[00:00:00] Speaker 05: Brock versus Flowers Foods, number 23-1182. [00:00:11] Speaker 05: We'll close the back door. [00:00:13] Speaker 05: And counsel, you may proceed. [00:00:17] Speaker 01: Thank you, Your Honor. [00:00:18] Speaker 01: Tracy Lowe for the appellants, and may it please the court. [00:00:21] Speaker 01: As is clear from our briefs, we believe this case can be decided on either state or federal law grounds. [00:00:28] Speaker 01: But in light of the Supreme Court's intervening decision in Bissonnette, I'd propose, if you'd indulge me, to start on Bissonnette and its impact on this case and the FAA issues. [00:00:40] Speaker 01: So in our view, Bissonnette had two impacts. [00:00:42] Speaker 01: The first is it definitively decided the transportation industry argument that we advanced against us. [00:00:48] Speaker 01: We're no longer pursuing that argument. [00:00:51] Speaker 01: We agree that that's been disposed of by Bissonnette. [00:00:54] Speaker 01: But in disposing the transportation industry issue [00:00:58] Speaker 01: The court made crystal clear what it means to be a transportation worker. [00:01:03] Speaker 01: It doesn't matter what the employer does. [00:01:04] Speaker 01: It doesn't matter what the transaction is. [00:01:07] Speaker 01: What matters is the worker's work. [00:01:09] Speaker 01: And the court clearly articulated the test under Section 1 as the following. [00:01:15] Speaker 01: The worker must be, and now I'm quoting, actively engaged in transportation of goods across borders via the channels of foreign or interstate commerce. [00:01:26] Speaker 01: That's at 256. [00:01:28] Speaker 01: In addition, the court rejected our policy argument. [00:01:32] Speaker 01: We made the argument, and this was flour's spoons at the court, that we made the argument that without some sort of industry limitation, Section 1 would be expanded to include anybody who touched a good in its travel, because all goods travel through interstate commerce. [00:01:47] Speaker 01: And the court rejected the argument and said, we never intended Section 1 to be that broad, citing the exact language that I just quoted to you, also at 256. [00:01:57] Speaker 01: In our view, that limit resolves this case. [00:02:02] Speaker 01: Mr. Brock is in no way engaged in the transportation of goods across borders via the channels of interstate or foreign commerce. [00:02:12] Speaker 01: His relationship with the goods travel is exclusively local. [00:02:16] Speaker 01: In fact, it's even easier in our view than the last mile cases because Mr. Brock Inc. [00:02:23] Speaker 01: takes a title to the bread. [00:02:26] Speaker 01: It then resells the bread in its own separate transaction to local retailers. [00:02:32] Speaker 01: These are wholesale distributors. [00:02:34] Speaker 01: That's an industry. [00:02:35] Speaker 01: This is what they do. [00:02:36] Speaker 01: They buy from the manufacturer, they resell locally, and it's an entirely separate business. [00:02:42] Speaker 01: The goods travel. [00:02:44] Speaker 01: Sure, the good is traveling through interstate commerce. [00:02:47] Speaker 01: But Mr. Brock and Brock Inc.' [00:02:49] Speaker 01: 's relationship to it is nothing like the Amazon delivery drivers and also nothing like Ms. [00:02:55] Speaker 01: Saxon. [00:02:56] Speaker 01: In the Saxon case, remember, Ms. [00:02:59] Speaker 05: Saxon... Well, Amazon delivery drivers don't necessarily cross state lines either. [00:03:04] Speaker 01: But they never take time. [00:03:05] Speaker 05: And that's the test of interstate commerce is taking title. [00:03:10] Speaker 05: Is that your position? [00:03:11] Speaker 01: No, our position is you don't need to get to the last mile case because this is structurally subjective. [00:03:15] Speaker 05: I don't understand your response. [00:03:17] Speaker 05: What does take title mean here? [00:03:19] Speaker 01: Take title means he literally takes title to the bread. [00:03:23] Speaker 05: Why does that make a difference in terms of whether he's functioning in interstate commerce? [00:03:27] Speaker 01: I think if you adopt the, all we're saying is it distinguishes them from the last mile dropper. [00:03:33] Speaker 01: To get to your question. [00:03:34] Speaker 05: I don't, I'm not understanding your point. [00:03:36] Speaker 05: Could you expand on that? [00:03:37] Speaker 01: Yeah, I sure will. [00:03:39] Speaker 01: So we think the test is exactly as it's articulated in BCNF, which is that you have to look at the relationship between the worker and the transportation of the good. [00:03:49] Speaker 01: I think the best articulation of the legal test that I've found is in Hollis, in the Seventh Circuit. [00:03:55] Speaker 01: Then Judge Barrett put it as, the workers must be connected not simply to the goods, but to the act of moving the goods across state or national borders. [00:04:06] Speaker 05: So he has to cross state lines. [00:04:07] Speaker 01: Is that your point? [00:04:08] Speaker 01: Not necessarily. [00:04:08] Speaker 01: He has to be actively engaged in the movement. [00:04:12] Speaker 01: Ms. [00:04:12] Speaker 01: Saxon didn't cross borders in the Saxon case. [00:04:15] Speaker 01: But what she did was she put a good [00:04:19] Speaker 01: She put it on a plane that was about to cross state lines. [00:04:24] Speaker 01: And the court says when you're that close to actually being in the interstate channel, you're effectively part of it. [00:04:32] Speaker 02: Are you saying that Bissonnette undoes the written line of cases or you're just distinguishing solely on the basis of title? [00:04:40] Speaker 01: Oh, no, no. [00:04:41] Speaker 01: I was just distinction last mile on the basic title. [00:04:43] Speaker 01: I think that Bissonnette makes very clear what was a little unclear from Sasson. [00:04:48] Speaker 02: Are there facts that we don't know that we should know before deciding this case? [00:04:51] Speaker 02: For instance, I don't know if spoiled goods. [00:04:56] Speaker 02: Who bears the brunt of that? [00:04:58] Speaker 01: Who bears the brunt of spoilage? [00:04:59] Speaker 02: Yes. [00:05:00] Speaker 01: Under the agreement, there is the option for Brocking to return some amount of bread for spoilage. [00:05:07] Speaker 02: OK. [00:05:07] Speaker 02: And so title. [00:05:09] Speaker 01: So again, I might have made a mistake starting on title. [00:05:12] Speaker 01: We think title distinguishes last mile. [00:05:14] Speaker 01: We don't think it's determinative of section one. [00:05:17] Speaker 01: In our view, the key factor is not anything about the goods. [00:05:22] Speaker 01: It's about the workers' relationship to the transportation channel. [00:05:26] Speaker 01: What is Mr. Brock doing with relationship to the goods interstate travel? [00:05:32] Speaker 02: Are we talking warehouses now? [00:05:34] Speaker 01: No, we're talking about local delivery. [00:05:37] Speaker 01: What does Mr. Brock do? [00:05:39] Speaker 02: Do warehouses matter? [00:05:41] Speaker 01: If you buy the first circuits and ninth circuits analysis, if that's your starting