new jersey supreme court the district court found that the three named plaintiffs in this case were employees of sleepy's not independent contractors under the established a b c test the district court clearly  finding that the class of sleepy's drivers who were in this classified as independent contractors could not be certified because the class was not ascertainable the court's decision the lower court's decision was clearly at odds with this court's repeated holding that the class certification stage the plaintiffs seat only show that the class can be defined based upon objective criteria and that there is a  administrative mechanism for determining whether the putative cost numbers fall within the class i think court held and bird these are the only two dollars requirements for finding ascertain ability and it's not whether the plaintiffs proved what the actual class was that is that the number of people in it and their names but that's just just that it was capable of so doing which it clearly is in this case the class in this case was clearly ascertainable using thousands of documents which were in the company's possession many of which we obtained when discovery was ongoing back in twenty million eighty two thousand and who while they may have driven themselves also had other routes for which they had other people friends or relatives or contractors not contractors workers drive he found that that was  so the difference in the two classes was the one hundred and ninety three were all of the contractors except those that haven't a large number of routes account or fifteen but who drove out in the smaller class with those that had driven only one truck or had only one truck either for the whole time they were there or for a substantial period of time that they were there and we could ascertain that using documents were full time single driver and then thirty eight dollars that were full time single driver for one of the six months or something like that exactly and then another nineteen that were full time single drivers for at least three months now when the district court granted summary judgment on placement status to the plaintiffs some of places operated several routes but drove full time one of the routes so it's not clear why the court would have made that distinction and other courts have not made that distinction but in any event seeking to move for class certification the nd time we narrowed the class in accordance what we thought were the court's instructions yeah i was in class on a motion for reconsideration but we don't believe it was a motion for reconsideration i don't want to spend a lot of time on this but the court denied the motion for class certification without prejudice it's very common in class certification to deny the st request without prejudice saying that you need to do certain work returning so we moved again the nd time we don't believe and we felt such a case law in our brief to the effect that that's not really a motion reconsideration it's just a subsequent motion for class certification the court and this is one of the areas we assigned to the court treated as a motion for reconsideration which is much stricter standard but not rely on what we put in our brief or that's i think the case law it's pretty clear on that for the popular saying it was renewed motion for class certification yes correct as occurs in many cases it does appear that you know the courts are all over the exactly that rule twenty three allows the filing a refiling of a rule twenty three dollars class at a time the court can amend an order or change the order or decertify a class and that lends itself to the idea that it's not a motion for reconsideration but it's just a renewed motion and there are many courts again he cited i prefer to stand for that proposition i would like to i'll take some time because i think it's critical to understand why we are so convinced that the cost was easily ascertainable by the district court judge it does take a little reviewing of a number of documents but they're all there and they're all i think putting together persuasive on the issue that it's easy to identify who the cost was st of all the objectively identifiable it's a requirement was met because we agree that the class should be made up of people who drove full time for sleepy's we think it's whether they had one truck which is many people about one hundred dollars or more than one chocked if they drove full time they need to definition of the a b c test under the as huge as the supreme court's decision and sleepy so that's the st part the nd part was whether this group was ascertaining of all and that's where there was a lot of controversy back and forth between our position twenty three and that list by and this fills the truck number the owner of the truck the name of the authorized driver for the truck and the authorised helper there's deposition testimony from drive you could only go out that garage that terminal gate if you were on an off the rise list and they had a list of every truck and every contractor and who the authorized driver for that truck was  tops nd column who drive or who the authorized driver was and who the helper was so by having that we know who was authorized to drive the truck and if you look at those documents you'll see that just on that one da alone when there was a driver roster you'll see that they were mostly individuals who were both the owner and the only authorized driver for that truck there at least forty six of those from which the class could be ascertained and we provided samples of that not that they were obtained or were ascertained at the time and the two company witnesses anderson testified that these rosters always existed and you couldn't get out you couldn't drive the truck they wouldn't let you