[00:00:02] Speaker 00: So similarly, each side has 20 minutes, but we have cross appeals here, so we'll sort of proceed similarly as we did in the last case. [00:00:11] Speaker 00: And I'm assuming for, are you Miss St. [00:00:17] Speaker 00: Clair? [00:00:17] Speaker 00: All right, so do you have any questions? [00:00:20] Speaker 00: Do you understand how we're sort of proceeding? [00:00:24] Speaker 00: Okay, thank you. [00:00:26] Speaker 00: All right, and we're just having one person each side arguing. [00:00:29] Speaker 00: So you look very familiar. [00:00:33] Speaker 00: Mr. Egan, are you back? [00:00:35] Speaker 02: Yes, Your Honor. [00:00:36] Speaker 02: John Egan for the plaintiffs in Ferguson v. Smith this time. [00:00:40] Speaker 02: May it please the court? [00:00:42] Speaker 02: I'd like to reserve five minutes for rebuttal. [00:00:46] Speaker 02: I'll start with plaintiffs' assignment of error, and that's that Oregon penalty wages cannot be assessed under the language of the statute unless there's a due date. [00:00:56] Speaker 02: And there's been kind of a moving goalpost in this case as to what exactly defendants are opposing. [00:01:03] Speaker 02: At first, they said there's not a due date. [00:01:06] Speaker 02: Violations of 120 can't create a violation of overtime or minimum wage. [00:01:13] Speaker 02: Now, I think, towards the end of the case, the trial court said, well, we just don't think this was a violation of 652-120 because we think that it builds in a grace period. [00:01:25] Speaker 00: Well, so you agree that 652-120 provides a grace period for employees to remedy violations of late payments. [00:01:33] Speaker 00: You agree with that? [00:01:34] Speaker 02: No. [00:01:35] Speaker 02: I don't think it provides a grace period at all. [00:01:38] Speaker 02: The first subsection one of that statute says you have to pay all wages due and owing on payday. [00:01:43] Speaker 02: The next subsection says your paydays have to be 35 days apart or less. [00:01:49] Speaker 02: and that employers can make them more. [00:01:52] Speaker 00: Anything in the language of the statute about a grace period? [00:01:55] Speaker 02: No. [00:01:56] Speaker 02: No. [00:01:57] Speaker 02: There was a section added in 2007, and if you look at the legislative history, which we presented, Boley was having a problem with when an employer was told by an employee, hey, you underpaid me. [00:02:09] Speaker 02: And they said, you are correct. [00:02:11] Speaker 02: I did underpay you. [00:02:12] Speaker 02: And then it would be once. [00:02:13] Speaker 00: So this section that you're talking about that was added, [00:02:17] Speaker 02: is which that's what's five section five okay section five yeah six fifty two one twenty section five yeah right yeah i'm confused are we talking about ferguson versus smith are we back on the other case it's there's a there's some overlap okay in ferguson versus smith we're talking about when penalty wages start accruing yeah yeah uh and so it involves some of the same statutes [00:02:40] Speaker 02: And because the penalty wage statute says the penalty wages run from the due date, there has to be one due date. [00:02:49] Speaker 02: Now, if someone's suing for regular wages, [00:02:53] Speaker 02: there may or may not be a grace period. [00:02:55] Speaker 02: There's lots of statutes in the regular wage chapter, 652, that say you can't get attorney fees unless 48 hours have gone by, that you have to give a certain amount of notice before penalties can apply. [00:03:09] Speaker 02: There's those things for regular wages. [00:03:12] Speaker 02: If someone owes you $10 and they pay you $10 before you sue, you don't have a cause of action anymore for unpaid wages. [00:03:19] Speaker 00: So Oregon Supreme Court has not said [00:03:23] Speaker 00: that bringing charges failure to pay the minimum wage as it relates to 652-125. [00:03:31] Speaker 00: They haven't actually addressed that. [00:03:34] Speaker 00: No. [00:03:35] Speaker 00: All right. [00:03:36] Speaker 00: But let's just say, all right, when we certify it, we don't have to certify everything that there's not an exact answer. [00:03:43] Speaker 00: We're allowed to surmise what we think the answer is. [00:03:47] Speaker 00: So I'm struggling with the fact [00:03:50] Speaker 00: that even though you tell me there isn't a grace period, if I think that there is, if that is the case, how can employer fail to pay the minimum wage under 653.055 if the grace period in 652.120 subsection five has not yet lapsed? [00:04:10] Speaker 00: I'm having trouble philosophically with that. [00:04:13] Speaker 02: If there is a grace period, it applies to unpaid wages, as I was starting to talk about. [00:04:19] Speaker 02: You can't bring a claim for unpaid wages if you've been paid all of your wages, regardless of if it was late. [00:04:25] Speaker 02: You may have a common law claim for interest or something, but you can't bring a claim for the wages because you've been paid the wages. [00:04:32] Speaker 02: The minimum wage and overtime statute is worded totally differently. [00:04:36] Speaker 02: Under that statute, when you're not paid minimum wage, you have a claim for unpaid minimum wage minus anything they've paid you plus penalty wages. [00:04:45] Speaker 02: So even if they've paid you everything, you still have a claim for penalty wages. [00:04:50] Speaker 00: And the way that... But, I mean, the Oregon Supreme Court could say, if we're look at reading the tea leaves, could say that bringing a claim for minimum wages is separate from that statute and you can't do both. [00:05:03] Speaker 00: They could say that, right? [00:05:05] Speaker 00: If the issue were certified. [00:05:07] Speaker 00: They could. [00:05:08] Speaker 02: They haven't in the past, right? [00:05:09] Speaker 02: Yeah. [00:05:10] Speaker 00: They haven't yet. [00:05:11] Speaker 02: Yeah. [00:05:11] Speaker 00: But if I thought that's what they were going to say, then that makes that difficult. [00:05:18] Speaker 00: Tell me just factually here, the recovery out of the pay period times, tell me exactly what you recovered from the jury, and it was at four? [00:05:31] Speaker 00: Four? [00:05:31] Speaker 02: So under the FLSA, they only recovered for three of those paydays, because it's a two-year statute of limitation that was found not to be willful under the FLSA willfulness. [00:05:44] Speaker 02: Under Oregon law, it