PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CANDACE FOX; ANTHONY GILLESPIE; CHARLES SCHRECKENBACH, Plaintiffs Counter Defendants – Appellees,

v. TRANSAM LEASING, INC.; TRANSAM TRUCKING, INC., Defendants Counterclaimants – Appellants. No. 15-3203

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:12-CV-02706-CM-GLR)

________________ _________________ Christopher M. McHugh (Shannon D. Johnso n and Kendra D. Ha nson with him on the briefs), Seigfreid Bingham, P.C., Kans as City, Missouri, for Defendants Counterclaimants-Appellants. Gregory Leyh, Law Office of Gregory Leyh, P.C., Gladstone, Missouri (Richard F. Lombardo, Kathleen K. Woods, Gregory P. Forney, and Daniel M. Runion, Shaffer Lombardo Shurin, Kansas City, Missouri, with him on the brief), for Plaintiffs Counter Defendants-Appellees.

________________ _________________ Before BRISCOE , EBEL , and BACHARACH , Circuit Judges.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### October 18, 2016
Elisabeth A. Shumaker Clerk of Court2 EBEL , Circuit Judge.

________________ _________________ Plaintiffs, three independent truckers representing themselv es and a class of similarly situated truck drivers (“truc kers”), contend that Defendants TransAm Trucking, Inc. and TransAm Leasing, Inc. (collectively “Trans Am”) violated the Department of Transportati on’s truth-in-leasing regulati ons by requiring the truckers, who lease their trucks and driving servic es to TransAm, to pay TransAm $15 each
week to use TransAm’s satell ite communications system. Th is $15 usage fee violates 49 C.F.R. § 376.12(i), whic h precludes a motor carrier like TransAm from requiring a trucker “to purchase or rent any products, equipment, or se rvices from the authorized carrier as a condition of entering into the le ase arrangement.” We , therefore, affirm partial summary judgment fo r the truckers. That ruling will support the truckers’ requests for injunctive and declaratory relief. But the truckers al so asserted a claim for damages, which the district court certified as a class action. Because the truckers failed to present a ny evidence of their damages resu lting from the unlawful usage fee, however, the district cour t should have entered summary judgment for TransAm on that damages claim. Havi ng jurisdiction under 28 U.S.C. § 1292(b), therefore, we AFFIRM the district court in part and REVERSE in part. I. BACKGROUND A. Department of Transportation ’s truth-in-leasing regulations Congress regulates leases between i ndependent truckers and federally regulated motor carriers like TransAm, requiring, among othe r things, that the leases3 be in writing and specify their duration and the compensation that the carrier will pay the trucker. See 49 U.S.C. § 14102(a); see also Owner-Operator Indep. Drivers Ass’n, Inc. v. Swift Transp. Co., 632 F.3d 1111, 1113 (9th Cir. 2011). Congress has tasked the Department of Transportati on (“DOT”) with further regulating these leases; the DOT does so through its Federa l Motor Carrier Safety Administration and its truth-in-leasing regulati ons, 49 C.F.R. Pt. 376. S ee Swift Transp., 632 F.3d at
1113. 1 The truth-in-leasing regul ations protect independe nt truckers from motor carriers’ abusive leasing prac tices. See Owner-Operator Inde p. Drivers Ass’n, Inc. v. Comerica Bank (In re Arctic Express Inc. ), 636 F.3d 781, 795 (6th Cir. 2011); Global Van Lines, Inc. v. ICC, 627 F.2d 54 6, 547-48 (D.C. Cir. 1980); Lease and Interchange of Vehicles, 42 Fed. Reg. 59, 984 (Nov. 23, 1977). Thus, the objectives of the regulations are to promote truth-in-leasing—a full di sclosure between the carrier and the owner-operator of the elements, ob ligations, and bene fits of leasing contracts signed by both parties; . . . to eliminate or reduce opportunities for skimming and other illegal or inequitable practices by motor carriers; and . . . to promote the st ability and economic welfare of the independent trucker segment of the motor carrier industry.

