please the court as the courts are where this is f l it's a case in which the plaintiffs employees seek unpaid overtime pay that they claim was due to them based on the miscalculation and underpayment of their overtime wages during the period time at issue in the case the district court evaluated several issues on summary judgment and from our position got almost everything entirely right in large disregard and i'm going to that standard in a second and i think the only other issue that was even preserved for appeal properly was the liquidated damages issue those are the only issues that were briefed properly before district court i might take it he would all that  and for that reason the district court's award of summary judgment to sable ask you a question about willfulness though because you know from our perspective on the court of appeals if we confront an issue for the first time and all that we see you three or four district court cases is that a settled issue in our view the answer is no so if it's not a settled issue in view of the courts that are for all practical purposes the two experience labor employment lawyers and both of them side the only authorities that we are aware of that we can tell you about uniformly say that the way that you're paying  they actually they said that in their testimony deposition they didn't say that to say balts there was nothing in the record where those attorneys indicated that they said was an unsettled issue with regards to that i i that's there are there are a lot of issues here and i do have serious questions your waiver argument ok but i think that what they said that said that the two two attorneys well they may have thought that the issue was unsettled they didn't communicate that disabled and there's no and as it here in both it's moving briefs and it's reply briefs siebold and this is a quote from a reply brief say both is not running from these decisions meaning the decisions that we just discussed it simply disagrees with them and believe them to be wrongly decided that's not what that that doesn't the feet willfulness in other words are acknowledging we always knew about all these cases what's your best case where an attorney opinion like this saying i don't think those district courts are ri or it's not settled still allow the issue to go to the jury in other words it seems to me the will from this is where the employer admits they violated where they previously had a pattern of violations where they have no records but here they didn't we want them to do they go to attorneys in your briefs as the attorney said they were violating but i don't think that's what they were ever told they were told there are courts that might find you in violation so i'm asking you what case allows willfulness to go to the jury when attorneys consulted don't say you are violating they say there are district courts that would hold you or what's your case but first i think that that's not exactly what happened here because the bryant case was one of the cases that missed and that's from the first circuit that serp circuit all these things combined could result jury find that this was willful and clearly we pointed out to several cases in our brief where under similar circumstances maybe you should just do me a favor move under fluctuating workweeks which were hard for me to get my head around but but there's the the department of labor has had a difficult time tell us in telling us exactly what the test is where's the test you embrace i guess so brian that you think is one of i think and that basically it's been know like policy statement i mean was it a notice and comment regulation yes or both carries a brief get as if it's the controlling route correct and i and i that's certainly how o one of the prerequisites for the u s has always been that you have to pay a fixed amount for straight time hours well there's a difference between i think what they would argue although they didn't make this argument to the district court printed out for the panel in which i gave to my co counsel to ensure that we were all reading and i just because i was shocked when i read their briefs and read what they said they org you'd be for and why those organs were preserved i scratch my head and said where they get the same summary judgment proceedings that i was at because what they're saying their brief said there is such a divergence from what they actually said and so i produced for the court an actual copy of their response to play this motion for s is a header that says that or gues that they paid a fixed amount for straight time hours or what they call fixed salary there is that had it but when you actually look at it and this is that order can be found on thing they already about is they say that based on the record they dispute the plaintiffs position that they made the doctrines to the amounts but they don't say anything about the addition of bonuses that that's what the competitors lost cases about that they were aware of it was this payment of money that was associated with specific specific hours were courts of that's completely inconsistent with saying that this fixed amount of pay is a couple hours work because of them why  paying them additional hours for their tional for other straight time hours and on this view that they paid them that here a superior performance would be ok or a christmas bonus if you don't work on christmas is known as it's not paid for hours  permissible but it's law laden yes and that's and that's what they talk about that's and that's a different issue because that's not associate or tethered to specific hours of work and so it's not inconsistent with the claim we're with a factory work weeks language about a knowledge even in their papers they they picked twenty five weeks thirteen weeks from one one of the plaintiffs twelve weeks for a second plaintiff which they say look this shows that they were paid the same amount of money for straight time every week even when they took vacation but then you look at the charts and in both of the charts there's a weaker person a person worked something less than forty hours and they were paid something different than the amount that they say was the fixed amount  and if you look