WEBVTT 2 00:00:02.258 --> 00:00:08.006 DID YOU HAVE A QUESTION. JUSTICE ALBIN: IN MY QUESTION TO -- ARE YOU 3 00:00:08.006 --> 00:00:12.232 SUGGESTING THAT A BUSINESS HAS TO SEEK A FORMAL OPINION P. IT'S JUST ONE 4 00:00:12.232 --> 00:00:16.126 TOOL. MY QUESTION TO YOU IS: COULD CREAM-O-LAND HAVE RELIED 5 00:00:16.126 --> 00:00:24.144 ON JUST ONE OF THESE INFORMAL INVESTIGATIVE DECISIONS AND, THEREFORE, HAVE BEEN 6 00:00:24.144 --> 00:00:30.092 FAILED TO COMMUNICATE THE DEFENSE. FORGET ABOUT THREE. WOULD ONE HAVE BEEN 7 00:00:30.092 --> 00:00:32.585 ENOUGH IN YOUR OPINION. JEFFREY S. JACOBSON: I THINK IT DEPENDS 8 00:00:32.585 --> 00:00:35.352 ON WHICH ONE AND WHAT IT SAID. I CAN TO THE EXTENT THAT THE DEPARTMENT 9 00:00:35.352 --> 00:00:39.725 OF LABOR THROUGH AN AUTHORIZED REPRESENTATIVE SAID YOU ARE A TRUCKING 10 00:00:39.725 --> 00:00:43.244 INDUSTRY EMPLOYER AND, THEREFORE, YOU SHOULD FOLLOW THE TRUCKING INDUSTRY 11 00:00:43.244 --> 00:00:48.036 EMPLOYER RULES AND THAT'S WHAT OUR DEPARTMENT HAS DETERMINED FOR YOU, I THINK ONE 12 00:00:48.036 --> 00:00:53.275 WOULD BE ENOUGH. IT'S EASY TO IMAGINE A LESS FORMAL COMMUNICATION THAT WOULD 13 00:00:53.275 --> 00:00:56.299 NOT TRIGTHER DEFENSE, BUT YOLK THOSE ARE THE FACTS THAT ARE BEFORE THE COURT 14 00:00:56.299 --> 00:01:01.322 AND AGAIN, I WOULD ASK THE COURT WHEN ITS RENDERS ITS DECISION IN THIS CASE TO THINK 15 00:01:01.322 --> 00:01:05.673 NOT ONLY ABOUT CREAM-O-LAND, THE FACTS OF WHICH THIS CASE LOOK MORE LIKE 16 00:01:05.673 --> 00:01:09.611 LAW SCHOOL HYPO THAN COMBEERT CASE I HAVE SEEN BEFORE THIS COURT, BUT TO THINK 17 00:01:09.611 --> 00:01:13.510 ABOUT THE BROADER PICTURE THROUGHOUT NEW JERSEY ABOUT HOUSE SMALL BUSINESSES 18 00:01:13.510 --> 00:01:18.047 ARE SUPPOSED TO TAKE ADVANTAGE OF THE GOOD FAITH EXCEPTION. CHIEF 19 00:01:18.047 --> 00:01:23.240 JUSTICE RABNER: QUESTIONS ANYONE? THANK YOU, MR. JACOBSON. 20 00:01:23.240 --> 00:01:29.070 CAROLINE JONES: I WANT TO CONGRAD WIT THE JUSTICE ON JOINING THE FINEST. 21 00:01:29.070 --> 00:01:36.614 THOMAS A. LINTHORST: THE LAW IS NOT SUPPOSED TO BE A GOT 22 00:01:36.614 --> 00:01:43.857 CHAW AND THE GOOD-FAITH DEFENSE IS DESIGNED TO PREVENT A GOT CHAW. CREAM-O-LAND 23 00:01:43.857 --> 00:01:47.501 IS TOLD THREE TIMES BY THE REGULATOR WITH RESPONSIBILITY FOR ENFORCING THE 24 00:01:47.501 --> 00:01:52.722 STATUTE THAT IT IS A TRUCKING INDUSTRY EMPLOYER AND, THEREFORE, MAY PAY OVERTIME 25 00:01:52.722 --> 00:01:57.536 A CERTAIN WAY, AND IT RELIES ON THOSE RULINGS AND IT IS CONCEDED THAT IT 26 00:01:57.536 --> 00:02:04.239 DID RELY, THE GOOD-FAITH DEFENSE DOES NOT PERMIT A FINDING TO SAY GOT CHAW AT THE SAME 27 00:02:04.239 --> 00:02:09.685 TIME YOU WERE TOLD ALL OF THOSE THINGS BY THAT REGULATOR YOU WERE NOT ACTUALLY 28 00:02:09.685 --> 00:02:16.730 A DROOI GLITCH GLITCH. ARGUMENT IS MADE THAT THESE DETERMINATIONS DO NOT FALL 29 00:02:16.730 --> 00:02:20.552 WITHIN THE GOOD-FAITH DEFENSE BECAUSE THEY WERE NOT PERSONALLY TAKEN OR ISSUED 30 00:02:20.552 --> 00:02:28.574 BY THE COMMISSIONER OR DIRECTOR AS AN INDIVIDUAL AND ACTIONS TAKEN ON THAT 31 00:02:28.574 --> 00:02:33.314 BEHALF DO NOT COUNT. WE NEED ONLY GO ONE SECTION OVER IN THE 32 00:02:33.314 --> 00:02:48.103 STATUTE TO 25.1 WHICH INDICATES THAT AN ACTION MAY BE COMMENCED SEEKING WAGES GOING BACK 33 00:02:48.103 --> 00:02:49.817 CURRENTLY SIX YEARS, PROBABLY TWO YEARS WHEN THIS WAS FILED AND WE WILL 34 00:02:49.817 --> 00:02:52.626 DETERMINE AN ACTION IS FILED WHEN WITS RR FILED WITH THE COMMISSIONER OR THE DIRECTOR. 35 00:02:52.626 --> 00:02:58.148 NOW, DOES ANYBODY THINK THAT THE COMMISSIONER OR THE DIRECTOR, HIM OR HERSELF 36 00:02:58.148 --> 00:03:02.438 HAVE TO BE SITTING AT THE FILING WINDOW IN ORDER FOR AN ACTION TO BE PROPERLY 37 00:03:02.438 --> 00:03:07.335 COMMENCED. OTHERWISE, THE STATUTE OF LIMITATIONS HAD CONTINUES TO RUN? OF COURSE 38 00:03:07.335 --> 00:03:11.475 NOT. THAT'S NOT THE MODERN WAY THAT AGENCIES OPERATE AND IF THE HEADS OF 39 00:03:11.475 --> 00:03:16.700 THOSE AGENCIES HAD TO PERSONALLY EXERCISE ALL OF THE POWERS AND AUTHORITIES VESTED 40 00:03:16.700 --> 00:03:22.889 IN THEM F THE STATUTE DOES NOT SPECIFICALLY SAY OR THOSE ACTING ON 41 00:03:22.889 --> 00:03:29.318 THEIR BEHALF H IT WAS SIGNIFICANTLY INTERRUPT AGENCY OPERATIONS. 42 00:03:29.318 --> 00:03:34.582 THE SUGGESTION HAS FURTHER BEEN MADE THAT THESE WERE LOW-LEVEL INVESTIGATIVE 43 00:03:34.582 --> 00:03:43.285 PRELIMINARY INFORMAL -- I'M QUITE CONFIDENT THAT WHEN THE INVESTIGATOR APPEARED 44 00:03:43.285 --> 00:03:50.653 AT CREAM-O-LAND, ARMED WITH ALL THE AUTHORITIES UNDER THE STATUTE TO COMPEL EVIDENCE, 45 00:03:50.653 --> 00:03:56.152 TO COMPEL SWORN STATEMENTS AND TO ASSESS PENALTIES AND WHEN IT DID IB, IN 46 00:03:56.152 --> 00:04:03.146 FACT, ASSESS $40,000 IN PENALTIES, CREAM-O-LAND SAW NOTHING INFORMAL ABOUT THAT. 47 00:04:03.146 --> 00:04:07.693 NOW T HAD THE RIGHT TO APPEAL AND IT DID APPEAL. AND AGAIN, 48 00:04:07.693 --> 00:04:14.365 AT A HIGHER LEVEL, THE HEARING OFFICER LOOKED AT THE RECORD, LOOKED AT THE RESULTS 49 00:04:14.365 --> 00:04:21.050 OF THAT FULL INVESTIGATION AND MADE THE VERY CONSQUENCHAL DETERMINATION 50 00:04:21.050 --> 00:04:27.341 THAT HE WOULD ABATE THE PENALTIES. NOW, CREAM-O-LAND HAD NO MECHANISM 51 00:04:27.341 --> 00:04:31.964 TO TAKE IT FURTHER AND NO REASON TO TAKE IT FURTHER. AND THAT'S A VERY 52 00:04:31.964 --> 00:04:38.488 COMMON DECISION-MAKING HIERARCHY IN HAD GOVERNMENT AGENCIES. YOU HAVE SEVERAL 53 00:04:38.488 --> 00:04:44.774 LEVELS. THEY CAN BE TAKEN TO HIGHER LEFSHLS, BUT AT WHATEVER LEVEL IT 54 00:04:44.774 --> 00:04:49.112 STOPS, IT IS THAJ PAEVENS ACTION. AND IF IT HAD STOPPED WITH THE ASSESSMENT OF 55 00:04:49.112 --> 00:04:54.528 40,000 IN PENALTIES, CREAM-O-LAND OWES 40,000 HIN PENALTIES. IT STOPPED WITH 56 00:04:54.528 --> 00:05:01.022 PADETERMINATION AND A RULING EXPRESSLY ON THE GROUNDS THAT CREAM-O-LAND WAS 57 00:05:01.022 --> 00:05:07.051 A TRUCKING INDUSTRY EMPLOYER. THAT WAS NOT A NARROW DETERMINATION. THAT WAS NOT 58 00:05:07.051 --> 00:05:14.466 A DETERMINATION THAT JOHN DOE WAS PROPERLY PAID ONE HOUR OF OVERTIME IN 59 00:05:14.466 --> 00:05:21.614 FEBRUARY. IT WAS A CONSTRUCTION OF THE TERM FOR A TRUCKING INDUSTRY EMPLOYER. 60 00:05:21.614 --> 00:05:27.861 CREAM-O-LAND WAS DETERMINED AND WAS TOLD IT WAS DETERMINED BY THE REGULAR THAT 61 00:05:27.861 --> 00:05:33.882 IT'S A TRUCKING INDUSTRY EMPLOYER ON THREE OCCASIONS AND EACH OF THOSE THINGS IS 62 00:05:33.882 --> 00:05:39.417 MORE THAN ENOUGH FOR IT TO HAVE RELIED, WHICH IT DID RELY, IN GOOD FAITH ON 63 00:05:39.417 --> 00:05:44.904 THAT DETERMINATION AND THE STATUTE UNDER THESE CIRCUMSTANCES PROVIDES IT WITH A 64 00:05:44.904 --> 00:05:51.662 DCHS. CHIEF JUSTICE RABNER: QUESTIONS ANYONE? 65 00:05:51.662 --> 00:05:54.421 ANYTHING ELSE, MR. LINTHORST? THOMAS A. LINTHORST: NO, THANK YOU, 66 00:05:54.421 --> 00:06:02.803 YOUR HONOR. CHIEF JUSTICE RABNER: MR. SATTIRAJU. RAVI 67 00:06:02.803 --> 00:06:08.530 SATTIRAJU: GOOD MORNING, YOUR HONOR. A. JUSTICE -- ME IT PLEASE THE COURT. 68 00:06:08.530 --> 00:06:13.433 THERE ARE CONSEQUENTLY ISSUES THAT ARE BEFORE THIS COURT ON THIS APPEAL. THE LAW AS 69 00:06:13.433 --> 00:06:19.249 INTERPRETED BY THIS COURT HAS A SAL WHAT ATTORNEY AND UNIQUE PURPOSE. REGARDING THE SCOPE 70 00:06:19.249 --> 00:06:24.421 AND APPLICATION ON IT MINDFUL OF THE NEED TO FURTHER ITS READING OR PURPOSE. IT'S THE 71 00:06:24.421 --> 00:06:29.679 LAWS TO BE INTERPRETED BROADLY WITH THE IDEA WHICH WAS SET FORTH IN THE CASE CAST AGO 72 00:06:29.679 --> 00:06:35.721 WIDE NET FOR WORKERS WHO FALL UNDER ITS PROTECTIONS, THE APPELLANTS IN THIS CASE WANT 73 00:06:35.721 --> 00:06:43.148 A STRICT CLASSIC WORKERS BASED ON HANDWRITTEN NOTES AND A COUPLE SINCE BY MIDLEVEL 74 00:06:43.148 --> 00:06:47.117 EMPLOYEES. THERE'S NO BASIS UNDER THIS FOR THIS STATUTE. IN THIS CASE ALL WE ASK FOR 75 00:06:47.117 --> 00:06:52.313 IS A PLANE READING OF SECTION 56 A25 POINT A TWO WHICH IS WHAT THE APPELLATE DIVISION 76 00:06:52.313 --> 00:06:57.861 DID HERE. AND TO BREAK DOWN THE STATUTE TO ADDRESS THE SPECIFIC STATUTES I 77 00:06:57.861 --> 00:07:03.909 WANT TO TALK ABOUT ONE ISSUE THAT WAS NOT APPEALED BY APPELLANTS IN THIS CASE AND THAT 78 00:07:03.909 --> 00:07:08.372 WAS A DETERMINATION BY THE APPELLATE DIVISION THAT DISCOVERY HAD NOT BEEN COMPLETED. WE 79 00:07:08.372 --> 00:07:13.445 DID NOT HAVE -- THEY MOVED FOR DISCOVERY THREE MONTHS -- THEY MOVE FOR SUMMARY JUDGMENT 80 00:07:13.445 --> 00:07:18.117 THREE MONTHS BEFORE THE END OF DISCOVERY, BEFORE WE HAD THE OPPORTUNITIES TO DEPOSE PEOPLE 81 00:07:18.117 --> 00:07:24.051 FROM CREAM-O-LAND TO INVESTIGATE WHAT THEIR -- WHAT THEIR REPRESENTATIONS AND AND WHAT 82 00:07:24.051 --> 00:07:31.665 FACTS THAT LED THEM TO ARGUE THAT THEY WEREN'T -- THAT THEY WEREN'T A TRUCKING INDUSTRY 83 00:07:31.665 --> 00:07:35.216 EMPLOYER. THERE'S VERY STRONG CASE LAW THAT JUSTICE BECAUSE YOU HAVE TRUCKING FUNCTION 84 00:07:35.216 --> 00:07:39.273 DOES NOT NECESSARILY MEAN THAT YOU'RE A TRUCKING INDUSTRY EMPLOYER. WE DIDN'T HAVE THAT 85 00:07:39.273 --> 00:07:43.264 BECAUSE THEY MOVED FOR DISCOVERY BEFORE WE DEPOSED ANY OF THE PEOPLE FROM CREAM-O-LAND. 86 00:07:43.264 --> 00:07:48.979 THAT ISSUE IS NOT ON APPEAL. SO REGARDLESS OF WHAT HAPPENED IN DETERMINATION HERE THIS 87 00:07:48.979 --> 00:07:52.584 CASE SHOULD BE REMANDED FOR US TO COMPLETE OUR DISCOVERY ON THIS IMPORTANT ISSUE. 