would be a three-year statute of limitations, so it would be four paydays that the jury found were late. [00:05:52] Speaker 00: Okay, so how much money is that? [00:05:55] Speaker 02: About a little over $100,000 for the FLSA part. [00:06:00] Speaker 00: But that's not the actual amount. [00:06:04] Speaker 00: Isn't that adding some penalty? [00:06:07] Speaker 02: That's all liquidated damages under the FLSA. [00:06:10] Speaker 02: The plaintiffs agree that they were paid all the wages that they should have been paid on payday. [00:06:16] Speaker 02: They were paid those wages one day later. [00:06:20] Speaker 02: So they don't have an unpaid wage claim. [00:06:23] Speaker 02: In this case, they didn't assert one. [00:06:25] Speaker 02: They only said, you paid me late. [00:06:27] Speaker 02: And under the FLSA, if you pay the minimum wage late, you've got to pay double damages, basically. [00:06:34] Speaker 00: OK, so the $100,000 that you're coming up with includes a penalty. [00:06:40] Speaker 02: It includes liquidated damages under the FLSA, right? [00:06:44] Speaker 02: And Oregon courts have uniformly said the liquidated damages under the FLSA and the Oregon penalty serve different purposes so you can recover them both. [00:06:56] Speaker 03: I want to explore that you requested that we certify questions for this court. [00:07:01] Speaker 03: But the Oregon Supreme Court's Marion case, [00:07:06] Speaker 03: The dicta, at least, seems to foreclose your interpretation. [00:07:11] Speaker 03: And you also have some hunger versus Hyatt Lake Resort and so on, all of which seems to suggest there's really nothing to certify. [00:07:24] Speaker 03: We kind of know what they're going to do. [00:07:27] Speaker 03: We don't lightly certify questions to state Supreme Courts. [00:07:32] Speaker 03: What's your most [00:07:33] Speaker 03: compelling argument for why we should do so in this case. [00:07:37] Speaker 02: Because each time it's come up, the judges have said, that's not this case. [00:07:41] Speaker 02: And so sometimes they make arguments by analogy or by metaphor, sometimes to each other when they're kind of talking to the dissent and vice versa. [00:07:51] Speaker 02: But both of those cases that you mentioned in North Marion versus Axstar, it says, none of those statutes is involved in this case. [00:07:58] Speaker 02: The interplay, if any, between them has not been examined or decided by this court. [00:08:02] Speaker 02: And it wasn't briefed by the parties either. [00:08:04] Speaker 00: Well, it seems like it'll take about a year. [00:08:06] Speaker 00: We had one case yesterday that took the Oregon Supreme Court a year to answer. [00:08:11] Speaker 02: Wow. [00:08:12] Speaker 00: And I know that the... Which is faster than California. [00:08:17] Speaker 02: Way, way faster. [00:08:17] Speaker 02: Many things are. [00:08:19] Speaker 02: And then in the Herger case, it says... [00:08:21] Speaker 02: It's possible that a payment that's late under this statute can also be late for purposes of other statutes. [00:08:27] Speaker 02: Here, for example, the parties don't tell us whether the wages were or were not paid by the next regular payday. [00:08:32] Speaker 02: That seems to support the fact that if it weren't paid by the regular payday, it would be a violation of the minimum wage statute. [00:08:39] Speaker 02: I agree, there's dicta that has kind of gone both ways. [00:08:44] Speaker 02: If this circuit were to reach either in a published or in a memorandum opinion, here's what we think the law is, that wouldn't answer the question for Oregon state courts, for example. [00:08:53] Speaker 02: They don't follow federal law interpretation of Oregon statutes. [00:08:55] Speaker 02: So the best way to finally get an answer to this question that's been out there for decades, that each time it's come up hasn't quite had the correct facts to present it, this time we do have the correct facts to present it. [00:09:07] Speaker 02: that it would behoove everyone to finally get an answer to this as to when these penalty wage begin to accrue. [00:09:16] Speaker 02: Did you have a question, Your Honor? [00:09:17] Speaker 02: Okay. [00:09:20] Speaker 02: I'll move on to defendants' assignments of error. [00:09:28] Speaker 02: The denial of summary judgment on defendants' FLSA claims [00:09:35] Speaker 02: I don't think that the court reaches that. [00:09:37] Speaker 02: I don't think that they preserve that. [00:09:40] Speaker 02: It's a question of fact when their payday is, and it's a question of fact whether they paid on that payday. [00:09:48] Speaker 02: Those aren't legal questions. [00:09:49] Speaker 02: Those are questions of fact. [00:09:51] Speaker 02: And the trial court correctly said there is conflicting testimony here as to whether they paid on the payday. [00:10:00] Speaker 02: When your employee handbook says we pay on the 10th and the 25th, [00:10:06] Speaker 02: And there's no question that it changed after that, but there is a question as to what it changed to after that. [00:10:13] Speaker 02: Sometimes they paid on the 5th, sometimes they paid on the 6th. [00:10:17] Speaker 02: If the 5th fell on a Sunday or a Saturday or a holiday, sometimes they paid before and sometimes they paid after. [00:10:23] Speaker 02: So what the actual payday was is something that had to be submitted to the jury. [00:10:28] Speaker 02: And they did submit it to the jury and the jury found that [00:10:32] Speaker 02: that the payday was, if it fell on a weekend, you could pay on Monday. [00:10:37] Speaker 02: But if a holiday interfered with the calculation of payroll, you still had to pay minimum wage on payday. [00:10:46] Speaker 02: And I'll note that both the old and the new employee handbooks say that if payday falls on a holiday, [00:10:53] Speaker 02: you'll usually, you know, then something will result, either be paid before or after. [00:10:58] Speaker 02: Neither handbook made any provision to, we understaffed our payroll department, so it took us longer to calculate than it would have otherwise, so we're going to pay you late. [00:11:09] Speaker 02: That's not establishing a regular payday when they say from time to time, oh, by the way, I'm going to be paying you late. [00:11:18] Speaker 02: On the tolling issue, I want to just point out there that the FLSA is a federal statute of limitations. [00:11:27] Speaker 02: Under the old, when the FLSA was first