closely it's not it's not the same idea well we'll take your word for it all your time what's with the issue with regard to fix i think the other hue i was interested in this case is a calculation mean whether there's one timeliness there not based on the record is one thing but there's clearly not judicial a stop because they did not prevail there's a decision directly on point with regard to that issue proposition that judicial acceptance does not mean that the party against whom judicial stopovers to be in invoked prevailed on the issue where that actually means it's it applies whatever party makes an argument with the intention that the court will rely on that behalf of sable lp which is both the employee in the cross of paula i'd like to first turn to the issue of damages both the question of whether say fault is precluded under various doctrines that were raised by playing tips from challenging the damage model that the court district court relied on in entering judgment in this case and then the actual merits of that argument first with respect to waiver so there are three doctrines that really are at play here waiver judicial  waiver which was not what the district court found does not apply in this case for a couple of reasons first there's no final judgment the trial courts the district court's entry of judgment  off by explaining what it is you are contending is not waived or is stopped or whatever what in other words what theory of damages you relying on here yes you're on the theory of damages that is the correct theory of damages is what sable introduced in the subsequent briefing that it filed in august of twenty sixteen and there are really two components the first is if we assume that the trial court was correct in finding that the fixed wage fluctuating work week was not met in this case the remains the question of what are the plaintiffs damages and damages under the fair labor standards act or the over time that the plaintiffs are of no more and no less and over time is determined in relation to the regular rate so the first question is what is the proper regular rate and then the second question is once you determine what the proper regular rate is do you multiply that by one point five four point five so with respect so there are two issues so with respect to the first the question of what the regular rate is there is a regulation that is directly on point and defined as and if i may make a brief tangent the regulation that we are talking about seven seventy eight one one four which pertains to fix wage fluctuating work which is not a notice and comment regulation it's an interpretive guidance  department of labor's two thousand and eight proffer to amend it was going through notice and comment during this time period and would have been a notice of comment regulation had that process been followed but instead it was pulled and so one one for remains and interpretive guidance but you briefed it as it were in one poor governance i do i don't take issue with the language of one one four i think the language of want to enforce generally consistent with overnight transportation versus missile which is the supreme court case that actually established this and so with respect to the regular rate to the it's defined in the regulations and is defined in the case law again it's really not very controversial that the regular rate is all remuneration and that's actually i don't think controversial in this case the divisor is divided by the number of hours worked for that compensation so for example if they worked a forty hour work week if we told them it was a forty hour work week we had an agreement to work forty hour work week the divisor would be forty but in this case that divisor is the number of hours actually worked and this court has actually already decided that in the context of misclassification case so in those kinds of cases where you have an individual who improperly mis classified as exempt the court faces the challenge of how do you determine damages in that situation and what this course has has held in this is the ransom versus and patel case what this court has hel is that you look at what the salary was compensating the individual for was a compensating them for all hours worked was a compensating them for forty hour work week was a compensating them for a forty seven and a half hour work week whatever the parties agreed and that number as the divisor and interesting life in that case the issue is what are damages when an employer has clearly violated the law an issue on which the employer bears the burden of proof and where exemptions are are just that there are an exemption from the act that's important because the fix wage fluctuating work week is not an exemption  which the plaintiff bears the burden of proof because it stands side by side with all of the other means by which over time can be calculated time and a half when you're paid on an hourly basis is one approach you're trying to compute question becomes what is the regular rate the regular rate will be all the compensation that the plaintiffs fund on any particular work week and then all of the hours that the plaintiff worked for that compensation which in this case we know ranged up to as many as eighty or ninety according to the plaintiffs they work sometimes eighty or ninety hours of work week and according to mr ravi of the name plaintiff he knew that his compensation covered him for that work will in other words i mean the bottom line in other words what you're contending for in this court is what what i would describe as your position number two in the district court that's correct the position that was clearly articulated in the august briefing following the initial entry of the summary judgment order but before any final words not based on forty hours but based on all of the hours were and  one a one half so if you once you make that calculation that division which is all the payment which included the so called bonus or premium hours divided by the hours actually worked you would add one half per hour extra hour as the overtime right that's correct he would take that regular rate multiply by half and that results in a damage calculation that is around one of their damage