for profit massage schools and as part of a clinical program were made to perform over one hundred hours of massage to members of the paying was not required in order to get a license were that was where they were required to get a license in order to get a license did you have to have a certain amount of clinical experience you do and how much clinical experience where they report to have the school's program said one hundred five hours i believe they were required to have somewhat less than what was it you know there were thirteen different states involved and our clients came from approximately seven of them the opt s your honor and that vary between the options it's all right the question presented by this appeal is whether the tenth circuit will join every other federal circuit which in the last two years has considered a similar case that would be the second the sixth the seventh the ninth and the eleventh circuits have all decided cases involving student interns every one of those circuits here on earth has applied what has been called the primary beneficiary test announced by the second circuit in the glatt versus fox searchlight pictures from a couple of years ago we get right down to it is really no difference between the the right test labeled six different issues they were set out from the walling versus portland terminal case from years ago in the supreme court originally did dio well had said these are six factors to consider it issued an opinion letter saying if you don't meet all of them you're an employee that was rejected by this court in right about twenty five years ago where the courts that know you need to look at these factors in the totality of the circumstances and you need to apply economic realities but here's the critical difference between what glatt has done and what in fact this court did in the right and i was right was applied by judge jackson below in the district court judge x and said i have to look at those six factors in a checklist now within that checklist i'm going to look at the totality of circumstance i'm going to look at the economic realities but just as a limbs focus is the court's attention or anyone's attention on facts the court mis used those that economic reality in totality of the circumstances test instead of taking all of these factors which in marshall versus regis existed throughout the educational context judge jackson just looked at those six the six factors set out in right and within those six factors said he weighed the totality of circumstances and the economic realities but so what what was i'm sorry what i'd like you to talk about what factors the court should have considered if i mean it's one thing to talk about the labels on a test and  factors the court did consider what didn't consider that it should have and how should that have weighed in the court's determination well there are many things that either discount it or  one element of the six factor to what for example siddur what didn't the court consider that it should well the court didn't look at the for profit nature of of the operation the court didn't look at the economic actual marketplace and how this company which was making millions of dollars four point three million dollars an income competed in the marketplace with money this was a summary judgment in it and  i understand it the school came forward with evidence that in fact did not make a profit that it was losing money and i don't see that your client came forward with any evidence discounting their showing that they actually did make a profit here well your honor in this age of social media one can stamp loudly and repeatedly claim facts are one thing but in fact there was a information in the record substantial information in the record it was presented as exhibit two does you have an expert who testified as to how much they made an economic expert i guess i think it's fair to say there was no economic expert there was a rule thirty  deposed that was mr wharton who was the chief financial officer and he presented exhibit two to his deposition included i believe it is three thirty one of the plaintiff's appendix but the bottom line was that it showed four point three million income and then as mr wharton acknowledged they did he set out certain expenses that supposedly offset that for example but what  relevance is the profit when they have to have this experience is not displacing anybody in them in the public domain they have to do it there under supervision perhaps not as much as you would like and in glatt there were a motion picture people who weren't getting a license they were trying to qualify for a license they were just in turns in the motion picture business you've mentioned several issues and i'd like to address them in turn it going backwards i think the latter is in this case it appropriate to look at the seven different factors i was an out of of educational educational institute internship i thought you said that we should use the glatt champs the guts of glatt of the guns are glad of the same as the guts of writing the guts of is a three factor so that was actually called three salient factors by the glatt by the glatt court and it's what the guts of the primary beneficiary test are the first focuses on what the in a shoes just like in dental clinics or law clinics your honor it may be that there is a practical it may be that some states have a practical experience requirement the record shows that under colorado law a licensed massage therapist was present in the building and supposedly supposed to be available that wasn't what the facts indicate happened in this case no licensed massage therapist was ever available were available if the person one of the mic could have shut put their head out of the tent and said hey come over here i hate to say this your honor but that that's not accurate in fact the policy in the record was that each person could not leave their client and had to stay with them inside of their eight by ten cordoned off area there was no opportunity just reason wouldn't have to leave to call out for a person who was walking up and down the aisles and the regular making a totally different case than the facts in this case i beg