the next case today is joseph mo desk it all versus summit retail solutions incorporated appeal number twenty dash one thousand seven hundred and forty six attorney davis please go ahead and introduce yourself on the record are all brand representatives never sold anything because of that it is crystal clear that the district court ruled an error when they when it ruled that they were subject to the outside sales exemption outside  and based on that some it had brand represented in the retail stores for the so purpose of promoting their products why display stations all they did was hand out samples like their display stations all they did was show customers products while at their display stations they never took any form of currency any form of currency midi any sales contract never exchange crashed never processed any credit card never procured any  maximum commitment possible each cut customer would purchase the product and therefore fell within the definition of the sales person what i've been struggling with is what to do with the allegations that what to do with the allegations in the complaint that this summit and the chairs directed your clients to under report their work hours and that that impacted the whole compensation process when the true ups were done yes and and based on their you know are based on that believe your st question was whether or not they'd retain the maximum commitment under the law and the retail industry they did not obtain the maximum under the law and as to your nd question they were definitely asked to under report their hours a part of someone's ledger system it was all based on whether or not going to hourly wages doing a specific period was higher than their commission payments in order to light a net negative lender balance which would lead to terminations and other repercussions summit's managers explicitly told to under report their hours because of that they were not ready but have but how does how does that direction impact the analysis of whether they were or were not salespeople that impact analysis by looking at the clear indications of what the end dishes of a stealth mean keep in mind that the th circuit recently a month after did judge they were entered his appears p r has been hurt paid very close attention to that issue and salesman and that was based on the fact whether or not they can control their commissions whether or not you could control their hours and how much supervision that they actually had because in that heart they were just like this matter the brand reps were also paid very low wages they had no control of their commission earnings they could not choose the products that they wanted to promote and they also were heavily supervised and part of that supervision was based on the fact that they were legally and asked to under report their hours based on all that we look at the very addition of what the very purpose of the outside felt exemption is and the very purpose of the outside temp exemption it's based on the premise of workers making high salaries that are not subject to avonlea pay conditions keep in mind that the solicitors blood was paid approximately seventy thousand dollars a year and was awarded with incentives like travel around the world keep in mind that and christopher both of the still pharmaceutical representatives the only thing left to be done in order to consummate a sale after your clients did all the favors tried to do in order to get a sale and and the sale would not be some later of that it was going to happen then and there in the store i mean that was their objective they were trying to sell their product then and there they were trying to get their customers to put the item in the cart so that it could then be taken up to the cash register the only thing that remained to be done was what i would describe as a kind of ministerial act in which the cashier would then cash out that particular item but there was nothing left to be done to consummate the sale so it seems to me and the supreme court suggest we're not supposed to get distracted by technicalities i think the court puts it seems to me that the checking out by the cashier was was a mere technicality that everything was done before that wasn't just promotional it was an attempt to consummate a sale and when the customer reports they item in the cart that's a commitment to purchase that they have your clients have succeeded in addiction is the primary component of whether or not someone is actually making a sale and kind of earth there was so much more so much more that that had to happen before a sale would take place i don't know that in that sense that hurt is remotely like this case and so i don't know i don't know how her actually helps you  maximum possible commitment in the pharmaceutical industry that they could get for the products buford and in the apes to get and the th circuit in killing i'd make clear that the other disposition analysis it's not applied to retail because they could not attain the at this point now thank you thank you for orders thank you mr davis please get your device at this time attorney miller if you could please and meet your device and introduce yourself on the record address a few things that judge thompson and mr davis just discussed the st is judge thompson's question about what we do with these allegations in the complaint that brand representatives were instructed to under report their time and i think we do exactly what judge sailor did which is disregard those allegations if they had any import at all might be the basis for some sort of state law breach of contract common where perhaps a state law wage clay and another variety whereby the plaintiffs might say you agreed to pay me hourly plus commission but you didn't do that because of the way you supervised me you breached the contract or you owe me wages under a state wage statute that's the sort of claim to which those allegations which by the way there's no evidentiary support for after discovery there's no mention of that in the record but that's the sort of claim that could proceed from those allegations nothing under federal law and no claim that mr davis has elected to break on behalf of those people and so by operation of the doctrine of bar and merger the rule against claims splitting that issues off the table they can't bring a breach of contract action and so the only question is whether these people were making sense and if they were there is simply no liability on the claims asserted in this case i think that's the proper approach to that i think that mr davis is part of what what what what was the purpose of setting up a model that didn't allow the sales folks to correctly receive compensation for the purchase they did they received and i don't mean i don't mean their commissions i mean wh think actual sales transaction the reason for that is disclosed in the records a structural problem you have someone standing at the back of the store where you can thousands queues for example ten thousand different items that could be purchased at a cost go and it is not only impractical but impossible to follow someone around with some sort of cash register device and keep track of the items that being elected to purchase by putting them in their cart and do that item by item by item along the way instead the way that this stream of commerce works and that's what christopher tells us to look at this industrial and commercial context the way the sales work in any retail store is that a customer select their items and puts them in their car signifying an intention to buy them and then everything is started using are you saying it would have been too difficult for casco yes really to be the point of sale it would have been too difficult for some it to process transactions at the brand reps booth and it would not have been consistent with your costco or your b g is where your host stores larger operations it creates a massive inventory control issue if it counts europe europe your opponent says that that focus is all wrong you're talking about a particular business model the summit shows to pursue as a way of accommodating the concerns of it's quite a bit under christopher the focus is not supposed to be on a particular business what was supposed to be industry as a whole and here the industry as a whole