1 Congress initially regulated leases between independent truckers and motor carriers through the Interstate Commerce Comm ission (“ICC”) until 1996, when Congress abolished that agency, see Rivas v. Ra il Delivery Serv., Inc., 423 F.3d 1079, 1082 (9th Cir. 2005), and transfe rred the responsibili ty for regulating these leases to the DOT, see Owner-Operator Indep. Drivers Ass’ n, Inc. v. New Prime, Inc., 339 F.3d 1001, 1006 (8th Cir. 2003). While the I CC originally enforced the truth-in-leasing regulations against carriers, when Congres s abolished the ICC, Congress chose to enforce the regulations instead by providing truckers with a private cause of action against carriers for violati ng those regulations, see 49 U. S.C. § 14704(a). See also Swift Transp., 632 F.3d at 1113.4 In re Arctic Express, 636 F.3d at 796 (internal quotation ma rks, alterations omitted); see also Lease and Interchange of Vehicles, 43 Fed. Reg. 29,812 (July 11, 1978). B. This litigation This case involves allegations that Tr ansAm has undertaken abusive practices that the truth-in-leasing regul ations preclude. Plaintiffs, three independent truckers, sued TransAm on behalf of themselves and a ll similarly situated truckers. The truthin-leasing claim at issue here is but one of a number of clai ms that the truckers have asserted against TransAm. As a general overview of this li tigation, the truckers have alleged that TransAm recruited independ ent drivers by falsely representing, among other things, how much money drivers coul d make as independent truckers leasing their trucks and driving services to Tr ansAm, rather than driving as TransAm employees; once recruited, Tran sAm leased semi-tractors to the independent truckers, with an option for the truckers eventually to buy their vehi cles; the truckers in turn leased the vehicles, plus thei r driving services, back to Tr ansAm; and, contrary to its promises, TransAm limited the amount of mone y that the independent truckers made. Based on these allegations, the truckers asserted two claims alleging that TransAm had violated the Kansas C onsumer Protection Act by making false representations to the truckers to entice them to contract with TransAm, and thirteen claims alleging that the terms of TransAm’ s standard agreement to lease truckers’5 vehicles and driving services violated the DOT’s truth-in -leasing regulations. 2 TransAm, in turn, asserted c ounterclaims alleging that the truckers had breached their contracts with TransAm. The only claim at issue in this interlocut ory appeal is the truckers’ claim that TransAm violated the truth-in-leasi ng regulations—specifically 49 C.F.R. § 376.12(i)—by requiring the truckers to pay TransAm $15 each week to use TransAm’s satellite communications system. Such a system has a variety of uses in the trucking industry, incl uding providing a means of communication between the carrier and the truckers, rout e planning, keeping automated records of drivers’ hours and state fuel taxes, and m onitoring the temperature of a ny refrigerated trailer being hauled. TransAm purchases its sa tellite communications sy stem from third-party vendors. According to Tran sAm, it pays $25 per week pe r driver for its system. In order to access TransAm’ s system, TransAm’s standa rd lease requires that a trucker’s vehicle “must contain a satellite communications unit wh ich is compatible with Carrier’s satellite communications sy stem. If the Equipm ent does not have a

