Legal Case Summary

We had a space in the tunnel before. Good morning. We'll begin our morning with our first case of Comisee versus University of Pittsburgh and because yet so versus West Penn, Eltoni. And I don't know how we want to work rebuttal. Have you requested rebuttal? Yes, Your Honor, if I may have five minutes for rebuttal. You want to add the total end of the other? Yes, and Your Honor, I was going to ask, are you intending to structure where you'd like me to rebuttal to each? Except to you. Okay, let me say five minutes for the end for both. Sorry. May police accord Nelson Thomas on behalf of the appellant appellant plaintiffs in these actions. Let me just start with, why don't you seek interlogatory appeal here? Your Honor, we wanted to get the case moving more as rapidly as possible. And the concern was that the people's claims were dismissed. The people's claims were dismissed and we would have to then go about filing hundreds or thousands of other cases while we were waiting for a ruling on the interlocatory appeal. And it didn't strike us that that was the most efficient approach to have cases be actively litigated, thousands of cases litigated in the Western District of Pennsylvania to go through the process of seeking an interlocatory 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 and you could have avoided it had you found the interlocatory appeal route. It's sort of six or one half does the other in terms of time, but there you know your golden in terms of having the court consider it on the merits. Here you've got a question as to whether you even get to the merits. We're comfortable that the law isn't our favorite that you can get to the merits on this. If the answer is there is no jurisdiction, then we will have to go back and redo it. But our conclusion is that we were, this is exactly the procedure that it's allowed both under Supreme Court precedent and under Third Circuit precedent just because there were two viable options choosing the final. Well I think that in terms of the precedent, I think if you look at Guarantee Roper, both of those cases, those are Supreme Court cases, both of those allowed for appeal once there was an adjudication on the. Guarantee was a move to a situation the fellow was released from prison. That's true. But voluntarily dismisses claims with prejudice. Yes, but this court has said in Guarantee's that you are permitted to, and most courts of appeal allow you to dismiss with prejudice in order to do the appeal. It is after all a fine order and brings up the collateral orders prior to that

. But there were sort of a step beyond Guarantee and Roper. And there's a nine-circuit case called Smith V. T. Mobile. I don't know if you're familiar with that. Yeah, I've seen that case. And then there's a 11-circuit case called Cameron Grant. And if you have a site for that, I can give it to you. Those deal with motions for conditional certifications of FLSA claims. And basically, if you have ABCD and you lose on the marital ABC and you just have D remaining, you say, look, okay, it's not that big a deal. Let's just agree to have it dismissed with prejudice. That way we can appeal ABC. Here, it's like you're trying to appeal D. And once you've given it up, how can you resuscitate it? Well, I don't think that we are, I think under Guarantee, we have a substantive interest. The name plaintiffs have a substantive interest. I'm so. Because they're entitled under the FLSA to bring representative actions. That was one of- Well, if you look at the Smith case and again, the Cameron Grant case, they draw a distinction between the FLSA and class actions under Rule 23, because FLSA are opt-in and class actions are not. That's true, but that is not a distinction. This court has drawn in the seismic versus genesis case where in that case, the facts are even more favorable for there being- the case should have been mooted out because there was no conditional certification motion and there were no other opt-ins. But that was in-involunt- That was like Gradian and the roberin, an involuntary situation. Here, we have a with prejudice dismissal voluntarily under what theory do you contend that you have the personal stake necessary on appeal? I think there are- In what case law? Yeah, I think there are two terms that were thrown out there, and I think it's important to distinguish between them. There's the voluntaryness issue and there's the with prejudice issue. The with prejudice issue, I don't think, is a problem

. Of course, appeals are always done or are on with prejudice. I think it's a voluntary- you know, the claims are gone with prejudice, deep and adjudicated. So I think the question is, by doing this in a voluntary way, do you somehow waive your right to adjudicate or to appeal claims that were in the case? Well, what happens to their- and their claims are gone? Who's- who's claims? This is the for-named plaintiffs. I believe it's- At least it can be seen. It can be seen, I'm sorry, it can be seen. Well, there are a couple of responses at first of all, we still have a state court- state court- cause of action pending, so they can get recovery- maybe different, but they can get recovery in this case. In this case, in this case. In this case. They're gone as much as they were gone if somebody judgment had been granted against her, or if- Yeah, but you have the right to appeal the semi-indeggment will. Yeah. When you voluntarily dismiss with prejudice, the case goes back, those four plaintiffs no longer have FLSA claims, the for-named plaintiffs. I think if the- I think under- if- let me go back to Gary and Roper, in those cases, the plaintiffs no longer had claims either. But class action- well, again, I believe- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- I mean, I- from FLSA. And we have 23F, where interlocatory appeals are granted. We have no companion permission to- to appeal in FLSA, which is another distinction. 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- and inject the practical into this for a second. Cooper's Libran- this is not practical right off the bat, but Cooper's Libran is founded on the proposition that we're not going to allow interlocatory appeals to class certification decisions because there's a chance for them to be remedy later, right? That you're- you're going to- you're going to get a chance to do this. Let's take a step back and ask what is going to happen here if you don't allow jurisdiction in this case? I was going to ask that. Is that- What's- what's going to happen is Karen can- let's say Karen Kimese's case. Karen Kimese- the certification deny. Plaint- the 3,000 plaintiffs are off- and are off on the road now. So- Statue limitations is running on them. But she proceeds