place, the traffic of the good matters, then you would think the warehouse matters. [00:05:51] Speaker 01: We disagree with the first and ninth circuit. [00:05:52] Speaker 01: We don't think the warehouse matters. [00:05:54] Speaker 01: We think what you look at is what is Mr. Brock's relationship to the channel of transportation [00:06:00] Speaker 01: to how the good travels. [00:06:01] Speaker 01: And here, it's undisputed. [00:06:03] Speaker 01: It's entirely vulnerable. [00:06:04] Speaker 02: Well, it becomes a new transaction depending on who owns the warehouse, doesn't it? [00:06:10] Speaker 01: I think, again, I think there's two rationales here. [00:06:13] Speaker 01: You can say either we don't need to disagree with the First Circuit or the Ninth Circuit because there are two transactions. [00:06:20] Speaker 01: Or you can disagree with the First Circuit. [00:06:22] Speaker 02: But here, the warehouse isn't so clear. [00:06:25] Speaker 02: In other words, Flowers owns the warehouse. [00:06:28] Speaker 02: And Brock pays a fee to use the warehouse, is my understanding. [00:06:34] Speaker 01: So the way this works in practice is the delivery of the goods come from multiple distributors. [00:06:41] Speaker 01: It's not just for Mr. Brock. [00:06:43] Speaker 01: So the truck arrives to the warehouse, it's unloaded by that trucker, and different piles are made for different distributors who then come and pick it up. [00:06:52] Speaker 01: I don't think the record actually says who owns the warehouse, just that there is [00:06:57] Speaker 01: There's a fee paid for use. [00:06:58] Speaker 02: Well, that sounds like a flow or a stream or a journey of commerce, then, to me. [00:07:03] Speaker 01: The good in the journey of commerce? [00:07:06] Speaker 01: We're not disputing that the good is in a journey of commerce. [00:07:10] Speaker 01: But Bissonnette tells you it's not the good's journey that matters. [00:07:14] Speaker 01: It's the worker's relationship to the goods travel that matters. [00:07:18] Speaker 01: And here, the only relationship that Mr. Brock has to the goods travel, his relationship as a class of workers, is the entirely local part. [00:07:27] Speaker 01: That's it. [00:07:28] Speaker 01: There's no dispute. [00:07:29] Speaker 01: He doesn't unload from the trucks that are coming from interstate commerce. [00:07:33] Speaker 01: Everything is there on pallets ready for him to pick them up. [00:07:37] Speaker 01: At that point, what's his relationship to transportation, to the channel? [00:07:42] Speaker 01: That's what Bissonnette tells you to look at. [00:07:44] Speaker 01: It's purely local. [00:07:45] Speaker 04: Would the result be different if he did participate in unloading the truck? [00:07:48] Speaker 01: I think that'd be a harder case, because then you're closer to Saxon. [00:07:51] Speaker 01: But luckily we don't have those facts here. [00:07:54] Speaker 01: I could make the argument, then we'd be in the land of title and that sort of thing. [00:07:58] Speaker 01: But I think here it's so clear that his sole responsibility is local treatment. [00:08:06] Speaker 05: So you're saying this case turns on whether he goes and picks up a box and puts it on a pallet. [00:08:14] Speaker 05: That's going to make the difference? [00:08:16] Speaker 01: That's the line that's frequently drawn in Saxon. [00:08:18] Speaker 01: And that's the textual line. [00:08:20] Speaker 01: And it may not be a satisfying line, but twice in the text of Section 1, Congress made this line, first in the just and generous principle by picking railroad employees and seamen and other class of workers. [00:08:33] Speaker 01: Congress was picking these folks who were engaged [00:08:36] Speaker 01: in the interstate commerce. [00:08:38] Speaker 01: The second textual clue you have is the distinction between FAA Section 1 and FAA Section 2. [00:08:45] Speaker 01: And this is the Supreme Court's decision in Circuit City that Congress purposefully chose different language in Section 2 and Section 1. [00:08:53] Speaker 01: Section 2 is the outermost limits of Congress's commerce clause power. [00:08:57] Speaker 01: Section 1 engaged in is a very narrow scope. [00:09:01] Speaker 01: It's talking about only people who are actually working within this channel of transportation. [00:09:06] Speaker 01: We may not understand that line today, but in 1921, what was motivating Congress to draw this line were nationwide strikes. [00:09:15] Speaker 01: These were the railroad strikes. [00:09:16] Speaker 01: These were the strikes in the harbors that were actually bringing foreign and national commerce to its knees. [00:09:23] Speaker 01: You weren't seeing that on the local levels. [00:09:24] Speaker 01: You weren't having problems with local deliveries. [00:09:27] Speaker 01: So that's where Congress was drawing its line. [00:09:30] Speaker 02: I don't understand why you say Saxon drew a line that would affect here. [00:09:34] Speaker 02: Saxon decided a case. [00:09:36] Speaker 02: If you load bags at the airport, you're in the flow and stream of commerce. [00:09:40] Speaker 02: Good enough. [00:09:41] Speaker 02: It didn't say if you're an Amazon driver or if you're picking up bread at the Flowers warehouse and paying a fee for it and staying in trust state as you deliver it, that you're out of luck. [00:09:56] Speaker 01: It did not decide that issue. [00:09:57] Speaker 01: In fact, in both Saks and Beeson at the Express, they reserved this issue. [00:10:02] Speaker 02: All right. [00:10:02] Speaker 02: So when you say it drew a line and you make a point of that, what are you saying? [00:10:06] Speaker 01: It was to answer Judge Baccarat's question of if there was loading and unloading into the interstate channel here, would that be different? [00:10:16] Speaker 01: And I think that's the facts of Saxon. [00:10:19] Speaker 01: So I think at that point, it's not that it's drawing a legal line, but that it's a lot closer to that factual precedent than what we have here. [00:10:26] Speaker 01: Our argument is this is the case that Supreme Court's been reserving. [00:10:31] Speaker 01: But Bissonnette is really the clearest articulation of the way the court's going. [00:10:35] Speaker 01: And it's over and over again in that opinion. [00:10:37] Speaker 01: It's workers' work. [00:10:38] Speaker 01: It's workers' work. [00:10:39] Speaker 02: What distinguishes that Amazon case? [00:10:41] Speaker 02: It's title, you said. [00:10:43] Speaker 01: Yes. [00:10:43] Speaker 02: And who orders, who the transaction is between. [00:10:46] Speaker 02: Is that another one? [00:10:47] Speaker 01: We think that that is a false factor. [00:10:50] Speaker 01: And we shouldn't be looking at who orders. [00:10:52] Speaker 01: And because it runs back into two textual problems really quickly in section one, which is first, under section one, remember the transportation work. [00:11:00] Speaker 01: has to be that of a seaman or a railroad employee. [00:11:04] Speaker 01: You still have to deal with the just and generous. [00:11:06] Speaker 01: And that's not custom or