88 00:07:52.584 --> 00:08:01.641 NOW LOOKING AT THE SPECIFIC LANGUAGE IN SECTION 56 A25.2 THERE'S TWO SECTIONS MY COLLEAGUES 89 00:08:01.641 --> 00:08:05.268 HAVE ADDRESSED I'D LIKE TO ADDRESS THEM AS WELL. LIKE TO TALK ABOUT WHAT THE STATUTE 90 00:08:05.268 --> 00:08:11.375 DOES NOT SAY. THE STATUTE DOES NOT SAY THAT IN ORDER FOR THE GOOD FAITH DEFENSE 91 00:08:11.375 --> 00:08:16.285 TO BE IMPOSED THERE'S NO MENTION OF HEARING OFFICERS. THERE'S NO MENTION OF 92 00:08:16.285 --> 00:08:21.790 INVESTIGATORS. THERE'S NO MENTION OF THAT WHATSOEVER AND YET DEFENDANTS OR THE 93 00:08:21.790 --> 00:08:25.389 APPELLANTS WANT TO COME FORWARD AND SAY WELL WE SHOULD READ THAT INTO THE STATUTE WHEN 94 00:08:25.389 --> 00:08:29.647 IT'S NOT THERE. AND THE POLICY ARGUMENTS THEY'RE MAKING ABOUT WHY IT'S IMPORTANT THAT 95 00:08:29.647 --> 00:08:33.667 WE DO, THAT THAT'S NOT -- THAT'S AN ARGUMENT FOR THE LEGISLATURE TO AMEND THE STATUTE 96 00:08:33.667 --> 00:08:40.632 TO INCLUDE DETERMINATIONS BY HEARING OFFICERS OR BY -- OR BY INVESTIGATORS. THE STATUTE 97 00:08:40.632 --> 00:08:45.866 DOESN'T SAY THAT. SECTION 1 SPECIFICALLY SAYS THE COMMISSIONER OF THE 98 00:08:45.866 --> 00:08:51.undefined DEPARTMENT OF LABOR OR THE DIRECTOR OF THE WAGE AND HOUR BUREAU. OTHER PARTS THE STATUTE 100 00:08:55.307 --> 00:09:00.082 SECTION DOESN'T SAY THAT. BECAUSE THE LEGISLATURE WANTS TO CAST A WIDE NET. IT 101 00:09:00.082 --> 00:09:05.440 DOESN'T WANT IT TO BE EASY FOR AN EMPLOYER TO USE -- TO INVOKE THIS DEFENSE BECAUSE BY VIRTUE 102 00:09:05.440 --> 00:09:10.804 OF INVOKING THIS DEFENSE YOU'RE STRIPPING PEOPLE OF THEIR STATUTORY RIGHTS. SO 103 00:09:10.804 --> 00:09:17.805 SECTION 1, YOU'RE NOT BEING MORE CLEAR THAT THESE ARE THE TWO PEOPLE WHO ARE BY WHOSE 104 00:09:17.805 --> 00:09:24.386 AUTHORITY AN EMPLOYER IS ALLOWED TO MAKE A GOOD FAITH DEFENSE BACK AND FORTH ON THEIR 105 00:09:24.386 --> 00:09:31.163 REGULATION ORDER MOVING APPROVAL. THAT DOESN'T EXIST HERE. THE SECOND PART 106 00:09:31.163 --> 00:09:37.312 ANY ADMINISTRATIVE PRACTICE FOR ENFORCEMENT POLICY IN THE DEPARTMENT OR BUREAU WITH 107 00:09:37.312 --> 00:09:41.502 RESPECT TO THE CLASS OF EMPLOYERS TO WHICH HE BELONGED. THE DEPARTMENT OF LABOR 108 00:09:41.502 --> 00:09:47.180 ISSUES AN ENFORCEMENT MANUAL, THEY ISSUE PUBLICATIONS, THEY RESPOND TO OPINION LETTERS 109 00:09:47.180 --> 00:09:53.848 AND AOEUFRBL IN EMPLOYMENT FOR 20 YEARS I'M NOT AWARE OF ANY REQUESTS FOR AN OPINION LETTER. 110 00:09:53.848 --> 00:10:00.013 SO WHAT WE HAVE HERE THERE ARE MECHANISMS FOR THEM TO RELY ON THEM. THEURP 111 00:10:00.013 --> 00:10:06.062 REGION ARE FOUND TO BE INVALIDATED OR TO BE BOUND TO GO BEYOND THE SCOPE OF THE STATUTE. 112 00:10:06.062 --> 00:10:10.999 IF THAT WAS THE CASE IN THIS CASE WHERE REGULATION WAS INVALIDATED AND THEY SHOWED 113 00:10:10.999 --> 00:10:14.561 THEY RELIED ON IT THEY WOULD HAVE A DEFENSE BECAUSE THERE'S A GOOD REASON FOR IT. BUT 114 00:10:14.561 --> 00:10:18.733 THE FACT THAT HE RELY ON THESE THREE COMMUNICATIONS DOES NOT MEET THE HIGH 115 00:10:18.733 --> 00:10:23.891 STANDARD THAT WAS PUT IN BY THIS SECTION. AND IF DEFENDANTS WANT TO GO TO THE LEGISLATURE 116 00:10:23.891 --> 00:10:29.861 AND SAY IT SHOULD BE EASIER TO GO TO A GOOD FAITH DEFENSE THAT'S THEIR RIGHT TO DO THAT 117 00:10:29.861 --> 00:10:33.103 AND THEY CAN SEE WHERE Z WHETHER THEY CAN GET THE LEGISLATURE TO PASS THAT. BUT AS IT'S 118 00:10:33.103 --> 00:10:42.052 WRITTEN RIGHT NOW, IT DOES NOT MEET THE STANDARD. THERE ARE OTHER THINGS THAT 119 00:10:42.052 --> 00:10:48.052 THEY -- THERE'S ONE OTHER POINT THAT WAS RAISED THAT I P WANTED TO ADDRESS IN TERMS OF 120 00:10:48.052 --> 00:10:57.886 WHAT IS, WORKS THE -- ARE THESE EMPLOYEES HOLDING THEM DOWN. THERE'S NOTHING IN THE 121 00:10:57.886 --> 00:11:03.878 RECORD BASED ON THESE THREE DOCUMENTS TO INDICATE WHAT DID CREAM-O-LAND REPRESENT TO THIS 122 00:11:03.878 --> 00:11:09.823 INVESTIGATOR. WHAT DID THEY SAY TO THIS HEARING OFFICER UNDER WHAT DEFENDANT IS PROPOSING 123 00:11:09.823 --> 00:11:14.175 MISREPRESENTATIONS COULD BE MADE THERE COULDN'T BE A COMPLETE INVESTIGATION OR ITEMS THAT 124 00:11:14.175 --> 00:11:18.804 WERE LEFT OUT AN IN KPRAOET RECORD ON WHICH THESE INVESTIGATORS OR HEARING OFFICERS MADE 125 00:11:18.804 --> 00:11:23.590 THEIR DETERMINATIONS. WE DON'T KNOW THAT THERE IS NO RECORD THAT'S BEEN PRESENTED CERTAINLY 126 00:11:23.590 --> 00:11:28.536 IN THE TWO E-MAILS AND NOT REALLY THE HANDWRITTEN NOTES. THAT'S WHY -- I'M SORRY, YOUR HONOR. 127 00:11:28.536 --> 00:11:31.244 CHIEF JUSTICE RABNER: NO. FINISH YOUR ANSWER. SORRY. RAVI 128 00:11:31.244 --> 00:11:36.897 SATTIRAJU: THAT'S WHY THE LEGISLATURE DETERMINED THAT THE HEARING OFFICER AND AN THE 129 00:11:36.897 --> 00:11:46.329 INVESTIGATOR DID NOT HAVE THE AUTHORITY TO BIND -- TO ALLOW THEM TO GO WITH A GOOD FAITH 130 00:11:46.329 --> 00:11:49.244 DEFENSE. CHIEF JUSTICE RABNER: CAN YOU AMPLIFY PARTS OF YOUR EARLIER ANSWER. 131 00:11:49.244 --> 00:11:55.684 WHAT IS IT THAT AN EMPLOYER CAN DO TO SEEK PROTECTION IN A SITUATION SUCH AS THIS WHERE 132 00:11:55.684 --> 00:12:00.570 YOU HAVE THREE PROCEEDINGS THAT HAVE BEEN COMPLETED AND THEY'VE PREVAILED. WHAT STEMS 133 00:12:00.570 --> 00:12:07.764 PRACTICE CANCEL CAN AN EMPLOYER TAKE IN ORDER TO INVOKE A GOOD AFTERNOON EXEMPTION. 134 00:12:07.764 --> 00:12:09.878 RAVI SATTIRAJU: AN OPINION LETTER FROM THE DEPARTMENT OF LABOR IT MAKE SURE 135 00:12:09.878 --> 00:12:16.268 THEY'RE DOING WHAT THEY NEED TO DO. AND THIS WAS -- THE COMMISSIONED THEY'RE IN COMPLIANCE 136 00:12:16.268 --> 00:12:21.550 WITH THE STATUTE. RIGHT NOW ALL WE'RE SEEING IS THAT E WANT TO GET DISCOVERY ON THIS 137 00:12:21.550 --> 00:12:25.814 ISSUE, HAVE A FULL RECORD THAT WE PRESENT TO THE COURT AND THE JUDGE CAN MAKE A DETERMINATION 138 00:12:25.814 --> 00:12:30.146 AS HR EVIDENCE WHETHER OR NOT THERE IS THEIR RIGHT THAT -- JUSTICE 139 00:12:30.146 --> 00:12:34.558 FERNANDEZ-VINA: COUNSELOR -- YOU SEEM TO BE ARGUING ON YOUR SUMMARY JUDGMENT THAT THERE 140 00:12:34.558 --> 00:12:41.039 ARE FACTS THAT NEEDED TO BE DEVELOPED. THEY'RE FACTS BY THE EMPLOYEE. BUT THESE LETTERS 141 00:12:41.039 --> 00:12:47.106 WERE ABOUT THE BUSINESS ITSELF. THOSE FACTS ARE NOT RELEVANT TO THE ARGUMENTS YOU'RE 142 00:12:47.106 --> 00:12:53.781 MAKING. IT'S ALSO ABOUT WHETHER THE EMPLOYEES IN THOSE LETTERS WITH THE INDUSTRY ITSELF 143 00:12:53.781 --> 00:12:58.855 WHETHER THERE WAS PROPER OVERTIME. SO I DON'T SEE HOW THE FACTS YOU'RE ARGUING THAT CAN 144 00:12:58.855 --> 00:13:03.453 BE DEVELOPED BY YOUR PARTICULAR CLIENT CHANGE ANYTHING IN THE LETTERS. BECAUSE THEY WERE 145 00:13:03.453 --> 00:13:08.054 NOT ABOUT AS I READ THEM AND CORRECT ME IF I'M WRONG, THEY WERE NOT ABOUT THOSE INDIVIDUALS 146 00:13:08.054 --> 00:13:13.993 WHO ARE SPWOEUTD, IT WAS A DETERMINATION AS TO WHAT THE INDUSTRY WAS. SO I DON'T SEE 147 00:13:13.993 --> 00:13:18.732 HOW THE FACTS AS TO YOUR CLIENT HAVE ANY RELEVANCE TO THE ARGUMENT HERE. 148 00:13:18.732 --> 00:13:22.181 RAVI SATTIRAJU: WELL, I THINK THE RELEVANCE IS AND THIS IS WHY THESE LETTERS SHOULD NOT 149 00:13:22.181 --> 00:13:28.595 BE USED TO INVOKE A GOOD FAITH DEFENSE IS WE ARE SPWOEUPTD TO GET DISCOVERY TO FIND OUT 150 00:13:28.595 --> 00:13:34.056 WHETHER OR NOT -- IT'S NOT ABOUT MY COMMENTS, IT'S BEEN THIS INDUSTRY. IT'S ABOUT THIS 151 00:13:34.056 --> 00:13:39.267 COMPANY. IF THIS COMPANY IS SELLING PRODUCTS IN THE MARKS, THEY'RE MARKETS KETING WHICH 152 00:13:39.267 --> 00:13:45.081 THEY'RE CREATING. AND THE APPELLATE DIVISION CASES IN RE MORE AND FLANIGAN I'D HAVE A 153 00:13:45.081 --> 00:13:48.086 GOOD ARGUMENT THAT THEY'RE NOT A TRUCKING INDUSTRY EMPLOYER. SO THAT'S SOMETHING THAT 154 00:13:48.086 --> 00:13:54.005 I WAS ENTITLED AND TO PURSUE. SO THAT'S EXACTLY THE REASON WHY WE SHOULD BE ALLOWED TO 155 00:13:54.005 --> 00:14:00.591 PURSUE IT. IF THERE WAS A RECORD WHEN TWO OF THE THREE IN COMMUNICATIONS THERE'S NO BASIS 156 00:14:00.591 --> 00:14:05.845 FOR IT WHATSOEVER. JUSTICE FERNANDEZ-VINA: THE DISCOVERY THAT THEY ARE 157 00:14:05.845 --> 00:14:13.048 WHAT THEY REPRESENT TO BE IN THOSE THREE LETTERS AND THE LETTERS ARE APPLICABLE. DURING 158 00:14:13.048 --> 00:14:20.261 DISCOVERY YOU DETERRED THAT THE CREAM-O-LAND DAIRY IS EXACTLY WHAT THEY WERE IN YOUR 159 00:14:20.261 --> 00:14:25.159 LETTERS THEN IS THAT THE END OF IT, YOU COULD SEE THAT THAT'S THE END OF YOUR CASE BECAUSE 160 00:14:25.159 --> 00:14:29.685 THEN THOSE LETTERS APPLY. RAVI SATTIRAJU: I DON'T THINK THE LETTERS ARE 161 00:14:29.685 --> 00:14:33.772 SUFFICIENT. WHETHER OR NOT CREAM-O-LAND IS A TRUCKING INDUSTRY EMPLOYER IN THIS LITIGATION 162 00:14:33.772 --> 00:14:40.819 SHOULD RISE AND FALL ON WHETHER OR NOT THEY MEET THE STANDARD FOR BEING A TRUCKING INDUSTRY 163 00:14:40.819 --> 00:14:45.656 EMPLOYER. JUSTICE PATTERSON: YOU'VE RESPONDED TO THE CHIEF'S QUESTION WITH 164 00:14:45.656 --> 00:14:51.594 TWO OPTIONS. I'M GOING TO ASK YOU ABOUT BOTH. I'M GOING TO TAKE THE SECOND ONE FIRST. 