Legal Case Summary

I would like to reserve four minutes for a vote. Four minutes. Four minutes to this. And my name is Mitchell Schley. I law vises of Mitchell Schley. I represent the plaintiff Patricia Thompson. If it may please the court. We all know that in the run up to the mortgage crisis in this country, there was a feverish effort by mortgage companies to sell mortgages and package them for securities. And Patricia Thompson was an employee, a low-level employee, a mortgage underwriter who would get an application. And there was a checklist that she had to see if the application met up with the checklist. And she was under and her colleagues rather tremendous pressure to do the work and to work long hours to work for lunch, to work evenings, to work weekends, to work at home, because the work targets as alleged to the complaint. What, with respect to what work that had to be done. Now, at one point, she went to one of the owners, Mr. Chapman, this is again, everything I'm saying is alleged to the complaint, and said, do we get over time for all this work? And what did he say as alleged to the complaint? I don't pay my underwriters over time. He said it. She walked away

. Now, I don't think Ms. Thompson believed at the time that that statement was made, that that was the final word. Obviously, she had to believe that there was an avenue to challenge that decision by the employer. And she came to lawyers like myself. But it turns out to her deep surprise and to us that that was the final word, that the decision of the company that she doesn't get over time, that this is a job that he doesn't require the company to pay over time, was the final word, because the district court has said that the company's decision is the final word, because the door has been shut, but it's district court. So why should we apply individual liability to both Mr. Chapman and Mr. President? Certainly, Barack. Apropos of your, this is the final word. Yeah. Yeah. Well, the FLSA we know extends employer liability to individuals, some statutes don't, of course. But the feeling of Congress, and I think it was talking based on general knowledge of the FLSA and well documented, is that in this area, Congress wanted it to be known that a individual, particularly an individual who owns a privately held close corporation, could not hide behind the corporate veil to say, I'm a paying why? Because they would need to know that. Do you alleged that this is a privately held corporation that is essentially run by two people? We alleged in a complaint that it's a private, we do alleged it is privately held, we know it's how publicly held, and it's run substantially by the two people that we alleged in a complaint, and who were there day in day out who held a position or president, there were co-owners, and we alleged very specifically around a tier point that I want to get to your point. We alleged very specifically, why should they be held to the status of an employer? Because they were responsible and we alleged for compensation decisions, personnel decisions, work assignment decisions, operational control, hiring, firing

. I mean, you can't ask whom, that's, it'll ledges everything that you would need to alleged to start discovery to at least lay the basis. Is it a federal standard that's applied in determining whether they should be held accountable as individuals? Oh yes, it is a federal standard. The FLSA is very clear, and this third circuit has talked about this subject over and over again. And in fact, this is very interesting, and this, I find to be somewhat odd, given the decision here, the district court in its own decision in Shikib, which we cite in our brief, which is a recent decision, that district court said, and I'll quote this because it's so critical. This court, the court, rather, is mindful that employer determination, and he was talking about individuals, not companies, but individual liability, that employer determination is a fact-intensive inquiry such that it can rarely even be made on summary judgment. Okay, agreed. The same judge, the solicitor's case, all the feelings. I find that very inconsistent. And so, this complaint lays out the essential elements of employer liability with respect to the joint employer. What about the joint employer? The joint employer. I mean, it seemed to me that Thompson first worked for one entity and then worked for another entity. How did they become joint? Sure. And when did this, when did the violation occur, the FLSA violation, alleged violation occurred? The FLSA violation, to your point, your honor. She began working in the summer of 2011, 10, and she worked for, because she was hired, what she thought was a company called Security Atlantic Mortgage. She was hired actually, I apologize, in 2009, June of 2009

. She was hired, what she believed to be, a company called Security Atlantic Mortgage. However, when she was brought into training, she was told by the head of the training department, well, I'm from Ariah Mann, where's sister company? We're somehow there's some connection between Ariah Mann and Security Atlantic. Okay, so she continued to work with her colleagues for years. She's been working hours. But a sister corporation is not necessarily a joint. I agree. I agree, but there's a limit to what a worker and a cubicle who processes paper could really know about the connection. She hears things, she sees things, but if you're asking her to know a lot more than that, it's unrealistic, because she's just doing her job. Okay, but you're the one who wrote the complaint. Correct. And we're basing this on what's said in the complaint. What she told me and what she knows, I know nothing about this. Well, I know, but you wrote the complaint. Correct. You're a lawyer

. Yes. You understand what a joint relationship is. Yes. So what do you say in the complaint to the shows that they were joint companies? We say that this company that we say elaborately that REMN became the face of SAMC after the HUD investigation of the mortgage line. So why are there separate employers? You have Atlantic Security up until February of 2010, and then you have REMN after that. Because we allege that even after that point, we allege that underwriters will continue to get checks made with a pay or what security Atlantic. They continue to make these checks paid to the people at the same time when they purportedly weren't operating anymore. So that's a fact, and there it is. And now to the what's the security Atlantic defunct now? We don't know that. This is what the judge found without any evidence. We didn't allegedly in our complaint. It was in a brief that they were the funk. And the judge for some reason adopted that as a finding of facts. Yeah, but the question is, if you're trying to allege joint employer, the fact that there might be some mixup on the check is payable to this person, from this entity and so forth, isn't what's going to be the critical fact in determining joint employer. Obviously there's more to it than that

. So what have you allege other than that per chance? We're right. We are led to the same management continued to be the same management. But that's not joint. We're we're talking about joint. But we're saying that there was a continuity from the very beginning that was talk of already a man in SCMC as one item. From the very beginning, she was told this. She was told this. She's not in the board meeting. She's not in the room. She's told this. And then what do we see? We see from her from the fact that she could relate to me. And I can only relate to what she says at a limited role. We see a transition of sorts. We see that notwithstanding this alleged transition, SCMC, a part of the fund company is still writing checks to the employees. That's a critical, critical factor in employer relationship

. Payment is the most fundamental factor in employment. And unemployment relationship. The court has said this in covering converses versus the MBA. So the saying that there was things happening along the way and we just need discovery to sort this out. And we're going to need discovery to find out if there's liability of each of these companies. We're going to need discovery to address the successorship issue. We're going to need discovery to find out who these owners are and where they belong. Joint employer is just simply another piece that will come out in the same discovery. There will be no additional burden put on these parties to answer the questions that really are leading conclusions based on the same facts. And enterprise in this court, who will then enterprise that if there's a commonality of control then there's joint employer. That will come out in the same exact discovery. There will not be an additional burden on this company. These are you need joint employer to get back to SAMC to make SAMC REM and responsible for you playing at AMC? It's critical because if we don't get that and if we don't get the individual employers I don't know what these individuals have in terms of wealth. But it's critical because if we don't can't connect it and maybe we can't and so be it. We'll live with the results

