what you look to is a single violating policy and that's exactly what we have here we have the use of contractors in a layered fashion in order to insulate work now council miss polk number i say intentionally but he misspoke when he said the well mart maintenance manual was quote used in the breach that's simply not the case the wal mart maintenance manual is transmitted with a letter that said this is mandatory this is mandatory for all employees ease of wal mart and all contractors i understood him to be saying oh maybe i misunderstood that if if it was mandatory none of the people that you folks named plaintiffs knew that because they'd never seen the thing that  as far as getting common evidence representative evidence from one of the ne plaintiffs about this manual it just wouldn't happen because they didn't see it and that that undermines you that it's this manual in the policies so sue with that which really show a unified theory what's your response the response to that is wal mart never asked at the depositions whether or not they had seen the maintenance manual they studiously avoided that question because they feared the answer the wal mart maintenance manual by its very terms was distributed to each and every wal mart and it was mandatory and we have the welters declaration which corroborates that it was mandatory now all i wanted had to do here in order to satisfy that question all they had to do is in a decade of litigation produce one affidavit one affidavit from one store manager that said i never saw it was not mandatory at my location where it was only mandatory in the breach they did not they accepted welters declaration and it's i'm telling you that that well martin maintenance manual wen each and every store and was mandatory it dictated the terms of employment dictated the procedure and i'm not going to mention the urinal cakes again but i will mention the mops again just mention it said that you that's correct but they dictated the procedures and then they back and then they followed it up and what with daily inspections and that also wasn't uncontroverted to those who those procedures have to do with your essential cream for  there is no contract or defense that in fact wal mart is the f l s eight employer because they are dictating exactly how the work is being done and they are inspecting it again well mark had to do was out of all of the stores in the country produce one affidavit from one supervisor they said i never i never inspected the stores i never inspected the work i never sent them back to manual ever saying anything about this is how you pay your dues this is the schedule in which you pay you know this is the way in which you will manage i know and it doesn't have to and the plaintiffs here are not impaired to lick though with the contractors and with wal mart and how do we know that when the contractors were found guilty of a crime guilty of crimes not just crimes but crimes significant enough to be identified specifically as predicate acts all the way up to walters and wal mart as self a target of a crime federal criminal investigation now the difference between the plaintiffs and well marty here is that the plaintiffs committed no criminal violation at all it's not it's a criminal violation one that walters was convicted of to encourage undocumented