165 00:14:51.594 --> 00:14:57.054 YOU SAID THEY SHOULD MAKE SURE THEY'RE IN COMPLIANCE WITH THE STATUTE. WELL, ISN'T 166 00:14:57.054 --> 00:15:01.938 THAT A CONCLUSORY THING BECAUSE THIS WHOLE THING IS ABOUT WHETHER THEY'RE IN COMPLIANCE 167 00:15:01.938 --> 00:15:05.725 WITH THE STATUTE, RIGHT? WHETHER THEY IN GOOD FAITH BELIEVE THEY'RE THAT COMPLIANCE WITH 168 00:15:05.725 --> 00:15:11.081 THE STATUTE? WHAT DOES THAT HAVE OUTSIDE OF THIS PROCESS THAT'S GOING ON. RAVI 169 00:15:11.081 --> 00:15:15.306 SATTIRAJU: THE MEANING IT HAS IS THAT THE IN FORMAL NATURE. COMMUNICATIONS SHOULD NOT 170 00:15:15.306 --> 00:15:19.622 BE SUFFICIENT TO INVOKE A GOOD FAITH DEFENSE. IF THEY WANT TO DEFEND THEMSELVES AGAINST 171 00:15:19.622 --> 00:15:24.180 THIS CASE, THEN THEY SHOULD BE SURE THAT THEY'RE ON THE RIGHT SIDE OF WHETHER THERE'S 172 00:15:24.180 --> 00:15:27.727 A VIOLATION OR NOT. JUSTICE PATTERSON: BUT I THINK WE CAN PUT THAT IDEA 173 00:15:27.727 --> 00:15:31.928 ASIDE BECAUSE IT'S ESSENTIALLY SAYING THERE SHOULD BE IN COMPLIANCE WITH THE STATUTE AND 174 00:15:31.928 --> 00:15:38.146 IT DOESN'T CREATE A ROUTE TO GET THERE. SO LET'S FOCUS ON YOUR FIRST ANSWER WHICH IS 175 00:15:38.146 --> 00:15:43.117 THEY CAN SEEK AN OPINION LETTER. LET'S SAY THAT AGAIN THE OPINION LETTER SIGNED BY THE 176 00:15:43.117 --> 00:15:49.595 SECTION CHIEF THAT THEY GOT IT WHAT WOULD BE YOUR POSITION ON AN OPINION LETTER SIGNED 177 00:15:49.595 --> 00:15:54.518 BY THE SECTION CHIEF? RAVI SATTIRAJU: WELL, THE STATUTE SAYS 178 00:15:54.518 --> 00:16:01.424 COMMISSIONER OF WAGE AND HOUR BUREAU. SO MY POSITION IS THAT THOSE ARE THE TWO POSITION 179 00:16:01.424 --> 00:16:05.665 WOULD HAVE TO COME FROM THEM. JUSTICE PATTERSON: SO YOU'RE SAYING THEY 180 00:16:05.665 --> 00:16:12.778 GO BACK TO THE THREE OPINIONS, THEY GO BACK, THEY SAY YOU WANT AN OPINION LETTER AND IT 181 00:16:12.778 --> 00:16:19.722 COMES IN THE MAIL OR E-MAIL AND IT'S SIGNED BY THE SECTION CHIEF THAT'S NOT WORTH THE 182 00:16:19.722 --> 00:16:22.783 PAPER IT'S WRITTEN ON WHEN IT COMES TO THE GOOD FAITH DEFENSE. IS THAT YOUR POSITION. 183 00:16:22.783 --> 00:16:28.016 RAVI SATTIRAJU: I PREFER YOUR HONOR TO THE LETTER SUBMITTED BELATEDLY BY 184 00:16:28.016 --> 00:16:34.049 THE DEFENDANTS, THE OPINION LETTER SIGNED THAT THEY DID NOT RELY OPINION. THAT WAS SIGNED 185 00:16:34.049 --> 00:16:37.325 BY THE DIRECTOR OF WAGE AND HOUR COMPLIANCE. JUSTICE PATTERSON: I GET IT 186 00:16:37.325 --> 00:16:40.114 YOU'RE ARGUING FOR IDENTIFICATION A NUMBER OF OTHER REASONS, A NUMBER OF REASONS THAT 187 00:16:40.114 --> 00:16:44.274 YOU SAY WE SHOULD CONSIDER THAT, BUT THE POINT IS THAT ASKING FOR AN OPINION LETTER SIGNED 188 00:16:44.274 --> 00:16:50.346 IS NOT ENOUGH. YOU'RE SAYING THEY'VE GOT TO SPECIFICALLY SAY COMMISSIONER OR DIRECTOR 189 00:16:50.346 --> 00:16:57.451 I NEED AN OPINION LETTER SIGNED BY YOU PERIOD OTHERWISE IT'S NOT WORTH IT TO THEM. 190 00:16:57.451 --> 00:17:00.647 RAVI SATTIRAJU: THEY WANT IT SEEK AN OPINION LETTER TO INVOKE THE GOOD FAITH DEFENSE 191 00:17:00.647 --> 00:17:05.408 IN THE FUTURE UNDER THE STATUTE AS IT'S WRITTEN WHETHER THEY WRITE TO THE COMMISSIONER 192 00:17:05.408 --> 00:17:12.623 WHAT THEY SHOULD DO IS WHEN THEY WRITE TO THE COMMISSIONER OF LABOR THEY SHOULD SAY WE ARE 193 00:17:12.623 --> 00:17:16.265 SEEKING THIS FOR PURPOSES OF IN SROEPBGING THE GOOD FAITH DEFENSE GOING FORWARD AS SUCH 194 00:17:16.265 --> 00:17:22.277 UNDER THE STATUTE THIS WOULD NEED TO BE ISSUED BY THE DIRECTOR. JUSTICE ALBIN: 195 00:17:22.277 --> 00:17:27.912 IF IT SAID SECTION CHIEF FOR THE COMMISSIONER. BECAUSE AS WE'VE HEARD FROM VARIOUS OF 196 00:17:27.912 --> 00:17:33.117 THE ATTORNEYS HERE, THE COMMISSIONER OR DIRECTOR WORK THROUGH MANY OF THE EMPLOYEES. 197 00:17:33.117 --> 00:17:38.643 THEY CAN'T CONTINUE SAOEFZ PLEASE DO EVERYTHING ON THEIR OWN. IF THE LETTER SAYS SECTION 198 00:17:38.643 --> 00:17:42.210 CHIEF FOR THE COMMISSIONER, WOULD THAT BE SUFFICIENT? RAVI SATTIRAJU: 199 00:17:42.210 --> 00:17:46.920 YES. CHIEF JUSTICE RABNER: IN YOUR EXPERIENCE WHAT'S THE LIKELIHOOD OF GETTING 200 00:17:46.920 --> 00:17:50.514 THE COMMISSIONER OR DIRECTOR TO ISSUE THE OPINION LETTER THAT YOU'VE TALKED ABOUT? 201 00:17:50.514 --> 00:17:57.466 RAVI SATTIRAJU: IN MY EXPERIENCE WHEN REQUESTS FOR OPINION LETTERS ARE MADE THEY'RE 202 00:17:57.466 --> 00:18:00.245 RESPONDED TO. CHIEF JUSTICE RABNER: BY THE COMMISSIONER OR DIRECTOR? 203 00:18:00.245 --> 00:18:04.073 RAVI SATTIRAJU: BUSY -- I DON'T SEE THEM BY THE COMMISSIONER. I SEE THEM BY THE DIRECTOR. 204 00:18:04.073 --> 00:18:14.546 JUSTICE PATTERSON: HAVE YOU SEEN THEM SIGN BY OTHERS? YOU'VE SEEN OPINION 205 00:18:14.546 --> 00:18:19.103 LETTERS KWROUFRB IN THIS OBVIOUSLY HAVE A TREMENDOUS AMOUNT OF EXPERIENCE IN IT. HAVE 206 00:18:19.103 --> 00:18:23.606 YOU EVER SEEN OPINION LETTERS FROM THE DEPARTMENT THAT ARE SIGNED BY EMPLOYEES WHO ARE 207 00:18:23.606 --> 00:18:28.454 NOT THE COMMISSIONER OR DIRECTOR? RAVI SATTIRAJU: JUSTICE, I WANT TO BE 208 00:18:28.454 --> 00:18:34.579 VERY CAREFUL. IN MY EXPERIENCE IF THEY'RE SIGNED BY THE DIRECTOR I CAN'T REPRESENT TO YOU 209 00:18:34.579 --> 00:18:37.943 THAT I'VE NEVER SEEN ONE THAT WAS SIGNED BY SOMEONE ELSE. JUSTICE 210 00:18:37.943 --> 00:18:41.809 PATTERSON: I APPRECIATE THAT. THANK YOU. JUSTICE ALBIN: COUNSEL, THIS IS 211 00:18:41.809 --> 00:18:45.490 A CLASS ACTION CASE, RIGHT? RAVI SATTIRAJU: YES, SIR. JUSTICE 212 00:18:45.490 --> 00:18:48.119 ALBIN: HOW MANY EMPLOYEES ARE SEEKING RELIEF IN THIS CASE? RAVI SATTIRAJU: 213 00:18:48.119 --> 00:18:53.548 THE CLASS -- JUSTICE ALBIN: GO AHEAD. RAVI SATTIRAJU: IT 214 00:18:53.548 --> 00:18:59.undefined WOULD BE IN THE HUNDREDS. AND YOUR HONOR, ONE THING THAT'S IMPORTANT HERE IS WHEN THESE 216 00:19:04.138 --> 00:19:10.794 NO NOTICES, NO REPRESENTATIONS IN THEM THAT BY FILING THIS, OFTENTIMES ON THEIR OWN WITHOUT 217 00:19:10.794 --> 00:19:17.364 COUNSEL, THAT THEIR POTENTIALLY, YOU KNOW, WAIVING THE STATUTORY RIGHTS OF PEOPLE WHO 218 00:19:17.364 --> 00:19:22.216 WARRANT TO SEEK, YOU KNOW, SEEK RELIEF UNDER THE STATUTE YOU KNOW OVER A DECADE LATER. 219 00:19:22.216 --> 00:19:26.960 I MEAN THAT'S A REALLY -- THAT'S A. JUSTICE ALBIN: THAT'S THE REASON WHY 220 00:19:26.960 --> 00:19:31.866 I'M ASKING YOU THE QUESTION. BECAUSE THIS CLASS ACTION HAS HUNDREDS, THERE COULD BE OTHER 221 00:19:31.866 --> 00:19:37.996 CLASS ACTION CASES THAT INVOLVE THOUSANDS OF PEOPLE WHO ARE CLAIMING THAT THEY SUFFERED 222 00:19:37.996 --> 00:19:43.414 VIOLATIONS TO THE WAGE AND HOUR LAW AND I GUESS ONE OF THE ISSUES BEFORE THE COURT IS 223 00:19:43.414 --> 00:19:51.015 TO WHAT DEGREE CAN A BUSINESS RELY UPON WHAT YOU'RE DESCRIBING AS AN IN FORMAL DECISIONS 224 00:19:51.015 --> 00:20:00.437 OF THE OFFICE OF THE DEPARTMENT OF LABOR. RAVI SATTIRAJU: WHAT'S ESPECIALLY 225 00:20:00.437 --> 00:20:04.323 PROBLEMATIC HERE IS THERE MAY BE INSTANCES WHERE THE NATURE OF THEIR BUSINESS CHANGES 226 00:20:04.323 --> 00:20:09.461 OR THEIR MANAGEMENT CHANGE BEENS OR THEIR MARKETING CHANGE SZ. THESE ARE ALL THINGS 227 00:20:09.461 --> 00:20:15.731 THAT CAN HAPPEN WHERE WE'RE LOOKING BACK TO THE FIRST LETTER WAS SIGNED IN 2007, I BELIEVE. 228 00:20:15.731 --> 00:20:22.613 THE OTHER TWO WERE FILED IN 2014. THIS IS YEARS BEFORE. JUSTICE PATTERSON: 229 00:20:22.613 --> 00:20:28.746 ONE IN 2017 PRESUMABLY THAT'S PRETTY, IF YOU VIEW THIS AS IN FORMAL WHAT DOES THAT MEAN? 230 00:20:28.746 --> 00:20:33.850 ASSUMING THAT IF YOU WOULD HAVE REPRESENTED AN EMPLOYEE AND THEY SAID HAD ONE BEFORE THE 231 00:20:33.850 --> 00:20:39.607 HEARING OFFICER, THE SECONDS CHIEF, I DOUBT YOU'D BE IN ANY WAY DEN GRADING THAT AS ANYTHING 232 00:20:39.607 --> 00:20:43.713 OTHER THAN PAY UP. THAT'S THE DEPARTMENT OF LABOR TELLING YOU YOU HAVE TO PAY THIS 233 00:20:43.713 --> 00:20:52.268 PENALTY. WHEN YOU SAY IN FORMAL I THINK IF IT WAS GIVING RELIEF TO YOUR CLIENT YOU WOULD 234 00:20:52.268 --> 00:20:56.595 NOT BE SUDDENING IT'S ANYTHING OTHER THAN A DECISION BY THE DEPARTMENT THAT'S ABSOLUTELY 235 00:20:56.595 --> 00:21:02.311 ENFORCEABLE. RAVI SATTIRAJU: LET ME ADDRESS THE TERM IN FORMAL. WHAT I'M 236 00:21:02.311 --> 00:21:09.275 ADDRESSING HERE IS SOLELY IS WHAT IS ALLOWED TO BE A BASIS FOR A GOOD FAITH DEFENSE. 237 00:21:09.275 --> 00:21:16.218 WHEN I'M USING THE TERM IN FORMAL. SO I'LL RETRACT THAT AND SAY A LOWER LEVEL 238 00:21:16.218 --> 00:21:21.439 DETERMINATION. SO YOU'RE CORRECT, YOUR HONOR, IF I'M REPRESENTING SOMEONE AT THE DOL WHICH 239 00:21:21.439 --> 00:21:28.044 I GENERALLY DON'T DO, BECAUSE HAVE YOU DISCOVERY, MORE -- IT'S A BETTER VENUE, I WOULD 240 00:21:28.044 --> 00:21:35.574 HAVE PURSUED THAT. BUT PURSUE IT THERE AND I WOULD SEEK TO ENFORCE ANY JUDGMENT THAT 241 00:21:35.574 --> 00:21:42.459 I HAD. BUT THE FACT IS FOR PURPOSES OF THIS SPECIFIC STATUTE, THESE LOWER LEVEL 242 00:21:42.459 --> 00:21:47.627 DETERMINATIONS WHICH AREN'T FINAL DETERMINES WHICH AREN'T POLICY STATEMENTS MADE BY THE 243 00:21:47.627 --> 00:21:54.278 COMMISSIONER OR DIRECTOR OR THE DEPARTMENT ARE NOT SUFFICIENT TO INVOKE THIS GOOD FAITH 244 00:21:54.278 --> 00:22:00.238 DEFENSE BECAUSE WHAT THIS GOOD FAITH DEFENSE DOES IS IT STRIPS THE STATUTE RIGHTS AWAY 245 00:22:00.238 --> 00:22:03.058 FROM WORKERS. JUSTICE PATTERSON: YOU'RE NOT SAYING THERE'S DISTINCTION 246 00:22:03.058 --> 00:22:08.144 BETWEEN TPAERPLZ AND IN FORMAL THAT IS MATERIAL HERE. YOU'RE TALKING ABOUT WHOSE -- WHO 247 00:22:08.144 --> 00:22:12.397 IS THE EMPLOYEE WHO IS ISSUING THE DECISION. THAT'S THE ONLY ISSUE. RAVI 248 00:22:12.397 --> 00:22:16.271 SATTIRAJU: WHO IS THE EMPLOYEE THAT'S ISSUING THE DECISION DO THEY IS A RIGHT ARE THEY 249 00:22:16.271 --> 00:22:20.925 AMONG THE PEOPLE WHO ARE ENUMERATED UNDER THE SECTION OF THE STATUTE TO INVOKE THIS. 250 00:22:20.925 --> 00:22:26.817 IN TERMS OF THE USE OF IN FORMAL WHEN YOU LOOK AT THE NATURAL. COMMUNICATIONS THAT WERE 251 00:22:26.817 --> 00:22:31.366 ISSUED HERE AND YOU CONTRAST THAT WITH THE OPINION LETTER OR ANY OPINION LETTER YOU TAKE 252 00:22:31.366 --> 00:22:39.393 A LOOK AT THIS IS -- JUSTICE PATTERSON: BUT ON THE OTHER PROVERBIAL FOOT 253 00:22:39.393 --> 00:22:46.683 AND YOU WON AND THE COMPANY SET OUT WITH JUST AN E-MAIL YOU'D BE ALL OVER THAT I SUGGEST 254 00:22:46.683 --> 00:22:52.254 WITH GREAT SKILL SAYING THAT THIS IS AN ABSOLUTE DETERMINATIONS BY THE DEPARTMENT OF LABOR 255 00:22:52.254 --> 00:22:57.232 THAT YOU OAE THIS MONEY. IT DOESN'T MATTER IF IT CAME IN AN E-MAIL. RAVI 256 00:22:57.232 --> 00:23:02.219 SATTIRAJU: JUDGE, I THINK -- I WOULD BUT WE'RE COMPARING APPLES AND ORANGES. 