which is we proceed if i could ask you speak right into that microphone you probably aware the microphone will take down that we are electronically recording the the dialogue so there's a record after woods for the court or the parties so keep the boys up and speak right into it thanks much will do your honor we represent fifty four plaintiffs  llants all honduran each to a guest workers who work for the defendants fancy farms during the twenty third two thousand and fourteen strawberry harvest and all of these plaintiffs the victims of human trafficking as an initial matter they pounce seek three separate forms of relief first the plaintiff in a power it's contend that the district court clearly erred when on january twenty in january eighteenth twenty eight hundred dismissed their contract claims those eleven plaintiffs had paid recruitment fees of do you have to question you've got sort of two parts here certainly it's what happened after or between fancy farms and the recruiters or the recruiter ok so the recruiters first of all the regulation at issue makes clear it does not use the word point it uses the word engage and it qualifies the word engage with the following words directly or indirectly which suggests by its plain meaning that mr molina an ass and mr burns who were the recruiters here did not have to be employed pursuant to an employment contract in order for fancy farms to have the obligation to clearly prohibit them from collecting recruitment fees from those who came to ultimately work at fancy farms it's undisputed on this record that not only did mr grooms and fancy farms fail to prohibit but they also represented in absolute contrast to that failure to the u s government that not only did they behead it and would they prohibit mr molina and mr burns from seeking recruitment fees but also in the june in the june fourteenth clearance order both mr grooms and mr molina who by the way fancy farms insists was not employed until june twentieth and to just record plainly erred in finding did not was not employed before june twentieth because there's a clear dispute a fact with respect to that a stablish plainly by the clearance orders the clearance orders are dated six days before the employment contract and the clearance orders list mr molina as the head of h r for fancy farms were over in the same document mr grooms of fancy farms who claims that the reason he didn't contractually prohibit the recruiters from charging recruitment fees was because he was only aware of the law of course we all understand as a matter of hornbook law that failure to make yourself aware of the law is not a defense to having not complied with it but notwithstanding that in that same document where mr molina holds himself out as an employee of h r which is the head of h r in an employee of fancy farms before the date of the contract it's plain that he is engaged at least indirectly on behalf of fancy firms because he said mitts the clearance order together with fancy farms signs it as the head of h r and then mr grooms who claims to have no understanding or knowledge says under penalty of perjury two different things he says under peril penalty of perjury that the employer an agent has not has not sought or received payment of any kind that's inconsistent with the regulations i e recruitment fees and in and mr grimm certifies under penalty of perjury that he has meaning up to and prior to this date he has prohibited moving any other recruiters from charging recruitment fees and that he will do so going forward in the future so it's hard for me to understand the district court's ruling that there wasn't no in gage meant prior to june twentieth when both mr molina and mr grooms made a submission to the u s government under penalty of perjury saying that they were engaged together in this effort of obtaining a workers to work on his farm during the two thousand and thirteen thousand and fourteen season so that that goes to the second issue which is the the summary judgment issue where the district court in  twenty seventeen dismissed the contract dismissed pose that both the f l s claims f l s a claims and the contract claims on the basis that there was no contract pursuant to which mr grooms and fancy firms would have prohibited mr molina from collecting fees prior to june twentieth but the fact of the matter is is that there is a record ri it does but the bar is set forth in the briefs the cases cited in our prius is actually relatively low and there are two ways of proving proximate cause ation flowing from a contract one is reasonable foreseeability here there's evidence in the record which was ignored by the district court that demonstrates that mr grooms was aware that mr molina had charge recruitment these in the past there's also evidence  the initial either the first or second meeting between mr molina mr grooms and the final retention of mr molina according to the record that was stipulated below  groos made a call to references and there are notes that are in the record and those notes are written on and those notes in those notes mr grooms indicates that there were prior instances of paying for recruiters and in his deposition testimony favor of my clients because what mr mr remember ad around the time that mr grooms made that statement he also had signed a document where he said i will specifically prohibit you in a contract from charging recruitment fees then he doesn't do that instead what he says the strongest part of your as far as i'm concerned is he didn't strictly comply with the regulation but my question is even though he didn't do that the can you establish approximate call absolutely because he understood not clear to me and i think it's appropriate it's not clear to me that what mr what mr grooms meant when he said i'm telling you to apply to do this right are never going to get another job that what he meant was strictly comply with the law mr groom's defense is effectively that he did not understand the law which is not a defense it's not an appropriate defense to say i didn't understand the law therefore i can't be