please thank you i have good morning honors i'm shannon list rearden i represent the plaintiffs in these consolidated matters wallace vs problem the issue before the court today is whether or not the plaintiffs in these cases fall under section one transportation worker exemption to the federal arbitration act and therefore whether the district courts the lower erred in compelling arbitration in these cases so before i get into  the meat of this argument i want to start by emphasizing what both district courts below recognized and acknowledge that is that the issue in this case is not does not turn on whether or not the plaintiffs themselves these are delivery drivers for the questions whether they are transportation workers who are engaged in interstate commerce the question does not turn on whether or not these drivers themselves actually crossed state lines there's a wealth of case law that says that the issue is whether or not the goods being transported across state lines and every circuit to have addressed this question has acknowledged that the and maybe they don't have to actually cross state lines of themselves correct but if it's part of the duties of the class of workers to which they belong no no so what i'm saying is that every circuit you have actually addressed this question has acknowledged that the workers not even any of the members of the class need to across state lines the question is whether they're engaged in interstate commerce whether the goods that they handle are you know that's when i read these cases well why don't you explain why you made the cases that way yes ok so for example in the rd circuit palca ok that involved a supervisor of delivery drivers the supervisor obviously didn't cross state lines herself in the th circuit post but that was because she was supervisor there supervised delivery drivers who themselves crossed state lines but a close reading of that case shows in some of the other cases have acknowledged that those delivery drivers were only in trust state drivers who transported goods within the philadelphia area it was the goods that cross state lines not the drivers themselves so it's a very important misreading by the district court of the palca ok so the th circuit by kasha versus u s postal service case also involves postal employees who did not none of the class cross state lines but the goods their mail us mail was considered to be good in interstate commerce that cross state lines the th circuit the th circuit also has a postal worker case that says the same thing but it was the member i mean in that postal worker case but the quote pointed out was that you know it's hardly one can hardly think of an industry that's more involved in sending things across the state lines in the postal service and so the workers in that enterprise were close the particular plaintiff in the case was connected to the workers who actually did drive themselves across state lines or or fly things across state lines there's a case with the airport security inspector right ok and again in the in the postal worker cases the postal workers themselves none of the class crossed it lines it was the mail that crossed it line so i'm going to come back in a moment to why the food ingredients cross state lines but my point now is simply that the drivers that the class of drivers don't need to have crossed state lines let me give you a hypothetical than that involves a package or it or a passenger that's cross state lines so let's imagine so i live just a few blocks away from notre dame and football weekends there are tons of bike taxis that will transport people back and forth from where they park their car up to the football stadium those bike taxi drivers are transporting people who have flown from all over the country to come to the game are they interstate transportation workers for purposes of section one i don't know on the spot i'm not sure about the facts why would it be different that it has injuries have crossed state lines just like you know the coconut milk or the you know the fruit or whatever the grub drivers are driving but through a process that's that's not tied to the bike taxi driver just like isn't participating in the actual transport of the oranges across state lines that might wind up in someone's lunch while the beer well i guess the question is i am not arguing that case but the barrymore may it seems to me like your theory would say that it does so that the bikes taxi driver is exempt for the bike the bike taxi driver that carries passengers that have flown from washington state to notre dame to see a football game a necessary that they cross state lines but in that case the plaintiffs had even made an allegation that they cross state lines in the th circuit on its own because it has the requirement to determine its own jurisdiction on its own said look some of these drivers were operating near the border exactly so here we have grubbed which is a national company we have seven thousand drivers from forty five states who have opted into the sor and case if the court were to remain and as the teamsters court did to determine whether any books now right so the plaintiffs should have below or you could have sat amend the plaint complaint even made an allegation that some drivers for example you know from washington d c to the maryland suburbs state law i believe it is in the briefing below there was discussion about whether they may have ever done so we agree with that it shouldn't be necessary to get into that detail type of discovery at the outset but i'm just noting that the th circuit that's exactly what the court did and it determined that that analysis may need to be done and we did put in our papers that if the court has any question about that it could order discovery to see whether any of the seven thousand drivers ever once crossed a state line because you have here a national company the size of grub hub i think it can be inferred that in fact under the standard under the twelve the three standard the court is not limited to what's in the pleadings it's based on reasonable inferences as well it can be inferred that one at least one of the seven thousand drivers who opted in this case around the country at some point drove across state lines if the court has any question