is the retail industry that industry a sale takes place at the cash register when a sale is consummated so are you being consistent with christopher when you talk about  specific business model as opposed to the industry we're supposed to consider that we kill industry yes absolutely or this is the way that sales work in the retail industry in a retail store you always take all of your products up to the front of the store for the cashier to check you out and in the st century maybe you go into an amazon store and that's not even part of the process because the technology can tell what you've elected to buy when you put the item in your cart and what the supreme court has s about that is what your honor said to mr davis that processing of the transaction is not the hard processing of the transaction is the mere technicality in the retail context that the supreme court has instructed us to disregard and the specific rejection of those technicalities the specific rejection of what i would call good cash register rule that mr davis posits that a sale occurs only at the cash register has been rejected over and over including in the cases that mr davis cites the import of cases like beaufort and kilian is not that the individuals that issue didn't run the cash register in fact in kilian they did the individuals at issue based on an ongoing stream of commerce reordered products on a device that process the transaction and that was the only processing to be done and  remaining the reason that those people were not salespeople is because they weren't interacting with the customers they were persuading people and influencing decisions to buy and that's what making the sale is it's the persuasive activity that goes along with convincing an individual customer who's standing in front of you to purchase a product that they were inclined to purchase or to purchase more of it than they were otherwise inclined to purchase i think i would accept your proposition that what was going on here prior to the transaction the cash register could be viewed as all about sales yet we have in this area all this concept of promotion which is something that takes place prior to a sale why can't this fairly be everything that they were doing was an attempt to promote a sale which would not be finalized until the accident at the cash registers so why white under the regulations why doesn't this what they were doing prior to the sit why doesn't that for with the definition of promotion as opposed to self promotion takes place prior to the sales three lish dancer that question your honor and they do that in a way that they treat promotion promotion is a recognised form of abstract persuasive activity that's broadcast to a large group of people that the person engaged in promotion is not going to individually converse with an attempt to convince the product convince the customer to purchase the product rather but the way that the regs deal with the question that you're honest is to look not whether people were doing promotional activity it's to look at whether they were doing promotional activity that was in furtherance of their own sense or in furtherance of sales made by somebody else there is no basis in this record for the conclusion that the promotional activity that people engaged in here was to increase the sales volume of anyone other than the brand up standing right there promotional activity that would disqualify someone from the outside sales activity is for example what you see in beaufort where someone goes out and instructs not the end purchaser but the store employee who will interact with the end purchaser and helps them facilitate sales to the end customer  that st communication between the employee of the merchandising store and the store employee is promotion when the store employee he talks to the person who's going to buy the t v that's making it doesn't show up in any case law whatsoever until quite a bit of doctrine around us has already developed and i think it's a fundamental precept of administrative law which is what we're dealing with here that no agency and certainly no court is allowed to interpret words or concepts into a statute that doesn't contain and the department of labor i did the christopher i think it was a way it certainly  attracted a lot of attention in the lower courts but i think judge murphy and his dissent in hurt got this right what the supreme court was doing is just emphasizing the commonsense force of the conclusion that these people were engaged in sales and that only by resort to a technicality could you overcome that common sense force sort of an illustration but it can't be used these factors which don't appear in statute can't be used to push someone out of an exemption that's written into a statute judge murphy suggests they just help us understand why somebody who's on the bubble is well within this commonsense zone of sales and i think the dispositive testimony on that comes from the planets themselves has expired i would add the question thank you your honor mr davis began by saying over and over that these people didn't sell anything and that simply contrary to their deposition testimony several of them described themselves as salesman their own words and when my colleague asked mr watt for example if he could think of another word in the english language another verb in the english language that described what he was doing other than sales he thought about it for a nd and he said no and all of the plaintiffs testified similarly well mr davis believes that they were engaged in cells no one else believes that including the plaintiffs and that's why judge sooner entered summary judgment and that's why that conclusion  whether even though the supreme court seemed to factor it into their decision whether there were those or appropriate factors to bring to the analysis you seem to suggest that they're not going puzzled by the supreme court these people are salespeople they're paid commissions they were out in the field with line of sight supervision to no one they were hired for their sales experience and trained in how to do that the in disher certainly president my position is just that we don't need them and the supreme court in christopher didn't actually say they were relevant they just said we're convinced that these people in any vernacular or commonsense way are salespeople and one reason that that commonsense conclusion is so strong indicia here we don't need we don't need to stretch to the outside sales exemption plaintiffs need to stretch to get out from under it and frankly they can't so the indicia i think frankly serves no role in the courts  and maximum commitment possible they could have changed what the commitment from the physician to prescribe their drugs that in the feature the reason is because it was illegal for the sales representatives to still drug directly to consumers without or staining obtaining a prescription now comparing this to the matter of chili on the kilian make clear that the other disposition analysis does not apply to the retail industry this thinking was stated in  said that the other disposition announced it does not apply to the retail industry because it does not involve non binding commitments or other disposition sales in this matter appellants also state clearly on the record that they were doing nothing other than promotion work how can it possibly be concluded that they were making sales once they showed a product is still going at their display station there was they had absolutely no idea what that untraceable and and i customer didn't with the product a part of their inventory test at the end of their day consisted of going around the whole retail stores and looking for where they stand products are the calyx testifying to what that what their mid to the purchase the really the only commitment that could be obtained under the circumstances they they could not actually do the cash up that wasn't the business model here but they did everything they could do to obtain a commitment from the customer short of the actual transaction doesn't that suggest that they did accomplish this all they could do to achieve a sale then reflected in the decision of the customer to put the item in the cart they think that at that point they had obtained a commitment to sell it out maybe