. But if we can at least take a shot at the issue then that whole period is going to go is lost. And it's lost and we are we feel based on what we've heard that there is some monkey business going on here. That all of a sudden REM and appears and it says we are not which effectively becomes the face. The face of SAMC but all work in progress goes to them. The same management continues. Nothing changes. What I'm saying is I wish I had some more facts on joint employer. We have some. I think we have enough in this context based on traditional experience, based on context and based on common sense, which probably talks about as being the touchstone of what the judges should be doing when assessing these things. To have that piece part of the assessment and look this quite as well multiple times that's in our brief. That employer, there could be multiple employers of an employee at the same time. And that this goes on all the time. There's all kinds of machinations. And if we can't at least nail it down, you're getting an SAMC sort of a get out of free jail card. And there's no reason to with this case

. It just isn't. All right. Thank you very much. Here are a few more. Thank you runners. Good. Thank you. Thank you, Your Honor. May it please the court. My name is Ari Karen. I represent the defendants in this matter. I think what plaintiffs counsel just said told you much of what the district court found problematic. Take a shot. That's not what the Supreme Court has said you can do is take a shot. You don't just do to throw things against a wall anymore, make inclusive allegations

. Well, you're not talking about an employee who. Abinicio has access to all of this information. There's certainly there seem to be sufficient allegations with regard to individual liability. I mean, it's a small public privately held company. And these are two of the principles. Yes. When I would add an asset rhetorically, I'll answer that question. But what I'm referring to is the way the complaint drafts it. The complaint conflates. Raymond and SMA Sam C. First of all, it treats them as one entity throughout the entirety of time without sufficient facts establishing either successor liability under any standard of any court or joint liability status. What is one to infer when there's confusion on both sides of the, I guess it's February 2010 divide, right? I mean, whether you go from that point into the past, that point into the future, there seems to be an issue that there is a management presence. R E M N before SMA C continues after that date with that confusion. What what's a plaintiff to do? Well, I think the confusion is actually created by the complaint, not by the facts. And I think that's the problem of the district court found

. The district court specifically said in its order, dismissing the first complaint. And I will read from it the appendix, which is at 85 of the joint appendix specifically said and told the plaintiff exactly what she needed to do. The judge said plaintiff addresses her claims to defendants collectively without specifically alleging any employment relationship with each. And then further in this paragraph, plaintiff does not, however, alleging any specific facts connecting her employment to each name defendant. Without such specific facts, both the court and defendants are unable to determine the extent to which any of the name defendants could be liable. That was the problem with her complaint and she never fixed it. Do you think that there is at least a viable FLSA claim here? It's just a question of identifying who the employer is. I don't even know from the complaint because there's no fast. She said she worked more than 40 hours without receiving overtime. Isn't that enough to say to an FLSA claim? Not necessarily at all. In other words, there's conclusive assertion. In looking at an FLSA claim and again, the Supreme Court instructs us this with respect to context. It says that a district court has the power and should have the right to be able to look at a case based on its knowledge, based on the context of the case, and demand certain specifics so that it can manage its docket and prevent it from going to the court. What more do we need? Yeah. What more you would need in this case to stay an FLSA case? You can respond to Judge Rock's question. Go ahead. I was thinking the complaint or after on summary judgment. In the complaint, there have to be allegations at least. Not proof. There are allegations that she's not, that she worked more than 40 hours a week and was not paid overtime. There are allegations that she worked for the two companies. There are allegations that the two named individuals are the ones who are officers and run the companies. Now, isn't, doesn't that plead an FLSA claim? You're on our, let me address each one in turn. First of all, the allegations are that they were co-owners of SAC. They were co-owners. They, it's specifically, but they. Yeah, I think it believed, with all the respect around it, I do believe it said co-owners. And then in 2011, after she's already gone, it's the first time they've become officers at remin. There's no discussion of what their role was at remin. They just treat remin, REMN and SACMC as one, as if it occurred

. Go ahead. I was thinking the complaint or after on summary judgment. In the complaint, there have to be allegations at least. Not proof. There are allegations that she's not, that she worked more than 40 hours a week and was not paid overtime. There are allegations that she worked for the two companies. There are allegations that the two named individuals are the ones who are officers and run the companies. Now, isn't, doesn't that plead an FLSA claim? You're on our, let me address each one in turn. First of all, the allegations are that they were co-owners of SAC. They were co-owners. They, it's specifically, but they. Yeah, I think it believed, with all the respect around it, I do believe it said co-owners. And then in 2011, after she's already gone, it's the first time they've become officers at remin. There's no discussion of what their role was at remin. They just treat remin, REMN and SACMC as one, as if it occurred. But when you lead the complaint, it doesn't talk about any role they had at remin after she had, after SACMC essentially went out of business. Yeah, but you have to answer both questions, right? And because they're easily put together, was there, has there been an FLSA claim stated based on everything that's in there? And isn't it as simple as she claims that she worked overtime? She has the statement from one of the officers saying, I don't pay overtime to underwriters. There is the statement with regard to the two individuals that they are in charge of the hiring, the firing, the determinations with regard to compensation, and several other things. Isn't that enough for an FLSA claim? No, not after to employee Nickball, your honor. The reason why is, let me address the point of the comment that he's referring to one of the individuals, not both, by the way. That comment was made in June of 2010, after SACMC had ceased doing business, after she was now working at remin. But there's no allegation that when he, at the time, Mr. Chapman, made that comment, he had any role with remin whatsoever. There's no allegation as an officer. In fact, he isn't to come an officer according to the complaint until sometime almost a year later. So at that point, who is he? According to the complaint, he's nobody effectively. So would be asking anybody out there and saying, hey, do you pay overtime? I don't. That's not, he's an interference to be drawn from the allegation of the complaint that he was in the supervisory position. Why would she go to him if he is not her supervisor? Well, she doesn't. I don't think that is an inference you can fairly draw

