[00:00:00] Speaker 00: Case number 22-1733. [00:00:02] Speaker 00: Isaac Harris et al. [00:00:05] Speaker 00: Medical Transportation Management Inc. [00:00:08] Speaker 00: at Belen. [00:00:08] Speaker 00: Versus Star Transportation LLC et al. [00:00:11] Speaker 00: Mr. Andrei for the appellant. [00:00:13] Speaker 00: Mr. Kirk Batrake for the appellees. [00:00:16] Speaker 04: Good morning, everybody. [00:00:17] Speaker 04: Good morning. [00:00:24] Speaker 08: Good morning. [00:00:25] Speaker 08: John Claude Andrei on behalf of the Defendant Appellant's Medical Transportation Management. [00:00:29] Speaker 08: It's incumbent on me to begin here by stressing truly how extraordinary the District Court's order in this case was with respect to both Rule 23 and the FLSA. [00:00:40] Speaker 08: It is undisputed, this is in the District Court's own words, that the putative class members here were employed by 80 different transportation service providers, each of whom negotiated an individualized rate structure with MTM, [00:00:53] Speaker 08: Some were paid salaries, some paid hourly with overtime, others paid hourly without overtime, how much they were paid, whether they were paid for breaks, that many were employed by several different transportation service providers at different points in time, that even individuals working for a single transportation service provider were paid at different rates at different times. [00:01:14] Speaker 02: Indeed. [00:01:15] Speaker 02: So how would you recommend the court interpret C4? [00:01:23] Speaker 08: Yes, Judge Rogers. [00:01:25] Speaker 08: We would recommend primarily that the court interprets C4 as not permitting a quote unquote issues class. [00:01:33] Speaker 08: And we have a number of reasons why we think that's appropriate. [00:01:36] Speaker 08: In particular, if you look at the text of Rule 23. [00:01:38] Speaker 04: Can I back up and just read through? [00:01:40] Speaker 04: I don't want to. [00:01:41] Speaker 04: I'm sorry. [00:01:41] Speaker 04: I am sorry, but just to follow up on a question. [00:01:46] Speaker 04: Understand your arguments. [00:01:47] Speaker 04: We have lots on that on why you don't like the approach this report took. [00:01:51] Speaker 04: What do I think this is what Judge Rogers was asking, but she'll tell me if I'm incorrect. [00:01:56] Speaker 04: What do you think C four does affirmatively? [00:02:00] Speaker 02: I think C four is precisely what I was asking, and I thought you were starting to answer. [00:02:07] Speaker 08: C4 is what I would call kind of a severance provision or a pruning provision. [00:02:11] Speaker 08: And in fact, if you go back to the 1966 advisory committee notes when C4 was first promulgated, that's exactly what the advisory committee said. [00:02:19] Speaker 08: The advisory committee said that C4 is designed for the case. [00:02:23] Speaker 08: where damages are too complex and too individualized, but they should not defeat class certification. [00:02:29] Speaker 08: So once you have a damages class under Rule 23Cv3, you're not going to permit that class to or prohibit that classroom being certified because damages are messy. [00:02:40] Speaker 08: C4 allows the district court to sever off or prune off the damages and leave that for the end of the day. [00:02:46] Speaker 08: Of course, that's been reinforced time and time again since then, most recently in Tyson Foods, in Amgen, and in Comcast. [00:02:54] Speaker 08: So C4 does have work to do here. [00:02:56] Speaker 08: It's not as both plaintiffs and their amici say, rendered a nullity by our position. [00:03:01] Speaker 08: To the contrary, I think their position renders a free annulity because as this case illustrates, [00:03:07] Speaker 08: A district court can go all the way down the road to the earliest possible common question it can find, even though there's no predominance whatsoever with respect to the entire action, let alone any particular cause of action, the district court can go all the way down to this very preliminary question and say, oh, well, that's a common question. [00:03:24] Speaker 08: And it predominates as to itself. [00:03:26] Speaker 08: And so therefore, I'm going to certify that issues class. [00:03:28] Speaker 04: And that renders- So you agree that a court can under C4 [00:03:36] Speaker 04: separate, have a liability class, even if damages are going to have to be individually determined. [00:03:42] Speaker 08: Absolutely. [00:03:43] Speaker 08: I'd be applying to the Supreme Court if I said otherwise. [00:03:45] Speaker 04: But doesn't just the text of B3 already do that? [00:03:51] Speaker 04: For common issues of law or fact. [00:03:55] Speaker 04: I don't think they predominate. [00:03:57] Speaker 04: So whether that legal question, that common question of liability may predominate over what you call the messiness of individualized [00:04:05] Speaker 04: I think isn't that already exactly what? [00:04:09] Speaker 08: No, I don't think so. [00:04:11] Speaker 08: I think B3, as a matter of plain text, says you have to look at whether the issues of law in fact predominate. [00:04:18] Speaker 08: It doesn't separate out damages. [00:04:20] Speaker 08: It doesn't separate out things like in a fraud case, reliance. [00:04:23] Speaker 08: Reliance as a matter of law is going to be individualized. [00:04:26] Speaker 08: It doesn't separate out affirmative defenses. [00:04:28] Speaker 08: Those are all things that if there wasn't C4, that would preclude classification in those contexts. [00:04:35] Speaker 08: We're not advocating, as the reporter said, that you can't take those entire categories of cases out of classification, but our reading is that it just allows for a little pruning. [00:04:46] Speaker 08: I don't want to mince too many words with Judge Posner. [00:04:49] Speaker 08: He said carve out the joints. [00:04:51] Speaker 04: I don't know what that means, honestly. [00:05:00] Speaker 04: What I'm struggling with is B3 itself already assumes you're going to be focusing on certifying common questions because there will be individualized issues, whether it's [00:05:13] Speaker 04: damages or something else, but the common question will predominate. [00:05:17] Speaker 04: So it allows you to go ahead and certify the class based on certain questions. [00:05:22] Speaker 04: And then your position is that C4 tells the district court under B3, or presumably under, I don't know if it could do it under B1 or not, but we'll just focus on B3 here. [00:05:34] Speaker 04: Allows them to carve, [00:05:41] Speaker 04: other issues, you said maybe like an affirmative defense or something like that. [00:05:45] Speaker 04: So how what is the legal test for when there's been too much carving? [00:05:54] Speaker 04: I think that seems to be your position here. [00:05:55] Speaker 04: You don't people with the fact that words can carve out issues. [00:06:01] Speaker 08: To have a couple of responses, if I can go back to responding to your antecedent question and what you mentioned at the beginning of your most recent question. [00:06:07] Speaker 08: I think the answer to why common questions of law or fact doesn't deal with the damages concerned by itself and why you need C4 to help it out is because B3 talks about common questions of law or fact [00:06:22] Speaker 08: that predominate with respect to the controversy. [00:06:25] Speaker 08: The end of B3 talks about the controversy. [00:06:27] Speaker 08: In my view, that's the cause of action at minimum, if not the entire case. [00:06:32] Speaker 08: To go to your point about whether there is just too much pruning here or too much carving, I mean, absolutely there was. [00:06:38] Speaker 08: And so I don't want to swim away from our primary argument too much, because we do believe our textual reading is correct. [00:06:45] Speaker 08: But what I was trying to get at at the outset here is that [00:06:47] Speaker 08: But the district court did, and if this court were affirming, presumably in a published opinion, because this is your first impression of this court, it would be the most muscular application of C-4 that any appellate court has ever adopted. [00:06:59] Speaker 08: All of the other cases that plaintiffs rely on as framing supposedly the other side of the split that we're on the short end of here, all the other cases involve some common event that allegedly caused injury or some common practice [00:07:13] Speaker 08: that allegedly caused injury. [00:07:15] Speaker 08: And then the question in that proceeding was, did the defendant do it? [00:07:19] Speaker 08: And is the defendant legally responsible for that? [00:07:21] Speaker 08: That's not what we have here. [00:07:23] Speaker 08: We have this very early preliminary question. [00:07:26] Speaker 08: And I was trying to think about what other kinds of legal questions do courts deal with, where they can invite an early summary judgment motion under Rule 56, because summary judgment can be brought at any time. [00:07:37] Speaker 08: It's like preemption. [00:07:38] Speaker 08: It's not so much like personal jurisdiction, not so much like venue, not so much like formal noncommunities. [00:07:42] Speaker 08: Those are all early issues, too. [00:07:44] Speaker 08: But with preemption, oftentimes that cannot be resolved under 12b6. [00:07:48] Speaker 08: has to be resolved under rule 56, but the court deals with it early that way. [00:07:53] Speaker 08: That's what I