this is a fair labor standards in a case collective action case there were actually two appeals one was an interlocutory appeal regarding waiver of the right to bring a collective action the second appeal was for s judgment i'd like to reverse the order and discuss the summary judgment first because that would be the more determinative issue if in fact you reverse the summary judgment then the the waiver becomes a factor again  your honour's similar to the previous argument this is a case where someone judgement was granted the trial court essentially determined both the law and the facts in a case that the plaintiffs had requested a jury determination of those facts in the facts really were what are the primary duties that they had with regard to the activities that they had as representatives  the the activities that these these these sales representatives in conducted in the grocery stores the jury determines whether their primary duty was in fact making sales or whether it was in fact something ancillary to that and that is something that the court was cited to the icicle seafood case the supreme court case if you look carefully at the case he the defendant asserts that that's a judge call if you look carefully at that supreme court case in fact what the supreme court was saying was that was a bench trial the bench trial the judge made determinations of fact and therefore thereafter then the appellate court only looks to the interpretation of the law to determine whether the trial court got it right that's not this case we haven't had a chance to present our facts to a jury and in fact on several judgment what the is well aware of what the summary judgment standard is what we've done is presented you facts to show that a reasonable jury could have concluded from the facts that there were no sales being made by the sales representatives here that the sales that were i understand it your sales reps didn't actually drive the merchandise to stores that's right off they just met those trucks and then help unload romans stock on the back room and then eventually put them on the shelves of that which your people yes are that's that's correct but what we're seeing is this regulation is very analogous to what our people did they didn't actually drew if necessary that regular particular a license to apply for you to provide you know ma'am can prevail without looking at that but that regulation is the closest analogy to what our guys were actually doing when they were restocking well go ahead or they they were restocking placing orders to simply replace what had been sold by the grocery store the district court in the defendants position is simply placing those orders is quote making sales under the regulations it's a very difficult thing to ween out of the regulations but what they say is that you have to obtain a commitment for new or additional material in order to quote make a sale in there were no such commitments here now even better the analogy to the the regulation that you cite a lot of the scene of committees going on there simply restocking and the discussion in the regulations is very analogous to what our guys are doing because reg that regulation says simply restocking and not obtaining a commitment for a new wood or additional things is not making an analytical route you would say that the drivers who sell regulation contro here or rather that the proper analytical is to look at the primary duty of the employees to represent and use if the court regulation the drivers who sell is not strictly applicable but the court might look it is the source of the proper way in which to anna laz did the job you clients and that is at sort of the yes that it's a close analogy yes ma'am and the whole framework that the industry that's involved all of that is essentially the same it's possible to analyze the case without taking that regulation into account at all yes ma'am with yes men or do you think primarily that mr judge was wrong i think the district judge went wrong because he was he didn't closely analyze commissions that these people made really weren't commissions at all because they had no chance to grow their income they were restricted to in the amounts that they said they sold i think he was overly impressed with the christopher decision by the supreme court which in our opinion really it's not very analogous at all it's it are mostly tickle that's the pharmaceutical case that was kind of us we generis situation where the they talk about the term sale being broad and that was because by law the pharmaceutical reps couldn't sell but they were doing everything they could to persuade the doctor to later prescribe so the supreme court felt that in that situation they had to define it broadly frankly that case is primarily concerned about whether or not deference should be given to the the agency interpretation and that's the the issue that they address first investor is not an issue on the commission point these i mean this is the percentage method of determining compensation but if you if you view the definition kind of a loose definition of commission as involving a commission on actual sales this would not be a commission on sales that would be a calculation based on a lot of different complicated factors have to do with how much product is moving on and off the sale yes ma'am yes ma'am they really it's not because of their sales efforts that they were able to increase their commission really had to do with the their customers the grocery stores and what was popular with the grocery stores customers so there was a disconnect there and if you're correct it's really not if you tell the independent stores well the independent stores that's a different issue your honor but as the evidence is in this case our plaintiffs tell the overwhelming majority of their time with the chain stores of the stores where they had these planted grams they were allowed to sell but yes the independent stores were a small percentage ten percent there they were entitled to they were allowed to w evidence what percentage the independent stores work or is that figure the only thing in the record on the there is some conflicting evidence because the defendant took depositions of about ten of our that's correct your honor that's correct but they did they