calculation it is substantially last year on the the i do not actually know what the number would be that that's all that's one of the record that's one thing that was causing me at least a struggle greatly with your argument and or with the whole case and then but they are saying that you either when a hit or worse stopped or invited error or something because of your previous position let's assume it was a forty hour raised before final judgment it was raised essentially following an interlocutory judgment rule fifty four b says when there is an introductory judgment the order is subject to revision at any time this is not a situation which we raised after trial or after judgment it was raised before and in fact just the chronology indicates that that the summary judgment was order was issued in december of two thousand and fifteen and the court did not actually enter a final judgment until october of twenty sixteen this is not a situation which there was a mere ministerial act following judgment and the judge just added up some numbers and found that there was a significant period of time following that order this int tory order so there isn't a waiver when the issue was raised before the judgment there are court cases in fact and or has found even post judgment that an issue may not be waived but in this case this is not post judgment so that's the issue of waiver your honor the court interestingly enough did not even find that we had waived the argument the court instead opted to find that we were judicially a stopped which does require is one of the elements that we prevail and may not require that we prevail ultimately but it's certainly for choirs that we prevail on the matter that we asserted the first time around as in the whole case the plaintiffs prevail simply on a position that resulted in the trial court dismissing a potential defendant that would have confused the proceedings and added a an additional potential third party defendant so the plaintiff was able to successfully leverage their argument into a more advantageous trial arrangement that's what the whole case was and of course it is would be the unusual case in which a seven million dollars judgment was entered against an entity that prevailed and that led not circuitous lee but directly from this finding and then finally with respect to the issue of invited error this that's just a rule of appellate review it's not something that the district court concluded was a pluggable and in this case even if which we dispute there was an error in our initial judge and damages model it was corrected so no error was invited there's at the sierra club versus yet or case deals exactly with that issue when  ordered the district court for that matter from happening from considering the merits of sables damages argument and with respect to that damages argument a few other points i'd just like to make and then i'll move on to  the actual liability issue the issue of damages is an issue of law for the court it's not an issue for the jury the calculation maybe but the actual issue is something that the court should be deciding these cases should be decided on the merits if at all possible these doctrines of waiver and judicial stoppel and invited error are certainly important for for the court to be able to police the parties in front of them but in this case before a final judgment was ever entered the matter was fully briefed and the court declined to find waiver and instead found a doctrine that really has no click ability under these circumstances i'd like to turn briefly iran or to the issue of liability so assume that a forty hour week and so we divide forty into that amount of money and that is regular right and then we pay in time in half or overtime well here on a couple of points  the brantley case which i believe the bramley versus inspector case actually went half way between the two models so in that case but let me address the think the question raised more broadly the notion that forty hours is somehow  is is the wrong premise from which this argument should be made forty hours is simply the number of hours that the statute says overtime must be paid above that is all it is there is no default that we calculate overtime based on time and a half over forty that is certainly one of the methods and it is indeed a very common method where you pay people by the hour divide by or you know determine the rate based on the forty hours and do time and a half but it is not the only method and this court is made that clear especially in the sampson first pile of case want to talk about how the burden is on the plaintive because this is not an exception to the rule so it comes takes us back your honor to the to the question of what is the regular rate and since the damages under the statute must be calculated based on the regular rate the question is not whether we should consider forty hours the question is what is the regular rate and to that we look at the decisional law the regulation defines the regular rate in general because it's a term that's used to route the statute and the process is that the private right of action is that the plaintiff may recover over time is defined as time and a half the regular rate regular rate is defined as all compensation divided by all hours worked for that comp that's for no nine yes your honor so that's the that's the step and the notion that there's a default i think is simply an incorrect analysis of the issue that stems from frankly belief that the fixed wage fluctuating workweek method is somehow a deviation or an exception to the statute which it's not and it would actually be because of regulation specifically are allowed well indeed your honor and in fact the supreme court's decision on it predated the regulation and came directly from the statute and when you read a lot of those cases a lot of it the case that plaintiffs rely on for the notion that you shouldn't you should divide by forty should go to this default stems from a couple of things one some of them can stem from the misclassification argument that we talked about that this court has already resolved they also stem frankly from a belief that the f w w is a non preferred problematic method which is a