think the district court should have done here instead of doing what it did, which is, again, carve out this little issue that has, that doesn't resolve any question of liability as to any cause of action, let alone the entire case. [00:08:08] Speaker 04: Sorry, but then that sounds like, again, all you're agreeing with is, [00:08:13] Speaker 04: C4 lets you just separate liability and you would say total liability, not this sort of threshold liability question that district court identified here. [00:08:22] Speaker 04: So you're saying the total question of liability and damages can be separated. [00:08:27] Speaker 04: But I thought you added, and correct me if I misunderstood, that something like affirmative defenses could also be severed. [00:08:34] Speaker 04: So what I'm struggling with is how would you write the legal test [00:08:41] Speaker 04: or an opinion that would say the liability damages severance. [00:08:47] Speaker 04: That's okay. [00:08:49] Speaker 04: Affirmative defenses. [00:08:50] Speaker 04: That's okay. [00:08:52] Speaker 04: This is not because right. [00:08:55] Speaker 08: I would say where I know I'm going over my worry about that. [00:08:59] Speaker 04: I think I'm sorry. [00:08:59] Speaker 08: I'm taking so much time just struggling where there is a recognized issue that is [00:09:07] Speaker 08: recognized as being necessarily individualized. [00:09:09] Speaker 08: So again, like I said, reliance from the defense's damages. [00:09:13] Speaker 08: That is what C4 is intended to do. [00:09:17] Speaker 08: And that is what C4 may be applied to. [00:09:19] Speaker 08: There is no such thing as a writ large issue class that allows, and you know, sticking with the carving of the joints, pruning analogy, Plane Samiki actually used a term that I like, you know, that you can't julienne in this regime. [00:09:33] Speaker 08: And I think, you know, that's what our district court here was trying to do. [00:09:37] Speaker 08: And so I think the opinion that the court would write would say, where there's a recognized individualized issue that otherwise would defeat predominance, C4 enables the [00:09:47] Speaker 08: to sever that off so that a class action may be certified. [00:09:51] Speaker 08: But that's not an issue class. [00:09:53] Speaker 08: Because in this case, what the district court did was pluck out this one very preliminary issue, leaving all these other questions down the street. [00:10:00] Speaker 08: What about just judicial economy generally? [00:10:02] Speaker 08: Pardon me? [00:10:03] Speaker 08: Judicial economy. [00:10:04] Speaker 08: So I don't think there's any judicial economy here. [00:10:07] Speaker 08: Either way, there's going to be, we don't know. [00:10:10] Speaker 08: Frankly, the district court didn't articulate exactly what plan it has for down the road. [00:10:15] Speaker 08: But is it going to be in a small group [00:10:17] Speaker 08: Is it going to be every one of the 800 computed class members coming in for a mini trial or a hearing on whether there actually is liability and then what the amount of damages reliability is for each one of those people? [00:10:32] Speaker 08: And so we're in the same place. [00:10:35] Speaker 04: I thought it was more clear than that. [00:10:37] Speaker 04: What the district court said is, look, on the question of questions of joint employer and contractor, your client [00:10:47] Speaker 04: MTM doesn't dispute that that's one answer. [00:10:51] Speaker 04: That doesn't need to be individualized. [00:10:53] Speaker 04: There won't be an individualized answer for that, that you would be a joint employer for some and general contractor for others and neither for some others. [00:11:01] Speaker 04: That will be one answer to both of those questions, either you are or you aren't. [00:11:05] Speaker 04: And then that will be answered and then all the individual actions that need to go forward will go forward, put aside the LSA thing over there too. [00:11:17] Speaker 04: Those will go forward as they need to, but at least this common cross-cutting question that could release MDM conclusively from any liability across the board in this action, that's what will go forward. [00:11:35] Speaker 04: Why is that a Julianne rather than a permissible cut? [00:11:39] Speaker 08: I think the problem is that we also have a superiority requirement here. [00:11:42] Speaker 08: And that requires that the district court order be superior, not maybe be superior, but actually be superior to proceeding with individual actions. [00:11:53] Speaker 08: And so the prospect that my client may get out of the litigation because they are found as a matter of law to not be a general contractor or a joint employer isn't definitively a finding that this method is superior. [00:12:08] Speaker 08: And even with respect to [00:12:10] Speaker 08: the issue of whether we're joining for a general contractor. [00:12:13] Speaker 08: It's frankly, it's messier than that. [00:12:15] Speaker 08: We don't think it's susceptible to the common proof, even that preliminary question. [00:12:19] Speaker 04: And so the district court found otherwise on that. [00:12:24] Speaker 04: It'll be subject to common. [00:12:25] Speaker 04: So that's kind of like that's [00:12:27] Speaker 04: We really hasn't been briefed for us to overrule that determination. [00:12:30] Speaker 08: Yeah, I'm willing to acknowledge you. [00:12:31] Speaker 08: The district court did say in his original order denying class 300B3, he did have a paragraph that said that at least with respect to joint employer or general contractor, common questions predominate. [00:12:45] Speaker 08: So you can quite go as far as saying that absolutely it's resolvable by common proof, but you didn't say that at least, you know, predominance is satisfied with respect to that. [00:12:54] Speaker 08: So we will think that as a given. [00:12:56] Speaker 04: But my point is... I thought that was superiority, but go ahead. [00:13:00] Speaker 08: Well, it's just more complicated. [00:13:03] Speaker 08: It's more messy. [00:13:04] Speaker 04: I'm sorry. [00:13:07] Speaker 04: I'm really trying to understand this because this seems very important. [00:13:11] Speaker 04: And so really what I'm trying to understand is, okay, if it's fine to separate liability and damages, it's fine to separate liability and an affirmative defense. [00:13:24] Speaker 08: Yes. [00:13:26] Speaker 04: Why isn't it, how do I know when it's a Julianne rather than a legitimate cut in your words? [00:13:30] Speaker 04: That is, why isn't it fine to separate the threshold [00:13:34] Speaker 04: Should MTM walk away from this? [00:13:37] Speaker 04: Is there any basis, threshold basis for liability? [00:13:41] Speaker 04: Are you connected to this problem that they're alleging against a lot of other companies at all? [00:13:45] Speaker 04: Yes, no. [00:13:47] Speaker 04: Why is that not a permissible decision? [00:13:52] Speaker 04: And then the rest of just like, it's kind of like a liability, although it's sort of stage one liability. [00:13:58] Speaker 04: And then we let the rest of it go, as opposed to liability damages, clean cut. [00:14:02] Speaker 08: Because what the court has carved out is not, first, a recognized exception to something that is susceptible to common proof. [00:14:12] Speaker 08: So again, it's not like an affirmative defense. [00:14:13] Speaker 08: It's not like damages. [00:14:15] Speaker 08: It's not like reliance on the fraud context. [00:14:17] Speaker 08: So it's not recognized. [00:14:18] Speaker 08: And then on top of that, even if it's resolved in plaintiff's favor, there are still all these additional proceedings that need to occur that go to liability. [00:14:28] Speaker 08: And so this is what the district court julienned out here is just the first sliver of potential liability for my client. [00:14:37] Speaker 04: And that is just too far away from that wouldn't happen under your theory where reliance could be a reliance class could be certified. [00:14:46] Speaker 08: No, because it will want to be because it's recognized as an operational law that reliance has to be individualized. [00:14:53] Speaker 08: And so what that class would look like is that you actually certified all the [00:14:58] Speaker 08: all the issues, again, I'm writing that term, all the questions, all the questions up to reliance. [00:15:06] Speaker 08: And it may be that the defendant is let off the hook at that point, because, you know, whether according to some judgment or in a joint trial, determines that if there was no misstatement, or there was no duty, no misstatement, all the things that go to fraud, and then you have the reliance and damages trial. [00:15:22] Speaker 04: So it sounds, is it just a, so you don't, [00:15:26] Speaker 04: So you don't insist that liability versus damages, that's the only line. [00:15:30] Speaker 04: And you recognize, I guess, with this reliance thing that even within a claim, a fraud claim, part of that fraud claim itself can be divided up so that all the elements except reliance can go as a class and then reliance can go out. [00:15:48] Speaker 04: So it's okay to divide up even pieces of a single claim [00:15:53] Speaker 04: under using C4, the C4 muscle that it gave to B3. [00:15:58] Speaker 04: And so why is this, the whole reason this division isn't okay is because there are still more than, there's more than one thing to be decided after this