liable a normal contracting party and mr grooms as normal contracting party he's a businessman he signed a contract and the words of those contracts said that he would not with the with the workers and the the question this way for you tell me what evidence there is full of form one two three four five that suggests there was proximate cars in this case that is to say that group knew or had reason to know that in the absence of putting into the contract the language that the regs plainly required him to do and he did not do and in that absence it would have gone forward differently i would say we have a minute left so right you take your time you just tell me one two three four five what is there here that factually puts that issue into dispute mr grooms understood that recruitment fees were a problem for molina formal generally he testified to both he understood that they were he his quote was they were a big problem and that sometimes they were charged and it was a big deal he didn't educate himself about the law notwithstanding knowing that he didn't educate himself about the law notwithstanding the fact that he specifically was told the person he was hiring who would be the single point of the government that no recruitment fees had been charged so he understood recruitment fees were an issue he also signed suggesting that that was that certification was false or fraudulent well it is false because he also says i think he intentionally lied on the form whether here evidence and i understand you don't have to prove that i'm simply asking you to tell me what evidence there is a proximate cause i think the worst you said he knew that recruitment was a problem in general and to this some record evidence that he knew there was a problem with molina in particular second you said groom certified that no recruitment fees had been charged and in addition he certified that he would specifically forbidden his contractors and recruiters from charging recruitment fees so the factual record is is that on june fourteenth twenty thirty or anything else factually beyond what he knew in the certification leading what evidence is there a proximate cause the other evidence approximates causation is that the department of labor specifically put together a regulatory regime that made it the employer's obligation to prevent recruitment fees and he knew or should have understood that based on the multitude of documents concerning that regulatory regime that he reviewed and signed under penalty of perjury he also had the ability to and never did ask any of the employees if they paid recruitment fees notwithstanding his certifications to the contrary and he made those sort of occasions more than one time he made them in june and he had made them again in november to say it's a piece of evidence that he never asked the employees whether they were ever charged with her act he never asked them and he was he applies to do indeed he did take action he was put on notice once he got a letter from a lawyer but what there's also evidence of is that between when the workers first arrived in the fall of two thousand and thirteen and when he asked through a second request to the government for a second tranche of workers another seventy five workers that there were workers present they were telling people within fancy farms that they had been paying recruitment fees he nevertheless asked for additional workers didn't amend his agreement with molina and made the same representations to the government without ever having inquired now it was done in the fact that the workers were actually on his farm so he made a second he made an initial certification to the government before the workers were there so i guess it's possible that he had to rely in that instance on molina to tell him whether or not there please the court morning morning my name is my name is david stephanie and the privilege of representing fancy farms along with my colleague matthew stefani modus on the facts in this case are critically important because the allegations of the complaint suggested that there was some sort of relationship between fancy farms and mr molina or his company on the nation's staffing and then after the relationship was formed these recruitment fees were obtained contrary to the regulations that's not at all what the evidence the found by the district court lied upon by the you had no contract before district court referred to as the eleven remaining plainest and their contract claim it doesn't have an impact in our opinion with the court's correct analysis of applying the area decision on principles of agency in this case only no one has had a reputation for changing for charging the fees where they are not not at all your honor that's completely speculative they were there is complete there's no evidence in the record to suggest that from doing anything contrary to what the law would allow and essentially gave him the western justice of approach you'll never find a contract in florida again if you mess this up and let manglers that affect let me ask you one question about this case that troubles me from your side and then i want you to tell me whether or not it makes any difference and that is this there is this federal regulation out there that required fancy forms to contractually prohibit malloy you know or anybody else for that matter from collecting these recruitment phase from potential workers that was not done in this case i don't know why it wasn't done i don't know if your client just simply aren't aware of that regulation it doesn't matter but does that fact mike any difference and how we decide this case the fact that there was it was i required federal regulation to mike his contract between fancy fonts and maligned and it wasn't done does that affect the outcome of this case your honor in our opinion it does not affect directly the outcome of this case first of all would say that the specific question about why it wasn't done in the evidence in the record is mr grim's testified at his deposition he was not aware that he had to do that is that like any difference i don't