requiring plaintiffs to prove at the certification stage that they would ultimately prevail on the merits of their theories of recovery according to the district court commonality and typically could only be established if plaintiffs demonstrated on the merits that class members had in fact been injured the district court then proceeded to grant or deny certification of the proposed subclasses based on whether or not the district court agreed or disagreed with plaintiff's theories of recovery in this regard the district court certified plaintiffs proposed sub class challenging the like ality of ren's inverters policy of not separately paying for non piece rate work because a district court agreed with plaintiffs this policy was unlawful and therefore in fact injured class members the district court however refused to certify the proposed subclasses challenging the legality of ren's in burgers rest break pay averaging an itemized wage statement policies because a district court concluded on the merits that the challenge policies and practices were illegal and therefore did not in fact injure the class council for for our purposes do you believe that there is official authority in the ninth circuit that indicates that the district court has to rely on the commonality issue based on the pleadings as opposed to the merits in making this determination i believe that the that both abdullah case and the stockwell case a stablish that the district court should look at plaintiff's theory of recovery and decide whether that theory of recovery can be determined either in favor of the class or against the class in a class wide setting that is the the lot of his establishment stockwell so for stock will actually  the theory establishes some cognize of all injury right the court can look at whether the theory of recovery could establish liability on a class wide basis so let me ask you about the rest break class on that we also submitted deposition testimony of ren's and burgers person most knowledgeable admitting that the company does not guarantee any minimum amount of waiting time or time in between  moves and our theory of recovery is the company cannot limit resprayed rights to certain periods of time unless the company guarantees that those periods of time will occur and will occur at rates time between yard moves and you're saying that there's evidence beyond that in fact there were restrictions yes and i would say that the policy also includes that restriction what the what the court pointed out was that the policy does parrot the wage order but then the policy goes on to say that resprayed should be taken during down tell the waiting time in time in between yard moves and there was evidence that the company had it needed that they're only allowed to take the credit that should be times be counted but is there anything indicating that if those times didn't rise to this gives the sufficient number of breaks that the employees with then be prohibited from taking breaks during other times we to liability to particular close members i think that's what we have to be clear here under california substantial law liability to the class is a stab question if it's shown that the company adopted a policy that does not comply with the wage orders whether on a daily basis with the foods on the face of employees in the implication well here we have evidence that's not disputed that they are not guaranteed a minimum amount of waiting time or time in between yardley's we're saying that that right there that makes it legal you cannot limit resprayed rights to a certain period of time unless you guarantee that those periods of time will occur at the rates required by the wage or we're either right that that's required or were wrong if we're right the policy is illegal as the company has admitted it exists in there in iraq to tory's and in their deposition testimony where you're going to get where i think you're saying that maybe individualizing cory's is looking at how the policy plays out on a day to day basis but that your honor i think it's clear that is a damages issue because under california substantial law if the policy itself is violates california wage order then liability to the classes establishing whether or not individuals were able to get sufficient rest break time on a day to day basis is purely a damages issue and that's also what the brinker court said that have cited to so i don't think your you know were either correct that you have to guarantee a minimum amount of waiting time or time between yard moves or incorrect and resolution of that issue is going to decide liability for the entire class the bottom line is you believe that you are entitled to look at the face of the policy supplemented jury's deposition testimony and show that there was a violation under california law basically from official basis that's what the district court was supposed to look at in making this determination regarding commonality you believe that the individual application how it actually worked out in the context of my colleague mentioned is improper for the district court to consider that correct we believe that looking at whether on a daily basis and have time was provided for rest break is improper because that's a purely damages issue and we believe the court needed to look at which is essentially undisputed evidence in this new evidence is we have the policy we have the the p m k testimony we have in iraq a tour response we're either right that those things established the policy that we set establishes or we're wrong and it doesn't and that's a common issue but you're saying basically the commonality issue is decided at the written policy level basically  have different people different factors different different conditions that would make everybody's situation different we're saying that the policy this tallish by what the company says it is and the company has told us what the policy is through their person most knowledgeable testifying through the person most knowledgeable signing verified in are arbitrary sponsors and through their written policies which are all consistent they're all in these don't these aren't inconsistent it's just not guarantee or make any effort to ensure that those times occur at any specific rate and we're saying that that policy which the company said this is how we handle rest breaks that's illegal they didn't do it right us over time you get five twenty five left if liability the broker corps did not say that the brinker case was faced with a situation where the policy on its face violated california law by not providing a second rest break after the six hour period and that was the only class that was certified but it was certified based on more than just the fact that there was a policy there was also evidence in the record that in sacked the employees if working for brinker were denied grace break even if they had worked more than six hours and that was the only class that was certified but the issue at this stage is the question of whether you're right or they're right on also to be decided at the class search stage under twenty three b three that's what the court looked out and on this record i don't think that this court can find that the