all right thank you and we're sorry about the little delay one fellow i had trouble with is internet connection in the last argument and where it where he apologize for having you appear in this unusual fashion and fortunately it's only practical way to move the docket along right now and we hope a won't last too much longer i would like to make a couple of notes to you before we if you so choose so again in an effort to accommodate to the setting with that we will call and we want record excerpts i mean sorry record where the district court has had significant concerns as to what precise standards should apply in a fair labor standards act question or can fish at the stage of conditional certification specifically the standard review for this appeal is to novo because it is a question of all the court should understand that the primary reason we're here is there is no clarity it is a  split presently among the various judges in the th circuit and for that matter in the country as to what the rule should be and specifically the rule at issue is presently the most already rule that is applied by many district courts that looks at whether or not the parties are similarly situated to the opt in party of the potential often parties and it and the courts are unclear as to how much scrutiny should occur at that initial level and as you know the st stage of this already rule simply allows us for substantial allegations that the putative class members were victims of a common  of a single policy decision or plan with a problem that occurs when there's more discovery as has been the case here in fact there's been substantial discovery in this case presently there is enough information to make a closer decision a closer take a closer look at whether or not the parties in the potential opt in parties or similarly situated specifically the court boy who was unsure and even felt limited in his ability to go to a more precise stricter scrutiny now this split has occurred and to think two to two different directions some district courts of valuate the similarly situated question in light of in this case the economic realities test and they do look at whether or not it's possible to evaluate the individual last weighing of the factors of the economic realities te a district court in maine said is an irreconcilable split among the course the district courts as to how much review can take place at the initial level when there are substantial discovery and specifically  the economic realities test as the court knows is a fact or test i won't go into that as to whether or not an independent contractor is in fact properly classified or should have been classified as an employee it's a very individual inquiry it requires looking at the various factors looking at each individual party and each individual potential opt in party and evaluating whether or not they are in fact contractors or employees and of course under the f l i say you must be an employee to take an advantage to even take advantage of of the of o s a and we believe that in that particular in our particular case there was certainly sufficient evidence for judge jordan and even he and his in a walk tory order said that there there certainly were questions here as to what the standard is and under these circumstances with this evidence available that could have impacted the outcome could have been a different outcome just jordan appeared to believe he had a hard stop and by that i mean he thought he could only go to to the st step and and just require points to make a minimal showing now the point of spring if they argue that oh no he actually went and look further at the evidence that he looked at our evidence it's very clear that the only thing he looked at was was the compl well what is your response to that would judge joe my response would be that that he doesn't have to look at the merits and we're not certainly who are not and do not ask for a decision oh whether the or commenting own on how the parties made different decisions about running their business he was concerned that by commenting on that he would be violating the hoffman roche warning about not getting into commenting on the merits and soliciting soliciting when soliciting other opt in parties and i think that his comment i think went to the hope of the roche kamiya and i'd and certainly we're not asking him to determine the merits we're simply asking him to ask the question can these five factors with the facts before me be evaluated in one common trial that would result in one common answer and if they can't class on collective is that more or less what he did just oh i don't think that's what he did because in the in the case management order we had more or less we the point and the and the  agree we would work out the notice later all he was saying that we could get together and talk about the contents of the notice and how it be phrased how it would be presented so it did not look like the court was taking a position that always did not present order he did create a class he defined the class in his order as any any independent contractor any party who signed an infinite contract agreement before i believe it was because if we send out this notice to several one thousand potential contractor opt in then that at the end of the day the only way to decide if any one of those contractors is an employee is to  at trial we would have to have an individual trial for each and every contract or opted in and that's simply just not possible for this type of collective and that's why our position is that the judge should have looked at it earlier looked at it at the st step because if you notice in the in the question presented it talked about judge jordan talked about when there is substantial discovery so when there are substantial discovery and the court can already look closely at whether or not the analysis can be made of the fact analysis can be made then it's our position that the court should be given the discretion to do that right now because of the circuit split the district courts we're really not we're actually looking for a broad rule they say we're trying to draw a hard line at page five of their brief we're really not we're saying give the district judge the ability to look at the facts before the judge at that point in time and let the judge decide can with these facts a certified class that a later survives the certification motions because just like the lang court talks about too much when you see can can lead to inefficienc mister mr munroe i have a question i have a bunch of questions about this my st one is we look very hard for how many cases there are under the labor standards act of a but allegedly question whether independent contractors or employees i use a do you know of those cases what were those are well there are of a fair number of cases out there some are cited in our briefs and many i can't tell what you're arguing because at the end of year three you say well we want the judge to make this determination but we don't want to make that determination you say we're not advocating whether the putative class members are truly independent contractors at this point but if the evidence shows that they are not similarly situated for the economic realities ringback test then that decision