about that like the court did in the teamsters case it could remain and for us to find such a driver and have that analysis but i don't even think denying that some driver somewhere out of the seven thousand some point cross state lines so under the teamsters case we should win on that alone but so if i could if i can continue the argument that i was making my point is that every  uit that has addressed the question on the sole question of whether the drivers themselves have to cross state lines have held that you look at goods it doesn't have to be the drivers in addition to all the circuit courts i just described where you have the th circuit hard versus r p s case where r p s were local truck drivers they were that's the predecessor to fed ex they were making local deliveries the exemption was found to be apply there in the lens case even though that plaintiff was not found a fall under amazon ward vs express messenger all of these cases have recognized that back in one thousand and twenty five when congress enacted the f a a and the transportation worker exemption at the time you look at what congress thought engage in interstate commerce meant at the time and these cases have recognized and acknowledged that at the time engage in interstate commerce didn't require the actual worker to cross state lines we've cited to some cases which used the her go across state lines and then they hired local people at the station to unload the vehicle to unload the curb and in the burke case the u s supreme court held that that worker was state they didn't cross state lines but the cole was counsel dealing with those if we disagree with you i mean if you know the test for example that the th circuit has articulated is whether the end of not whether the individual worker actually engaged in interstate commerce but whether the class of workers to which the complaining work or belonging to engaged interstate commerce do you lose if we think i mean i think i agree with you that whether goods have moved across state lines is a useful proxy for whether the worker himself has moved them across state lines so i think you know that to the extent extent that cases described that i don't think the focus is on the goods the focus is on the worker but watching the movement go across state lines indicates what the worker does do you lose if we disagree with you and think the focus is on the who's five minutes in the train oh ok all right so it's not like you just quickly got to my other points here the food none of neither of the courts below analyzed weather really analyzed whether the food in the th circuit dean milk case from one thousand nine hundred and sixty eight that case recognized that even where some of the ingredients came from out of state and there were some processing of the ingredients that didn't break the chain of interstate commerce and courtly the sc milk was more recent than the central ice cream case which relies on and that it makes no sense to have to have the question turn on how much processing there was here there was no analysis of the fact that there are some food items that were processed at all some food items like  s might have been processed from raw carrots to steamed carrots but should the case really turn on the question of whether that broke the interstate journey and i would suggest to you that it didn't but another important point that i want to raise and that neither of the courts really analyzed as our discussion about the interplay between section line and section two the f a a so number of the cases talk about and grab have talks about the fact that the common as used in section two is a broader commerce then the engaged in commerce language used in section one we realize that we understand that section two commerce goes to the out of bounds of congressional here's what i suggest that really means so for example in the lens case you had a customer service agent who worked for a transportation company and the court held section one and the lens court cited another couple of examples for instance a case in which counsel you're asking us to construe that language the commerce language in section one really practically consistently with the reach of congress commerce power and that is not what circuit city rejects that quite squarely yet yes but what i'm saying here is that in this case they are the same that's not true in all cases but in this case it isn't is affects commerce coaching it it's only if you know yes if i could just make you want to look i just want to make this one point quickly if grub hub affects commerce it is because the delivery of food items the food items are in interstate commerce it's the same question here as to whether or not the plaintiffs are engaged in interstate commerce so this isn't this isn't like a case where railroad the question is whether the customer service person is in gauged of the railroad is clearly engaged in here it's the same inquiry hub is only affects commerce if if these food ingredients are in interstate commerce it's the same question for grub hub and for the drives anything as part of their employment anywhere around two blocks away i mean have traveled some component of the pencil or the folder or whatever has traveled in interstate commerce it's not just about grub it's about the scope that you're asking right right but i'm just saying that in this case how is it a fact of commerce and less the movement of these food items constitutes commerce it's different from the train cases for example and in the new prime case the supreme plaintiffs do not belong to a class of workers akin to see men or railway workers who are actually engaged in the movement of both goods and interstate commerce and as to which congress had developed dispute resolution protocols designed to avoid mass destruction to our national economy as a result of strikes that could not be resolved through alternative dispute resolution protocols council do you agree with the opposing counsel that all of the cases from other circuits focus on the goods rather than the transportation worker quite the opposite the cases say specifically we have to ask what is the class of workers actually engaged in international brotherhood in this circuit specifically says we have to look at the class of workers