2 TransAm, then, has two lease arrangeme nts with the truckers: 1) Defendant TransAm Leasing, Inc. leased vehicles to the truckers, and 2) the truckers then leased their vehicles and driving se rvices to Defendant TransA m Trucking, Inc. TransAm Trucking is the parent company of Tran sAm Leasing. It is TransAm Trucking’s standard form lease agreemen t for the truckers’ vehicles and their driving services that underlies the truth-in-leasing claim at issue in this cas e. Nevertheless, throughout this litigation, the parties and the district court have treated the two TransAm business entitie s as one. Thus, we have not distinguished between them in this opinion.6 compatible satel lite communications unit, then Co ntractor [trucker] may borrow a compatible unit from Carrier during the term hereof.” (Aplt. App. 571 ¶ 1(b).) [R]egardless of whether the Contractor furnishes a comp atible satellite communications unit in the Equipmen t or borrows a compatible unit from Carrier hereunder, Contractor shall pay to Carrier a satellite communications system usage fee in the amount of fifteen dollars ($15.00) per week. Carrier may deduct any and all such amounts payable by Contractor under th is subparagraph 1(b) from the compensation otherwise payabl e to Contractor hereunder. (Id. (emphasis added); see also id. 578 ¶ 15(b) (further authorizing TransAm to deduct this $15-per-week usage fee from co mpensation TransAm owes the trucker).) Drivers who work as TransAm’s employees also use its sate llite communications system, but they do not pay a fee. The district court certified the class— all persons who since November 2, 2008, had leased trucks from TransA m and then leased their vehi cles and driving services back to TransAm—but only for the trucke rs’ claim challenging the $15 fee for using TransAm’s satellite communications system. The parties then file d cross-motions for summary judgment on that clai m. The district court gran ted the truckers’ motion for partial summary judgment on liability, ru ling the $15 fee violated 49 C.F.R. § 376.12(i). TransAm also moved for summary judgm ent, arguing among other things that, even if its $15 usage fee tec hnically violated § 376.12(i), the truckers could not prove they were entitled to damages as a result of that violation. The district court denied TransAm summary judgment on the question of damages. TransAm appeals both decisions.7 II. STANDARD OF REVIEW Rule 56(a), Fed. R. Civ. P., requires a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” We review the district court’s summary judgment decisions de novo. See United St ates v. Supreme Ct. of N.M., —F.3d—, 2016 WL 5946021, at *13 (10t h Cir. June 7, 2016). “Where, as here, we are presented with cross-motions for summar y judgment, we must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party’s favor.” Id. (internal quota tion marks omitted). III. DISCUSSION A. TransAm violated the truth-in-leasing regulations by requiring truckers to pay TransAm $15 each week to use Tran sAm’s satellite communications system The truckers’ claim challenging TransA m’s $15 weekly fee to use TransAm’s satellite communications system requires us to address the interplay between two truth-in-leasing regulations. The truckers contend that th is $15 usage fee violates 49 C.F.R. § 376.12(i). That regulation provides in pertinent part that [t]he lease shall specify th at the lessor is not requi red to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement. Not only must a carrier specify this in its l ease agreements, but th e carrier must also “adhere[] to and perform[]” this lease provi sion, id. § 376.12; th at is, the carrier cannot actually require truckers “to purchas e or rent any produc ts, equipment, or8 services from the authori zed carrier as a condition of entering into the lease arrangement.” 3 In defending its $15 usage fee, TransA m relies on a second truth-in-leasing regulation, 49 C.F.R. § 37 6.12(h), which states: Charge back items. The lease shall clearly specify all items that may be initially paid for by the authorized carrier, but ultimately deducted from the lessor’s compensation at the time of payment or settlement, together with a recitation as to how the amount of each item is to be computed. The lessor shall be afforded copi es of those documents which are necessary to determine the validity of the charge. As explained below, § 376.12(i) provides, in part, a substantive restriction on the terms a carrier can include in it s lease with independent truckers. Section 376.12(h), on the other hand, imposes disclosure and documentation requirements for fees that the carrier may permissibly deduct from the compensation it owes a trucker. 1. TransAm’s $15 fee vi olates § 376.12(i) TransAm violated § 376.12(i) because it required truckers to purchase a service—the use of TransA m’s satellite communications system—as a condition of entering into a lease arrange ment. More specifically, Tr ansAm required truckers to pay TransAm $15 each week to use TransA m’s satellite communications system, regardless of whether the tr uckers borrowed the hardware to access that system from