should be made pretty notice so what you're saying is they may or may not be independent contractors but we're not really but if they are they're different kinds of independent contractors as i would be trying to say no just  what i think we're arguing is that well i mean what you read is accurate but what we're arguing is that at this initial stage the district courts many of them feel they can't look at the evidence before them in this case there was enough evidence to determine not if they're independent contractors we're not asking for that decision at that stage that is just john mentioned earlier would be the merits we're asking for the court but i haven't we're asking for the court to decide if such a question with multiple parties can be tried or not as a collective and even if it were the parties in this case they're not the the evidence is all over the place and i situation that the determination determining whether a group of people are independent contractors or employees is a somewhat different situation under the fair labor standards act then determining whether they are dining in da fitting at the same time or taking sufficient lunch breaks or not being allowed to go in the shade when it's hot and that kind of thing  the mental divide between whether they are covered or not covered at all by the law is it not yes just shows it definitely is it's almost of a hurdle that they've got to get over which is another reason that at the early stage when there was sufficient evidence to determine your arm out out of time i can finish my answer was these go ahead so if there is sufficient evidence to make a determination at that  point then the court should do that early right now the courts seem to believe that they can look at whether the case can be tried as a collective and they're just sending out notice they get a one thousand contractors and then later  obviously and him an important test of time and there's an employee in who isn't in the contract it has the effect of just killing the action at that point and that may be the thing to do i don't know everybody is different then that would say that maybe it should be cloud tried as a common room i'm not disagreeing with that at all and well i'm and i guess i mean what i'm saying is that that the  whether it's true that there has never been a case in which i decertification i mean which it is or the case process ultimate produced a group of people that is then true that once you get past the conditional certification that it never matures and do not know a card that what the what the court said was no independent contractor case had ever been certified that's what i mean yeah that's what we did with ira and that's our reasoning as to why this analysis should happen early at the conditional stage and the district court should have the authority to look at that evidence ok your way over time so i would give mr perry an additional minute or probably issue before the court today is should the court be permitted to examine the criteria of an economic realities and the evidence presented that pertains to it when it when determining whether proposed collective should be conditionally certified the response of course and the district court below did that now the difference between where up what police argue and where appellant stands and where the majority of the law states as well is that a court is within its discretion to examine the problems of the economic realities test to determine whether the plaintiffs and putative options are similarly situated within each problem judge jury and below did that here now it is well reasoned opinion judge heard in the term and that given the discovery t in this case a high is that standard should apply a standard more stringent than the fairly lenient one typically applied in courts that are using those thirty two dollars step approach but not one that is so heightened that it reached the standard a political one final certification and certainly your honors not so items that are reached the merits certification or decertification would be contrary to both rulings in the th circuit and the us supreme court sites that include both copy of the roche and the j p morgan chase battered decided by the th circuit now the district and still found that conditional certification was warranted here because the plaintiffs opt in on the putative class members were similarly situated enough that the information of the court at this point in time support to affirm the district court's decision granting conditional certification confirm that it acted within its discretion to examine the evidence pertaining to the economic realities test and allow the litigation to proceed to the notice stage at less than the minimum wage both of these questions are merits based and assess that extensive discovery across a representative sampling of the class that sought to be represented discovery here has not been so substantial what has been completed thus far demonstrates extensive similarities between plaintiffs and the potential options and we have every expectation that representatives discovery once we know the entire spoke with the class will show the same but neither we nor the court can know right now for sure until that discovery across the class is done that class cannot be determined in f l as a action and that discovery cannot be completed and a case cannot be prepared for trial until after court has granted conditional certification and permitted notice to be provided to the class itself is evidence in the way that appellant has approached this briefing now should appellant itself have determined that this case was prepared for trial there is a procedure for having a decision made on the merits of the economic reality test and that procedure is a motion for summary judgment that procedure was not used here by appellate scale and instead they opposed the motion for conditional certification and are now seeking to have this circuit send the case back for further reconsideration under a standard that simply does not apply on certificate and but is more properly applied once discovery is completed at a motion for summary judgment or at trial this brings me to an important point which is the two step in produce a class with an independent legal status or join additional parties the action rather the only consequence of a successful motion for conditional certification is that what a privilege is is set to workers who may wish to enjoy  litigation as individuals because it's a preliminary step by design and in fact a step that's designed as a keys management tool for district courts the district court is in the best position to determine the strength or the strictness of the standard that should be applied is in the past physicians know the litigation history the factual history the history of discovery taken place and compare that to what it understands as a unique factual issue and the amount of the coverage that we need to be completed before a case is actually ready for trial or judgment motion ms perry i think you're open to questions now and i will say when i said certification i didn't mean step one or already made the decision and nothing more was to be done no your honor i may have misunderstood your question we objected the plane to using it