did actually say out to independents themselves they had an opportunity to they said the independents were a small part of their time a small part of their income a lot of the independence didn't have room but yes they they were allowed to do that but they were working with regard to myer they were considering days a week their primary time was spent stocking shelves dusting doing all the other activities  besides even filling out orders and it is our position that that was their primary duty was who was servicing the stores on behalf of casey to make sure that the plan my time's up they may have said that the evidence is they said hello these store managers had no with or you do in the an independent india in the chain stores to buy anything without your questions or that needs to be resolved there is no factual situation that needs to be resolved here your honor it is clear that there are undisputed facts there's not a single dispute anywhere in the record as to what the job duties of these sales representatives was that is that is undisputed and throughout plaintiff's briefs they talk about there being disputed facts but it but they don't actually ever say what those disputed facts are the real issue for them then is the conclusions that the judge drew from the undisputed facts there's no dispute that these individuals work from their homes they work outside and away from from katie's offices that they are one of their primary duties which they themselves say was to write orders for additional product at their customers locations for later delivery that's that's very important because under the regulations the fact that they wrote the first one is no i don't believe that the fact that there is someone else in the company who is responsible for helping to promote a product the marketing department the customer development team has anything to do with overarching environment through which they could sell their product they were just don't settle for that they were not responsible who are approaching the store and saying would you like to buy products from our company or this particular product they their role was to go into the store to walk the aisles in this is go see your first question whether this was a ministerial function it was anything but a ministerial function because it took some of them perhaps a five hours to do this because now it's referring was the writing of the orders i understand that but in order to prepare that order they had to walk the aisles oftentimes you ask this question of plaintiffs oftentimes with a grocery manager or with the distinction and the regulations between ordering additional product which is actually what the regulations says additional there's a there's a distinction in ordinary english but there's no dislike is there i realize there's a distinction in the regulation or not the regulation does an affirmative leave a literary the distinction in ordinary english between ordering and selling what i think your honor is that the regulation and the comments that the deal has made to those regulations has made it very clear that ordering if you were consummating the sale that is a sales function and where christopher the supreme court decision comes and conjunction with their sales function which is exam beating a delivery man is a sales putting the promotion work that they work to do in conjunction with the sales that they were responsible for that is exempt and that the that the the congress did not in fact limit that definition in the ways that the that the plaintiffs are trying what your other well is ok with and my point there is not just with respect to pharmaceutical sales that is with respect to the entire definition of the word sale under the fair labor standards act which is very important here the second case is ackerman the coca cola case out of the tenth circuit in that case there were salespeople and they call them both sales representatives also account managers who did functions that were very similar to what the plaintiffs here do they went to stores they replenished product they wrote after shelf and put new stock on to the other guy there wasn't a discussion in that particular case is whether they were planted dams but playgrounds have existed in the in the grocery industry for a very long time this is not something new to the grocery industry and in fact in their depositions the plaintiffs talked about the fact that plan a plan or branch is nothing new for these chain stores without a plan or it would be utter chaos the score at the store needs to know where its products are and where they're going that is that's not anything t were drivers who sell which is who are very different than outside sales people who do not drive and deliver a product the regulations have very specific  r very specific when it comes to what a driver who delivers product has to do in order to qualify as outside sales person that's not the situation those are not these people the other big distinction with a lot of there is where they don't deliver the product directly meet the driver for your car you know because i believe the dio i was concerned with the fact that one of the primary duties of a driver is to actually drive and deliver the product that is not the circumstance here so in that circumstance i wanted to be sure that there were appropriate controls in place so that the distinction between someone who merely drives and delivers can be made between that person and someone who who is engaged in sales activities one of the major points i believe that was in hobson is that the court actually looked at the fact that the orders that the  so livery people actually wrote often times were written the night before so not at the customer's place of business but were written the night before and then delivered to the warehouse of the people who  put the put the items on the truck and that's a very big distinction because one of the requirements for an outside sales person is that they perform the sales function at their primary duty at the customer's place of business and so they didn't do that in that case they did not do that by and large at least that restocking of coca cola products well the grocery store was like a little what's happening here it's not just restocking ordering is is a very