to differ your honor i think judge jackson picked and chose facts that would have supported the finding that he made but weren't in fact in the record those facts as requires close supervision under glass eye to it doesn't require close supervision as i look at these two tests to the extent that there's any difference between them at all it seems like the difference is hurt your client don't help your client a number one is is the very first thing we look at under the glass actors is whether the in this case the student understood they wouldn't be compensated for their hours working is in the clinical misuse it may well be your honor that that is something that the court should consider under the glass but in fact the question under glass regardless of which test this this court choose gets down to what's the exchange between the individual student in the school and who is the primary beneficiary during that clinical program that's what all of these courses of look that have examined clinical programs intangible benefits that you're not speaking of here i understand they're not paid a wage but there are intangible benefits particularly for individuals masoud who want to be in a soused that are going to be in a service related industry and to get one hundred first of all they have to get one hundred hours of or plus of time to be certified so that's a significant benefit and secondly what about the benefit of just hands on training and  i get your position about that not being supervised but but don't they get a a pretty significant intangible benefit just from the time that they spend with the client learning how to develop a a client will a relationship with that client which it has to be somewhat difficult for him seuss i would think absolutely your honor and it's not as though what the the plaintiff appellate position is that they receive nothing whatsoever the question is on balance writing was the primary beneficiary you're asking us to balance and i don't disagree that that is ultimately what it comes down to is a balance but i think we have to balance some pretty significant intangible benefits as well as tangible i think that's something that the district court can do but in a case where there are genuine issues of material disputed facts then as the as the court that ended up in b h the b h education case as well as the glatt case decided th balance in those cases weighed on behalf of the of the school and they were not they were not employees but that's the second circuit and the millionth circuit in other cases such as the eleventh circuit schuman  issue in this case and there really not a dispute about this is an economic realities test that applies the totality of the circumstances everything else that we're talking about is an analytical framework that the circuit courts have said these are some non exclusive factors that you might want to consider looking at as a guide to ultimately getting to the answer of what is the economic realities of this relationship who's not bottom line or the employees yes or it's exactly the bottom line it is true that you're looking at a number of different factors that trying to assess what's the benefit to the student as compared to what's the benefit to the school but i would suggest to you and certainly the eleventh circuit in the showmen case said there is a great deal of overlap between the glatt factors in the rush factors that they're looking at the same types of issues what's the training at stake here is it the kind of training you get in an educational environment or vocational well what training were they getting that's that's the really big concern here i mean i've looked at all these cases and certainly in similar cases where you're talking about vocational type training they all got some training in this clinical setting what training were they getting here they're being put in small cubicles essentially with curtains they're not allowed to come out apparently there with their client there's even if there's someone presents a supervisor present apparently there's no interaction what kind of training is that sue what i would say to you this is the undisputed evidence of the record i disagree with mr characterization of the evidence but number one he watched you to not look at the totality of the circumstances there are but this is a clinical component of an overall educational program so the evidence was is that the students would first be in in classrooms learning the anatomy of the a body learning the proper mode well it is terms of giving massage working on each other working on instructor so that by the time they started clinic the expectation was that they should be able to do all of the massage modalities on their own but if they can't i the survey afterwards and that nobody looked and none of the teachers looked at the surveys so if somebody was consistently getting just terrible survey results it would never come to the attention of someone who's supposed to be supervising so they have to get the undisputed evidence was and again there's a there's a lot of speeded evidence but the undisputed evidence was there was always a clinic manager on site at all times who was an experienced and licensed massage therapist the also teaching assistants on site in the vast majority cases they were licensed massage therapist or they were graduates of the school program who were working towards their license and what you have to remember is the clinic occurred on a weekend the very next monday the students are in class and they were expected to be covering those comments from their customers with their instructors in class if they had a question during the clinic the clinic manager was there to answer that and there was testimony from a number of the plaintiffs that in fact on those occasions when they had a question they were able to ask the clinic manager get advice and make sure that they were going about the process in the right way that's the undisputed other of the disputed evidence was that the clinic managers would go by peek in from time to mr miller's client said i never saw it happen and i recognize that's stupid but the key here is the state has determined what level of supervision