ordering. [00:11:08] Speaker 01: It's not the transportation work that section one gets you into. [00:11:11] Speaker 01: And then you run into that section one versus section two distinction, is what does it mean to be engaged in as opposed to just be part of Congress's Commerce Clause power? [00:11:21] Speaker 01: That is the telemarketers. [00:11:23] Speaker 01: You place the order, it comes in. [00:11:24] Speaker 01: That's classic Commerce Clause jurisdiction. [00:11:27] Speaker 02: Let me ask it this way. [00:11:30] Speaker 02: If we buy the Amazon cases, the Ripman and so forth, how do you still win? [00:11:34] Speaker 01: Okay, that's where I got to soft track initially. [00:11:37] Speaker 01: If you buy into the First Circuit, Ninth Circuit framework, I think we still win because we're structurally and factually different. [00:11:47] Speaker 01: Because the Amazon drivers never take title, they don't have their own business. [00:11:52] Speaker 01: They are literally one continuous transportation stream. [00:11:56] Speaker 01: Whereas here, you do have a separate transaction. [00:11:59] Speaker 01: You actually have a separate business that's getting involved, which is a wholesale distributor. [00:12:04] Speaker 01: So I think I might have got us off track initially. [00:12:06] Speaker 01: But we're offering that as a distinction on the last mile cases. [00:12:11] Speaker 01: I don't think you have to disagree with the first and ninth circuit for us to prevail. [00:12:15] Speaker 01: But I think if you want to deal with this bigger question that's out there and splitting the circuits, I think Bicinet is the path. [00:12:23] Speaker 01: I'd love to reserve a little time for rebuttal, but there's so many issues. [00:12:26] Speaker 01: I'm happy to keep going with your stuff. [00:12:28] Speaker 05: Well, you haven't talked about the issue you raised in your 28-J letter. [00:12:35] Speaker 05: In fact, I thought you might even start with that. [00:12:39] Speaker 01: Can we call the clock at 2 and 1 half, and I answer that question? [00:12:44] Speaker 01: Please? [00:12:45] Speaker 01: I was asking, would I reserve 2 and 1 half minutes for rebuttal, and then just quickly tell you something about contracts? [00:12:52] Speaker 05: Go ahead and address that question and we'll see where we are. [00:12:54] Speaker 01: Okay, sounds good. [00:12:55] Speaker 01: I do think that the second sort of watershed landscape change that's happened since we filed our briefs is with Contract of Unplanned. [00:13:03] Speaker 01: You now have three circuits and this is the only place where there's circuit agreement on section one. [00:13:10] Speaker 01: What does it mean to be a Contract of Unplanned? [00:13:12] Speaker 05: They don't all analyze that issue the same way. [00:13:15] Speaker 05: So when you say circuit agreement, isn't that a bit of an overstatement? [00:13:20] Speaker 01: I don't think so, because the 1st, 4th, and 9th Circuit are all looking at what it means to be a contracted employment law. [00:13:26] Speaker 05: I didn't say they were not doing that, but their analysis is not identical. [00:13:32] Speaker 05: Would you agree with that? [00:13:33] Speaker 01: I would agree that the facts are different, but I think the overarching legal analysis is the same. [00:13:38] Speaker 01: It's textual. [00:13:40] Speaker 05: All right. [00:13:41] Speaker 05: All right. [00:13:43] Speaker 05: We'll have to look at that, but I guess my question is this. [00:13:46] Speaker 05: You didn't raise this. [00:13:48] Speaker 05: You conceded that it was forfeited, correct? [00:13:51] Speaker 01: We did not raise this as an argument, but we've been raising the fact [00:13:55] Speaker 01: that this is a business. [00:13:57] Speaker 05: But what you're asking us to do is to exercise our discretion to reach a forfeited argument, correct? [00:14:02] Speaker 05: Correct. [00:14:03] Speaker 05: And we have never addressed that this would be a question of first impression in this circuit. [00:14:08] Speaker 01: That is correct. [00:14:10] Speaker 01: OK. [00:14:10] Speaker 01: And I would only, on behalf of employers everywhere, plead for clarity in this area. [00:14:16] Speaker 01: And I think if this is sort of one of the questions you're going to reach down and take, there's no dispute of fact. [00:14:21] Speaker 01: We've been raising these facts all along. [00:14:22] Speaker 01: It's purely a legal question. [00:14:24] Speaker 01: And there is just a tremendous need for clarity in this area of law throughout the nation. [00:14:30] Speaker 01: That was our time. [00:14:30] Speaker 05: Thank you. [00:14:39] Speaker 03: Good morning. [00:14:40] Speaker 03: My name is Sean Markley on behalf of Angela Brock, plaintiff below, and appellee here. [00:14:46] Speaker 03: I'll start with the engagement in interstate commerce, which is where we spent most of the time over the last few minutes here. [00:14:52] Speaker 03: As an initial matter, this in the end answered a very narrow question, which is whether there was this transportation industry requirement. [00:15:01] Speaker 03: It answered that in the negative. [00:15:03] Speaker 03: It did nothing to disrupt the most seminal case on this by the Supreme Court, which was Saxon. [00:15:08] Speaker 03: So I think this is definitively a Saxon case, and we should look at it through that two-step rubric. [00:15:15] Speaker 03: I don't think step one is an issue. [00:15:16] Speaker 03: We have an undisputed class of workers who load and unload our bakery products. [00:15:21] Speaker 03: The question is whether that [00:15:27] Speaker 04: Let me ask you this. [00:15:31] Speaker 04: In my leisure time, I work as a paperboy. [00:15:36] Speaker 04: I get the New York Times, deliver, and then I go and deliver it in my neighborhood. [00:15:43] Speaker 04: Am I a transportation worker? [00:15:46] Speaker 03: Assuming those papers came in from out of state, as I assume they do with the New York Times or here in Denver, Colorado, yes, I think you would be engaged in interstate transportation at that point. [00:15:57] Speaker 03: Specifically, the customer in this case, the person's house you're delivering that paper to has ordered the very good that you're delivering. [00:16:08] Speaker 03: and then you engaged in the essential last mile delivery. [00:16:11] Speaker 04: And now there's a local outfit affiliated with the New York Times. [00:16:17] Speaker 04: They're here in Denver. [00:16:18] Speaker 04: And the New York Times will deliver from Manhattan to this little outfit. [00:16:23] Speaker 04: This little outfit then takes title to the New York Times. [00:16:27] Speaker 04: I go pick up here in Denver those issues of the New York Times and I deliver them locally. [00:16:33] Speaker 04: Am I still a transportation worker? [00:16:37] Speaker 03: I don't think the title matters in this context. [00:16:40] Speaker 04: So even though I have nothing to do with any interstate travel of these goods, you know, just like I buy a bologna, you know, a slice of bologna that may have been made in Idaho, and I buy it here in Denver, and then I