to kalends petition for appeal but we did not object to j all right so basically what you're telling us now is can share in it everything it was supposed to do and all of his discussion about the un certain standards among district courts was just irrelevant not irrelevant your honor judge jared with all due respect judge sure it is a very thoughtful and a very careful jurist and he normally doesn't write extraneous and just for the for the audience like s i would agree with that iraq or here let me just tell you why i think he did i mean i think this undercuts your whole argument which is there's nothing to see here just affirming what could sharon continue to do what he does this is what he says about why these why this ought to go forward plaintiffs have minimally shown the existence of similarly situated individuals all for a name plaintiffs  paid for a mile per mile entered a tractor lease purchase agreement and by the way i don't think your class distinguishes between the lease purchase plaintiffs and the others and see  well that bets real and and growth trust you know i mean those are the only two the only two characteristics on which he said there is evidence he said there is evidence suggesting common holiday season practices but he doesn't say anything about what that evidence is so this is minimal to the point of bare bones not withstanding the alleged amount of discovery i respectfully disagree with that your honor here dr jordan has made it clear if only in his conclusion where he states specifically that all are and have been considering that he has considered evidence presented by both sides not only does he provide a laundry list of facts presented by plaintiffs that goes to the similarity and a similarly situated nature of plaintiffs and potential upton's but he also notes points made by specifically show that judge didn't didn't simply look at plaintiff's facts and ignore all the arguments and facts presented by kayla latin but he considered where he stopped short was making a finding on the the appeal by the th circuit then the case would move to the magistrate judge to continue continue forward with the notice process that occurs after conditional certification is granted jamey the measure judges do nothing so we'll try to be a little slower and on both sides what's your best case for saying that a class a class action or a mass action of fact survived the motions for decertification once the factual record has been completed what and just what more discovery do you say is needed here if that is are they supposed to go out and pose all these thousands of contractors is there any basis for a milka mating the lease purchase contractors with the other contractors who just drove their own products i mean how much you know how much more money is from some of the families one of these cases that there's never been a case in which a conditional certification hasn't wound up in a collective action i as a collective action why don't we decide the basic parameters of that now and put the burden on the plane to demonstrate that the class that is asserted as a reasonable no chance of maintaining certification should this case proceed keep mentioned on multiple points with in this order that does not mean the scope of the class does not know the people who are actually involved and that's cannot rule using the certification using a standard that is recognized as appropriate on final certification or decertification as to the merits come as the question of merits and whether these individuals are actually classified as independent contractors as i mentioned earlier that is a question to be determined on a motion for summary judgment and defendant has not filed that day the fed i would like well you know in their record  they have reference to depositions and they also list about six or seven pretty significant ways in which each of these independent contractor contracts  was executed or differed on one big one being police purchase agreement which characterize all four of these plaintiffs but only as at least a partial subset of all of the independent contractors but apparently they were paid different rates they were allowed they were not real you know some of them drove for one month some of them drove fifteen years you know there are a lot of things that don't make sense in saying this should go forward as when you look at the economic realities test your honor what you're looking at the totality of circumstances and the amount of control that kaylan or an employer exerted over the individual that it is seeking to classify as you know now that that is about recurring get and that is about whether any one of these drivers was actually an employee and that seems to me what differentiate and and please feel free to explain where i'm wrong but this is a critical divide between this and say a group of nurses who say our show we were different shifts we were fifteen hours and we didn't get comp time or the donning indah thing cases or the lunchtime cases because then it's just a question of where to see evidence go how much money you know if this is categorically something that should be compensated how much does each plaintiff get the reason congress made an opt in instead instead of an opt out class action was i think that they assumed you were always dealing with employees and opt in was just the universe you know a simple deal but this is not simple when you're saying are these employees or not your honor respectfully while it does add a nd question it is still a simple inquiry and one that can address the address on a representative basis in its briefing to the district here is saying you've got nine plaintiffs you're saying there are thousands more you're saying you're not saying there is sufficient discovery right now to determine whether these were independent contractors or not and what i had asked you was how much more discovery would be needed to determined in universe of the independent contractors when proceeding towards final certification or to be certification we are looking at whether a universe of independent contractors can proceed on a representative basis towards their summary judgment were a trial the discovery that is typically completed at that time is a representative sampling of discovery that is hard fought and negotiated by both parties to the case and and presented to the court as a statistically buyable sample that is typically where there is sufficient evidence in front of the work that he has to be ready for trial however even should you apply a heightened standard to this case so i think that typically courts would prefer it like judge burton ten know the scope of the class before decertify in refusing to certify the case here plaintiff maintained that his they have presented sufficient evidence towards the relevant aspects of the case to show that this case could in fact meet the standard on final or decertification at this point in time well whatever go ahead is however because we is the test that decides whether person is an employee aren't independent contractor and every embryo examination of the economic realities tes as applied to an individual is an individual test i mean it is so almost on her knowledge that the economic realities test is going to be a uniform test that can