out of the truck with their mattresses unless you were the authorized driver on that you know mccain cases because of poor the proposition that incorrect i believe all of those stand for the proposition that you don't have to show that who is in the class you have to show that there are documents from which it is capable of being ascertained and i think clearly what we've done shows that certification and we believe as a strategic matter that based upon what the court said and st decision about the logic of our claim work but the logic of our class certification argument works better for single root drivers we reduced it to that and we didn't agree with that but we did that as a renewed motion if i may there were other there are many other documents that go further than two thousand and eight that also stand for this proposition attain thousands of what are called gate logs so as to confirm that the authorized driver was the driver and was the contractor before you could get out of each day you had to go through a security guard that security guard wrote day you can look at the gate locks but then there is the computerized data which the company had to so called acha test data that's a computer software program that they used and the  and that's a joint appendix nine hundred and eighty five that's a list which has on it the name of the company which truck it was and it has how many stops were on the particular day and how long it was estimated that that run would take so if you look at that it has the in time the time that the chuck should have started the time that it should have ended and it has a number of hours  we have now is again back from the i think two thousand and nine but the company witnesses testified that the agitate the other software that they had to make sure that they were scheduling their runs and knowing who did the runs is a computer program that's always been  company and that's on the both the gate logs and the other document whenever the driver roster we don't know which truck it was because it has to wear for that so that means that was his go back to the driver roster it has to code it has to be authorized driver was for that truck are you saying that the behind the wheel of the truck yes and i'm saying that you confirm that not because the two witnesses for the company testified that you could only drive the truck if you were the authorized driver on the driver roster and you think confirming that as we records of what they estimated he would have driven on that day based upon the number of tasks that they gave him to the number of deliveries and to the right of that are the deliveries themselves he had ten deliveries  overtime they have that's for each day and in addition to that there is another document that we describe in our briefs which is the the manifest each driver was given a manifest and although this was not produced in discovery one of our clients anderson clarke had the manifest now that's a joint appendix a seventy one dollars and that also has the times of the deliveries for each day if you go to joint appendix seven  mr clark henderson clark another point to this clase did on the day in question which is in two thousand and nine it tells you where he stopped it tells you what the times were tells you what the money was that if you want to look at where the deductions are you go to a series of documents called the outside carrier expense detail report is joint appendix one thousand two hundred and twenty six if you look a deduction for the says left plastic skag i don't know what that means minus twenty five dollars we had our data alice look at that and the many days that were deductions and we point them out in our brief so i grant you that it may be that we have not ascertained the specific parameters of the entire class for the entire period of time  i say that that's not the or the requirement in the rd circuit with respect to ascertain ability it's whether these can be ascertained and they have explicitly detail documents which if you spend the time which we did for two of the pla and we said in our brief and we showed that they drove practically every day for a six month period of time we have the deductions that they suffered we have documents showing the days that they made the runs you can  thirteen individuals drivers single group drivers who testified she said in their affidavits that they drove well more than forty hours a week and that they suffered just options and that they were single group contractors and we have the deposition testimony of the two managers jesus and anderson who describe in detail how you can look at these records that i just described perhaps not as well as fisher have and that you can get this data and tell who drove when what they made and how many hours it's estimated that they tro final thing if i mean move on the final thing i wanted to say and i think it's important is the nd error that the judge made was somehow the terminating that ascertain ability was a problem because these individuals incorporated and they're for whether there is a legal fiction that he cleaned tell whether the companies that they work for their own companies that they formed took the deduction out of their pay and that's just based upon a clear error of law if these individuals are employees under the a b c test and we already know that three dollars plaintiffs are because they've already been found to be employees in the money that sleepy's paid that letter through their corporation or directly where their wages and if they took money deducted money out of those that compensation that's an unlawful to touch it under the new jersey law because wages is compensation for services performed and that's what these individuals please on behalf of sweet peas i will begin by pointing out that