the prior case was wrong or misguided this is not the venue to do that so in federal court you what's the issue i do wish directly your honor i believe that under erie and under this court's holding in j mcdaniel the issue is whether or not when sitting in diverse new jurisdiction a district court is at liberty to disregard the binding law of the state court even or excuse be counsel even under eery there is an exception for the hapless court following the supreme court decision perhaps it can be a case where there's very persuasive grounds for believing that the state's highest court no longer follows that precedent and a situation where you have to speak legislature take the action that was taken here to clarify what it meant by law it had already passed it seems that this might be that kind of case where  it's not likely that the supreme court would follow its precedent i think the answer to that question is in fed ex corporation versus skelton where the arkansas supreme court said said that the legislature doesn't have the authority to retrospectively abrogate a judicial pronouncement and if you combine that principle well we're not i'm not saying it's necessarily abrogated the judicial pronouncement but it's clarified what its laws mean or what it statu and what's with that clarity it may be doubtful that if heard again the supreme court would reach the same interpretation certainly act nine fourteen is a window into the way that the legislature thinks about the  decision that the arkansas supreme court made tellingly when house bill eight hundred forty six was proposed that which later became act nine fourteen it contained a specific provision which would have that a later amendment does not control the a turk rotation of a statute an acted prior to the amendment and it can't a later member can't change the meaning of the original statute that was acquired prior to the amendment the n the law would be read differently there after and we don't object to that that's the plain language of the statute that's fine but you're saying alleges there is no legislature cannot adopt a distinction between retroactive and clarification i'm not saying that your honor that's the issue and that i mean there is a difference to me there is a substantive difference between retroactively changing the statute those are it may be a subtle difference but it's a real difference well the power of the legislature to clarify a law that's already been interpreted by the courts certainly is diminished by the role that the courts play in interpreting what a law the wait wait power or or effect of the fact well i apologize i thought this i thought your question tended towards whether or not the legislature had the authority to clarify statute and the early do question is what's the effect of yes and they have the authority to retroactively m m assuming it's not substance you don't get in trouble one of the contract clause or some other way they have power to lee a man and they have the power to clarify but the power the effect of clarification may be different in the courts than the effect of retroactive change not even con agra is asking this court to find that act nine fourteen was retroactive no no no no well con agra is asking this court to do something it has never done before which is a direct controlling statement of arkansas law by the arkansas supreme court but this case is which is the controlling statement the declaration that it's clarifying or the failure to adopt the retroactive provision or something else gerber is the you said the direction of the legislature it's what i'm so i'm following up on that ok the legislatures words are specifically section b this act applies only to conduct occurring on or after the effective date here of which would have been april fourth two thousand and seventeen under the plain meaning of the text of the statute the plaintiff wins now you retroactive that's an offer down yes but they can also declare it to be clarifying leave and prospect of leaving to the court to sort out what impact that will have on the court's precedent and  pledge your versus mid state you can't deny they have the power to do it we were arguing about the effect of attempting to do it yes and pledge your versus mid state construction company an arkansas supreme court case says that that amendment doesn't control the interpretation of the statute now by interpretation i understand that you mean claire a clarification when at the meaning of the statute has already been decided by the arkansas supreme court likelihood of a state court to change its mind when you have the kind of evidence that's present in this case that that seems to indicate there was a very direct strong purposeful statement by the legislature to the supreme court one a very closely divided decision indicating that in the future if you look at that plaintiffs are not suggesting that this court should  have gone and looked at length other state supreme court authorities to see if the underlying decision was eroded in some way by the court not by a legislature  so this court's answer to the question that that you have posed is that we have no authority to speculate as to how the arkansas supreme court would rule if presented with the question again but will you just said we have no power to do what your remake says or speculate that you can always plug the word speculate in to our frequent attempts to try to fathom what we think the state supreme court would do with a new or difficult issue respectfully your honor i think that when this court doesn't interpret or doesn't in force the last clear statement of a law such as garber this court looks at evidence not speculation but