3 See Al-Anazi v. Bill Thom pson Transp., Inc., No.15-cv -12928, 2016 WL 3611886, at *4-5 (E.D. Mich. July 6, 2016); Mervyn v. Nelson Westerberg , Inc., 76 F. Supp. 3d 715, 718-19 (N.D. Ill. 2014) (citing Owner-O perator Indep. Driver s Ass’n. Inc. v. Mayflower Transit, LLC, 615 F.3d 790 (7th Cir. 2010)); Owner-Operator Indep. Drivers Ass’n, Inc. v. Ledar Transp., No . 00-0258-CV-W-FJG, 2004 WL 5249148, at *7 (W.D. Mo. Dec. 30, 2004) (unreported).9 TransAm or furnished it themse lves. We agree with the district court that, while TransAm can require trucke rs to use a satellite co mmunication system, TransAm “cannot under § 376.12(i) require its independent contractors to purchase or rent this system from it” (Aplt. App. 1018). In stead, truckers “must have the option of obtaining equipment or services—including satellite communica tions services—from an outside source.” 4 (Id. (citing Lease & Intercha nge of Vehicles, 129 M.C.C. 700, 729-30 (I.C.C. 1978)); cf. Port Drivers Fed’n 18, Inc. v. All Saints, 757 F. Supp. 2d 463, 467 (D.N.J. 2011) (holding lease that required truc kers to carry worker’s compensation insurance, but gave truckers the option of buying it from the carrier or a third party did not violate § 376.12(i)). 5 Our conclusion that TransAm’s requiri ng truckers to pay it $15 each week to
use TransAm’s satellite comm unications system violated 49 C.F.R. § 376.12(i) is bolstered by the history and purpose of the truth-in-leasing regulations. See Swift Transp., 632 F.3d at 1116-18 (looking, in applying another truth-in-leasing

4 TransAm does not argue that trucke rs cannot obtain their own satellite communications system, but only that it would be prohibitively expensive for them to do so.