passed, federal courts did borrow state statutes of limitations. [00:11:34] Speaker 02: But when the Portal to Portal Act passed, sections 55 and 56 of the FLSA now have their own statute of limitations. [00:11:43] Speaker 02: Oregon rules on tolling don't apply to federal statutes of limitations. [00:11:48] Speaker 03: So I want to be sure I understand this. [00:11:50] Speaker 03: Your equitable tolling and equitable stop arguments rely on federal law, state law, or both? [00:11:58] Speaker 02: Federal law. [00:11:59] Speaker 02: I think federal law applies to both the statute of limitations and the tolling of federal statutes of limitations. [00:12:04] Speaker 03: And Oregon law has no role in this? [00:12:05] Speaker 02: I don't think so. [00:12:06] Speaker 02: I mean, we made our alternative arguments as to why we don't think the statute applies and why they didn't raise it or preserve it at the correct point and why, if it does apply, then [00:12:16] Speaker 02: then we think we meet the requirements of the statute anyway, but I don't think the court even needs to reach it because it's a federal statute of limitations. [00:12:24] Speaker 02: And then on the amount of attorney fees, I have never found a case where a trial court considered the degree of success of the parties, reduced the lodestar from the requested, but didn't reduce it as much as the defendant asked. [00:12:42] Speaker 04: Well, I think they're saying that the judge didn't consider [00:12:45] Speaker 04: the degree of success. [00:12:47] Speaker 04: I think that's what their argument is. [00:12:48] Speaker 02: I think that's what they're arguing, but she did. [00:12:50] Speaker 02: I mean, she said this was a very good result. [00:12:52] Speaker 02: They obtained a change in the defendant's paper. [00:12:55] Speaker 04: I think their argument goes further, and they say, well, the judge didn't say that in the section that one would normally [00:13:04] Speaker 04: Consider those those the degree of success sure I mean they briefed it and yeah And the judge said that she thought it was a very good result Is there some case that says that the judge has to do it that way that the way they've indicated no? [00:13:17] Speaker 02: No, and in fact there's cases that say that the judges don't have to specifically mention every factor as long as they mention the factors that were key and factored into their final result. [00:13:29] Speaker 02: You know, the whole thing is an abusive discretion standard and these are non-exclusive factors that weigh into that. [00:13:38] Speaker 02: And I think we noted I'm not really sure what the standard of review would be if the trial court said that I think this is a very good result and They're challenging whether it was indeed a very good result. [00:13:49] Speaker 02: I don't know if that's a factual finding I don't know if this court de novo decides whether it thinks it's a very good result But in any event whatever the standard I think that the trial judge went through [00:14:01] Speaker 02: Listed the factors that she's thought would be and it's a reasonable fee at the end of the day And you know different courts require different degrees of space they didn't challenge the load start. [00:14:11] Speaker 04: They just challenged You know how the that's great success correct. [00:14:15] Speaker 02: Yeah, correct Unless the court has any other questions. [00:14:20] Speaker 02: I'll reserve the remainder of my time. [00:14:21] Speaker 00: Thank you. [00:14:21] Speaker 00: Thank you, Mr.. Egan [00:14:32] Speaker 00: Good morning. [00:14:33] Speaker 01: Good morning, Your Honor. [00:14:34] Speaker 01: My name is Heather St. [00:14:35] Speaker 01: Clair on behalf of Defendants Maria Smith and Gladstone. [00:14:38] Speaker 01: May it please the court? [00:14:40] Speaker 01: At the heart of this dispute is whether defendant's conditional payday policy complied with its legal requirements to pay employees on payday. [00:14:48] Speaker 01: The undisputed evidence before the trial court was that it did, both under federal and state law. [00:14:54] Speaker 01: In this case, defendant's conditional payday policy was that employees were paid on the 5th and 20th. [00:14:59] Speaker 01: unless a weekend or holiday impacted payroll operations, in which case employees were always paid by the 6th or 21st. [00:15:08] Speaker 01: I want to take a moment to address first plaintiff's arguments on the Oregon wage claims, and then we'll turn to defendants' cross-appeal. [00:15:15] Speaker 01: plaintiff's arguments rely on willful blindness to half of the statutes that apply to this case. [00:15:21] Speaker 01: They say because chapter 653 lacks some sort of express timing requirement that the court should ignore all of the statutes that do provide express statutes or express payment requirements and instead do what you did in Biggs and imply some sort of requirement. [00:15:38] Speaker 01: This court has already rejected that argument in Rother v. Lepenko where he specifically said [00:15:43] Speaker 01: The late payment is not the same as non-payment of wages. [00:15:47] Speaker 01: You further said that Oregon statutes expressly provide a time of payment requirement that the FLSA does not. [00:15:55] Speaker 01: That is the controlling outcome here. [00:15:57] Speaker 01: And as Your Honor's already correctly noted, there are multiple cases within the state court system that would indicate how the Oregon State Supreme Court would rule on this. [00:16:05] Speaker 01: And I think that's the case, unlike plaintiff's counsel's argument. [00:16:08] Speaker 04: His argument is, let's certify that question. [00:16:12] Speaker 04: Let's get an answer. [00:16:13] Speaker 04: We've been waiting for a while. [00:16:15] Speaker 04: Why isn't he right? [00:16:18] Speaker 04: And he seems to suggest that the law, including [00:16:22] Speaker 04: the North Marion case does not necessarily answer the question. [00:16:27] Speaker 01: Well, that is plaintiff's argument, Your Honor. [00:16:28] Speaker 01: You're correct about that. [00:16:30] Speaker 01: I disagree with his position clearly. [00:16:31] Speaker 01: I think that the reason why this shouldn't be certified is because the statutes are very clear here. [00:16:36] Speaker 01: This is a plain language statutory requirement under 652-120. [00:16:43] Speaker 00: If you had a Supreme Court case that said that exactly, [00:16:48] Speaker 00: You wouldn't