in pretty full morning five cases per argument ordinarily judge mouth the son would be presiding today instead we see his face on a screen and salt lake city we've done this before on with we think it will that may please the court i am sutherland here on behalf of defendants paragon contractors and bryan jessop i would like the outset to point out that there are two additional cases with respect to the standard is that are not cited in greece that may be helpful to the court or the st is it from the st circuit and swallow suarez versus puerto rico electric power authority reported at ninety eight  this case does not exactly discuss is the only distinction between the two standards of review but it does acknowledge that appellant in that case argued in her appeal that the trial court committed an error of law in applying the wrong standard to determine whether she presented a prime aphasia case and the court said quote thus the clearly erroneous standard of review is an yes just just to be clear on your position with respect to the determination and under the mount clemens test of a just and reasonable inference cases the two discussed in the brief provide a very thorough analysis of why that's the appropriate standard and i just point out to others that confirm that same given the given the fact that your client did not keep any those that arise from the evidence presented by the plaintiff before the trial court where you say the evidence is lacking well they evidence is lacking in many many respects your honor well tell me  have got one hundred and twelve claims if you will and they filled in the gaps based on the materials that were in front of them with the court did mt clemens many times in every single case it's reported there cited in the priest there cited in the in the district court's opinion in every case there was direct evidence from the claimants from the employees we have direct evidence here too we don't your honor we do we have we have a number of over claims file one hundred and four claims from eligible children  are those claims forms that the department of labor relied on to prepare their summary for nothing more than fill in the blanks on a form that was prepared by the department what there were no interest i direct evidence do you just mean the employees have to come in at least they should have interviewed them department of labor's or in policy and practice in twenty eight's reconstruction cases as as a side in the briefs is to be interviewed did you interview them you take their depositions jury think i wasn't allowed to your honor they never disclose the identity there was no opportunity for discovery excepting an informal meeting conference that took place to review the spreadsheet so i've pointed out in the briefs all of the flaws associated with the summary that the department of labor prepared and there are numerous ones the assumptions that were built in and the conclusions that were reached were based on  on items that the there were not substantiated in the record for example for example the assumption that where there was no evidence provided of hours worked or days worked or number of weeks were i'm sure you get to stay with the microphone i'm sorry you know that when the forms of the data requests of the forms were incomplete the department of labor built in assumptions and they have those are some since he labeled as a universal average and calculate that universal average he did not even use all of the claims forms used only a portion of them and this is all in the record he used only a portion of them and calculated not the average forms that reported the number of hours but if you consider all of the forms even those that didn't have the information or reported other hours then he didn't use the mode simply user mode of reduced set hours as the others they're all out there together pick and pecans see that's the problem we ran into your honor is he certainly should have asked those people he quote have called them he could have reached out to them he had their contact information but he didn't he simply just made these assumptions that's the that's the ultimate in and presumptive speculative assessment and calculation of wages the law doesn't allow that to occur even in a model such as this grip rescission are you demanding here in other words what would satisfy you as far as the governments approve they certainly as a minimum should have interviewed the individuals and should have gotten such statements from individuals based on interviews in an ordinary saturday there would have been depositions available to the defendants we didn't have that opportunity here this is an unusual case in the sense that unlike any other case i've been able to find at least in the th circuit this situation has not occurred in a contempt setting  testimony from one individual whose stepfather indicated to her that if she were asked she should say she doesn't know anything other than that there was no other testimony along those lines only one like to ask you about this is that the statistical step that was taken by mr hunt in terms of attributing days worked and weeks work we're back to the use of the mode but i'm i'm interested in your commenting on whether there or why that wasn't a reasonable attribution so we have one hundred and four forms filled out fifty seven of them reported number of days worked ready per week so forty seven of them didn't have that information and as i understand it mr hunt attributed six days per week to those forty seven dollars and he did that because a majority of the forms that did report that information did have six days per week now what's wrong with that couple of things st of why was it wrong for him to give six days per week to the forty seven that didn't report because and notably your honor there were a couple of instances where individuals did submit their own information and whenever that occurred the information submitted did not support his universal average there were five times that individuals called and directly rather they used the claims forms in none of those instances did those individuals ever come close to substantiate the number of days that mr hyde