basically prick we were we had some judgment into the against us in the district court just before the deal's decision was rendered by the ninth circuit by this court so we did ask if that record may show for every man to the district court so that the court might really ordered so to speak so the court could we come up one way or the other the benefit of built out in the considered because the district court did rely on the district court analysis in the in the back in the in the opinion that was a court decision and that decision was rendered and then six or eight months later the defendant filed a motion for summary judgment to have the wage claims also preempted under quite a preemption your way but still is are going to be anything that the supreme court if they were to take the case and cost al oh that would give us guidance in doing this analysis because last time i checked they're bigger than i law it really deals with the relationship between the workers and the company how they're structured as opposed to simply the issue of meals and breaks i could see the supreme court ruling in the castello case and not even getting to are the because we have the issue of in our case only how the employer deals with its employee their admitted employees in plus teller we have the issue of their treating them as independent contractors and the question there is whether that yes so if i were you i might argue that that would be why we should go ahead with the application and i said the supreme court has taken this issue and they looked at it they decided not to take it up they didn't say it was horrible what are they in the introduction to footnote two when the decision clearly says in the ninth circuit that we are not addressing this as to penske's particular facts we're addressing this as to the motor industry as a whole so i don't think there's any room left for that to go if i had any anything i could offer this court where i think it could go and i think it would merit some discussion and maybe make built a stronger decision so the full clarity it's to give real credence to the words in the actually quite a  the meat words mean when we talk about with wheat with regard to with respect to the transportation of property that obviously came up in the ben city case and we laid back probably fifteen years earlier to five thirty six us four forty nine that states remain free to enact and enforce general traffic laws general restrictions on the weight of cars and trucks and other regulations that do not target motor carriers with respect to the transportation of property those words got lost for of a few years along the way and came back really fully embraced by density and if we're going to give any credence to what those words mean because they do not appear obviously and in the  property and that doesn't mean it has an effect on transportation it means it's directed at transportation and that's why i wonder whether the case that's pending before the supreme court they invited the solicitor general to chime in on that right so maybe that bigger picture language that you're looking for will be presented by their pick by their presentation i mean would that be one analysis for waiting again we can wait i think i w early stage he says you know this case yes actually it's seven years into the case but there was a motion much for judge when the pleading made after we were certified after decertification was denied then the preemption issue came up after the bills district court decision so raised in the district court proceedings yes that it would it would have to come around again yeah i don't doubt that but like i said since one cases dealing with the relationship of how one is classified as an employer independent contractor and we don't have anything near that issue being limited to those that are actually directed at and with respect to the transportation of property that will give further clarity as the ninth circuit stated and builds it listed in footnote one on the second page of the opinion i think there were eleven case nine cases that have been decided in the defendant's favor and four or five cases that have gone in the plaintiff's favor you know against preemption our case was one of those we're listed in that in the in the list of cases so we've all been before this court now a very long time and i think we're we'd love to have the clarity that we're ready to go forward if the supreme court you know if it really reaches this issue we'll all know that at that time but we don't know that now and i just would invite the court not to let this please the court i'm kevin lilly on behalf of my client respondent j b hunt transport i want to start by reminding myself that there are there are two separate motions at issue before this c and they are involved very very different issues one of which is as close to divulge the other is i would argue new it's new new ok and the reason is because the appellants did not in cannot seriously dispute the finding that central in this case that alternative based pay which is the second issue before the court increases efficiency in the trucking industry by seven percent it adds an average of one drop per driver per week it changed routes it reduced the hours that drivers had to work to earn their wages it would use the costs of each delivery that's made by four dollars a delivery something that is directly linked to prices because our client links its prices to two driver pay it's called pay as you go pay as you bill bill is you pay and it grazed drivers wages decreases cost and it increases driver paid by ten percent and we end the it and for that reason this central finding the central undisputed fact it makes the i don't understand is supreme court has reversed all sorts of laws a general lack of ability one thing that deals actually would have i think benefited from that the panel in deals would have benefited from had they had more time to consider the supreme court's decision in ginsburg versus north rest which although it cites in passing it actually it held the united states supreme court held that they generally applicable in contract bad that's a lot of general application was preempted in american airlines versus wall and so there was a consumer fraud law that was a lot general application it was held preempted in morale us the first case it was a consumer protection law and as it as it was applied to advertising in the airline industry and it was held protected so the one thing i do i do not think it would be fair to read drilled so broadly that any law that is  it expressly talked about costs and how it's effects and costs and dress the argument you're raising right now and it's folding was its actual holding which is on page six forty nine of the d opinion is the defendant submitted no evidence to show that the break laws in fact would decrease the availability of routes to serve whirlpool accounts or would meaningfully decrease the availability of roads to motor serv carriers in other words the court was ruling on a summary judgment motion and as judge just to sue ari pointed out in his concurrence that all they could get the trucking company and don'ts attempted to do was argue some hypothetical well ok but the do a couple things she pointed to judge the haris concurrence and dealt which takes the view that the case rests on the lack of evidence put forward by the defendant in that case but doesn't the fact that it's a kind currents indicate that a majority of the only get yourself far but either but in this case i would i would advocate if you're on the court was to see me to discuss at least a practical approach in this case and with respect to guilt one practical approach would be to take the same approach opinion in this case had to have considered all of harry's comments and an disagreed with them otherwise judged is a hurry wouldn't of had to write anything separately  is the fact that that's their knowing how we operate i'm sure there was a lot of back and forth and memos and discussion and thought given to producing and a divided opinion i absolutely