. But when you lead the complaint, it doesn't talk about any role they had at remin after she had, after SACMC essentially went out of business. Yeah, but you have to answer both questions, right? And because they're easily put together, was there, has there been an FLSA claim stated based on everything that's in there? And isn't it as simple as she claims that she worked overtime? She has the statement from one of the officers saying, I don't pay overtime to underwriters. There is the statement with regard to the two individuals that they are in charge of the hiring, the firing, the determinations with regard to compensation, and several other things. Isn't that enough for an FLSA claim? No, not after to employee Nickball, your honor. The reason why is, let me address the point of the comment that he's referring to one of the individuals, not both, by the way. That comment was made in June of 2010, after SACMC had ceased doing business, after she was now working at remin. But there's no allegation that when he, at the time, Mr. Chapman, made that comment, he had any role with remin whatsoever. There's no allegation as an officer. In fact, he isn't to come an officer according to the complaint until sometime almost a year later. So at that point, who is he? According to the complaint, he's nobody effectively. So would be asking anybody out there and saying, hey, do you pay overtime? I don't. That's not, he's an interference to be drawn from the allegation of the complaint that he was in the supervisory position. Why would she go to him if he is not her supervisor? Well, she doesn't. I don't think that is an inference you can fairly draw. You know, when you talk, when she talks about the role of these individuals, and I want to bring it back to some extent to the context and what's missing in the complaint, when you see an FLSA, I'm sure your honors have seen many of them over the past several years, you usually see allegations to talk about. This is what I experienced. When I worked over at SACMC, this is who supervised me. This is who I worked for. This is who hired me. This is the person I reported to, you know, I worked these many hours. This was my typical schedule. All those specific details. These are not hard things to alleged there. And everybody's common every day occurrences. None of them are here. And when you speak to that as to it pertains to this case, when you look at it, what you see here is what are the allegations against Mr. Chapman and Lamper Ella. One, that they were co-owners. We don't know what percentage ownership we don't know what they did

. You know, when you talk, when she talks about the role of these individuals, and I want to bring it back to some extent to the context and what's missing in the complaint, when you see an FLSA, I'm sure your honors have seen many of them over the past several years, you usually see allegations to talk about. This is what I experienced. When I worked over at SACMC, this is who supervised me. This is who I worked for. This is who hired me. This is the person I reported to, you know, I worked these many hours. This was my typical schedule. All those specific details. These are not hard things to alleged there. And everybody's common every day occurrences. None of them are here. And when you speak to that as to it pertains to this case, when you look at it, what you see here is what are the allegations against Mr. Chapman and Lamper Ella. One, that they were co-owners. We don't know what percentage ownership we don't know what they did. It doesn't, by the way, alleged they were responsible for hiring fire. Notice pleading is about, right? I mean, we're talking about notice pleading. Your clients are on notice with regard to what the claims are. It's not like they look at this and they go, oh my God, what could this ever mean? Exeter of 26 of the amended complain alleges that Lamper Ella and Chapman made decisions concerning security at Lanx and REMS day-to-day operations hiring, firing, promotions, personnel matters, work schedules, pay policies and compensation. Again, but that's quite different than being responsible. Made decisions that concerned. Any decision could ultimately concern. Are you familiar with our decision in Heymarger? Yes. So what, your honor, yes. How is that not controlling here? Well, I think what you're actually looking at here in this particular case, your honor, is the fact that when you look at the Supreme Court standard in Tompley and Ickball and you talk about general assertions that are naked and devoid of further factual enhancement, which is what we're talking about here. You can allege any of these generalities, give me specifics, some, any. And again, the district court has the power to address those specifics and require something, some meet on the bone, so to speak as you call it, before you subject parties to base this litigation. In this particular case, you've not you, your honor. I'm sorry. Plata has conflated completely the separate identities of these two companies

. It doesn't, by the way, alleged they were responsible for hiring fire. Notice pleading is about, right? I mean, we're talking about notice pleading. Your clients are on notice with regard to what the claims are. It's not like they look at this and they go, oh my God, what could this ever mean? Exeter of 26 of the amended complain alleges that Lamper Ella and Chapman made decisions concerning security at Lanx and REMS day-to-day operations hiring, firing, promotions, personnel matters, work schedules, pay policies and compensation. Again, but that's quite different than being responsible. Made decisions that concerned. Any decision could ultimately concern. Are you familiar with our decision in Heymarger? Yes. So what, your honor, yes. How is that not controlling here? Well, I think what you're actually looking at here in this particular case, your honor, is the fact that when you look at the Supreme Court standard in Tompley and Ickball and you talk about general assertions that are naked and devoid of further factual enhancement, which is what we're talking about here. You can allege any of these generalities, give me specifics, some, any. And again, the district court has the power to address those specifics and require something, some meet on the bone, so to speak as you call it, before you subject parties to base this litigation. In this particular case, you've not you, your honor. I'm sorry. Plata has conflated completely the separate identities of these two companies. You can't read this complaint. For example, look at their brief and I believe it's on page. I think your honor, there is a connection here because since it is the individual liability presumed is based upon the existence of an employer relationship at the outset for me, they're one of the companies and we can't really determine that. Then you really can't determine the individual liability. In other words, this complaint. So if the entire time with both security Atlantic and REMN isn't there enough to say individual liability, I don't care who the actual employer is in that context, Chapman has individual liability, individual responsibility because he may decisions that affected that individual. Well, he may decisions concerning his liability is not vicarious. His liability is direct. That is true, but I would say that again, we don't know what his role was all together at REMN at all because there's nothing in the complaint that's in there. And isn't that what discovery is for? No, your honor. Respectfully discovery is after you've pleaded facts sufficient for the district court to determine. You say that it's not enough in this complaint to make really plausible on it to raise a plausible claim for relief. I think your honor in this complaint, you're talking naked assertions that are general in nature without further factual enhancement, which is what the Supreme Court said is not enough, especially when you look at the context of things. It should be pretty easy to plead. This is who I work for

. You can't read this complaint. For example, look at their brief and I believe it's on page. I think your honor, there is a connection here because since it is the individual liability presumed is based upon the existence of an employer relationship at the outset for me, they're one of the companies and we can't really determine that. Then you really can't determine the individual liability. In other words, this complaint. So if the entire time with both security Atlantic and REMN isn't there enough to say individual liability, I don't care who the actual employer is in that context, Chapman has individual liability, individual responsibility because he may decisions that affected that individual. Well, he may decisions concerning his liability is not vicarious. His liability is direct. That is true, but I would say that again, we don't know what his role was all together at REMN at all because there's nothing in the complaint that's in there. And isn't that what discovery is for? No, your honor. Respectfully discovery is after you've pleaded facts sufficient for the district court to determine. You say that it's not enough in this complaint to make really plausible on it to raise a plausible claim for relief. I think your honor in this complaint, you're talking naked assertions that are general in nature without further factual enhancement, which is what the Supreme Court said is not enough, especially when you look at the context of things. It should be pretty easy to plead. This is who I work for. This is to just say made decisions concerning. You could say that about any employee. You could say almost any employee makes decisions of any level with the there in your supervisor role or not that makes a decision concerning. That's pretty broad. What if he gave us a specific allegation that Chapman says I do not pay my underwriters overtime period statement made again after she was no longer working at a CMC where he was a co owner where he had some role. She's also alleging a claim against REMN for that period of time after it. But we don't know when again the individual liability and isn't that what discoveries for aren't you hiding the law here? Your honor, I don't think so. I think we filed a motion and District Court agreed with us. The District Court found that based on the District Court's experience handling FLSA matters and addressing what it expects to see in complaints of the sorts so we don't have parties brought into bear. It's not a question of suing everybody and sorting it out later. That's the Supreme Court guards against and suggests against in both Twomblia and Iqbal. But the Supreme Court. We have an underlying remaining claim against both the companies. Irregardless of the decision on joint liability individual liability, successor liability that there is a basic underlying FSLA claim that has been made that has not been if it was dismissed was not properly dismissed. Not based on the complaint, Your Honor