resell it to my friend Judge Manson. [00:16:59] Speaker 04: I'm now a transportation worker just because those goods have somehow, in their past history, traveled interstate, but I'm just buying it locally and reselling it locally. [00:17:11] Speaker 04: Everybody's a transportation worker that resells anything. [00:17:15] Speaker 03: I don't read it that broad, Your Honor, especially for the baloney example. [00:17:18] Speaker 03: If I go to a grocery store, the only transaction is between myself and the grocery store. [00:17:22] Speaker 03: That's purely interstate. [00:17:24] Speaker 03: I didn't order the baloney from out of state and have it shipped to me. [00:17:27] Speaker 03: If I had done that, that would be... [00:17:33] Speaker 04: That's why I asked about this local outfit that actually takes title, accepts the New York Times here in Denver. [00:17:40] Speaker 04: I'm not doing anything with anybody in Manhattan. [00:17:44] Speaker 04: I'm just dealing with the equivalent of that local grocery store that sells baloney. [00:17:50] Speaker 04: I'm just getting, instead of baloney, I'm getting the New York Times. [00:17:54] Speaker 03: Sure, I may have misunderstood the facts behind your hypothetical. [00:17:57] Speaker 03: Is the customer relationship purely with the local newspaper outlet? [00:18:01] Speaker 03: Yeah, I buy it here in Denver and I resell it here in Denver. [00:18:05] Speaker 03: I think it's the overall transactional context. [00:18:08] Speaker 03: So if the customer is a Denver resident and they're reaching out to a local Denver affiliate who happens to have New York Times papers, I don't think that would qualify under Section 1. [00:18:17] Speaker 03: It's a close question, but I don't think that would qualify. [00:18:22] Speaker 03: the Uber or Doordash line of cases where you have this sort of separate transaction that's purely understated. [00:18:27] Speaker 03: I think what lacks here is the separate transaction. [00:18:30] Speaker 03: If you look out, as the lower court found, [00:18:35] Speaker 03: First of all, for the title aspect, this is very much disputed. [00:18:39] Speaker 03: Flowers Hole Agreement is written to give this appearance of independence in separate businesses. [00:18:44] Speaker 03: The reality of these cases, for example, is this court address in the Acosta v. Janakin case is that these are just complicated ways to essentially misclassify workers. [00:18:53] Speaker 03: You don't pay them overtime. [00:18:55] Speaker 03: You don't reimburse their expenses. [00:18:56] Speaker 03: you don't pay to work on, et cetera. [00:18:58] Speaker 03: That's what's alleged here. [00:19:00] Speaker 03: And in the complaints now, I can say the specific page numbers, but we dispute very much that our client actually takes title to product, or that they have a relationship with Walmart, Costco. [00:19:10] Speaker 03: That's Flour's Foods relationships. [00:19:12] Speaker 03: And Flour's Foods, under their direct store delivery business model, promises its customers that its out-of-state baked bread will get on their shelves, and they use my client as the last mile away from that, just like the Amazon cases. [00:19:24] Speaker 03: And to try to distinguish [00:19:26] Speaker 03: Amazon is not a separate business. [00:19:29] Speaker 03: They also use independent contractors. [00:19:30] Speaker 03: Amazon would have got up here and told you the exact same thing, which was this is a separate business. [00:19:34] Speaker 03: This is a local delivery company. [00:19:36] Speaker 03: But what they're doing is actually fulfilling a large company's last mile of their delivery operation. [00:19:41] Speaker 02: On that point, you brought up the concept who orders. [00:19:46] Speaker 02: Does it matter in this case whether Walmart orders from Brock or Walmart orders from Flowers? [00:19:54] Speaker 03: I think so long as the expectation is that the bread is getting up on Walmart and Costco shelves, that that is the transactional context ends when it gets on those shelves, and which is why the bologna example would not qualify for the person walking in there buying the bread. [00:20:08] Speaker 03: I'm not trying to stretch it that far. [00:20:11] Speaker 03: So to answer your question here, because Brock actually orders more at stores. [00:20:15] Speaker 03: He goes in there and says, yeah, Dave's Killer Bread was really popular this week. [00:20:19] Speaker 03: I'm picked over, so I'm going to order more for next week. [00:20:23] Speaker 03: he places that order that's fulfilled out of state is set aside for him in the warehouse. [00:20:28] Speaker 03: He picks that up within hours of it arriving, whether he unloads it or unloads it from the truck. [00:20:32] Speaker 03: I think it's relatively meaningless here. [00:20:35] Speaker 03: And Amazon would be the same, by the way, that the Amazon drivers aren't going up to the big rig truck and pulling all of their orders. [00:20:41] Speaker 03: They're getting that from the warehouse, just like we do here. [00:20:43] Speaker 03: Would it be a stronger case if Walmart ordered from Flowers? [00:20:47] Speaker 03: Well, we do allege, and I think our complaint makes clear that the actual relationship here is between Flowers Foods and Walmart. [00:20:55] Speaker 03: My client is getting paid by Flowers, but my client doesn't go down to Arkansas and negotiate shelf space and pricing for bread. [00:21:03] Speaker 03: That's an issue for Flowers Foods. [00:21:05] Speaker 02: But doesn't your client call up [00:21:07] Speaker 02: flowers and say the Walmart needs x-loaves. [00:21:12] Speaker 03: Yes, he does place orders for his stores and makes the inventory determinations for his local stores. [00:21:18] Speaker 03: He places those orders, which are from Philadelphia State, brought in and he delivers it to the store. [00:21:23] Speaker 03: But doesn't negotiate the price. [00:21:25] Speaker 03: Correct. [00:21:26] Speaker 03: My client is not in position to negotiate with Walmart over his one store. [00:21:33] Speaker 03: And specifically, Your Honor, to point you to the parts about the title issue being disputed. [00:21:38] Speaker 03: If you look at the complaint at paragraph 4 through 11, and again at 31 through 36, we very much dispute that my client takes title to anything. [00:21:46] Speaker 03: He's paid a commission for picking up and delivering bread. [00:21:49] Speaker 03: This whole buy-sell arrangement is just a product of them attempting to justify their misclassification and make this look fancier than it actually is. [00:21:55] Speaker 03: Do we need the district court to resolve that? [00:21:59] Speaker 03: I think there were competing versions submitted at this report. [00:22:03] Speaker 03: They wanted this to look like a franchisee relationship, or business to business, or independent contractor. [00:22:09] Speaker 03: They presented those facts to the district court, and we presented our more plain facts, which is, Mike, I have run stuff right around and delivers products. [00:22:17] Speaker 03: And the court, I think, reviewed both of those and made