possible and the concern was that people's claims were dismissed and other people's claims were dismissed and we would have to then go about filing hundreds or thousands of other cases like we're waiting for a ruling on the interlocutory feel and it didn't strike us that was the most efficient approach to have cases being actively litigated thousands of cases litigated the western district of pennsylvania go through the process of seeking interlocutory appeal but instead to advance it so that we could get this issue resolved once and for all but it seems like the way you're going now is you know you've got somebody bringing up a procedural roadblock get it we're comfortable that we did the law is our favorite you can get to the merits on this if the answer is there is no jurisdiction then we will you know have to go back and redo it but our conclusion is that we were this is exactly the procedure that is allowed both under supreme court preston and other third circuit precedent just because there were two viable options choosing i really find that price yeah well i think that in terms of the president i think and you lose on the merits of a b and c and you just have the remaining say look ok it's not that big a deal let's just agree that to have it dismissed with prejudice that way we can appeal it and see here it's like you're trying to appeal b and once you've given it up how can you resuscitate it well i don't i think i don't think that we are but i think under garrity we have a substantive them there's the voluntariness issue and there is the with prejudice issue with prejudice issues i don't think is a problem of course appeals are always done are on with precious i think it's a voluntary you know the claims are going with  permission to to appeal a fellas has others that is and i think that's all the more reason that this is the appropriate mechanism to do it and let me let me take a step back to inject the practical into this for a second are litigated while we're sitting in a locker for repeal and it's very possible this court might say we're not prepared to take it at this juncture so we go through care homies individual case for her several thousand dollars worth of damages wait to receive a judgment on their eyes if the judgment is favorable to us that raises issues about how we would appeal that right now if you feel a favorable judgment on what it is unfavorable to us we  appeal that and then we get to where we are but at the same time all these other cases are going on so i don't i think if anything the difference between the other let's say in rule twenty three counsels in favor of this we're all better off answering this question i mean we are what it will be it will create it it reminds me a little bit of the sense you know which sounded nice at the time it sounded by oh well we'll put them in separate proceedings but it sure made a mess of things and my concern here is if you say the only way that you can appeal and f l as a decertification decision is to go file four thousand even know if the rationale that i'm that has been suggested here what happens apparently she wins let's say she gets to that but i think what you have in terms of what you're talking to do went back to the example of you have and you dismiss the it's final it's over and if you dismiss with prejudiced your your claim here which in effect is the  effect asking us here in particular to say let's create a circuit split between the life and level circuits and so it will automatically get probably go to the supreme court and then there's the problem is the consequences of what you're suggesting if we go your way are named plaintiffs in effect will be sacrificed if your cases well the two good questions if i can answer them go ahead it is sort of like i believe that the supreme court has been pretty clear on this and other courts the second included have said that you can you can you can appeal the decision the dismissal with prejudice get you to where you need to go and let me  see this is final it's final in this sense we're not sitting here if you rule that class certification was appropriately denied here the case is over over actions well yes yes your honor that i don't i doubt that we all three thousand will be filed but that will happen or is a better result if people say to themselves i lost several thousand dollars but i will tell you i am not going to sit for a deposition and attend a federal court trial and pay a filing fee for three thousand dollars i think that maybe i don't know which help is there is it possible to consider either small or so classes it is very possible to consider a smaller subclass you're in a court to not look at it i don't think you necessarily need to for that was not done and my concern is going that this is final it is over we are giving it up in the cases this a right to pursue something collectively under a federal statute and since you have that right if you lose that that is also a claim that you can bring on a b c and the the right to bring up is the substantive but the right to proceed collectively is something that you can  know the briefing in this case didn't reference the actual relevant line cases and we were just fine in them ourselves but it seems you know the representative capacity that was different from the way the cases you're i know my time is up but i would yes if we could do additional briefing on that issue and pick up on this i understand some of the course concerns i would like to address get us to the merits but let's spend an all right in terms of the merits of this case the focus is litigation is on the defendants corporate policy here both the policies are almost identical in both cases it is not a challenge to individual or departmental policies that is on a supervisor by supervisor basis that's not the rule the rule is in zavala you look at the policy that is being challenged and you asked under that policy who was affected by it and the policy that we're challenging here which impl invariably in every department under every supervisor and in both cases the defendants say the policy was the same in all departments all departments was the same was we're not going to pay you even when we know you're working on less you also tell us in some format that policy might everywhere supervisors were not told go out there and put down people's time that you know are working where you should have known the work what is so ro look if you were during your lunch break and therefore we should not the duck the half hour just hours or tell you supervisor which with that there's nothing wrong with that if that's not the be all and end all policy if you if your answer is the employer can just simply say well i know you're working but unless you put it down i'm only going to pay you if you put it down for instance the supreme court employees lazy employees employees or forget to put their time down as well as smart employees and more importantly the apple is a is designed to spend workforce work among more people so that we increase employment among more people if people were allowed to report their time and they wouldn't get paid for it well you would be spreading work which is the main purpose of the statute and you would be protecting employees the burden is on the employer to put down what they reasonably know they should do this isn't an onerous burden this is not an burden in fact here in this city will just even look here university of pennsylvania was faced with a similar lawsuit started implementing reasonable measures to ensure that employees reported their time mersey did the same thing in other cities harvard has done the same thing faced with a more lawsuits this isn't something that is that hard to do but if we could i guess of what is going to be the nature of the proceedings in the court you it sounds like you've proven the policy there is a with that and it isn't right in the eleventh circuit almost like very similar policy their employer said you can't work over forty hours a week but it isn't i mean if the lawfulness of the policy is an issue and you know an individual plaintiff and bring that issue before the court and have a determination on that it's not like you're going to have you know four thousand positions that are going to impact the whole class one it seems to me it's a fairly discrete legal issue not a lot of fa honor i agree i think it would be a relatively straightforward issue and back and right it was determined on summary judgment whether the policy was legal or not i'm not sure that you need a trial but let's decide that once less not have four thousand lawsuits each time going up well this is policy legal this time this is policy legal this time that's all purpose of a class action is to say this is policy legal and you shift the burden to the employee to get paid for the time they think it's right we don't all right it is that employees who work at all through a meal break are to report that and they will be paid and we in the efforts are in there about all of the things we do to make sure employees into who facilitate their reporting certify class we can decide the lawfulness of the policy there are fifteen cases cited in judge decisions opinion that have similarly help that this policy is not unlawful the six circus just a few months ago in the white be your honor but i mean my point is it's not a question is the policy illegal the question is an individual situations was the policy actually applied as written that's that's what each of these plaintiffs are raising in their claims on the settlement of the case instead judgment was entered in their favor by the court without their consent and the case was dismissed over their continued objections the chief justice and went on to say why this yes you're on and you're arguing by analogy in support but it would seem that the ninth circuit eleventh circuit cases that we previously cited smith and camera grant probably would be a more direct help w it well that the issue in here unlike the issue in some sacked is over whether there's a final order and i think our focus in our briefing was on what this court held in  n and that is if you prefer cure the dismissal of the case in the court below you cannot appeal a class certification decision because that's so that circumvents the role that those decisions are not  the supplemental record we agreed and it shows i agreed to tow all of these collective plaintiffs so that they could exhaust this appeal but i also said in the same e mail that we would not stipulate jurisdiction i also would like to go back to that the eleventh circuit has two decisions that where they have held that if you dismiss your case to try to appeal in a locker torrie order the public court cases in your brief yes ya but you didn't say the camera grid case no your honor we did not and we did not i frankly the the line of cases roper and garrity i felt that they because they did not deal with the action in the case at all once the dismissed their claims with prejudice yes don't only time i'd be happy to talk more about what about that what's the consequence of allowing the party what principle would you limit that if i don't like a discovery order i could dismiss my claims and then claim i can take an appeal if i don't want any water that i don't like i think one of the briefs that was filed