important function in the  a chain store and that sales person was the one responsible for writing the orders that salesperson then consummated the sale for purposes of the outside sales exemption not the person who's doing the preliminary work talking to the store these more difficult situations and one of those scenarios was one that i just that i just talked about where in fact the company's representative here the wholesaler the distributors representative was with the manufacturer's representative the manufacturer representative was someone who would talk to the sales to the store people trying to get them to commit to buy their product but if that wholesalers representative was the one who wrote that order the dio l's comments say that's the person who quote consummated the sale for purposes of the outside sales exemption and it was in furtherance of bear own sales then that that any of the preliminary work was done case out there where the salespeople in fact wrote the orders were responsible for a walk in the aisles and in writing those orders and later transmitting those orders ok where they were not found to be outside sales particularly point of basnet that if the plaintiffs did not come to consummate the sales at these stores there would be no revenue either to keiki or to the plaintiffs themselves in the forms of commissions so  consuming task to it could be it could be although these folks were permitted to hire stockers so they did not have to do that task if they did not want to they did not have to do the re the facing and the dusting they didn't have to do that if they didn't want to do it they could have may want to eat well but that would free them up to do other to do other types of sales activities if they so chose that was it just that was a choice that they made and k he's commission plan permitted them to do that i also say that there is no dispute by the plaintiffs that they were selling for purposes of their independent stores with a commission plan with the exception of an additional one percent for promotional marketing was identical for the for the independent stores so this is this distinction between the players are trying to make here that somehow the commission plan because this is specifically delineated here sometimes we somehow means it is not in fact a commission that is a percentage of the total contract no they were not but that is not uncommon for any industry that that that is this large that that's not an uncommon thing there's nothing in for example the supreme court case that said that one of the indeed an outside sales person is whether they get to set the price and negotiate the contract and do all these things which is not even realistic for some of these multibillion dollar companies of course there's going to be an overarching distribution contract and in these stores are going to have requirements that meet account managers and others to help to to help facilitate that but that in no way means that the plaintiffs themselves have not consummated the sales particularly when if it were not for them he wouldn't make any money and that they are compensated only for the sales in their own stores and not take he corporate their own stores it's a bare sales that they have that they have made and they have made commissions on those sales were exempt outside sales when because they were persuading the stores to which they were selling to buy more coke to buy additional coke so that's what convinced the court in that situation they were in simply restocking but they were actively persuading the their customers to to buy bore and that's the distinction between ackerman and what we have here the other situation that i found interesting that we had this discussion with the court about whether or not the driver salesman regulation has any pertinence to this you recall that she mentioned that ackerman was a case that was in her favor that's a driver outside driver salesman situation so the distinction between ackerman and what we have here is not only that she on one hand says the that particular regulation doesn't apply but in her view would use in her regard to the compensation scheme they view restocking is much more important than what the the amount of money was paid for filling out orders how often did the salesman who started the business with that particular change store did they come back or did they communicate with the store later or did your clients all come back and fill out orders well your honor i'm not sure i understand the question the situation is this that ok he would have account managers who would persuade they'd have an account manager for each of large chains and they would set up the plan to graham's they would determine what the price is in the amount of product on the shelf and our people the service reps would simply come in afterwards make sure that the shelves looked like that plan a gram each day in other words if there were a lot of product that was purchased they would make sure it was replenished so there was communication between the account managers and the chain store buyers in a level up far above what our service reps and the managers of that particular store were involved is that in your question and i just wonder if the store decided they want communicate and get more product the buyers on a level above what the store manager was on the customer side would communicate with the account managers and a level above what our service reps were management yes ma'am is there anything they were doing in addition to that well of course they were dusting they were rotating products so that it was outdated they would take it off the shelf i  would like to stand on our briefs i think that the most recent decision that this court came up with in two thousand and thirteen the ogden case address is that can't the case law is clear you can't contract away your fairly standard act of rights and we believe the right to collective action can't be contracted away the interpretation of the department of labor under the fair labor standards ac with the courts are trying to balance two competing federal policies are you the labor policy and the arbitration policy that not this case there is no arbitration policy federal arbitration policy issue here all you have is the labor policy