of those claims the service charge claims are the main contention the the largest claims that issue and the harbor links location was the largest catering facility and the settlement proponents have represented that nearly forty percent of all the service charges flecked it came from pub or li proceedings the total recovery that was referenced in the proponents papers and is adopted by the court did not include any damages based on the time period after the change in the contract language  and the settlement proponents pacifically noted in their chart that for each club their damages calculations went up until the date of the contract changed so those damages calculations took into account only up until the date of the contract change for each club so that figure was already accounted for in those numbers but where we also would respectfully disagree is we believe the harbor links employees did have viable claims even after that contract changed and that's  would you know it may have been a more challenging case at that point but that doesn't mean it was zero damages which is the position that the proponent settlement proponents took and the just the district adopted in fact though we think those claims were still remain strong because the new york state monopoly for regulation was very specifically provide that that employers shall include in the contract and they use the word and and he menu and bill listing prices the specified language clarifying to the customer that the service charge is not going to be limited to the employees and in fact the objectors submitted in the record document showing that even after that contract plain language change happened to harbor links we provide a number of documents including invoices lunch menu event detail sheets which service charge the twenty percent service charge represented in those documents but do not include the requisite language notifying the customer this is not going to the employees it looks like there widespread support among class members including harbor links class members for the settlement judge when approved i mean just looking through all this in the history it it really looks to me that this is a dispute between the lawyers because multiple competing suits were filed and of course each lawyer wants to be the one who gets the settlement and gets money for the work they did it just but it just seems that the spite among the lawyers that the the class members are no this delays being caused and  i mean might tell me why i'm not seeing it correctly what i would know in connection with those class member statements if you look at the history of class counsel's communications and representations regarding their communications with the class members the st settlement was reached in two thousand and sixteen they applied for final approval and at that time made a representation that they had interviewed over twenty employees and investigating those claims presumably that would have included the eighteen plaintiffs currently in the action as well as plaintiff law who's opted out so they had interviewed twenty workers at the time they reached the settlement agreement signed off final approval on it st time after that was reversed and sent back they the stipulations of representations are that the nd settlement is really the same as the st settlement the defendants added some additional money class counsel agreed to take the splays a smaller percentage but the terms of the agreement are the same they again brought that to the court for the seeking approval and in may of two thousand and eighteen the representation at that time was they had interviewed over forty employees so we're still we're at this point now we have the nd agreement w by diane a forget the st name but ms law that was that new york state court arrives and then our action was the st federal action perhaps but it was not until the eve of the final approval hearing in this matter that the class council represented they had been spoken to hundreds of employees and began bringing in these statements and i would just note that i think those need to be looked at carefully because at that point is the goal truly to assess these claims to determine what is a fair and reasonable outcome for these employees or at that point is the goal to drum up support for a settlement that's already been agreed to because they've already filed and receive preliminary approval are they really going to come back and say oh well now we talk to  question as to whether and how those employees understand their rights whether and how they understand the claims whether these hourly banquet workers in upstate new york in long island have the wherewithal to object to claims that have been brought in th mail or e mail notices class actions and you can mail i mean but if cost council is calling you and telling you this is a great deal and you should sign up and you're going to get your money right away the question becomes whether you have the knowledge and the understanding of the law to know what you're giving up by participating in that and i think another issue where the record below was was simply insufficient to support the finding if we look the representation made regarding the amount of damages issued those changed over time the representations made to the district court as to what are the total damages changed over time and there's been no explanation or justification for that and given that  is not the standard these are complicated settlements so what they might not be perfect but what what is legal and what's your best legal area you can identify what one your honor i would point to a degree profession is not the standard but when you look at the total service charge damages allocated to harbor lettings the difference between what was represented to the court in connection with the st settlement and what was represented in connection with the settlement nd settlement is a drop of about proximately four hundred thousand dollars and that was never explained that was never justified i would point to if you look at the record on appeal pages six hundred and eighty two thousand six hundred and eighty one are where the representations were made to the district court in connection with the st first a significant percentage that's not been adequately explained and on that record the district court no court could make a the rigorous analysis required to determine the likelihood of success and the range of possible recovery and then to determine is this a fair and adequate resolution