evidence from the supreme court that for some reason that that prior precedent that one of the parties is urging is no longer yes that's something we can take into account no your honor it's not the role of a of a court sitting in diversity to disregard the binding law and the dissent is not the binding law and therefore this court must go with the majority it's not that the law could that gerber could never ever be reversed by the arkansas supreme court it's that this court doesn't want to encourage form shopping and erode confidence in the arkansas supreme court's ability to target and roll to interpret its own laws i see that i'm going back to where the chief judge smith started you have now declared there are no circumstances were eerie permit to conclude that a state supreme court would would not follow its what would otherwise be binding precedent not at all your honor there are such circuit that that you have to recognize you said cannot disregard binding law period the situations in which a court sitting in diversity will not follow a state supreme court ruling are those when there are other indices indications from that stat thank your honour's may it please the court the m w a issue in this case turns on the very question of the scores already raised what would the arkansas supreme court do if it were presented with this issue today would it be impacted by act nine fourteen the subsequent legislation would it be impacted by the the pharaoh legislative history regarding section two hundred five and section two eighteen that it was not provided with when it was deciding the gerber case and a forty three sharply decided or divided decision this court under the erie doctrine like other federal courts has the obligation to apply a clear holding of a state's highest court on an issue of law unless there are as judge smith pointed out very persuasive grounds for believing that state's highest court would no longer adhere to it plaintiff taking the position that this case is indistinguishable from jamie daniel this case is very different than jamie daniel and some of the most important ways first of all act nine fourteen did not create any new rights at six so did not question the asterix doctrine as this court has already pointed out today act mind fourteen was the legislature's opportunity to repeatedly and clearly criticize and disapprove of the gerber decision and then finally in jamie daniel significant piece was that all of the arguments presented to that court had been presented and specifically contemplated by the essex court that's not the case here on all three of those issues we are different the first of which the changing of the rights as i mentioned section two of hyde merely clarified what was there and the general assembly went out of its way to point out that section two of five had never been interpret in the manner in which they were recorded so second of all as i mentioned act nine fourteen repeatedly and directly criticized gerber and third the legislative history that we provide to this court was never provided to the record when it struggled to ascertain the legislative intent plaintiff's counsel has pointed to the pleasure case more than once fact the matter is in that case the court distinguished the skelton decision and went on to consider a clarifying amendment which is exactly what act nine fourteen is moreover as we sit here today as this court says here today and tries to decide what would the arkansas supreme court do if it were presented them with this issue today the palin's have offered no rationale no argument whatsoever to suggest that the court would do in due today what it did in gerber and the explanation is really simple in the face of act nine fourteen in the face of legislative history it would be hard to come up with an explanation for how the court would do again what it changed under section two zero three zero of the fair labor standards act during the course of the two thousand and twelve collective bargain to go she ations fact the matter is not practiced never changed and i'll discuss the merits of the argument just a moment but there is a threshold  issue before we even get to that which is to say the plaintiffs are bound by their pleadings in this case and in this case in their pleadings the plane to play just played more than once at all relevant times there was a common and universal practice of not paying for dani and often and in fact the complaints all six and seven of many complaints disclaimed any recovery for dani and oftentimes for any plaintiffs during a period of time when they were union members not limited to the period of time the two opportunity to consider this have ruled a three zero as an exclusion not an exemption record has shown very clearly that there was no agreement to move the clocks no one from congress said we are going to choose me that they would pay for dining and oftentimes the agreement was only to move the clocks and nothing more how would you apply our jackson decision cited by plaintiffs to this implied agreement in place and what did the union do in response to that i believe the jackson court pointed out there were one hundred eighty two grievances filed while the implied in fact contract was in place none of them related to donington doffing the court looked at the unions in action and described that as acquiescence therefore creating a customer practice under three zero plaintiffs have also suggested that this lawsuit itself demonstrates not acquiescence the answer here is very very simple the plaintiffs are not the union when it comes to three zero the only action that matters is what did the union do and in this case it is undisputed it never