5 See also Davis v. Larson Moving & Stor age Co., Civ. No. 08-1408 (JNE/JJG), 2008 WL 4755835, at *7-8 (D. Minn. Oct. 27, 2008) (unreported) (holdi ng allegations that carrier required truckers to buy uniforms from the carrier st ated claim for violation of § 376.12(i)); Tayssoun Transp., Inc. v. Universal Am-Can, Ltd., No. Civ.A. H-04- 1074, 2005 WL 1185811, at *18-19 (S.D. Tex. Apr. 20, 2005) (unreported) (holding carrier’s requirement that trucker pay it $5 per trip for cargo insurance violated § 376.12(i)); Ledar Transp., 2004 WL 52491 48, at *7 (holding ca rrier’s requirement that truckers buy “insurance products” from ca rrier violated § 376.12 (i)); id. (holding carrier’s requirement that tr uckers “purchase repair serv ices” from carrier violated § 376.12(i)). These cases, plus the cases discussed in the te xt, appear to be all of the cases applying § 376.12(i) to alleged forced purchases from a carrier.10 regulation, to regulation’s plain language, as well as its purpose and regulatory history). Congress authorized the truth- in-leasing regulations after a series of hearings in the 1970s “uncovered numerou s problems and abuses suffered by the independent truckers.” In re Arctic Express, 636 F.3d at 795. “Congress’s substantive purpose in authorizing the Trut h-In-Leasing regulations was to protect” independent truckers, id. (internal quotation marks omitted), “to remedy disparities in bargaining positions between independent owner operators and motor carriers,” Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime, 398 F.3d 1067, 1070 (8th Cir. 2005), to address many of the “inequ ities in the lessor/le ssee relationship” between carriers and independ ent truckers, Lease and In terchange of Vehicles, 42 Fed. Reg. 59,984 (Nov. 23, 1977), and to “eliminate or reduce opportunities for . . . illegal or inequitable practices by motor carriers,” In re Arctic Express, 636 F.3d at 796 (quotation omitted). Precluding a carri er from requiring a trucker to purchase products, equipment, or serv ices from it as a condition of entering into a lease with the carrier eliminates the opp ortunity for “unscrupulous car riers . . . to take unfair advantage” of truckers, but otherwise leaves the trucker and carr ier free to negotiate the terms of their lease. Lease and In terchange of Vehicles , 129 M.C.C. 700, 729-30 (June 13, 1978) (addressing predecessor proposed I.C.C. regulation, 49 C.F.R. § 1057.12(j)). Truckers, then, must be free to purchase products, equipment, and services from someone other th an the carrier, but a trucke r with that option can still choose to purchase or rent the product, equi pment, or service fr om the carrier. See11 id. This restriction on a carrier requiri ng a trucker to purchase or rent products, equipment, or services is “all inclusive.” Id. For the foregoing reasons, then, we conc lude that the provision in TransAm’s standard lease requiring truckers to pay it $15 each week to use TransAm’s satellite communications system viol ates § 376.12(i). 2. Section 376.12(h) does not validate TransAm’s $15 usage fee In defending its requirem ent that truckers pay TransAm $15 each week for using TransAm’s satellite communications sy stem, TransAm argues that this fee is lawful because it complies with anothe r truth-in-leasing regulation, 49 C.F.R. § 376.12(h). As previously mentioned, that regulation provides that “[t]he lease shall clearly specify all items that may be initially paid for by the authorized carrier, but ultimately deducted from the lessor’s compensation at the time of payment or settlement, together with a recitation as to how the amou nt of each item is to be computed.” Id. In additi on, that regulation provides that “[t]he le ssor shall be afforded copies of those documents which are necessary to dete rmine the validity of the charge.” Id. Section 376.12(h) addresses a different abusive practice th an § 376.12(i). Section 376.12(i), on which the truckers rely, prevents a ca rrier from forcing truckers to purchase or rent products or services from the carrier rather than having the option of purchasing or renting thos e products or services fr om someone else. Section 376.12(h), on the other hand, precludes a motor carrier from unexpectedly reducing truckers’ compensation through unexplaine d deductions from their pay by requiring12 carriers to specify in the lease what fees the carrier will deduct from truckers’ compensation and further to explain at the outset of the lease arrangement how much any deduction will be or, if the deduction will vary from time to time, how that deduction will be calculated. See Swift, 632 F.3d at 1115 (“One way to ensure carriers do not take advantage of lessors is to mandate that carri ers disclose the full costs that lessors will be oblig ated to pay up front. This prevents carriers from hiding fees until the charges have already been incurred and allows lessors to make informed decisions about where to seek products and services.”). Section 376.12(h) does not purport affirm atively to authorize a carrier to deduct any particular fee. Instead, it addresses the procedures and disclosure requirements by which the carrier can deduc t an authorized fe e from the truckers’ compensation. Section 367.12 (h) applies to “all items that may be initially paid for by the authorized carrier, but ultimately deducted from th e lessor’s compensation at the time of payment or settlement” (empha sis added). An item “may be” deducted if the terms of the lease so provide and the deduction does not violate any other substantive truth-in-leasing regulation (such as § 376.12(i )), so long as the lease clearly specifies that the fee will be deducted and explains how much the fee will be or at least how the fee will be calculat ed, and the carrier pr ovides truckers with adequate documentation of the fees charge d back to them. See Swift Transp., 632 F.3d at 1115-21; Owner-Operator Indep. Driv ers Ass’n, Inc. v. Landstar Sys., Inc.,13 622 F.3d 1307, 1320-21 (11th Cir. 2010). 6 Section 376.12(h) is a provision requiring disclosure and documentation of permis sible fees, whereas § 367.12(i) imposes substantive restrictions as we ll as disclosure requirement s on what fees a carrier can impose on truckers in the first place. Section 376.12(h), th en, is not in tension with