is required for this to be an educationally sound program but that i mean what the state of colorado decides is the standard for an educational experience doesn't necessarily translate to what supervision is necessary under one of these balancing but what i would suggest to you is that balancing test talks about the educational benefits the student ok now they didn't offer any expert testimony about what the educational benefit or what the level of it of supervision is required for there to be an educational benefit but what we do know is that the state licensing authority and the accrediting agencies that accredit the schools have made that decision and it is undisputed that we have been continuously accredited unlicensed throughout and that fact alone tells you that the state has determined that there is a in fact i sound educational benefits of this clinic and certainly enough for these folks to get credit for those hours towards their diplomas and ultimately credit towards their licenses this is a balancing test really as your own and we compare and effects so isn't it important for us to now whether your client was making a huge profit off of these massages i  think it is a factor it is certainly not the sole factor but i mean you make it to can you come to a result here without knowing what the answer is to that well the only evidence on the record is the evidence that the defendants but in the record and that is that in fact if you were to look at the schools or these clinics rather on a standalone basis they do not make money they lose wow if anything you know in and i understand that's the evidence i also understand that you you in your expert calculating that took all of the over had of running school and included that but didn't include any to wish in in that calculation which seems like a pretty fertile ground for cross examination if this had gone to trial well certainly a you could make that argument and they've made arguments that if you take this out or take that out it looses the profitability but no where  they showed it would be profitable if you change these figures the figures were there was about three million dollars in revenue coming in from the paid massage customers larry million dollars though included the revenue i'm sorry your figures about i think you had figures about a three million dollar loss right yes but that factor as judge mchugh indicated took into account a very substantial per related expense versus just the marginal expenses which would be appropriate so those figures to me are not particularly valid will but what the figures are that are the marginal expenses that there was over two million dollars for the clinic managers the t a s and the other staff that were dedicated solely to the clinics but you are arguing that this is part of their education and yet you didn't include in that calculation tuition even pro way part of the wishin and making that calculation that seems to me glaring error in calculating profit on the clinic's well with the evidence was is that but for this clinical requirement we wouldn't use these classrooms for clinic at all it's more profitable to have than the classroom training sessions and so the folks doing this calculus felt it was appropriate you're going to have a proportional amount of the rent the utilities the electricity the heat that is going to be used for this clinic as if we weren't using the clip if we weren't using it for the clinic would either be having classrooms there or would shut the building down for the weekend and so that's what they took on account what i would say to you is judge jackson made the decision that he thought it was a disputed fact issue and he said maybe they make a little bit of profit maybe they don't it's close call but i still don't think that is a novice when you look at the totality of the circumstances that whether they make a profit or not is is enough to change the balance in terms of finding these folks to be students but i think that's the right out of it judge jackson also in in applying the reich test  we have required that you balance factor two against factor for two being training is for the benefit of the trainee and for being the employer that provides the training derives no immediate advantage from the activities of the trainee and because judge jackson just said well this is disputed he was unable to do that comparison is that error under the right  no in effect when you look at summary judgment oral argument we're there for about two and a half hours and judge jackson actually had a a back and forth with mr miller about that issue and i think when he goes through the or so the idea that he was going through the six factors like a checklist as you simply untrue what he was doing again was using that as an analytical framework in the order itself he says i recognize that now that i've gone through the analytical frame i'm still supposed to be looking and i think he said the forest not just the trees and looking at the totality of the circumstances and mr miller in the plainest argued for is one example that the advertisements for the clinic were misleading ok well that's not a factor that shows up in any of these tests but it was a fact that the plaintiff thought was relevant and judge jackson explicitly addressed it and so again when you when you get away from the you know shouldn't why wouldn't that be relevant to whether they're in a more of a profit motive than an educational mode and if they're not if you're not advertising to the public that these are students or in turn aren't you i wouldn't when you were deceptive but doesn't that sort of indicate that you're seeking profit more than educational value perhaps i don't think so but more importantly what judge actually did find was even if it didn't explicitly say massages by students it said you'll be getting massages that have occasional school called the denver school massage therapy and as he said you get a usual common sense there's no way somebody reading that advertisement doesn't understand they're being worked on by a unlicensed student and certainly when you first show up to the clinic if there was a doubt all doubts are over it's pretty clear that you're being