. This is to just say made decisions concerning. You could say that about any employee. You could say almost any employee makes decisions of any level with the there in your supervisor role or not that makes a decision concerning. That's pretty broad. What if he gave us a specific allegation that Chapman says I do not pay my underwriters overtime period statement made again after she was no longer working at a CMC where he was a co owner where he had some role. She's also alleging a claim against REMN for that period of time after it. But we don't know when again the individual liability and isn't that what discoveries for aren't you hiding the law here? Your honor, I don't think so. I think we filed a motion and District Court agreed with us. The District Court found that based on the District Court's experience handling FLSA matters and addressing what it expects to see in complaints of the sorts so we don't have parties brought into bear. It's not a question of suing everybody and sorting it out later. That's the Supreme Court guards against and suggests against in both Twomblia and Iqbal. But the Supreme Court. We have an underlying remaining claim against both the companies. Irregardless of the decision on joint liability individual liability, successor liability that there is a basic underlying FSLA claim that has been made that has not been if it was dismissed was not properly dismissed. Not based on the complaint, Your Honor. I can't envision what could or could not have happened. I've noted here also by the way to the extent that that and the reason why you know when you when you briefed it below you didn't this point wasn't argued. Actually, it was argued in the first motion to dismiss which the court actually adopted and I can raise it. It's page 47, report page 48 of our of the joint appendix where we specifically address this point that you're raising. And we said we said page 47 again specifically plaintiff does not allege what wrongs s.m.c. specifically committed or when such wrongs were allegedly committed in D in the complaint as pleb renders s.m.c. and remin virtually indistinguishable despite the reality. But you can actually on your you can't read that into the point because she treats them as one entity throughout the entirety she talks about simultaneous employment and then at some point she just refers to as defendants. So if I may when she says defendants you can't tell in the district court actually highlighted that in its order you can't tell whether you're talking about defendants remin because of its joint employer status its successor liability status or because of remin she doesn't make any allegation for example it's very simple and again I would note your honor that in the context of this. This court did this on some of the district court did not dismiss this and not give her leave to a man it specifically told her what to do what it expected what it wanted and she chose to pursue an appeal rather than add a couple of paragraphs if in fact she could have and I would suggest the fact she didn't is talent but go back to the question of whether there was a sufficiency alleged the only things alleged are if you look at the complaint very generic statements of I was employed I was exempt I was or I was not. I was treated as exempt I was not paid over time there's nothing in specifics as to tell me a little bit about what happened at each place and when she conflates the defendants as only refer to as quote defendants you don't know whether that's remin acting as remin as a quote primary liabilities the treated on the complaint or if it's remin simply by that virtue of the derivative liability associated with the theory of joint employer status was referring to the fact that the

. I can't envision what could or could not have happened. I've noted here also by the way to the extent that that and the reason why you know when you when you briefed it below you didn't this point wasn't argued. Actually, it was argued in the first motion to dismiss which the court actually adopted and I can raise it. It's page 47, report page 48 of our of the joint appendix where we specifically address this point that you're raising. And we said we said page 47 again specifically plaintiff does not allege what wrongs s.m.c. specifically committed or when such wrongs were allegedly committed in D in the complaint as pleb renders s.m.c. and remin virtually indistinguishable despite the reality. But you can actually on your you can't read that into the point because she treats them as one entity throughout the entirety she talks about simultaneous employment and then at some point she just refers to as defendants. So if I may when she says defendants you can't tell in the district court actually highlighted that in its order you can't tell whether you're talking about defendants remin because of its joint employer status its successor liability status or because of remin she doesn't make any allegation for example it's very simple and again I would note your honor that in the context of this. This court did this on some of the district court did not dismiss this and not give her leave to a man it specifically told her what to do what it expected what it wanted and she chose to pursue an appeal rather than add a couple of paragraphs if in fact she could have and I would suggest the fact she didn't is talent but go back to the question of whether there was a sufficiency alleged the only things alleged are if you look at the complaint very generic statements of I was employed I was exempt I was or I was not. I was treated as exempt I was not paid over time there's nothing in specifics as to tell me a little bit about what happened at each place and when she conflates the defendants as only refer to as quote defendants you don't know whether that's remin acting as remin as a quote primary liabilities the treated on the complaint or if it's remin simply by that virtue of the derivative liability associated with the theory of joint employer status was referring to the fact that the. District Court didn't rule on the direct liability issue I think the district court didn't if you look at page 85 of the appendix what the district court saying is exactly what we said is based on the way that they collectively treated this entire thing by throwing and lumping them on as defendants without having any discussion would happen at either place you can't tell what's alleged against either and I can point to that. What did the district court say the district court said yes runner the district court said bear with me for one moment. Plain if does not alleged any specific facts connecting her employment to each name defendant without such specific facts both the court and defendants are unable to determine the extent to which any of the name defendants could be liable that is the fundamental flaw with this complaint. It groups a bunch of people and entities all into one basket and then says they all did this and at the same time spouses different theories that make it unclear as to is remins let's talk about remin for example is remins liability simply derivative of the fact on the success ship or joint liability I I would request that the court look and see is there anything that specifically talks about remin it says remin did this wrong or that the. I see my time is up your honors if I may finish my answer good that remin did this wrong or S.A.M.C. did this wrong or here's what happened at S.A.M.C. or here's what happened at remin there's no discussion with that of whoever look at the plaintiff's brief on page 13 I believe it's 13 of their brief where they say yes we did and then they go through it and they they raised some issues and all the talks is about defendants defendants defendants without clarifying which defendants did what or when that is exactly what the district court was unclear about that's exactly what we're going to do. We were unclear about the reason to move to dismiss the reason why the court granted and they asked plaintiff to clarify she tried once she didn't actually try once she added no new factual allegations but rather legal theories obfuscating the issue even further and then when those the court again remained its decision the court dismissed the great skin leading us to be here even though she had leave to amend. May I please the court? I'm just going to simply ask the court respectively to to to look at the couple to show you all of course doing to look at the complaint which is replete replete with facts about remin individually