6 Cases applying § 376.12(h) illustrate that this regulation addre sses the disclosures the carrier must make and th e documentation the carrier must provide regarding the amount of a fee to be charged back to the trucker, rather than addressing the permissible subject matter of th at fee itself. See, e.g., Po rt Drivers Fed’n 18, Inc. v. All Saints Express, Inc., 757 F. Supp. 2d 443, 454-55 (D .N.J. 2010) (holding lease violated § 376.12(h) both b ecause it did not indicate how the amounts charged for “repairs or maintenance, ga soline, fuel, oil, labor, tire s, insurance or merchandise” would be computed and because lease did “not include a pr ovision that allows drivers to examine documentation regarding char ge-backs”); Brinker v. Namcheck, 577 F. Supp. 2d 1052, 1060-61 (W.D. Wis. 2008) (holding carrier violated § 376.12(h) by not clearly specifying th e charges in their leases for dr ug tests, license fees and cargo and liability insurance); Owner-Operator Indep. Drivers Ass’n, Inc. v. C.R. England, Inc., 508 F. Supp. 2d 972, 981 (D. Utah 20 07) (holding carrier violated § 376.12(h) by not clearly specifying charge backs for su ch things as fuel, repairs, tires, and administrative fees, by faili ng to explain how the amount of those charge-backs was to be calculated, and by failing to provide truckers with “copies of documents necessary to determine the validity of the charge-backs”); Own er-Operator Indep. Drivers Ass’n, Inc. v. Ledar Tran sp., No. 00-0258-CV-W-2-ECF, 2000 WL 33711271, at *1, *10 (W.D. Mo. Nov. 3, 20 00) (unreported) (granting preliminary injunction on claim alleging that carrier violated § 376.12(h) by not clearly specifying fees for “advances for fuel and truck repairs, insurance, damaged trailer equipment, truck lease payments, escrow fund deposits, licen se fees, fuel and highway use taxes, Qualcomm communicati ons systems, cash advances, etc.”). Further, viewing § 376.12(h) as stating di sclosure and documentation requirements is consistent with other provi sions of the truth-in-leasi ng regulations, which mandate similar procedural protections and disclosu re requirements for tr uckers by requiring, e.g., that the lease specif ies when the lease term be gins and ends, 49 C.F.R. § 376.12(b); clearly states th e compensation that the carrier will pay the trucker, id. § 376.12(d); specifies which party is res ponsible for removing id entification devices at the end of the lease, id. § 376.12(e); “c learly specif[ies] the responsibility of each party with respect to the cost of fuel, fuel taxes, empty mi leage, permits of all types, tolls, ferries, detention and accessorial services, base pl ates and licenses, and any unused portion of such items,” id.; and sp ecifies who is respons ible for loading and unloading the vehicle and the comp ensation, if any, to be paid for that service, id.14 § 376.12(i), and it does not authorize TransA m to require truckers to pay a fee to purchase use of TransAm’s satellite communications sy stem in violation of § 376.12(i). 3. The Seventh Circuit’s decisi on in Mayflower is inapposite For the first time on appeal, TransA m relies on Owner-Ope rator Independent Drivers Association, Inc. v. Mayflower Transit, LLC, 615 F.3d 790 (7th Cir. 2010), to argue that § 376.12(h) permits TransAm to pass along its expenses for the satellite communications system to the truckers . But Mayflower is inapposite. Mayflower addressed payments for liabi lity insurance wh ich the carrier, by law, is required to purchase. 615 F.3d at 791. More specificall y, the carrier must provide liability insurance for any vehicles it uses to trans port freight, including vehicles it leases from i ndependent truckers. Id. (c iting 49 U.S.C. § 13906; 49 C.F.R. § 376.12(j)(1)). The carrier in Mayflower passed on to its independent truckers the expense the carrier incurre d in purchasing this required liability insurance. Id. Truckers argued that, by doing so, the carrier violated 49 C.F.R. § 376.12(i) because the carri er was, in essence, forc ing truckers to buy liability insurance from the carrier as a condition of entering into a lease with Mayflower. Mayflower, 615 F.3d at 791, 793-94. The Seventh Circuit rejected the truckers’ characterization of the carrier ’s transferring of its expens e in purchasing the required liability insurance to the truc kers as forcing them to pur chase liability insurance from the carrier, contrary to § 376.12(i). Ma yflower, 615 F.3d at 793. The Seventh Circuit further concluded that the carrier could charge truckers for the carrier’s15 expense in purchasing liability insurance, distinguishing between a carrier requiring a trucker to purchase services and products from a carrier, which the carrier cannot do under § 376.12(i), and a carrier transferring some of its required insurance costs to truckers, which a carrier can do. 615 F.3d at 793-94. Mayflower, then, addressed whether a car rier could pass along to truckers the carrier’s own cost of purchasing require d liability insurance. The carrier in Mayflower was not compelling truckers to purchase insura nce that they could obtain elsewhere. In fact, the ca rrier was the entity required to obtain the insurance, and Mayflower only addressed the propriety of allocating those expenses between the carrier and the truckers. Here, on the other hand, truckers challenge TransAm requiring them to purchase acce ss to a satellite system from TransAm, when truckers could instead purchase that sa me service from another entity . It is those compelled purchases that § 376.12 (i) prohibits. Importantly, Mayflower also held that another truth-in-lea sing regulation, 49 C.F.R. § 376.12(j)(1), expressly permitted the carrier to charge b ack to truckers the carrier’s cost of providi ng liability insurance. 615 F.3d at 793-94. Section 376.12(j)(1) provides: The lease shall clearly specify the legal obligation of the authorized carrier to maintain insu rance coverage for the protection of the public pursuant to [Federal Motor Carrier Safety Administration] regulations under 49 U.S.C. 13906. The leas e shall further specify who is responsible for providing any other in surance coverage for the operation of the leased equipment, such as bobtail insurance. If the authorized carrier will make a charge back to th e lessor for any of this insurance, the lease shall specify the amount wh ich will be charged-back to the lessor.16 The Court in Mayflower interprete d the third sentence of this regulation—“[i]f the authori zed carrier will make a ch arge back to the lessor for any of this insurance, the lease shall specify the amount which will be charged-back to the lessor, ” id.—specifically to author ize a carrier to charge back to truckers the carrier’s cost incurred for buying the required liability insurance. See 615 F.3d at 793-94. By contrast, here there is no regulatory authorization for a shipper to pass sate llite and communications costs down to the truckers. 7 For the foregoing reasons, the district court correctly granted the truckers partial summary judgment, holdi ng that TransAm’s requirement that truckers pay it a $15 weekly fee to use Tran sAm’s satellite communications system, as a condition to entering into a lease arrangement with TransAm, violated § 376.12(i). B. The district court erred in denying TransAm summary judgment on the truckers’ claim for damages resulting fr om TransAm’s § 376.12(i) violation In addition to seeking declaratory and injunctive relief, th e truckers also sought money damages for TransAm’s viol ation of 49 C.F.R. § 376.12(i). See 49 U.S.C. § 14704(a)(2) (“A carrier . . . is li able for damages sustained by a person as a result of an act or omission of that carrier . . . in violati on of this part”). It was the