is resolved under the cost of action. [00:16:12] Speaker 04: What, I'm struggling again with the legal tax. [00:16:14] Speaker 08: It's too far away from actually establishing liability because it doesn't, it doesn't go, it doesn't go to the question of whether there actually was an FLSA violation. [00:16:23] Speaker 08: It basically just asks whether my client would be vicariously liable for some FLSA violation by one of the 80 odd TSPs that employed 800 different drivers. [00:16:37] Speaker 04: And so in all of that, it's going to be, you know, I guess, but too far away isn't really something we can write into. [00:16:42] Speaker 04: I guess at this point into an opinion. [00:16:45] Speaker 04: So, [00:16:47] Speaker 04: Is it whether the weight of the claim qualifies for class action, but just one issue doesn't? [00:16:56] Speaker 04: Or what if there were sort of two, three issues that did meet all the 23B3 requirements, but two did not? [00:17:03] Speaker 04: Would that be an okay use of C4? [00:17:05] Speaker 08: I think it depends on what the issues are, but probably. [00:17:08] Speaker 04: It's hard to have a rule that depends on what the issues are in every claim. [00:17:11] Speaker 08: Again, this is our primary argument that we're probing here on how to interpret C4. [00:17:16] Speaker 08: I can go back to kind of what I started with, which is our backup argument. [00:17:19] Speaker 08: I think at minimum, this court can look at all the cases the plans rely on. [00:17:24] Speaker 08: And what you can see is that, and I don't like the phraseology, this is too far. [00:17:28] Speaker 08: This is insufficiently proximate to the liability determination. [00:17:32] Speaker 04: Well, it's sort of hard to write opinions on the no one has ever done this because there was a time when no one had ever divided liability and damages and the court did that for the first time and everyone agrees that's fine. [00:17:43] Speaker 04: Um, and someone for the first time said, well, I'm actually going to divvy up this claim here and peel off reliance. [00:17:50] Speaker 04: And that was fine. [00:17:51] Speaker 04: So the fact that they're doing something in a form that hasn't been done [00:17:56] Speaker 04: before it's not a legal, that's what I was trying to give you. [00:17:59] Speaker 04: Is it a weight of the action? [00:18:01] Speaker 04: Is it the three versus two? [00:18:03] Speaker 04: Is it, you can only do peel off one thing. [00:18:06] Speaker 04: I just, I think I really am trying to grapple. [00:18:10] Speaker 04: I think I understand some of what your concern is here. [00:18:14] Speaker 04: And there aren't a lot of examples at least that I could find that look like this type of divvying, but I'm really struggling [00:18:22] Speaker 04: with how one writes, you want sort of a clear legal rule against this as opposed to analyzing district court's discretion to sort of manage really big funky litigation that's come into their courtroom. [00:18:38] Speaker 08: No, I understand. [00:18:39] Speaker 08: And again, I think the opinion that would give clear guidance would be one that said that where there is a recognized issue that otherwise would defeat predominance as to [00:18:51] Speaker 08: cause of action for an action as a whole, that a court may use C4 to sever off that predominance destroying issue so as to proceed with a class provided that all the other prerequisites are applied or satisfied. [00:19:09] Speaker 08: And that would be how we urge the court to interpret C4. [00:19:13] Speaker 08: Again, the practicalities of it, to go back to your question, [00:19:16] Speaker 08: But if it's seven to two, we actually do have that back pattern. [00:19:19] Speaker 08: We think that the Martin case from the Sixth Circuit is wrong because it articulates a very loose standard for what C4 can be used for. [00:19:27] Speaker 08: But at least in that case, the court certified seven questions and then left three at the tail end. [00:19:35] Speaker 08: And we think that's wrong because of the way it divided things up on our first argument, our primary textual argument. [00:19:40] Speaker 08: But it shows how here, the district court severed off one very early issue [00:19:46] Speaker 08: and leave the rest for the end. [00:19:47] Speaker 08: Again, it's too far, insufficiently proximate. [00:19:49] Speaker 08: I know I'm not offering you the best terminology to put in your opinion, but all the plaintiff's cases are like that, whether it's Russell from the Third Circuit, which again, we don't love, all these cases have exam. [00:19:59] Speaker 04: I'm not asking you to love things. [00:20:00] Speaker 04: I'm asking you, how do they violate your test? [00:20:05] Speaker 04: How do you think the Sixth Circuit, we're not bound by the Sixth Circuit, if they're the ones, how do they violate the test? [00:20:10] Speaker 04: Because they are at least the great weight of the claim was left in class status. [00:20:16] Speaker 04: Um, and just a couple, like your reliance example, a couple issues were armed off. [00:20:23] Speaker 08: So the six or example, it would violate my test because there, the court left the fact of injury, proximate cause and damages all for individualized determination. [00:20:32] Speaker 08: You know, under first principle that under our reading, effective injury and the proximate cause inquiries in the court severed them off for a reason because they were predominance destroying as to the overall causes of action. [00:20:45] Speaker 04: And so you're fine with predominance destroying issues being cut off damages against settled ones, recognized ones. [00:20:53] Speaker 04: Um, I think again, settled and recognized doesn't work because courts have to, some courts have to do it for the first time before it's settled or recognized. [00:20:59] Speaker 04: We can't, we can't sort of live in a world where we can only repeat what someone else has already done. [00:21:03] Speaker 08: Oh, I understand. [00:21:04] Speaker 08: I mean, ultimately if, [00:21:10] Speaker 08: If the issue is one that is individualized, then the presumption should be that it is predominance destroying and the class cannot be certified. [00:21:22] Speaker 08: This argument is not particularly satisfying. [00:21:24] Speaker 03: But from the defense side, in many instances, when you have these class actions and there's a challenge to whether or not you should certify the class, there's always this argument about the individualized damages after you find liability. [00:21:36] Speaker 03: But they believe that the class should be destroyed because you would have to engage in those individualized damages. [00:21:42] Speaker 03: Oftentimes, a trial judge will say, no, let's go forward. [00:21:45] Speaker 03: We've got the commonality. [00:21:46] Speaker 03: We've got predominance. [00:21:47] Speaker 03: priority and the class should go forward. [00:21:50] Speaker 03: But you can take care of the individualized damages another way. [00:21:52] Speaker 03: For example, having a special master deal with those particular issues along the way. [00:21:57] Speaker 03: So why wouldn't this be different kind of using the I mean the same thing kind of using that analogy for how a defense side would try to not have a class go forward? [00:22:08] Speaker 08: Because again, this is a preliminary question that [00:22:11] Speaker 08: only and potentially only resolve the liability question in one direction, admittedly in in our direction. [00:22:18] Speaker 03: But to Judge Millett's questioning, when you put forward issues, you're hoping to kind of shave off those who should not belong, like get some initial liability determinations by making definitional constructions and things of that nature in the [00:22:39] Speaker 03: litigation so that you know what you're going to be trying eventually. [00:22:44] Speaker 08: I think we do know what we'll be trying here eventually. [00:22:48] Speaker 08: We just don't know what it's going to look like. [00:22:53] Speaker 03: I guess I should say it better, who and what will still be part of the lawsuit? [00:23:00] Speaker 08: After any preliminary determination in this particular case? [00:23:03] Speaker 08: Yes. [00:23:04] Speaker 08: So you will have 800 [00:23:07] Speaker 08: drivers from 80 different TSP's will remain is whether there actually was an FLSA violation. [00:23:14] Speaker 08: Because some drivers, they had a set schedule. [00:23:17] Speaker 08: Some drivers had a split schedule. [00:23:18] Speaker 08: Some drivers were on call. [00:23:20] Speaker 08: And all those variables will impact whether there actually was an overtime wage and hour violation. [00:23:26] Speaker 08: And then what is the quantity or the damage associated with that? [00:23:29] Speaker 08: Again, we're fine if the court had just said, well, we're not fine with any certification on the front end of this equation. [00:23:37] Speaker 08: If this case had been amenable to classification and the court just severed off the last damages calculation, that would be fine because courts do do that, as you know, to just trials all the time in Comcast, Amgen, Tyson say that courts can do this. [00:23:49] Speaker 08: And again, going back to the 1966 advisory committee notes, that was the intent of C4, what was originally promulgated. [00:23:56] Speaker 04: Can I fill up on your question? [00:23:59] Speaker 04: So if this goes forward, [00:24:03] Speaker 04: I get there's going