think it does joy and what makes a difference with the law is no excuse right i agree with that horn but principle you're ok so then tell us those that make any difference in the disposition of this case this is the answer is no to your the proximate cause issue is required under florida law there's no question there's no evidence whatsoever of proximate cause as as found by the district court judge in this case in making the ruling that she entered in a final order go back to my question about mike any difference on the fact your client did not comply with this federal regulation all right it doesn't make a difference the contract claim what it does make a difference to though is this the department of labor has as indicated through this regulation a clear intent to try to prohibit these kinds of terrible recruiting practices i was stating the fact that they admit as the district court quoted in and in her decision that the ability of the department of labor to regulate foreign recruiters outside the corners of the united states is constrained they don't have that authority however it's a well intended effort to try to minimize this terrible practice that happens in these areas were these  workers are so vulnerable to essentially the snake oil since oil salesman that make all these ridiculous promises so it is a intent a regulatory intent that should be honored and followed and my client completely messed up by not putting that in its agreement it relied upon the expertise of all nations staffing and it signed off on an agreement that all nations staffing drafted expecting that the expertise was known that was my client's mistake but in the department of labor's own regulations they say hey i'm a facia case of doing the right thing would have a written prohibition in this case there was a verbal prohibition to do everything correctly well that's a little different than what the statute book or the regs require it isn't and there's no question one thing to say comply with the law as a general and abstract matter and quite another thing to comply with a regulation that says specifically you've got to tell the contractor  can't do this well in the contract itself i agree your honor that's what the regulation clearly says in the call and so it isn't an answer to say tolan just to comply with the law it's part of the answer to get to the second point i was trying to address with with judge it and that is the department of labor also says that there can be a written prohibition exactly what the regulation requires and that by itself is not a get out of jail free card for a grower because if the grower had knowledge for example in the regulations in the preamble that the grower might have a ridiculously low price for the labor services being requested or even no price at all and that should put the grower on on knowledge constructive something's not right here or credible complaints about other recruitment fees so none of that record evidence exists here when karl groom signed off on the clearance order the date of the clearance the signed off that was certified was june twenty fifth two thousand and thirteen he had no knowledge whatsoever of any kind of recruitment fees having been obtained or requested by mr molina or any of his lieutenants  down and in in central america this is a case where mr grooms at the time he signed off on this class were expected workers coming into a different date hundred workers to come september first and later requesting and that's another seventy five workers to come in early december workers never came when they were supposed to come because mr molina didn't get the workers there how is it your view in response to judge to be in his direct question whether it was reasonably foreseeable that if you failed to include in the contract with the recruiter that which the law said you were obliged to put in the contract  irrelevant what relevance does it have it has relevance because of the intent of the regulation to try to prohibit this practice right but for purposes of the giving meaning to what congress obviously had in mind and what the department of labor had in mind it's of no consequence here in establishing probable cause that is to say you cannot reasonably infer from the absence in the contract of this specific requirement that it was more likely than not that the recruiter would violate the law that is our argument your honor because i understand but i've been i'm trying to understand what possible relevance this this reg would have in fact pattern eventual ian rolled into a significant problem for fancy farms with respect to the workers reporting fees  the workers then having to be sent home at that fancy farms cost because i put that same art class thing i understand that there are other collateral consequences that attach from the failure to comply with the r that's not my question ok my question is for purposes of establishing probable cause is the fact that you did not give this warning in the contract with the recruiter i relevant piece of evidence your answer has to be that's right it's irrelevant runner is it and if it was the answer is it's relevant and what relevance does it have what are we supposed to infer from his failure to include the language that the reg required him to include it is not relevant to proximate cause it is relevant to his compliance with the h two a program regulations for which fancy far i  what we're here and that's not what we're debating that may be true it's an interesting point there may have been collateral consequences in harm and damages that befell them i'm simply asking whether it bears any relationship to the breach of contract claim before us it does not district court said no is your position it's irrelevant it is irrelevant because it does not create proximate cause for that damage doesn't afford any inference no not the regulation itself around or otherwise there is not the regulation the failure to comply with the break you wish is that afford an inference i do not believe it does in this case because there was not a specific knowledge on behalf of