. She proceeds. Well, first she has to proceed and at the same time, those 3,000 people have to file their lawsuits, right? Because if they don't file their lawsuits, the statute limitations is running on. You're saying towing? No, there is no towing. That's the problem. Unlike Crown Court and Seal under Rule 23, there's no towing here. So the problem is we would have to then go file 3,000 individual lawsuits. And hope that Karen Kimese's individual case is resolved- and mind you as you said, there is no interlocutorial appeal procedure. So we have to hope that Karen Kimese's case is resolved first or soon. But however long it takes merits, discovery, trial, whatever. We have to wait for that process to go forward. So if you decide interlocutorial appeal, you could have decided interlocutorial appeal. File to your 3,000 cases. Correct. If you win, then you're back into a collective action. And if you lose, well, that's what you have to do. Correct. There's no- there's not the- we're not under Rule 23, that's what I'm saying. You're right. But is that a better outcome? Is that the better outcome that we file 3,000 cases? And those are litigated. While we're seeking interlocutorial appeal, and it's very possible this court might say, we're not prepared to take it at this juncture. So we go through Karen Kimese's individual case for her several thousand dollars worth of damages. Way to receive a judgment on that, if the judgment is favorable to us, that raises issues about how we would appeal that, right? How you appeal a favorable judgment on Client Surge. If it's unfavorable to us, we then 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 FLSA and Rule 23, councils in favor of, because there's no totaling of future data file cases, councils in favor of jurisdiction, in taking the flexible approach and guarantee and roper, and not saying you've got to go litigate this case and litigate the 3,000 others. And mind you, in the meantime, what happens if some of those other cases advance further along than Karen Kimese's? Let's say they get a judgment. They can't appeal it, right? Because they're not in the same case, so they're just sort of sitting out there. Then let's say we get three- we win three cases, they win one, two are dismissed on central limitation, and what happens to those cases floating out there, while Karen Kimese is still progressing through the system? Let me ask you a question. This is a softball, but one way to distinguish that the two cases that Judge Ambrer referred to, in those cases they thought it fadled that there was an opt-in procedure, and there were not opt-ins. Here you have opt-ins, how many opt-ins do you have? Approximately, I give the number, approximately 3,000, and you have 300 out of 31, 3,200 or so, and then the other one you have, because Net's off you have 800 and so. How long has the case been pending? Three years about. I think that we're all better off answering this question. It will create a, it reminds me a little bit of decency, which sounded nice at the time. It sounded fine, oh well, we'll put them in separate proceedings, but it sure made a mess of things. My concern here is, if you say the only way that you can appeal, an FLSA de-certification decision is to go file 4,000 cases, pay the filing fee and all of them, commensual litigation in all of them, have that litigation going on, and hope that you can get to the court of appeals and sign either interlocatory or by getting a judgment on the merits and get up there. I don't even know if the rationale that I'm that has been suggested here, what happens if Karen Camisi wins? Let's say she gets it, but I think what you have in terms of what you're attempting to do, going back to the example of you have four claims and you dismiss D, it's final, it's over. And if you dismiss with prejudice your claim here, which in effect is D, the blank response of the judges on the 9th Circuit, the 11th Circuit, and also there's some dicta on the 5th Circuit is once it's final. That's it. And you're asking us to do a limiting principle on finality, and in effect asking us here in particular to say, let's create a circuit split between the 9th and 11th Circuit, and so it'll automatically get probably going through the Supreme Court. And then the other problem is the consequences of what you're suggesting. If we go your way, aren't named plaintiffs in effect going to be sacrificed in future cases? Well, two good questions, if I can answer them, go ahead and answer them. It's separate like I believe that the Supreme Court has been pretty clear on this, and other courts, the second included, have said that you can appeal the decision that the dismissal with prejudice gets you to where you need to go. And let me see this, it 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, done, it's final. This isn't a case where Cermesys claims are currently percolating down there. What I typically think of non-final interlock court orders is we're coming up while that case is- Well, those 3,000 cases won't be filed. Well, those 3,000 cases will be the only way to stop that is to say you can have that this is the one

. If we agree that the trial court properly denied the condition of the collective action, are you going to file 3,000 actions? Well, yes, Your Honor. I mean, I doubt that all 3,000 will be filed, but that will happen. Or is the better result that people say to themselves, I lost several thousand dollars, but I will tell you, I am not going to sit for a deposition in a tender federal court trial and pay a filing fee for $3,000. I think that means- I don't know which outcome is worse. Is it possible to consider either small or subclasses? It is very possible to consider smaller or subclasses here, and the court did not look at that. I don't think you necessarily need to, but that was not done. And my concern is- going back, this is final. It is over. We are giving it up. And the case is- this is final in the sense that once this is done, it's gone. So that's what gives you the finality. We're not sitting here saying we're bringing this up. And that's what Roper and Garrity both say is- you have a substantive claim, but you also have 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 up. ABC and D, the right to bring up the substantive- the right to proceed collectively is something that you can bring up. The briefing in this case didn't reference the actual relevant line of cases. And we are just finding them ourselves. But it seems the representative capacity that was found, especially in Garrity, to exist, some of the cases have said that FLSA, that's not the same thing. Do we need- would you want further briefing? I mean, I was surprised I weren't 28J letters or something, alerting to the line of cases that, you know, our law clerks, and I think you'll often do the same research. We found probably 10 or 12 cases, two of them specifically under the FLSA exactly on point, that just totally different from the way the case is for you. You're right. 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. I'll get to the merits, but let's spend an additional four minutes addressing the merits, assuming we were to find your- which I can address, address our account. And, Geron, can we submit some additional briefing on that on the issue of the jurisdiction? Yeah, I think that's what we would request