to be a lot of fighting between the direct hire companies and these employees. [00:24:13] Speaker 04: What questions are left to be decided? [00:24:15] Speaker 04: Let's just assume, and I'm sure you'll have lots of arguments against this, but let's just assume you're found to be a joint employer and or contractor for these purposes so that you at least have potential liability. [00:24:28] Speaker 04: How many questions are left to connect you to, say, one of these direct hire companies, one of the, I don't even know what to call them, the driving company? [00:24:36] Speaker 09: The Chispies. [00:24:39] Speaker 04: All right, so the service providers. [00:24:42] Speaker 04: How many issues are left between you that would make you responsible or not for what the service, say the service, again, I'm assuming all kinds of things here, service providers screwed up somehow. [00:24:53] Speaker 04: How many issues are left just as to your liability? [00:24:56] Speaker 08: My apologies. [00:24:57] Speaker 08: I have to explain the question a little bit because the TSP's were not sued by the plaintiffs. [00:25:04] Speaker 08: We brought them in as third party defendants, but they're effectively stagnant. [00:25:08] Speaker 08: And so if the district court were to find either on summary judgment or through a joint trial that we are a joint employer or general contractor, then we are vicariously liable [00:25:21] Speaker 08: or whatever violations are found to have been committed by the various TSPs. [00:25:28] Speaker 08: And so the TSPs are basically witnesses that we will be using to try to fend off any liability to establish that they're... But you're automatically vicariously liable. [00:25:38] Speaker 04: Vicariously, excuse me, it's too early in the morning, so vicariously liable. [00:25:43] Speaker 04: Correct. [00:25:44] Speaker 04: There won't be any more questions about what you did or didn't do. [00:25:48] Speaker 04: It's all going to be about what [00:25:51] Speaker 04: these what you call TSP's did or did not. [00:25:54] Speaker 08: Correct. [00:25:55] Speaker 04: There's no way. [00:25:56] Speaker 04: Okay. [00:25:56] Speaker 04: Because it's, if you're strictly liable for anything that they did. [00:25:59] Speaker 04: So really this just resolves directly sort of your status. [00:26:05] Speaker 04: And then all the fighting is to be whether anything went wrong or not. [00:26:09] Speaker 08: And the extent to which it did if something did go wrong, which then gets really messy. [00:26:14] Speaker 08: And that's why, you know, earlier on, I analogize this to preemption, where, you know, I've had cases where, you know, this person, I'm not going to grant your motion dismiss here, but go ahead and do it on summary judgment, because it's that threshold question that the court can resolve. [00:26:27] Speaker 08: And if it goes in the defense's favor, the case is over. [00:26:30] Speaker 08: If it doesn't, then you proceed with the case in the normal course. [00:26:33] Speaker 02: What do you say? [00:26:33] Speaker 02: Oh, let me ask. [00:26:34] Speaker 02: Go ahead, Judge Charles. [00:26:36] Speaker 03: I was just going to ask, what do you perceive C4 to be allowed for? [00:26:40] Speaker 03: I mean, what are some examples that you say this rule can be used for? [00:26:44] Speaker 08: For C4? [00:26:45] Speaker 08: So absolutely damages, again, that's what the 1966 advisory committee does. [00:26:49] Speaker 03: Anything other than damages? [00:26:50] Speaker 08: Yes, no. [00:26:50] Speaker 08: Affirmative defenses. [00:26:51] Speaker 03: OK. [00:26:52] Speaker 08: In the fraud context, reliance. [00:26:54] Speaker 08: I'm trying to think. [00:26:56] Speaker 08: I haven't thought of every example. [00:26:57] Speaker 08: And those are three that- Sorry. [00:26:59] Speaker 03: And you're saying that it's very open-ended. [00:27:02] Speaker 03: I'm sorry. [00:27:05] Speaker 08: No, I'd have to disagree with that. [00:27:07] Speaker 08: It's not open-ended. [00:27:08] Speaker 03: When I say open-ended, meaning that it's broad language. [00:27:11] Speaker 03: When appropriate, that's discretionary right there. [00:27:15] Speaker 03: An action may be broad or maintained as a class action with respect to particular issues. [00:27:20] Speaker 03: That's what I mean by open-ended. [00:27:21] Speaker 03: It's a broad term. [00:27:23] Speaker 08: But under our reading, because you have to satisfy predominance with respect to at least an entire cause of action, then C4 can't swallow [00:27:35] Speaker 08: be three and swallow the predominance requirement. [00:27:37] Speaker 08: And I guess that's also where our fight is. [00:27:39] Speaker 08: And to be clear, claims to Miki say that we are advocating for an entire action rule for predominance. [00:27:45] Speaker 08: We are not. [00:27:46] Speaker 08: Five times in our opening brief, we said that the predominance inquiry needs to be conducted first, and it needs to be satisfied with respect to at least a cause of action, not the entire action, if you have multiple claims like you do here. [00:27:58] Speaker 08: And then C can be used to do that pruning. [00:28:03] Speaker 04: I know that- Judge Rogers, did you have a question? [00:28:06] Speaker 02: Yes, I did. [00:28:09] Speaker 01: Following up on Judge Tile's points in her questions, and given our standard of review, in light of district court discretion, is your position [00:28:32] Speaker 02: inimical to a remand on the issues basically you raised, but also were this court to find that the reasons given by the district court do not withstand scrutiny. [00:28:56] Speaker 02: In other words, a lot of your answers [00:29:01] Speaker 02: both to Judge Millett and Judge Childs. [00:29:04] Speaker 02: It seems to me we're arguing that the district court misunderstood the issue he was pruning out as being simple. [00:29:21] Speaker 02: Are you this or are you that? [00:29:23] Speaker 02: And if you're not, the case is over. [00:29:27] Speaker 02: What I hear you saying in some of your answers is there's a lot more to be done. [00:29:34] Speaker 02: And so judicial economy here is fanciful. [00:29:40] Speaker 02: And if that's the main reason the district court did what it did, then we would send it back for the district court to reconsider, not necessarily by defining a rule of our own. [00:29:57] Speaker 02: but simply indicating that the district court has to give this another look in light of some of the limitations that the questions have identified through your answers. [00:30:16] Speaker 08: I think I hear you asking Judge Rogers if we are amenable to a remand in the event that we don't get a full on reversal. [00:30:26] Speaker 08: I'm not trying to put words in your mouth. [00:30:29] Speaker 02: I don't know why people have so much trouble with my questions, all right? [00:30:34] Speaker 02: But I am asking that. [00:30:36] Speaker 02: The alternative here to our adopting a rule [00:30:41] Speaker 02: would be to send it back to the district court, leaving open the possibility that it could identify rationales for proceeding as it has suggested. [00:30:57] Speaker 02: But the rationales that it has offered are inadequate. [00:31:03] Speaker 08: Yes, I understand, Judge Rogers. [00:31:04] Speaker 08: And so our primary position is that, you know, [00:31:08] Speaker 08: the fifth circuit case articulated articulated the rule probably the better than I did today. [00:31:14] Speaker 08: So if you want to look to that, that's where I'm pointing. [00:31:17] Speaker 08: But as to your question, Judge Rogers, you know, I know you were on our rule 23 up panel. [00:31:21] Speaker 08: And what we told you in a 28 J letter then was that, you know, even if this court were to say adopt, [00:31:28] Speaker 08: follow the guidance of the Third Circuit's Russell case, which has a nine-factor squishy test from the ALI that gives this court broad discretion. [00:31:37] Speaker 08: And we pointed out that even under that test, we would win this appeal because this court would have to vacate Judge Metta's order. [00:31:44] Speaker 08: And I stand by what I wrote in that letter. [00:31:46] Speaker 08: So absolutely, this court is unwilling to chart a hard path on what C4 means and disavow the notion of an issues class. [00:31:57] Speaker 08: then at minimum, vacator and remand would be appropriate. [00:32:00] Speaker 08: And I know I'm aware of my time and I haven't even touched the FLSA issue here. [00:32:05] Speaker 08: And so the court's indulgence, I'd like to quickly pivot to, unless- I'm being rude again, I apologize. [00:32:12] Speaker 04: So you said you like the articulation from the Fifth Circuit, but I don't know how one gets out of that articulation that you can sever out things like affirmative offenses, reliance, [00:32:23] Speaker 04: Um, that seems to me a much more wooden rule than what I'm hearing you articulate today, which seems to be sort of more nuanced, um, just be nuanced and still have important substance. [00:32:36] Speaker 04: So Thomas interpreting, but, um, that, that one seems to me a bit of a, um, you know, meat cleaver to build on judge Posner's language as opposed to anything surgical. [00:32:48] Speaker 08: So, [00:32:50] Speaker 08: The 5th Circuit actually was the reliance example I was giving you where what the 5th Circuit said you could do to the fraud claim involving tobacco. [00:32:59] Speaker 08: The 5th Circuit said there the