have to be talking about this all the time. [00:16:51] Speaker 01: That's correct, Your Honor. [00:16:52] Speaker 00: And you're saying, I'm going to win. [00:16:55] Speaker 00: OK. [00:16:56] Speaker 00: And maybe you will. [00:16:58] Speaker 00: Or maybe we can ascertain what it is. [00:17:01] Speaker 00: But there is some benefit for having to hear this every single time, that there's an Oregon Supreme Court case that says, [00:17:10] Speaker 00: to Mr. Egan, no, you either go under the minimum wage, or you go under the other one, or you can do both, or you can make the argument that he's making. [00:17:20] Speaker 01: That's fair enough, Your Honor. [00:17:21] Speaker 01: I do suppose it would be beneficial to everybody to have a decision on that. [00:17:24] Speaker 01: In Oregon. [00:17:24] Speaker 01: But I think that there are decisions indicating the way the court would find on this. [00:17:29] Speaker 01: And the reason why I think there are not a lot of case law on this issue is because of the clarity of the statute. [00:17:34] Speaker 01: Plaintiff's argument relies on [00:17:36] Speaker 01: conflating wage rates with wage timing. [00:17:39] Speaker 01: And those are two different things. [00:17:41] Speaker 01: And when you look at Chapter 653, which plaintiffs rely on for the wage rates that are required under Oregon law, there are no less than six statutes that set out minimum rates for different things, for minimum wages, for overtime wages, for prevailing rate wages. [00:17:57] Speaker 01: In contrast, Chapter 652 sets out deadlines. [00:18:01] Speaker 01: And again, no less than eight sections of statutes under that chapter [00:18:06] Speaker 01: set out deadlines for various things, including when can you go to bully to have a bond imposed, when are final wages late, when are final wages for farm workers late. [00:18:15] Speaker 01: There are eight statutes that set out separate deadlines. [00:18:18] Speaker 01: The one at issue here is 652-120, which says that [00:18:22] Speaker 01: employers must pay wages by the regular payday or within 35 days of the next payday. [00:18:28] Speaker 01: Now Mr. Egan quoted some case to you and I'm frankly not recalling which particular case that was but the language he said was next regular payday and I think that matters because he was essentially trying to argue to you that this case implied that if people weren't paid on the regular payday [00:18:44] Speaker 01: then there was a problem, but the language he used for that was their next regular payday, which is what the statute says, 35 days or the next regular payday. [00:18:53] Speaker 01: That's when wages become late under Oregon law. [00:18:56] Speaker 03: Counsel, let me ask you two questions. [00:18:57] Speaker 03: First of all, Mr. Egan has indicated that if, hypothetically, we were to construe Oregon case law, other than from the Supreme Court, to [00:19:12] Speaker 03: interpret Oregon law. [00:19:14] Speaker 03: I understood him to say that Oregon courts are not bound, if we had a published opinion, construing Oregon law to that effect, that they are not bound by such a decision. [00:19:24] Speaker 03: Is that correct? [00:19:26] Speaker 01: I'm not sure if that's the argument he was making, Your Honor. [00:19:28] Speaker 01: I don't always quite follow what he's saying. [00:19:30] Speaker 03: Perhaps not. [00:19:31] Speaker 03: Certainly that's not true in California. [00:19:33] Speaker 03: If we take what the California Courts of Appeal have said, interpret what we think the California Supreme Court would have done, that's binding unless the California Supreme Court later changed [00:19:44] Speaker 03: It's mine. [00:19:45] Speaker 03: I understood him to say perhaps I misunderstood that that's not true in Oregon. [00:19:50] Speaker 03: Do you know? [00:19:51] Speaker 01: I think that is true in Oregon, Your Honor. [00:19:52] Speaker 01: I think if we can look at what the indications are in the court. [00:19:55] Speaker 01: I mean, we argued this in our briefing that you can look at dicta out of the state Supreme Court, as you correctly identified in North Marion, and say that that is an indicator of what the Oregon State Supreme Court is likely to rule. [00:20:06] Speaker 01: And I think that's precisely what controls the outcome here. [00:20:08] Speaker 00: I think it is. [00:20:10] Speaker 00: Well, I guess I don't know if I'm agreeing with Judge Smith on this. [00:20:13] Speaker 00: My understanding is if we interpret a state statute [00:20:17] Speaker 00: And if we publish, it would be binding on our circuit for any future times that come up. [00:20:26] Speaker 00: But that the state court would still be free to make a decision and say what their law is. [00:20:33] Speaker 01: I agree with that, Your Honor. [00:20:35] Speaker 01: I think I misunderstood them. [00:20:37] Speaker 01: I think there's a distinction between the questions you both just asked. [00:20:39] Speaker 01: But I do think that the dicta present in North Marion is an indicator of what the Oregon State Supreme Court would say. [00:20:46] Speaker 01: And you're free to follow that. [00:20:47] Speaker 01: You're also free to pass your decision on what you think the Oregon statute says, and the state court is not bound by that. [00:20:53] Speaker 03: And maybe we're all saying the same thing. [00:20:55] Speaker 03: There's no question that if we, like for example, California, if we were to issue a published opinion that said this is what the statute means, [00:21:05] Speaker 03: and an Oregon Supreme Court said different, I mean the California Supreme Court said differently, that would control, no question. [00:21:12] Speaker 03: Maybe that's all Mr. Egan's saying about here, I'm not sure, but okay, well let's get to a second question. [00:21:17] Speaker 03: That is, if we were to certify this question to the Oregon Supreme Court, how should that question be framed in your mind? [00:21:26] Speaker 01: Well, your honor, I think that's a great question. [00:21:28] Speaker 01: I do think the way plaintiffs frame it in their appellate brief is not the same as the way they framed it in their trial court briefing. [00:21:35] Speaker 01: And I don't think it's quite accurate. [00:21:36] Speaker 01: I do believe at the trial court level, they looked at the way it was framed and said that the judge did not believe that was an accurate framing of the issue that's being presented here. [00:21:45] Speaker 01: This is really, can you imply [00:21:48] Speaker 01: the penalty wages that apply to the 653.055 statute to the 655.120 statute by saying that when people are paid a day past payday, that they weren't paid the full amount due on that date. [00:22:01] Speaker 01: Therefore, you're entitled to statutory penalties. [00:22:05] Speaker 01: I don't think that there's support, again, in the statutes or the cases for that proposition. [00:22:09] Speaker 00: You've kind of taken a long way to say how the question should be formed. [00:22:13] Speaker 01: I'm not entirely sure how the question should be presented, Your Honor. [00:22:15] Speaker 01: I don't think it's consistent with the law in the state. [00:22:18] Speaker 00: Well, to me, it seems like that what the question is, if you pay late, can you also be sued for not the minimum wage? [00:22:27] Speaker 00: Or is that statute, is the minimum wage really meant for people that aren't getting paid the minimum wage and not considering whether, because obviously, if you get paid late, you didn't get paid. [00:22:38] Speaker 00: But that doesn't mean that necessarily [00:22:41] Speaker 00: the hourly rate that they're paying you is less than the minimum wage. [00:22:46] Speaker 01: That's correct, Your Honor. [00:22:46] Speaker 00: I think there are numerous ways. [00:22:47] Speaker 00: So it's a question as can you bring things, you know, can they bleed over and can you have both causes of action or are they, as you go one way here and one way on the other one. [00:22:57] Speaker 01: I think that's correct, Your Honor. [00:22:58] Speaker 01: In some cases in Oregon law, they've talked about what you're describing is essentially a derivative violation, meaning that you violate one statute with its own remedy [00:23:07] Speaker 01: Can that derivatively then violate a second statute with separate remedy? [00:23:11] Speaker 01: The answer in the courts that have been presented with that question has been no. [00:23:15] Speaker 01: But as Mr. Egan has pointed out, most of those cases have slightly different fact patterns or slightly different statutory regimes that they're pointing to. [00:23:22] Speaker 00: Well, let me ask you, you're challenging the summary judgment after there was a full trial. [00:23:30] Speaker 01: Yes, Your Honor. [00:23:32] Speaker 00: So generally we don't review denials of summary judgment after there was a full trial unless the denial was based on pure questions of law. [00:23:41] Speaker 01: Yes, Your Honor. [00:23:42] Speaker 00: It seems to me that you're making all sorts of factual arguments that were dealt with during the trial and you're not making a challenge to the law here. [00:23:52] Speaker 01: I disagree, Your Honor. [00:23:53] Speaker 01: I think that our main argument on the FLSA claim is that there was no disputed issue of fact before the trial court when we moved for summary judgment. [00:24:01] Speaker 01: That should have been granted. [00:24:02] Speaker 01: And when you look at the reasons why the district court pointed out, and I do want to spend just a moment on those, there are three things that the trial court identified. [00:24:09] Speaker 01: First, they said, well, plaintiff, one of the named plaintiffs had testified [00:24:14] Speaker 01: that she only occasionally received advance notice of the condition being triggered such that payday would move from the 5th and 20th to the 6th and 21st. [00:24:22] Speaker 01: In fact, that named plaintiff was only employed for one of those conditional paydays. [00:24:27] Speaker 01: That was the record before the trial court. [00:24:29] Speaker 01: In addition, whether or not employees received advance notice should not have created a disputed fact when defendants placed in the record every single advance notice that was sent to every single employee every time that condition was triggered and the payday moved. [00:24:43] Speaker 01: Now, that's a question about whether or not there's a fact dispute, but I also think the other issue that- But that's the problem, right? [00:24:50] Speaker 01: No. [00:24:50] Speaker 04: That's the problem. [00:24:51] Speaker 01: Sorry, I just mean from the legal standard, was it disputed, right? [00:24:54] Speaker 01: And the trial court relied on that to say it was. [00:24:56] Speaker 01: But I think that that was not a material dispute. [00:25:00] Speaker 01: And the reason why is because the question is whether employees were paid on payday, which means the 5th and 20th or the 6th and 21st when the condition is triggered. [00:25:07] Speaker 01: And in this case, there was no evidence otherwise. [00:25:10] Speaker 01: They were always paid by those dates. [00:25:12] Speaker 01: The evidence then, if plaintiff contested that she might not have received a notice, that's irrelevant to when she was actually paid. [00:25:20] Speaker 01: And in this case, again, [00:25:21] Speaker 01: there was no evidence the defendant's employees were not paid by the 5th and 20th or when the condition was triggered by the 6th and 21st. [00:25:28] Speaker 01: So we think it was error for the court to conclude otherwise. [00:25:32] Speaker 01: The other two points that the trial court made in concluding that there was an issue of fact were that employees were sometimes paid early. [00:25:39] Speaker 01: But early payment is not a violation of the law. [00:25:41] Speaker 01: It's legally immaterial to the question of whether or not they were paid by the deadline of payday. [00:25:46] Speaker 01: And again, they always were on the facts in this case. [00:25:49] Speaker 01: So we don't think that creates a material issue of fact. [00:25:52] Speaker 01: And then the final point that the court pointed to was the use of the word. [00:25:55] Speaker 00: So what I'm hearing you say, you're arguing factual disputes, but you're saying they weren't material factual disputes. [00:26:03] Speaker 01: That's correct, Your Honor. [00:26:04] Speaker 01: We don't think they were sufficient. [00:26:06] Speaker 00: So if we think they were material, then you lose on that. [00:26:09] Speaker 00: That's correct, Your Honor. [00:26:10] Speaker 00: OK. [00:26:11] Speaker 00: I think that focuses what you're asking. [00:26:13] Speaker 04: You turned to the equitable tolling [00:26:15] Speaker 04: arguments here because it's my understanding that your client through counsel said that if the plaintiffs agree to global mediation and agree to