to safeguard the national economy to then congress deregulated the air and ground transportation industries because they are the backbone of the nation's economy their cost structure and efficiency affect the cost and availability of every product and service in the market in deregulating these core sectors congress also broadly preempted state interference through a preemptive construct that is as graw if not broader than any other in the entire united states code not surprisingly the supreme court in this court have therefore construed the preemptive reach of fed quite a expansively so the question here is whether a massachusetts statute that prohibits motor carriers from gauging individual drivers as independent contractors violates congress's preemptive deregulation of the ground transportation industry particularly where on the facts  this record it is demonstrated that the massachusetts independent contractor statute would force the elimination of certain services modification of routes and more than double labor costs such that the providers would either have to raise rates and prices or go out of business starting as we must with the language of  we find that congress didn't say to the states don't regulate ground transportation it said rather don't pass reinforce any long or any provision that has the force or effect of law that relates to prices routes or services and the legislative history further and for size is the point that there was a particular california statute that congress had in mind that had provided significant competitive disadvantage is to independent contractors in the trucking industry in california so we have a statute that's on its face is extraordinarily broad and a legislative history that says independent contractors are part of this industry and they shall be protected indeed the ninth circuit which if anything has been an outlier in the jur water in two different cases the american trucking association versus port of los angeles case and more recently in the pack anchor case has said twice we clearly recognize that states can't be in the use of impact contractors but that is precisely what the massachusetts independent contractor stache it does here now the district court found that the statue was not preempted because it did not directly target the transportation industry and because its effect on prices routes and services was in direct but those are of no moment in light of the various supreme court decisions and the decisions of this court which have said that background laws to use the attorney general's phrase background laws even negligence claims interference with advantageous relations claims implied covenant of good faith and fair dealing claims what could be more background than those even common want claims are preempted if in application in the real world they have more than a tenuous remote or peripheral effect on prices routes or services of motor carrier in our case because the big prong of the statute bars the use of independent contractor the provider if they were to convert to an employee base labor model would be subject to the myriad restrictions that employment protective legislation provides and in essence they focus on two has on interpretation of statutory reaction i think it's limited your honor i prefer density but but ginsberg follows density and the way i would answer it is with a hypothetical if the office manager of expressman are exemplar in this case who is an employee if she were to claim that she is improperly classified as exams and express that basis it seems to me that that type of action is remote in relation to delivery prices routes or services just as the disposition of the viewer poll that had been told months previously was not related to what toll trucks do when they towed vehicles the district court interpreted da good response to what the supreme court mean we haven't addressed this issue i so what's your your supreme court said that there should to expand the rights under a frequent flyer contract that sounded in the implied covenant of good faith and fair dealing is nonetheless preempted as applied to the facts of the case and the the point i think your honor is that if an implied covenant of good faith and fair dealing abstraction can be preempted as applied then that is completely inconsistent with the notion that the underlying law has to somehow specifically target transportation or target in any direct way prices rather services so i think that  its face in that it's barring the use of independent contractors frustrates congress overwhelming overarching goal of creating a uniform national market  transportation that's the flaw with your racial this statute applies everywhere and congress is only concerned with  declaration that the massachusetts independent contractor statute violates anything other then f quiet and then only the problem it is an exceedingly narrow remedial request and and because of the effect of that be wrong it is it is manifest that it's regional and national carriers can't operate their same day delivery services in this state which court and see if you can carry your burden of proof as well let me see if i can answer it this way they had nine months to conduct discovery we gave them thirty thousand pages of operational and and financial data they took the c e o s deposition for two days they had both of our expert reports for sixty days and didn't oppose any of it and and the district court implicitly found that that we in she was applying the wrong legal framework to the factual proffer and what say even if we agree you with you on the price route or  property these drivers don't don't operate close to the execution of service they provide the service there is no mystery there and also with respect to the transportation of property is that these drivers do do nothing but pick up and deliver products gifts for example one of them was stopped for speeding that's a different issue we're not we're not talking about something that is remote or peripheral to to the basic service here rather we're talking about the people who provide the