reliance issues predominated over the other issues in the case. [00:33:06] Speaker 08: And then it said, you can't carve out the reliance issues and certify under 23C4 based on the complexion of the case in total. [00:33:14] Speaker 08: I think that this court could adopt what the circuit did there and be consistent with what I've been saying this morning, that there are, again, certain recognized... The recognized is really hard. [00:33:26] Speaker 04: I'm sorry on that, really. [00:33:28] Speaker 04: That makes it easy. [00:33:29] Speaker 04: We can say that's okay, but that doesn't tell district courts. [00:33:32] Speaker 04: It's really unfair to district courts because we don't say what other things are recognized until someone recognizes them and people say that's okay. [00:33:40] Speaker 08: I guess this is what we review, whether the district court was correct. [00:33:44] Speaker 04: Well, and someone will say, well, it hasn't happened before, so it's not recognized, but it could be perfectly sensible and fit fully within the rationality you're advancing. [00:33:52] Speaker 08: I understand. [00:33:55] Speaker 04: All right. [00:33:56] Speaker 04: Did you want to, we'll give you a couple of minutes on the FLSA issue. [00:34:00] Speaker 08: Yes, thank you. [00:34:03] Speaker 08: What I was saying at the outset about the district court's order being unlike anything that circuit court has upheld before is even more true with respect to the FLSA. [00:34:12] Speaker 08: So with respect to 23C4, the district court at least purported to have the cover of the majority of circuits that have interpreted C4. [00:34:20] Speaker 08: With the FLSA, the district court adopted the minority view, and in fact went even further. [00:34:25] Speaker 08: One common thread that runs through all of the cases on both sides of the divide [00:34:30] Speaker 08: and regardless of test applied by the various circuit courts that have interpreted what similarly situated means, the common thread there is that in each one of those cases, there are allegations of a common FLSA violating practice or policy. [00:34:46] Speaker 08: We don't have that. [00:34:48] Speaker 08: And that's undisputed. [00:34:50] Speaker 08: The plaintiffs originally alleged that in their complaint. [00:34:52] Speaker 08: There was discovery and the discovery proved that to be false and Judge Mehta himself found [00:34:57] Speaker 08: But those allegations didn't withstand scrutiny. [00:35:01] Speaker 08: And that is what led to him to reject a B3 damages class for lack of predominance. [00:35:06] Speaker 08: So to go ahead and fail to decertify, right? [00:35:13] Speaker 08: Because the FLSA is different. [00:35:14] Speaker 08: There's conditional certification. [00:35:16] Speaker 08: To fail to decertify an FLSA collective where there is no common FLSA violating policy or practice and do so on the basis of, again, this one similarity. [00:35:28] Speaker 08: Not a host of similarities. [00:35:30] Speaker 08: It's just contrary to what every other court or bill in this country has counted. [00:35:34] Speaker 04: Can I just ask you a procedural question? [00:35:36] Speaker 04: The district court denied certification under 1292B for this issue. [00:35:41] Speaker 04: In deciding whether to exercise pendant jurisdiction, would we first need to ask whether we thought the district court abused its discretion in denying certification under 1292B? [00:35:58] Speaker 04: Is that part of what we think about in doing this? [00:36:01] Speaker 04: Or do we just say, thanks for playing district court judge. [00:36:03] Speaker 04: We're plowing straight ahead on our own. [00:36:06] Speaker 08: I would say the latter, your honor. [00:36:07] Speaker 08: I mean, even though Gilda Marx recognizes- Then what's the point? [00:36:10] Speaker 08: Well, I think it's to give the district court the chance of saving this- To say yes, but if it says no, we'll all ignore it? [00:36:17] Speaker 08: It's to give the district court the chance in the first instance to save this court from doing the work. [00:36:21] Speaker 08: I mean, and that's, you know, when you've articulated whether a party- That's not usually how it works, actually. [00:36:25] Speaker 04: That's why those things are generally reviewed. [00:36:28] Speaker 04: under discretionary standards is that we actually put the first, it's not that we're like, we're too busy, you go do it. [00:36:35] Speaker 04: They're pretty busy in the district court too. [00:36:37] Speaker 04: It's that they're the closest to litigation and they have the best vantage point and they're smart and learned and can bring their best judgment to bear. [00:36:48] Speaker 04: And we don't lightly in other circumstances brush that off. [00:36:51] Speaker 04: So I'm just a little surprised that we would just pay no heed to it in this context. [00:36:57] Speaker 08: It is one of the eight Gilda Marx factors, whether a party has attempted to circumvent 1292B. [00:37:02] Speaker 08: You haven't done that. [00:37:04] Speaker 04: You're trying to circumvent the result of your 1292B application. [00:37:11] Speaker 08: If a district court in denying 1292B had said certain things that were relevant to the Gilda Marx factors, [00:37:18] Speaker 08: It'd be hard for me to tell the court to just ignore them. [00:37:20] Speaker 08: But as far as the legal tests for pen and appell jurisdiction vis-a-vis a 1292B certification, they are different tests. [00:37:27] Speaker 08: This court has plenary jurisdiction, as guided by Swainton and Gilded Marks, to decide whether to exercise pen and appell jurisdiction. [00:37:34] Speaker 08: And as we laid out in our brief, at least five, if not six, of the Gilded Marks factors favor us here. [00:37:40] Speaker 08: And when you add to that the uniqueness of this case, where unlike the second certificate case, [00:37:48] Speaker 08: I forget, perhaps it was the fourth. [00:37:50] Speaker 08: Plaintiffs cited two out of circuit cases where there was a 23, a rule 23 ruling and an FLSA ruling, and those circuits denied pen and appellate jurisdiction, declined exercising. [00:37:59] Speaker 08: What sets this case apart and makes it unique, and I think makes pen and appellate jurisdiction to reach the FLSA issue easy, is that Judge Metta expressly tied them together. [00:38:08] Speaker 08: And so it would be- Well, not on the merits. [00:38:11] Speaker 03: But should they have been interwoven? [00:38:12] Speaker 03: Go ahead. [00:38:13] Speaker 03: But should they have been interwoven like that? [00:38:16] Speaker 08: Should they have been? [00:38:18] Speaker 08: I do think they rise or fall together as a practical matter, but the standards are different. [00:38:25] Speaker 08: And he didn't engage in a separate analysis as to both or explain how, even though they're different, I'm getting to the same place. [00:38:33] Speaker 08: He literally said, the question and the answer, it's the same for both. [00:38:38] Speaker 04: And so given that he did that- We said it's to the economy of litigation. [00:38:42] Speaker 04: That's what he said it to. [00:38:43] Speaker 04: It's certainly not the same legal answer or even the same. [00:38:46] Speaker 04: legal analysis. [00:38:47] Speaker 04: That's why you spent 19 pages, the same number of pages on that merits issue as you did on the merits issue under 23. [00:38:54] Speaker 04: If it were the same analysis, it would have been, see what we said on the previous pages. [00:38:59] Speaker 08: No, no, no, that's right. [00:39:00] Speaker 08: Because the tests are different. [00:39:04] Speaker 08: Rule 23 is a little bit more demanding, but at least in this case, when [00:39:09] Speaker 08: we believe that he erred and committed the same error that they did with C4. [00:39:13] Speaker 08: And he expressly tied his two analyses together without specifically accounting for whatever differences there may be. [00:39:20] Speaker 08: I think that that's kind of, you know, except this court needs a plus factor to push it over the edge and exercising medical jurisdiction, that's a unique plus factor that's absent from other cases. [00:39:30] Speaker 04: We've kept you up a very long time. [00:39:31] Speaker 04: Thank you. [00:39:32] Speaker 04: Do my colleagues have, Judge Rogers or Judge Chiles, have any more questions? [00:39:39] Speaker 04: Do you have any questions, Judge Rogers? [00:39:41] Speaker 04: No, Judge Millett. [00:39:43] Speaker 04: Okay. [00:39:43] Speaker 04: All right. [00:39:44] Speaker 04: Thank you very much for your time. [00:39:44] Speaker 04: We'll give you some time for rebuttal. [00:39:54] Speaker 07: Good morning. [00:39:55] Speaker 07: Good morning. [00:39:55] Speaker 07: May it please the court, I'm Michael Kirkpatrick. [00:39:57] Speaker 07: I represent the plaintiff's appellees. [00:40:00] Speaker 07: Plaintiff's claims under DC law require that they establish the MTM as a joint employer or a general contractor. [00:40:07] Speaker 07: and those issues will be determined based on evidence that is common to the class, as opposed to individualized facts regarding MTM's relationships with specific plaintiffs. [00:40:19] Speaker 07: So the district court was correct to certify those issues for class treatment under 23C4, and the decision below should be a firm. [00:40:28] Speaker 07: Otherwise, [00:40:29] Speaker 07: Those same issues will have to be litigated over and over again on behalf of potentially hundreds of