of those damages we have essentially four hundred thousand dollars in damages that seem to have disappeared without explanation really the settlement should not have been approved it goes back to you  because that would get that would be a separate lawsuit which would be awarded fees to different attorneys i think either way when you don't have the rigorous analysis required to satisfy each of the legal standards relevant here the court missing and ask for additional information and argued by the district court back that back was not sufficient you know one of those instances i would have the district court had asked at one point  about the percentage of recovery in the pretty two thousand and eleven period that was during the final approval hearing and and that information was not provided to the court and the frustrating thing about all of this particularly when it comes to the numbers in damages these are things that are eminently knowable they the plaintiffs counsel have represented that they created statistics he did spreadsheets those have not been entered in the record and that we have these changing numbers percentages shifting amounts that at best are confusing and don't allow the district court to make the proper findings with respect to the damages and the range of possible recovery and that's where you see it on the district court not only adopting damages calculations that wholly omit that period of time after the contract change but then using that same theory that our contract changed her billings happened sooner to devalue the harbor links claims and say well even though they're stronger in other respects because the district court did recognize that the contract language argument was stronger on behalf of harbor links the do you value again on the basis of damages that had already been for a period of time calculated as zero so is running short similarly on the issues of commonality and typically the record below is simply insufficient to support the findings with respect to the claims other than service charge claims there is nothing in the record to tell you what were those policies how were they common how were the they factually common across these four different locations the proponents of this settlement seem to be saying well they're all violations of the s district court recognized that only the harbor links contract said grap rate with a with a percentage on the front page of the contract and additionally again we've pointed out the documents that harbor link showing that even after the contract change there was a violation of the new york state regulations which require that same language on the menus and other billing documents it wasn't there we have also in connection with the service charge claims the district court saying well there's commonality because there are four clubs here and the service charge claims happened at three locations that's not a basis to find commonality across all four locations when you're specifically saying that one location is differen so again our view on this record is that we simply don't have a sufficiently developed record to allow the district court to me it's rigorous analysis which is a heightened requirement in the context of information regarding you know anyone who didn't opt in on the appeal i say claims but again i think the the employees are at a disadvantage in terms of information and agency in terms of you know being able to assert whether they think this is a you want to send it back there's need to be more time to develop the record for class or have another class or to prove it after that gets approved have another settlement hearing then maybe another appeal and then maybe in three or four years back procedurally there are a number of ways that could be approached at the time our action in the eastern district of new york was stayed it was teed up for a motion for classification so i think it could proceed separately and and that has a ninety two percent participation rate from the harbor links workers these harbor links people at the objectors are trying to represent here they have submitted sworn declarations explicitly rejecting their representation saying that they do not want anything to do with these objectors and their lawyers they are not serving their best interest they specifically pleaded that they not file this appeal and they're saying that their continued conduct is detrimental to them there was over three hours of oral arguments in this case where the court rigorously analyzed the rule twenty three dollars factors and then issued two decisions totaling over forty pages where she carefully considered all the factors and then issued a decision approving the settlements now objectors here have raised three issues that i would like to address one is the claim that we have not satisfied commonality nd they claim that the settlements does not properly value all of these claims court has somehow not understood this and rd they've claimed in their papers that there is some sort of collusion going on here now i'd like to briefly just address one specific issue that is now the th time that council has brought the suck up the distinction between the damages being one five versus one point one and overall being three eight versus for reporting three or something like that i don't remember the specific numbers are this is the  time it's being brought up and the rd time that it's being corrected for the record and every single proceeding that we've previously had the one dollar figure is for all service charge claims that was even rendered after the contract language was change this later and more specifically i just wanted to flag it right now the one point one language is for buckets one and two before the contract language was changed this is not a shifting russia now this is not some mystery that is being uncovered this is completely clearly in the record that has been brought up over and over and over again with even in bold as footnotes saying that this is not something new now going back to the three issues we've discussed commonality the value of the settlement inclusion i'd like to start with the st one with respect to commonality objectors in their papers are attempting to hold us to a standard for commonality that is a child like standard the supreme court of the united states and this court specifically has held multiple times that the standard to prove commonality is that we have to put forth common contentions such that an assessment of their truth or falsity will result is