postpone all depositions and a motion for conditional certification, defendants will agree to toll [00:26:33] Speaker 04: the FLSA claims from March 1, 2018, the date that the complaint was filed. [00:26:39] Speaker 04: And five years later, he said, never mind. [00:26:43] Speaker 04: Why should that be allowed? [00:26:46] Speaker 01: Well, Your Honor, I think there's two problems with that. [00:26:48] Speaker 01: First of all, that is plaintiff's position that that email created is holding agreement. [00:26:52] Speaker 01: It is defendant's position that it did not. [00:26:54] Speaker 01: The parties clearly contemplated a separate standalone formalized agreement with signature lines. [00:26:59] Speaker 04: They said we have a deal. [00:27:02] Speaker 01: Plaintiffs said we have a deal. [00:27:03] Speaker 04: We have a deal. [00:27:05] Speaker 01: But then they countered every single point within that proposal. [00:27:09] Speaker 00: It looks like sharp elbows to me. [00:27:11] Speaker 00: It looks like you changed lawyers, then the other lawyers came in and said, we're not going to be bound by what someone else already said. [00:27:18] Speaker 00: If I were teaching an ethical class, I wouldn't [00:27:22] Speaker 00: You don't have my heart or my mind on that issue. [00:27:27] Speaker 01: I understand how it could look like that retrospectively from this perspective. [00:27:30] Speaker 01: But I think having litigated this case for many years on the ground, we pled a statute of limitations defense. [00:27:35] Speaker 01: We asserted it throughout litigation. [00:27:37] Speaker 01: Plaintiffs never pled any tolling defense. [00:27:39] Speaker 01: They never asserted it once. [00:27:40] Speaker 01: They never informed us of the existence of a tolling agreement. [00:27:43] Speaker 00: Regarding the tolling agreement, you did not raise your statute of frauds argument until after your motion for reconsider. [00:27:49] Speaker 00: So why isn't that forfeited? [00:27:51] Speaker 01: Well, that may be. [00:27:52] Speaker 01: It may be that we can argue the statute of fraud's argument. [00:27:55] Speaker 01: But I think it's material to the counter points here. [00:28:00] Speaker 01: When defense counsel said, if plaintiffs agree to these things, we will agree to tolling. [00:28:05] Speaker 01: And then she listed four things. [00:28:06] Speaker 01: And plaintiffs' response to that in red line did say we have a deal. [00:28:09] Speaker 01: But then it went on to say, instead of global mediation within 13 months, we want it within 30 days. [00:28:14] Speaker 01: Instead of a stay of discovery, we need extensive discovery [00:28:18] Speaker 01: to be able to evaluate our settlement offer for mediation. [00:28:21] Speaker 00: So how long did all this mediation and global all of that, how long did it go on? [00:28:25] Speaker 01: It didn't. [00:28:29] Speaker 01: There was only one state of discovery entering the case a month later for 13 days that's in the docket and so that would have been completely unnecessary had the parties in fact entered a formal stolen agreement in September as plaintiffs said that they did. [00:28:44] Speaker 01: That never happened. [00:28:45] Speaker 01: Global mediation did not occur in this case. [00:28:47] Speaker 01: In fact, the only mediation that did occur was for this particular case, the federal case, not the state case, right before trial, five years after this alleged tolling agreement was entered into. [00:28:57] Speaker 01: It's very clear from the emails between the parties where Mr. Egan sent a formalized standalone tolling agreement to prior counsel and said, let's enter a tolling agreement. [00:29:07] Speaker 01: And then a few months went by, and she said, did you have a proposal you want me to look at? [00:29:10] Speaker 01: And he sent it back to her. [00:29:11] Speaker 01: She wanted a formal standalone document that they contemplated signing. [00:29:16] Speaker 01: And in the case that defendants discussed in our briefing, Nan's trucking view Volvo, the court there said that when parties contemplate setting out a formalized agreement like that with a wet signature, you cannot then find that there was mutual assent where no such formalized agreement was signed and entered into by both parties. [00:29:33] Speaker 01: And I think that's the case here. [00:29:36] Speaker 00: And then you can say, gotcha. [00:29:38] Speaker 01: Well, I think, Your Honor, that this was just a simple case of a misunderstanding that was used, frankly, right before trial. [00:29:45] Speaker 01: I mean, this email was put in our faces during pretrial filings, and nobody had seen it for five years before that. [00:29:52] Speaker 01: OK. [00:29:54] Speaker 01: Our final point that we just want to address briefly is on the attorney's fees. [00:29:57] Speaker 01: Our contention on that is simply that there was no evidence in the record to support the court's decision that there was a change in defendant's payday policies as a result of plaintiff's lawsuit. [00:30:06] Speaker 01: Plaintiffs had filed a pre-litigation demand letter on November 20, 2017. [00:30:11] Speaker 01: Or sorry, I shouldn't say filed. [00:30:12] Speaker 01: They mailed to defendants a pre-litigation demand letter on November 20, 2017, which is of course November 2017 is when defendants had changed their handbook policy, alleging that payments were being paid late, that employees were being paid late. [00:30:27] Speaker 01: And so that evidence, I think, [00:30:32] Speaker 01: creates a conflict in the conclusion that there was a change in defendant's payday practices as a result of this litigation. [00:30:39] Speaker 01: After that handbook was implemented, defendants sold the dealerships and no other changes were made with respect to any of their payday policies or other employment policies. [00:30:50] Speaker 01: And I would like to reserve the remainder of my time, Your Honor. [00:30:52] Speaker 00: Okay, thank you. [00:30:53] Speaker 01: Thank you. [00:31:05] Speaker 02: Thank you your honor. [00:31:07] Speaker 02: First, I think that [00:31:09] Speaker 02: There's no question that if this court rules and the Oregon Supreme Court disagrees, then the Oregon Supreme Court interpretate. [00:31:17] Speaker 02: Nobody questions that. [00:31:19] Speaker 02: No wonder why. [00:31:19] Speaker 02: We were talking about the trial. [00:31:21] Speaker 02: I was, at least, talking about the trial