written for the plaintiffs so so this appeal raises almost all the same issues as the appeal that you just heard so i'm happy to answer any more of the questions that you have this peel is our appeal of the district court's denial of our motion for a poem an area injunction which was filed prior to the pandemic and it concerned the fact that labour's failure to abide by any of the massachusetts wage laws by mis classifying its drivers as independent contractors was causing harm to the drivers i miss is leered in many  judgment was entered by the california district court and that in the normal course would mean that the preliminary injunction issue is no longer alive and therefore there is no jurisdiction and massachusetts could you please address that issue yes i will and your honors i just remembered i neglected to ask if i could reserve three minutes for rebuttal yes hume and thank you so much yes so our appeal was filed before the case was transferred to california so i believe what difference does that make well the difference is that the court had jurisdiction before the case was transferred o the ordinary course would mean that there is no longer a live preliminary injunction issue left to be appealed well i think it depends i think ordinarily when the case stayed in the same jurisdiction the appeals would merge and would be heard together but due to this and usual circumstance this appeal was filed in this court and  the final dismissal was lodged in california knows now pending on the th circuit interest and so then so but we don't have the question of whether the th circuit has jurisdiction we only have the question of whether this court has jurisdiction yet if i believe your honors that in our th circuit appeal which i argued last october and it's pending there i believe argued that we couldn't argue about the denial of the original kroner injunction motion because that was pending here so i would argue that you are can't have it both ways we need to be able to pursue that appeal somewhere and i believe it agreed in the papers in california that that had been that appeal had been watched here and was pending here ok well take a look at that but let's go back to does the st circuit have your notice of appeal before and i said right does that matter because under this supreme court case law that doesn't seem to matter at all  well i do think the plaintiffs should be able to pursue their appeal somewhere and i think the fact that a later order may have entered that may also be appealable does not deprive this court of jurisdiction from hearing this appeal that was properly filed here ok so you're attacking the foundational premise of the argument that we no longer have jurisdiction correct and judge final judgments entered in one of them that's precluded been the other even pending an appeal so i'm having trouble seeing why the final judgment isn't  e well whatever happened on final judgment the plaintiffs should still have the opportunity to challenge an earlier order that happened in that case which is what we're doing with this appeal well normally you would i mean if you sued me in a car accident nasa choose it's and i sued you out of that same accident say inane whichever one got to judgment st we're done precluded on us correct and i expect the th circuit is likely to rule before this court would rule given just given the timing that that appeal was argued several months are you are quite an  optimist my experience has been you typically may rule within a few months it's already been a little longer than that but given that that was argued months before this is being argued that would be my suspicion one possibility is this court could just stay this matter until they rule if that is a concern but again i don't see why this appeal shouldn't be able to proceed regardless of what happens where that case ok so judge what the th circuit does but i was asking you about and tiredly different line which is exactly what was argued to us by her which is preliminary injunction appeal so if i could get you back to that ok you do cite opinion written by judge terrain but it is factually extremely different than this situation so what is your argument for minutes remaining and your honors i i really want to rest on our papers with respect to this issue and i hope that i can address some of the other issues in this appeal later that's your choice go ahead ok thank you thank your honour's so so once again as i started to argue before in the previous lift appeal that you have taken the liberty of thumbing their nose at the law by depriving their entire driver workforce of all protections of the massachusetts wage laws since its inception in massachusetts and the reason it has been able to get away with it is by using its arbitration clause and yes just as chaotic individual drivers could pursue individual arbitrations and try to get back some money and maybe even try to get individual injunctions that would cause them individually to be classified as employees that is not going to take care of the massive public harm that is being caused by this company completely ignoring massachusetts wage laws and as a practical matter as we all know thousands of drivers are never actually going to be able to vindicate their rights in arbitration but the fact that arbitration has been enforced in so many different contacts and has been upheld by the u s supreme court over the years does not has never the supreme court in this court has never faced a situation in which a company has strategically used arbitration so long and so repeatedly and so aggressively to prevent a court from ever ruling on the fact that its entire business operation is utterly illegal and that all of its drivers are being deprived of all of their basic rights under the wage laws including minimum wage every