mr with his presentation is most noteworthy in my judgment for two missions number one what the court didn't hear at any point mr wi presentation is a discussion discussion of discretion the district judge had discretion number one on whether to treat the success of motion for class certification reconsideration that point is supported by our citation to newburgh which notes that most district judges do you choose to treat successive motions as motions for reconsideration of the law in the one circuit court case that i have on that judge newman's decision in initial public offering security litigation forty three if there are seventy and it's it indicates that what you should do is look at this as a rule twenty three dollars matter and don't and graft to treat three types of things that you otherwise would do for a motion for reconsideration in the typical context which would be interesting change controlling law new evidence or that there was a need to correct a clear error of law will twenty three dollars specifically allows an order that grants or denies classification may be altered or amended at honorable seven line judge google or any she was issuing subpoenas said quote district courts have discretion over whether to consider a successful motion for class certification and accordingly how to construe that motion and colleagues who's a class action expert it's rule twenty three and don't go in grafting other things on general twenty three will twenty three specifically takes care of something you can alter or amend at any time before to go there and face a buzz saw of people saying wait a minute you're now creating a circuit split and it's it's not worth it especially when you've got a language directly on point case and i thought it was taken out of context in a couple of other cases like career of at least understand the facts of career but once you've got the bird just mis reading it does not mean that a planet must be able to identify all class members a classification instead a plaintive need only show the class members can emphasised can be identified and so if class members here can be identified from looks to me like and eleven members who are full time and one truck then it seems like we're at least on the right path maybe other information has to be gotten from sleepy's or its successor but i think just enough was being very careful in trying to make it clear that don't go saying that you've got to be precise you just got to you've got to have a mechanism in place that allows you to get to the right number that is absolutely right your honor and in birds such a mechanism exists we have to recall and bird the question was what the cause of action arose from the existence of spyware that was on certain computers that were sold in these individuals and in relevant part the question in bird was whether a class of household members could be certified the theory behind the action was the spyware was used to catch people in compromising position right and you the question was ok well who are the household members who what was in that class in bird we knew the eight hundred and ninety five people who were lessees or purchasers of the computer we knew their addresses and it could be ascertained from reference to the public data base we live with them or so the court thought we needed for the district court to explore that option we don't know for sure from the opinion that makes sense nothing your honor analogous to that exists in this case and when i say that we have to begin from an examination of the class definition here mr witt can emphasize only one part of the definition but it's a tripartite definition that the point of one sided sir tried to certify number one to be a class you have to have worked full time making deliveries for sleepy's number two you have to have improper deductions taken from your wages and number three you have to have worked over forty hours a week in new jersey reacting to a time and a half those those elements were in the proposed class definition both times points try to certify it you only tweak the nd time is that the points to explain to the district court how those three elements could be ascertained from any set of records in fact that the experience that the district court had was analogous to wanted this court just had a few minutes ago as it tried to pin down how we could ascertain from the types of records before us in the sand it's really the three elements of the class definition so the problem is not that there was an absence of absolute precision the problem was that the records the point is presented to the district judge twice in his judgment if you're careful with your careful colloquy that was directed and looking at the documents in his judgment those documents did not provide while and administrative leave feasible mechanism for discerning work full time making deliveries for sleepy's who had to duction stake in some wages and work in new jersey over forty hours a week without overtime in fact the evidence that would enable one to determine if you are a full time driver sleepy's that there had been improper deductions and at least certain we should work more than forty hours per week absolutely not your honor and the reason for that is built into the relationship with us as with the carriers as we explained in our discussion of the background under the i d s which we can use then sign with carriers carriers were not an exclusive relationship they could make other deliveries for how would you go about it was it would seem that in a small universe of one hundred and ten people that you could get information determine whether they're in or out i mean for example martin brian martin he appears to be an out statements expense reports security gate locks and affidavits which are allowed so