may please the court this case deals with the protections afforded to owner operators under the federal truth in leasing regulations the district court disregarded the regulations when it granted playing to defendants motion disregarding the meaning and protections of the regulations afforded to these owner operators the the federal truth in leasing regulations were promulgated to protect owner operators by promoting full disclosure and ensuring their economic stability by eliminating scheming tactics to limited what skimming tactics scheming skimming tactics would you like me to elaborate what i mean by skimming the defendants clearly state in the lease the amounts to be paid to the drivers yet when they signed the contract there was a duke's given amount yes your honor it's got to be on the face of the lease it has to clearly state at the very least how how the amounts are going to be calculated when he signs the whatever it was back and forth as i understand the owner operator owns the truck that's correct  he may have a mortgage with a bank loan payment or struck that's so he leases to atlas that's correct your honor so yes i may be referring to a lease here but this is a it is a contract or an owner operator several cases one particulars owner operator association vs talk matic and the statute the underlying motor carrier act statute says that if there's a violation of a private  in title to damages resulting from a violation of the regulations the statute says then yes your honor i think here defendants used scheming tactics to pay mervyn less than he was owed under the lease the types of skimming tactics found here include what the defendants refer to as freebies and kickbacks rebates to themselves these this resulted in mr mervyn receiving less than he was owed under the lease at the end of the day defendant skimming tactics were maintained on a second set of records not seen by the customer the lease required defendants to pay mr mervyn fifty percent separate appendix page twenty one in particular section a want to a way of that schedule states that line haul charges and acis oriel service charges shall be determined by an effective or pre determined effect of bottom line discounts now admittedly affected bottom line discount and pre determined effect of bottom line discount are not defined terms in the lease and lease drafted and prepared as required by the  regulations by the defendants but the critical issue here is what those discounts are intended to determine and they are limited in scope and function to determining the line haul charge no less no more than the line all charges in this line home charge determined at the beginning of the contre typically there is an estimated line haul charge but then diesel goes up and down on a trip that that's right and that's the whole purpose behind the fuel surcharge is to account for the rising price of diesel so he should get the driver should get one hundred percent of the few that's correct without regardless judgment papers that there are two fuel surcharge a minute amounts that they consider during a shipment one the fuel surcharge amount and then another a discounted fuel surcharge amount that they decide to charge to their customers good discounted with whatever they paid it's discounted because for instance on the evans shipment that the fuel surcharge amount was i believe around two thousand dollars th discounted amount charged to the customer was eight hundred fifteen but the lease says he gets one hundred percent of the fuel surcharge and while the line haul charge is subject to a discount as i mentioned previously fuel surcharge is not  drive or doesn't eat that the bargain to do the purchaser got i'm sorry the bargain i get and what i want to call it a bargain or whatever they've got some kind of reduction you do said when when from two thousand eight hundred yes  and the significance years is when the defendants discount fuel surcharge that's though that's one of the few items that they don't share in the percentage of recovery from from from the from the customer  percent of the few cause that's correct that's correct but one hundred percent of the fuel surcharge used english between the cost and what he pays in with the charges i use the same thing us best onto the customer who's the customer the customers the shipper the the person who this goods are going fast on the customer yeah ok but i meant the whole thing you just started out saying that this whole thing is to protect the owner operator that's correct and if so the owner operator is the person is supposed to get one hundred percent of whatever he pays when he's driving a truck one hundred percent of the fuel surcharge which is which is different than one hundred percent of what he pays and there's no evidence in the record that what he received in fuel for example on the evan shipment even covered his fuel search of fuel fuel costs  with respect yes it's going to have to contend with paragraph eleven and yes your honor that that provision from is not a bar to mr mervyn's claims for a number of reasons one enforceable given this regulatory bactrim bactrim again the purpose of this regulation is to protect owner operators by promoting full disclosure and ensuring their economic stability and here section eleven as is littered with vague terms yes it does say conclusively presumed correct but then it says that that that results in a rebuttable presumption that is no clear bar to his but but does it into your quest your own that's part of it though yes another issue is that thirty days is unreasonable on the facts of this case when mr the shipment money would be deposited within a certain period of time into his operating account it's called an operating account and and days and perhaps sometimes weeks later he would get a payment document maybe several things with documents and sometimes he received multiple payment documents never being told when the last one he received was the final one so he's on the road doing interstate transports engines expected despite also getting multiple settlement sheets to assert his claims and protect his claims under the regulations within thirty days much and often times much less than thirty days i'm glad you also raised the enforceability of this it is on enforceable as a matter of public policy as the court alan i z versus bill thompson transport health permitting carriers to moment that it doesn't exist in alan ozzie it said permitting carriers to avoid liability by imposing in that case it was a ninety day provision would defeat the very protections afforded to these drivers under the truth in leasing regulations defendants make arguments about how this process of using freebies and rebates is somehow a fair way of distributing monies from a shipment that i'd be remiss if i didn't point when when when when their goods are being shipped can elect to purchase what's called full value protection insurance which would provide them the full replacement value of of their goods if damage what happens is is when they give that away to the customer right they pretend that somehow nobody's paying for it but we see in defendant's documents that mervyn's wine hall compensation which must be based upon the charge that was not or whatever you're talking about the wall i don't have that on the record your honor but but for purposes of responding to summary judgment i think referring to the one shipment alone is sufficient to create a question of fact and what  how much you know well he was not paid fifty percent for the two hundred fifty eight dollars freely he was not paid fifty percent for the hundred sixty six dollars kickback rebate and his line haul which he should have been paid fifty percent of seventy one hundred and instead he was paid fifty percent or sixty six hundred if there are no further questions that reserve the remainder of my time for  eighty's under which he argues that he was under paid under the terms of his lease the district court granted summary judgment for