factual findings, namely that they load another bakery products, and their other business responsibilities don't detract from that delivery. [00:22:32] Speaker 03: from the transportation worker here, so I don't think there's anything to be sent back on that issue. [00:22:36] Speaker 02: Well, how about what you just mentioned from the complaint? [00:22:39] Speaker 02: I assume that's not all agreed. [00:22:43] Speaker 03: In terms of the title and things of that nature? [00:22:45] Speaker 03: Yes. [00:22:45] Speaker 03: Yeah, I mean, I think, again, that dispute was put in front of the district court, and she resolved the facts as she saw them. [00:22:51] Speaker 03: I also think that this [00:22:52] Speaker 03: you know, fleeting stage if there's doubts or issues to be resolved in our favor. [00:22:58] Speaker 03: And how did the district court resolve the title question? [00:23:01] Speaker 02: That's various. [00:23:03] Speaker 03: I'm going down into the general business umbrella, so I don't know if she specifically mentioned title. [00:23:07] Speaker 03: And if that's important to us, should we remit? [00:23:13] Speaker 03: I think there are ample facts to support the district court's conclusions here. [00:23:17] Speaker 03: And I don't see the title thing as just positive, I suppose, if you're honest, too. [00:23:21] Speaker 03: That may be worth a second look. [00:23:23] Speaker 03: But yeah, just to reiterate, you know, Amazon would have said the exact same thing as my, you know, my independent carriers, or take the title because they're not part of my business. [00:23:41] Speaker 05: I'm just looking at the district court's opinion. [00:23:46] Speaker 05: And at one point, it says independent distributors are responsible for ordering products which are then delivered to them from bakeries for sale and direct delivery to customer stores. [00:24:03] Speaker 05: Does that shed some light on the colloquy you've been having with Judge Phillips? [00:24:10] Speaker 03: I think it's undisputed that my client places the orders. [00:24:14] Speaker 03: He boots on the ground in the stores. [00:24:16] Speaker 03: He knows what inventory they need. [00:24:19] Speaker 03: He then places those orders and ultimately delivers the bread there. [00:24:22] Speaker 03: That's the overall transactional context. [00:24:24] Speaker 03: I don't read that as, I guess, hitting on who owns the bread at that point. [00:24:39] Speaker 03: In terms of warehouse ownership, that fact came up. [00:24:42] Speaker 03: If you look at the exhibits to the distributor agreement, my client gets to choose between three warehouses where he'll pick up the products. [00:24:49] Speaker 03: These are all flowers warehouses. [00:24:51] Speaker 03: So if you're looking for that fact in the record, [00:25:05] Speaker 05: So if you have, I'm interested in this other issue that we took up. [00:25:11] Speaker 05: I don't want to go there. [00:25:12] Speaker 05: If you've got any other points on the interstate commerce issue. [00:25:17] Speaker 03: I did just briefly want to highlight a couple of additional facts relating to just how continuous this is. [00:25:22] Speaker 03: I think Council was emphasizing the fact that there's a splitter at the local warehouse, which takes the products off the big 18-wheel truck and puts it in everyone's cubby for them to come pick up hours later. [00:25:34] Speaker 03: I don't think a small passage in time [00:25:39] Speaker 03: context of fresh product delivery where this is really essential to get these on the store shelves as quickly as possible matters or whether my client directly walked up to the 18-mil truck or simply waited for it to be set aside for them in the warehouse. [00:25:51] Speaker 03: This is a very continuous movement of these goods and specifically in [00:25:56] Speaker 03: the Charles Bridge decoration that we submitted, along with our moving papers, flowers, and other contexts that describe this as a nearly continuous movement from origin to destination. [00:26:07] Speaker 03: I think that's very important here. [00:26:09] Speaker 03: My client makes this up hours after it's delivered from out of state. [00:26:12] Speaker 03: The whole one is getting fresh product on the shelves, and I think that sheds lights on this as well. [00:26:16] Speaker 03: That site is the appendix of page 272. [00:26:21] Speaker 03: So yes, turning now to the contracts and employment issue, which was developed really for the first time here on appeal. [00:26:27] Speaker 03: This case looks nothing like Amos or Flylow or Telman. [00:26:33] Speaker 03: We have a single owner-operator in this case who is directly alleging a misclassification claim and that there is an employment relationship here. [00:26:45] Speaker 05: When you say single owner-operator, does the record show that it's just him or does he have employees? [00:26:53] Speaker 05: What's the set? [00:26:54] Speaker 03: That's fair. [00:26:56] Speaker 03: There is no record of him having employees. [00:26:59] Speaker 03: We would have developed more facts surrounding this issue if it was brought up at the district court, namely that my client runs this rep himself. [00:27:07] Speaker 03: He does not have hundreds of employees working under him. [00:27:10] Speaker 03: Could he? [00:27:11] Speaker 04: Could he hire a manager and say, I'm going to sit at home and watch Netflix, and you, the manager, are responsible for delivering these goods? [00:27:25] Speaker 04: That is hypothetically possible under the distributorship agreement. [00:27:29] Speaker 04: So under the distributorship agreement, he has no obligation to do anything personally, like a railroad worker or a seaman. [00:27:38] Speaker 03: I would disagree with that, Your Honor. [00:27:40] Speaker 03: There is a personal guarantee that's attached to his exhibit. [00:27:43] Speaker 04: So he has to personally guarantee that he is going to either do it or have somebody else do it. [00:27:51] Speaker 04: And so if I am running a Naval shipyard and I guarantee that I am going to hire Judge Matheson as my seaman, OK, Judge Matheson is going to be doing the personal work. [00:28:07] Speaker 04: required for a scene then. [00:28:09] Speaker 04: I am a guarantor, but I am not obligated to do anything on my own. [00:28:12] Speaker 04: I'm a guarantor, right? [00:28:14] Speaker 03: Well, you are obligated. [00:28:15] Speaker 03: If the service isn't performed, you are personally responsible for that. [00:28:18] Speaker 03: And I'd also point that it's not just the descriptions or contracts that define the class of workers and what they engage in. [00:28:26] Speaker 03: For example, in SAFSA, we have a ramp agent supervisor. [00:28:29] Speaker 03: If you look purely at her title and her engagement hypotheticals, she could just sit back and watch the workers perform work, and she wouldn't touch any goods. [00:28:40] Speaker 03: found that you look at what they actually do and they credited her testimony that up to three shifts per week she's actually going and pulling these bags off the shelves, which is the exact testimony we have here, which