well there is some storm going out there but there's no storm in here we have a wonderful discussion there were about to  here and you know when you have visitors in your home you gotta say hi to them before anything goes on sure so i see that we have folks from the roosevelt elementary school is that right yes well first of all welcome to all of you we're very happy to have you here we have a case that's a great interest today we hope you'll be interested and myself and my colleagues will be happy to chat with you after the argument but you'll understand our formality now so welcome please have a seat well look when you have a motion to compel arbitration it is a kid to summary judgment it's a scenes that we have a key question of fact on the  interstate commerce issue your adversary says oh no only involved locally engaging in interstate commerce not here you paragraph twenty nine of your  declaration obviously contests that we have a question of fact of the f a a right exclusion conversation but i just want to take the point one step further i presume that with the question of fact that we've just past the first part of the of the two prong extra exemption issue right assume that for a moment if there was a question of fact it would have to go back and this court at this juncture really couldn't deal with any of the other issues delegation clause state law california new jersey waiver seventh amendment those would all have to take a back seat is that right absolutely i would agree if there is remains a question of fact the house that discovery is needed to develop then yes but i'm not sure there is based on what is before the court in the undisputed r oh and so what it was if you come and this is were turned on legal issue which is i suppose why we're here and it turns on what we mean we say someone's engaged in interstate commerce what is undisputed based on the riser services agreement which is fully in is that what you're saying there is but i do want to cook i think it's implicit it's not explicit but yes i think there is specific language we are relying on and specifically it discusses how drivers would be in a territory they get to where the passenger is without even knowing where the passenger is going they're not told that if a time they get there and the and the application and or the customer tells them where they're going here here's what i don't understand why if you're suggesting that that cuts in your favor that doesn't change the fact that a question of fact arises based on what your adversary is said right i mean their positions not changing your local you don't engage in interstate commerce so there's almost nothing you can say to convince us right because a question of fact is or isn't and has to be resolved in the first instance by the district court if the court's view is that because the court didn't address it even if it could have it should go back to the district court and i can't disagree with that because what i am proposing is i think it's in the record but there is no question at all the district court didn't get that the district court focused on the passenger versus goods distinction district court did not do so i'm not and i think i am interested in knowing where in the record there is factual material from which a court the district or this court could conclude that they were involved in travel interstate york city and there's also in the riser services agreement something i believe allows the implication but it is only an implication and i don't really miss and let me ask you this this is not about it's a class of workers it's not mr saying practices from what can we glean from the adventure record that a class of workers travels in interstate commerce and that's why you have to get the implication right or services agreement certainly if the court is looking for more macro level data we don't have it it's not in this case it would be needed i mean if you look at what the case to say about semen and railway workers you have a class of railway railroad workers each railroad worker doesn't have to engage in that's exactly right so we think the fairest way to interpret it on this would be a legal interpretation that ultimately maybe is the rule of the court whether the facts have been resolved is if the contract of employment as it is now to find a new prime so not at we could imply or that yeah every back if i understand you correctly you're saying that inference could be drawn whether it's between a service provider in pennsylvania on the eastern part of pennsylvania or texas in the if the contract contemplates it i think you know i think that's correct now now i would say that i think there's two ways that the court should consider and how to handle this cost drivers and it's won't surprise me when newburgh gets up here thousand or ten thousand local businesses that probably serve local areas guber is very different they are an international transportation company providing travel throughout the forty eight continuous united states this is their i p o documents it's the middle of the court have to take notice it is not a factual record and so maybe he's got his record but the court could take notice because the i p o documents are now publicly filed and we could certainly point the court to not well let me ask you this question they threw out their papers assert that the drive your client and the drivers particular only drive locally right so am i correct that the only the only factual record that derives from is the coleman declaration yes right yes that's correct that's correct ok so the coleman declaration i as you were talking i kind of went through it again and ok we don't need to go through it but let me ask you this proposition if it's not in the cold and declaration that it's not in the record before so is your position that if it's not in the coleman declaration then a question of fact hasn't been joined essentially yeah i mean i think that by the way i'm not looking at the coleman declaration might use the word local it does not use the word interst it may not even use the word local but it certainly does not claim the drivers are only involved in interesting intrastate or even primarily involved in for state transit and may not even use the word local but i just want to make sure that i'm being clear  i can't remember it now but i know it does not explain it does not make a distinction between our state and interstate and yes it is the only facts in the record that you interstate travel other than potentially document the code have to take notice on is the riser agreement which we believe implies a non local travel and non interstate travel implies the recognition that they may be doing interstate travel and my client's declaration which clearly states this is what i'm doing it is your best authority to say that the exemption applies to the transportation of the individuals human beings and property so the you know we now know from new crime and i mean i know the court had to submit letter briefs and we did it and we did the best we could but we had even more time to contemplate such a major u s supreme court decision in the months that have passed and one thing that we noticed about new crime is its sights she says the way to determine its exemption interviewing of course with the congress on employment but it is the same clause in the same statute passed at the same time so as we have to figure out what it meant in one thousand twenty five that's the best way to figure this thing out and they cite to a number of dictionaries at that time we looked at all there actually will be able an archive and we're happy to give the courts copies of the two that define interstate commerce because someone like webster they're not going to find interstate commerce two of them do define interstate commerce one is the black's law dictionary second edition from one nine hundred ten and it defines interstate commerce as traffic intercourse commercial trading or the transportation of persons or property between or among the several states of the union or from or between points in one state to another state so the very source that the supreme court but important to interpret the law explains includes passengers a similarly the century dictionary encyclopedia of one thousand and six defined interstate commerce as including a commercial transactions between persons carried on by lines of transport extending into more than one state so the supreme court's sources support the idea that as passengers we also pointed the court in our briefs to a number of statute passed of the think you think you're are you and the other thing is that they've they've basically informed the court that somehow the two a greyhound bus cases have been overruled which they have not been of course this court has found the bus line employees are clearly in the class of workers a cover by the f interestingly the supreme court itself when it uses the for instance language which is now being dogmatically repeated as if the for instance is a conclusive list a cited to it was a fifth circuit case and if you actually look at this  good one is incorrect and if you actually look at the cases the courts didn't deal with this distinction and it wasn't material what the court was doing there are a few district court decisions many willy seeing as one of them were the distinction wasn't born in of but they just oberg reis with this characterization i wonder what your view is and whether you can take us through the problem with the premise to that statement he was in first the supreme court i'm not so for instance and you know and  at all so the supreme court was careful to use the word for instance and in fact the very next year when and it wasn't me it was me oh see case dealt with whether you have to arbitrate with the o c but in waffle house we'll see when they repeat what circuit city means they don't talk they just say transportation workers are exempt and they don't say moving good and new prime minister since it was an important there but again we see the transportation workers language we don't see this good language ultimately the only way this based on new crime this court could interpret circuit city oh i thought so i don't i don't want to get away from your question i'm sorry so your question was how do we deal with how the court has dealt with the circuit court of appeals opinions i want to and only the supreme court got it wrong the said per instance what the supreme court was saying and respect we just got it right in the one nine hundred fifty s was interstate commerce is not going to be read broadly and we are going to look at it in a reasonable way but we're going to look at it more narrowly in the constitutional limits of that phrase and so when this court decided bustline employees were covered but engineers weren't which is what those three decisions while it got it right because of course under ultimately was overturned in circuit city it became the law when the ninth circuit would have ruled presumably for the engineer saying he was exempt because he's affecting interstate commerce this court didn't buy that argument it narrowly construed the exemption just as if the supreme court later determined was the correct way to do it immediately almost sixty years after that but nevertheless got it  right and what this court held as it applies transportation workers so this it is correct to say that nearly every circuit court of appeals did interpret it that way it's wrong to say that the goods distinction was part of that analysis and if you look at the circuit court decision which predates circuit city and the ones that are always pointed to so power you know the abnett computer techs dealt with technical support employees and again you had this affecting interstate commerce but not being engaged in the transportation in that case they weren't exempt the same reason this court found colby burns international which was the d c circuit court of appeals we were dealing with a security guard and again it was it's affecting versus being engaged and we list them on our brief but it you know neal the hill in which was fourth circuit it was a respiratory therapy therapist in ro very consistently with how the u s supreme court would in two thousand and one it refused to hold the exemption apply to engineers and people who probably affect interstate commerce but are not involved in the transportation industry and are not involved in transportation and hel and one reason why congress might have written this way is because seaman railroad employs had separate statutory schemes that put them into arbitration if you consider that is sort of part of this analysis i'm not sure we should as opposed to merely looking at the text i just want to make sure that there there are no established or pending statutory schemes that would cover over drivers for example the way there were for in the in the bus drivers are regulated by duty we don't know where the regulation alternately go because we are now in a new point in our nation's history where you're seeing a new type of private transportation industry and where goober fits on the taxi or more like a railroad distinction i don't think it's quite as clear as google wants to save you we're just wanted a technology company but then they want to be compared to the local cab company i work in jobs in new jersey and that's just not so it's they are now in a new space  and we've heard congress talking up intentionally regulating but i think that the directly in your point of order i think you go to the statutory text and what the legislators meant when they wrote the text and we can look at what the dictionary said back then we can look at the case law was coming out in the  hundred thirty s and it clearly speaks to the idea that passenger travel is included and that it's about transporting so it's not it's not the account manager who has accounts in multiple states and drives across the states he's not included but when you are getting paid to twenty more than twenty federal courts including the six nine and eleven circuits i would like to start by addressing the section one exemption and why it doesn't apply here and i  to demonstrate that the exception applies to him first the f a a would apply because this involves common commerce very probably but then if plaintiff wants to fall within section one he has to demonstrate that he's within the class of workers who's covered and here all he submitted was one declaration about him personally and the fact that he he never said he he travels across country he just said that he goes over state lines into manhattan from newark airport which is still local in nature inherently he's talking only about himself but he was no accident to the core as a motion to dismiss before there was a discovery schedule set and in in his opposition brief i believe there was some mention of if we think we need to develop a factual record then we should do some discovery your honor i think it was his burden at that stage in opposing the motion to compel arbitration and to dismiss on those grounds the court was permitted to look point if you look at appendix page forty three section one point one it says territory it talks about the territory of a driver using uber app it means a city or  enabled by the driver app to provide transportation services so i think again as we all know where the burner app and drivers who provide local black car service like taxi cabs like require merely to create a genuine dispute as to material facts well i think there's a great decision from the northern district of california in the villas versus centers case and that case really goes through in detail judge armstrong goes through in detail whether the the party there or who one percent has falls within the section one exemption and goes through all of the evidence in the record and says it was plaintiff's burn to put in decorations to i mean do you think that would have really occurred well your honor plaintiff didn't and that's the interesting thing here i'd like to take another step back because to judge greenways question about your mom going into manhattan from new jersey i'm sure proof case if i'm your point of view if they can win on every legal ground but it's a failure proof on their ground that they didn't demonstrate that they are in the class of workers engaged in are sick i think it is both a failure of proof and we can tell by looking at the statute and circuit city and i'd like to go to circuit city we can look at this class of workers i think it is undisputed what sort of category of class of workers we're talking about but we  you would agree that our case law has not been overturned or disturbed by either circuit city you pride or any other law of the supreme court would you agree with that proposition well your honor i think if you're referring to e now what i'm about to read is saying why the actual facts in tennessee were not within the exemption but then it goes on to what i'd like to discuss with you in this respect the present case is distinguishable from the two pennsylvania grand isle months cases decided by this court the bus line employees in those cases being directly engaged in the channels of interstate transportation just as commerce so the concurrence is thinks that the opinion is limited to transportation of goods there was a line in the in the first greyhound case that without any discussion about why bus drivers doctor in that context as falling within the ambit of semen i mean you know to the extent that we're talking about exactitude there clearly that was beyond you know the  exactitude that i think you would say we need to fall with and transportation workers well i think that new crime again goes back to one nine hundred twenty five and it looks to one hundred twenty five m what congress was regulating what congress believed it could regulate and then the key decision here is really circuit city because it goes on at length about what the section one exemption was supposed to cover and it was about areas where congress hadn't acted comprehensive legislation  about real world workers in filo or shipping in the jones act there's nothing like that here this is not a an industry that is regulated comprehensively on the national scale there are local regulations of taxicabs and other local transportation and i' goods and passengers so are you saying that you're not stopped from going to rephrase this is your position that even if the exemption applies to the transportation of both goods and passengers the reason why uber drivers are covered is that there is no national regulatory scheme that governs their behavior that is one reason you're on a gas and because it is different in character you can have a ricksha in new york i think that in san francisco taking people throughout different parts of the neighborhood that's not interstate commerce and interstate transportation in the same sense as railroad employees and see man i think just as think even if we were to say that it applies to both there's something inherently different between a greyhound bus line which takes people from philadelphia to seattle versus a local car service and what what are the characteristics that so if you assume for the purposes of this question that we don't buy the goods passengers distinction a new prime has taken independent contracting off the table what are the characteristics that separate driver from seamen railroad employees and other classes of workers and gauged in interstate commerce again i think it is the inherently local in the character of the work and i will explain for a minute if point  plaintiffs the statute talks about classes of workers so not the not one worker alone it also speaks to contracts of employment of that class of workers so here plaintiffs contract is either covered by the f a a or not and it shouldn't depend if he's in miami or new work or honolulu he's not going across state lines in honolulu what is what i don't understand he was everywhere right who we can see the forty eight fig in philadelphia you want to go to cherry hill you're in pittsburgh you want to go higher no i know there's some coast that's close enough but you know you're in new jersey you want to go to new york so it's is would you have the same argument if mr singh said here's the declaration of ten drivers who frequent newark airport as i do and they all go to new york i don't think that that changes the equation we have to start again with section one under circuit city it's has to be given and now construction so if we start saying anyone who crosses state lines or in is in a class frequency would it be looking for for a transportation worker to be going interstate with passengers or goods in order to qualify is it incidental is it occasional is it daily living what i would how would we now i think we have to look at the class of workers as a whole and whether the character is inherently local or interstate but you know and like to just out for a moment say here that plaintiffs i don't think carried his burden to show that the f a a doesn't apply but even  the f a a doesn't apply in this court really doesn't need to reach that issue here because the result would be the same under the new jersey arbitration act but wait a minute you did i read that in your briefing in front of us we were in the only place i remember seeing and i'm happy to be corrected is your repl issue and all sides agree that new jersey law applies here in new jersey arbitration act applies to arbitration contracts in new jersey when you're asking us in the first instance that we should we should take a look at that here and i just think that the result we have to be cognizant of the fact that this is a narrow construction narrow exception that was an active as part of the satcher that sought to overcome judicial hostility to arbitration and so we have to be informed by that the fact that there were comprehensive  statutes and regulatory regimes that govern railroad workers and seamen we have to interpret the residual clause in light of those categories of workers and that no but what you're saying is that because there's this larger regulatory scheme by congress for rail way workers airline workers we know through the idea of a right that's what you want to see today ideation and the eleventh circuit decision here on this issue but it can harmonize the third circuit that decisions in greyhound this court's decisions in those cases and the decisions of other circuit since circuit city by holding that this class of workers plaintiff has failed to demonstrate that this class of workers is like railroad employees see men again or internally back in should answer judge porter's question what are the factors i think your answer was whether it be its characteristics include ones that are inherently local or interstate yes and right and subject to a comprehensive federal regulatory regime and the cases there again the it's circuit's decision i think it's very helpful and also i cited the villa's hearses a centrist case and i'm happy you went back to that yes could you tell me whether the procedural posture in that case is similar to the p one more time with the number if you could two four five two eight five one th of because they filed a motion and of course at all times there was no jurisdiction so we weren't authorized by the federal rules to take any discovery and true we didn't serve a deposition notice and true we had despite authorization from the federal no authorization  twenty six i suppose they might have conceded it but i don't think we have an obligation to violate the federal civil procedure we asked the court to allow us to take that discovery and were denied and input no nine specifically said you should not allow discovery that would totally  s it's section two to the right your dream and i put a four but i know the four has a number at the end of it i'm so sorry that i put it in section two to and it costs about how you pick up individuals in the territories but that they established i think and i'm doing this from memory but something in the line of fifteen point some odd billion miles that they've travelled you know and how many billions of trips and how they operate throughout the forty eight states and they yes just because  the place and does a lot of miles doesn't mean it's class of that these class of drivers do correct that's true but so for example in a you know obvious sort of he was going transportation workers but circuit city clearly you know is in every state but the workers are all in their specific store you know or has a nationwide transportation center which drivers like jazz bill they don't have forty segregated markets and it's very you know it is not that that new jersey drivers in jersey that we also operate in pennsylvania separately absolutely not they are constantly crossing and meaningly my assumption we can get discovery on it but you know i think the answer actually for movers attorney was usually when you look at a class of workers you have to look at whether it's a class