mervyn and rightfully so mervyn's claims fell for a host of reasons all of which most of which are independent of each other meaning that is something that is shifted over time and continues to ship to the state now mr mervyn counsel told you this morning that his claims stem from section three seven six point one two d requirement the that police clearly state his compensation that argument your honor however has been has been waived being waived mr irving has argued time and time again that this is a breach of contract case even in his briefs now when we are using make smatterings of arguments but clearly stated my honors those claims fell on their merits as i said for a number of reasons first mervyn failed to comply with paragraph eleven f was lease which requires that he dispute financial entries on his payment documents the line haul and fuel surcharge that were stated on the documents that he received within thirty days of receiving those payment documents second the claims all fail because mervyn was paid what his lease entitle him to his lease require th tied to the price of fuel it doesn't change with the price of fuel fuel surcharges is an amount that atlas is allowed to charge the customer it can discount that amount and then the customer pays whatever atlas tells it to pay or whatever they negotiate with respect that particular item but not something that's tied in any way to the the cost of fuel to murder so it's an amount that is paid by the customer and then one hundred percent and this is undisputed one hundred percent of whatever the customer paid would come under this where you have the owner operator but owners are paying a bank usually for two three hundred thousand dollars truck and so they got that to pay and then become back into this lease they lease their truck to atlas and then get paid a certain amount and frankly i find this whole thing pretty complicated well your honor i think it's actually pretty simple  charge customers but the baseline fuel costs by the plain terms of the lease already belong to mirvan it's only when we get to this additional thing called the fuel surcharge that mervyn gets some pass through some compensation and under the terms of his lease a good deal bad deal or otherwise that is what he agreed to be paid and that's the compensation agreed to now mr mervyn is now arguing that he's entitled to the full tariff rate fuel surcharge but that's in that the tariff figure out what i mean by that is the maximum amount that alice is permitted to charge to its customers but that's not what the lease says it says fuel surcharge in the lease the party showed that when they go share the lease they were able to u mervyn argues that he's entitled to blind hold actual line help the customer paid or phrases in different ways the line how after the final discount the customer pays but again that's not what the lease says that says line hall after at only creates a prima facia or rebuttable presumption that's not right mr reagan is ignoring the fact that there are two sentences and paragraphs eleven that the first creates this conclusive presumption of correctness and finality for the financial entries the individual entries on his payment documents like mine honk fuel surcharge the second creates a rebuttable presumption that marina was actually paid the full amount that he was entitled to so not the it's important to i think understand the context in which this case comes here because mr mervyn although there are only seven shipments at issue here actually hauled over one hundred shipments for race under very similar hundred seven is that what you're talking about your honor actually now that you mention that i'm not clear on whether it's the first of the seven of the first one hundred but i think it's irrelevant whether which one applies either way mr mervyn was essential admitting there he had plenty of time to dispute these these numbers and in fact it wouldn't be hard for him to make a dispute a phone call an email and i mean those would suffice but on top of that your honor you've heard counsel argue that mr reagan was on the road and that would make it harder for him to comply with this provision first and again our position on that would be a good deal bad deal on with the ash har case in wisconsin law the court cannot reform a deal to make it better for the plaintiff he says he has to live with it but more importantly it was also undisputed on this record and i believe this is an aircraft seventy two or seventy three or statement material facts that mr mervyn was often not on the road when these payment documents were sent so that thirty days was entirely reasonable entirely capable it was and he was entirely capable of complying with them now mr robin argues that paragraph eleven a is void as against public policy but that you that ignores the east case from the from port that we site never bruce in there the supreme court said that the public policy must be must be dominant must be dominant within positive law and that's not the case here because here we also have a public policy of freedom of contract and that's no different than the public policy the court relied on and used to sociate coal which is a public policy of not interfering with labor management relations there that was enough for the supreme court n contractual provision the same holds true here finally to briefly address the effect of bottom line discount that as i noted mr mervyn slease says he has to be paid on line halt based on that mr r argues that he was instead entitle to whatever the customer paid in line haul but again that's not what the lease says that's clear from the context of the lease would make no sense for the lease to say that mr mervyn was entitled to something that atlas negotiated with  customer under heading that is payments to the contractor under a provision that is clearly meant to be directed to his compensation in the context of the provision makes clear that the effect of bottom line discount is not a direct discount to li call it is something else the context the provision makes clear it is a single discount a clickable and taking account of both line haul and other charges and that defeats mervyn's claim he was entitled to some direct discount basis for the district court's holding your honor the district court also entered alternative grounds for his decision that the effect of bottom line discount was not mr berman said it was the fuel surcharge was not what mr mervyn said it was so those also are i've got six a number of quick points one there is no waiver here the district court couldn't find waiver and neither should this court from the very outset plaintiff has been arguing the clearly stated requirement this case is also not just a garden variety breach of contract place case although that that claim is valid because under section twelve of the regulations there is a clearly stated requirement but in the preamble of the regulations it it creates an obligation on the defendants to adhere to and perform under their obligations on the lease so that creates not only a clearly stated full disclosure requirements but it is  do what the contract says and which must be interpreted with reference to the protections afforded to the regulations because as and as in bulk magic if there is an ambiguity it must be drawn against that the carrier because otherwise the protections afforded to the owner operators would be eviscerated another statement fuel surcharge is absolutely determined by the price of field fuel during a given period of time and patricia dominant or  deposition testified to that that one of the defendants witnesses with regard to the public policy argument here there is a strong public policy argument which i mention from the outset that the federal regulations it's not just protecting workers rights but it is it there are specific protections afforded to these armed robberies including ensuring their economic stability and eliminating scheming tactics thank you thank you i thank