is that my client and his fellow distributors [00:28:54] Speaker 03: a night out, pick up these products and take them out for delivery. [00:28:57] Speaker 03: So I don't think we're confined to... And again, I direct the court that in this context of a misclassified worker, you'll often see these things where you'll say, you have all these freedoms in the world, but this personal guarantee makes sure that if I need bread on Walmart shelves at 6 a.m., I'm waking Mr. Brock up and telling him to get down there and take care of that issue. [00:29:15] Speaker 03: And so I think that's an important factor to take in mind in addition to the plain test of the agreement. [00:29:20] Speaker 05: Well, if we did reach the issue, your opposing counsel says that this is pure question of law. [00:29:30] Speaker 05: It's an issue that getting some clarity would be worthwhile. [00:29:39] Speaker 05: But I guess my question to you based on what you just said in response to Judge Baccarat is, is it a pure question of law? [00:29:47] Speaker 05: Wouldn't we need to know more about [00:29:51] Speaker 05: the business and is it just Mr. Brock? [00:29:56] Speaker 05: What does the personal guarantee and his signing the arbitration agreement mean? [00:30:01] Speaker 05: Wouldn't the district court have to develop some facts on the issue in order to address this question? [00:30:12] Speaker 03: I think we would have developed the facts somewhat differently. [00:30:15] Speaker 03: I will say on the other hand, I think based on the testimony in the record, we know that there's a natural individual who's tied to this contract, which is very distinct from the most violent line of cases where the natural individual doesn't sign the agreement. [00:30:28] Speaker 03: He isn't bound by it. [00:30:29] Speaker 03: Most notably here, if you look at Exhibit K to distribute agreement, which is the arbitration section, my client signs that in both his business capacity and in his personal capacity. [00:30:40] Speaker 03: And that agreement itself attempts to send his employment claims to arbitration. [00:30:45] Speaker 03: And if you look at Circuit City and New Prime, the whole congressional intent behind this Section 1 carve-out was to ensure that employment claims by transportation workers, natural individuals, [00:30:56] Speaker 03: don't end up bound up in the FAA. [00:30:58] Speaker 03: So I think that runs a full circle there to them essentially in running around the FAA through their argument here. [00:31:04] Speaker 03: And I would also note that there is no record of, for example, in Amos that they operated an entire Amazon region. [00:31:11] Speaker 03: They had 450 employees. [00:31:13] Speaker 03: And so I think there was somewhat of a smell test done by these district courts to say, sure, Mr. Amos makes an employment claim, but is some of the employees, 450 workers under him, really an employee here? [00:31:29] Speaker 03: corporation is near window dressing, in Amos' words, or is a nominal party to the overall contract. [00:31:35] Speaker 03: And so I think, you know, that there is room for course correction, frankly. [00:31:38] Speaker 03: I think the facts that have found their way up to these other circuit courts [00:31:52] Speaker 04: Do you mind if I ask? [00:31:55] Speaker 04: I know he's way out of time. [00:31:56] Speaker 04: Go ahead. [00:31:57] Speaker 04: I just really want to ask about something that you guys briefed extensively, but really I don't think we've talked about at all yet, and that's Colorado law. [00:32:08] Speaker 04: Does the FAA bar other laws from forcing transportation workers to arbitrate? [00:32:14] Speaker 03: The FAA does not preempt state laws that want to force [00:32:20] Speaker 03: law is here as the plan, which do you agree with? [00:32:22] Speaker 03: Okay. [00:32:23] Speaker 04: But there's nothing about the FAA itself that would bar either a federal law or a state law from forcing people to arbitrate. [00:32:34] Speaker 04: I agree with that. [00:32:35] Speaker 04: Okay. [00:32:36] Speaker 04: And so in section one just says nothing herein, and I guess that's because all section one says is nothing herein shall apply. [00:32:48] Speaker 04: you know, transportation worker exception. [00:32:52] Speaker 04: So there's really nothing in section one that would prevent the applicability of Colorado law requiring transportation workers to arbitrate. [00:33:05] Speaker 03: I agree with that. [00:33:06] Speaker 03: I think the issue that the lower court picked up on that we argue for here is that by tethering Colorado law to be consistent with the FAA, you can't [00:33:15] Speaker 03: because the FDA does not compel transportation workers to arbitrate. [00:33:19] Speaker 04: Yeah, and that doesn't really make any sense, does it? [00:33:22] Speaker 04: Based on what you just said, Judge Sweeney, and you seem to be at odds, Judge Sweeney seems to think that Section 1 does prevent another law from forcing transportation workers to arbitrate. [00:33:37] Speaker 04: You said today and on page 36 of your response brief that it doesn't because [00:33:43] Speaker 04: Section 1 doesn't prevent, explicitly doesn't prevent another law from forcing transportation workers to arbitrate. [00:33:50] Speaker 04: It just says nothing herein shall apply. [00:33:53] Speaker 04: So how can Judge Sweeney possibly be right? [00:33:57] Speaker 04: in saying that this provision that doesn't apply to transportation workers, that doesn't prohibit other laws, federal or state, from forcing transportation workers to arbitrate, how in the world can Colorado law be inconsistent with Section 1? [00:34:16] Speaker 04: I can't fathom how what you're saying is consistent with what Judge Sweeney said. [00:34:23] Speaker 03: I didn't read Judge Sweeney's order. [00:34:27] Speaker 03: preemptive in scope, I don't think she's saying Section 1. [00:34:29] Speaker 04: Well, you're the one that keeps using the word preemptive. [00:34:32] Speaker 04: Section 1 doesn't use the word preemption in just when he didn't. [00:34:39] Speaker 04: She said that it is inconsistent, and you just got through telling me that it's not inconsistent. [00:34:48] Speaker 03: Section 1 carves out transportation workers from arbitration obligations to be consistent with that. [00:34:54] Speaker 03: Under Colorado law, you would also have to carve out transportation workers from arbitration obligations. [00:34:58] Speaker 04: Even though Section 1 doesn't prohibit [00:35:01] Speaker 04: state law for forcing transportation workers to arbitrate. [00:35:05] Speaker 03: I don't think it's about prohibiting, it's about carving them out if you're going to be consistent with Colorado law. [00:35:11] Speaker 04: Okay, let me ask you a hypothetical. [00:35:14] Speaker 04: Let's say there's a law that says in the private sector an employer cannot discriminate against an employee on the basis of race, sex, or religion. [00:35:25] Speaker 04: Okay? [00:35:26] Speaker 04: And then there is a state law that says in state government, an employer cannot discriminate against an employee on the basis