uses universal average those individuals who submitted their own statements in addition to the forms also indicated far fewer days than mr hahn utilized he disregarded or are we talking are we talking about people who d are with them this group of forty seven yes your honor ok by the way did you present any expert testimony on statistical have some statistical expertise to do stop i don't think so your honor this was not a sophisticated statistical analysis it was simply calculation of averages it was what i'm sorry simply a calculation of averages it's a pure mathematical application of the concept of calculating the average of seven numbers i'd like there's a number of things i'd like to address but i'm out of time i'd like to reserve the rest for a bottle thank you her ready to hear from you whenever you're  happened excuse me is it correct that you would not let them interview the children if we deny and disclose the names of the children were never entered into the record the claim forms went in with the names redacted lets through it deprives the opportunity of any kind of investigation at all does well i believe your honor the idea was that they there was a pretty extensive back and forth process between the department and paragon was after the department initially proposed evaluated the claims and initially proposed proposed damages then the department and paragon went back and forth there was some limited discovery as to how the damages were calculated and paragon also had access to the children and and their testimony was generally in their testimony it was generally consistent with what you saw in the claims forms showing that it wasn't unusual at all for children to be working monday through saturday and also describing the harvest season  beginning in november and then there was other evidence showing that it ended at the end of january the next year ordering the department to estimate the wages over to the children based on the information received from that process the department did so and the district court correctly found that it could reasonably infer the damages the secretary proposed based on that evidence with respect to the standard of review in this case the standard of review here is didn't know as questions of law and clearly erroneous standard of review as to questions of fact most of the issues here are fact his reply brief are cases involving into discrimination statutes and mcdonnell douglas burden shifting they are not now comments cases here the question of whether it was reasonable to infer that children who did not report work six days per week thirteen weeks work weeks per year that was a question of fact the district court determined by weighing the evidence and making credibility determination whether the eye was reported by the children reported on their forms were inclusive of travel time  that was also a fact question that the district court resolved by weighing the evidence making credibility determination and determining in that instance that the children were not reporting travel time on their forms was there any a number of arguments here as to why the claims of the estimates are imprecise and if true the estimates aren't as precise as they would have been had paragon contemporaneously recorder the hours and days and weeks the children worked but paradine didn't produce the records of the hours to the contrary it strenuously resisted producing any information that would have helped quantify the hours the children worked in this case and the central teaching of the supreme court's decision amount for men is that the children should not be punished for th s representative values and that the department used in this case for not all but some of the children who didn't report either the days per week or weeks per year that they worked were based on large samples of children much larger samples than in even a typical case where the department aims for about ten percent of the employees and as i mentioned they were consistent with the evidence and the testimony from the underlying contempt hearing so it's entirely reasonable for the district court to infer that the children work the hours the department r the you say that forty three out of eighty three claimants reported working to point to three months or more per year i'm not clear on how you get to thirteen from there are two five months doesn't equate to thirteen weeks here on to the department took three from that range the department took three months and then it use conversion factor to convert the three months into week i'm asking about two five months not three months so the range was two point five to three months or more it was what the official did was to group the group the claimants into groups with respect to the weeks per year and then that highest the group that had the most miners in it was the group that was two point five to three months or more per year there was also in this case this particular information was not always reported by the children in weeks so sometimes you see on the claims for ten weeks eleven weeks twelve weeks thirteen weeks fourteen weeks but some times what you would see is november through january or more information that indicated a certain number of weeks but did so without using numerals in that way and so i think that this was sort of a response to making sense of that data there the thirteen weeks concept was also consistent with this idea of the harvest season running from november to january and in many of the instances where the department filled in the thirteen weeks you have some other indication that thirteen weeks would have been appropriate for example the child said they worked all season well is that true d of the weeks per season twenty one dollars one hundred and four forms didn't have any thing listed and what ended up being used was thirteen weeks based on the fact that forty three of those who filled out the forms said two five to three months but what that means is that  thirty two of the eighty three forms reported working three weeks or less and yet the blank forms are all given a thirteen week i'm just not clear on why that is a reasonable attribut where it says on the