and whether they are in fact crossing state lines whether they in fact are engaged interstate commerce by transporting goods across state lines and in a particular case the entire class of workers truckers crossed state lines albeit only occasionally and that was sufficient because of the facts of the case the truckers belongs to no international brotherhood was a jurisdiction to appeal the defendant had moved to compel arbitration that motion was denied the defendant attempted to take an interlocutory appeal from that judgment and the court of appeal said before we get to the merits we said we have a jurisdictional obligation to find out this case is completely different in this case the plaintiffs has the burden the plaintiff had the ability to attempt to prove that they belong to a class of workers engaged interstate commerce workers and seamen they did not attempt to do that they've disclaimed any attempt to do that they've disclaimed that that would that that even should be the test they want the flow of goods test to be applied in this case and all to get to that in a minute as to why that's the wrong test to apply and even if it is the right test it doesn't apply to this case given the change of the stoppage of the of the products in interstate commerce when they get to the restaurant do you concede given precedence that require only occasional interstate crossings back to class of workers not regular crossings that if members of this class of grab workers do occasionally cross state lines that indeed a section one exemption what applies to for example somebody running in live right on the border running across to opposition to a motion to compel to try to introduce evidence that that even happened occasionally it's waived and this circuit should not they need to decide the case on the record that it's given but to answer your question the answer is still no because section one applies to the uk it asked about the class of workers it doesn't ask about the f l s say the scope of the f s a certification order it doesn't ask about a rule twenty three class with regard to employees of a particular employer the test in section one is whether the international brotherhood it wasn't just a few drivers who cross state lines the class of truck drivers engaged in shipping the concrete cross state lines that class cross state lines only occasionally but the entire class was that was across the border the evidence we finding was that the class of truck drivers could be called upon to cross state lines into missouri and so that was that was the finding there i think frankly there was a bit of an error there because they looked at that class that all twenty three classes actually the employees subject collective bargaining agreement rather than that class of workers to which they belong which is broader than the employer and extends to truck drivers who cross state lines industry sure and that's what congress did in one thousand nine hundred and five again we have to go back to the purpose of the statute even the circuits president he just and the circuit city tells us let's go back and look at why section one exists section one does not exist because congress wanted to arbitrarily exclude certain categories of workers from arbitration congress to the contrary as the court recognized just a few weeks ago in the facebook case said that there is a liberal policy favoring arbitration as evidenced by section choose reach to the fullest possible extent of the commerce clause section one was an exception that was designed because congress had already developed rob alternative dispute resolution protocols for that class of workers in the in the mercantile industry for the class of workers in the railroad industry and those people had those dispute resolution protocols in place so that they could resolve their disputes it on on foot within a community and they were not of the type of worker that congress was concerned about in one thousand nine hundred and five creating a mass destruction to the economy by deciding not to deliver someone there their apple or their sandwich that is not what congress was concerned about so we look to the fundamental purpose of the f a a section two broad everyone should be covered section one narrow exception for those workers who congress has indicated an interest in protecting through alternative preexisting or imminently to be existing dispute resolution procedures so in this particular case even if we define the class as pub delivery drivers we still find that the class of workers is not a geisha interstate commerce even if one or two of them or some of them  occasionally cross over state line given the nature of their local community being their state border because the class overall will not be expected to cross the lines there's no evidence in the record by the way of any of this and it's plaintiff's burden to establish this is all hypothetical but if that record had been established that of the thousands and thousands of individuals who have delivered food from a local restaurant to a local diner and they happened by happenstance to cross a state line in that one mile bicycle ride  that person is not among a class of workers where that class of workers is expected to be engaged in interstate commerce we also have to look at the purpose of the statute when it was an act that in one thousand nine hundred and five congress was concerned about mass destruction they were concerned and they were concerned about railroad workers if they went on strike because they didn't have a dispute resolution procedure in place then the economy would be disrupted so we're talking about bulk transfer of goods was the concern of congress and that's what we had they were concerned about they were not concerned about the happenstance of one person who might have occasionally strayed across a state line that would this araik the rule it would a visit would it would grow the exception to the point where where there is simply no one left for section choose coverage have found that the cases are distinguishable they've all relied in finding that distinction on the flow of goods issue they say pursuant to cases they came back to walling from the one hundred and forty s if if we're going to adopt a flow of goods test which some