of sex, race, or religion. [00:35:41] Speaker 04: Are those two inconsistent? [00:35:45] Speaker 04: The first one obviously carved out anybody other than private sector employers. [00:35:52] Speaker 04: So are those inconsistent? [00:35:55] Speaker 03: If this was purely a question of what Colorado law could do in a vacuum without any of the plain language agreement applying, I agree with you. [00:36:01] Speaker 04: I don't know what you're talking about. [00:36:03] Speaker 04: I'm just talking about my question. [00:36:05] Speaker 04: So you have two different introductory clauses. [00:36:10] Speaker 04: One for the private sector, one for state government. [00:36:13] Speaker 04: Are those two laws inconsistent? [00:36:15] Speaker 03: State laws are free to fill gaps where federal law leaves questions open. [00:36:19] Speaker 03: So yes, I agree with that. [00:36:20] Speaker 03: It just depends on the wording of the contract here. [00:36:22] Speaker 03: OK, last question. [00:36:24] Speaker 04: And I'm sorry, I'm monopolizing so much time. [00:36:27] Speaker 04: On the dependent appellate jurisdiction, [00:36:32] Speaker 04: So Judge Sweeney, as I understand it, said the opposite of what I'm suggesting, and that is that state law is inconsistent with Section 1, right? [00:36:46] Speaker 03: It's inconsistent that it's broader than Section 1, because it would compel transportation or conservatory. [00:36:51] Speaker 04: That it's inconsistent. [00:36:52] Speaker 04: Well, if we have to decide whether something is consistent or inconsistent with Section 1, doesn't that [00:37:01] Speaker 04: by definition mean that our inquiry is inextricably intertwined with the very basis of Judge Sweeney's ruling. [00:37:11] Speaker 03: I agree that if you're going to analyze what the FAA would permissively allow here, that it's bound up. [00:37:18] Speaker 03: My point in making the appellate jurisdiction argument was that I think what they're saying is ignore all references to the FAA and the contract and just focus on Colorado law. [00:37:28] Speaker 03: I think that was their lead argument, essentially. [00:37:30] Speaker 04: OK, that's fair. [00:37:32] Speaker 04: But if we do, in the context of our inquiry under Colorado law, address the merit of what Judge Sweeney said, [00:37:41] Speaker 04: You would agree that there has been an appellate jurisdiction? [00:37:44] Speaker 04: Correct. [00:37:45] Speaker 04: I would agree. [00:37:45] Speaker 04: Thank you for bearing with me, and thank you, Judge Mathis. [00:37:48] Speaker 05: Thanks very much. [00:37:50] Speaker 05: All right. [00:37:52] Speaker 05: I think you're going to get some extra time. [00:37:53] Speaker 01: I tried bargaining. [00:37:56] Speaker 05: You're a good negotiator. [00:37:58] Speaker 05: Why don't we put up, just so we have a target, why don't we put up four minutes, and we'll see how it goes, on the condition that you at least do a little bit with this pendant jurisdiction issue. [00:38:11] Speaker 01: Do you want me to... I can start wherever you all want me to start. [00:38:14] Speaker 01: I was going to just do... I'll start with the pendant. [00:38:16] Speaker 05: Do whatever you say. [00:38:18] Speaker 01: It's your argument. [00:38:19] Speaker 01: I can very quickly clear up the record on title in the district court's findings just for your benefit. [00:38:24] Speaker 01: The district court didn't make a specific finding on title, but what the district court did do, and that's at the end of page two, which Judge Matheson, you were reading, was [00:38:35] Speaker 01: agreed that Brock Inc. [00:38:37] Speaker 01: is a business and Mr. Brock has customers and they are his own customers and he's making sales and he's making orders. [00:38:44] Speaker 01: And I think for all intents and purposes that's exactly the same as a title finding because you can't have your own business with your own sales if you don't have titles to the thing that you're selling. [00:38:52] Speaker 02: Did it resolve that as fact or is it simply parroting what the agreement says which the course [00:38:59] Speaker 02: Brock says that's not how it is in real life. [00:39:01] Speaker 01: I mean, to be candid with you, I didn't read the district court as making factual findings, but it's sort of simulating that this is how I'm reading the agreement. [00:39:08] Speaker 01: And so I think that this decision is based on the assumption that Mr. Brock has a business and that Brock is a real business with title changing. [00:39:17] Speaker 01: And I think as the appellate court, you can review it on that sort of assumption that the district court made. [00:39:24] Speaker 01: But that's also addendum two and 855, section 4.1 is the title change provision. [00:39:31] Speaker 01: I'll circle back to Contractor and Employment, but very quickly to get to this state court issue, I mean, we do agree that this could be decided under state law. [00:39:43] Speaker 01: There are cases going back from 1925 that hold that you can have that arbitration under state law is consistent with the FAA. [00:39:52] Speaker 01: And just as a historical fact, [00:39:54] Speaker 01: The seamen lost their federal arbitration right in 1925, and since 1925, seamen have been arbitrating under New York law, and there are special arbitration proceedings for admiralty under New York law because you can now arbitrate under state law and there's no federal remedy for seamen otherwise. [00:40:12] Speaker 01: So you'd be doing violence to about 100 years of practice in admiralty law to say that they're inconsistent. [00:40:19] Speaker 01: I think what the court was focused on, to be fair to the district court, [00:40:23] Speaker 01: was this language of exclusive as it was used in the distribution agreement. [00:40:28] Speaker 01: And I think the council was wise not to go there, because if you look at the agreement, and this is at A84, exclusively as modifying arbitration, the sentence is, arbitration agreements, and now I'm quoting, shall be submitted to and determined exclusively by binding arbitration. [00:40:49] Speaker 01: And then there's a proposition [00:40:53] Speaker 01: The district court put a period there. [00:40:56] Speaker 01: Actually, that sentence goes on. [00:40:57] Speaker 01: And it ends with, accept as otherwise agreed to by the parties in the specified hearing. [00:41:03] Speaker 01: So exclusively saying it's exclusively arbitration, and it's under the FAA or as agreed by the parties herein. [00:41:10] Speaker 01: So the FAA is not exclusive. [00:41:12] Speaker 01: And I think council abandoned that grounds, and now we sort of backed into this position of inconsistency. [00:41:18] Speaker 01: And that is flatly inconsistent with almost 100 years of [00:41:22] Speaker 01: how FAA and state law have been treated in practice. [00:41:26] Speaker 01: To bounce back to contrary to employment, I do want to address Judge Matheson your concern that Amos and Flypho and Tillman aren't addressing this legal question. [00:41:36] Speaker 01: And I point you to two aspects. [00:41:40] Speaker 05: Well, just to be clear, my question