supplemental appendix six hundred and thirty two that the children didn't specify the weeks they worked there were often times but still some town description there that indicated that we wan frequently given answer and took that in attributed it to those who didn't give an answer now that is and he called out an average that's not an average that's a mug if you've done an average of what everyone reported or even a weighted average of what every one of the reported he wouldn't have got thirteen week number for those who didn't d report or a six day per week number for those who didn't report so why is that statistically valid way imputing a number that was never given in the st place by those children mean when you're doing a back way to reconstruction and here but but that doesn't answer the question the question is whether it is statistically legitimate to impute that number and all we have is mr hunt at the hearing saying that's what i did is he is he a trained statistician i don't know i don't he's not a his role in the department is not as a statistician i'm not employees do on a regular basis well but he also said that the evidence through hearing that he's never had a case like this so to say well we always do it this way i'm not sure that cuts it when you've never had a case like this i believe your hon was not talking about the process of estimating estimating representative values i believe what he was referring to there was the fact that you had zero records in this case you had no employer time records you had no pay stubs it was difficult to access the children and you had all of these claim forms that he was that the department had done enough now at the end of the day the district court approved the numbers but why was it reasonable for for the department not to at least parent of a child in some instances the wage an investigator didn't hear back the department did not try to follow up with all of the children who didn't report days per week or weeks per year for a couple of reasons st because that would have been very difficult to do it would have been time consuming but also as the district court found in this case the department ability to gain information from these children it was very restricted but secondly co held that it is you do not need individualized proof in amount clemence case and that is perfectly acceptable civil to infer hours worked for some of the employees from a smaller group of employees and in fact in this case the samples that the department was using to infer the hours are much larger than what you normally see that if hartman's investigator testified that usually we speak about  ten percent of the employees we use their information to calculate the damages their cases we cited in our break which also show that courts have approved back ways calculation announcement using much smaller samples in the sample here so here you had pretty large samples and also you had pretty clear patterns in terms of the data so it was a case that went itself well to using the represented about you until you're down to a minute and i just wanted to get your thoughts on the well there's also the forty nine claim forms in the record where children reported working on the ranch and two thousand and thirteen so the district court weighed the evidence and said that the fact that there was no contract here was not sufficient to overcome these forty nine children who said they in fact worked at the ranch in twenty thirteen were to three seconds ok let me just ask if the other panelist has additional questions and if so please for longer all right thank you very much for your argument your time has expired and now we'll turn it back for  that's the whole reason that that model is applicable here so to go back and say but there were no records provided really only tells us now we use this different model to approach the case it doesn't relieve what is now one of the purposes  clemens the employees should not be allowed to benefit from refuse you know failing to keep any records at all that's correct and that's precisely what drove the court in mount clemens to create this  come forward not prove come forward with evidence well evidence can consider it can make it up to prove it it will evidence there are cases from the th circuit to say cross examination evidence is adequate still evidence so eisley you didn't cross examine anybody here cross examine mr hunt and and as a result we came up with number of flaws and some of those resulted in him actually correcting some of them after the fact which he filed with the subsequently but once they called the employer comes up with comes forward with evidence to neg eight the presumptions then if the i'm quoting directly from the supreme court appropriately but even if it was clearly the defendant did to prevent present evidence to rebut or negative the presumptions that arise from that premise what was the evidence martin what was the evidence problems associated with mr hunt's assumptions there was the fact that the two hundred and thirteen work was never done by paragon and even those forty nine claims to said they went out to that ranch and to thirteen not one of them ever even suggested that they did so for and also with respect to the child labor that both the court and if you're going off on a new argument your time is expired i was just get finishes responding you want me to finish research you're ok with respect to the child labor issue for the twelve and thirteen year olds both the court and part of labor completely ignored the nd part of the statute which says that if you're working on a ranch where alongside an adult who's there on behalf of the parents that you're lose no evidence of any written consent there was no evidence that they were employed with the parents with their parents or even employed well your are my point with that was the very same legal analysis that the court adopted to hold the children as employees would apply with absolute equal emphasis it up you need a written consent for the exemption and it's an affirmative defense which was not specifically pushed that chute doesn't say written consent the statute says if you're employed with a with