court level. [00:31:23] Speaker 02: Under Oregon law, federal cases interpreting Oregon statutes can be followed only if the trial court agrees with the reasoning, basically. [00:31:33] Speaker 02: But it's not precedent. [00:31:35] Speaker 02: I think that was the only thing we were talking about. [00:31:38] Speaker 02: I'd like to point out. [00:31:40] Speaker 02: The difference between liquidated damages and penalty wages. [00:31:47] Speaker 02: In the North Marion School District versus Axstar, the reason why it didn't matter when the payday was is because for the prevailing wage statute, it's liquidated damages. [00:32:01] Speaker 02: It's twice the amount that you were underpaid. [00:32:04] Speaker 02: You don't need to know the due date to calculate that. [00:32:08] Speaker 02: It's just twice the amount you're underpaid. [00:32:11] Speaker 02: And so if you're eventually paid the correct amount, you haven't been underpaid anything. [00:32:15] Speaker 02: That would be parallel to the unpaid wages under Oregon law. [00:32:19] Speaker 02: But for minimum wage and overtime, you can have a violation during employment. [00:32:25] Speaker 02: That's the Cornier versus Tulatch case. [00:32:30] Speaker 02: If that's not due until termination, then the penalty wage statute would be utterly redundant, and we must presume that the legislature does not enact meaningless statutes. [00:32:44] Speaker 02: In other words, if you apply the same standard as regular wages, that they're not due and penalty wages accruing until the end of your employment, [00:32:54] Speaker 02: then you don't need a penalty wage statute for minimum wage and overtime because those are already due under regular wages. [00:33:02] Speaker 02: The fact that they attach the penalty wage provision to those violations that says your wages continue eight hours per day from the due date until you're paid means there has to be a due date. [00:33:14] Speaker 02: Now, I understand that, you know, we have a [00:33:16] Speaker 02: There's a difference of opinion between my friend and I in terms of whether the, what parts of 652-120 apply to that due date. [00:33:26] Speaker 02: I think even if there is a, I disagree with the grace period argument, but even if there were a grace period for regular wages before Boley could assess fines, there has to be a single due date for purposes of penalty wages for minimum wages and overtime because that's the way the statute is written. [00:33:45] Speaker 00: So let me talk about the FAA awards. [00:33:48] Speaker 00: Okay, the district court said the results were quote unquote very good. [00:33:53] Speaker 00: Okay, the district court sat through the trial, all of that. [00:33:56] Speaker 00: But I think, but didn't really discuss exactly what very good meant. [00:34:03] Speaker 00: So do we need to have the district court explain it further? [00:34:08] Speaker 00: Because one of the things that district court talked about were the settlement talks that you had before. [00:34:14] Speaker 00: And you were asking for $7 million at some point. [00:34:18] Speaker 00: They were under $60,000 or whatever. [00:34:21] Speaker 00: I don't think you would even say that was a very good result back then. [00:34:27] Speaker 00: I mean, it's a very good, it's gotta be a very good result for you or you don't get your fee here. [00:34:35] Speaker 00: But I don't think, but in looking at what the negotiations were, and I know that's just one factor and it doesn't do all of that, but I don't think you would even say that was very good. [00:34:47] Speaker 02: Well, for this case, it was. [00:34:49] Speaker 02: So here's how this worked out. [00:34:51] Speaker 02: There is a parallel proceeding in state court that's got a couple of other [00:34:56] Speaker 02: Causes of action that are due that are separately being litigated that are worth a substantial amount of money We in mediation as the mediator suggested we're proposing to universally settle all the claims between the parties both state and federal That's where that higher number comes from [00:35:14] Speaker 02: The mediator asked us, if I can get them up to $100,000 just for the federal plus attorney fees, would you take that? [00:35:20] Speaker 02: And I said, yes, but they never got there. [00:35:22] Speaker 02: So it didn't settle, is the only thing that's in the record. [00:35:27] Speaker 00: What's the best argument that the district court articulated what very good means? [00:35:32] Speaker 02: The change in the policy, I think that's something that didn't come up in the McCown case, is that here, what the trial court did find as a matter of fact, that there was a change in policy brought about as a result of the plaintiff's actions. [00:35:47] Speaker 02: And I think, again, defendant leaves out the fact that there was also an October demand letter [00:35:53] Speaker 02: and a November demand letter, and then the handbook changed. [00:35:56] Speaker 02: So there's certainly facts that support that finding of fact by the trial court. [00:36:02] Speaker 02: That I think is the thing that is the most often cited in circuit decisions that send cases back to the trial court to determine. [00:36:12] Speaker 02: They may say, you know, look, the numbers look off to us. [00:36:16] Speaker 02: On remand, consider whether there was something other than the numbers that you should... Did they challenge the load star? [00:36:23] Speaker 02: No. [00:36:24] Speaker 02: No, they just said that the trial court abused its discretion in not further reducing the lodestar is their claim. [00:36:32] Speaker 02: One thing I did want to point out is the defendants say that they brought up the statute of limitations several times and defendants never raised tolling. [00:36:39] Speaker 02: In both of their summary judgment arguments, they only moved to dismiss claims more than three years before the filing of the complaint. [00:36:47] Speaker 02: that's entirely consistent with the tolling agreement. [00:36:49] Speaker 02: The tolling agreement was that we will go backwards from the filing of the complaint. [00:36:54] Speaker 02: Plaintiffs never had to raise tolling because defendants never argued a position that would be contrary to that. [00:36:59] Speaker 04: But one thing that she did say was that there ultimately was not a mediation consistent with what apparently was sought to be agreed to. [00:37:10] Speaker 02: There was a judicial settlement