is, do we need more factual development to address the question? [00:41:48] Speaker 01: And let me take that spot on. [00:41:50] Speaker 01: My answer is no, because this is a textual. [00:41:53] Speaker 01: First, what Amos is doing is from the text of section one. [00:41:57] Speaker 01: There's two holdings in Amos. [00:41:59] Speaker 01: Well, let me just throw one thing out. [00:42:04] Speaker 05: I don't know what the record shows on this. [00:42:06] Speaker 05: We've got Brock Inc. [00:42:07] Speaker 05: and we've got Brock. [00:42:09] Speaker 05: Is Brock Inc. [00:42:10] Speaker 05: just Brock? [00:42:11] Speaker 01: No. [00:42:12] Speaker 01: And I think that you can... Why not? [00:42:14] Speaker 05: How do we know that? [00:42:15] Speaker 01: We know that from the text of the agreement. [00:42:20] Speaker 05: But do we know it as a fact? [00:42:22] Speaker 01: I think we know it as a fact. [00:42:24] Speaker 05: And that's from... No, you just said the text of the agreement. [00:42:26] Speaker 05: Is there anything in the record [00:42:29] Speaker 05: to show one way or the other whether Brock Inc. [00:42:31] Speaker 05: is just an alter ego for Mr. Brock. [00:42:33] Speaker 01: Well, the agreement's in the record. [00:42:36] Speaker 01: And you can't have allegations that are flatly inconsistent with the exhibits attached there, too. [00:42:41] Speaker 05: I understand it's in the record. [00:42:42] Speaker 05: Do we have any facts, though, about his business? [00:42:45] Speaker 01: About his business? [00:42:46] Speaker 01: Yes. [00:42:47] Speaker 01: Only that which the district court said that he buys from us. [00:42:50] Speaker 05: But was there any factual development in the district court about his business? [00:42:55] Speaker 01: About his business, not beyond [00:42:58] Speaker 01: the four quarters of the agreement. [00:43:18] Speaker 01: the threshold question of whether or not you have a contract of employment within the terms of Section 1. [00:43:23] Speaker 05: Well, how would you respond to his response to the 28-J letter in which he pointed out that Mr. Brock signed a personal guarantee and signed the arbitration agreement in his personal capacity? [00:43:36] Speaker 05: So the guarantee... Isn't that some indication that all we're dealing with is Mr. Brock? [00:43:40] Speaker 01: No, I mean, guarantees are common. [00:43:42] Speaker 05: And if you look at the guarantee... Was there a guarantee in Amos? [00:43:45] Speaker 01: That's not in the record. [00:43:47] Speaker 01: I don't know, but I can tell you. [00:43:48] Speaker 05: Was there one in the other cases? [00:43:50] Speaker 01: I don't know, but I can tell you. [00:43:51] Speaker 05: Well, we don't know. [00:43:52] Speaker 05: And you're asking us to make law as a matter of first impression when we don't have that information. [00:43:56] Speaker 01: But I don't think you need it, because on the terms, the text of the guarantee here, which said A-79, the only thing that Mr. Brock has personally guaranteed is the performance of Brock Inc. [00:44:07] Speaker 01: And if you look at the distribution agreement at A-64, section 16-2, Brock Inc. [00:44:15] Speaker 01: is allowed to structure its business however it wants. [00:44:18] Speaker 01: And again, we're not, under section one, you're not looking at Brock. [00:44:21] Speaker 01: You're looking at the class of workers. [00:44:23] Speaker 01: And the District of Fusion agreement is telling you that this class of workers, they can, this business can make itself up however it wants to. [00:44:30] Speaker 01: They can hire employees and contract workers. [00:44:32] Speaker 05: Did you say, when you said, when you're looking at Brock, are we looking at Mr. Brock or are we looking at Brock Inc.? [00:44:38] Speaker 01: When you're looking at either, you're looking at the class of workers. [00:44:42] Speaker 01: It's not just Brock for Brock Inc. [00:44:44] Speaker 01: It's not just this agreement. [00:44:45] Speaker 01: But it's this class of workers, these wholesale distributors. [00:44:48] Speaker 01: And they have the freedom to hire whomever they want. [00:44:51] Speaker 01: There's no personal service guarantee at all. [00:44:54] Speaker 01: This is not me to put it bluntly. [00:44:56] Speaker 01: Brock Inc. [00:44:57] Speaker 01: is Flowers' customer. [00:44:59] Speaker 01: Flowers isn't buying anything from Brock Inc. [00:45:02] Speaker 01: And that's how this distribution agreement is set up. [00:45:05] Speaker 01: It's completely unlike a personal services agreement. [00:45:08] Speaker 01: And I think you can look to this agreement. [00:45:12] Speaker 01: It's structured as a business-to-business agreement. [00:45:14] Speaker 01: There's no argument on the face of the agreement that there's a sham. [00:45:17] Speaker 01: There's no compensation. [00:45:18] Speaker 01: There's no employment requirement. [00:45:19] Speaker 01: There's no personal service requirement. [00:45:21] Speaker 01: And so I think these arguments of sham are really going to the merits of the [00:45:40] Speaker 01: You know, businesses are setting up these kinds of agreements to make it look like they're in pretty contractors when they're not. [00:45:46] Speaker 01: I'm sure he ended that as his sham agreements. [00:45:48] Speaker 05: And I think those are all... Well, I mean, I just, I don't want to put words in his mouth, and I don't think you do either. [00:45:55] Speaker 05: But is that really the argument? [00:45:57] Speaker 05: Did he make that argument? [00:45:58] Speaker 01: I thought he was making the argument that you need fact-finding on... Well, I asked that. [00:46:03] Speaker 05: I asked that. [00:46:04] Speaker 05: And I think he said yes. [00:46:06] Speaker 05: And you disagree. [00:46:07] Speaker 01: I disagree. [00:46:08] Speaker 01: I don't think you need fact-finding. [00:46:09] Speaker 01: OK. [00:46:09] Speaker 05: I understand your point. [00:46:11] Speaker 05: We're now over the overtime. [00:46:13] Speaker 05: In soccer terms, I think we're in over it. [00:46:18] Speaker 05: So if you could take maybe, I don't know, 30 seconds to wrap up. [00:46:23] Speaker 01: And I would just point you to, on this issue, to Beesonet, which says, [00:46:27] Speaker 01: At 254, the Section 1 analysis should not read litigation that FAA seeks to avoid. [00:46:34] Speaker 01: These are threshold questions that you should be able to determine on the face of the agreement, and all of them are answered. [00:46:40] Speaker 01: And I do think you can answer these questions without engaging in a circuit split, both because of the way this specific agreement is structured, the state law issue, and the Contractual Employment Issue. [00:46:51] Speaker 01: Thank you for your indulgence. [00:46:52] Speaker 01: I really appreciate it. [00:46:53] Speaker 05: Thank you to both of you. [00:46:54] Speaker 05: We appreciate the arguments. [00:46:57] Speaker 05: And it's good to have some extra time to flesh some of this out. [00:47:02] Speaker 05: So thank you very much. [00:47:03] Speaker 05: Case will be submitted and counsel are excused.