individual plaintiffs. [00:40:38] Speaker 04: I don't think I quite understand that answer. [00:40:42] Speaker 04: Because this is one action here in court here. [00:40:45] Speaker 04: And you said the evidence is common. [00:40:50] Speaker 04: And MTM doesn't think that it needs an individualized determination as to each [00:40:57] Speaker 04: service provider, whatever that acronym is, the service providers, it's up or down. [00:41:02] Speaker 04: Either we're a joint employer across the board or we're not. [00:41:06] Speaker 04: Either we're a contractor across the board or we're not. [00:41:09] Speaker 04: And if it's common evidence, then help me understand what judicial economy has accomplished by not just having summary judgment or district court could order partial summary judgment focused on just this issue in the very same action. [00:41:26] Speaker 04: But what would have gone different in this case if the district court had said, look, first things first, let's do whatever discovery you need and briefing on these two questions, and we'll resolve that on summary judgment first, and then we'll get to everything else. [00:41:43] Speaker 07: Well, I think that the case would not have the class character then. [00:41:48] Speaker 07: I think the court had to certify [00:41:51] Speaker 07: the action for class treatment with respect to these issues in order to have it have binding effect in both directions versus seriatim litigation. [00:42:01] Speaker 04: They have already said upfront and on the record that it's going to be one answer for everybody. [00:42:06] Speaker 04: And so they're on the record before the court and the court could incorporate that into any decision. [00:42:13] Speaker 04: And I think that would be quite useful in preventing having to relitigate this issue all over the place. [00:42:19] Speaker 07: I assume you're talking about other actions, not this one elsewhere in the court system, or just as to what we have right now is the statute of limitations has been told for all of the class members and all the people in the collective. [00:42:35] Speaker 07: Once this issue is decided, [00:42:37] Speaker 07: then they will have to come into the action individually to prove up liability and damages. [00:42:43] Speaker 07: But if we don't treat it as a class action and we just decide this issue on behalf of the three main plaintiffs, well then we're going to need to tell everybody who's been relying on American pipe tolling to keep those claims alive and they're entitled to sit back and wait and see what happens. [00:43:01] Speaker 07: We're going to need to tell them they need to come in and file an individual action. [00:43:06] Speaker 04: So that's the only [00:43:07] Speaker 04: Judicial economy accomplished by this class action is the tolling of the statute of limitations. [00:43:14] Speaker 04: Well, it's go, we don't, it doesn't sound like it's actual litigation economy. [00:43:18] Speaker 04: So it's, it's just the toll end of the statute of limitations before people have to come in. [00:43:23] Speaker 07: That's a major part of it. [00:43:25] Speaker 07: I think there's still some other economies and efficiencies here. [00:43:29] Speaker 04: I hardly seems like that's what C four is about. [00:43:31] Speaker 04: So don't tell me about the others. [00:43:37] Speaker 07: Well, the individuals... If this issue has to be re-litigated because it's only decided with respect to the named plaintiffs, if plaintiffs prevail, then yes, the others could probably rely on offensive non-mutual collateral estoppel and get the benefits of that. [00:44:07] Speaker 07: But if the three main plaintiffs lost on this issue, while others could still come in who would have their special limitations told, bring their own case and say, well, we want to try again. [00:44:19] Speaker 07: We're going to try to take different discovery. [00:44:22] Speaker 04: Well that sounds like a good thing for those plaintiffs not to be bound and it's MTM is the one that doesn't want the class so they're going to be stuck with the consequences of not having one and have to litigate this all over all over town. [00:44:33] Speaker 07: Right and overall fairness of the class resolution I think it actually favors defendants because it binds both ways. [00:44:40] Speaker 04: Well I guess they get to be the expert on what favors them. [00:44:45] Speaker 07: But that is the main efficiency here is to decide a threshold issue without having the possibility of hundreds of people needing to come in individually before that issue is decided or waiting in the wings. [00:45:01] Speaker 03: Have you thought of other cases perhaps in other jurisdictions in which you have a collective action but it doesn't ultimately resolve liability? [00:45:11] Speaker 03: Like in other words, the collective action has been certified but it hadn't resolved liability? [00:45:16] Speaker 07: No. [00:45:17] Speaker 07: I am not aware of any such cases. [00:45:21] Speaker 07: But I do think that this case does fit within the Scott and Campbell [00:45:27] Speaker 07: articulation of members of a collective are similarly situated when resolution of a common issue will materially advance the resolution of the case. [00:45:40] Speaker 07: And I think there's an important practical thing to keep in mind, which is why I don't think we really need to get to the FLSA issue, is everybody in the FLSA collective is in the class. [00:45:52] Speaker 07: And the class claims, which are under DC law, [00:45:56] Speaker 07: are better than the FLSA. [00:45:58] Speaker 07: They provide more robust relief and they provide an alternative pathway to joint civil liability, which is this general contractor rule, which is in DC law, but not under the FLSA. [00:46:12] Speaker 04: So could you get the tolling just by virtue of the FLSA collective action? [00:46:18] Speaker 07: Only, no, only with respect to the 150 individuals who opted in. [00:46:23] Speaker 07: But those 150 individuals are in the class. [00:46:27] Speaker 07: And either way, if they need to come in after a decision in plaintiff's favor, unjoined employer and general contractor, or come in because, you know, the name plaintiffs lost if the certification is reversed, [00:46:43] Speaker 07: They're going to come in because that's where they get the more robust relief under the D.C. [00:46:49] Speaker 07: law and the two alternative pathways to holding MTM jointly and severally liable. [00:46:55] Speaker 07: So the fact that these 150 people opted into the FLSA collective, they certainly once given notice that they need to come in if they want to prove up liability and damages under the D.C. [00:47:07] Speaker 07: law, they're going to do that. [00:47:09] Speaker 03: Can you have a collective class be similarly situated but then still lack commonality? [00:47:15] Speaker 07: Well, they don't lack commonality with respect to the question of whether MTM is a joint employer. [00:47:25] Speaker 07: And because that is a threshold question here, I think it makes a lot of sense to move forward and decide that question as part of C4. [00:47:35] Speaker 07: And this is sort of an unusual circumstance because, you know, when you think about it, there are a lot of meaningful issues that involve multiple questions of law or fact. [00:47:48] Speaker 07: And factual differences among class members might make those issues turn on individual questions that predominate over common ones. [00:47:55] Speaker 07: But here, MTM's practices were the same across all the subcontractors insofar as those practices are material to joint employer and general contractor. [00:48:06] Speaker 07: And that's not always going to be the case even when joint employer is at issue. [00:48:10] Speaker 07: So this is in some ways an unusual situation that they treated everybody the same in terms [00:48:20] Speaker 07: terms for hiring and training and performance of the drivers, it's the same with all of the transportation providers. [00:48:27] Speaker 07: You can easily imagine a situation where somebody who's at the top of the pyramid like MTM has very different relationships with transportation service providers. [00:48:36] Speaker 07: We don't have that. [00:48:37] Speaker 04: But if I could just- Which is why it could be resolved on summary judgment. [00:48:41] Speaker 07: Yes. [00:48:41] Speaker 07: And I want to just- Without being a class. [00:48:44] Speaker 07: Well, I want to take up the text and that gets to your question, because I think this is really important. [00:48:51] Speaker 07: You know, rule 23B states the conditions under which the class action may be maintained. [00:48:58] Speaker 07: And 23C4 provides that an action may be maintained as a class action with respect to particular issues. [00:49:07] Speaker 07: So if you read those two provisions together, the most sensible construction [00:49:12] Speaker 07: is that the 23B conditions on maintaining a class action need only be satisfied to the extent that the class is so maintained. [00:49:22] Speaker 07: That is, it's only the certified class action that has to satisfy rule 23B, not any part of a case that isn't a class action. [00:49:33] Speaker 07: And that, I think, is really important, because earlier the discussion from my friend was up here about B3 and having individualized issues of damages. [00:49:44] Speaker 07: Those cases, they were certified under B3. [00:49:48] Speaker 07: They were not certified under