has or two minutes of my time for about all if i could and i'd like to see a man thank you your honor i'd like to start with the question of whether arbitration must be compelled here and then move on to the issues relating to the injunction motions three critical points support the conclusion that the section one exemption does not apply here st numerous early th century supreme court decisions including decisions that predate the one thousand nine hundred and twenty five meant of the f a a and of which congress would have been aware when in acting section one sharp distinction between a local journey that's part of an integrated interstate trip which is in the flow of interstate commerce and a local journey with no contractual or necessary relationship to interstate travel that merely arrives at more departs from a place where interstate travel might occur which is not in the flow of interstate commerce and this is mentioned is that the that's the test you would advocate we use in the flow of commerce well i think this panel around by why facto it says that in the fall of commerce is the correct analysis under section one we've reserved in our brief the argument that that's not right but we understand the pounds about it we think we win underflow commerce analysis and i think the distinction that i'm talking about  shows the difference between this case and why faca is well illustrated by the supreme court's decision in yellow cab there are two categories of local trips in that case one like the work of ride share drivers and one like the work of the amazon flex drivers at issue in one talk the work of the ride sha drivers is like the work of the cab drivers who simply pick people up and drop people off at chicago railroad stations there was no contractual or necessary relationship to the interstate rail trip it was also just one of many transport options for the passenger and one that could be quite separate in time and continuity from an interstate trip the work of the amazon flex drivers and wife aka is like the work of the cab drivers in yellow cab who had a special contractual relationship with the railroads to take people between stations a stage in their interstate journey and those cab drivers a supreme court said weren't interested up in a unitary interstate trip just like the amazon folks drivers were an integral set up in the unitary journey of amazon goods from a warehouse in one city all the way to the customer's hands in another state so we think that yellow cab along with knight and mccluskey which is a field case like the cases this court discussed in my faca and a number of other cases discussed in our briefs dictate that ride share drivers are not part of an integrated interstate trip therefore not engaged in or seek commerce within the meaning of section one the nd point with respect to section one is that modern cases also support that why were not aware of any court say of the district court in this case and has ever found right your drivers  be covered by section one many courts have said they are not and have said the same thing about limo drivers shuttle drivers and in re grace a recent decision from the th circuit albeit in a mandamus posture excepted the exact line we're drawing here grace distingu the th circuit's decision and written which was about amazon flex drivers and follow the analysis of why falcon very closely and said a different section one analysis applies to right share drivers and again pointed to yellow cab and said right here drivers are like those cab cabbie just pick people up and drop people off at railroad stations and the rd point i want to make about section one is that this line is not only deeply grounded in precedent but it is administered and it makes sense the district court analysis here has no stopping point under that point of view about the flow of interstate commerce all cab drivers limo drivers the crew on the water taxi drivers who go to the airport or the train station the silver line bus drivers other local bus drivers the blue line someone two blocks away i'm sorry it was i interrupting someone apologies and so under that view anyone with a peripheral or tangential relationship to a person or good that has moved or is going to move in interstate commerce would be in the and that would do a couple of things it would make engaged in in section one expanded out towards involved in which is the language in section two which we know from circuit city and from this course decision in my foka is much broader whereas engaged in is narrower and it would make section want to open a gaping hole in the f a s coverage even though again we know from those decisions that section one is supposed to be narrow and precise and it's supposed to be limited to causes of worker similar to the railroad employees and seamen that are court looked to lift drivers in the united states we understand plaintiffs in their brief to have accepted that that's the correct class to look at and i think it's important that the class be nationwide and not regional because we're trying to analogize to the seamen and the railroad employees there would be a regional class here that would actually create all kinds of strange anomalies based on happenstance as a geography and so we think it's a national class and again i don't understand plain enough to be quibbling with that in any way and when you look at rights or drivers in the united states they are not part of the flow of interstate commerce because they pick people up and drop people off at airports which is the plainest argument here planes only are here and the basis for the district court's ruling plaintiff's response i think to to all of this is not to quibble with the class but to say well there is an integrated prepare because lift does marketing promotions airlines are left as marketing promotions with others to with credit card companies with t mobile and the material th plainest point to is outside the record some of it is inaccurate it's newspaper articles websites but was never presented to the district court has never made this argument to the district court and so we think this argument