shoes that are central of the claim in one stroke all you need is one such contention here we have four we have four contentions did the defendant pay we contract the contentions are that the fairness did not pay what's called spread of hours compensation when workers more worked more than ten hours in a day that's a new york specific law the nd contention is that they did not pay money for the cost of maintaining uniforms the rd contention is that they did not pay proper overtime compensation and the th contention is that they collect a service charges and did not remit them to the costs to the client's i'm sorry to the workers now the truth or falsity of each one of these four contentions will resolve central issues to these claims for example if it's determined that the defendant did in fact pay spread of hours compensation this will resolve this claim on a class wide basis however the standard does not require us to st prove that the defendants did not in fact pay spread of hours that in order for commonality to be satisfied that's a standard for summary judgment or for trial but nevertheless we did submit records and evidence to prove the truthfulness of our contentions for example workers from all the clubs over one hundred workers from just the harbor links club alone and we also interviewed customers from these clubs to understand what a reasonable customer was lots of believe now with all of this is in the record we submitted all of this to the the court considered our investigation and considered the evidence that was before that before the court and then the court analyze whether the contentions that we had put forth are the type that are considered common because they classified basis and found that they indeed were and that's why the court granted approval of the settlement and found commonality now just to know what the objectors have just now claims about the reference to our increasing scope of our investigation and somehow how that is somehow wrong this case is over six years old the st settlement was reached four or five years ago are we supposed to sit on our hands this entire time if this settlement falls apart and we have to litigating this case active litigation of this case is our requirements and there's actually nothing wrong we proceeded with this case as we must and we actively continue to investigate it now with respect to the nd issue the court's valuation of the settlements now the court valued the silence in three time periods the court referred to it as buckets we have the st bucket which is the pre two thousand and eleven time period where the burden of proof is on the plaintiffs it's on the employee to show that a reasonable customer would have believed that the service charge was a gratuity so the burden is on the employee for the st bucket the nd bucket is the post two thousand and eleven time period where the burden shifted to the employer you're to show that a reasonable customer would would not have believed that the service charge was a gratuity so it's a much easier case to prove and then there's a rd bucket the rd bucket is the time period after the contract language was changed when the employer added a disclaimer specifically stating that the cot that the service charge is not a gratuity and will not be passed on to the servers now that despite what the object was objectors are now claiming that the court somehow did not understand that the settlement did not put value on the stored bucket but the court actually had two oral arguments on this specific issue and then we submitted case law to the court on this issue and then the court detailed its analysis in its decision addressing this issue to professional mediators have also addressed this issue and the parties are all in agreement there is no value in this rd bucket the case law is very clear on this the octet case is an appellate decision case in the st circuit a sorry i'm sorry she's been the st apartments in appellate court and has specifically held that when the language is put in the contract that a reasonable customer is put on notice and cannot possibly be confused and the other requirements of the regulation that objectors are referring to are not relevant because object once it's in the contract any reasonable customer's on notice objects or so try to distinguish this case by saying well in the off net case there was also billing detail that was included in the contract and so it somehow distinguished well actually this is think sion only shows a further analogy because in our case in the harbor links contract as well as the other contracts the billing information is also in the contract so actually it's completely analogous on all fours but that's not even the important part other cases have supported this of my case and said as long as it's in the contract that's enough to put a reasonable customer notice so that nobody can possibly be confused and integrated summary judgment over and over on this case on this issue and if there is absolutely no abuse of discretion here when the port has adopted the he saw that is political to these claims now with respect to the last issue and one more thing with respect to some double counting which has just been referenced by objectors counsel there was no double counting of devaluation from what i understand that was just raised the court was explaining that while the harbor links group may have an easier time proving bucket one their bu two is smaller because they changed the contract language sooner and so overall we don't care about bucket three that's not valued over all the bucket one and bucket two bucket two is the most valuable everybody knows that but they have one year shorter of it but overall a balances out so may they have a better time proving bucket one bucket two is shorter so overall it's equal that's what the court was referring to there is no double counting of damages here now the last issue is some issue that objects are constantly been raising regarding collusion our case was filed ten months before there's that we did not go around them they filed their case ten months after us the people they're seeking to represent want absolutely nothing to do with them they've signed secular and saying that we represent ninety two percent of the people they're trying to represents now they were involved in these negotiations who's a retired judge all the negotiations went through him and council gifford has submitted a declaration purporting to be from personal knowledge about how they were excluded from this mediation