. District Court didn't rule on the direct liability issue I think the district court didn't if you look at page 85 of the appendix what the district court saying is exactly what we said is based on the way that they collectively treated this entire thing by throwing and lumping them on as defendants without having any discussion would happen at either place you can't tell what's alleged against either and I can point to that. What did the district court say the district court said yes runner the district court said bear with me for one moment. Plain if does not alleged any specific facts connecting her employment to each name defendant without such specific facts both the court and defendants are unable to determine the extent to which any of the name defendants could be liable that is the fundamental flaw with this complaint. It groups a bunch of people and entities all into one basket and then says they all did this and at the same time spouses different theories that make it unclear as to is remins let's talk about remin for example is remins liability simply derivative of the fact on the success ship or joint liability I I would request that the court look and see is there anything that specifically talks about remin it says remin did this wrong or that the. I see my time is up your honors if I may finish my answer good that remin did this wrong or S.A.M.C. did this wrong or here's what happened at S.A.M.C. or here's what happened at remin there's no discussion with that of whoever look at the plaintiff's brief on page 13 I believe it's 13 of their brief where they say yes we did and then they go through it and they they raised some issues and all the talks is about defendants defendants defendants without clarifying which defendants did what or when that is exactly what the district court was unclear about that's exactly what we're going to do. We were unclear about the reason to move to dismiss the reason why the court granted and they asked plaintiff to clarify she tried once she didn't actually try once she added no new factual allegations but rather legal theories obfuscating the issue even further and then when those the court again remained its decision the court dismissed the great skin leading us to be here even though she had leave to amend. May I please the court? I'm just going to simply ask the court respectively to to to look at the couple to show you all of course doing to look at the complaint which is replete replete with facts about remin individually. replete with facts about Mr. Lamperrello Mr. Chapman why they might be success why they are successors why there's a joint employer relationship after the case was dismissed by the district court which we think was improper but he the court said leave to appeal we went back to this time so we exhausted everything we can to get as much facts as we could to satisfy this heightened standard of specificity of the court required and we submitted it we submitted 76 paragraphs. I wasn't going to talk about this but since council did and he made references to complaints that he's seen that given specifics I've seen hundreds of complaints in this area this is what I do for a living this is one of the most specific complaints I've ever seen and prepared only because the court asked for it on a second. I can prime around so that's just not the case and if the court looks at their own precedent which we said in our brief this is extremely adequate the other thing is is that when the when the council states when defend say rather that there's nothing in here that says that remin is responsible for to her at least primarily and as you see is at least responsible primarily I just want to say this is a very important issue. I want to talk about that mind boggling each of them paid the woman that's the well they paid her not their employer so according to this district court and defendants she worked for a ghost. So would you say you have an FLSA claim against security Atlantic until February of 2010 and against rem after February at a minimum at a minimum that's a minimum. We also say that remin and we are right now you say they're joined employees and the specializes in the labrically laid out an individual's right right but I mean to suggest as the court each crime which she didn't work for anybody she's going right to be paid and she's going right to overtime is I don't know what to say I've never seen that before she worked for nobody ever done and the defendant says it's true now we know the defendant really doesn't believe that because even the defendant in their first motion to dismiss they didn't take that position because frankly it would have been a little embarrassing and bizarre to take that position and they didn't it's in our appendix they didn't get the judge for reasons that I can't surprise chose just the case against the two primary employers also not have to do that it comprehensible and finally and finally what Twombly which the defendant's have just talked about talks about is to look at each complaint based on context common sense and judicial experience the very things that this court I do lower court expects defendant to know to satisfy the threshold requirement to get some type of justice are facts that by definition the people who are protected by this law are not the people who could possibly know these facts the people who are not exempt are the workers the low level workers the people that know the facts like the judge asked for evidence of a business plan ownership percentages etc etc are the very people who this law is designed to protect but those are the very people that my definition are important to these meetings and discussions and access to records and and all of the things that this judge this the court is demanding to know before opening the door to the point of that the vice common sense that's what probably said look at the cases in context probably was a case involving in the vast case of antitrust very complicated discovery it all involved national security of the highest level the turning general was being challenged and the September 11th of course the Supreme Court said need a little more to hear do you want to wrap it up I'm sorry I apologize this is the biometric opposite of those kind of complicated issues this is fundamental and if the end of this court she's fed to sustain the district court I just saying this is not hyperbole this case is important not just from his comes but because it was basically send a message that the FLSA is a dead letter in this circuit I cannot believe the circuit court wants to do that and it has never good that has passed all right thank you you're on thank you very much the case was well-breathed and well argued we appreciate it have a good day we'll take it under advisement