mr grooms the principal of fancy farms that any of this conduct had taken place so his ignorance is is the is the defense to what otherwise would have been relevant it's i'm not trying to put words in your mouth truly i'm just trying to understand whether this d o l greg has any bearing on an inference that might reasonably be drawn by a fact finder i don't think it has any inference of proximate cause simply because it's in the regulations for purposes of contract damages under florida law i believe the district court judge correctly decided that and was looking for some sort of evidence that was not supplied by that at this bench trial is actually what it would be let me ask you if that if that's and maybe that is but if that's right how would a plaintiff go about proving meeting meeting his burden of proof on a case like this would seem to me it be almost impossible on last may be there was evidence that the same recruiter didn't did or did not charge a fee for some other similarly situated grower where that grower put the recruiter on notice short of that i'm hard pressed to see how they could possibly meet their burden or ever show proximate cause here i think it's a very good question but it's a very difficult burden to meet because in your answer maybe that's just the way the law works in this case mr molina even though his l l c was a florida l l c he disappeared he was sued initially by at least one of the plaintiffs and in the southern district here they never could find him to provide provide service of process so they dropped the case and dismissed and then came back and sued fancy farms it's a difficult thing to track down someone who's engaged in fraud in an international scale which violates a number of federal statutes he's going to be hiding and he never was able to be served initially in the lawsuit and he was not able to be served with a summons for a deposition to cooperate and provide any evidence in this case let me ask you a slightly different question help me with the record your colleague suggests that there is record evidence here that  that he had reason to know but that he actually knew that recruitment fees were a big problem as a general matter that recruiters hit these employees opt for big recruitment fees as a general matter and to he had some reason to believe based upon communications he had with other growers or other folks that m had a problem in this connection as well is their record evidence to suggest both of those points yes to the first no to the second yes mr mr grooms was aware of the history of recruitment fees being a problem within the h two a program earlier on in the area the case came out of west central florida the plant city area which is exactly where fancy farms operate so this is something that he had learned and heard about it various seminars so there is evidence to that fact however the allegation that there was some knowledge of mister mr groom's having knowledge of leaning gaging in similar practice there is no evidence whatsoever there is a note  that was attached as exhibit one to mr groom's deposition which is in the record where there were some handwritten notes when mr carl grooms checked on the references but there's nothing in there about recruitment fees and it's pure speculation as to what the notes mean there was never what is the notes say taking it in a light most favorable to the nonmoving party well as best i can read your honor since it's in front of me it refers to his contact with a tomato grower by the name of  red diamond farms and a person by the name of one lopez i called one lopez only works for them the owner called me out of fifty only twenty nine looks like remain others said they had to pay extra to come to us we're not making enough money so the others said they had to pay access to clock struck to come to us and what that's what the grower what the notes reflect the grower telling rooms wrecked and what that means is that in reference to moline no idea it could mean it could mean is as well that workers traveled a great distance from various parts of mexico or wherever else they came from for that when did he cry in the course of his deposition did he explain what due diligence he did in check and molina how with other girls yes he did wrong and what did he say about monk's calling these references that were provided by alteration staffing and mr molina he called the state workforce agency walter jantz and got a positive recommendation so he did other calls beyond just these refugees he asked any of these folks whether molina had a problem with it in these employees up for recruitment fees that specific question i do not believe was asked at the time so the closest you've got is just this note close as they have right away what rights is this no and they never asked him anything about that particular note at his deposition let me ask final question to you this way in a slightly different way pretty obvious what the purpose of congress was and what the intention of the dio l was in seeking compliance with this regulation these workers were it was very difficult position they were a vulnerable class congress ought to provide some protection and one of the things the department of labor did to ensure that protection was to put the requirements firmly on the growers back to tell the recruiter that all shall not do this you can charge a fee or recruitment say if we were to read this case the way you do in the district judge did don't we really go a long way t guarding exactly what that greg was designed to do if we say no inference can be drawn from the failure would include that warning in the contract no inference can properly be drawn for purposes of proximate cause it would undermine substantial way would it not want a purpose then in one hundred six fifty five i don't think it undermines it because of the other penalties that the grower is susceptible to for having not honored that regulatory provision the so undermines too strong but the regulatory intent as laudable as it is and i hear to say it's a lot of a one time it there it is not the ability