7 TransAm, for the firs t time on appeal, attempted to ar gue that the weekly charge to truckers was only an economic adjustment of its costs, a nd not a required purchase. That argument is inconsistent with the characterization Tr ansAm made to the district court and, further, we will not address argum ents raised for the fi rst time on appeal, see Anderson v. Spirit Aerosystems Hold ings, Inc., 827 F.3d 1229, 1238-39 (10th Cir. 2016).17 truckers’ burden to prove their actual da mages, see Landstar Sys., 622 F.3d at 1324; that is, that they suffered monetary harm from TransAm’s requiring the truckers to pay TransAm $15 each week to use TransA m’s satellite communications system instead of giving the truckers the option of purchasing that service elsewhere and not paying TransAm’s $15 weekly fee, se e Swift Transp., 632 F.3d at 1122. TransAm moved for summary judgment, arguing, among other things, that even if TransAm’s $15 weekly fee violated § 376.12(i) (as it does), the truckers failed to assert any evidence that they suffered any actual damages as a result of that violation. The district court e rred in rejecting that argument. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis adde d). As the movant, it was TransAm’s “initial burden of making a prima facie demonstration of the absence of a genuine issue of material fa ct and entitlement to judgment as a matter of law.” Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Ci r. 2016) (internal quotation marks omitted). Where, as here, however, th e movant (TransAm) “does not bear the burden of persuasion at trial, ” it “may satisfy [its summary-judgment] burden by pointing out to the co urt a lack of evidence on an essential element of the nonmovant’s claim.” Id. (i nternal quotation marks omi tted). TransAm met this burden by arguing in its summary judgment motion that the truckers put forth no evidence that they suffered actual damages as the result of TransAm’s violation of § 376.12(i).18 The burden then shifted to the non-movi ng truckers “to set forth specific facts from which a rational trier of fact could find for” them on their damages claim. Collins, 809 F.3d at 1138 (internal quotation ma rks omitted). “To satisfy this burden, the nonmovants [truckers] mu st identify facts by referen ce to affidavits, deposition transcripts, or specific exhi bits incorporated therein.” Id. (internal quotation marks omitted). “These facts must establish, at a minimum, an inference of the presence of each element essential to the case.”