delivery of property for a fee if we were say the district think i would i would leave you with this thought your honor congress said to the states don't regulate and don't even get close to regulating ground transportation and what massachusetts has done is they have imposed on delivery service providers the most highly regulated relationship in american law you know i tend to read the statute as prohibiting  as requiring that people who would otherwise be and and contractors be employees for purposes of this law the grease statute as a whole not just prong b and i think they got it wrong but thank you thank you absolutely not the case in fact the same district judge faced with two different sets of facts are two different clients that delivery services i had missed classify their employees under one forty eight b said in the dead known case that  no the delivery service had properly classified drivers as independent private contractors under one forty eight b whereas in the home delivery america dot com case can you g which is the one challenge here requires that the that the worker be performing a service outside the usual course of the employer's business and if the employer is in the business of of arranging deliveries and  that's what the employer is paid for whereas the driver is in the business of providing deliveries and has independence and has control and has the ability to do deliveries for because their argument depends on showing that pronk he has this broad effect throughout the industry and it does not express man could restructure its operations so that it could legitimately have independent contractor drivers other delivery services but i giving drivers control by by not  y taking other steps that would allow them to function as they are in their own business which would be providing deliveries instead expressman holds itself out as providing deliveries and its drivers do just that they're operating in the course of express man's business not their own business which is but they could provide delivery services an expressman could provide the service  that regulate prices routes or services and a background law such as one forty eight b that only regulates the employment relationship that only regulates one of the inputs into the what more carriers provide rather than the services or prices or routes that they provide is not preempted the seven circuits decision in s c johnson lays this this background law analysis out very clearly  effect it relates to prices routes or services in at most a remote tenuous or peripheral manner which is what the supreme court said is not enough to cause preemption and the density case interestingly incorporated i travelers case a supreme court said you can't give an you can interpret the phrase related to with uncritical literalism you need to look at some and find some sensible limitations on that cutting back on the early interpretations of supreme court said in travelers even basic regulation of employment conditions will invariably affect the cost and price of services but even so preemption does not occur if the state law has only a tenuous remote or peripheral connection with crossed on airlines and thus affects fares merely because costs must be made up somehow the court said this would effectively exempt airlines from state taxes state lawsuits and many kinds and perhaps most other state regulation of any consequence means in terms of its focus on the what we have yes you did what this law is no more related to the transportation of property in fact probably less so than the law and density which was held not sufficiently related to be preempted density was a law about how you can sell property after it gets transported one forty eight b as a law about how you classify workers as either employees or independent contractors so large independent contractors being able to do business  specific it was not largely concerned with out there was federal regulation of prices routes and services which is what congress got rid of and why they cream to state regulation of prices routes and services my brother referred to something in the legislative history about california treatment of of independent contractors what the legislative history shows is that while california had deregulated trucking it had not fully extended that deregulation to companies that used a lot of independent contractors and and therefore california haven't gone far enough and this is part of the reason why congress needed to act to preempt any state regulation of prices  that the statute the a was not sufficiently within that classification right i don't understand the argument you're making today as agreeing with the district court that this statute is not with respect to the transportation of property and the city and your argument as being that this statute doesn't sufficiently relate to prices routes and service that that is our primary argument and the  on it being related to price yes aroud or service what is your position on the other question whether this statute is sufficiently related to could you answer my question when are you looking at the fact we will question back to the transportation of property if we are assuming that this is a statute with respect to the transportation of property the no no no no i'm sorry it's the other prog has been met with respect to prices routes or services what is your position on whether the statute is done to determine the difference between a remote effect and a more substantial effect we don't believe there is any fact for the fact finding that needs to be done and they put its best test case forward through express man and it hasn't met we disagree what sort of evidence would you come up with well we did not complete the deposition of express man's president michel ali we did not get some of the documents we needed from express men and depending on the particular areas in which this court hypothetically might identify where there could be significant impact we may need to go back to the experts that n t a put forward to identify the suppose it impacts on prices routes and services we