here not ours used the word if you say that you can create an appeal right to appeal it in our top story order by simply dismissing your claims and then taking the appeal then katie bar the door there is no limiting principle to that to that process the group of plaintiffs are similarly situated sakin that the district courts finding that the plaintiffs are not in this case similarly situated must be upheld unless it's clearly erroneous and third this is critical here quick help if liability and damages must be individually proven it does not matter that there may be certain common wings among the proposed members the case cannot be certified assistant coach did whether he missed any meal breaks because of other reasons you can't prove that you missed a meal break collectively each plaintiff must come in and testify as to their experience in that regard secondly that the individual supervisor had reason to know suffered or permitted the employee to work during the meal break how does the fact that caring jimmy's supervisor was aware that she had worked during a meal break in wasn't pay what does that tell you about any other plaintiff's claim each plate it would have to establish why it's supervisor that person supervisor had reason to know the third thing it has to be is whether or not they were paid the record shows that millions of meal breaks were paid just in the last four years so obviously many people work through the meal breaks and get paid for it so the fact in this  may not have been paid for a particular meal break doesn't tell the court or the jury anything about the experiences of the rest of the three thousand class members they have to also prove in order to show a violation of the  that this is incremental that that half an hour would have put them over forty hours or would result that over time the record shows that most of these employees for most of the weeks work fewer than thirty eight hours meaning there is no apple that's a violation records i mean these things could have been proven in submissions in individual submissions and an action with a case that they not they would have to be every single element of the case has to be proved by supervisor winked at me and said good for you when i was working during a deal but we have a right to challenge that testimony in each individual case they've every single court to have  assume side them has held that meal break cases are not suitable for collective treatment for the reasons i've just gone through and the many many reasons we had in our very thank you your honor thank you very much is that the factual context is important here there's no dispute here that neither the defendants through offers a judgment or tenders a settlement the court through a summary  dismissal or any circumstances such as somebody being released from prison conspired to prevent these plaintiffs from moving for certification from a fully litigating certification but what was the prosecuting their cl surprise talks about the involuntary nature of what happened to two plaintiffs they're here it's voluntary weist why does it make a difference as long as the dismissal was with prejudice you have an appeal well the dismissal will and then there is will be an issue if something was dismissed with prejudice as to whether you know they have a say but the dismissal with prejudice means final means final but they're not trying to their control to prevent this from happening to them and now found themselves where they were out of court but they still had this personal stake at the time of this voluntary dismissal these plaintiffs had more than a personal stake in certification they had their line of cases that the plaintiffs cite when they talk about forever abandoning their claims they literally mean forever abandoning their claims when mr thomas says that oh you know we don't get sort of creation we're done but if things but we're not it forever of anything we want to now go see through direct review what we couldn't get yet they didn't even seek the opportunity under the existing rules under cloud nine hundred two b and what i hear mr thomas saying with respect to let's look at this practically and look where we find ourselves and why we didn't want to file these three thousand cases economic hockey tour is nothing more than a an attempt to make a different rule  how can they appeal that that were you say the appeal the order appealed from has to have been adverse and i soon sullivan is your main case yes if we get beyond that to the issue  of finals with prejudice then where are we if we say it's fine if we say that if you say that's fine i think i have a tougher argument to was dismissed attempting to file their own case attempting to intervene in this matter saying i have a stake in this matter moving on to the the merits  break that there was constructive action or constructive knowledge and that they were paid for work and that in that particular week they were more than four years now with respect to this policy and this construct of knowledge argument at best that's that's up at forty thousand feet that we have a system here that has the potential that it's not happening all the time but in order to figure out in any plaintiff whether in fact that happened you need to look at what actually happened on the ground to quote the broadcasters we need to go to the videotape we need to see what actually happened and i think it's incredibly telling that bowie was a transport associate the testimony with respect to that department is that the assignments were done by computer and their lunch breaks were scheduled and when that particular  bowie would go on a lunch break she was removed