district court abused its discretion  finding that there was no predominance on the respirator case under twenty three rule twenty three b three for except for for some of the same points that the court has already indicated the fact the court followed plaintiff's theory that commonality may be a stablished because if you're looking at the policy but the court said that plaintiff to meet the burden under rule twenty three to establish classification has to show more than just what is in the pleading if all any plaintiff's attorney has to do in a wage and hour class action is plead that there was a violation or that the policy was unlawful we would never get past the police stage but that isn't the standard that the plaintiffs bore at the classification stage they had to make a factual showing that satisfy the requirements of rule twenty three because otherwise why in the world would any of us doing wage in our class actions ever bother to submit evidence in full in the record at the classification stage from which the district court has to determine whether a there is any common issue and being whether they predominate and different from your perspective what plaintiffs counsel is suggesting is really no different than saying like this is what i pledge you have to decide the commonality issue based upon what i plan exactly i do not believe that the district as a matter of california law because every case that has looked at whether even just at the classification stage has never been restricted just looking at the policy it is certainly true that a plaintiff in a wage and hour case that can show a facially invalid policy as gone a long way to toward an established classification because the implication and often the evidence in those cases that's put before the district court is to show that the policy was consistently applied by the supervisors so as to actually in fact have a pattern in practice of depriving the employees of the rest breaks in required by the way to order but here the ask has to be fleshed out from your perspective taking your analogy you take the pleading but you have to flesh it out and have to show that in practice that the violence  policy if you will has been applied in a way to great liability exactly because otherwise there would be no point in looking at twenty three b three of the classification analysis the second part of predominance but in this particular case that as to the rest break class that this to court the thrust of the discourse analysis is on the face of the policy alone but that wasn't a violation of the wage order right because as the district court understood it and looking again at the district as plaintiff's counsel as conceded both below and here the policy parrots the wage order so the count of the wage order has the provisions about how much  everybody the district court plaintiff's counsel and runs in berger all agree that the way george are is essentially just been copied into our policy well and that's why i was asking counsel regarding whether his theory rested inconsistent about the iraq atory responses or the requirements of the wage order as it was before the record before the district court showed that these are drivers who have literally two hours of no work for which they are paid and the policy says you are encouraged or you are to take your rest breaks during those down times that there is nothing wrong or inconsistent between that as a factual matter and as sort of just running a business and then the requirement on the wage order side which is that we as a company have to make sure that there is a least ten minutes of uninterrupted time during the day twice if you're working in  where they can take that from your perspective the policy tracks the state's wage order yes almost verbatim almost verbatim the plaintiffs put on evidence that they believe showed that wasn't the case or and then the district court looked at that and said no they that there's no violation here and and you're saying that's what the district court has to do they're saying that was illegal the district court should not have gotten right at the district court level both this court in the us versus cosco case and the united states supreme court in the wal mart case instructed district courts to look at the merits to the extent necessary to determine predominan or any of the other classification stages it would have been improper i think for the district court to rule that these three individual plaintiffs that they lose their individual cases on the merits but the district court didn't go that far they still have their individual claims and they can still try to prove that the company deprived them of the opportunity to take rest breaks what the district court said based on the factual record before the court was there was  you know thirty five different work places throughout the state different size yards different numbers of employees different number of moves and all of the factual disputes what i think the plaintiffs  improperly doing on appeal is asking this court to ignore the factual record because that this report certainly looked at that because the district court in his own analysis went through the proper standard under twenty three and then said please just haven't shown an unlawful policy but they haven't even argued that they were deprived of a rest break they haven't even argued a much lace establish that anybody was actually deprived of of a ten minute rest break and therefore concluded in the words of the district court plaintiffs have not demonstrated the possibility of any common injury or any common resolution that is a legally correct analysis and we believe that they stay on the factual record before the just report and this court there was not certainly not an abuse of discretion by the district court the record also invoked the new injury court said that on the record before it plaintiff's theory was based on only half of the pay statements that were provided and the court said factually the record before me shows that there are two there's a wage statement and a pay stu that comes with every single check and that because those appear to track verbatim the requirements of labor code to to use california labor code section two to six which said so what needs to be on a fixed up the court said i've looked at the record that you've put in front of me it complies so you haven't shown that there is an issue here that needs to be tried on a class wide basis and i  again i gave this example and i think it's a good one of the caliber where the typical that he was on for mr haines which would because that was the waiting time penalty claim which is that under california law the labor code  if somebody is not paid in full on terminations of employment then they can be owed up to thirty days worth the wages as a penalty what the district court said about mr haines was i have certified one class and that is the  separate pay class but that only applies to road drivers and mr haynes in his declaration was a yard driver he's not part of the separate paid class but he was the only former employee out of the three plaintiffs so by definition mr haynes is the only one potentially eligible because he's the only former employee