at some point are you saying it's absolutely impossible ever determine who can be identified as a member of this class your honor i'm not saying that and much but with all respect it's not my burden to say that what i am saying is on the state of this record as opposing counsel presented it to our district judge they didn't satisfy again that the class could be ascertained and therefore that the district judge never even reached the other elements of class certification which we fully briefed and which are before this court and by the way are an standards act as a general principle requires employers to maine maintain pay records of their employees yes as an abstract matter sleepy's regarding the class members of the putative class members and some for sure what kept those records an obligation under jersey new jersey law to keep accurate records so if it doesn't why shouldn't we adopt an inference in favor of the proposed class and extend the holding of tyson foods to the ascertained ability  that would seem to be the st step ploy and then every single person would need it seems like most of them are going to be employees though because the the legal interpretation that you were taking was inconsistent with the that there is at least a debate on prong and crosby requires the individual having to have worked off of sleepy's premises or or to have not been involved in matters integral to its business that is not concluded for the class and it's not obvious at all that it can't be take for example brian martin whose name is on the roster from which is to work in places so much for launch that individual said he almost never drove for sleepy's we can't know that he was on its premises very often it is hardly right there on our i respectfully disagree the court may rule on whatever ground wishes to focus on however the court may affirm the district court's opinion on any basis that was fully briefed below when we briefed the class certification anyway is there anything else you want any for the questions of my colleagues i have none if you could just briefly mr hack respond to the same one a question i asked mr with tim because  individuals driving more than forty hours a week or would have been the gumption from the pay and maybe you could start with the deductions issue because i didn't see in the record several places where guys were docked twenty five dollars here or there respectfully you did not see that in the record what you said your honor saw on the record were outside carrier expense details which reflected that sweeping from a deductions not from an individual driver but from the carriers within that the business even if they only on one truck can hire drivers and helpers and in fact they do it that's why brian martin to get back to my example almost never drives who doesn't have to so the fact that an individual signed a contract on behalf of this carrier with sweet peas and the fact that that individual carrier only had one truck it cannot be inferred from those facts that that individual reacted to any deductions that he's made to the carrier by making the wages anybody who worked for him including also how many of the one hundred and eleven outsourced work as opposed to did all the wisdom smalls the record doesn't tell us the answer the question your honor i give the anecdotal examples but no i don't know that i don't like about the affidavit of jim smith this hypothetical person wouldn't that close the gap your honor that would be precisely what the score for bad and mark is hasan career and how are doing things i mean having having written marcus that wasn't my intent my intent was in marcus you know case of bad facts i mean you'd you had a non defendant who had the information relating to these one flat tires i mean it was there was nothing there that could allow the dealer or almost anybody to find out the real information and so what we said was very simply in agitated military you need a mechanism in place that it's helpful to have a mechanism in place that that works it's one that is defined with reference to objective criteria and then i added to its reliability ministre to be feasible mechanism for terminal whether putative class members fall within the class definition and it's been taken out of context i thought in some other cases but i thought byrd rectified it if you can identify then you' fine you need ascertain ability and i mean if we keep down the path that you're doing here you're going to get like in our court you've got two judges judges twenty's and rental saying you know the ascertained ability requirement of the rd circuit has been criticized by a number of other circuits it's being done very rigidly let's get rid of the dawn thing i mean we're in grafting something here that's causing all kinds of problems and the household members identify the addresses of the eight hundred and ninety five purchasers unless he's you now know the household was household you can tell from publicly available databases who lives there so that that is objective that is feasible in this court review and to the district court to explore that possibility now on top of that affidavits perhaps might be useful in bird for example for the householder to say not only that i live there but i use the computer this case is different from heard none of our will hear from mr could please thank you thank you with all due respect to mr hank i think he stretches the truth beyond anything that's realistic st with respect to mr martin this is a straw dog mr martin is on the driver roster but as i said i thought i made this very clear if you take the driver roster as a starting point for who the authorized driver is you then look at the  the the gate logs and you can look at the expense reports and you can then look at the edge of text schedules and