from the computer simon screamed so that it was impossible for her to get an assignment during those thirty minutes now is that experience is that representative of what happens in some nursing union at a different hospital you had plaintiffs another guy john had she caves he didn't link taken lunch she didn't like eating his meal he preferred to take a half hour at the end of the day he was not required to shower but he liked to go in shower and change his clothes and have his his breakdown and the supervisor had the discretion to bless that and in fact that was what happened with it and he  where you're saying these individuals were improperly classified as exempt they're all in the same job this is what these people are doing and it's a question of whether they satisfy the exemption or for example the andreyko case another case decided by judge ambrose which she distinguish where there was a policy that we are not going to pay any of these people in the same job for this walking time we're going to aim for x amount for this there were no individualized differences yet in these millbrae cases district court after district court when confronted with the prospect of having to try these cases he said how can we do this because each person's experience particularly when you have the yes on occasions i would feel that that foreman yes i did get paid then the constructive knowledge issue i think it's reasonable for the defendants to argue well if that supervisor knew that all these occasions the individual had no problem filling out  form and getting paid for it why would i have reason to think that if there was another occasion where they work through and they didn't submit the form that i would think that happened if we did not collect about actors or district courts  claims i don't think the record it records in these cases in jest that in any respect hospitals or health systems are trying to do anything but to accurately record time and that this   in terms of how you most effectively accurately record climb work thank you thank you very much certification appellants argued instead they're seeking review of the class determination since appellants do not contend that the order of dismissal was in error however the only issue that opponents would have us decide is the correctness of the refusal of class to whether since you cannot object to the dismissal and clearly do not insist on here how are we would we be permitted and how can you have a review of get over finale you're here you have one foot in the door but will we let you actually i mean i in terms of that i think the distinction is exactly what your honor pointed out earlier which is a net case they showed up and said pate we're not going to do a trial we're just we're not to do anything more mistakes were done and then later all by the way well now we're going to appeal it that's entirely different and i totally understand the reasoning in that type case so you kind of load the word strategy them by appealing them that's a problem i think is entirely different we say we're gaining are the what remains of our case in order to get appellate review and we're willing to forego it for all time i think that is a different situation much more much more appropriate for a final review i would also say to the voluntariness what i think this really comes down to is by doing this voluntarily or you waiving your claim it's really a waiver argument a because there there was yes we're going to give up a claim and have a judgment in or guess this with prejudice but we reserve the argument that we that you're now in effect making issue is this that argument decertified every other let's say case although they say a thousand and every case according to them and if they're not right on this year according to them any time you have to decide whether an individual worked certain amount of time and how much they work there can't be certifications you have to do that every time well tell me in f l is a case where that isn't true tell me a case where you don't have to do that and the reason it is not an impediment though is that duties everyone did their job differently but beyond that their same argument applies oh we'd have to prove how much time everybody worked and that's done through representative testimony so that is never an impediment they can't really come up with anything else decides that and i would say th testimony if you need to do it by saying these job duties and these job duties you can do it you can split it up that way but i will tell you there's not a lot of differences here we there were they did an incredible number of depositions of people in this case and everybody no matter what job or location and they tried very hard to find people who would have claims everybody testified that they were worked a substantial amount of time without meal breaks and what's particularly galling about the defendants do it for a magnet certification they had to do any n q i surveys you surveys came back and said eighty percent of the respondents are working through their meal curious and not getting paid they are canceling at the rate of eight percent if your hospital but university of pennsylvania which changed your hospital when you see the eighty percent of your people are working through their meal breaks you're potentially of eight percent of the time that's a problem if this piece of certified there will become a race to the bottom not a race to the top in terms of policies thank you must thank point one ninth circuit one the eleventh circuit smith which is five seventy and third eleven nineteen and cameron grant which is three forty seven f or twelve forty that really