is waived and the court should consider it but in any event it's wrong there is no package trip here based on the fact that there are these marketing promotions so for instance with respect to delta if you have a delta sky miles account and a list account you can link them together you can get delta sky miles for rides if they do choose a lift ride that would be contract for separately from their airplane round the miles that they might earn the sky miles they may turn from taking a ride on the left platform don't need to go to airline travel or to interstate airline travel and they certainly don't need to go to a particular airline trip that's close in time to that right here right so there's just no integration between the local ride and any interstate flight so for all those reasons we think it's clear that section one doesn't encompass right here drivers and in fact we think as i say a national consensus agreed and that it's remaining their public injunction argument even assuming massachusetts might someday wholesale adopt california law on the sort of republican junctions and there's a very clear and straightforward way through this argument which is that plants are not requesting injunctive relief a public injunction benefits the public directly for instance elimination of false advertising and the plaintiff as a member of the public a private injunction gives relief to plaintiffs are classic plaintiffs and has perhaps an incidental public benefit plaintiffs here want money for themselves and they say the public is going to benefit indirectly from that court after court after court considering the same claims that issue here right share driver seeking sick leave or other state law employee payments have said that that is not a claim for a public injunction we've cited those cases that page twenty two dollars of our step three brief these are california courts and federal courts in california and so i think there are multiple flaws in plainest public injunction argument but again i think this is a very clear simple straightforward way to dispose of it even if that rule existed in massachusetts and there's no reason to think it would this is not public injunctive relief that's being requested here in any way shape or form  time and that's the majority view of the courts of appeals it preserves the arbitration right for a party that has bargained for arbitration and we urge this court to adopt it when the question before this court is whether a dispute belongs in court at all or whether it evidence into this record in support of their request for injunctive relief whereas defendants put in a great deal of events that there is no record will harm here and the conclusion that there's a ripple harm here i think has only been cemented by the passage of time these injunctions were denied almost a year ication we think that rules especially after a year because a majority of the putative class didn't want the requested relief and in fact we think would be harmed by the requested relief so for all those reasons the case has to be compelled arbitration hear from your opponent now you reserve some time and here are thank you attorney goldberg you can use your audio and video at this time and attorney list for it in one moment please judge mcelroy it's possible there are some feedback on your and i don't know if the speaker has is perhaps a little out on your computer sometimes if you can and if you can't we can work something else out but with respect to the section one transportation worker exemption this court of course is bound by the what thought decision which has on point directly here that is controlling it really frankly makes no sense  amazon drivers really performing the same job as lift drivers except that they transport goods were his lyf drivers transport passengers why the amazon drivers would be exempt under section one but not lift drivers the court below was correct that the passengers that lift drivers drive are in the flow of enter state commerce when they are going to airports or bus stations or railroad stations they are making interstate trips and this is not just in stance that lift drivers are taking passengers to airports lift is heavily involved in making sure that that's a major part of its business forty percent  rides at logan airport the true forty percent of the traffic are lifted who are drivers lift has been very involved in regulation with massport regarding how lift drivers can pick up and drop off at the airport most lift drivers even by lifts own admission have taken passengers to the airport so this is and lift is partnering with the airlines lift is allowing drivers to book their trips thirty days in advance when they do it in connection with these interstate trips with major airlines so this is not just happenstance it's not just like an elevator operator who happens to let someone down an elevator who is on their way out to the airport lift is very involved in these interstate trips and this court in my thought and made clear also that the company that the employer does not need to itself be involved in interstate commerce in order for the workers to be involved interstate commerce in other words amazon arranges for the interstate delivery in addition to the fact drivers are transporting these goods but the court made it clear that the company itself doesn't need to this rule doesn't only apply to companies that are large enough that they themselves are engaged in interstate transport of course here lift is  massive national company and it's it would be to try to limit if you look at the lens factors which the district court applied a number of courts have looked to the lens factors in determining whether the section one exemption applies if lift drivers across the country engaged in a strike or or if you talk about ride share drivers as my opponent just said is the proper class if lifton over drivers around the country engaged in a strike which is one of the ones factors that would have a massive impact on interstate commerce how do we draw you know the other side is opposed to a fair line drawing issue in charge is that during the line