of the courts have done and for which we say does not apply in this case but if it applies the flow of goods has to stop somewhere and walling the united states supreme court said that it stops when it reaches the local merchant that purchased the good so when the merchant purchases the good the traveled in interstate commerce to get to the merchant and changed ownership at the merchant the flow of interstate commerce comes to an end and anything that happens after that between the merchant and the merchants customers is in trust state commerce and so in this particular case even if the courts of appeals of the st circuit and then i answered it were to affirm the district courts in those amazon cases finding that the last mile delivery driver was engaged in the flow of commerce if if that's the test that they choose to apply that still does not change the outcome in this case because in this case it is undisputed that the restaurants the local restaurants purchased the food purchased all the ingredients there's no evidence on the record as to where they purchased the ingredients from point of speculates that there are purchases that occur over state lines but there is nothing in the record the planets with the burden did not establish this as a factual evidence or matter but let's assume that it's reasonable to assume it's pretty safe to say right it may be we really don't know actually where the restaurants purchased the food from they purchased purchased it from a local distributor who purchased it in interstate commerce we just we don't know but let's assume that in fact one bag of chips was purchased as part of a case of chips by a restaurant and then that case was broken apart and all the chips  distributed wanted to time to the restaurant's customers walling tells us that the flow of interstate commerce stops when it got to the local merchant so even the bag of chips even the can of soda that planets a does not change things that can of soda was taken from a case that was purchased by the restaurant let's assume an interstate commerce and then it was done it's interstate journey ended and then went on to an interesting journey you got broken apart into twenty four different meals that would that were delivered by twenty four different drivers to twenty four different diners in intrust state collars and so if we're going to use flow of goods we still have to recognize that the flow of goods stops this court has even said at some point you have to pick a point where the flow of goods in interstate commerce comes to an end where the product comes to rest and all of the cases say that if the employer if the entity it issue that we're there we're looking at controls the interstate transportation from an and out of state location into the state and on to the customer and walling it said that customer's name was printed at the mill on the product shipped shipped to a warehouse temporarily stored and on to the customer all in the chain of custody by the same and city the court said the resting at the warehouse is not it doesn't stop the flow of interstate commerce but it contrasted that scenario with the scenario of an in state purchaser an in state merchant who purchases the goods and then turns goods to someone else which is exactly our scenario here the restaurant is the seller of the meal to the diner and all of the ingredients whether they were baked boiled fried or a can was taken out of a case and put put into the bag along with the meal that was created from all of the ingredients all of it came to rest in interstate commerce at the restaurant before before moving on to the final customer but i would argue also that the concept of flow of goods is actually not the test the discord in international brotherhood said the worker the class of worker must actually be engaged in the transportation of the goods across state line this court said that is in fact the test and we do not have to look at the flow of good not with respect to section want in the door dash case the district court the plaintiff made the same argument in that case they said the drivers are involved in the flow of interstate commerce because they facilitate the transportation of goods that originated somewhere else before getting to the restaurant or before to the merchant the district court in that case very properly said although this would almost certainly be enough under the united states constitutions commerce clause the f a a is more narrow and that's exactly right when we talk about we can use the flow of goods test as many courts have done in other contexts feel a fella say well claim act any time where the where the congress used the power of the word commerce to extend the reach of the statute to the fullest extent for the policy purpose of providing the broadest possible coverage the courts have recognized that flow of goods is part of interstate commerce the rd circuit case my colleague referred to same thing and that's why the supervisor get pulled into this because the supervisor of the interstate were feeling cases and really were standardized cases and played not cases it's order so the flow of goods does not apply here because section one is designed to be a narrow exception recognizing that congress did not want to again class of workers engaged in commerce which suggests that the workers themselves are doing you know workers engaged to suggest it's the workers that are exactly the transportation workers that nd that's exactly right and not just a worker but  job i think it is a challenge and certainly an international brotherhood the court was focused on the employees subject to the collective bargaining agreement but the statute itself again tells us that congress was talking about industry wide employment industry wide individuals who are engaged in railroad work or mercantile work and so when we think about other classes of workers we don't think this broad category of mercantile workers this broad category of road workers and then wrap up the livery drivers or pub  drivers who happen to live in a town near a state border that's not what congress met when it said what it said it said class of workers it didn't say class of employees employed by one employer so it's an industry test it's i think it's a test a bout the workers overall