. Yeah, and I'll give you the details at the end. Okay. All right, in terms of the merits of this case, the focus of this litigation is on the defendant's corporate policy here. Both the policies are almost identical in both cases. It is not a challenge to individual or departmental policies, that is not what we're challenging here. And, class- but there are so many supervisors, so many different, you know, definitions of employees. How can there be a company-wide, quote-unquote, policy? Couple of things, Joanna, first of all, if supervisors, the number of supervisors, was determinative of whether there could be F-LSA class actions that was the standard, if that's the standard, then we should just simply say there can be no F-LSA class actions except 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 ask, under that policy, who's affected by it? And the policy that we're challenging here, which imply invariably in every department, under every supervisor, and in both cases, the defendant's 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, unless 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 we're working, or you should have no work. What is so wrong with saying to an employee, look, if you work during your lunch break, and therefore we should not deduct the half hour, just tell us or tell your supervisor, what's wrong with that? There's nothing wrong with that if that's not the be-all-and-end-all policy. If your answer is, an employer can't 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 has said in Tony and Susan Lombo Foundation, an employee can't volunteer their time. An employee cannot come in and say, I like you, I like this company, I'm going to not record it even when they know what work and want to. They certainly can't do it here, or through inadvertence, or otherwise not put it down. There's two reasons for it. The first one is the FLSA is designed to protect all employees. Lazy employees, employees are forget to put their time down, as well as smart employees. And more importantly, the FLSA is designed to spread work, to force work among more people so that we increase employment among more people. If people were allowed to not report their time and it wouldn't get paid for it, well, you wouldn't be spreading work, which is the main purpose of the statute, and you wouldn't 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 onerous burden. In fact, here in this city, we'll just even look here. University of Pennsylvania was faced with a similar lawsuit, started implementing reasonable measures to ensure that employees reported their time. Mercy did the same thing. In other cities, Harvard has done the same thing, faced with similar lawsuits. This isn't something that is that hard to do. I was going to say, what is going to be the nature of the proceedings in the court? It sounds like you've proven the policy that there is a policy. So isn't it going to be all individual lines? Well, you're on a first, they don't. We've proven the policy. I agree with you. The policy is there and it's conceded. They still contest that they still think it's legal. They stand for square with their policy. They say it's great. They say it's awesome. It's totally legal. Some like what Judge Ambrose said, what's so wrong with this? And you're wondering if I may finish. They say it's fine. They say there's something wrong with it. That's what the trial would be about. Is there something wrong with that? And as in Reich, in the 11th Circuit, almost like very similar policy there. Employers said you can't work over 40 hours a week. But isn't that, I mean, if the lawfulness of the policy is at issue and an individual plaintiff can bring that issue before the court and have a determination on that. It's not like you're going to have, you know, 4,000 depositions that are going to impact the whole class

. One, it seemed to me, it's a fairly discreet legal issue. Not a lot of facts involved. You're on our eye. I agree. I think it would be a relatively straightforward issue. In fact, in Reich, 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. Let's not have 4,000 lawsuits. Each time going up, well, is this policy legal this time? Is this policy legal this time? That's all purpose of a class action is to say, is this policy legal? Can you shift the burns of the employee to get paid for the time? They think it's great. We don't. All right. We'll hear from you on Rebuttal. Thank you. Mr. Myers. Good morning. Good morning, Anna. I want to jump back to the availability issue in a second. But let me just say this on the issue of the policy. Our policy is written policy. It's in our brief. It is that employees who work at all through a meal break are to report that and they will be paid. And the efforts are in there about all of the things we do to make sure employees facilitate their reporting of their working during a meal break and paying them

. Judge, in the court below, Judge, was soon found specifically that our policy was not illegal? Well, we're not here to decide that. Well, this is what the argument is. Let's certify a class so we can decide the lawfulness of the policy. But there are 15 cases cited in Judge Busson's opinion that have similarly held that this policy is not unlawful. The sixth circuit just a few months ago in white against that this case, which we cited, held that this policy is not unlawful. There's no issue here. I don't think we're going to, you know, say we won't certify because we think there really is a non-issue at the end of the day. I'm not sure. No, I agree, Your Honor. But I mean, my point is it's not a question is the policy illegal. The question is, in individual situations, was the policy actually applied as written? That's what each of these plaintiffs are raising in their claims on the merits. Chief Justice Berger made the critical distinction between the line of cases, Roper, Guarantee, Simpsack, and the present case. And he made it in the Roper opinion where he said addressing this issue of whether the right to appeal the denial of class certification was moved. Chief Justice Berger said this, the factual context in which this question arises is important. At no time did the name to plaintiffs accept the tender in 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 sent one on to say why this was an important factor, it was critical factor to the decision. It said because only a party agreed by a judgment or order may exercise the statutory right to appeal there from. No, the Simpsack, the Supreme Court's granted cert have not. Yes, Your Honor. And that you're arguing by analogy and support. But it would seem that the Ninth Circuit and the 11th Circuit cases that we previously cited Smith and Cameron Grant probably would be a more direct help with it, would they not? Well, the issue here, unlike the issue in Simpsack is over whether there's a final order. And I think our focus in our briefing was on what this Court held in Sullivan, and that is if you procure the dismissal of the case in the Court below, you cannot appeal a class certification decision because that's a, that's certain events