filed a grievance it never struck it never filed it took no action and the reason there is simple the union's president and the business agent reasons as to why it's not compensable the first is the busk analogy between checking process and russellville is in place to keep track of it in mentor and protect theft just like the rationale and busk that led the supreme court to decide that the activity in that case was not work we are exactly like the aguilar case that we cited youths who were detention officers grab keys and handcuffs and pepper spray and radios on their way into work where the court determined that was not work not compensable work we are exactly like the cast in city of new york that was authored by then judge now justice sotomayor or just as we're judge sotomayor focused continually on the fact that the activity in that case was a minimal burden he's these individuals are not meaning restricted and this is consistent with a concurrence that she filed in the bus case where she said repeatedly that we're going to focus on work of consequence in determining whether or not activity is work this is not work of consequence when you consider the bus case and the standard for case even going back to the depending upon the specific work that the employee is due and might having that to be an indispensable an integral part of what they do certainly while they're using the knife it would be indispensable and intrinsic not to be holding that knife but all of these courts of points the fact that even though in the cast you need a case they would use knives to separate meat from bone or the hooks to hold up the obviously activities that clearly require these tools undisputed between two and five minutes to pick up which will unless to take it back federal courts across the country generally hold that ten minutes or less is a de minimus amount of time so there is one issue that really is not in dispute the regularity of this no work the record evidence here is only that  employees who use that which are the minority would grab them once or twice per week to once or twice per year and when they do that they are allowed to do it on the clock and many of them do not his final piece is the practicality recording the time plain we could have supervisors review all of the nice logs and then review all of the time records to determine who was on and off the clock there are thousand employees more than a thousand employees who work in this was every day reviewing this time records every week would be a huge undertaking first to determine whether it was recorded correctly and then compare them to the time logs have point to suggest something that is possible yes but that's not the standard in determining whether or not it's administratively practical to record this time practicality controls here not possibility and plaintiffs have not offered any suggestion there would be a practical way to deal with the everyday demands of the industrial workforce i'm happy to answer any other questions of the court might have we're getting back to the gerber case is it your argument that it is beyond the bonds of reason to think that the arkansas supreme court mightn't for want of a better term dig in its heels and and here to the governor is it impossible it's not impossible of course not they it's not beyond the bounds of reason either i personally can't come up with any argument as to why it should do that the plaintiffs not offered any argument as to why it should do that in getting there the supreme court would somehow have to look at legislative history of two of five where the initial language limited the impact of collective bargaining agreements and was rejected by the voters and then reconcile this position with the language that actually passed in one nine hundred sixty eight that eliminated the restriction and provided total deference to the collective bargain has urged that act nine fourteen did not create a right and therefore it's distinguishable from j mcdaniel however act nine fourteen does create a right it confers a right on union nothing that con agra has pointed to from the arkansas supreme court which would suggest that it has turned its back on its decision and act nine fourteen confirms the reading of garber because during the legislative process the legislature struck the retroactivity language and instead said going forward effective on the date of the on the date of the passage of the  act that the law would change that is not a reason to think that the arkansas supreme court would turn its back on its decision when the arkansas supreme court has said repeatedly in fed ex versus skelton and in pledge your vers mitt state construction company that it does not look at subsequent amendments to find out whether or not this supreme court was right or wrong the arkansas supreme court absolutely had to the arkansas supreme court a prior opinion from the district court in this case saying that two zero three zero would be read into the amma and the arkansas supreme court disagreed and yet here we are again con agra is asking this court to say well this time around they would do it but this court doesn't speculate about rulings it just follows binding precedent a con agra does say it has a lot of things that it could do to change the decision of the arkansas supreme court but that's not why we're here we're asking the court to enforce the text of the amla as it existed in two thousand and sixteen the texas statute means exactly what the arkansas supreme court says that it means thank you very much thank you counsel court thanks both sides for your presence in the arguments you provided to the court this morning the briefing that you have