I would like to reserve four minutes for a vote. Four minutes. Four minutes to this. And my name is Mitchell Schley. I law vises of Mitchell Schley. I represent the plaintiff Patricia Thompson. If it may please the court. We all know that in the run up to the mortgage crisis in this country, there was a feverish effort by mortgage companies to sell mortgages and package them for securities. And Patricia Thompson was an employee, a low-level employee, a mortgage underwriter who would get an application. And there was a checklist that she had to see if the application met up with the checklist. And she was under and her colleagues rather tremendous pressure to do the work and to work long hours to work for lunch, to work evenings, to work weekends, to work at home, because the work targets as alleged to the complaint. What, with respect to what work that had to be done. Now, at one point, she went to one of the owners, Mr. Chapman, this is again, everything I'm saying is alleged to the complaint, and said, do we get over time for all this work? And what did he say as alleged to the complaint? I don't pay my underwriters over time. He said it. She walked away. Now, I don't think Ms. Thompson believed at the time that that statement was made, that that was the final word. Obviously, she had to believe that there was an avenue to challenge that decision by the employer. And she came to lawyers like myself. But it turns out to her deep surprise and to us that that was the final word, that the decision of the company that she doesn't get over time, that this is a job that he doesn't require the company to pay over time, was the final word, because the district court has said that the company's decision is the final word, because the door has been shut, but it's district court. So why should we apply individual liability to both Mr. Chapman and Mr. President? Certainly, Barack. Apropos of your, this is the final word. Yeah. Yeah. Well, the FLSA we know extends employer liability to individuals, some statutes don't, of course. But the feeling of Congress, and I think it was talking based on general knowledge of the FLSA and well documented, is that in this area, Congress wanted it to be known that a individual, particularly an individual who owns a privately held close corporation, could not hide behind the corporate veil to say, I'm a paying why? Because they would need to know that. Do you alleged that this is a privately held corporation that is essentially run by two people? We alleged in a complaint that it's a private, we do alleged it is privately held, we know it's how publicly held, and it's run substantially by the two people that we alleged in a complaint, and who were there day in day out who held a position or president, there were co-owners, and we alleged very specifically around a tier point that I want to get to your point. We alleged very specifically, why should they be held to the status of an employer? Because they were responsible and we alleged for compensation decisions, personnel decisions, work assignment decisions, operational control, hiring, firing. I mean, you can't ask whom, that's, it'll ledges everything that you would need to alleged to start discovery to at least lay the basis. Is it a federal standard that's applied in determining whether they should be held accountable as individuals? Oh yes, it is a federal standard. The FLSA is very clear, and this third circuit has talked about this subject over and over again. And in fact, this is very interesting, and this, I find to be somewhat odd, given the decision here, the district court in its own decision in Shikib, which we cite in our brief, which is a recent decision, that district court said, and I'll quote this because it's so critical. This court, the court, rather, is mindful that employer determination, and he was talking about individuals, not companies, but individual liability, that employer determination is a fact-intensive inquiry such that it can rarely even be made on summary judgment. Okay, agreed. The same judge, the solicitor's case, all the feelings. I find that very inconsistent. And so, this complaint lays out the essential elements of employer liability with respect to the joint employer. What about the joint employer? The joint employer. I mean, it seemed to me that Thompson first worked for one entity and then worked for another entity. How did they become joint? Sure. And when did this, when did the violation occur, the FLSA violation, alleged violation occurred? The FLSA violation, to your point, your honor. She began working in the summer of 2011, 10, and she worked for, because she was hired, what she thought was a company called Security Atlantic Mortgage. She was hired actually, I apologize, in 2009, June of 2009. She was hired, what she believed to be, a company called Security Atlantic Mortgage. However, when she was brought into training, she was told by the head of the training department, well, I'm from Ariah Mann, where's sister company? We're somehow there's some connection between Ariah Mann and Security Atlantic. Okay, so she continued to work with her colleagues for years. She's been working hours. But a sister corporation is not necessarily a joint. I agree. I agree, but there's a limit to what a worker and a cubicle who processes paper could really know about the connection. She hears things, she sees things, but if you're asking her to know a lot more than that, it's unrealistic, because she's just doing her job. Okay, but you're the one who wrote the complaint. Correct. And we're basing this on what's said in the complaint. What she told me and what she knows, I know nothing about this. Well, I know, but you wrote the complaint. Correct. You're a lawyer. Yes. You understand what a joint relationship is. Yes. So what do you say in the complaint to the shows that they were joint companies? We say that this company that we say elaborately that REMN became the face of SAMC after the HUD investigation of the mortgage line. So why are there separate employers? You have Atlantic Security up until February of 2010, and then you have REMN after that. Because we allege that even after that point, we allege that underwriters will continue to get checks made with a pay or what security Atlantic. They continue to make these checks paid to the people at the same time when they purportedly weren't operating anymore. So that's a fact, and there it is. And now to the what's the security Atlantic defunct now? We don't know that. This is what the judge found without any evidence. We didn't allegedly in our complaint. It was in a brief that they were the funk. And the judge for some reason adopted that as a finding of facts. Yeah, but the question is, if you're trying to allege joint employer, the fact that there might be some mixup on the check is payable to this person, from this entity and so forth, isn't what's going to be the critical fact in determining joint employer. Obviously there's more to it than that. So what have you allege other than that per chance? We're right. We are led to the same management continued to be the same management. But that's not joint. We're we're talking about joint. But we're saying that there was a continuity from the very beginning that was talk of already a man in SCMC as one item. From the very beginning, she was told this. She was told this. She's not in the board meeting. She's not in the room. She's told this. And then what do we see? We see from her from the fact that she could relate to me. And I can only relate to what she says at a limited role. We see a transition of sorts. We see that notwithstanding this alleged transition, SCMC, a part of the fund company is still writing checks to the employees. That's a critical, critical factor in employer relationship. Payment is the most fundamental factor in employment. And unemployment relationship. The court has said this in covering converses versus the MBA. So the saying that there was things happening along the way and we just need discovery to sort this out. And we're going to need discovery to find out if there's liability of each of these companies. We're going to need discovery to address the successorship issue. We're going to need discovery to find out who these owners are and where they belong. Joint employer is just simply another piece that will come out in the same discovery. There will be no additional burden put on these parties to answer the questions that really are leading conclusions based on the same facts. And enterprise in this court, who will then enterprise that if there's a commonality of control then there's joint employer. That will come out in the same exact discovery. There will not be an additional burden on this company. These are you need joint employer to get back to SAMC to make SAMC REM and responsible for you playing at AMC? It's critical because if we don't get that and if we don't get the individual employers I don't know what these individuals have in terms of wealth. But it's critical because if we don't can't connect it and maybe we can't and so be it. We'll live with the results. But if we can at least take a shot at the issue then that whole period is going to go is lost. And it's lost and we are we feel based on what we've heard that there is some monkey business going on here. That all of a sudden REM and appears and it says we are not which effectively becomes the face. The face of SAMC but all work in progress goes to them. The same management continues. Nothing changes. What I'm saying is I wish I had some more facts on joint employer. We have some. I think we have enough in this context based on traditional experience, based on context and based on common sense, which probably talks about as being the touchstone of what the judges should be doing when assessing these things. To have that piece part of the assessment and look this quite as well multiple times that's in our brief. That employer, there could be multiple employers of an employee at the same time. And that this goes on all the time. There's all kinds of machinations. And if we can't at least nail it down, you're getting an SAMC sort of a get