between amazon and here would be defensible whereas if we include this on the other side of the line where do we stop what your reaction to that to draw lines but i don't see why there should be a line between amazon drivers and let's drive or so the elevator operators easy they're not transportation workers if you look at the lens factors they fail a number of those factors with respect to blue line drivers or silver aligned shuttle bus drivers it that's not a major focus of what they are doing whereas lift drivers when forty percent of the traffic at hooper driver does or less time for what i i don't know that you know perhaps the blue line is on the side i don't know that's not this case this court doesn't have to make the decision about where the wine is logan well i think the people who show you from the parking lots they're pretty integrated with those interstate trips i mean transportation around the airlines is going to be very similar to what you saw in those pre f a a cases t spring water to restaurants in boston drives all over boston all day law except the stuff went after it comes down from maine well i mean i think under richmond i'm sorry ri yes i think those would be section one those would be covered by section want even though it's a different company even even if it's a different city yes because this court said in my thought that it doesn't matter if it's the same company or a different company and then that the court needs to look at the cases that were pretty f a a but even in the yellow cab case there were two types of trips and the court held that the type of trip that for which there was some prearrangement made taking the railroad passengers from one station to another station as they can be part of their interstate trip that was interstate commerce it was when the passenger was under the street and figured out how to get home those rides were not interstate commerce but given here that list is actively involved with the airline in coordinating the continuation of the passenger's trip this would fall into the category of yellow cab that recognized there was interstate commerce and interstate journeys so i think if you look at all of those cases it just it just makes no sense why amazon drivers and list drivers would be treated differently i'd like to move on because there's so much to cover here unless your honour's have more questions on that i will also point out though that we as we noted with recognizes that two percent of bits of the trips nationwide that left driver's take do cross state lines and in the th circuit found in a couple of cases the teamsters case that even occasional trips across wines are sufficient to bring workers within this within the section one exemption even even less than two percent in those cases there was a denial of preliminary and give relief which we review for abuse of discretion so i don't see any errors of law being alleged you're saying well the massachusetts courts should adopt but they have not yet adopted at a california rule so it is there are some ther relief question is a defense to arbitration that separate from our request for a preliminary injunction so on the question about public injunctive relief as a reason why the arbitration clause can't be enforced legal that's a legal issue that's what they do you have any other argument yes your honor so i would say that i get the california supreme court said in mcgill that public injunctions can't be ported to arbitration california courts didn't know that was the case till it went to the supreme court so i would urge this do you want to have their argument that yes this one which you continue to repeat although i have to ask you to move on ye massachusetts wage law based on its misclassification of good strivers and the legal error that the court made there was the only only one of the four prongs that the corner addressed was the irreparable injury  in the nd denial of our motion for a preliminary injunction which was based on the lack of sick pay during the coronavirus pandemic the court did address the other three and said that we met all three of the provisions likelihood of success balance of harms in the public interest but again the court held that there was no showing of irreparable harm so in both preliminary injunction request the court erred as a legal matter in finding no irreparable harm and you just talk about that for a moment st of all there's a sliding scale the more you satisfy the other factors the less irreparable harm you need to show and we and we as a court held in the  nd time we met the other three factors but with respect to the irreparable harm we showed both times harm both to the drivers themselves as well as harm to the public now if you look at page thirty of our brief there are a number of courts around the country that have recognized that harm to the public can be considered as part of harm to the plaintiffs here they're in a rich wind now in our st motion for plenary injunction the harm to the drivers was it was self evident this company has deprived the drivers of all wage protections which have been well established by the legislature in the courts to be so important to the well being of drivers who aren't even getting minimum wage now in our  nd request when after the pandemic began the harm to the drivers is also apparent and we backed it up with affidavit submitted from drivers who believe they may have contracted the virus while working for a lift now of course the massachusetts six time law allows you to use sick time for preventative care so had lift allow drivers to use six to earn six times they should have been allowed under the law that would have allowed thousands of more people to stay home for preventative care in order to prevent themselves from contracting the virus in the mass to turn massachusetts attorney general's office has declared that preventative care includes staying home to protect yourself from covert nineteen now the harm to the public the st time in a nd time around first of all the harm that we cited to the public and lift depriving all of its  public it harms the public coffers it harms