conference scheduled. [00:37:14] Speaker 02: Each side presented their initial numbers to the judge. [00:37:18] Speaker 04: The judge said... So that did happen. [00:37:22] Speaker 02: Yes. [00:37:23] Speaker 02: So here's what happened. [00:37:24] Speaker 02: We all logged on at the beginning of the day. [00:37:26] Speaker 02: The judge said, you guys are really far apart. [00:37:28] Speaker 02: I don't think this is worth proceeding. [00:37:29] Speaker 02: Plaintiff said, OK, fine. [00:37:31] Speaker 02: Let's not do it. [00:37:31] Speaker 02: And the defendant said, well, we think we should do it. [00:37:34] Speaker 02: And the judge said, well, I'm canceling it. [00:37:35] Speaker 02: So we made all the preparations for the judicial settlement conference. [00:37:39] Speaker 02: And the judge says, I don't think this is going to happen. [00:37:42] Speaker 02: I see. [00:37:44] Speaker 04: Thank you. [00:37:44] Speaker 00: Okay, your time's up. [00:37:45] Speaker 00: Thank you very much. [00:37:47] Speaker 00: My colleagues don't have additional questions. [00:37:49] Speaker 00: So, all right, we'll hear from Miss St. [00:37:53] Speaker 00: Clair on the rebuttal. [00:37:56] Speaker 01: Thank you, Your Honor. [00:37:56] Speaker 01: I'll just respond to a couple of quick points here. [00:37:59] Speaker 01: I think Mr. Egan mentioned the North Marion case. [00:38:02] Speaker 01: And in that case, again, the legislature provided for two separate remedies, one for timing and one for rate requirements, and said you cannot imply more than what the legislature expressly provided for in those statutes, which is what plaintiffs are asking the court to do on their Oregon claims. [00:38:18] Speaker 01: By implying a deadline and a penalty right that doesn't apply to rate statutes, [00:38:23] Speaker 01: and ignoring the deadlines and the remedies that do exist under the wage timing statutes. [00:38:29] Speaker 01: And I want to take a moment quickly to address the fact that there are remedies, unlike Mr. Egan's contention before you today, when minimum wages are not paid by the deadline. [00:38:39] Speaker 01: The statutes in 652 provide several of those. [00:38:42] Speaker 01: You can go to BOLI, and you can tell BOLI I wasn't paid my minimum wage or overtime by payday. [00:38:46] Speaker 01: And BOLI can issue a bond against the employer. [00:38:49] Speaker 01: You can get an attorney. [00:38:50] Speaker 01: The attorney can send a demand letter. [00:38:52] Speaker 01: And under 652-200, if you haven't responded to that letter, if you haven't paid those wages within four days, then they can file suit and collect attorney's fees and penalties. [00:39:02] Speaker 01: And so there are remedies provided in 652 for precisely the scenario the plaintiff's counsel is asking you to imply some other separate remedy into today. [00:39:10] Speaker 01: That's not consistent with the legislature. [00:39:12] Speaker 01: That's what the state Supreme Court said in North Marion. [00:39:16] Speaker 01: Moving on quickly to the settlement issue. [00:39:19] Speaker 01: You know plaintiffs talked about that. [00:39:20] Speaker 01: They wanted to settle and defendants to not I don't know that that's they wanted to settle all of the cases that the pre-trial mediation Earlier you said that there was no mediation, but I guess you did go you did arrive And is that not the case no your honor I think we placed all this evidence in the record before the trial court we went back in and [00:39:39] Speaker 01: and grabbed the transcript. [00:39:42] Speaker 01: And I wasn't present for that. [00:39:44] Speaker 01: This is prior counsel, so I can't say precisely what occurred there. [00:39:48] Speaker 01: But the transcript from Judge Brown at the time was that plaintiffs were not [00:39:52] Speaker 01: ready to proceed and refused. [00:39:54] Speaker 01: And so I think that's a very different representation of what you're saying now, that both parties showed up and they were just so far apart that it didn't go anywhere, that it didn't settle. [00:40:02] Speaker 01: That is not the evidence that is in the record on this issue. [00:40:06] Speaker 01: Judge Brown specifically said it was plaintiffs that refused to settle. [00:40:09] Speaker 01: Defendants were prepared to go forward. [00:40:11] Speaker 01: That is in the record. [00:40:12] Speaker 01: That was on the docket in a minutes order as well. [00:40:15] Speaker 01: So I just don't think that's consistent with the evidence on that issue. [00:40:19] Speaker 01: And finally, their representation that when mediation did occur right before trial, that plaintiffs wanted to settle both cases and defendants did not. [00:40:31] Speaker 01: There's nothing about that on the record, and so I just think that's outside the scope of the appeal today. [00:40:36] Speaker 01: If you have any other questions on the issues presented, I'm happy to answer them. [00:40:39] Speaker 01: Otherwise, thank you all for your time and attention. [00:40:45] Speaker 00: Thank you both for your arguments. [00:40:47] Speaker 04: Judge Callahan, I'm sorry, but I do have a question for counsel on that last point. [00:40:51] Speaker 00: Yes. [00:40:51] Speaker 00: Is that okay? [00:40:53] Speaker 04: Council, could you address that final point? [00:40:55] Speaker 04: Someone's telling me the truth. [00:40:56] Speaker 04: I don't know who is. [00:40:57] Speaker 04: And so could you address that point? [00:41:00] Speaker 02: Of whether the settlement conference happened? [00:41:02] Speaker 04: Did Judge Brown say exactly what she said? [00:41:06] Speaker 04: That plaintiffs were not ready to settle at that. [00:41:10] Speaker 04: Judge Brown never said that. [00:41:11] Speaker 04: I'm not going to find that in the transcript. [00:41:13] Speaker 02: What she said was, I forget if she laid out her communications with the party. [00:41:19] Speaker 02: She said, [00:41:20] Speaker 02: She did note the plaintiffs did not think it was likely to go forward and defendants did still want to have this out on my conference But that's I don't I forget how much of the preamble she put in there in terms of her communications beforehand Thank You counsel that seems to be different than what you? [00:41:35] Speaker 00: represented to us earlier Well, I think that the record is more than just what she said so Thank you Okay, this matter will stand submitted this court is in recess till tomorrow morning at 9 a.m.