they're crossing state lines so let's look at all the other driver to think dutch that  component for a judge porter's question about a test where the additional point was that the they are subject to a regular federal regulatory scheme is one that we do with that one in circuit city and explain his that congress was was concerned about the constitutional limits list of the two types of employees they knew and other people who are per their from perhaps constitutional commerce clause or the very people who are who are not covered by the exemption and the court said hey there's not much legislative history so interesting possibility of an explanation which is the regulation they don't say that's the issue and of course the statute in no way says workers in gauged in regulated interstate commerce it could if that's what congress meant clearly that work would be there does not say that it's nothing about regulation that was a proposal explained in circuit city to explain why they did not believe what they were doing was a paradox basically and it makes sense but they i don't they no way claim this is the test the test was transportation workers i gather i think the they are certain or this is what happened they just said this is one explanation but at the end of the day i don't think the court was worried about that they were worried about what did this text mean when it was written and we see that again a new crime which employs no way changes the test  it doesn't have jurisdiction i don't think that there my understanding of your adversaries argument is not that a lack of jurisdiction we have jurisdiction perelman the parties but richer of the representations of caffe out there suggesting i think that the new jersey arbitration act provides a remedy gives them a basis of alternate basis for relief another ground to dismiss not for lack of subject matter jurisdiction but because of an arbitration agreement the parties have concurred that from their point of view that resolution of federal arbitration out of this agreement has the exact same language and so the agreement is subject to the f a a they have that is separate apparently then the general california law interpretation of the court relied on jersey which we do not believe is material for any part we're doing here today but they have they chose and if we buy this argument this was a conscious decision of two consenting parties and the knowledge then and they both agreed my client and they were going to have this live or die on the frequency of interstate commerce that's going to syria and i think what i hear you saying is it doesn't matter if it's if the if the agreement contemplates interstate travel that's sufficient even if it's counterfactual well i think that you have to it mean if it's if it's i think our position is that if the agreement fairly contemplates interstate travel i would say that you know if it's a one off because it's a very small company  then you know that might be harder but in a company like google or no you could not you have a say this fairly contemplates interstate travel if the record shows that there's two million new for drivers and three of them prostate line you know one no i mean we we would recognize that that despite what the contract says we actually have enough data now to see there was no fear contemplation of that so but yeah i think that it would have to fairly contemplated there's nothing in the statute that says primarily engage in interstate commerce or or more than half the time and we do see that in some statutes of course you have to also use one of them when we start talking about primary duties and things like that that language is not in india because when i dealing with the constitutional limits of interstate commerce there's some blasts there's some lesser amou greater amount because a little bit isn't enough in this situation what i do want to get back and this is all has been our construction which is we're not doing the constitutional limits if we were circuit city employees would have been caught in so and so would have been quite  else say which is a federal law good to be covered and so it were not you know it constitutional limits but that doesn't i think mean that for transportation workers and interstate travel suddenly it has to be primarily or a large amount or even more than for frequency and i guess i'm answering you don't think frequency is the test it's fair contemplation and i think that you have to balance the fact that if you had a situation where you have two million neuberger arbors and very few of them across in the next five would certainly go against but i think the real test is we know i suppose the factual record there's yeah ok how do i thank you because all we have is my client's declaration quite frankly and potentially public documents the court could take and i don't believe there's a dispute there if the question is we don't know what happens to you know two court does think my client is covered by the f a a is not covered then we do have to get to the constitutional issue and since it is an extremely important to the seven member united states constitution i don't want to leave her house saying one thing about it and i'm going to i just want that  and you had a chance i doubt it well it still has to be knowing unintentional i mean clearly if you read it and we end the court buys that constructive notice of this type in a you'll love it which is i mean i know that you know the facts are it is called the r services agreement the title the document is not going away as a jury waiver it is a i think nineteen or twenty page document once on it and a half by eleven on a small phone you would imagine it's much smaller but the the court and i think this is probably the most important point in this waiver and the federal arbitration act actually cites to a large view article which really hits it on the head which is called mandatory by an arbitration in the demise of the seventh amendment sixteen ohio state j dispute that has has no place that has absolutely no place in constitutional fundamental rights it go it's not it would not be a bad interpretation of the constitution couple of the f a a they say you can absolutely have a trace an agreement we're going to hold these things oh