. The rule that those decisions are not appealable independently. And I mean, frankly, Your Honor, to me, the Sullivan case is on point. What the plaintiffs did here was to procure the dismissals of their case so they could appeal the class certification issue. They are not- They were somewhat playing fast and loose with the Court by refusing to proceed. And here we have a totally above board. We are going to ask this Court to dismiss with prejudice so that we can take, so we have a final order can take an appeal. And everybody knew what was going on. And Your Honor, if you look in the supplemental record, there are two things that I want to respond that Mr. Nelson said. He referred to there not being a tolling agreement. I follow the supplemental record. We agreed, and it shows, I agreed to toll all of these collective plaintiffs so that they could exhaust this appeal. But I also said in the same email that we would not stipulate to the dismissal of the claims because we did not want it to appear as though we were agreeing that this was an appealable order. We were very upfront with that. We did not think it was an appealable order before the dismissal was even- before they even elected to do that. They certainly had every right to go to the district court and ask to have this certified, but they didn't do that. They elected to take this process, which we feel, deprised the Republic Court of jurisdiction. I also would like to go back to the 11th Circuit, has two decisions that where they have held, that if you dismiss your case to try to appeal an interlocutory order, the public court does not have jurisdiction. There's no case or controversy because the case that the final order, that is the dismissal, has to be in order as to which there are adverse positions. What are these cases in your brief? Yes, Your Honor. But you didn't say the camera and grant case. No, Your Honor, we did not. I frankly, the line of cases, Robert and Garry, I felt that they, because they did not deal with the final order issue, they didn't come up when my radar until the court sent the letter and I apologize for that, but I can see very much why they- We have two issues here. The one is the final order, but the other is the stake on appeal of the appellants once they have voluntarily dismissed with prejudice. We weren't arguing mootness that that issue was moot. We're saying that there's no appealable order. It's really standing in the sense that maybe mootness is the same thing, but what interest do they have? The action in the case at all once they have dismissed their claims with prejudice. Yes, Your Honor. I will only- I'd be happy to talk more about this case. What's the consequence of allowing a party to dismiss with prejudice their claims in order to bring forward an otherwise interlocatory order? I mean, how would we- we sell in collective actions? You can do that, but an individual actions you can't? Well, Your Honor, I don't know what print- by 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 like any order 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 appealable- a rights appeal an interlocatory order by simply dismissing your claims and then taking the appeal, then Katie Bar the door. There is no limiting principle to that process. On the merits of the appeal, this Court's decision in Savala against Walmart's stores establish three points that are important here. The first is that it's a plaintiff's burden to prove by proponder to the evidence that the group of plaintiffs are similarly situated. Second, that the district court's finding that the plaintiffs are not in this case similarly situated must be appelled unless it's clearly aronious. And third, and this is critical here, the court held if liability and damages must be individually proven, it does not matter that there may be certain common links among the proposed members. The case cannot be certified. By their very nature, meal break claims such as the plaintiffs are bringing require individual proof. There are five things that have to be proved for any one plaintiff to establish a violation of the FLSA for mis-meal breaks. First, that the individual worked during a meal break. The proof of Karen Kamisi proved that she missed five meal breaks because of patient emergencies. What does that tell the jury about what some assistant court 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 Karen Kamisi's supervisor was aware that she had worked during a meal break and wasn't paid? What does that tell you about any other plaintiffs claim? Each plaintiff would have to establish why it's supervisor, that person's supervisor had reason to know. The third thing it has to be proven is whether or not they were paid. The record shows that millions of meal breaks were paid just in the last four years

. We weren't arguing mootness that that issue was moot. We're saying that there's no appealable order. It's really standing in the sense that maybe mootness is the same thing, but what interest do they have? The action in the case at all once they have dismissed their claims with prejudice. Yes, Your Honor. I will only- I'd be happy to talk more about this case. What's the consequence of allowing a party to dismiss with prejudice their claims in order to bring forward an otherwise interlocatory order? I mean, how would we- we sell in collective actions? You can do that, but an individual actions you can't? Well, Your Honor, I don't know what print- by 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 like any order 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 appealable- a rights appeal an interlocatory order by simply dismissing your claims and then taking the appeal, then Katie Bar the door. There is no limiting principle to that process. On the merits of the appeal, this Court's decision in Savala against Walmart's stores establish three points that are important here. The first is that it's a plaintiff's burden to prove by proponder to the evidence that the group of plaintiffs are similarly situated. Second, that the district court's finding that the plaintiffs are not in this case similarly situated must be appelled unless it's clearly aronious. And third, and this is critical here, the court held if liability and damages must be individually proven, it does not matter that there may be certain common links among the proposed members. The case cannot be certified. By their very nature, meal break claims such as the plaintiffs are bringing require individual proof. There are five things that have to be proved for any one plaintiff to establish a violation of the FLSA for mis-meal breaks. First, that the individual worked during a meal break. The proof of Karen Kamisi proved that she missed five meal breaks because of patient emergencies. What does that tell the jury about what some assistant court 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 Karen Kamisi's supervisor was aware that she had worked during a meal break and wasn't paid? What does that tell you about any other plaintiffs claim? Each plaintiff would have to establish why it's supervisor, that person's supervisor had reason to know. The third thing it has to be proven is whether or not they were paid. The record shows that millions of meal breaks were paid just in the last four years. Obviously, many people work through meal breaks and get paid for it. The fact that Miss Kamisi 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 3000 class members. They have to also prove in order to show a violation of the FLSA that this incremental that that half an hour would have put them over 40 hours or would have resulted in overtime. The record shows that most of these employees for most of the weeks worked fewer than 38 hours, meaning there is no FLSA violation. Each plaintiff would have to establish that that person would have gone over 40 hours if they had been paid for that half an hour meal break. But this is where a class, I mean, we're always going to have, look at the asbestos situation where everybody has to file certain things, certain records. I mean, these things could have been proven in submissions, in individual submissions, in connection with the case, could they not? They would have to be put. Every single element of the case has to be proved by each particular plaintiff. And we haven't gotten to the defenses yet, Your Honor. I'm just talking about the elements of a claim. That simply can't be done collectively. We have a right to cross examine these people that say, yeah, my supervisor winked at me and said, good for you when I was working during the meal, but we have a right to challenge that testimony in each individual case. They every single court to have confronted this with rare exceptions. And Judge Bessoon cited them as 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 brief. Thank you, Your Honor. Thank you very much. Mr. Prime. May I please the court, David Fryman, for the West Penn, Allegheny, Entities. Your Honor's Mr. Myers highlighted what I think is the critical line from the Rooper decision, which is that the factual context is important here. There's no dispute here that neither the defendants through offers a judgment or tender as a settlement. The court through a summary judgment or a dismissal or any circumstances such as somebody being released from prison conspired to prevent these plaintiffs from moving for certification, from fully litigating certification