C4. [00:49:50] Speaker 07: We're talking about cases like Tyson's Food. [00:49:53] Speaker 07: Under their construction, C4 does no work. [00:49:57] Speaker 07: It's completely superfluous. [00:49:59] Speaker 07: and it should be interpreted to have meaning to do some work and what it does is it does the work where we still have to satisfy for the certified issues all four of the 23a requirements and we still have to certify we still have to satisfy 23b3 predominance and seniority with respect to the issue certified and we have to show that it's appropriate [00:50:27] Speaker 07: to give this class treatment. [00:50:29] Speaker 07: So there's about seven things that we have to show here. [00:50:32] Speaker 04: Where did the district court make findings on those seven things in its decision? [00:50:39] Speaker 03: Particularly with respect to commonality. [00:50:42] Speaker 07: Well, yes, you have to look at when we originally moved, we moved for B3 and asked for C4, the alternative. [00:50:51] Speaker 07: The court had a decision where it walked through each of the 23 requirements and said that they were satisfied. [00:50:58] Speaker 07: And then it said superiority is satisfied. [00:51:01] Speaker 07: And then it said, but predominance is not satisfied as to the claim as a whole and gave us a chance to come back and further brief the propriety of C4. [00:51:13] Speaker 07: That was a supplemental brief. [00:51:16] Speaker 07: And so then the court decided, yes, C4 is appropriate with respect to two issues, joint employer and general contractor. [00:51:25] Speaker 04: And so the court was incorporating... Where did the district court find predominance? [00:51:32] Speaker 07: With respect to the certified issues? [00:51:34] Speaker 04: Yeah, in its supplemental class certification. [00:51:57] Speaker 07: The court discussed, this is in the, it's page 15 of the decision, it's 2391 of the joint appendix, talking about the different, you know, schools of thought on C4. [00:52:10] Speaker 04: Sure, that's sort of its general background. [00:52:12] Speaker 04: It's not its analysis section. [00:52:14] Speaker 04: Its analysis section is where, you know, would be where the rubber meets the road in this case. [00:52:20] Speaker 07: Yeah. [00:52:20] Speaker 07: Well, you know, on page 19, 2395 there, [00:52:25] Speaker 07: It says, ultimately, the question is the same. [00:52:29] Speaker 04: With materially advanced litigation, that's not the same as predominance. [00:52:33] Speaker 04: You all are all much more experienced in class actions than I am, but that doesn't sound like predominance to me. [00:52:43] Speaker 07: I'm having trouble finding it. [00:52:49] Speaker 07: But I think the fact that the court discussed the need [00:52:55] Speaker 07: you know, broadly, to show predominance with respect to the issues and then said, you've shown what you need to show in order for me to certify C4 class here. [00:53:05] Speaker 07: Yes. [00:53:05] Speaker 07: It's implicit. [00:53:07] Speaker 04: And then, you know, the baseline, sorry, I finished your sentence. [00:53:10] Speaker 07: The court talked about, you know, is it appropriate and sort of use this formulation of, well, will it materially advance resolution of the case? [00:53:20] Speaker 04: That answers the appropriate question, not the predominance question. [00:53:25] Speaker 07: That's right. [00:53:26] Speaker 07: The court also discussed superiority, which we also have to show, saying this is superior to the alternative of litigating it over and over again in essentially hundreds of cases. [00:53:36] Speaker 03: Did he appropriately flush out the commonality? [00:53:39] Speaker 03: I didn't hear you answer that one. [00:53:40] Speaker 07: Well, commonality, it was in the original decision, where he went through the 23A factors. [00:53:47] Speaker 07: And so he discussed commonality there. [00:53:52] Speaker 04: But I thought you said the baseline changes when we get to C4. [00:53:56] Speaker 04: When he was doing that original analysis, the baseline was as to, and now you'll correct me, either the whole cause of action or the whole litigation, was it? [00:54:10] Speaker 07: Well, it would only be with respect to the D.C. [00:54:12] Speaker 07: law claims. [00:54:13] Speaker 04: So the causes of action was the baseline. [00:54:17] Speaker 04: But you tell me the baseline changes under C4. [00:54:21] Speaker 04: Otherwise, it wouldn't accomplish anything. [00:54:22] Speaker 04: You'd have the same problems, one with the other. [00:54:25] Speaker 04: So what is the baseline? [00:54:26] Speaker 04: So the baseline for 23A and B3 shifts under C4, I think, under your theory. [00:54:33] Speaker 07: I think only with regard to B3. [00:54:35] Speaker 07: I think with 23A, those are requirements. [00:54:38] Speaker 07: And they're frankly not that hard to show. [00:54:40] Speaker 07: Under this kind of case and so the twenty requirements are going to be the same and then when you get to be three requirements are still the same. [00:54:49] Speaker 07: You have to show predominance and superiority, but only as to the issue certified. [00:54:55] Speaker 04: There has to be when you ask about predominance. [00:54:57] Speaker 04: So you have to be, you can't be predominant in the abstract. [00:55:00] Speaker 04: You have to be predominant as to what? [00:55:03] Speaker 07: And we know in the issue certified. [00:55:05] Speaker 04: Well, how can you be predominant as to the issue certified? [00:55:08] Speaker 04: Because the whole rationale for the district court looking the issue out or you all proposing the issue is well, at least as to this one, it's all consistent. [00:55:17] Speaker 04: And so it seems to me it's going to be pretty much [00:55:19] Speaker 04: an empty analysis to say, okay, let's sever out this thing that everyone says is common evidence and we march through 23A factors again and all those are met. [00:55:30] Speaker 04: And so, joint employer is a predominant question as to joint employer. [00:55:39] Speaker 04: Again, like I was asking your friend on the other side for writing an opinion, I just don't even know how to articulate that. [00:55:45] Speaker 04: I think I'll get laughed at if I were to write something like that or we were to write something like that. [00:55:49] Speaker 07: Yes, we still have to show predominance, but certainly the more narrow the issue becomes, the easier it's going to be for us to show predominance. [00:55:59] Speaker 07: But we still have to show superiority and we still have to show that it's appropriate. [00:56:03] Speaker 07: And if we talk about, well, if we keep stripping things down to the most basic question, you're always going to be able to show predominance. [00:56:11] Speaker 07: Well, that may be true. [00:56:13] Speaker 07: But if that question becomes too basic, we've drilled down to something very, very basic, then maintaining a class action is not going to be superior. [00:56:24] Speaker 07: And it's not going to be appropriate. [00:56:26] Speaker 04: Well, what if joint employer is sort of a multi-factor test? [00:56:31] Speaker 04: So what if as to, I forget the person, there isn't even consistency on what the precise number are, but let's just assume there's five factors for purposes of this question. [00:56:41] Speaker 04: Could you have a C4 class that says as to three of those five factors on joint employer, those commonality, they'll be proven by single evidence, just like you have the same evidence, can they carve it up one layer more than they've done here? [00:57:00] Speaker 07: No, and I don't think it really works with respect to the joint employer analysis, because even one factor can establish joint employer if it's overwhelming. [00:57:10] Speaker 07: So we gotta look at all the factors. [00:57:11] Speaker 07: Yeah, joint employer, you can't really divide it up that way. [00:57:14] Speaker 07: It wouldn't make sense to do that. [00:57:16] Speaker 07: And it wouldn't be superior. [00:57:19] Speaker 07: Or appropriate to say, I'm only going to concentrate on, for example, who paid the drivers, which is one element of the joint employer analysis. [00:57:29] Speaker 07: It's not required, but it is something that's in addition. [00:57:32] Speaker 07: It wouldn't make any sense to do that because you've drilled down this level. [00:57:37] Speaker 07: It is not really doing any work. [00:57:39] Speaker 07: And that's the thing to keep in mind. [00:57:41] Speaker 04: It's much more efficient to answer three of those questions all at once for everybody than to have them all litigated separately. [00:57:49] Speaker 04: I don't understand why that's any different than breaking out joint employer and the rest of it. [00:57:53] Speaker 04: You already separated liability into joint employer slash general contractor and everything else. [00:57:58] Speaker 04: And so I don't understand why you can't subdivide. [00:58:03] Speaker 07: Well, I don't think it does it very much to subdivide factors that are not determinative. [00:58:09] Speaker 07: You know, it's the factors taking us. [00:58:12] Speaker 04: So if we had a different legal question for which there are five tests to satisfy it, each one of which could be an independent basis for liability, then it would be OK to certify on three of them, but not two of them? [00:58:26] Speaker 07: If the court thought it was superior and appropriate. [00:58:31] Speaker 07: Then yes, but the