position for example that the has taken recently but it doesn't change the fact that it's not it's co equal with these other methods of calculating damages but knowledge i think we part would be here if you had so you have to look at the case to kind of move around the edges of it to to get at the issue i think what it may be also helpful  thinking about this is is the issue of liability so for example i'd like to talk briefly about the lousy versus gnc case that's the case in which the court held the first circuit held that there are somehow a distinction between paying premiums for bonuses or commissions and paying premiums because you're working offshore or you're working at night that's a value judgment that has no foundation whatsoever in the statute in the regulations in any of the supreme court decisions it reads a prohibition into the statute that's improper that's what harm what it does is untethered the additional compensation from the hours whether where off shore or when weekends holiday the notion that paying a bonus for performance is somehow untethered from ours in a way that paying a bonus for working off sure they may be different in terms of where they fall on the sliding scale of payments but they're both premium payments and in the average year you're fifty two week if i understood your brief correctly the base salary right here was was an amount certain per week even if the inspector was only working fifteen hours and eighty or ninety hours another week when you added the bonus payments to the add amount certain for when the guy was off shore then you're increasing the salary offer which you calculate over time right right and so that's where you and the fluctuating you may not have done that correctly but that's why  says that you only pay one half for the extra hours instead of time and a half that's correct and in fact you know in the lousy case the court upheld the application of the if the when there was a fixed salary and commissions commissions that are attributable to a specific work week but it approved of o'brien with language that would be exactly inconsistent with what have you here agre and in that case the courts are drawing a distinction between that somehow we pay and pay someone a commission for working these forty hours really hard and we pay someone a premium for working those forty hours off sure that those are materially different seed of doubt as to whether it was on the liability question i hope you're going to save time to get to that yes just as raised now with the point being there isn't a material distinction between special compensation lollie and ours other absolutely as in every case that i've read for the most part including lolly has has as you pointed out earlier has made that distinction they've said that were you have to shift differentials including the seventh circuit in heater case we haven't really talked about mach with the same that followed o'brian the only two cases on point on this issue which if differentials directly tied to the hours worked that's money for hours worked and it's entirely different than performance based compensation and virtually every case with very  said that the calculation of damages here was not just ministerial in fact here it was if you go back and look at the transcript of the hearing that was held in august two thousand and sixteen which result in the briefing the plaintiffs took the position that we're taking now this issues  are even resolved on summary judgment judge you granted summary judgment on all issues with the exception of willfulness the defendant on the other hand said oh no we don't think so even though we didn't brief that issue and we really didn't we get the forty hours should be the divisor now we're saying something different we want an opportunity something different and what ends up happening was the parties did brief those issues with the plaintiffs briefing the issue saying that the defendants were stopped and they had waived that argument because they had agreed on the forty hour divisor the defendants did not respond to that they did not respond to pla fs brief in that respect so what they said waivers that i'm sorry they all yes and they also contradict the cases citing their brief they never moved to vacate the judgment either the initial judgment were the final judgment they never moved for reconsideration with so little time i'd love to you because it is your heart this is a hard issue for me and the damages why not just make a case for why brantley have been preserved not forfeited not invited why is brantley a preferred method i  taking you are skimming the cream and ignoring whatever's not the cream because you are getting two and a half times according to them what the hourly what the ordinary forty hour hourly rate would have been that's according to that's if you went back in time but in fact what happened if it were also you're also creating a gigantic differential between what these people were getting and what sable was paying the no back except for the fact that the way they are calculating it includes all the bonus payments and therefore expands the pay base but over what it was clear you can't go back and say well we we knew were violating the law we thought we might be filing a lawsuit and here's me now wait you're confusing willfulness with the proper calculation of what would time and a half what would over time have been and so you know that you've got liquid it you you know but nobody see even arguing about liquidated damages here so you're going to get double so that's the penalty that the law prescribes apart from willfulness which is you know been argued here so all we're trying to do is an exact calculation as close to exact as possible and i think one of the yes there is no more than thirty seconds the reason i provided is definitely tied to wealth as you pointed out your honor but i would point out and this is in the record signals about what you've argued sufficiently that you have argued it sufficiently and i in this last year you just woefully misunderstood what i said and i'm sorry about that but we certainly have your argument it's a very interesting case and we will seriously review every bit of it court is in recess thank