out of free jail card. And there's no reason to with this case. It just isn't. All right. Thank you very much. Here are a few more. Thank you runners. Good. Thank you. Thank you, Your Honor. May it please the court. My name is Ari Karen. I represent the defendants in this matter. I think what plaintiffs counsel just said told you much of what the district court found problematic. Take a shot. That's not what the Supreme Court has said you can do is take a shot. You don't just do to throw things against a wall anymore, make inclusive allegations. Well, you're not talking about an employee who. Abinicio has access to all of this information. There's certainly there seem to be sufficient allegations with regard to individual liability. I mean, it's a small public privately held company. And these are two of the principles. Yes. When I would add an asset rhetorically, I'll answer that question. But what I'm referring to is the way the complaint drafts it. The complaint conflates. Raymond and SMA Sam C. First of all, it treats them as one entity throughout the entirety of time without sufficient facts establishing either successor liability under any standard of any court or joint liability status. What is one to infer when there's confusion on both sides of the, I guess it's February 2010 divide, right? I mean, whether you go from that point into the past, that point into the future, there seems to be an issue that there is a management presence. R E M N before SMA C continues after that date with that confusion. What what's a plaintiff to do? Well, I think the confusion is actually created by the complaint, not by the facts. And I think that's the problem of the district court found. The district court specifically said in its order, dismissing the first complaint. And I will read from it the appendix, which is at 85 of the joint appendix specifically said and told the plaintiff exactly what she needed to do. The judge said plaintiff addresses her claims to defendants collectively without specifically alleging any employment relationship with each. And then further in this paragraph, plaintiff does not, however, alleging any specific facts connecting her employment to each name defendant. Without such specific facts, both the court and defendants are unable to determine the extent to which any of the name defendants could be liable. That was the problem with her complaint and she never fixed it. Do you think that there is at least a viable FLSA claim here? It's just a question of identifying who the employer is. I don't even know from the complaint because there's no fast. She said she worked more than 40 hours without receiving overtime. Isn't that enough to say to an FLSA claim? Not necessarily at all. In other words, there's conclusive assertion. In looking at an FLSA claim and again, the Supreme Court instructs us this with respect to context. It says that a district court has the power and should have the right to be able to look at a case based on its knowledge, based on the context of the case, and demand certain specifics so that it can manage its docket and prevent it from going to the court. What more do we need? Yeah. What more you would need in this case to stay an FLSA case? You can respond to Judge Rock's question. Go ahead. I was thinking the complaint or after on summary judgment. In the complaint, there have to be allegations at least. Not proof. There are allegations that she's not, that she worked more than 40 hours a week and was not paid overtime. There are allegations that she worked for the two companies. There are allegations that the two named individuals are the ones who are officers and run the companies. Now, isn't, doesn't that plead an FLSA claim? You're on our, let me address each one in turn. First of all, the allegations are that they were co-owners of SAC. They were co-owners. They, it's specifically, but they. Yeah, I think it believed, with all the respect around it, I do believe it said co-owners. And then in 2011, after she's already gone, it's the first time they've become officers at remin. There's no discussion of what their role was at remin. They just treat remin, REMN and SACMC as one, as if it occurred. But when you lead the complaint, it doesn't talk about any role they had at remin after she had, after SACMC essentially went out of business. Yeah, but you have to answer both questions, right? And because they're easily put together, was there, has there been an FLSA claim stated based on everything that's in there? And isn't it as simple as she claims that she worked overtime? She has the statement from one of the officers saying, I don't pay overtime to underwriters. There is the statement with regard to the two individuals that they are in charge of the hiring, the firing, the determinations with regard to compensation, and several other things. Isn't that enough for an FLSA claim? No, not after to employee Nickball, your honor. The reason why is, let me address the point of the comment that he's referring to one of the individuals, not both, by the way. That comment was made in June of 2010, after SACMC had ceased doing business, after she was now working at remin. But there's no allegation that when he, at the time, Mr. Chapman, made that comment, he had any role with remin whatsoever. There's no allegation as an officer. In fact, he isn't to come an officer according to the complaint until sometime almost a year later. So at that point, who is he? According to the complaint, he's nobody effectively. So would be asking anybody out there and saying, hey, do you pay overtime? I don't. That's not, he's an interference to be drawn from the allegation of the complaint that he was in the supervisory position. Why would she go to him if he is not her supervisor? Well, she doesn't. I don't think that is an inference you can fairly draw. You know, when you talk, when she talks about the role of these individuals, and I want to bring it back to some extent to the context and what's missing in the complaint, when you see an FLSA, I'm sure your honors have seen many of them over the past several years, you usually see allegations to talk about. This is what I experienced. When I worked over at SACMC, this is who supervised me. This is who I worked for. This is who hired me. This is the person I reported to, you know, I worked these many hours. This was my typical schedule. All those specific details. These are not hard things to alleged there. And everybody's common every day occurrences. None of them are here. And when you speak to that as to it pertains to this case, when you look at it, what you see here is what are the allegations against Mr. Chapman and Lamper Ella. One, that they were co-owners. We don't know what percentage ownership we don't know what they did. It doesn't, by the way, alleged they were responsible for hiring fire. Notice pleading is about, right? I mean, we're talking about notice pleading. Your clients are on notice with regard to what the claims are. It's not like they look at this and they go, oh my God, what could this ever mean? Exeter of 26 of the amended complain alleges that Lamper Ella and Chapman made decisions concerning security at Lanx and REMS day-to-day operations hiring, firing, promotions, personnel matters, work schedules, pay policies and compensation. Again, but that's quite different than being responsible. Made decisions that concerned. Any decision could ultimately concern. Are you familiar with our decision in Heymarger? Yes. So what, your honor, yes. How is that not controlling here? Well, I think what you're actually looking at here in this particular case, your honor, is the fact that when you look at the Supreme Court standard in Tompley and Ickball and you talk about general assertions that are naked and devoid of further factual enhancement, which is what we're talking about here. You can allege any of these generalities, give me specifics, some, any. And again, the district court has the power to address those specifics and require something, some meet on the bone, so to speak as you call it, before you subject parties to base this litigation. In this particular case, you've not you, your honor. I'm sorry. Plata has conflated completely the separate identities of these two companies. You can't read this complaint. For example, look at their brief and I believe it's on page. I think your honor, there is a connection here because since it is the individual liability presumed is based upon the existence of an employer relationship at the outset for me, they're one of the companies and we can't really determine that. Then you really can't determine the individual liability. In other words, this complaint. So if the entire time with both security Atlantic and REMN isn't there enough to say individual liability, I don't care who the actual employer is in that context, Chapman has individual liability, individual responsibility because he may decisions that affected that individual. Well, he may decisions concerning his liability is not vicarious. His liability is direct. That is true, but I would say that again, we don't know what his role was all together at REMN at all because there's nothing in the complaint that's in there. And isn't that what discovery is for? No, your honor. Respectfully discovery is after you've pleaded facts sufficient for the district court to determine. You say that it's not enough in this complaint to make really plausible on it to raise a plausible claim for relief. I think your honor in this complaint, you're talking naked assertions that are general in nature without further factual enhancement, which is what the Supreme Court said is not enough, especially when you look at the context of things. It should be pretty easy to plead. This is who I work for. This is to just say made decisions concerning. You could say that about any employee. You could say almost any employee makes decisions of any level with the there in your supervisor role or not that makes a decision concerning. That's pretty broad. What if he gave us a specific allegation that Chapman says I do not pay my underwriters overtime period statement made again