257 00:23:02.219 --> 00:23:06.443 JUSTICE PATTERSON: I UNDERSTAND YOU'RE FOCUSED ON THE GOOD FAITH DEFENSE BUT TO ME I THINK 258 00:23:06.443 --> 00:23:14.666 THERE'S A DISTINCTION BETWEEN SAYING THE METHOD OF COMMUNICATION VERSUS THE PERSON. AS 259 00:23:14.666 --> 00:23:18.334 I SEE YOUR ARGUMENT IT'S NOT ABOUT THE METHOD OF COMMUNICATION OR IT SHOULDN'T BE. IT 260 00:23:18.334 --> 00:23:25.326 SHOULD BE ABOUT WHO IS THE PERSON SIGNING IT. RAVI SATTIRAJU: THE MODE 261 00:23:25.326 --> 00:23:30.685 OF COMMUNICATION IS AS A POLICY PERSPECTIVE AND AS YOU'RE INTERPRETING THE STATUTE WHETHER 262 00:23:30.685 --> 00:23:35.279 A HEARING OFFICER OR AN INVESTIGATOR SHOULD BECAUSE WE'RE HEARING A LOT FROM THE OTHER 263 00:23:35.279 --> 00:23:39.989 SIDE, WHETHER IT SHOULD RISE TO THE LEVELED OF PROVIDING A GOOD FAITH DEFENSE IS AND IT 264 00:23:39.989 --> 00:23:43.957 SHOULD IT BE READ INTO THE STATUTE WHICH I'M SAYING IT SHOULDN'T AND THE LAW IS PRETTY 265 00:23:43.957 --> 00:23:48.078 CLEAR THAT THE STATUTE SHOULD BE READ FOR ITS PLAIN MEANING AND TO CREATE MORE OPPORTUNITY 266 00:23:48.078 --> 00:23:54.597 FOR EMPLOYEES TO COVERED BY THE STATUTE I'M SAYING THAT WOULD BE A BAD POLICY ARGUMENT 267 00:23:54.597 --> 00:23:59.476 TO PURSUE AND WOULD NOT BE WISE TO READ THAT INTO THE STATUTE BECAUSE THE NATURE OF THE 268 00:23:59.476 --> 00:24:04.526 COMMUNICATIONS ARE WHAT I DESCRIBED AS IN FORMAL BUT THE LOWER LEVEL, YOU'RE ABSOLUTELY 269 00:24:04.526 --> 00:24:10.749 CORRECT WHEN INVOKING AS BE NATT TO INVOKE THE GOOD FAITH DEFENSE UNDER THE STATUTE IS 270 00:24:10.749 --> 00:24:16.401 THE FACT THAT THESE PEOPLE DID NOT RISE IT THE LEVELED OF HAVING -- WERE NOT HAVING A 271 00:24:16.401 --> 00:24:22.122 HIGH LEVEL ENOUGH IN ORDER TO INVOKE THE PERSPECTIVES UNDER THE STATUTE. 272 00:24:22.122 --> 00:24:24.781 JUSTICE LA VECCHIA: COUNSEL IN YOUR REPRESENTATIONS OF EMPLOYEES IN THESE KIND OF 273 00:24:24.781 --> 00:24:34.813 ACTIONS IF WE WERE TO ADOPT THE INTERPRETATION THAT WE'RE BEING ASKED TO ADOPT BY THE 274 00:24:34.813 --> 00:24:40.221 DEFENSE, WOULD THAT HAVE THE RESULT OF RESULTING IN FEWER SETTLEMENTS OF EMPLOYEES'S ACTIONS 275 00:24:40.221 --> 00:24:44.848 GOING BEFORE THE DEPARTMENT OF LABOR, WILL THAT HAVE A LONG-TERM EFFECT OF ACTUALLY HURTING 276 00:24:44.848 --> 00:24:51.062 EMPLOYEE'S ABILITIES TO GET EASY AND QUICK RELIEF THROUGH THE DEPARTMENT OF LABOR. 277 00:24:51.062 --> 00:24:55.103 RAVI SATTIRAJU: JUSTICE THANK YOU FOR THAT QUESTION. THIS IS VERY DANGEROUS WHAT 278 00:24:55.103 --> 00:25:00.924 DEFENDANTS ARE ASKING US TO DO. BECAUSE OFTENTIMES PEOPLE WHO ARE INVOLVED WITH 279 00:25:00.924 --> 00:25:03.805 COMPLAINTS WITH THE DEPARTMENT OF LABOR DON'T GO IN WITH ATTORNEYS. THEY'RE NOT AWARE 280 00:25:03.805 --> 00:25:08.920 OF WHAT THEIR FULL STATUTORY RIGHTS ARE NOT AWARE OF WHAT TO PURSUE WITH DISCOVERY. IT'S 281 00:25:08.920 --> 00:25:13.300 AN UNEVEN PLAYING FIELD IN MANY WAYS AND I UNDERSTANDS THAT THESE HEARING OFFICERS AND 282 00:25:13.300 --> 00:25:20.719 INVESTIGATORS ARE ARGUING BUT THE EMPLOYEES ARE OFTEN REPRESENTED BY ATTORNEYS AND THAT'S 283 00:25:20.719 --> 00:25:29.299 NOT A REALLY FAIR, AN EQUAL PLAYING FIELD AND TO THE EXTENT THAT YOU HAVE A SITUATION 284 00:25:29.299 --> 00:25:33.510 HERE WHERE THEY WERE REPRESENTED BY AN ATTORNEY THERE'S NO EVIDENCE THAT THESE INDIVIDUALS 285 00:25:33.510 --> 00:25:39.869 WERE. THEY DIDN'T HAVE THE SAME OPPORTUNITY TO PURSUE DISCOVERY, TO ASK QUESTIONS. TO 286 00:25:39.869 --> 00:25:44.585 DO WHAT AN ATTORNEY WOULD DO. IT'S VERY DANGEROUS BECAUSE THESE THREE DID NOT -- 287 00:25:44.585 --> 00:25:48.687 THERE'S NOTHING IN THE RECORD TO INDICATE THAT THEY REALIZED THAT THEY'D BE POTENTIALLY 288 00:25:48.687 --> 00:25:57.275 BINDING PEOPLE OVER A DECADE LETTER TO THAT -- THAT THEY'D BE BINDING PEOPLE OVER DECADE 289 00:25:57.275 --> 00:26:03.452 LATER. I THINK THIS WOULD HAVE A EXTREMELY CHILLING EFFECT ON PEOPLE WANTING TO GO 290 00:26:03.452 --> 00:26:07.147 FORWARD IN THE DEPARTMENT OF LABOR. BECAUSE THE KWEPZ THEY'RE HEARING UNLESS THEY WANT TO 291 00:26:07.147 --> 00:26:11.316 PURSUE IT THE WHOLE WAY AND THEY DON'T KNOW THAT. THESE PEOPLE, I'M TPHAOUR -- AND I 292 00:26:11.316 --> 00:26:18.686 REPRESENT A LOT OF WOERBGSZ LIKE THEY'RE THEY'RE NOT AWARE OF THE INTRICACIES OF THE 293 00:26:18.686 --> 00:26:23.226 APPELLANT PROCESS AND WHAT'S POTENTIALLY BINDING ON A COMPANY, THEY DON'T KNOW THAT. SO 294 00:26:23.226 --> 00:26:32.351 THAT'S WHEN OBVIOUSLY INFORMED AND IT'S -- VERY -- PEOPLE THINK HEY YOU'RE POTENTIALLY 295 00:26:32.351 --> 00:26:39.722 HURTING ALL MY FELLOW WORKERS THEY'RE NOT GOING TO GO TO THE DOL. JUSTICE LA 296 00:26:39.722 --> 00:26:48.928 VECCHIA: THANK YOU. THE COURT: ANYTHING ELSE YOU'D LAKE TO ADD MR. 297 00:26:48.928 --> 00:26:52.386 SATTIRAJU. RAVI SATTIRAJU: I HAD ASKED FOR A COUPLE MINUTES ON REBUTTAL SO 298 00:26:52.386 --> 00:26:58.795 I WAS GOING TO ASK FOR THAT. CHIEF JUSTICE RABNER: SORRY. IS THERE A 299 00:26:58.795 --> 00:27:02.551 CROSS PETITION? RAVI SATTIRAJU: NO. THAT'S FINE, YOUR HONOR. CHIEF 300 00:27:02.551 --> 00:27:13.014 JUSTICE RABNER: REBUTTAL IS ONLY IN SUCH A CIRCUMSTANCE. THANK YOU, COUNSEL. JTSDZ S 301 00:27:13.014 --> 00:27:18.044 KSDZ CAROLINE JONES: GOOD MORNING, YOUR HONOR,ABOUTABOUT MAIKT. THE STATE 302 00:27:18.044 --> 00:27:22.498 ACCEPTED THE APPELLATE DIVISION'S INVITATION TO PARTICIPATE AS AMICUS IN THIS MATTER. 303 00:27:22.498 --> 00:27:27.913 IN ORDER TO PROVIDE THE COURT WITH THE CONTEXT IN WHICH THE ADMINISTRATIVE DISPOSITIONS 304 00:27:27.913 --> 00:27:34.173 RELIED ON CREAM-O-LAND OCCURRED AND ALSO TO PROVIDE ITS OPINION BASED ON THAT CONTEXT 305 00:27:34.173 --> 00:27:40.817 TOOZ WHETHER THOSE SDIGSZS WERE SUFFICIENT TO SATISFY THE WAGE AND HOUR LAW'S GOOD FAITH 306 00:27:40.817 --> 00:27:47.163 DEFENSE. IN LABOR DISPUTE THE ADMINISTRATIVE DISPOSITIONS RELIED UPON BY 307 00:27:47.163 --> 00:27:53.222 CREAM-O-LAND EVEN TAKEN TOGETHER ARE NOT THE TYPE OF ADMINISTRATIVE DECISIONS OR ACTIONS 308 00:27:53.222 --> 00:28:00.210 REQUIRED TO ESTABLISH THE PGOOD-FAITH DEFENSE. AS THE APDITION RECOGNIZE THERE ARE A 309 00:28:00.210 --> 00:28:05.245 BROAD RANGE OF WAYS THAT THE DEPARTMENT OF LABOR ADMINISTRATORS ITS STATUTORY CHARGE AND 310 00:28:05.245 --> 00:28:11.189 COMMUNICATES AND NRTD ACWITH THE REGULATED PUBLIC, BUT THE GOOD-FAITH DEFENSE 311 00:28:11.189 --> 00:28:15.647 SPECIFICALLY RECOGNIZES ONLY A SMALL SUBSET OF THOSE ADMINISTRATIVE ACTIONS THAT WOULD 312 00:28:15.647 --> 00:28:22.068 BE SUFFICIENT TO ESTABLISH SUCH A DEFENSE. IN THIS WAY THE LEGISLATURE WAS STRIKING A 313 00:28:22.068 --> 00:28:27.387 BALANCE BETWEEN PROVIDING A SAFE HARBOR FOR EMPLOYERS TO RELY ON THE AGENCY'S STATEMENT 314 00:28:27.387 --> 00:28:32.387 OF LAW AND NOT PRECLUDING POTENTIALLY MERITORIOUS CLAIMS FOR WAGE AND HOUR VIOLATIONS 315 00:28:32.387 --> 00:28:39.067 TO GO UNEXAMINED. AND THE LEGISLATURE THREW THIS LINE VERY CAREFULLY AND SPECIFICALLY. 316 00:28:39.067 --> 00:28:44.036 IT SPECIFIES ONLY WRITTEN RULES, REGULATIONS, ORDERS OF THE AGENCY HEAD OR THE DIRECTOR 317 00:28:44.036 --> 00:28:50.601 OF THE BUREAU OF WAGE AND HOUR. OR AN ADMINISTRATIVE PRACTICE OR ENFORCEMENT POLICY 318 00:28:50.601 --> 00:28:56.088 OF THE DEPARTMENT WITH RESPECT TO THE CLASS OF EMPLOYERS. WE'VE HEARD A LOT OF DISCUSSION 319 00:28:56.088 --> 00:29:02.416 HERE ABOUT LOWER LEVEL EMPLOYEES, SUBORDINATE OFFICERS, RANK. THE FOCUS IS ON THE LOW 320 00:29:02.416 --> 00:29:09.967 ER LEVEL NATURE OF THESE DECISIONS REALLY IS A COMPARISON BETWEEN WHAT A COMMISSIONER LEVEL 321 00:29:09.967 --> 00:29:15.351 OR A DIRECTOR LEVEL DECISION REPRESENTS. IT'S AN ADMINISTRATION -- ADMINISTRATIVE ACTION 322 00:29:15.351 --> 00:29:19.578 THAT SPEAKS FOR THE DEPARTMENT AS A WHOLE WHICH SPEAKS TO THE DEPARTMENT'S VIEW OF THE 323 00:29:19.578 --> 00:29:24.322 LAW AND HOW IT SHOULD BE APPLIED. JUST AS COMMISSIONER LEVEL OR DIRECTOR LEVEL 324 00:29:24.322 --> 00:29:29.686 DECISIONS WOULD. WE WANT A DECISION THAT BEARS THE CHARACTER OF SPEAKING FOR THE DEPARTMENT, 325 00:29:29.686 --> 00:29:35.780 THAT SPEAKS TO THE POLICY OF THE DEPARTMENT. IT'S AN ENFORCEMENT POLICYMOTORIVE PRACTICE 326 00:29:35.780 --> 00:29:40.984 OF THE DEPARTMENT OR THE BUREAU WITH RESPECT TO A CLASS OF EMPLOYERS. SO NOT JUST AN 327 00:29:40.984 --> 00:29:45.818 INDIVIDUAL DETERMINATION, BUT ONE THAT SPEAKS TO THE DEPARTMENT'S POLICY AS A WHOLE. 328 00:29:45.818 --> 00:29:51.644 THAT IS WHAT THE LEGISLATURE INTENDED EMPLOYERS WOULD BE ABLE TO USE TO TESTIFY A GOOD-FAITH 329 00:29:51.644 --> 00:29:56.325 DEFENSE WHEN THEY WERE STRIKING THIS BALANCE. JUSTICE PATTERSON: I HAVE 330 00:29:56.325 --> 00:30:00.886 A QUESTION FOR YOU. WHAT ARE THE MECHANISM HUSBAND -- I AM SURE I HAVEN'T 331 00:30:00.886 --> 00:30:07.823 USED THE PROPER TERMINOLOGY -- WHAT ARE THE MECHANISM FRZ AN EMPLOYER TO USE IF THEY HAVE 332 00:30:07.823 --> 00:30:14.082 ONE AT THIS LEVEL THAT WE'RE TALK HG BOUT HERE OR ANALOGOUS LEVEL AND THEY WANT A DETERMINATION 333 00:30:14.082 --> 00:30:21.143 THAT WILL PROVIDE THEM -- THEY SIGN YOUR INTERPRETATION WITH THE GOOD-FAITH DEFENSE 334 00:30:21.143 --> 00:30:27.440 AND MY SECOND PART OF MY QUESTION IS DOES THE DEPARTMENT HAVE THE DISCRETION TO IGNORE 335 00:30:27.440 --> 00:30:36.418 THAT REQUEST AND SIMPLY NOT PROVIDE THAT BROAD LEVEL POLICY DETERMINATION THAT YOU HAD 336 00:30:36.418 --> 00:30:44.129 INDICATED THE AG INTERPRETS THE STATUTE TO REQUIRE? CAROLINE JONES: I'M 337 00:30:44.129 --> 00:30:48.776 HAPPY TO ANSWER THAT QUESTION. THE TOOLS THAT AN EMPLOYER, IF THEY ARE 338 00:30:48.776 --> 00:30:51.899 SEEKING TO HAVE A GOOD-FAITH DEFENSE, THEY WANT TO HAVE SOMETHING IN WRITING THAT THEY CAN 339 00:30:51.899 --> 00:30:59.649 USE TO ESTABLISH A DEFENSE TO A SUBSEQUENT LAWSUIT AS IN THIS CASE, THEY COULD SEEK AN 340 00:30:59.649 --> 00:31:05.534 OPINION LETTER. THEY COULD SEEK A RULING. THEY COULD SEEK A DECLARATORY RULING THAT'S 341 00:31:05.534 --> 00:31:12.358 PROVIDED FOR UNDER THE APA. THOSE ARE THE THINGS THAT AN EMPLOYLER COULD ASK FOR FROM THE 342 00:31:12.358 --> 00:31:18.702 DEPARTMENT. THEY COULD ALSO CHOOSE NOT TO -- THEY COULD CHOOSE NOT TO SETTLE OR ENGAGE 343 00:31:18.702 --> 00:31:23.646 IN INFORMAL CONFERENCE. THERE'S NO REQUIREMENT ON UNDER THE REGULATIONS THAT AN EMPLOYER 344 00:31:23.646 --> 00:31:28.327 ENGAGE IN AN INFORMAL CONFERENCE. JUSTICE PATTERSON: LET ME GET BACK TO 345 00:31:28.327 --> 00:31:33.204 THAT BECAUSE I JUST WANT TO SEE HOW THIS WOULD WORK. OPINION LETTER, RULING OR DECLARATORY 346 00:31:33.204 --> 00:31:38.543 RULING UNDER THE APA IS WHAT YOU INDICATED. DOES THAT HAVE TO COME -- DOES 347 00:31:38.543 --> 00:31:42.804 THAT ALWAYS COME FROM THE COMMISSIONER OR THE DIRECTOR, ALL THREE OF THOSE CATEGORIES? 