. Obviously, many people work through meal breaks and get paid for it. The fact that Miss Kamisi 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 3000 class members. They have to also prove in order to show a violation of the FLSA that this incremental that that half an hour would have put them over 40 hours or would have resulted in overtime. The record shows that most of these employees for most of the weeks worked fewer than 38 hours, meaning there is no FLSA violation. Each plaintiff would have to establish that that person would have gone over 40 hours if they had been paid for that half an hour meal break. But this is where a class, I mean, we're always going to have, look at the asbestos situation where everybody has to file certain things, certain records. I mean, these things could have been proven in submissions, in individual submissions, in connection with the case, could they not? They would have to be put. Every single element of the case has to be proved by each particular plaintiff. And we haven't gotten to the defenses yet, Your Honor. I'm just talking about the elements of a claim. That simply can't be done collectively. We have a right to cross examine these people that say, yeah, my supervisor winked at me and said, good for you when I was working during the meal, but we have a right to challenge that testimony in each individual case. They every single court to have confronted this with rare exceptions. And Judge Bessoon cited them as 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 brief. Thank you, Your Honor. Thank you very much. Mr. Prime. May I please the court, David Fryman, for the West Penn, Allegheny, Entities. Your Honor's Mr. Myers highlighted what I think is the critical line from the Rooper decision, which is that the factual context is important here. There's no dispute here that neither the defendants through offers a judgment or tender as a settlement. The court through a summary judgment or a dismissal or any circumstances such as somebody being released from prison conspired to prevent these plaintiffs from moving for certification, from fully litigating certification. But what was cited by Mr. Myers talks about the involuntary nature of what happened to to the plaintiffs there here. It's voluntary. Why does it make a difference? As long as the dismissal was with prejudice, you have an appeal. Well, the dismissal would. And then there is will be an issue if something was dismissed with prejudice as to whether they have a stake. But the dismissal with prejudice means final, doesn't it? It means final, but they're not trying to appeal that order. You're trying to now appeal a collateral order that they didn't seek in our locatory review upon. In the Rooper case, they attempted to do that. They have jacked into the tender's offers a settlement. They did everything in 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 state. At the time of this voluntary dismissal, these plaintiffs had more than the personal state concertification. They had their claims. And they went and to quote, at least in my family, no less a bit of authority, this is a bed solely of their making here. And to Judge Ambrose point, all the line of cases that the plaintiffs cite, when they talk about forever abandoning their claims, they literally need forever abandon their claims. When Mr. Thomas says that, oh, you know, we don't get certification we're done, but if you do get certification, we're not done. In those cases that they cite, that declaim, they're saying, that's never coming back. We're forever abandoning that. And here they're trying to say, we're forever abandoning things, but we're not it forever abandoning things. We want to now go seek through a direct review what we couldn't get. Yet they didn't even seek the opportunity under the existing rules under 1292, be it. And what I hear Mr. Thomas saying with respect, let's look at this practically and look where we find ourselves and why we didn't want to file these three thousand cases of secundary and auditory

. But what was cited by Mr. Myers talks about the involuntary nature of what happened to to the plaintiffs there here. It's voluntary. Why does it make a difference? As long as the dismissal was with prejudice, you have an appeal. Well, the dismissal would. And then there is will be an issue if something was dismissed with prejudice as to whether they have a stake. But the dismissal with prejudice means final, doesn't it? It means final, but they're not trying to appeal that order. You're trying to now appeal a collateral order that they didn't seek in our locatory review upon. In the Rooper case, they attempted to do that. They have jacked into the tender's offers a settlement. They did everything in 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 state. At the time of this voluntary dismissal, these plaintiffs had more than the personal state concertification. They had their claims. And they went and to quote, at least in my family, no less a bit of authority, this is a bed solely of their making here. And to Judge Ambrose point, all the line of cases that the plaintiffs cite, when they talk about forever abandoning their claims, they literally need forever abandon their claims. When Mr. Thomas says that, oh, you know, we don't get certification we're done, but if you do get certification, we're not done. In those cases that they cite, that declaim, they're saying, that's never coming back. We're forever abandoning that. And here they're trying to say, we're forever abandoning things, but we're not it forever abandoning things. We want to now go seek through a direct review what we couldn't get. Yet they didn't even seek the opportunity under the existing rules under 1292, be it. And what I hear Mr. Thomas saying with respect, let's look at this practically and look where we find ourselves and why we didn't want to file these three thousand cases of secundary and auditory. It's nothing more than an attempt to make a different rule and to rewrite the rules because they know the rule says that it's not appealable and they say, we'll make it appealable by voluntarily dismissing our claims. And I say under the existing rules and the case law that they've abandoned that claim they dismissed it with prejudice. So how can they appeal that that order? You say the appeal the order appeal from has to have been adverse. And I assume Sullivan is your main case. Yes. If we get beyond that to the issue of, okay, it was final with prejudice, then where are we? If we say it was fine. If you say that's fine, I think I have a tougher argument to make there. Well, what's taking the outcome to the name plaintiffs have to be appellants? The appellants, they've, I say they've abandoned. We might have a final order, but where's the stake in the outcome of the controversy? That's right. And unlike in Guarantee, you had plaintiffs who hadn't yet been or punitive class members who hadn't yet been released from prison, who sought to intervene. Here you haven't had any attempts by any. Optin, who 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 merits. With respect to this policy, it seems to me initially the, what elements do you think the plaintiffs have to show in order to prevail? I think they have to show in each case that they were denied a meal break, that there was constructive, actual or constructive knowledge, and that they weren't paid for it, and that in that particular week they worked more than 40 hours. Now, with respect to this policy and this constructive knowledge argument, at best that's up at 40,000 feet, that we have a system here that has the potential that it's not capturing all the time. But in order to figure out, in any plaintiffs case, whether in fact that happened, you need to look at what actually happened on the ground. To quote the old broadcasters, we need to go to the videotape. We need to see what actually happened. And I think it's incredibly telling that plaintiffs did not cite a single line of deposition testimony. Did not talk at all about what their clients actually said about their experience. I mean, let's go granular here and talk about some of these plaintiffs. Pippa 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 plaintiff, Ms

. It's nothing more than an attempt to make a different rule and to rewrite the rules because they know the rule says that it's not appealable and they say, we'll make it appealable by voluntarily dismissing our claims. And I say under the existing rules and the case law that they've abandoned that claim they dismissed it with prejudice. So how can they appeal that that order? You say the appeal the order appeal from has to have been adverse. And I assume Sullivan is your main case. Yes. If we get beyond that to the issue of, okay, it was final with prejudice, then where are we? If we say it was fine. If you say that's fine, I think I have a tougher argument to make there. Well, what's taking the outcome to the name plaintiffs have to be appellants? The appellants, they've, I say they've abandoned. We might have a final order, but where's the stake in the outcome of the controversy? That's right. And unlike in Guarantee, you had plaintiffs who hadn't yet been or punitive class members who hadn't yet been released from prison, who sought to intervene. Here you haven't had any attempts by any. Optin, who 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 merits. With respect to this policy, it seems to me initially the, what elements do you think the plaintiffs have to show in order to prevail? I think they have to show in each case that they were denied a meal break, that there was constructive, actual or constructive knowledge, and that they weren't paid for it, and that in that particular week they worked more than 40 hours. Now, with respect to this policy and this constructive knowledge argument, at best that's up at 40,000 feet, that we have a system here that has the potential that it's not capturing all the time. But in order to figure out, in any plaintiffs case, whether in fact that happened, you need to look at what actually happened on the ground. To quote the old broadcasters, we need to go to the videotape. We need to see what actually happened. And I think it's incredibly telling that plaintiffs did not cite a single line of deposition testimony. Did not talk at all about what their clients actually said about their experience. I mean, let's go granular here and talk about some of these plaintiffs. Pippa 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 plaintiff, Ms. Bowie would go on a lunch break, she was removed from the computer assignments screen, so that it wasn't possible for her to get an assignment during those 30 minutes. Now, is that experience? Is that representative of what happens in some nursing unit at a different hospital? You had plaintiffs, another guy, John Hedgesick-Kavins. He didn't like taking lunch. He 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 and shower and change his clothes and have his break that way. And the supervisor had the discretion to bless that, and in fact, that was what happened. And he said, now I only get 20 minutes instead of 30. At some point there's a balance. I mean, the FSLA provides for collective actions. So, there are not everybody's the same. There are differences. When do you say that the differences are so individualized that we're not going to have class certification versus when you say, okay, we'll model for it. There are certain types of FLSA claims that are absolutely tailored to the collective mechanism. For example, misclassification cases 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 entrecho case. Another case decided by Judge Ambrose, which she distinguished 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 only going to pay them for ex amount for this ship. There were no individualized differences. Get in these meal break cases, district court after district court, when confronted with the prospect of having to try these cases, said, how can we do this? Because each person's experience, particularly when you have the implementation and discretion at the department level, whether we're going to schedule them, not schedule them, some people, we have these log in and log out sheets. Even the constructive knowledge theory, when we have individual plaintiffs conceding that, yes, on occasions, I would fill out that form, and yes, I did get paid. Then the constructive knowledge issue, I think, it's reasonable for the defendant to argue, well, if that supervisor knew that all these occasions, the individual had no problem filling out the form and getting paid for it

. Bowie would go on a lunch break, she was removed from the computer assignments screen, so that it wasn't possible for her to get an assignment during those 30 minutes. Now, is that experience? Is that representative of what happens in some nursing unit at a different hospital? You had plaintiffs, another guy, John Hedgesick-Kavins. He didn't like taking lunch. He 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 and shower and change his clothes and have his break that way. And the supervisor had the discretion to bless that, and in fact, that was what happened. And he said, now I only get 20 minutes instead of 30. At some point there's a balance. I mean, the FSLA provides for collective actions. So, there are not everybody's the same. There are differences. When do you say that the differences are so individualized that we're not going to have class certification versus when you say, okay, we'll model for it. There are certain types of FLSA claims that are absolutely tailored to the collective mechanism. For example, misclassification cases 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 entrecho case. Another case decided by Judge Ambrose, which she distinguished 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 only going to pay them for ex amount for this ship. There were no individualized differences. Get in these meal break cases, district court after district court, when confronted with the prospect of having to try these cases, said, how can we do this? Because each person's experience, particularly when you have the implementation and discretion at the department level, whether we're going to schedule them, not schedule them, some people, we have these log in and log out sheets. Even the constructive knowledge theory, when we have individual plaintiffs conceding that, yes, on occasions, I would fill out that form, and yes, I did get paid. Then the constructive knowledge issue, I think, it's reasonable for the defendant to argue, well, if that supervisor knew that all these occasions, the individual had no problem filling out the form and getting paid for it. Why would I have reason to think that if there was another occasion where they worked through and they didn't submit the form that I would think that had? If we deny collective actions or district courts do, and then we affirm that we get to the merits, doesn't that encourage hospitals to have decentralized timekeeping systems that is a different system for each hospital? To defeat FSLA claims? I don't think the record is in these cases suggests that in any respect, hospitals or health systems are trying to do anything but to accurately record time, and that this, putting this so-called burden on the employee to report their time, has been blessed from time immoriel and memorial. And that each employer, each department, it's not a one-size-fits-all in terms of how you most effectively accurately record timework. Thank you, Jim. Thank you very much. Mr. Thompson, I have a question. Your colleagues rely heavily on Sullivan. And Sullivan says the end of the opinion, having made no attempt to secure a 1292B certification, the balance argued instead they're seeking review of the class determination. Since a balance do not contend that the order of dismissal was in error, however, the only issue that a balance would have is the correctness of the refusal of class certification for the district judge. We view a balance strategy as an attempt to avoid this court's firm position against interlocatory appeals of class certification determinations. Why is that not controlled here as to whether, since you cannot object to the dismissal and clearly do not, because it's volunteer, how are we, would we be permitted and how can you have review of the adverse class certification? Because of the Trevino case that came out from the third circuit after Sullivan, which says, when a plaintiff has had all but one of her claims dismissed and is willing to abandon the remaining claim, a stipulation agreeing to the dismissal of remaining claim promotes judicial economy by eliminating unnecessary proceedings of trial level without posing any danger, appeasing the litigation. But there were three claims there that were capable of review. And I believe under guaranteed, and we will brief this, but I believe under guaranteed and roper, we have a claim, I will use that phrase loosely, but we have an interest, a digestible interest in litigating the case collectively. Well, that's the second issue. That's not the final issue. Oh, but that's a final issue. Well, that finality issue is what your colleagues are really pressing. We in arguing before, when you're arguing before, we're pressing the second issue of, okay, you get over finality, you're here, you have one foot in the door, but will we let you actually come work? 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, hey, we're not going to do trial, we're just, we're not going to do anything more in this case, we're done. And then later, oh, by the way, well, now we're going to appeal it. That's entirely different, and I totally understand the reasoning in that type of case. So you kind of load the word strategy. Well, I guess we all engage in strategy, I guess, but, you know, but not to show up and not could go forward in a trial is entirely different than saying, we want to do this for appeal. It is certainly a final, I mean, it is a final order. There's nothing more final than dismissal with prejudice

. Why would I have reason to think that if there was another occasion where they worked through and they didn't submit the form that I would think that had? If we deny collective actions or district courts do, and then we affirm that we get to the merits, doesn't that encourage hospitals to have decentralized timekeeping systems that is a different system for each hospital? To defeat FSLA claims? I don't think the record is in these cases suggests that in any respect, hospitals or health systems are trying to do anything but to accurately record time, and that this, putting this so-called burden on the employee to report their time, has been blessed from time immoriel and memorial. And that each employer, each department, it's not a one-size-fits-all in terms of how you most effectively accurately record timework. Thank you, Jim. Thank you very much. Mr. Thompson, I have a question. Your colleagues rely heavily on Sullivan. And Sullivan says the end of the opinion, having made no attempt to secure a 1292B certification, the balance argued instead they're seeking review of the class determination. Since a balance do not contend that the order of dismissal was in error, however, the only issue that a balance would have is the correctness of the refusal of class certification for the district judge. We view a balance strategy as an attempt to avoid this court's firm position against interlocatory appeals of class certification determinations. Why is that not controlled here as to whether, since you cannot object to the dismissal and clearly do not, because it's volunteer, how are we, would we be permitted and how can you have review of the adverse class certification? Because of the Trevino case that came out from the third circuit after Sullivan, which says, when a plaintiff has had all but one of her claims dismissed and is willing to abandon the remaining claim, a stipulation agreeing to the dismissal of remaining claim promotes judicial economy by eliminating unnecessary proceedings of trial level without posing any danger, appeasing the litigation. But there were three claims there that were capable of review. And I believe under guaranteed, and we will brief this, but I believe under guaranteed and roper, we have a claim, I will use that phrase loosely, but we have an interest, a digestible interest in litigating the case collectively. Well, that's the second issue. That's not the final issue. Oh, but that's a final issue. Well, that finality issue is what your colleagues are really pressing. We in arguing before, when you're arguing before, we're pressing the second issue of, okay, you get over finality, you're here, you have one foot in the door, but will we let you actually come work? 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, hey, we're not going to do trial, we're just, we're not going to do anything more in this case, we're done. And then later, oh, by the way, well, now we're going to appeal it. That's entirely different, and I totally understand the reasoning in that type of case. So you kind of load the word strategy. Well, I guess we all engage in strategy, I guess, but, you know, but not to show up and not could go forward in a trial is entirely different than saying, we want to do this for appeal. It is certainly a final, I mean, it is a final order. There's nothing more final than dismissal with prejudice. I mean, it is fine. But in Sullivan, it was arguably final too, because they were out. I guess, and then we're going to be able to come back again. And yet we said, look, you're not appealing that, you know, they could have appealed the failure to prosecute, but they did. I guess the difference is I think if someone wholly abandons their claims and later stives, they want to revive them by appealing them, that's a problem. I think it's entirely different. We say we're abandoning what remains of our case in order to get a pellet 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 too, the voluntaryness, what I think this really comes down to is by doing this voluntarily. Are you waving your claim? It's really a waiver argument at heart. Are you waving it? Waiver is a voluntary relinquishment of a known right. Not showing up at trial and doing, refusing to show up at trial and do anything, is a voluntary relinquishment of a known right. This is not a voluntary relinquishment of a known right. This is, we have this right, we intend to exercise it. No, well, you lose me on the second part then, because you say we have this right. What right do you have anymore? I mean, this can be easy. What right does she have anymore? She has a right under the F L S A to proceed in a representative capacity, which was denied her. She has a claim. She no longer has a claim. How can she have a nor a derit and a derit and rope her? They didn't have claims anymore either. You know, this is where the Smith case, the NYSRF, it really comes into play, because there there was, yes, we're going to give up our claim and have a judgment entered against this with prejudice. But we reserve the argument that you're now, in effect, making to the court that we can still go ahead and have this appeal taken and somehow get to the merits. And the court said no way. Can't do it