time having to pay for their jobs which is illegal under a were versus coverall they're having to pay their own expenses for their cars and this harms the drivers  lack the basic safety net of our of our commonwealth's wage in our laws and it also harms the public which has to fund these drivers through public assistance which they can't afford and who have to bear the cost as taxpayers to fund the fact is this whole company is just ignoring the laws and has created a race to the bottom a brief below and didn't with us on either of these appeals does the a g have the ability to avoid the arbitration issue by bringing an action on behalf of the cases so i frankly didn't ask them to resubmit them for this court and yes the attorney general has brought cases against it were and left finding that they have violated massachusetts law which only reaffirms the public importance of this and again the question about whether or not massachusetts law allows for a public injunction the massachusetts attorney general's office has now agreed with us that it does need a g s office gets deference recognizing that private may please the court the any of angelus on behalf of the uber defendant the court should dismiss this appeal as moot after the district court transferred the case the northern district of california dismissed the case and entered final judgment the preliminary injunction ruling that is a subject of this appeal has therefore now merged with the final judgment and this appeal has been rendered moot that is a dress oral did to collect have to jurisdiction to do anything that would wipe out our jurisdiction yes your honor when that ruling is on i thought when there's an appeal the lower court loses jurisdiction to rule on anything that  overlaps with an issue on appeal and here the probability of success on the merits would essentially be the exact same issue has the merits so how can a lower court even have jurisdiction while it's in our your honor when preliminary injunction rulings are appealed it is often the case that the case continues in the district court and there may be an order of dismissal that's enter in later and that moot the appeal of the prior ruling and it merges into the final judgment this happens all the time and it happened in the chip part of phebus case that we've cited it happened in the freightliner case so to really emphasize here the important fact is not the fact of transfer for but the fact of a dismissal that later rendered that interlocutory appeal moot so the fact that this case was transferred is not the operative event and that's why this court has to look at this from the lens of the ship are zero free case as well as freightliner in other cases and the fact that a final judgment has been entered means that the appeal comes from that i'll judgment and of course that appeal is currently pending in the th circuit and the th circuit has not yet issued its decision but that's the current state of play here and that's why this appeal as it currently stands is moot and it should be just mess if i understood your position and that night circuit it's not that there is appeal before it that night circuit it is there is an appeal from entry of the final judgment which disposes of the claims for permanent  exact correct that's exactly right judge lynch thank you your honor in the b matrix case in that decision there are there the case had not been dismissed so the rule where a case is live in the district court it's true an appellate court order the transfer or court to enter or to request that the transferee court here in the northern district of california return the case so that the transfer or or may enter a preliminary injunction if that ruling on the preliminary injunction is reversed on appeal but that assumes that there is a pending case in the transfer he court for this court to order back and here that simply isn't the case so that again the operative fact is the fact of dismissal and entry of final judgment and not the fact of transfer so that's why that is does not hold by the by the griggs issue you know in its control over those aspects of the case involved in the deal so we have here a filing of a notice of appeal by ms list reagents clients to this corps under griggs that divest the district who are of any control over aspects of the case involved in the appeal which would include the likelihood of success on the merits so why doesn't why could the district court in california still do anything on the merits well your honor pla did file effect in motion for a preliminary injunction so that is the motion that the district court in california and the northern district judge can decide it so there was a subsequent filing of a nother amended complaint and another motion for a preliminary injunction and that's what was before judge chancellor judge chan did not rule on the same motion that judge how wanny will look at the test you  cited to us is not the same motion it's the aspects of the case in the in which the whole doctrine is intended on preventing onces an appeal the lower court from weighing in and moving in the circuit court an issue and  now you're you're asking that you're asking is true that's exactly what we should allow the district court to have done here well your honor again this this does happen and it happens wherever there is an intra lock but here this was this motion that the northern district ruled on again was a different line and added based on a different record wasn't that that's correct your honor and therefore at the same issue a likelihood of success is not the same as the issue of likelihood of success as to that motion was not the same as issue before us that's correct your honor and again when this case was transferred plaintiff's did not appeal the transfer order the only appeal that is before this