worked on by an unlicensed student who they signed something a release or indicating they understand i don't think they sign a release but they certainly are told at the beginning that this going to be unlicensed students they're asked to fill up that comment card at the end and they're told that that's for the benefit of the student they're asked to make sure they do that and as i mentioned before those comment cards are expected to be covered that in the classroom training the next monday and so you really can't come to the conclusion that there's anything misleading about it and that's ultimately what judge jackson said is that look the undisputed facts tell me that this has that you can't tell me that this is deceptive to the public but again more importantly that's this just argument it's conjecture there was no expert testimony to say hey the average person receiving this would somehow be misled by it and again common sense tells you that they're not there's no price differential to between the school george you know license and out in the in the workplace absolutely the the testimony was there at the most they charge was twenty five bucks for a massage and that they would often give discounts in a number  folks even receive free massages and again get a member what they're trying to do is bring in enough people for the students to get able to work on the number of folks they need to be able to work out of order to be licensed and judge can i think you asked the question one hundred hours the vast majority of the states in the us are wreckers a vast majority of states require the hundred hours of clinical training not every single state requires it but the vast majority do and so the schools are putting their educational program that trying to comply with the vast majority states in which they're operating now let me let me make the suggestion to you in front of judge jackson the plaintiff never argued that the regis college case marshall versus regis college case was a different standard that it would be wrong for the district court to apply the right standard that somehow there'd be a different outcome if if you buy the college case and i you know we put on our brief there's really no difference between the analytical framework of the two cases marshall college may not a flat out said here the six factors are going to go through him you know one by one but they make clear that it's a tell tale of the circumstances they go through these analysis of what's the benefit and i would argue to you that that case is even farther afield from our case in terms of the educational benefit you had a group of our ace who were receiving some compensation for doing r a duties there was no evidence at least in the opinion that the are a duty is it anything to do with the diplomas or the over the course that the r a's were studying for and the court still had no problem finding there was an educational benefit to the program and that these folks were students not employees i would argue that we have a much better case than the case  issue in marshall versus ridged college the second thing is again the glatt test again below there was no argument that the collapse was the task that the district court should have applied the be label it i think they they were advocating for the primary beneficiary test i wouldn't agree that they are something different i would agree they are good for to tell of the circumstances what i would say to you is what the guy case w actually asking the court to do is focus on two of the six factors ignore the other four so even though they were saying to tell you circumstances they were actually arguing not to tell of the circumstances below and  the bottom lines are the law's been developing in this area for the last ten years judge jackson was caught within this movement of the law where he felt obligated to look at a checklist of six factors what is incredibly ironic in this argument is during the entire lower court district court argument the defendants were saying look at these six factors and these six factors only within one of them the benefit issue the court talked about the economic realities and the totality of the circumstances but only within those limited success factors and now the appellate has come to the court saying look he looked at a much broader range of issues that's not what the record reflects it in the regis case where the court this court said many years ago to look at all of the factors that's essentially what the glass test says the bottom line in the glatt test and it was set out in a case in the shoeman case that most procedurally follows the decision in this case quite frankly where the district court said you lose under essentially right the eleventh circuit said no applied glatt make it a big picture look at all the factors and when the eleventh the district court did that actually came to an opposite conclusion that we're asking this court to do for the plaintiffs on summary judgment we're saying send it back under the right test as opposed to sticking with right which will put this court in a conflict situation with the second six night and eleventh circuit the bottom line is this and it came from that eleventh circuit the solution and it's the statement to reduce the primary beneficiary test adopted in those cases to its essence a court should look at all the circumstances to determine whether the relationship chiefly benefits the student of the entity for which the student is working in the context of a for profit schools clinical education program that this case this means  the court should inquire whether schools effort to make money from the clinic relegated the educational function of the clinic to secondary status if a reasonable fact kleiner could go either way the court should deny summary judgment and allow a jury to decide and we're saying to the court that's exactly what should happen in this case the court should reaffirm its commitment to the totality of all circumstances not just within the six factor right test use a bigger marshall explained it looked at all of the evidence the law has developed since marshall and take those three salient factors from glad we're was glad right to