but he's not a member of the class that was certified by the just a court because we do have a certified class and we we will have a trial on that sort of a class so that when the case is still proceeding it's not the end of the case but what the district court correctly ruled is that the plaintiffs don't have a adequate plaintiff on the waiting time claim because mr haynes doesn't qualify on the on the pay averaging theory again it's sort of a predominate analysis under twenty three b because even if you get past commonality under twenty three  you still have to show that this could be tried on a class wide basis and the court i believe on this record and certainly this court based on the record either way you can certainly say that that can that pla met their burden of offering a manageable model to try that theory on a class wide basis as we argued below and argue again here if you're going to have to have a company defend whether it's paid minimum wage on a piece rate basis the only way to do that is employee by employee and looking at who worked how many hours and what what was paid on that hour there is also a problem and a fundamental problem i think for plaintiffs which is that their legal theory even it had been pled has no support in the law and i guess to the extent that there's anything sort of unusual or pushing the envelope about my position it is that i do think that the common law common question of law for classification purposes has to have some basis in the law and the example i gave in the brief to remind the court is if the plaintiffs theory in the complaint is that this company is violating the law by not painting all employees to take a day off every single friday it would be a common question as the supreme court noted in the wal mart case any competent lawyer can create a common question in the pleading but unless it's got some basis in the law that there is a requirement that employers give ever give their employees every friday off without pay it doesn't really matter that it's a common question or that it could be decided on a class wide basis if the underlying legal theory is a legal theory that is not recognized by any statute any wage order or any case and that is the case here with piece rate and it would be true to of commission pay there is simply no law in california that says that every single hour paid on a commission basis or a piece rate basis has to be over the minimum wage the requirement is that for the work week if you pay an  thank you you have rebuttal time i would suspect to say that all of the arguments that opposing counsel is making are merits arguments that a court could decide a trial or a summary judgment for all class members they all go to whether we're right that these policies we challenge are unlawful they were wrong let me answer that out to let them without breaking it down in the sure categories your opposing counsel takes the position that the orders you're challenging were basically taken in hyderabad from the state's wage order let's just say that's right for a second i'm not saying it is but to say it was and you said that was a violation of the law would the district court be able to make a determination that that's a lawful in connection with a commonality determination or you would say they can't do that if if we're  but i would say that if we came with a theory that conflicted with applicable law but it was a common theory that the court could say you're right or you're wrong i would say as this court noted how many has that the defendant should a motion for summary judgment either before or after class certification didn't occur here correct ok right i mean i think it's important there is some talk about are we relying just on the pleadings here we're not relying on the pleadings here we have presented evidence with regard to the rest break of the written policy coupled with the iraq atory response coupled with the p m k deposition testimony and none of those say that the policy is anything other that we have alleged that it is so there's if there's an issue on whether we're right that that is actually what the policy was as this court said and how many has that's also a common merits issue that can be determined either were right that the policy is you have to take a rest breaks during down time and time in between yarden those and they don't guarantee any minimum amount of such time either right that's the policy or wrong if we're wrong we lose if were right that that's the policy then the common issue is is that policy legal or illegal  and in fact the court's holding makes clear that there is common issues here that will drive resolution of all the claims the court adjudicated liability on each of these challenge policies the district court actually found the rest break policy is lawful if that's true we lose but that should be decided that summary judgment not at classification the district court also decided that the pay average in policy complies with california law because the court made a sweeping assertion that this type of averaging is ok under california law so from your perspective it isn't that the district judge could have made the ruling he did but rather he can't do it in connection with this stage of the proceeding correct he couldn't is welcome to rule on the merits in a dispositive motion or at trial i mean the very fact that the court could do so here and it may be that it's common because we lose on a common basis because our  faulty because it doesn't violate the law that's that's the whole issue here and i think it's important to point out again that in a doula this court looked to california substantial law cited to fucking barry for the principle that the the mere adoption of a policy that does not comply with california's ways in our crime and establishes liability how does how does what the district court did here come forward with wal mart's comments about the merits consideration well i mean in what respect in the sense that that he clearly authorized some consideration of matt's right and i think what you do then your honor is you look to the substantial law to determine what is necessary to show to establish liability and can that be shown on a common basis here fucking barrier as the california court of appeal decision says that to establish liability you need only show that the company adopted a policy that does not comply with wage and hour law so that you look at the mercy ok what do you have to show to establish liability you have to show they adopt an illegal policy what's your theory of recovery theory cover is the policy that we've shown to exist of the evidence does not comply with california ways in our law then you can decide is that a common issue and yes you're either right that the policy complies of california which maryla or you're right that it doesn't comply or it doesn't apply one of the other but that decides liability for everybody so it's a common issue you just look to the merits to decide what must be shown to establish liability and can showing be made on a common basis when you're challenging a uniform policy it can be because if our whole theory is the policy as we've shown it to exist is a legal question thank you both counsel for your