court is that of the denial of the that has merged into the final judgment so this is a very important threshold issue that means that the court should dismiss this appeal but even apart from that i believe that the court if it were to reach the merits should affirm the district court's decision denying ripple in marion junction for several reasons which i can address and not of go ahead it's your choice yes thank you and i don't want to repeat the arguments that were made by ms goldenberg i agree with all of them in the prior p l o i would just say that again a very clear national consensus emerged among the courts on which type of workers falls within the section one example in which is narrow and it is those workers whose work is part of an integrated interstate trip that's coordinated by the punitive employer and this court said in one fucka that the court should look at the nature of the business of the punitive employer in making that determination and the work at issue here is and again when it comes to a line drawing judge i asked about that earlier and i think the line is clear from all of these cases and certainly in the wallace decision which was written by that judge barrett where the court held that unless the interstate movement of goods is a central part of the class members job description then the work does not follow the class of workers does not fall within section one and  again we look not where the goods have been or are here where the people have been and whether incidentally they happen to be picked up in a cab or by a friend or use the  circuit defined the class of workers national right here drivers in the in re grace decision so again there is a national consensus that has emerged and it's very clear that here  drivers who use the uber app on the side of the cab that are not engaged in interstate commerce in yellow have and that the th circuit agreed drivers using the basis to avoid arbitration or to in any way nullify the arbitration agreement that plaintiff voluntarily agreed to and did not opt out of here and later if the seeking individual relief and courts are unanimous on that there is unanimity on this issue and the injunction here would upset the status quo would displace arbitration completely and would be inappropriate for that reason as well and judge was correct and did not abuse her discretion in finally in finding that plan to fail to carry his burden to satisfy any of the requirements for an injunction for the extraordinary believe that he seeks here he presented no evidence whatsoever to any harm to himself or to anyone for that matter and completely failed to meet the requirements for injunctive relief and that harm is the touchstone of equitable relief and cannot be excused that he failed to meet that completely so for all of those reasons your honour's and the court should st dismissed the appeal but if it does not dismiss the appeal th it should affirm the decision of the district court thank you thank you and i'm happy to answer any further questions  thank you attorney evangelist you may at this time your device audio and video and attorney was for it and you have a three minute rebuttal time thank you very much i can just touch very quickly on a few points that were just argued one argument that there's been a national consensus that right here drivers don't ponder the section one exemption if the court actually looks at those cases most of them were decided on on other grounds such as the people versus goods distinction or we're not bound by what i thought as this court is the wallace case that was decided by justice barrett in the th circuit involved food delivery drivers which is a different situation the food is not traveling interstate is essentially what she held because the meals are created at the restaurants of course with passengers there's no transformation of the passengers when they get to the airport they are they're still passengers had they're not and they're not done with their journey until they get home or to their hotel or to a place of business and the same with the beginning part of their trip ms evangelise just referred to the end or a grace decision by the th circuit that was a case in which the court simply deny to me and damus petition and held that there was not clearly established law already that was contravened by the district court's decision that wasn't an actual decision on the merits on the usual standard of this this section one exemption which is now actually before the th circuit in the other appeal that is now pending  capital this case on the public injunction point it were has argued that all the other courts have denied the argument that what plaintiffs are seeking here would even constitute public a jumped of relief under the collar for new mcgill decision i just want to point out that i'm a gonna in college the decisions didn't really analyze it at all but just well call it be relied on madonna and madonna relied on miss  behalf of your drivers because they were irreparably injurious and that the public interest operated in your favor because  the public also would benefit by issue an injunction so i'm a little confused about whether you were arguing that this was a public injunctive request for relief or not well yes we are arguing that we meet the irreparable injury both because of harm to the drivers and harm to the public and we don't need to prove that massachusetts law represent recognizes public and time to really finder mcgill in order to make that argument we satisfy the primary injunction requirements separately on the question about whether can block our thank you that concludes the arguments for today this session of the honorable united states court of appeals has now recessed until the next section of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting