matter we would ask the court here reverse that decision the court uses a do no standard as it knows as well as the factual findings that judge the rash did find are given a clearly erroneous standard now here the issue is whether the transportation work or exemption of the federal arbitration act applies which examples certain seem in other transportation workers who are part of contract employment from arbitration at the underlying level the court found the district court found that plaintiffs were transportation workers this company final mile used to be called dynamics is a national company with locations all over the united states they arrange shipment of goods and then they provide the quote final mile delivery of those goods and that's what my my clients did here here's a question for you how is this case different from all the para which the supreme court recently decided is not different it is  recent united states supreme court decision that held that even contracts such as this that specify an independent contractor relationship are still considered contracts of employment under the f a a plaintiff's argument would be that that new prime versus all of their dictates that this court would have to reverse the district court's opinion because at the lower level the district court found because this was an independent contractor agreement it was not a contract  issues to consider with this exemption are are they transportation workers and are there contracts of employment that's an issue that has been and that's what new prime addresses is that's an issue that has been litigated from the very get go with  original motion to compel arbitration in fact both of our briefs and this appeal actually reference the new prime district court decision appellants my clients we cited it as well as the company here so the timing of it is what i think is tricky because the st circuits opinion came out three days before my reply brief was to it obviously touches on issue number two which is whether there's a contract of employment or not and so   cited to it so no i would argue that we did not waive that that has been an issue since since day one here i would also ask is but the situation in reverse let's say new prime said independent contractor agreements are not contracts of employment than the company here to a final mile would be arguing that case rightfully so it's binding united states supreme court precedent intervening precedent that has come out this court must follow all future district courts must follow when analyzing the transportation worker exemption did you did you file a twenty it's a letter that after the case came out from the supreme court no we there was a a motion to stay the case pending the appeal of new prime to the united states supreme court then the decision was had in this court set it for for oral argument so that is that the timing of how it broke down here so yes new prime is properly before this court at minimum i think the court would have to remand it to the district court to consider new prime but new prime is definitive doesn't leave open for interpretation that  issue of whether there is a contract of employment or not he are there any if we agree with you are there any section one issues left to be resolved at the district court level given how it previously decided the employee contractor issue not on that it should know that new prime wouldn't would definitively say that this independent contractor agreement subject to debating the merits of the f l s a claim later is  contract of employment b oh i got that right if we agree with you on that point are there any section one issues left for the district court on re man before it reaches the merits of the complete i don't thing for the district court only only this court would need to consider whether whether the district court's findings of fact that these plaintiffs were transportation workers was clearly erroneous is a class action or like it is a it is a putative collective action under the fair labor standard currently i represent seven individuals in this case your honor so it has to be opt in it is an opt in class we have not yet reached that point where a motion for conditional certification has been has been filed so the only thing that the district  to consider a new prime it's already found that these are transportation workers new prime says that independent contractor agreements by all are considered contracts of employment under the section one exemption testimony from the defendant here on that transportation worker issue itself they did not cite any cases that have said these types of workers are not transportation workers the subsequent caseload that has developed as this is kind of a newer area that's been developing in there here the last year or two as with the rise of these a good economy and all these independent contractor cases have have pretty uniformly held that these workers are and are in fact transportation workers are earlier this year in the western district of washington that core rule that amazon local drivers who go to again the final mile deliver of packages for amazon qualify for the transportation worker exemption even though classified as independent contractors very similar situation as here all the evidence before the district court and before this court is that these drivers are delivering goods that come from interstate commerce they're delivered from all over the country that come to local warehouses immediately picked up and then delivered to their final destination the case law from from this this court the united states supreme court and other district cour again uniformly hold that the flow of interstate commerce is what the court has to look at determine whether someone is in interstate commerce and cases from the waters case from the from the th circuit discusses that even if a trip is only within the state and it's part of an overall longer interstate trip the whole trip is considered interstate so here there is no reason to disturb the factual findings that the court did find on the transportation side of the matter and then because of the new prime decision these agreements by law have to be considered contracts of employment that has been the issue since day one on that issue right  is whether these are contracted employed it's all over the brief so all spare spiting twenty pages of discussions of the contracts of employment in this court should reverse the district court all right thank you very much holding good morning tempting as it would be for me to stand here