district court would have to make those determinations and think about how rare C4 certifications are. [00:58:39] Speaker 07: I mean, we've had C4 now for what, 56 years. [00:58:43] Speaker 07: There's not that many C4 cases out there because usually if you do drill down to such a tiny sliver of the case, yes, you might be able to show predominance. [00:58:54] Speaker 07: But it's not going to be superior. [00:58:58] Speaker 04: It's much more efficient to just do this once than to litigate it 800 times when it's going to be the same evidence. [00:59:06] Speaker 04: It's going to be the same up or down answer. [00:59:08] Speaker 04: Right. [00:59:08] Speaker 04: So you're going to have you're going to have predominance because we'll go well as predominate as to the sub question. [00:59:14] Speaker 04: Yes, it does. [00:59:15] Speaker 04: And it's going to be I think it's going to be easy to find superiority because this poor district court struggling with this massive case is going to say this is much easier than doing it 800 times. [00:59:24] Speaker 04: And it's appropriate because when it's superior and predominant in this case, it just makes sense for efficiency and consistency and resolution. [00:59:35] Speaker 04: What's wrong with that analysis by a district court? [00:59:37] Speaker 07: I have to push back on the appropriate element because appropriate means it will materially advance the resolution of the case. [00:59:46] Speaker 07: And if it's too small a sub part of a factor, it will not materially advance. [00:59:54] Speaker 04: when appropriate, looks at the entire case, not the issue? [00:59:59] Speaker 07: Yes. [00:59:59] Speaker 07: Will it materially advance resolution of the case? [01:00:05] Speaker 07: And here it will. [01:00:07] Speaker 04: It wouldn't be faster to do it as a class than to do it 800 times over? [01:00:10] Speaker 04: Yes. [01:00:12] Speaker 07: And that's why C4 makes sense. [01:00:14] Speaker 04: No, but I mean, under my... It's going to go faster once than repeatedly. [01:00:22] Speaker 07: Yes. [01:00:23] Speaker 04: Okay. [01:00:23] Speaker 04: So then that would be an appropriate C4 class. [01:00:26] Speaker 07: Well, but again, we have to look at everything else that's going to have to be determined. [01:00:31] Speaker 04: I've already marched through how those are going to be analyzed. [01:00:33] Speaker 04: The 23A stuff is going to carry through predominance because we only ask those three questions and superiority because it's much more efficient. [01:00:44] Speaker 04: It seems to me to be certainly efficient for resolution of those issues. [01:00:48] Speaker 04: Yes. [01:00:50] Speaker 04: And it's consistent for both parties, up or down, one way or the other. [01:00:54] Speaker 04: It could let someone out of the litigation altogether. [01:00:56] Speaker 04: And it's appropriate because anything I can clean up in this case quickly, consistently, and in one fell swoop will speed this litigation a lot. [01:01:18] Speaker 04: Alex, we probably didn't let you even make your own points. [01:01:22] Speaker 04: Do you guys have more questions? [01:01:24] Speaker 04: Any questions? [01:01:25] Speaker 04: I don't. [01:01:26] Speaker 04: There's Rogers? [01:01:27] Speaker 04: No. [01:01:28] Speaker 04: OK. [01:01:29] Speaker 04: Did you want to touch briefly on FLSA? [01:01:32] Speaker 07: Sure. [01:01:33] Speaker 07: Yeah, I think I've covered our arguments under C4. [01:01:36] Speaker 07: On the FLSA issue, again, there's no reason to reach it here. [01:01:43] Speaker 07: We take a step back to pen and appellate jurisdiction. [01:01:46] Speaker 07: Because as I explained, everybody in the collective is in the class, and they're all going to come into the class if there's an opportunity to do that. [01:01:55] Speaker 07: And the same is going to be determined because the DC law, which is the class action, completely covers the felicit claims, gives better relief, and gives this alternative pathway to joint and several liability. [01:02:09] Speaker 00: So there's just no reason [01:02:13] Speaker 07: we think that Scott and Campbell are the best approach. [01:02:17] Speaker 07: And basically what they said is you can have similarly situated members of a collective where there's a common issue that again, sort of materially advances the resolution of the case. [01:02:33] Speaker 07: It is true that typically those are policies and practices that are FLSA violating, but it doesn't have to be. [01:02:42] Speaker 07: And that's what we think the district court made the correct decision here saying, yes, they're similarly situated because the joint employer question is going to be resolved the same way for all of them. [01:02:56] Speaker 07: And so we do think that, you know, if you reach that issue, we prevail and Scott and Campbell is the best test, but there's really, as a practical matter, no need to reach it because this is all going to rise or fall on the C4 class action. [01:03:15] Speaker 04: My colleagues have no questions, and thank you very much. [01:03:20] Speaker 04: And Mr. Andre, we'll give you three minutes. [01:03:27] Speaker 08: Thank you, Judge Belair. [01:03:29] Speaker 08: I wanted to push back on one thing that Mr. Kirkpatrick said about the potential binding effect of proceedings that the district court has contemplated here. [01:03:40] Speaker 08: And this is critical in our view. [01:03:42] Speaker 08: The district court, this is a page, joint appendix 2454. [01:03:46] Speaker 08: The district court has said he is not going to issue notice to the putative class members. [01:03:52] Speaker 08: So there are 800 that have been identified at least by number by the plaintiffs, but I don't know how they come into this case because they're not getting notice and being told to come in. [01:04:06] Speaker 04: The district court said that as a C4 that they're not going to be any issue of notice, correct? [01:04:11] Speaker 08: And so [01:04:13] Speaker 08: That further undermines not only the integrity of the district court's ruling, but it opens the door to all the problems that the carefully reticulated Rule 23 scheme is designed to address. [01:04:29] Speaker 08: That you have to give notice, that the judgment has to have some clarity, the appointment of counsel, and so on and so forth. [01:04:37] Speaker 08: The fact that there is not class notice going out to these 645 other drivers, and I guess we're going to get technical, the notice that the options got was just as to the weaker or less valuable FLSA claims. [01:04:54] Speaker 08: So they didn't get technical notice that this other DC state law claim is pending. [01:05:02] Speaker 08: That doesn't protect their rights. [01:05:04] Speaker 08: And that's one of the concerns that animates whether a classification measure should be upheld. [01:05:09] Speaker 08: And it doesn't protect our rights, because we basically have an advisory opinion, which, again, goes back to why at the outset, I'm still struggling to figure out why this wasn't done under a partial summary judgment motion with just the name parties. [01:05:24] Speaker 08: I guess I also wanted to push back on the suggestion that under our hypothesis, C4 does no work. [01:05:31] Speaker 08: You know, the Deepwater Horizon case, which both Amiki and plaintiffs assert is kind of the final nail in the coffin of Castaño. [01:05:42] Speaker 08: If you read that case carefully, it doesn't mention Castaño, and it actually is doing precisely the work that I've been explaining that C4 was kind of designed and explored to do. [01:05:53] Speaker 08: It's doing what the advisory committee said back in 1966 it should do. [01:05:57] Speaker 08: Deepwater Horizon severed off [01:06:00] Speaker 08: damages, and then in doing so, the fifth circuit said, C4 is what allows us to do that. [01:06:08] Speaker 08: And so that's all we're asking for. [01:06:09] Speaker 08: And so again, our position is not going to render C4 nullity. [01:06:15] Speaker 04: Sorry, where did the district court say it wouldn't do notice under the C4 class? [01:06:21] Speaker 08: Joint appendix page 2454. [01:06:22] Speaker 08: 2454. [01:06:23] Speaker 08: 2454. [01:06:25] Speaker 08: I guess with my last two seconds. [01:06:31] Speaker 08: Mister her factor said that your predominance is applied to the issue certified if we think as an actual matter that is contrary to the rules be three speaks in terms of the controversy, which you know. [01:06:45] Speaker 08: I think has to certainly mean more than issues certified, has to mean at minimum a cause of action, kind of a full controversy within the broader controversy, but not something as small and as preliminary as whether my client is a joint employer or a general contractor. [01:07:01] Speaker 03: Can you respond to Judge Millett's earlier questions about why not partial summary judgment, and then whether or not you offered any such alternative options? [01:07:12] Speaker 09: I don't want to misspeak. [01:07:14] Speaker 09: I don't believe we did. [01:07:15] Speaker 09: I don't think we did. [01:07:21] Speaker 09: But I don't know for certain. [01:07:27] Speaker 04: OK. [01:07:27] Speaker 04: Any questions? [01:07:28] Speaker 04: Coach Rodgers or Coach Childs, any further questions? [01:07:30] Speaker 04: No. [01:07:31] Speaker 04: All right. [01:07:32] Speaker 04: Thank you very much. [01:07:33] Speaker 04: Thank you for your time. [01:07:41] Speaker 04: The case is submitted.