348 00:31:42.804 --> 00:31:49.811 AND SECONDLY, CAN THE COMMISSIONER OR DIRECTOR SIMPLY SAY WE'RE TOO BUSY WITH A FLOOD 349 00:31:49.811 --> 00:31:57.106 OF UNEMPLOYMENT SITUATIONS IN 2020 TO PROVIDE YOU WITH AN OPINION. OUR HEARING OFFICER 350 00:31:57.106 --> 00:32:01.950 OR SECTION CHIEF DEALT WITH YOUR PROBLEM. WE'RE NOT GOING THERE RIGHT NOW H. WE GOT TOO 351 00:32:01.950 --> 00:32:06.601 MANY OTHER PRIORITIES? CAROLINE JONES: THE ANSWER TO YOUR QUESTION IS YES. 352 00:32:06.601 --> 00:32:12.420 THOSE WOULD BE DESKRIGZARY ON THE PART OF THE DOL. THEY DO NOT HAVE TO ENGAGE IN THAT 353 00:32:12.420 --> 00:32:17.523 WAY. CHIEF JUSTICE RABNER: CAN YOU TELL US HOW OFTEN THE DISCRETION IS INVOKED 354 00:32:17.523 --> 00:32:22.650 NOT TO PROVIDE A RESPONSE? NOT TO PROVIDE A LETTER OR A RULING? CAROLINE 355 00:32:22.650 --> 00:32:28.899 JONES: I UNDERSTAND, JUSTICE, YOUR QUESTION. I'M NOT PREPARED TO SAY HOW OFTEN THAT 356 00:32:28.899 --> 00:32:36.140 HAPPENS. PARTICIPATING HERE JUST AS AMICUS ON SORT OF NARROW REQUEST MADE BY THE 357 00:32:36.140 --> 00:32:41.446 APDIVISIONISM HE DIDN'T ENDEAVOR TO FIND OUT THAT QUESTION FROM THE DEPARTMENT, SO I WOULD 358 00:32:41.446 --> 00:32:44.261 HAVE TO CONSULT WITH MY CLIENT TO REALLY ANSWER THAT. JUSTICE FERNANDEZ-VINA: 359 00:32:44.261 --> 00:32:49.955 DID I HEAR YOU SAY EARLIER THAT IN ORDER TO PROTECT THE EMPLOYER AND EMPLOYEE RATHER THAN 360 00:32:49.955 --> 00:32:55.345 SETTLING AND RESOLVING THE MATTER WHEN NEAR IS SURE THE PROPER WOULD BE TO IGNORE SETTLEMENT 361 00:32:55.345 --> 00:33:02.187 AND PROCEED TO LITIGATION OR -- IN ORDER TO OBTAIN A LETTER FROM THE COMMISSIONER SO THAT 362 00:33:02.187 --> 00:33:07.654 YOU COULD RESOLVE SOMETHING SIMPLY AND FAIRLY FOR BOTH SIDES, THAT'S NOT THE WAY TO GO 363 00:33:07.654 --> 00:33:13.538 IN YOUR OPINION? YOU SHOULD ALWAYS GO FOR TRIAL OR FOR CONTROVERSY SO THEY CAN GET 364 00:33:13.538 --> 00:33:17.191 DETERMINATION LETTER? IS THAT WHAT YOU SAID EARLIER? I WANT TO MAKE SURE I UNDERSTOOD 365 00:33:17.191 --> 00:33:20.874 YOU? CAROLINE JONES: THAT'S NOT EXACTLY WHAT I SAID, BUT I UNDERSTAND, 366 00:33:20.874 --> 00:33:28.780 JUSTICE, YOUR POINT. IT'S NOT MY OPINION THAT EMPLOYERS SHOULD GO THAT ROUTE. MY POINT 367 00:33:28.780 --> 00:33:36.737 WAS MORE THAT THE --EN EMPLOYEE CHOOSING TO SETTLE THAT THESE TYPE OF CONFERENCES IS 368 00:33:36.737 --> 00:33:41.979 DISCRETIONARY ON THE PART OF THE EMPLOYER. SO IT'S NOT MANDATED THAT THEY GO THROUGH THIS 369 00:33:41.979 --> 00:33:47.243 PROCEDURE AND ENGAGE IN THE INFORMAL CONFERENCE WITH THE DEPARTMENT OF LABOR. I 370 00:33:47.243 --> 00:33:52.986 THINK THAT'S IMPORTANT JUST TO PUT INTHOOCONTEXT THE ADMINISTRATIVE PRACTICE THAT'S INV 371 00:33:52.986 --> 00:33:58.321 OLVED WITH THESE LETTERS IS THAT IS THAT IT'S NOT FINAL IN MANY RESPECTS AND THAT EVEN 372 00:33:58.321 --> 00:34:03.563 IF THE DEPARTMENT OF LABOR DECIDE NOT TO TAKE AN ENFORCEMENT ASHGSZ UNDER WOULD PRECLUDE 373 00:34:03.563 --> 00:34:13.486 THE AFFECTED EMPLOYEE FROM FILING THEIR OWN CIVIL SUIT OR A WAGE REQUEST PROCEEDING. 374 00:34:13.486 --> 00:34:17.160 JUSTICE ALBIN: YOU'RE NOT DISCOURAGING SETTLEMENTS. 375 00:34:17.160 --> 00:34:19.853 CAROLINE JONES: ABSOLUTELY NOT. JUSTICE ALBIN: WHAT YOUM YOU'RE SUGGESTING 376 00:34:19.853 --> 00:34:25.102 FROM WHAT I'M HEARING IS IF THERE IS AN ETALMENT AT SOME VERY LOW LEVEL IT'S NOT NECESSARILY 377 00:34:25.102 --> 00:34:32.568 GOING TO BIND THOUSANDS OF OTHER SIMILARLY SITUATED EMPLOYEES WHO MAY HAVE ITSELF 378 00:34:32.568 --> 00:34:37.142 VIOLATIONS OF THE WAGE AND HOUR LAW, THAT'S WHAT YOU'RE SAYING. CAROLINE JONES: 379 00:34:37.142 --> 00:34:41.465 CORRECT. JUSTICE FERNANDEZ-VINA: THE ONLY WAY IS TO CONTINUE THROUGH WHATEVER 380 00:34:41.465 --> 00:34:47.018 CASE IT IS TO TRY TO MAKE THAT PRES DENCH SNL. IS THAT THE OWN WAE WAY YOU CAN OBTAIN 381 00:34:47.018 --> 00:34:50.568 PROTECTION IS TO PROCEED THROUGH TO THE END? CAROLINE JONES: IN TERMS OF 382 00:34:50.568 --> 00:34:59.092 THIS ADMINISTRATIVE TYPE OF PRACTICE, IT IS OUR OPINION THAT IT WOULD HAVE TO BE A DECISION 383 00:34:59.092 --> 00:35:06.432 BY THE COMMISSIONER, BUT AS WE STATED BEFORE AND MY COLLEAGUES HERE HAVE EXPRESSED THERE ARE 384 00:35:06.432 --> 00:35:11.947 OTHER WAYS THAT AN EMPLOYER INTERACTS WITH THE DEPARTMENT OF LABOR THAT MAY BE SUFFICIENT. 385 00:35:11.947 --> 00:35:18.088 A GOOD EXAMPLE OF THAT IS THE OPINION LETTER THAT CREAM-O-LAND WROTE -- RELIED UPON HERE. 386 00:35:18.088 --> 00:35:23.586 WE WERE OF THE OPINION THAT THAT WOULD BE SUFFICIENT AS A GOOD-FAITH DEFENSE. 387 00:35:23.586 --> 00:35:26.592 CHIEF JUSTICE RABNER: J WRUS WANTED TO COME BACK TO THE POINT ABOUT GETTING AN OPINION 388 00:35:26.592 --> 00:35:30.595 LETTER OR GETTING THE RULING. I'M NOT TRYING TO PIN YOU DOWN HERE. CAN YOU 389 00:35:30.595 --> 00:35:36.434 GIVE US A SENSE R THEY ROUTINELYISHUDE, ARE THEY RARELY ISSUED? IS IT SOMETHING HIN BETWEEN? 390 00:35:36.434 --> 00:35:41.157 CAROLINE JONES: I APOLOGIZE, JUSTICE, I REAL CAN'T GIVE YOU A SENSE OF 391 00:35:41.157 --> 00:35:47.990 THAT. I DID NOT HAVE THE OPPORTUNITY AUDIO GLITCH ABOUT THAT PARTICULAR ISSUE. 392 00:35:47.990 --> 00:35:50.354 CHIEF JUSTICE RABNER: THANK YOU. JUSTICE LAVECCHIA: CAN I ASK A QUESTION 393 00:35:50.354 --> 00:35:55.623 IN A SLIGHTLY DIFFERENT WAY, COUNSEL? IF THESE SETTLEMENT RESULTED IN REVEALING 394 00:35:55.623 --> 00:36:02.889 TO THE DEPARTMENT OF LABOR PERSONS WHO PRESIDED OVER THE INFORMAL SETTLEMENT THAT IMPROPER 395 00:36:02.889 --> 00:36:12.268 WAGES, IMPROPER OVERTIME WAS BEING PRACTICED AT A PARTICULAR EMPLOYER, WHAT IS THE OBLIGATION 396 00:36:12.268 --> 00:36:20.552 OF THE DEPARTMENT OF LABOR TO PURSUE A REMEDY NOTWITHSTANDING THE SETTLEMENT OF THE 397 00:36:20.552 --> 00:36:28.194 INDIVIDUAL CLAIM? CAROLINE JONES: IF I UNDERSTAND YOUR QUESTION, TIP CLAEZ 398 00:36:28.194 --> 00:36:33.260 THOUGH SETTLEMENTS INVOLVE NOT ONLY SOME MEASURE OF PENALTY, BUT ALSO BACK WAGES TO THE 399 00:36:33.260 --> 00:36:39.946 EFFECTED EMENT PLOYEE. JUSTICE LAVECCHIA: WHAULT ABOUT THOSE EMPLOYEES? 400 00:36:39.946 --> 00:36:47.464 CAROLINE JONES: I'M NOT SURE OF THE ANSWER THOOT QUESTION, WHETHER THEY 401 00:36:47.464 --> 00:36:51.503 -- SORT OF ESTABLISHED A CLASS FOR THAT PARTICULAR COMPLAINT. I'M NOT SURE OF THE 402 00:36:51.503 --> 00:36:54.883 ANSWER TO THAT QUESTION. JUSTICE LAVECCHIA: IS IT FAIR TO UNDERSTAND THE 403 00:36:54.883 --> 00:36:59.841 WAY THE STRUCTURE OF THIS WAGE AND HOUR BUREAU OPERATES IS THERE IS AN ENFORCEMENT 404 00:36:59.841 --> 00:37:05.358 OBLIGATION ON THE PART OF THE DEPARTMENT OF LABOR? AS I UNDERSTOOD IT, EMPLOYEES CAN MAKE 405 00:37:05.358 --> 00:37:10.715 A CLAIM, BUT ALSO THERE IS AN INDEPENDENT OBLIGATION ON THE PART OF THE BUREAU TO 406 00:37:10.715 --> 00:37:15.329 ENFORCE PROPER WAGE COMPLIANCE. IS THAT CORRECT? CAROLINE JONES: YES. 407 00:37:15.329 --> 00:37:19.637 I THINK THAT'S STATED FAIRLY, YES, JUSTICE. JUSTICE LAVECCHIA: SO, COME 408 00:37:19.637 --> 00:37:24.831 BACK TO MY QUESTION. IF AN INFORMAL SETTLEMENT REVEALS THAT AN EMPLOYER 409 00:37:24.831 --> 00:37:32.076 IS ACTING CONTRARY TO THE DPARMENT'S VIEW ON THE PROPER CALCULATION OF OVERTIME, WHAT, 410 00:37:32.076 --> 00:37:38.388 IF ANYTHING, DO YOU BELIEVE THE LEGAL STRUCTURE OF THIS BUREAU REQUIRES OF THE DEPARTMENT 411 00:37:38.388 --> 00:37:46.519 TO FOLLOW UP ON ITS OBLIGATION? CAROLINE JONES: I UNDERSTAND, JUSTICE, 412 00:37:46.519 --> 00:37:51.937 YOU SAY KW QUESTION VENLT I'M REALLY NOT PREPARE TODAY ANSWER THAT QUESTION. 413 00:37:51.937 --> 00:37:55.056 JUSTICE LAVECCHIA: DO YOU AGREE THAT THERE HAVE BEEN INDEPENDENT PENALTY ACTIONS THAT 414 00:37:55.056 --> 00:37:59.729 HAVE BEEN PURSUED ON COMPLAINT BY THE DEPARTMENT OF LABOR BECAUSE I SEEM TO RECALL SUCH 415 00:37:59.729 --> 00:38:04.624 ACTIONS BEING FILED IN THE OFFICE OF THE ADMINISTRATIVE LAW. CAROLINE 416 00:38:04.624 --> 00:38:11.407 JONES: THEY DO. AN EMPLOYER CONTESTING A PENALTY OR CONTESTING A FINDING CERTAINLY THAT 417 00:38:11.407 --> 00:38:17.773 MATTER IS TRANSMITTED TO THE OOL OOL. GOES TO A FULL HEARING WITH ALFINAL DECISION BY THE 418 00:38:17.773 --> 00:38:23.758 COMMISSIONER IN THAT INSTANCE. SO THAT DOES OCCUR. THAT OCCURS FREQUENTLY. 