don't suggest otherwise but but what i am suggesting is it was decided on a motion for summary judgment on limited evidence and that that for example the eleventh circuit in taylor versus alabama sent the case back on preemption and said it should be decided on a full record and all i'm saying and i and i don't want to over over sell the point as as folks just have so callahan and just just judge were to suggest i don't want to oversell the point however i think a fuller record would enable the part of the court to make a better decision on preemption i think otherwise what you end up doing is is sitting in a court of law trying to decide whether or not a drivers getting off the freeway for a rest break sufficiently interrupts around i don't think that's the place in a deregulated trucking industry to do it since the judge and i had thought it well she ripped was relying on the district court opinion dilts which was then reversed what about just giving the district court judge now the understanding here's tilts here's the law hasn't been a search on it so go back in get to work since you've been waiting so long to see how this plays out what's your is your is there an objection to i think there's no objection to that with respect to i think there are two reasons to want to reach a different conclusion on the meal and resprayed ok i'll set that aside to them go ahead with respect to that miller resprayed piece i think that is the approach taken by the eleventh circuit they say decided on a full record go back right in the meantime this issue may reach the united states supreme court but on the issue of alternative based pay there is a much fuller showing on a motion for summary judgment and that showing those to the congress is intent in regulating the trucking industry the intent was an economic one to increase efficient mexico and the quote from roe versus new hampshire is maximum reliance on market forces efficiency innovation and low prices and i think an on the facts which are undisputed in the summary judgment motion we've proven to the court that improves efficiency seven percent i don't think anyone with any notion of business or regulation could argue that a seven percent increase in the efficiency won't affect prices routes or services and it doesn't just raise costs that's the main down to argument it doesn't if it were just if all alternative base bay did was raise the cost to the carriers then it would be an entirely different argument but here when we have proven that the that alternative based pay is operating exactly as congress intended the regulation to work and that state regulation this are meant to rule this non averaging rule which is unique to california is is impeding that and causing trucking industry to operate less efficiently in a way that is inconsistent with the approach taken by the first circuit note that my opponent did not address the i would not be mentioning the first circuit either but i think that's your problem i mean your to you the judges of this court must consider how to harmonize the position taken in this jurisdiction with the decision in the first you don't have to have been alternatively yes the supreme court to make the decision but i don't think you have to go that far i think this court can look at alternative based pay make the judgment that my client made a case that is you you're obviously knowledgeable about your kinds business and are do other states have laws on neil and rest breaks and minimum wages that are different from prop patchwork regulation that's why it's important for this court to try and bridge the gap and on this issue on the issue of that it touches so closely to congress's intention to deregulate the trucking industry the scribes intent i think justice scalia would agree with the on how well he did which was perhaps with respect to the mill rest break laws but with respect to with respect to the issue of alternative base that's not what the regulation does the regulation says you must pay every segment of time and you cannot use averaging which prevents in effect you from operating more efficiently because drivers are driving all over you can't you can't tell a driver you're spending too much time filling out a form or you're sitting in the coffee shop too much the best way to manage a driver workforce and this was proven in our case i would urge the court to go back over the briefs i know you've already done it have but it was proven in that case that the company did studies it used to operate based on hourly pay and it was a huge savings that made drivers happy it made the evidence that there is a groundswell of support for hours and if it costs action it was certified as a class or strength but it but it is undisputed that alternative based pay results in higher wages by about ten percent so circuits so that was one of the bases for bringing it up so even though it has factual differences it's got the independent contractor angle and it has differences that is the the basis is that is the case you were just talking to us about that causes causes one case ironically the plaintiff's lawyers the parties who who were supporting the regulation pointed to alternative based pay as a lawful alternative to using independent contractors so here we have this perverse dialogue going on where where where regulations in and in the first circuit are being attacked where were the recommendation by the plaintiff's lawyer is to is to use an approach that's outlawed attack is actively base pay that does not pay for all time versus the defendant in running its business could it if it loves activity based pay that much and it helps everybody of that greatly let it do that but let it then pay for all the primary tasks the workers are not being paid the drivers are not being paid for example for korean post trip inspections there's not much doubt that at trial that time will add up to summer between thirty and forty minutes of the day maybe thirty minutes max i'm not sure exactly yet there's no pay for that they can certainly allocate activity based pay a piece rate it's all of the egg a b p is just another term for peace rate they put a piece rate for that piece company knows where they are at any given moment of the day they know how fast they're driving the know where they're driving the know if they're on route they were everything about them they might as well be sitting in the office so they can put in a piece way that says code one beginning respra and see we're all for that this is a complete and total red herring we tried to make that clear to the district court we failed to do that i want to make it clear to this court we are not now claiming and we have never claimed that they have to pay our the rate they  pay wages under california law include hourly commission or piece rate any one of the three they can do and we have no qualms we've said that it's in the record of pages twelve ninety two twelve ninety nine to thirteen zero one those are pieces from our various briefs in this case and it's there for you we never claim that and it's a complete red herring next to show and address is the  cut truck leaving california ending up in new hampshire well that may be true for some of their drivers those drivers are not in this case our definition of our class excluded an ambiguous lee what are called the over the road drivers so course over a seventy five percent of our drivers don't leave the state of california there are one red herring after another before you during that argument the cases counsel cited regarding the bar i was going to bring in the other shifting incentives and that would be a paid six forty seven so if we're shifting incentives it's to their benefit we have no problem with that this case is ready for this is and i think we should embrace this and we should add to it the clear language limiting language that makes the f quite a so different than the eighty eight and is another reason why the cases cited under a d a while useful to look at cannot change in f quite a conclusion because we have to have a law that relates to the