but afternoon in may it please the court i'm anthony shelley here on behalf of the arista industry committee also known as eric and i would like to reserve three minutes of my time for rebuttal i plan to focus initially and primarily here on  the st argument we presented in our briefs are been several arguments that eric has presented alternative arguments as to why this is the seattle ordinance is preempted but i liked initially focused on the st argument and that is that there is preemption because each an risk a plan for two dollars reasons because the direct payment is a benefit under riseth not wages and because an employer needs a plan to administer that benefit on the issue of whether the direct payment is a benefit the city says no it is not and the district court said it wasn't as well because the money supposedly is just wages but the ordinance itself says that these monies under the direct name action are not wages and that's in section fourteen twenty eight point zero six  and it the amount it actually the amount of the direct payment rises or falls with medical inflation which weighs wages usually don't was the direct payment of golden gate there court said was because of that th because that th option did not constitute a risk of planned the whole statute survives the risk of preemption our point here in this argument is that if you're going to take the golden gate paradigm and say that so long as there is one option that is not going to receive plan you therefore don't have preemption that paradigm doesn't apply because under every option here you have a recipient and so the comparison then is whether the golden gate payment to the city option whether that's close enough to the direct to employee payment option under the seattle statute to also not be in a recipe land and our point is it's not it's entirely different and in fact i think golden gate would have come out differently if it had a if it had four options the st three of which were recipients in the th option was a direct to employ payment that worked like this one dollar and the reason the the reason that this isn't wages like it was in that under the th option in golden gate is because it varies also based on the size of the individual's family and based on the whether the individual has a spouse partner wages don't do that they don't vary based on the family size and in golden gate under that th option judge might be that you mentioned the the amount to the city only varied with the number of hours that were worked which is almost into a way it has to be necessary that the employer must establish an administrative process the variance is was requires the the administrative process in this situation the employer is forced to go out in order to make the make the form a w two form for instance i believe only requires that the individual list how many dependents they want to claim and it might not be exactly equal to what they actually have in their household for instance be because the withholding amount they want to vary the withholding  t based on certain conditions but the important thing is the comparison to golden gate the golden gate varied the wages you need varied the payments to the city solely on the basis of an aggregate of how many workers do you have and how many hours in total do they work here the employer has to set up an administrative scheme to make a payment to each individual employee not a an aggregate to the to the state but it each individual employee and has to then determine for each individual employee exactly what level of benefits they're entitled to it differently there's a there's an intricate waiver process associated with this st option if the employer presents the option of coverage and the employee doesn't accept that option then the employer has to provide the direct payment but has to memorialize the entire process of offering the offering the other type of coverage all these things were non existent and golden gate and as a result golden gate i different case instead this option is very much close to what the court considered in the aloha airlines case which is another president we cited the aloha airlines case involved wage law yes  wage law in fact and it's on its terms that required airline employers to provide money to pilot employees to cover the cost of certain physicals the court said that the money was a benefits and the program the employer had to establish was sufficient intricate to constitute a risk of plan the program there unlike here was a direct to employee excuse me that the program in a high airlines like here but unlike in golden gate was a direct employer to employee payment plan the payment turned merely and whether the pilot was a class a pilot or class b pilot in the sense the sense of what they have been a requirement for a physical that was the only requirement but nonetheless the court said that was a sufficiently intricate disagree entirely i disagree entirely because on this aspect of aloha airlines it's not been criticised it's not been criticized on the point of whether or not the requirement of a payment of the type that was in aloha airlines  airlines cases that come after aloha airlines and the risk of preemption world for instance are don't have to do with this issue as to whether a administrative scheme is sufficiently is sufficiently intricate and the court held what the court held was that it did and that's the statute was the hawaii stance was preemptive and in response to the state of excuse me the state of hawaii asserted that it wasn't present because of another instance in which a rhode island statute wasn't preempted and this is what i said urges that there is an inconsistency in holding that the hawaii act is preempted by arista when another scheme the rhode island catastrophic insurance plan is not preempted the rhode island statues differs from the hawaii statute in that the rhode island statute is not based on the employer employee relationship common to rest yakked rhode island statute envisions a state administered fund rather than funds established or maintained by employers the white plan and the rhode island plan are distinguishable insofar as they may be affected by arista so that's that distinction is one the court has already noted and must follow because it was in its own president of course and affirmed by the u s supreme court and makes it different from from golden gate the next argument i'd like to push  is that golden gate even on a different theory actually supports fully supports preemption and in the end in a different way golden gate says at the very end of the opinion that judge  statute sets up options one of which is not a option for this purpose i'll assume moving on to an alternative argument that the st option is not onerous option but only for purposes of this argument if there is a non is numerous option that not and can save the statute from preemption only if it's a meaningful option if it's not one as the court put it that in practical effect the employer would choose it's not meaningful and shouldn't be considered  pled that this was not that the direct payment option even if it's anonymous option was not was not a meaningful remedy and that's because with that unlike the other options comes in employment tax obligations for the employer in employment tax obligations for the employee and income tax obligations for the employee there's no assurance that the employee will use the money for his or her health benefits and in addition the employer if it goes with the direct payment option is going to have to set up an ad e scheme anyway in addition to the arista planet already has so no reasonable employer would accept this option district court rejected it saying we had to show evidence that this was it on a twelve b six stage and our our allegations are plausible on their face in fact no employer has accepted the direct payment option they've all shown they've all as we allege in our complaint gone with the other option so i'd like to if there are no questions or further questions i'd like to reserve the rema obligation by naming regular payments to employees this is critical in relation to the point that counsel was making about whether or not aloha airlines would require a different outcome here  obtain and record general employment information their employment character of these payments is really clear from the way that they're laid out is regular monthly recurring payments under that understanding of the the individual direct payments no question that paying money to employees  plans like international franchise the other point that i think is important for this court to consider is the degree to which golden gate simply controls and compel the outcome here the district court determined had a state law where they were paying for a very specific medical exam that the f a a had landed from pilots here you're talking about again payments of money that don't have to be  on thank your honor i just like to make a few points st of all mr miller repeated in several times and really the basis of the argument is that the payments under the direct payment option are just wait just wait like the term he used they can't be wages they can't be wage like because they they vary based on the size of the family and the marital status of the individual not had not even health need is just the marital status of the individual under washington law wages that differentiate based on marital status are legal there discriminatory against those who aren't married so they aren't wage like i got the point that there are other not ways like i i understand the distinction tell me why that makes a difference here there's still direct payments they are direct payments but the distinction is that you have to set up a separate system from wages in order to administer in order to administer the payments you can't just you know they are just an add on to wages that are already there you have to have an entirely different system to administer the direct payment here you have to go you have to recently investigate each individual employees circumstances to determine whether they're entitled to the rates for a single person a married person a person with a partner or a person with dependents whether they're children or others living in your house triggered by a single event requires no administrative scheme whatsoever to meet the employer's obligations the employer's terms no responsibility to pay benefits on a regular basis and thus faces no periodic demands on its assets that create a need for financial coordination and control this isn't a one time lump sum payment equal for everybody in this case this is a monthly recurring payment that will vary depending on whether the person is married has a partner has family members whether more dependents enter the house the child employee has a baby all those things change and it changes every single month and in addition there's the whole waiver process that is completely different from the san francisco ordinance and not at all present in force hell effects and the last point i'd like to make is that mr miller suggested that golden gate does in its reasoning indicate that if it if that were a direct payment option there as to the employee as opposed to the city that there still would have been preemption but tying the two exactly together is impossible given the standard oil vs absolute case which i cited earlier and spoke from earlier because it draws this severe distinction between the two and in any event the the