be applied to everybody situated nature of each of the plaintiffs and each of the opt ins in the framework of the criteria set forth by the economic realities tests you will see that this is this is very typical case of  you can't just generalize that what are those what are those policies that are is separate from any that are dictated by federal law the policy is separate from those dictated by federal while operating under the term is if independent contractor agreement they can not take a load from any other customer whether it's blended or whether it's separate so you're saying it's like a non computer they're an exclusive independent contractor absolutely now there are mechanisms for it as a particular driver to withdraw from the independent contractor agreement too and drive for another company but at that point they're no longer actually working for  people work for only a few months so what so lengthy about those those i believe one individual who works for only a few months there is there's nothing lengthy about that that it is a short period of time for an individual to work for a company you work for calum for that amount of time during that time he was so controlled by cael and that he was an able to control his own profit of what is supposed to be his own business and so he lets and what about the well obviously some people don't believe and what about the people who allow other drivers to drive their load those individuals have some differences in that some persons within the class of this personally defines who are outliers to the main least contractors that we seek to represent then we have the right and the obligation to as the is that discovery so more strictly defined the classes that we're seeking to move forward with towards trial that individual that you're speaking out drop with another driver for an extremely short period of time the majority and a multitude of other factors that are uniform across the entire class of individuals that claim to seek to run it at any trucking company would have to have people pick up wherever the load is and deliver where her goes i really don't see that as having anything to do with people being independent contractors yes your honor i had moved i was talking more to the control of these individuals and whether any trucker would do this versus any trucker wouldn't have to the question remains the same did kill em control these individuals except they could not operate as their own business and that was certainly the case here and despite the minimal difference at that point of does point out  defend it does point out such as some drivers had had a pet on board and others did not many of these differences do not actually go to the heart of the matter plaintiff will have to choose to show on the merits and thus should be disregarded at this point in time and the economic realities test is a test that is applied to the merits there is a struggle and i would find any case any work whatsoever that allowed summary judgment type analysis of the mayor of the case to be conducted that final certification let alone conditional certification at this point in that case what the court is looking at and what the district court did is it examines the facts presented before it by both parties and try it and it determines whether the group of people present it could be similarly situated enough to proceed as a collective so allow notice to go forward notice is meant to be a tool of judicial efficiency i not something to be run from it is meant to create to stop a multitude of litigation from taking place and to allow everything to be consolidated under one court and ask questions actions  t this is shown case the case from colorado or just what is the the distinction in its approach to the collective improper it in courts across the united states if that is seen as improper in circuits across the united states is it improbable it's improper because congress has three at the initial certification stage it is still not proper to the extent that it is not the procedure that has been legislated as what you're supposed to continue to take on conditional the fair labor standards act as originally interpreted so scholars can disagree i believe about whether it was supposed to make a class action easier or harder by her people to opt in but anyway you've had a lot of time and done very well and we move back to mr munroe or rebuttal and hopefully we'll limit this to five minutes i mean both sides of the extra time in the and he was very concerned and he wants this court to give guidance it didn't give guidance in the movie it didn't give guidance in j p morgan chase it's it has passed on this question time after time and this is not a summary judgment question we're not asking the court to decide the question and by the court i mean judge journ to decide the question of whether these contractors are employed or not we're simply asking for the practical question can you try this case or can you not try this case as a collective and you can't try one thousand individuals with you know if you look at our record excerpt that tab sits just eight we have that we supposed to have thirty five different facts that are that nobody answered the same question to not a single person is answering the same question with time after time and so there's plenty plenty they're just going to just jollity your point i think that the focus are really is very important here because this is four named plaintiffs that were supposedly contractors that were going to be employees it said we can't even try these four people together because the facts are two different and that and the analysis is individual and the strongest case the are too individual to warrant collective action so i don't know how you try a case like so our position is judge jordan was truly concerned just like the wayne be direct t v judge was he was in the lane case that they were miry to go to the basket or the standard they were concerned and specifically they say the quote given the th circuit has not yet indicated that discovery warrants a heightened standard it was jordan did this question has to be looked at closer just like you said just jolly in an independent contractor scenario the practical question is can this be  try once it gets to trial i would say no looking at the eight to post point of some form or of op to be on since you can look at the facts here and tell that if you apply a much stricter scrutiny than judge durned did that that the desperate factual employment settings of these people is to individual us the whole thing so let me let me try to clarify it so to go i had some difficulty figuring out what you were trying to say and i'm looking at the last paragraph of your blue brief you're asking the court to reverse the grant of conditional certification and remand with instruction that consideration of the step t factors well it is within the district court's discretion in determining whether to authorize notice so only are you assuming that we're gonna apply lusardi are you out earlier that congress assumed all these folks were going to be employees when they wrote the fair labor standards act and so right now we need to come to the questions sooner or every court does regardless of the type of case but the sooner you can