419 00:38:23.758 --> 00:38:30.105 JUSTICE LAVECCHIA: SO THERE IS A MECHANISM, I GUESS, IF -- THAT IF A VIOLATION OF AN 420 00:38:30.105 --> 00:38:34.688 INDUSTRY REQUIREMENT WAS REVEALED THREW AN INFORMAL SETTLEMENT, OTHER THAN THE EMPLOYER 421 00:38:34.688 --> 00:38:42.159 REQUESTING AN OPINION LETTER OR RULING OR DECLARATORY RULING, THERE IS A COLLATERAL 422 00:38:42.159 --> 00:38:52.854 OBLIGATION OF SORTS ON THE DEPARTMENT TO VINDICATE THE VIOLATIONP. JUSTICE 423 00:38:52.854 --> 00:38:58.836 LAVECCHIA: I WOULD THINK THAT THE DEPARTMENT DOES IF THEY ARE AWARE OF VIOLATION OF THE 424 00:38:58.836 --> 00:39:03.506 WAGE AND HOUR STATUTES, THAT THEY WOULD TAKE ENFORCEMENT ACTION. IT'S NOT ALWAYS 425 00:39:03.506 --> 00:39:08.456 GENERATED BY AN EMPLOYEE COMPLAINT. SOMETIMES THE DEPARTMENT OF LABOR ON THEIR OWN INITIATIVE 426 00:39:08.456 --> 00:39:14.008 WILL BRING ENFORCEMENT ACTIONS AGAINST EMPLOYERS. SO IT'S BOTH SIDES. IT'S NOT JUST 427 00:39:14.008 --> 00:39:18.462 -- IF THEY HAPPEN TO GET A COMPLAINT, THEY WILL FOLLOW UP ON IT. THEY DO HAVE BROAD 428 00:39:18.462 --> 00:39:23.095 ENFORCEMENT POW HRZ TO, ON THEIR OWN INITIATIVE, TO DO THAT. JUSTICE LAVECCHIA: 429 00:39:23.095 --> 00:39:27.619 BUT SOME ACTIONERIZE BROUGHT BY UNIONS, ARE THEY NOT? CAROLINE JONES: YES. 430 00:39:27.619 --> 00:39:32.940 AND IT'S TRUE SOMETIMES UNIONS DO COMMUNICATE HAD WITH THE DEPARTMENT OF LABOR THAT SAY 431 00:39:32.940 --> 00:39:37.225 WE ARE AWARE OF A PARTICULAR PRACTICE AND THAT DOES GENERATE AN ENFORCEMENT ACTION ON 432 00:39:37.225 --> 00:39:42.755 THE DEPARTMENT OF LABOR. THAT IS TRUE. IT'S NOT -- IT DOESN'T -- THERE IS NO REQUIREMENT 433 00:39:42.755 --> 00:39:48.887 THAT THE COMPLAINT COME SPECIFICALLY FROM AN EMPLOYMENTY TO GENERATE -- 434 00:39:48.887 --> 00:39:52.314 JUSTICE PATTERSON: YOU HAVE BEEN EXPLORING WITH JUSTICE LAVECCHIA, THE SITUATION THROUGH 435 00:39:52.314 --> 00:39:58.394 THE PROCESS THE DEPARTMENT ODETERMINES THAT THERE HAS BEEN IMPROPER OVERTIME, FOR EXAMPLE. 436 00:39:58.394 --> 00:40:03.645 AND THAT'S THE PREMISE OF YOUR DISCUSSION WITH JUSTICE LAVECCHIA. NONE OF 437 00:40:03.645 --> 00:40:08.342 THAT APPLIES IF THE DEPARTMENT SEES NO PROBLEM, CORRECT? CAROLINE JONES: 438 00:40:08.342 --> 00:40:11.891 CORRECT. JUSTICE PATTERSON: SO THESE MECHANISM SXZ THE SORT OF NATURAL 439 00:40:11.891 --> 00:40:16.136 PROCESS THAT ONE WOULD EXPECT TO OCCUR, INCLUDING ENFORCEMENT ACTIONS, INCLUDING UNIONS 440 00:40:16.136 --> 00:40:22.242 GETTING INVOLVED, INCLUDING THE BUBBLELING UP OF AN EMPLOYEE'S ACTION TO THE POINT WHERE 441 00:40:22.242 --> 00:40:27.394 THEY ARE VIN DICTED, THEIR POSITION IS VINDICATED, NONE OF THAT WOULD EMPLOY TO THE 442 00:40:27.394 --> 00:40:31.645 EMPLOYER THAT'S ACTUALLY COMPLYING WITH THE LAW, CORRECT? CAROLINE JONES: 443 00:40:31.645 --> 00:40:36.614 RIGHT. AND I THINK, JUSTICE, YOU RECOGNIZE -- YOU'RE RECOGNIZING HERE, THE TENSION IN THE 444 00:40:36.614 --> 00:40:41.318 LAW, BUT I DON'T THINK THAT'S WHAT INTENDED BY THE LEDGE LAYSURE. I THINK THE LEGISLATURE 445 00:40:41.318 --> 00:40:50.326 INTENDED IT TO BE PADIFFICULT BAR TO MEET BECAUSE OF THE COLLATERAL CONSEQUENCES. WE'RE 446 00:40:50.326 --> 00:40:56.146 TALKING ABOUT A COMPLETE BAR TOOL LIABILITY, EVEN IF THAT DECISION OR OPINION OR RULING 447 00:40:56.146 --> 00:41:01.834 OR REGULATION THAT THEY ARE RELYING ON IT IS FOUND TO BE INVALID. SO THAT'S A VERY HIGH 448 00:41:01.834 --> 00:41:09.225 STANDARD AND WHAT AN EMPLOYER SHOULD BE RELYING ON SHOULD BE CONCOMPETENT WITH THE FORCE 449 00:41:09.225 --> 00:41:12.860 OF THAT GOOD-FAITH DEFENSE IF APPLIED APPROPRIATELY. JUSTICE 450 00:41:12.860 --> 00:41:17.458 PATTERSON: BUT JUST TO SUM UP, I'M TAUGHT TALKING BOUT THE MERITS OF THIS CASE. 451 00:41:17.458 --> 00:41:24.101 PUSUME THAT THE EMPLOYER IS COMPLIANT WITH THE LAW. THAT EMPLOYER CANNOT GET THE DEFENSE, 452 00:41:24.101 --> 00:41:30.643 HAS NO MECHANISM OF GETTING THE DETERMINATION -- GETTING WITH CERTAINTY THE DETERMINATION 453 00:41:30.643 --> 00:41:36.730 THAT WOULD ALLOW THEM TO ASSERT THE GOOD FAITH DEFENSE. THAT COMPLIANT EMPLOYER, IF THE 454 00:41:36.730 --> 00:41:41.722 DEPARTMENT SITLY DECIDES FOR WHAT MAY BE VERY VALID RESOURCE REASONS OR WHATEVER, THAT 455 00:41:41.722 --> 00:41:46.044 IT'S NOT GOING TO RESPOND TO A REQUEST. AM I RIGHT ABOUT THAT? CAROLINE 456 00:41:46.044 --> 00:41:50.237 JONES: YOU'RE RIGHT, JUSTICE. AND THAT WOULD BE THE SAME POSITION AS ANY EMPLOYER WHO 457 00:41:50.237 --> 00:41:55.957 NEVER HAD A COMPLAINTISH AOOED AGAINST THEM THAT WENT UNDER THE DEPARTMENT' RADAR. 458 00:41:55.957 --> 00:42:00.378 JUSTICE PATTERSON: RIGHT. RIGHT. XATHLY. THERE IS NO CERTAINTY. THERE IS CERTAINTY 459 00:42:00.378 --> 00:42:08.764 IF THEY ARE FOUND TO BE IN VIOLATION, BUT WHEN THEY ARE FOUND NOT TO BE IN VIOLATION AT 460 00:42:08.764 --> 00:42:15.124 THAT LEVEL, THESE VARIOUS LEVELS IN DOL, THEY KANT GET WHAT THEY NEED FOR THE DVS FOR 461 00:42:15.124 --> 00:42:20.887 SURE. CAROLINE JONES: UNLESS THEY USED ANY OF THE OTHER MEANS THAT WE TALKED 462 00:42:20.887 --> 00:42:25.765 ABOUT TO GET -- THE OPINION. JUSTICE PATTERSON: THEY CAN ASK, BUT THEY 463 00:42:25.765 --> 00:42:30.759 ARE NOT GUARANTEED THAT RESPONSE. AM I RIGHT ABOT THAT? JUSTICE LAVECCHIA: 464 00:42:30.759 --> 00:42:33.320 YOU'RE CORRECT, JUSTICE. JUSTICE PATTERSON: THANK YOU RFRMTHS ANYTHING YOU 465 00:42:33.320 --> 00:42:43.106 WOULD LIKE TO ADD, MS. JONES? YOU'RE A LITTLE OVER FIVE MINUTES AT THIS POINT. 466 00:42:43.106 --> 00:42:47.312 A JUROR: MY FAULT, CHIEF. CAROLINE JONES: BEING MINDFUL OF MY TIME I CERTAINLY 467 00:42:47.312 --> 00:42:52.105 DON'T WANT TO GO BEYOND THE FIVE MINUTES. I THINK BASE PD ON THE JUGS S'S QUESTIONS HERE 468 00:42:52.105 --> 00:42:56.852 TODAY THAT PRETTY MUCH SUMS UP MY PLANNED STATEMENT. THANK YOU, MR. 469 00:42:56.852 --> 00:43:00.035 GALBURN. MICHAEL A. GALPERN: YES, MAY IT PLEASE THE COURT, MICHAEL GALPERN. 470 00:43:00.035 --> 00:43:09.126 CREAM-O-LAND'S POSITION IN THIS CASE THAT ESSENTIALLY WHAT THEY ARE TRYING TO DO IS 471 00:43:09.126 --> 00:43:17.006 HAVE SUMMARY GRANTED AND RESTAFF THE APDIVISION REVERSE IT WITH AN INADEQUATE RECORD AND 472 00:43:17.006 --> 00:43:26.710 WITH THEIR REFERENCE TO THE THREE DOL EMPLOYEES AND INFORMAL COMMUNICATIONS. AND KEEPING 473 00:43:26.710 --> 00:43:36.431 IN MIND THAT THE FIRST COMMUNICATION WAS JULY 27, 2007, 13 YEARS AGO. CREAM-O-LAND WANTS 474 00:43:36.431 --> 00:43:43.798 THIS COURT TO BELIEVE, WITHOUT AN APPROPRIATE RECORD, THAT IT WAS UNABLE TO COMPLY WITH 475 00:43:43.798 --> 00:43:50.248 THE LITERAL LANGUAGE OF THE STATUTE AND GET A COMMUNICATION OR AN OPINION LETTER OR AN 476 00:43:50.248 --> 00:43:56.511 ADVISORY OPINION FROM THE COMMISSIONER OR FROM THE DEPARTMENT HEAD WITHOUT ADEQUATE PROOF 477 00:43:56.511 --> 00:44:03.159 BEFORE THIS COURT. THE APDIVISION CLEARLY SAID THAT WAS INAPPROPRIATE. ON THIS RECORD, 478 00:44:03.159 --> 00:44:08.743 ON THIS RECORD BEFORE THIS COURT WITH INADEQUATE -- WITH DISCOVERY STILL NOT BEING COMPLETED 479 00:44:08.743 --> 00:44:14.671 ON CRITICAL ISSUES, ACCORDING TO PLAINTIFFS, ACCORDING TO THE APPELLATE DIVISION, 480 00:44:14.671 --> 00:44:19.214 CREAM-O-LAND SHOULD NOT BE ENTITLED TO SUMMARY JUDGMENT. CREAM-O-LAND WANTS 481 00:44:19.214 --> 00:44:25.060 THIS COURT TO RE-WRITE A CRITICAL LANGUAGE OF THE STATUTE, THE PLAIN LANGUAGE OF THE STATUTE, 482 00:44:25.060 --> 00:44:31.718 SECTION 2 WHERE IT CLEARLY SAID YOU NEED THE COMMISSIONER OR YOU NEED THE BUREAU CHIEF 483 00:44:31.718 --> 00:44:37.071 TO ISSUE AN OPINION LETTER. THEY WANT YOU TO DO AWAY WITH THAT UNDER AN UNPRECEDENTED 484 00:44:37.071 --> 00:44:43.290 ASSERTION THAT WOULD BE DFLT TO OBTAIN WITHOUT AN APPROPRIATE RECORD, WITH A COMPLETELY 485 00:44:43.290 --> 00:44:51.405 INAPPROPRIATE RECORD AND GO FORWARD FOR TIME IN MEMORIAL FOR OTHER EMPLOYERS TO BE ABLE 486 00:44:51.405 --> 00:44:57.644 TO CLAIM THE GOOD-FAITH DEFENSE WITHOUT A PROPER COMMUNICATION FROM THE COMMISSIONER OR 487 00:44:57.644 --> 00:45:04.214 FROM THE DEPARTMENT HEAD. AND THE FIRST TENANT OVLEGISLATURE INTERPRETATION IS IF THE 488 00:45:04.214 --> 00:45:08.949 LANGUAGE IS CLEAR IN THE STATUTE, INTERPRET IT CLEAR. THIS LANGUAGE COULD NOT BE MORE 489 00:45:08.949 --> 00:45:14.256 CLEAR. WE KNOW FROM THE SECOND SECTION THAT MEANT LEDGETIATEER INTENDED TO ALLOW THE 490 00:45:14.256 --> 00:45:19.198 DEPARTMENT HEAD AND THE COMMISSIONER TO USE HIS DELEGATES TO MAKE THE COMMUNICATIONS. 491 00:45:19.198 --> 00:45:24.325 AND THE REFERENCE TO MS. JONES BEING PART OF A LARGE ATTORNEY GENERAL'S OFFICE AND IT WOULD 492 00:45:24.325 --> 00:45:30.601 BE SILLY TO EXPECT THE ATTORNEY GENERAL NOT TO DELEGATE THINGS THROUGH HIS EMPLOYEES, 493 00:45:30.601 --> 00:45:36.831 THAT IS AN INOPPOSITE ARGUMENT. IT DOESN'T APPLY PIN THIS CIRCUMSTANCE. REMEMBER WHAT 494 00:45:36.831 --> 00:45:46.570 WE HAVE. WE HAVE AN INFORMAL HANDWRITTEN LETTER WRITTEN WHO HAPPENS TO BE KOUBL OF THE 495 00:45:46.570 --> 00:45:54.042 RECORD AND HAS HIS OWN, ASSUMINGLY AUDIO DMRICH INSERTING TIMSELF AS A WINCE. THAT DOES 496 00:45:54.042 --> 00:45:59.751 IS NOT THE TYPE OF COMMUNICATION THAT LEGISLATURE INTENDED OR THAT THE FEDERAL COURTS 497 00:45:59.751 --> 00:46:09.330 INTERPRETING A SIMILAR STATUTE WOULD PERMIT AS THE FAUD FRR A GOOD-FAITH DEFENSE. AND 498 00:46:09.330 --> 00:46:14.819 THAT IS WHY DEFINITELY, EVEN THOUGH THIS STATUTE WAS WRITTEN MANY, MANY YEARS AGO, THE 499 00:46:14.819 --> 00:46:21.809 LEGISLATIVE INTENT BY VERY QUICK WORDS TO REQUIRE THE COMMISSIONER OR REQUIRE THE DEPARTMENT 500 00:46:21.809 --> 00:46:32.575 HEAD TO MAKE A FORMAL ANSWER. JUSTICE SOLOMON: CAN I CAN YOU ONE QUESTION. 