after she was no longer working at a CMC where he was a co owner where he had some role. She's also alleging a claim against REMN for that period of time after it. But we don't know when again the individual liability and isn't that what discoveries for aren't you hiding the law here? Your honor, I don't think so. I think we filed a motion and District Court agreed with us. The District Court found that based on the District Court's experience handling FLSA matters and addressing what it expects to see in complaints of the sorts so we don't have parties brought into bear. It's not a question of suing everybody and sorting it out later. That's the Supreme Court guards against and suggests against in both Twomblia and Iqbal. But the Supreme Court. We have an underlying remaining claim against both the companies. Irregardless of the decision on joint liability individual liability, successor liability that there is a basic underlying FSLA claim that has been made that has not been if it was dismissed was not properly dismissed. Not based on the complaint, Your Honor. I can't envision what could or could not have happened. I've noted here also by the way to the extent that that and the reason why you know when you when you briefed it below you didn't this point wasn't argued. Actually, it was argued in the first motion to dismiss which the court actually adopted and I can raise it. It's page 47, report page 48 of our of the joint appendix where we specifically address this point that you're raising. And we said we said page 47 again specifically plaintiff does not allege what wrongs s.m.c. specifically committed or when such wrongs were allegedly committed in D in the complaint as pleb renders s.m.c. and remin virtually indistinguishable despite the reality. But you can actually on your you can't read that into the point because she treats them as one entity throughout the entirety she talks about simultaneous employment and then at some point she just refers to as defendants. So if I may when she says defendants you can't tell in the district court actually highlighted that in its order you can't tell whether you're talking about defendants remin because of its joint employer status its successor liability status or because of remin she doesn't make any allegation for example it's very simple and again I would note your honor that in the context of this. This court did this on some of the district court did not dismiss this and not give her leave to a man it specifically told her what to do what it expected what it wanted and she chose to pursue an appeal rather than add a couple of paragraphs if in fact she could have and I would suggest the fact she didn't is talent but go back to the question of whether there was a sufficiency alleged the only things alleged are if you look at the complaint very generic statements of I was employed I was exempt I was or I was not. I was treated as exempt I was not paid over time there's nothing in specifics as to tell me a little bit about what happened at each place and when she conflates the defendants as only refer to as quote defendants you don't know whether that's remin acting as remin as a quote primary liabilities the treated on the complaint or if it's remin simply by that virtue of the derivative liability associated with the theory of joint employer status was referring to the fact that the. District Court didn't rule on the direct liability issue I think the district court didn't if you look at page 85 of the appendix what the district court saying is exactly what we said is based on the way that they collectively treated this entire thing by throwing and lumping them on as defendants without having any discussion would happen at either place you can't tell what's alleged against either and I can point to that. What did the district court say the district court said yes runner the district court said bear with me for one moment. Plain if does not alleged any specific facts connecting her employment to each name defendant without such specific facts both the court and defendants are unable to determine the extent to which any of the name defendants could be liable that is the fundamental flaw with this complaint. It groups a bunch of people and entities all into one basket and then says they all did this and at the same time spouses different theories that make it unclear as to is remins let's talk about remin for example is remins liability simply derivative of the fact on the success ship or joint liability I I would request that the court look and see is there anything that specifically talks about remin it says remin did this wrong or that the. I see my time is up your honors if I may finish my answer good that remin did this wrong or S.A.M.C. did this wrong or here's what happened at S.A.M.C. or here's what happened at remin there's no discussion with that of whoever look at the plaintiff's brief on page 13 I believe it's 13 of their brief where they say yes we did and then they go through it and they they raised some issues and all the talks is about defendants defendants defendants without clarifying which defendants did what or when that is exactly what the district court was unclear about that's exactly what we're going to do. We were unclear about the reason to move to dismiss the reason why the court granted and they asked plaintiff to clarify she tried once she didn't actually try once she added no new factual allegations but rather legal theories obfuscating the issue even further and then when those the court again remained its decision the court dismissed the great skin leading us to be here even though she had leave to amend. May I please the court? I'm just going to simply ask the court respectively to to to look at the couple to show you all of course doing to look at the complaint which is replete replete with facts about remin individually. replete with facts about Mr. Lamperrello Mr. Chapman why they might be success why they are successors why there's a joint employer relationship after the case was dismissed by the district court which we think was improper but he the court said leave to appeal we went back to this time so we exhausted everything we can to get as much facts as we could to satisfy this heightened standard of specificity of the court required and we submitted it we submitted 76 paragraphs. I wasn't going to talk about this but since council did and he made references to complaints that he's seen that given specifics I've seen hundreds of complaints in this area this is what I do for a living this is one of the most specific complaints I've ever seen and prepared only because the court asked for it on a second. I can prime around so that's just not the case and if the court looks at their own precedent which we said in our brief this is extremely adequate the other thing is is that when the when the council states when defend say rather that there's nothing in here that says that remin is responsible for to her at least primarily and as you see is at least responsible primarily I just want to say this is a very important issue. I want to talk about that mind boggling each of them paid the woman that's the well they paid her not their employer so according to this district court and defendants she worked for a ghost. So would you say you have an FLSA claim against security Atlantic until February of 2010 and against rem after February at a minimum at a minimum that's a minimum. We also say that remin and we are right now you say they're joined employees and the specializes in the labrically laid out an individual's right right but I mean to suggest as the court each crime which she didn't work for anybody she's going right to be paid and she's going right to overtime is I don't know what to say I've never seen that before she worked for nobody ever done and the defendant says it's true now we know the defendant really doesn't believe that because even the defendant in their first motion to dismiss they didn't take that position because frankly it would have been a little embarrassing and bizarre to take that position and they didn't it's in our appendix they didn't get the judge for reasons that I can't surprise chose just the case against the two primary employers also not have to do that it comprehensible and finally and finally what Twombly which the defendant's have just talked about talks about is to look at each complaint based on context common sense and judicial experience the very things that this court I do lower court expects defendant to know to satisfy the threshold requirement to get some type of justice are facts that by definition the people who are protected by this law are not the people who could possibly know these facts the people who are not exempt are the workers the low level workers the people that know the facts like the judge asked for evidence of a business plan ownership percentages etc etc are the very people who this law is designed to protect but those are the very people that my definition are important to these meetings and discussions and access to records and and all of the things that this judge this the court is demanding to know before opening the door to the point of that the vice common sense that's what probably said look at the cases in context probably was a case involving in the vast case of antitrust very complicated discovery it all involved national security of the highest level the turning general was being challenged and the September 11th of course the Supreme Court said need a little more to hear do you want to wrap it up I'm sorry I apologize this is the biometric opposite of those kind of complicated issues this is fundamental and if the end of this court she's fed to sustain the district court I just saying this is not hyperbole this case is important not just from his comes but because it was basically send a message that the FLSA is a dead letter in this circuit I cannot believe the circuit court wants to do that and it has never good that has passed all right thank you you're on thank you very much the case was well-breathed and well argued we appreciate it have a good day we'll take it under advisemen