7 F 8 Id. (internal quotation marks omitted). The truckers failed to meet this burden with regard to their claim that they suffered actual damages as a result of Tran sAm’s § 376.12(i) violation. In fact, the truckers did not even try to meet their bur den. Nor did they posit a theory of how they would be entitled to damages. Inst ead, in response to TransAm’s motion for summary judgment, the truckers simply asserted: Defendants’ arguments regardi ng damages are premature. Plaintiffs can and will put on evid ence regarding damages at time of trial. Defendants’ attempts to require Plaintiffs to es tablish damages at a summary judgment phase is incorrect. Plaintiffs are entitled to seek summary judgment on liability only—es pecially when lia bility is as clear-cut as it is here—leaving da mages for another day. Defendants point to nothing that establishes Plaintiffs cannot establish damages

. . . . (Aplt. App. 927.) The truckers make the same argument again on appeal.

8 The truckers contend that evidence of actual damages is not “an essential element” of liability for violating § 37 6.12(i). We need not addres s whether that statement is correct, however, because TransAm does not app ear to assert that particular argument on appeal. Instead, TransAm argues more generally that, if TransAm violated § 376.12(i) (which it did), and if the tr uckers want to recover damages for the violation of § 376.12(i) (which they do), th en the truckers must come forward with some evidence of their da mages in order to oppose TransAm’s summary judgment motion successfully.19 Because the truckers did not try to meet their burden of proffering evidence to support their claim for damages in re sponse to TransAm’s motion for summary judgment, Rule 56(a) required the district court to grant Tran sAm summary judgment on that damages claim. See Swift, 632 F. 3d at 1122 (upholding summary judgment for carrier because truckers failed to produce any eviden ce that they had suffered any monetary loss from the carrier ’s violations of the trut h-in-leasing regulations). The truckers could have made other ar guments as to why it was premature for the district court to address their claim for damage s. For example, the truckers could have argued they needed additional discove ry in order to respond to TransAm’s motion for summary judgment on their damage s claim. See Fed. R. Civ. P. 56(d) (addressing when facts are as yet unavaila ble to the nonmovant to oppose summary judgment). The truckers succe ssfully made such an argum ent as to their individual claims for other violations of the truth-in-leasing regula tions, and they made that argument in the same pleading in which trucke rs asserted they did not yet have to put forth evidence of their damages stemming fr om the § 376.12(i) violation. But the truckers never made a Rule 56(d) argum ent regarding their § 376.12(i) damages claim. Thus, the district court erred in denying TransAm’s motion for summary judgment on the issue of damages. III. CONCLUSION For the foregoing reasons, we AFFIRM partial summary judgment for the truckers, upholding the distri ct court’s determination that TransAm violated 4920 C.F.R. § 376.12(i). But we REVERSE the district court’s decision to deny TransAm summary judgment on the truckers’ claim fo r damages resulting from that § 376.12(i) violation, and REMAND for further proceedi ngs consistent with this decision.