501 00:46:32.575 --> 00:46:38.517 READING THE STATUTE I SEE THE PLAIN LANGUAGE YOU'RE RELYING UPON AND INTERPRETATION PROONT 502 00:46:38.517 --> 00:46:43.603 WHETHER THE COMMISSIONER OF THE DEPARTMENT OR THE DIRECTOR OF WAGE AND HOUR. AND THEN 503 00:46:43.603 --> 00:46:50.319 IT SAYS OR. ANY ADMINISTRATIVE PRACTICE OR ENFORCEMENT POLICY OF SUCH DEPARTMENT OR 504 00:46:50.319 --> 00:46:55.754 BUREAU. IT DUNTZ SAY OF THE COMMISSIONER OR OF THE DIRECTOR WITH RESPECT TO THE CLASS 505 00:46:55.754 --> 00:47:01.178 OF EMPLOYERS. MICHAEL A. GALPERN: YES. MICHAEL A. GALPERN: 506 00:47:01.178 --> 00:47:06.984 THAT OR SEEMS TO SEND OFF THAT IT'S NOT JUST THE APPROVAL BY THE COMMISSIONER OR THE DIRECTOR, 507 00:47:06.984 --> 00:47:15.843 BUT A PRACTICE. IN THIS CASE WE DON'T HAVE A 2007 -- WE HAVE THAT H TOO 508 00:47:15.843 --> 00:47:24.766 -- A 2007, 13-YEAR AGO HANDWRITTEN NOTE H. WE HAVE TWO OTHER FINDINGS, MOST RECENTLY, 509 00:47:24.766 --> 00:47:32.267 I DESZ, IN 2017. IS THERE A POINT IN TIME WHEN EVEN THOUGH THE COMMISSIONER AND DIRECTOR'S 510 00:47:32.267 --> 00:47:38.933 NAME IS NOT ON IT, THAT THERE'S REPEATHEAD FINDINGS BECOME AN ADMINISTRATIVE PRACTICE 511 00:47:38.933 --> 00:47:44.811 OR ENFORCEMENT POLICY OF THE DEPARTMENT? MICHAEL A. GALPERN: WELL, WE KEEP 512 00:47:44.811 --> 00:47:50.312 REFERRING TO THEM, BUT REMEMBER ONE OF THOSE QUOTE, UBQUOTE FINDINGS WAS MADE IN THE 513 00:47:50.312 --> 00:47:55.388 COURSE OF A SETTLEMENT NEGOTIATION WHERE EARLIER A $40,000 -- JUSTICE SOLOMON: 514 00:47:55.388 --> 00:48:00.542 UNDERSTOOD. WHAT I'M ASKING IS WE HAVE THREE OF THEM. WE HAVE THREE LETTERS. THREE 515 00:48:00.542 --> 00:48:07.646 LETTERS OR EMAILS OR WHATEVER THEY ARE, JUST THREE INSTANCES WHERE CERTAIN THINGS WERE 516 00:48:07.646 --> 00:48:14.196 -- THERE WERE CERTAIN CONCLUSIONS MADE THAT THERAPY A TRUCKING EMPLOYER. RIGHT OR WRONG, 517 00:48:14.196 --> 00:48:18.133 FROM THE INVESTIGATION, I DON'T KNOW, BUT I'M SAYING IS THERE A POINT IN TIME IN THIS 518 00:48:18.133 --> 00:48:27.088 CASE OR ANY CASE IN WHICH THESE ACTS BECOME AN ADMINISTRATIVE PRACTICE OR ENFORCEMENT 519 00:48:27.088 --> 00:48:32.916 POLICY OF SUCH DEPARTMENT EVEN THOUGH THE COMMISSIONER OR THE DIRECTOR'S NAME DOESN'T 520 00:48:32.916 --> 00:48:38.687 APPEAR ON IT? MICHAEL A. GALPERN: WELL, I THINK THAT THE SECOND SECTION 521 00:48:38.687 --> 00:48:43.577 OF THE GOOD-FAITH DEFENSE STATUTE REQUIRES ADMINISTRATIVE PRACTICE OR ENFORCEMENT POLICY 522 00:48:43.577 --> 00:48:50.927 OF SUCH DEPARTMENT WITH RESPECT TO THE CLASS OF EMPLOYERS TO WHICH HE BELONGS. AND I DON'T 523 00:48:50.927 --> 00:48:56.852 BELIEVE THAT EITHER OF THESE THREE INFORMAL COMMUNICATIONS FROM LOW OR MID-LEVEL 524 00:48:56.852 --> 00:49:02.653 EMPLOYEES OR MID-LEVEL EMPLOYEES SUFFICES UNDER THIS STATUTE. ESPECIALLY, AND WE CAN'T 525 00:49:02.653 --> 00:49:09.142 LOSE SCYTHE OF THIS IN THE APPELLATE DIVISION FOCUSED LASER SHARP ON THIS, ESPECIALLY 526 00:49:09.142 --> 00:49:15.656 ON AN INADEQUATE DISCOVERY RECORD. JUSTICE PATTERSON: LET ME ASK YOU WHAT 527 00:49:15.656 --> 00:49:21.682 YOU MEAN BOOT THAT. DOES THAT MEAN TO USE THE FUNERAL HOME XAVM FROM THE ONE CASE DEALING 528 00:49:21.682 --> 00:49:29.772 WITH THIS, IS THAT THE CLASS -- THERE HAS TO BE A RULING ON ALL FUNERAL HOMES IN NEW JERSEY? 529 00:49:29.772 --> 00:49:34.595 MICHAEL A. GALPERN: NO, I DON'T THINK WE HAVE TO TAKE THT EXTREME, BUT 530 00:49:34.595 --> 00:49:41.275 CERTAINLY AT A BEAR MINIMUM WE NEED TO KNOW, AND NOBODY ON THIS ZOOM CONFERENCE KNOWS, 531 00:49:41.275 --> 00:49:49.671 WHAT DISCOVERY AND WHAT FACTS AND WHAT INVESTIGATIVE MATERIALS WENT INTO THOSE -- 532 00:49:49.671 --> 00:49:53.413 JUSTICE PATTERSON: I UNDERSTAND. I APPRECIATE YOU AND YOU MADE THE POINT 533 00:49:53.413 --> 00:49:59.487 REGARDING PROCESS IN THIS CASE. WHAT I'M SAYING IS ARE YOU SUGGESTING THAT IN ORDER TO 534 00:49:59.487 --> 00:50:05.990 MEET THAT SECOND PRONG, WHICH SEEMS TO BE AN ALTERNATIVE PRONG, THERE MUST BE A RULG FROM 535 00:50:05.990 --> 00:50:12.423 THE DEPARTMENT ABOUT A CLASS OF EMPLOYERS NOT JUST ABOUT THIS INDIVIDUAL EMPLOYER? 536 00:50:12.423 --> 00:50:17.084 MICHAEL A. GALPERN: WELL, I DON'T WANT TO ANSWER -- I'M NOT DUCKING THE QUESTION, BUT 537 00:50:17.084 --> 00:50:21.137 I DON'T WANT TO SAY ABSOLUTELY YES OR ABSOLUTELY NO BECAUSE IF YOU SAY ABSOLUTELY NO WE 538 00:50:21.137 --> 00:50:25.195 GIVEIO DEFERENCE TO THE ATTORNEY GENERAL'S POSITION PIN THIS CASE. JUSTICE 539 00:50:25.195 --> 00:50:28.425 PATTERSON: RIGHT, I'M RRP NOT TRYING TO PIN YOU DOWN. I THOUGHT YOU WERE SAYING THAT 540 00:50:28.425 --> 00:50:33.611 IT REQUIRES SOMETHING BROADER THAN A RULING ABOUT A PARTICULAR EMPLOYER. IF THAT'S NOT 541 00:50:33.611 --> 00:50:37.288 WHAT YOU MEANT TO SAY, THEN I DON'T NEED AN ANSWER TO THE QUESTION. MICHAEL 542 00:50:37.288 --> 00:50:41.437 A. GALPERN: CERTAINLY, JUSTICE PATTERSON. I DON'T THINK I SAID THAT. WHAT I THINK I 543 00:50:41.437 --> 00:50:46.590 SAID AND CERTAINLY WHAT I INTENDHEAD TO SAY IS THAT UNDER THE FACTS OF THIS CASE ON THIS 544 00:50:46.590 --> 00:50:52.952 VERY MEEK RECORD WE HAD TO GIVE THE TRIAL COURT OR THE PARTIES THE ADEQUATE OPPORTUNITY 545 00:50:52.952 --> 00:50:59.792 TO ESTABLISH WHAT WENT INTO THE MAKING OF THESE THREE INFORMAL PIECES OF PAPER. ANY 546 00:50:59.792 --> 00:51:03.500 INTERPRETATION OF THE LEGISLATION -- JUSTICE PATTERSON: WOULD YOU EVER GET 547 00:51:03.500 --> 00:51:08.876 DISCOVERY? I'M JUST ASKING. CAN YOU GET DISCOVERY, YOU CAN GET DISCOVERY, I'M SURE, 548 00:51:08.876 --> 00:51:15.976 OF THE DEFENDANT. AND I KNOW YOU'RE HERE AS AN AMICUS, BUT A LAWYER REPRESENTING A CLASS 549 00:51:15.976 --> 00:51:20.793 OECHL PLOYEES, BUT COULD THE LAWYER REPRESENTING A CLASS OECHL PLOYEES EVER DEMAND THAT THE 550 00:51:20.793 --> 00:51:27.600 AGENCY PROVIDE THE DECISION MAKERS SXL SIT THEM DOWN AT A CONFERENCE ROOM OR VIRTERALLY 551 00:51:27.600 --> 00:51:32.645 AND ASK THEM QUESTIONS ARE ABOUT WHAT WENT INTO THEIR DECISION? MICHAEL A. 552 00:51:32.645 --> 00:51:35.561 GALPERN: HOPEFULLY WE GET BACK TO REAL LIFE DEPOSITIONS. JUSTICE PATTERSON: 553 00:51:35.561 --> 00:51:42.167 HOPEFULLY WE WILL, YES, SIR GFRMENTS THE ANSWER IS SORT OF TAKING AN EMPLOYEE'S DEPOSITION, 554 00:51:42.167 --> 00:51:46.280 THERE IS CERTAINLY A PAPER TRAIL AND WRITTEN RECORD OF WHAT THAT PERSON EXAMINED BEFORE 555 00:51:46.280 --> 00:51:52.432 ISSUING HIS OR HER OPINION. ABSOLUTELY. THERE'S SOME KIND OF WRITTEN RECORD AS TO WHAT WAS 556 00:51:52.432 --> 00:51:58.417 BEFORE THAT PARTICULAR HEARING OFFICER OR THAT PARTICULAR INVESTIGATOR. THAT'S WHY WE HAVE 557 00:51:58.417 --> 00:52:03.844 INVESTIGATIVE LOT IN TERMS OF WHAT WAS GOING IN AND THERE HAVE BEEN INSTANCES, I HAVE 558 00:52:03.844 --> 00:52:08.946 BEEN PART OF THEM WHERE YOU INVESTIGATE FOR THE ATTORNEY GENERAL'S OFFICE AND THE DEPARTMENT 559 00:52:08.946 --> 00:52:13.705 OF LABOR AND VARIOUS STATE EMPLOYEES HAVE BEEN COMPELLED TO GIVE DEPOSITIONS. 560 00:52:13.705 --> 00:52:19.358 NOW, I WANT TO -- CHIEF JUSTICE RABNER: GO AHEAD JUSTICE. 561 00:52:19.358 --> 00:52:25.650 JUSTICE PIERRE-LOUIS: JUST TO FOLLOW UP ON MR. JUSTICE SOLOMON'S QUESTION. IF THESE THREE 562 00:52:25.650 --> 00:52:29.526 COMMUNICATIONS HAD A MORE FULLER AND HAD MORE INFORMATION WITH REGARD TO THE INFORMATION 563 00:52:29.526 --> 00:52:34.546 THAT WAS BEFORE THESE HEARING OFFICERS AND INVESTIGATORS PRIOR TO MAKING THEIR 564 00:52:34.546 --> 00:52:43.466 DETERMINATION, IF THOSE COMMUNICATIONS WERE NOT JUST THESE SORT EMAILS AND THAT WERE SENT, 565 00:52:43.466 --> 00:52:53.525 WOULD YOU THINK THAT THIS WOULD BE A PRACTICE OF THE DEPARTMENT SUCH THAT THEY COULD -- 566 00:52:53.525 --> 00:52:57.593 THE EMPLOYER COULD RELY ON THESE? MICHAEL A. GALPERN: I GUESS I WOULD QUOTE 567 00:52:57.593 --> 00:53:04.552 THE GREAT LEGAL SCHOLAR YOEGY BEAR WHEN HE SAYS I NEVER MAKE ESPECY ESPECANY. THE POINT 568 00:53:04.552 --> 00:53:10.816 IS WE DON'T KNOW. WE DON'T KNOW WHAT WENT INTO MAKING THE SAUSAGE. AND THAT'S SO CRITICALLY 569 00:53:10.816 --> 00:53:15.222 IMPORTANT. WE DON'T KNOW WHAT WENT INTO THESE DETERMINATIONS OR HOW THESE DETERMINATIONS 570 00:53:15.222 --> 00:53:20.302 WERE REACHED. JUSTICE FERNANDEZ-VINA: ONCE YOU KNOW, WOULD THEY BE 571 00:53:20.302 --> 00:53:25.047 -- IF THE SAUSAGE, IF YOU KNOW ALL THE INGREDIENTS TO THE SAUSAGE, WOULD THEY THEN BE 572 00:53:25.047 --> 00:53:30.747 APPROPRIATE UNDER THE OR SECTION, THE SECOND SECTION? MICHAEL A. GALPERN: 573 00:53:30.747 --> 00:53:37.505 I DON'T THINK SO UNLESS IT'S ESTABLISHED THAT THAT WAS A COMMUNICATION ON BEHALF OF THE 574 00:53:37.505 --> 00:53:43.476 AGENCY. JUSTICE FERNANDEZ-VINA: THAT DOESN'T THAT NULLIFY SECTION 2 575 00:53:43.476 --> 00:53:49.933 COMPLETELY. SECTION 1 -- DOESN'T THAT NULLIFY SECTION 2 COMPLETELY. SEKZ 1 SAYS COMMISSION 576 00:53:49.933 --> 00:53:55.172 OR DIRECTOR. SECOND ONE SAYS OR. SO YOU'RE SAYING EVEN UNDER THE SECOND SESSION IT HAS 577 00:53:55.172 --> 00:53:59.771 TO BE MNG SMAUMENT COMMISSIONER SO THERE IS NO NEED FOR THE SECOND PART GFRMENTS WHAT 578 00:53:59.771 --> 00:54:04.470 I'M SAY SG IS THE SECOND SESSION IT HAS TO BE AN ADMINISTRATIVE PRACTICE OR ENFORCEMENT 579 00:54:04.470 --> 00:54:13.419 POLICY. ADMINISTRATIVE PRACTICE OR ENFORCEMENT POLICY. IS ONE LETTER ISSUED IN A SETTLEMENT 580 00:54:13.419 --> 00:54:20.407 PROCEEDING BASED ON ONE FAX? IS THAT AN ENFORCEMENT PRACTICE OR IS THERE -- 581 00:54:20.407 --> 00:54:24.134 CHIEF JUSTICE RABNER: SORRY. PUT ASIDE THE FACTS OF OF THIS CASE, AS A FRIEND OF THE 582 00:54:24.134 --> 00:54:28.423 COURT, TELL US WHAT YOU UNDERSTAND THAT MEANS. WHAT'S REQUIRED IN ORDER FOR THE SECOND 583 00:54:28.423 --> 00:54:35.020 CATEGORY TO BE IN PLAY? MICHAEL A. GALPERN: SOMETHING AS A COMMUNICATION 584 00:54:35.020 --> 00:54:42.705 FROM THE DEPARTMENT OF LABOR OR THE DIVISION -- THE WAGE AND HOUR BUREAU CHIEF WHICH SAYS 585 00:54:42.705 --> 00:54:54.176 IN THIS SITUATION, IN THIS SITUATION WE DON'T HAVE TO HAVE A TRIAL. WE DON'T HAVE TO HAVE 586 00:54:54.176 --> 00:55:01.711 THE RIGHTS OF THE PUTATIVE CLASS EXAMINED. IT IS