miss gifford was not at the mediation i was at the mediation and judge kaplan spent the vast majority of time with the objectors and after the mediation all negotiations went through judge kaplan and then judge kaplan submitted detailed reports to the court detailing how he was involving the objectors so for them to now claim that there is collusion or how they were somehow excluded from the mediation is absurd and on top of that if they do not like the settlements they could have just opted out and proceeded individual ie because the people are trying to represent or not want the representation and it's fairly obvious what the motivations are of the objects or some their counsel because they're filing this appeal claiming taking issue with the settlements and saying that they weren't involved in the negotiations where at the same time they filed another brief in the district court claiming attorney's fees saying that the settlement with this is the result of their good work i mean i believe the motivations are clear the settlement is going to has overwhelming support and there was absolutely no abuse of discretion by this district court judge who rigorously analyze these factors found at the settlement was overwhelmingly supported by the class and thank you i will try to just trust these points briefly st of all with respect to commonality again counsel has stated for you provisions of law not pointed to factual issues that could be common we don't have anything in the record showing that the way these policies were enacted at these different locations across the state were the same simply pointing to the statute and say to him that they were not for the we contend the record is not sufficient to find that they were the same but there's nothing and there's nothing in the record in fact the only thing in the record is a letter from plaintiff's counsel this is a record on appeal one thousand four hundred and ninety six that specifies the various differences that to interrogate it differently because they schedule differently or because policies applied  different times the only thing in the record is showing differences or saying legal questions don't count for determining commonality not if all you're pointing to is the provision of law in saying that if i leave the statute you have to show more of a connection class members all right you have to you have to show the you can't just name a statute that that is common with respect to the interviewing of employees again the point there is what  actual discovery an investigation done that was used for purposes of coming up with this settlement i think again the timeline is clear there were forty employees who've been interviewed at the time of the nd settlement that's in two thousand i believe eighteen may of two thousand and eighteen so you know to to again look back at the history of this litigation there was ample time at that point but clearly these interviews were done for purposes of bolstering support of the settlement with respect to the three buckets of damages to the extent the district court did understand that there was zero value being assigned to the rd bucket of damages that in itself was err we have shown there is value to those claims there is at the very least an argument and we think a strong argument that could succeed on summary judgment we distinguish in our papers and we continue to distinguish both the ahmed and the a more and cases that plaintiffs are relying on when they say that your courts have reversed this language in those cases they did they the documents the issue were different than the documents we had in ahmed there was a single document a banquet event order that included the contract in the bill and what the court was rejected as saying that other documents generated in connection with the it had such as proposals did not have to have that language similarly and the more i'm the required language was in the offer letter and the banquet conditions in terms contract and the plaintiff there made no argument that the language was lacking in other documents are documents include invoices lunch menus event details sheets and the precise language of the regulation says that language shall be included in the statement in a contract and in any quote menu and bill listing prices the regulation requires it in menus we have shown menus the two cases the plaintiffs are relying on to not address menus the regulations are clear on these documents these are strong claims they've been assigned admittedly zero value in addition to that the district court did look at that to say that that that that the timing in the contract change was a reason to devalue the harbor links claims again to the extent what they are classifying and what the district court classified as quote total damages didn't include that bucket three then there's no reason to take that bucket three into consideration when you're valuing the total damages you've already done it you already took that out finally with respect to the collusion allegations i would just note again this is addressed in our brief  you know this is a case where we had pointed to the behavior of plaintiff counsel early in this litigation when there had been representation that they would provide information they seize providing information and stead they took these admittedly new york state and federal actions to move them to the district of texas the district court in its findings found that that venue was inconvenient to the pla inconvenient to the class members but if that for purposes of awarding class councils attorneys the unusual about having a lawsuit in the location where defendants headquarters i mean i'm maybe new york was a better form but if there's nothing unusual about brooklyn you already have existing litigation there and you're using it as a vehicle to move that litigation to move it away from the employees to move these new york state law but i want to consolidate in one place or else you're not going to get a settlement if there's no finale but again the district court found it was inconvenient to plaintiffs counsel and yet they agreed to it again we're talking about new york state wage and hour claims interpreting new york state regulations there's a lot of interest in having that all in new york state so again taking other than to the extent the case law does say you worry about pollution in that context you worry about the fact that when you're certifying a class for settlement purposes that class is not going to expired ms gifford and your