and the industry it's informed i mean that the supreme court has has repeatedly instructed in looking at section one and this court as well that we look at the st two categories to understand the residual clause and the  two categories are broad brush industry wide workers and why is that so that's so because congress was already taking care of those categories of workers through alternative dispute resolution protocols built into other statutes congress was protecting men engaged in interstate commerce by virtue of another statute that provided dispute resolution it wasn't providing dispute resolution protocols for all see men who work for a particular company it was all of them as a class regardless of whether they work for a tiny company or a large company and so here if we're going to be informed by the st two elements of this clause we have to look broadly and we have to say local delivery drivers are you know it's easy in cases that involve the trucking in history or that involve say you know that fed ex and the transport of goods via airline those things though those industries are different right it's kind of difficult once you get out of those kind of mainline delivery like you know on the channels of commerce focus the focus of their job is that to figure out how to define the class the local delivery you know food delivery services the difficulty there and forms of this court is to watch it from the judgment of the district court because when we look at when that affect our economy on a nationwide basis and wear a mask strike by the workers engaged in that nationwide commerce would be crippling to our economy the court has never said that that's how you interpret that residual clause mass strike or anything like that and even though i agree with you that the purpose of the statute was to get at railroad workers and seamen because the alternative dispute resolution procedures were available in other statutes we don't say that the residual cause is limited to those classes of workers who have alternative methods of disc dispute resolution made available in other statutes that's true i mean it is an interesting point to that in one thousand and twenty five congress left open the door for itself to create  things and even if they don't do it the section one exception would still apply i think that's pretty well established but i would say that the possibility of master rights and the the rationale for section one's existence to begin with does need to be taken into account in determining whether a particular class of workers fits within the principles of statutory construction that make them like c men and rubber of workers and i would submit that a local delivery person with a bag of containing a sandwich and a bag of chips is not qualifies under section two it licenses it up nationwide there's no doubt that repub and its business and its contracts are involving commerce notwithstanding my colleagues attempts to argue to the contrary but i definitely agree that there's some difficulty here with regard to the total breath of  section one's residual clause but we have plenty of precedent both from this circuit and from the us supreme court that says when in doubt we construe this narrowly that the st principles are that congress has a liberal policy favoring arbitration that the use the term commerce in section two was intended to grow and expand as our understanding of the commerce clause grew and expanded after nine hundred and twenty five dollars and yet we have this limited exception that is designed to be very narrow to be focused on a class of workers who like c who like railroad workers are engaged in the bulk transfer of goods across state lines in interstate commerce and plenty of cases even once considers whether a strike they look at that as a factor is a consideration in determining whether the employee fits within section for section two purposes does that transportation affect commerce it only does if the food that's being delivered can be considered part of interstate commerce so that's why i'm saying it's the same question here for the company under section two as it is for the drivers under section one and that's not always the case i want to correct what my brother just said about the teamsters case the teamsters case from the circuit does not say that the drivers must themselves cross state lines it says that if drivers do cross state lines they fall under section one exemption doesn't say that they have to and again because this is considered as a twelve b three motion the court can make reasonable inferences just as your honor said that it's safe to say that some a drivers would  have that some of the food that was being delivered would include things like chips and soda as it can also be safe to say that some of the drivers either the seven thousand dollars or all delivery drivers for grub or for the whole industry this cross workers involving crooks at a chinese food restaurant and the court there held that the food was an interstate commerce even though food ingredients got processed and turned into chinese mean chinese food meals that  that food was an interstate commerce there however the court held on to the f l s say that a coke was not engage in interstate commerce because the coke wasn't actually engaged in the transport of that food which is different from here where the drivers are clearly transportation workers and that's not disputed it's just that the cooks were not closely enough related that the courts analyzed whether the cooks were serving customers who had traveled across state lines that was the argument the  and the court said the court analyzed that question not the issue here also in the teamsters case and my brother was incorrect in saying that all of the drivers cross state lines only occasionally that's not found in the decision there is just discussion as your honor pointed out that there was testimony from a couple of the drivers that they did occasionally cross into indiana and again at twelve p three stanford the court the court could infer that or remain and for discovery on that point although we agree with that that would be a very strange way to interpret the statute make it difficult to enforce if discovery had to be had on that issue and if you go thank you you