SO CLEAR THAT THE EMPLOYER GETS THE 587 00:55:01.711 --> 00:55:08.295 -- JUSTICE PATTERSON: I'M SORRY, WHY WOULD THE AGENCY SAY, GET INTO THE 588 00:55:08.295 --> 00:55:13.472 MERITS OF A CASE PENDING IN COURT AND SAY YOU DON'T HAVE TO HAVE A TRIAL? I MEAN, THAT 589 00:55:13.472 --> 00:55:18.592 WOULD BE A VERY BAZAAR THING FOR THE AGENCY TO DO, WOULDN'T IT? THIS IS SO CLEAR THAT 590 00:55:18.592 --> 00:55:24.311 IF YOU HAVE A CLASS ACTION OUT THERE, THAT SHOULD BE DISMISSED. THE AGENCY WOOBT DO THAT, 591 00:55:24.311 --> 00:55:28.835 WOULD THAT? THEY WOULD MAKE A DETERMINATION ON THE ISSUE OF WHETHER THEY ARE IN OR OUT 592 00:55:28.835 --> 00:55:33.140 OF THE OVERTIME REQUIREMENTS GFRMENTS I WAS RESPONDING TO THE JUSTICE'S QUESTION 593 00:55:33.140 --> 00:55:38.838 UMYSTICALLY BECAUSE THAT WAS THE IMPORT OF THE GOOD-FAITH DEFENSE. WE HAVE TO MAKE A 594 00:55:38.838 --> 00:55:45.739 VERY IMPORTANT DISTINCTION BETWEEN WERE THESE LETTERS SIMPLY A BRIEF COMMUNICATION AS THEY 595 00:55:45.739 --> 00:55:50.575 CERTAINLY APPEARED TO BE FROM HEARING OFFICERS AND INVESTIGATORS? HOAR WERE THEY, QUOTE, 596 00:55:50.575 --> 00:55:59.958 AN INODD YEGICH ENFORCEMENT POLICY OF SUCH DPARMENT OR BUREAU. AND I THINK THE 597 00:55:59.958 --> 00:56:08.516 IMPORTANCE OF THAT DISTINCTION WHICH HUMEEKY FOR THE DEFENSE HAVE DMRAUSZED OVER IS 598 00:56:08.516 --> 00:56:16.146 HIGHLIGHTED BY THE NEW JERSEY CIVIL JUSTICE AMEEKY EXAMPLE RECORACLE EXAMPLE ABOUT MINI 599 00:56:16.146 --> 00:56:23.091 JONES. IF MINI JONES WERE TO SEND AN EMAIL TO ANOTHER ATTORNEY OR TO ANOTHER LITIGANT 600 00:56:23.091 --> 00:56:30.196 AND IS NOT A FORMAL APPELLATE BRIEF, A CASE CAN SAESHL BE ARGUED A CASE CAN CERTAINLY 601 00:56:30.196 --> 00:56:34.663 BE ARGUED THAT THAT INFORMAL COMMUNICATION, ESPECIALLY A HANDWRITTEN COMMUNE KAPGZ LIKE 602 00:56:34.663 --> 00:56:43.441 WE HAVE HERE IS NOT A PRACTICE OR POLICY OF THE ATTORNEY GENERAL, BUT A FORMAL -- 603 00:56:43.441 --> 00:56:48.969 JUSTICE SOLOMON: IT SOUNDS LIKE WHAT YOU'RE DESCRIBING A PRACTICE OR PPOLICY IS 604 00:56:48.969 --> 00:56:57.826 ESTABLISHED BY AN OPINION LETTER AND, THEREFORE, PART 1 AND PART 2 ARE THE SAME -- GFRNLTS 605 00:56:57.826 --> 00:57:00.982 WELL, NO. JUSTICE SOLOMON: THAT SOUNDS EXACTLY LIKE WHAT YOU'VE DESCRIBED 606 00:57:00.982 --> 00:57:07.569 -- MICHAEL A. GALPERN: A PRACTICE OR POLICY IN MY VIEW CERTAINLY CAN BE 607 00:57:07.569 --> 00:57:13.044 SATISFIED BY AN OPINION LETTER, BUT DOESN'T ALWAYS HAVE TO BE AN OPINION LETTER. 608 00:57:13.044 --> 00:57:17.054 JUSTICE SOLOMON: HOW? OTHER THAN AN OPINION LETTER WHICH SOUNDS LIKE -- I DON'T MEAN 609 00:57:17.054 --> 00:57:22.523 TO PRO LONG THIS, BUT IT SOUNDS LIKE WHAT YOU WERE JUST DESCRIBING IS YOU COULD GET 610 00:57:22.523 --> 00:57:28.817 SOMETHING FROM THE DIRECTOR OR THE COMMISSIONER AND IT WOULD SAY THAT'S AN OPINION LETTER. 611 00:57:28.817 --> 00:57:35.664 GIVE ME ANOTHER EXAMPLE OF HOW TO SATISFY PART 2 OF THE STATUTE WITHOUT AN OPINION LETTER. 612 00:57:35.664 --> 00:57:40.242 MICHAEL A. GALPERN: WELL, I WOULD IMAGINE UNDER THE ADMINISTRATIVE PROCEDURES 613 00:57:40.242 --> 00:57:47.822 ACT THE ATTORNEY HIGH-RANKING RULING ON A FULL RECORD BE SUFFICIENT. JUSTICE 614 00:57:47.822 --> 00:57:53.206 SOLOMON: WHICH YOU'RE NEVER GOING TO HAVE WHEN THE EMPLOYER -- NEVER -- YOU'RE NEVER GOING 615 00:57:53.206 --> 00:57:58.119 TO HAVE THAT WHEN THE EMPLOYER WINS. WHY IS HE GOING TO PURSUE IT? GFRNLTS THIS CASE 616 00:57:58.119 --> 00:58:05.140 AND COUNSEL SEEM THE IMPLY IT IT WOULD HAVE BEEN SO HARD TO GET AN OPINION LETTER. IN 617 00:58:05.140 --> 00:58:12.212 THIS CASE IF YOU HAVE THREE INFORMAL RULINGS FROM THE FIFTH LEVEL EMPLOYEE DEPARTMENT 618 00:58:12.212 --> 00:58:16.799 OF LABOR, I DON'T THINK IT WOULD HAVE BEEN DIFFICULT AT ALL TO GET AN OPINION LET -- 619 00:58:16.799 --> 00:58:19.145 JUSTICE SOLOMON: I'M NOT ARGUEISH THAT POINT GFRMENTS RIGHT. 620 00:58:19.145 --> 00:58:23.052 JUSTICE SOLOMON: YOU WERE TALKING BOUT PART 2 OF THE STATUTE WHICH JUSTICE FERNANDEZ-VINA 621 00:58:23.052 --> 00:58:28.176 SAID IT SOUNDS LIKE IT'S SUE PURPILOUS AND YOU'RE ADMITTING THAT BECAUSE PART 1 REQUIRES 622 00:58:28.176 --> 00:58:33.450 THAT OPINION LETTER OR A FINAL RULING AND CONTESTED CASE. PART 2 REQUESTS AN OPINION 623 00:58:33.450 --> 00:58:40.803 LELTER OR ALFINAL RULING IN A CONTESTED CASE. I'M NOT DISPUTING THAT'S MAYBE CORRECT, 624 00:58:40.803 --> 00:58:45.011 BUT THAT SOUNDS LIKE WHAT YOU'RE SAYING AND I'M NOT GOING TO BELABOR THE SAME POINT AS 625 00:58:45.011 --> 00:58:50.825 MY LAST COMMENT GFRMENTS I'M CERTAINLY NOT SUGGESTING THAT THE SECOND PART IS 626 00:58:50.825 --> 00:58:56.879 SUPUFRPILOUS, BUT WHAT I AM SUGGESTING IS THAT THESE THREE VERY, VERY, VERY INFORMAL 627 00:58:56.879 --> 00:59:02.090 COMMUNICATIONS, ONE OF WHICH WAS HANDWRITTEN, WHICH ONE OF WAS ISSUED IN SETTLEMENT 628 00:59:02.090 --> 00:59:05.503 PRECEDING WITH YOU -- JUSTICE FERNANDEZ-VINA: WHY IS THE HAND WRITING 629 00:59:05.503 --> 00:59:10.848 IMPORTANT TO YOU? IF I SEND YOU A LETTER IN MANDWRITING, YOU'RE GOING TO IGNORE IT? 630 00:59:10.848 --> 00:59:14.602 MICHAEL A. GALPERN: NO, I CERTAINLY WOULDN'T IGNORE ESPECIALLY FROM YOU. 631 00:59:14.602 --> 00:59:20.604 BUT I DO THIS CAN A HANDWRITTEN LETTER, I THINK THE APPELLATE DIVISION FELT THE SAME AS WELL 632 00:59:20.604 --> 00:59:28.822 AS THE ATTORNEY GENERAL THAT A HANDWRITTEN NOTE DOES NOT HAVE THE DECORUM AND THE FORMALACY 633 00:59:28.822 --> 00:59:36.796 -- JUSTICE ALBIN: MR. GALPERN, TAKE THESE THREE INFORMAL SETTLEMENTS, RESOLUTIONS 634 00:59:36.796 --> 00:59:45.037 AND MULTIPLY IT SO WE HAVE 50 OF THEM OVER THE COURSE OF, LET'S SAY THREE YEARS. THERE ARE 635 00:59:45.037 --> 00:59:51.354 50. WOULD THAT MAKE A SDIFRNS? WOULD THE SHEER NUMBER OF ACTIONS, EVEN 636 00:59:51.354 --> 00:59:56.884 AT A LOWER LEVEL, CONSTITUTE AN ADMINISTRATIVE PRACTICE? MICHAEL A. GALPERN: 637 00:59:56.884 --> 01:00:01.066 IT VERY WELL MIGHT, YOUR HONOR. I THINK THAT'S THE UNIVERSE OF THE QUESTION THAT WAS 638 01:00:01.066 --> 01:00:07.558 ASKED OF COUNSEL FOR COL, AND THAT IS IF THERE WAS ONE LETTER WOULD IT HAVE MATTERED. 639 01:00:07.558 --> 01:00:13.606 DO NUMBER AMERS MATTER? YEAH, THA IMATTER BUT THEY MATTER IN THE CONTEXT OF THE ENTIRE 640 01:00:13.606 --> 01:00:21.176 FENONNONAND THE WHOLE SCENARIO. AND I DON'T MEAN TO REPEAT MYSELF H BUT WE DON'T HAVE 641 01:00:21.176 --> 01:00:24.720 A WHOLE SCENARIO. WE NEVER GOT ONE -- CHIEF JUSTICE RABNER: LET ME ASK YOU 642 01:00:24.720 --> 01:00:28.350 TO TRY TO BRING YOUR ARGUMENT TO A CLOSE IN VIEW OF THE HOUR GFRMENTS WE HAD AN ENTIRE 643 01:00:28.350 --> 01:00:35.732 CLASS ACTION IN IN A MEAGER AND INCOMPLETE RECORD AND ON THAT BASIS ALONE, ON THAT BASIS 644 01:00:35.732 --> 01:00:41.436 ALONE, THE APPELLATE DIVISION PCHS DAEFRMATION SHOULD BE CONFIRMED. I THANK YOU FOR YOUR 645 01:00:41.436 --> 01:00:46.562 TIME. I ALSO WANT TO WELCOME JUSTICE PEER LIEU HAE TO THE SUPREME COURT AND THANK YOU 646 01:00:46.562 --> 01:00:50.967 ONCE AGAIN FOR ALLOWING ME TO APPEAR. CHIEF JUSTICE RABNER: THANK YOU. 647 01:00:50.967 --> 01:00:56.246 CHIEF JUSTICE RABNER: THANK YOU. PRY YOUR REBUTTAL. CHIEF JUSTICE 648 01:00:56.246 --> 01:00:57.516 RABNER: MR. KOTT, REBUTTAL. DAVID R. KOTT: ON THE STATEMENT THAT DISCOVERY 649 01:00:57.516 --> 01:01:02.959 WAS INCOMPLETE I THINK WITH NEED TO GO BACK TO BASICS. THE THREE ADMINISTRATIVE 650 01:01:02.959 --> 01:01:12.248 FINDINGS CONCLUDED THAT WE WERE A TRUCKING INDUSTRY EMPLOYER. UNDER THE LAST SENTENCE 651 01:01:12.248 --> 01:01:23.073 OF THE STATUTE WE ARE ENTITLED AND TO THAT FINDING, EVEN IF IT WAS LEGALLY INCORRECT. 652 01:01:23.073 --> 01:01:28.727 THEREFORE, THE PLAINTIFFS DO NOT GET TO RELITIGATE WHETHER WE'RE A TRUCKING INDUSTRY 653 01:01:28.727 --> 01:01:34.074 EMPLOYER BECAUSE -- AND WE ARE, IT'S CLEAR. BUT ASSUMING WE'RE NOT WE WOULD STILL HAVE 654 01:01:34.074 --> 01:01:41.733 THE BENEFIT OF THE GOOD FAITH DEFENSE. AS TO WHAT THE THREE EMPLOYEES TOOK 655 01:01:41.733 --> 01:01:49.303 INTO ACCOUNT, THAT'S COVERED AGAIN BY THE STATEMENT OF UNCONTROVERTED FACTS. AGAIN, WE 656 01:01:49.303 --> 01:01:57.337 FIND 108 TO 110 A, WHERE THE PLAINTIFF IN THIS CASE ADMITTED THAT THE FIRST AND THIRD 657 01:01:57.337 --> 01:02:05.750 WERE FULL FIELD INVESTIGATIONS. WHAT THAT MEANS IS THE DEPARTMENT OF LABOR ACTUALLY WENT 658 01:02:05.750 --> 01:02:12.499 OUT AND INSPECTED THE PREMISES, TALKED TO EMPLOYEES AND THOSE KINDS OF THINGS. 659 01:02:12.499 --> 01:02:18.277 WITH RESPECT TO JUSTICE ALBIN'S QUESTION ABOUT THIS BEING A CLASS ACTION, YEAH, THAT'S 660 01:02:18.277 --> 01:02:25.334 WHAT SUPPORTS US, CLASS ACTION IS ENORMOUS EXPOSURE FOR A DEFENDANT. AND 661 01:02:25.334 --> 01:02:30.299 IT'S PARTICULARLY DIFFICULT FOR A SMALLER COMPANY. AND THAT'S THE REASON WHY APPLICATION 662 01:02:30.299 --> 01:02:37.793 OF THE GOOD FAITH DEFENSE IN THIS CASE IS SO IMPORTANT. FINALLY AND RELATED 663 01:02:37.793 --> 01:02:46.475 TO THE PREJUDICE TO OUR PEOPLE, MY CLIENT, IF THE COURT ADOPTS THE INTERPRETATION OF THE 664 01:02:46.475 --> 01:02:57.846 ATTORNEY GENERAL, FIRST TIME STATED SMITH LITIGATION AS AN AMICUS, A COMPLETE SURPRISE 665 01:02:57.846 --> 01:03:03.528 TO CREAM-O-LAND WHICH RELY ON THE THREE RULINGS. IN THIS CASE ANY RULING CONTRARY 666 01:03:03.528 --> 01:03:13.423 ON THIS LEGAL ISSUE SHOULD BE PERSPECTIVE. BECAUSE OTHERWISE CREAM-O-LAND IS BEING 667 01:03:13.423 --> 01:03:18.911 TREATED TO GREAT PREJUDICE BY A FIRST TIME CONTINGENT OF THE ATTORNEY GENERAL. THANK 668 01:03:18.911 --> 01:03:22.783 YOU, MR. CHIEF JUSTICE. CHIEF JUSTICE RABNER: THANK YOU. THANK ALL 669 01:03:22.783 --> 01:03:25.783 COUNSEL FOR THE VERY FINE ARGUMENTS