and argue that the other side has waived its ability to rely on the very case i'm not sure that's the right result here i don't think we can ignore a supreme court case the six supreme court decision even though it came out sort of in the midst of the proceedings here so that that's a procedural issue obviously the court's going to have to make a determination on the issue of waiver i wanted to focus much more heavily though on the question of arbiter ability because i submit that the new prime decision has not closed the door for further consideration by the district court of whether or not this dispute is arbitrary and i'm going to focus on two main themes if i can st of all  driver of the supreme court decision even notes the fact both sides agree on that here we have a different situation at least potentially because the contract that's before the court it's part of the record in the case it's the independent contractor agreement signed by mr gates has some very unusual features that i don't think were present in the oliver case and while all of eric clearly and i agree with mr morgan it stands for the proposition that a contract of employment can include an independent contractor agreement can't really dispute that because the supreme court has decided it but what the supreme court didn't tell us is what are the contours of that decision think about the possibility that you have an individual who provide service to final mile but also simultaneously is working for many other companies is that individual actually a transportation a worker excuse me a worker similar to mr gates and in that regard i think it's important to look at the language of the contract that's before the court here and that i'm reading specifically from that contract it reads the parties understand that contract or that being mr gates offers its services equally to other companies contract carrier and or the public generally common carrier contract shall be free contractors shall be free to perform concurrent delivery services for companies other than dynamics that's the predecessor company to t it's been a while so we have a situation here where the contract itself says didn't even get into the issue of whether or not this individual was other than a worker a driver it was stipulated essentially that he was a driver for that entity he was a worker for that entity if in fact you are working for a lot of different entities and if in fact your contract says you don't have to take a job you can turn down any jobs you want and that's what this contract says then that's a significantly different situation you're not dependent on one company you're not a worker for that company you are instead an entrepreneur you're out there working for whatever company might wish to engage you and i think that's an important fact that has to be looked at when one is looking at the contours of the all the very decision likewise the the contract here has another interesting provision that i think is very pertinent specifically it says that mr gates himself doesn't even have to do any of the work and i point to its article it's section six b of the contract contractor need not perform any services personally but me hire or engage others as employees and their subcontractors to perform all are some of the contracted services so again this raises an interesting situation in the although very case mr all of vera clearly worked for a new prime it from the record in that case it appears he worked only for a new prime and he did the services himself the contract here says mr gates doesn't have to do any of the work himself he can get other people to do it for him that's a very different situation that's not a worker in the same sense as the court was considering in the olivia case so it can sub contractors that work to somebody oh absolutely a contract says he's free to do that and it's totally at his discretion but he's the one who gets the money he gets the money but he can turn around and contract out which is not an unusual scenario in the industry a lot of lot of that doesn't it doesn't fact occur i'm just throwing these facts out or these thesis in these particular provisions of the contract out in support of the proposition the district court has more work to do here is this a court has to look at the whole of your decision and then look at the contract before it and determine whether or not this fits within the scenario that was before the supreme court in all of your i have a nd main point i wanted to emphasize  three and he makes this observation in response to an argument that had been made by new prime the who which had felt the feel in the all a very case new prime it argued well even if you find that this is a contract of employment this independent contractor agreement is a contract of employment even if you make that finding you still need to take a look at whether there are other reasons why you  shouldn't force the arbitration for vision you know it's a bargain that the party struck maybe you shouldn't force it for that reason and justice corsets responds by saying we granted certiorari only to resolve existing confusion about the application of the f a a federal arbitration act not to explore other potential avenues for reaching a destination it does not in other words he's saying this decision deals strictly with what this contract of employment under is that all of attrition act mean it does not deal with whether or not disputes can be arbitrated for other reasons and here we have a couple of pretty compelling reasons why i think this decision in j o g a partners versus abrams properties and there is the court ruled where the contract clearly denominate the other party as an independent contractor and that relationship is presumed to be true unless the evidence shows that the employer assumed such control so here we have a scenario where the f a a as interpreted by the us supreme court has been interpreted to mean that independent contractor agreements are contracts of employment that's what supreme court held georgia appears to interpret its state arbitration laws to exclude contracts of employment but not to exclude independent contractor agreements such as the one here there are there's a strong basis for compelling arbitration under the georg that's an issue the district court needs to grapple with that's an issue that i think we have a right to brief fully brief and argue to the to the district court secondly the district court made a number of findings here about how the contract is and is written and what that contract means and