you can determine if he is struck if he drove his truck or if you drove he's not in the class he's never been in the class because while it may be that he wasn't authorized driver he did not drive and i've never said that that driver rosters determine the class it's the starting point for making the analysis and he's not part of the class because the class is the find by who were full time drivers now we did for two of the plaintiffs just to show that it could be done we had a paralegal or a date out was go through all of the for almost all of those days had deductions taken we know what their estimated times were because for mr clark for example we have his manifest that have each of the deliveries he did that day and the company's estimated time for each of those and we have the ads tech data that shows how many stops he was scheduled to do that day and what the estimated time was so to say that there are no records from which this can be determined is just not true secondly as one of the just said i'm sorry i haven't memorized your forces in the lamma till case you specifically said with respect to this question of the obligation to keep documents and this was on a predominance question by the same analysis that mao clemens and tyson foods would apply to employment situations where employers are required to keep records it didn't apply to  that was an anti trust action because you specifically said judge amber the tyson foods not clemens would apply in an employment situation and here we have a judge has already found the three plaintiffs were employees and when you look at the three ponds particularly prong b which only looks at whether they were engaged in the company's usual course of business which of course mattress delivery is part of the usual course of so it is business and whether they perform that work outside of all places of business which they clearly did not because the judge sharon already found that both the routes and the collages where they had to go each day the terminals were part of the places of business do this work for someone else it's whether you could survive the terminations of sleepy's and the record shows that none of these none of these contractors were allowed by reason of their contract to have any other product on their truck while they were driving for sleepy's and if you look again at the actual tech records in the schedules they were making fourteen and fifteen stops a day five or six days a week and their d o t driving regulations a profit too much striving at a time so there's no question that on a punk city they would be found to be employees because they could not have driven for other companies it just wasn't time to do that and that's what judge certain also found and he also found that the detailed records that would show exactly what the images of these questions are about over time and to duction is correct yes there is a new jersey statute we cited in our brief i don't have a front of me it says that they have to keep records of hours and time worked and this as a story and by this period of time two thousand and ten with all the fed ex litigation that was going on at the time sleep easy either knew or should have known that this was going to be an issue and what i said about lama till is under mao clements and tyson foods where the employer should have kept records but the doctor who preferred the curtis allowed to make inferences based upon representative data that would not otherwise be the case if obviously self interested that these folks were independent contractors and that was a position taken in good faith and that was a position in the position that even got the approval of the sun will judge until we took the case be necessary for the class to be ascertained why isn't that the position in which you find yourselves right because that's a good question because under mt clemens and tyson foods it's not a matter of fault or good faith  fact it turns out they were employees and if in fact they should have kept records but didn't no one saying they should be penalized for that what the courts say is that the failure to do that though should not be placed on the employees they should not be the one punished for that the employer just test the now allow representative evidence to be presented to prove class certification and predominance and things like that that might not otherwise be the case if they had kept records on anyone it's just a question of burton's i think it's fair if the burden has to be placed for it to be placed on the employer even though i vehemently think that there is sufficient records here easily from which the class can be identified how much time they worked with respect to that also i would point out that mr hanks said that we had to prove two things for class certification one is that they work over forty hours and that they suffer deductions i don't think it's important but i think if we can make this clear certainly meant to the class there would be two separate classes really when you think about it there would be people who worked over forty hours although they're certainly going to have suffered adoptions also have they're going to be people who suffered deductions may not have worked over forty hours i think i don't think you have to meet those because each is a separate violation one is a violation of the teachers which in our wall and the other is of the wage payment wall i think that's all i have to say thank you very much thank you thank you to both for small colleagues any and for the questions i want to thank both council for very well presented arguments and i would ask that a transcript be prepared of this or argument and split the cost between you if you would but if it's a real privilege i think both of you here today with us today at least virtually