confined competitors and the nd time around i think the harm to the public is even more acute and clear that lifts failure to provide paid sick leave to its drivers which led many drivers thousands of drivers perhaps to continue driving while sick obviously led to harm to the public because it exposed more of the public to this deadly virus now the reason that the court denied our motions for plimer injunctions because she got she was confused that what we were asking for was a public injunction which she said that this as she see hasn't recognized but that's a separate question out that was simply a defense let's motion to compel arbitration we don't need to have nasa to thaw doesn't have to allow for a public injunction in order for us to have established these harms which i just spelled out  massachusetts general laws chapter one hundred and forty nine section one hundred and fifty allows for an injunction for the violation of the wage laws it doesn't need to be a public injunction so the court simply got confused thinking we needed to be able to show public injunction but in any event the attorney general's office submitted an amicus brief and our supreme and the district heart but not at our court well it's and i polish i just realized this morning it was inadvertently left out of the we had prepared to be included in our agenda and i don't know why it got left out i would ask to be able to supplement the now you're missing the point it may have been submitted to the district court no such brief was submitted have a final sentence one sentence you would like to leave with us yes although the supreme court has over the last decade indorse the use of arbitration clauses over and over again it has never been faced with a situation like this where a company uses an arbitration clause to block its the enforcement of wage laws altogether  and continually just avoid having any court rule on the fact that it has avoided the whole ridge was altogether and i don't believe massachusetts law would allow a company to do that  filing to land your honor i've been doing that and and that may allow for a monetary relief for those people who happen to sign up but it is never going to require the company to comply with the wage laws across its entire workforce it's just in an unprecedented way just avoiding ever having a court rule on the legality of its practices which have been in my house ok thank you for beginning with you thank you here agreed to arbitration they could have opted out of the arbitration clause if they wanted to they didn't do so and under the f a they should be bound to that arbitration there is nothing unfair about the arbitration an arbitrator can award injunctive relief for any relief a court could award with respect to section one i've heard plaintiff for the st time make this argument about two percent of rights crossing state lines that argument is waived it was unheard of to briefly only in a footnote in their briefs in any event that's not nearly enough to show that the class of rights your drivers engage in interstate commerce i point this court to the th circuit decision and wallace which says that you need to look at the central part of the workers job description and two percent of pride's is not a central part of anybody's job description could you go back mrs reardon suggested to the line you driver who signed up with both lift and amazon sitting in his car in one moment to get something to pick up a package to come in through logan the next moment to get something to pick up a passenger who's come in through logan what exactly is the the distinction that you would have us rest on in that scenario the distinction is whether there is a contractual or necessary relationship to the interstate trip and in the amazon situation the worker is part of a series of links in a chain of interstate commerce where the good is going from one place to the other and amazon which is coordinating amazon logistics which is coordinating the travel of the good is coordinating that whole trip including by contracting with the amazon flex driver relationship in the ranks your driver situation there is no such contractual relationship to any interstate trip because it is just a passenger deciding of their own volition this is the kind of local transport i'd like to take to when i go to and from the airport and there no relationship between that ride and any interstate airline trip there is no coordination between left in the airlines on that there's no coordination between anyone who's moving the passenger what if one of the passengers viewed is in the position of the amazon the passenger is preparing a intrastate trip and like the innocent then needs to find people to assist with the interstate trip and it gets a lift driver to do it i don't think you can view the passenger good itself as being in the coordinator position here for purposes of deciding whether there's a court made a trip of course a passenger of their own volition could always stack together a bunch of local journeys but it can't be that the people who are carrying out those little journeys are somehow all unbeknownst to them in the flow of ener from the night case and the yellow cab case where you have passengers on their own volition deciding here's a local transport i want to take in the one case it was actually the same company that ran the local cab service in new york and the interstate ferry and there the court said there is no integrated interstate trip there is not engagement interstate commerce because there is a separation caused by the fact that there is no contract or necessarily shipping because of the passenger's own volition if i could your honor i'd like to say one sentence about primary injunction issues sure erroneous and there is no abuse of discretion with respect to them and there is just no basis for overturning the primary injunction ruling under the abuse of discretion standard of review in this court thank you grant you thank you that concludes argument in this case attorney golden burke you can disconnect from the hearing at this time attorney looks for it and should remain in the meeting