those findings i think strongly support a nd reason why the court would wish to or should compel arbitration in this case and that is that these parties struck a bargain these parties when they entered into the agreement they both contemplated that they were having it that they would enter into an independent contractor agreement mr gates i think was providing service for this company for twenty some years in other words he knew what he was doing he knew he had entered into an independent contractor relationship he had year after year presumably filed his taxes on that basis taken detections on that basis as an independent contractor as you know one conduct all your expenses of operating the business in other words he was no babe in the woods who had somehow got you know stockard into a relationship that he didn't anticipate or didn't want he knew exactly what he was getting into the contract the independent contractor grimmett was very explicit about that the parties anticipated and wanted an independent contractor relationship to say all of that to about the new prime we don't know any of those specific things about the new prime case because i don't think those findings had been made below by the court  findings about the fact that there was the individual operated his own business was not under control of the principle and so i would say that those facts were not fleshed out certainly in the reported decisions in the new prime case i think they are relevant facts i think they should be examined they go to arbiter ability i mean there is certainly i think i know there was a reference to equity in the st argument today but equity i think has a role always and here if you have two parties with settled expectations over a long period of time and those expectations are that this is an independent contractor relationship and that disputes would be arbitrated it seems to me that's another factor that the district court needs to take into account i'm not suggesting here that the district court will necessarily reach one conclusion or another all i'm suggesting is that this court is certainly not in a position to make a final and binding determination that this is not arb arbiter ability you know in light of new prime i mean given the ruling in new prime to take another look at the issue of arbiter ability i'm urging that this court should not close that door this court should not say this case is not arbiter bill excuse me this argue waiver to you again i don't think that i can in good faith say to the court you should put your head in the sand and act as if the supreme court had ruled in all of era i mean it's a significant ruling and it does address the issues in this case mr morgan's right a contract of employment it was raised throughout the case so i think that the right result here is to let the district court take another run at the question of whether this case is over people taking into account all of the elements that i've just laid out all right thank you very much thank you very much  thank you i'm going to take the issues definit races in reverse and start with the georgia arbitration code argument the district court actually did address that it was an untimely argument raised in the reply at the lower court level by the defend it and if you look at page two hundred and three of the appendix the st paragraph of the lower court's order they said it was an untimely argument and it was waived this court has to utilize an abuse of discretion or  standard to overturn that so the district court did actually address the georgia arbitration code but let's let's go down this path that mr holds suggesting that even if this court wants to overturn that particular part of the court's decision and allow the district court to look at it there's still nothing to arbitrate here supreme court precedent is extremely clear that parties have to arbitrate according to their terms even a new prime quote while the court's authority under the f a a to compel arbitration may be considerable it isn't unconditional quote the parties private agreement may be crystal clear and require arbitration of every question under the sun but that does not necessarily mean the act authorizes a court to stay in litigation and set it to arbitration subsequently and lamps plus also decided two thousand and nineteen by the supreme court specifically said parties can agree to the rules by which they will arbitrate if you look at the actual agreement here which is starts at page fifty one of the appendix the arbitration provision section itself is page fifty nine  parties agreed to resolve the dispute as described in this the arbitration provision is governed by the federal arbitration act liason eva to the district court to make all these decisions they may very well come out with the result that you're saying but why would that be something that we decide rather than district court because the district court already ruled that that argument was waived that the georgia arbitration code argument was was waived certainly this this panel can affirm that part of the decision nd there's the legal matter from a legal perspective this arbitration agreement does not incorporate the georgia arbitration code in fact the most recent case that i'm aware of on this issue is a case from the new a could not apply because of the transportation worker exemption that the entire arbitration agreement is now void and so from a legal matter that is the same as here it briefly can only have one minute left i did want to address that to one other point that mr holder raised on further further discussion of new prime at the district court level new prime doesn't distinguish between whether one person works for one company two companies or not here you heard m worked for twenty seven years this is a full he's a full time employee he works for the final mile even if somebody worked for multiple companies under a new prime it's still a contract of work and a contract of employment nd the argument about he could have been working for others he could have had others doing the job they didn't make that argument at the district court level they could have they could have said look your honor he's also not a transportation worker because he didn't actually do the work but they did it they argued he was only involved mostly in inter state deliveries not start in trust a deliveries interstate deliveries so they didn't even make that argument below here you know the facts in the law before this court warrant a full reversal of the district court's opinion and find that