and i think the for violations goes to the person who knew or should have known about a problem and it an association that does something wrong under the h two a program does not disqualify but there's no claim here that that's the congressional right but there's no  could you tell me council what specifically in the notes of the groups that were attached to his deposition say or suggest by at least one construction that grooms not only knew there was a recruitment problem in general but he knew that melinda may have had a problem in particular because that's what i understand your argument to biddy if i have a conversation with the reference of molina and a quote from those handwritten notes included in quotes that marina charged extra to come to the us there is a reasonable construction of that statement alina cho arge the extra in coming to the u s extra to come to the u s and who was he speaking to when he wrote that i believe it was from the gentleman from diamond farms who my adversary was just koch was just speaking about and so he was speaking to someone who had was a reference from alina had worked directly with molina said the workers in quotes were not making enough money taken together that taken together with rooms concession and that he was aware and that's on the docket entry forty eight one judge marcos question this was a summary judgment those that know and enough itself create a genuine issue of material five that would preclude summary judgment on those particular calling i do believe that that together with mr moviefone as excuse me mr grooms acknowledged awareness of the problem of recruitment fees together with his certification that  of the plaintiffs and in toronto tory responses where they confirmed and swore that mr molina held himself out as a representative of fancy farms was the sole source of employment for fancy farms all of those things together created a genuine issue of fact concerning a number of things including truly when mr claim in the sense that if the panel were to find that there is cause ation here for the eleven plaintiffs that paid after  genuine issue have been yes that causation that that these facts would apply to all of the plaintiffs who paid before june their claims should go to trial summary judgment should be reversed and it bears on the f l s a claim as well as you know because you sat on the panel an area and it was a long time ago there's been some cases since then remote area and us among others and those cases demonstrate that there can be questions about apparent authority as well as actual authority and here if there's a question of fact about whether mr grooms knew or should have known that fees were being improperly charged and he never was certified to the u s government that new fees were charged it may very well be that he authorized help me understand what the district judge did here because i understood that the district court entered summary judgment for a fancy for on the f l as a claims and entered summary judgment on the breach of contract claims brought by plaintiffs who had paid the fees before the recruiters w formally or officially hired by fancy for but with respect to the other eleven that we're talking about the parties submitted proposed findings of fact and conclusions of law and the district court and to the judgment for fancy forms on the remaining contract claims after making findings of fact and conclusions of law it was if you will the functionally equivalent of a bench trial by the trial judge is that w down here correct or ok so we're looking at the other the last group not on the summary judgment crack question is not whether there was a material is you a fact in dispute there plainly who are the question is whether or not the facts here you or your argument has to be it seems to me that the district judge made an error of law in failing to so much as consider the relevance of the the legal error because she could have been perfectly free to look at the notes quote molina charged extra to come to the us the workers were not making enough money and simply found that wasn't enough wood but that is not what she ruled your honor if you look carefully at the order what she concluded was that there was absolutely no evidence of causation and because there was no evidence and the reason was because she totally discarded the the the deal well correct but she also totally disregarded the other evidence so there is the dio well regulation and she absolutely disregarded the the impact of that on the potential for causation she also completely discounted he was free to discard if she wanted as the fact finder wasn't well perhaps she was but she didn't you say perhaps she was wasn't she free to do that is not what she did wh i understand that but she would have been free to do that if she chose if she had said i have considered this evidence and i have found that it is not persuasive and i think that would be one thing if she had said i've reviewed all the evidence and i find as a fact for fancy farms and against you that's not done that but that is not what she said she went out of her last year argument is and you never made it in the blue brief that she was obliged to make findings and she  didn't shouldn't just reach conclusions of law as a trier of fact which she obviously was here i actually think she did find a fact and the fact that she found was that there were no facts that's what she said her conclusion was there were no facts on either side with respect to causation and she talked about some evidence that the defendants raise and she discounted it she said i don't find this evidence to be persuasive but she ignored entirely evidence with respect to groom's knowledge that goes absolutely to the standard for causation under florida law which is d mr grooms know or should he have known was it foreseeable all was it a natural consequence of his failure to include this prohibition that recruitment fees would be charged i think we've got to thank you very much thank you both for your efforts this court will be taking in just a short fifteen minute break