. I mean, it is fine. But in Sullivan, it was arguably final too, because they were out. I guess, and then we're going to be able to come back again. And yet we said, look, you're not appealing that, you know, they could have appealed the failure to prosecute, but they did. I guess the difference is I think if someone wholly abandons their claims and later stives, they want to revive them by appealing them, that's a problem. I think it's entirely different. We say we're abandoning what remains of our case in order to get a pellet 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 too, the voluntaryness, what I think this really comes down to is by doing this voluntarily. Are you waving your claim? It's really a waiver argument at heart. Are you waving it? Waiver is a voluntary relinquishment of a known right. Not showing up at trial and doing, refusing to show up at trial and do anything, is a voluntary relinquishment of a known right. This is not a voluntary relinquishment of a known right. This is, we have this right, we intend to exercise it. No, well, you lose me on the second part then, because you say we have this right. What right do you have anymore? I mean, this can be easy. What right does she have anymore? She has a right under the F L S A to proceed in a representative capacity, which was denied her. She has a claim. She no longer has a claim. How can she have a nor a derit and a derit and rope her? They didn't have claims anymore either. You know, this is where the Smith case, the NYSRF, it really comes into play, because there there was, yes, we're going to give up our claim and have a judgment entered against this with prejudice. But we reserve the argument that you're now, in effect, making to the court that we can still go ahead and have this appeal taken and somehow get to the merits. And the court said no way. Can't do it. The F L S A is different. I think that's something we need to have you addressed. I have three seconds left. May I have just a second on the class, class issues. I will address these issues, obviously, in the briefing that is coming. My concern with the defendant's argument on the class certification issue is this. That argument desertifies every F L S A case, although they say it doesn't. In every case, according to them, and they're not right on this either, according to them, any time where you have to decide whether an individual worked certain amount of time and how much they worked, there can't be certification, because you have to do that every time. Well, tell me in F L S A case where that isn't true. Tell me in case where you don't have to do that. And the reason it is not an impediment, though, is that that is a damages issue. And this court held in Sulker Brothers, and we cited it. But in Sulker Brothers, this court held that you do not need to have everybody testify in order to establish F L S A damages. The plaintiff has an obligation to show it by just and reasonable inference, but it's done by representative testimony. So that is inherently a class issue. So they're arguing, even in a misclass case, they say, oh, misclass case is fine. Even there they are, I have misclass cases, they argue about job duties. Everyone did their job differently. But beyond that, they're 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 besides that. And I would say that this case is much further along if we rule on the legalness of the policy

. The F L S A is different. I think that's something we need to have you addressed. I have three seconds left. May I have just a second on the class, class issues. I will address these issues, obviously, in the briefing that is coming. My concern with the defendant's argument on the class certification issue is this. That argument desertifies every F L S A case, although they say it doesn't. In every case, according to them, and they're not right on this either, according to them, any time where you have to decide whether an individual worked certain amount of time and how much they worked, there can't be certification, because you have to do that every time. Well, tell me in F L S A case where that isn't true. Tell me in case where you don't have to do that. And the reason it is not an impediment, though, is that that is a damages issue. And this court held in Sulker Brothers, and we cited it. But in Sulker Brothers, this court held that you do not need to have everybody testify in order to establish F L S A damages. The plaintiff has an obligation to show it by just and reasonable inference, but it's done by representative testimony. So that is inherently a class issue. So they're arguing, even in a misclass case, they say, oh, misclass case is fine. Even there they are, I have misclass cases, they argue about job duties. Everyone did their job differently. But beyond that, they're 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 besides that. And I would say that this case is much further along if we rule on the legalness of the policy. Listen to the problem with representative testimony. Have all these different job classifications, all these different people. How do you compare a cook to a nurse? The interest to solutions that one is it is representative 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. 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 wouldn't have claims everybody testified, that they were worked a substantial amount of time without meal breaks. And what's particularly galling about these cases is the defendants do it. From magnet certification, they had to do NDNQI surveys. These surveys came back and said 80% of the respondents are working through their meal periods and not getting paid. They're canceling at the rate of 8%. If you're a hospital, a university of Pennsylvania was changed. If you're a hospital and you see 80% of your people are working through their meal rates, and you're canceling at 8% of the time, that's a problem. If this case isn't certified, there will become a race to the bottom, not a race to the top, in terms of policies. Thank you, Mr. Choms. Thank you. Cases well argued would take an under-organizement. With respect to supplemental briefing, I think it would be as to the issue. And we mentioned that the two cases that we thought were on point, one, the 11th Circuit Smith, which is 570 F319, and Cameron Grant, which is 347 F320, that really zero in on the FLSA aspect. And I think that's the issue that we'd like addressed is once that claim, one claim is gone, is their personal state. And let's seek supplemental briefing from the appellant by the 25th of March. Limited to 10 pages, and then 10 days later by the appellate, which would be the probably soon thereafter, right after Easter, April 3rd of March, and then eight days for a reply

. All right, so the initial briefing would be 10 pages, and the reply would be six pages. April 3rd, so Wednesday, I think. Yeah, April 3rd would be fine, and then eight days after that, the 11th, the reply would be two. 10 pages, six pages