author: BRISCOE, Circuit Judge.

text:
    UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION AND ITS LOCAL 13-857, Plaintiffs-Appellees, v. PHILLIPS 66 COMPANY, a foreign corporation, Defendant-Appellant.
    No. 15-5119
    United States Court of Appeals, Tenth Circuit.
    FILED October 17, 2016

      Frank D. Davis, (Gavin S. Martinson, with him on the briefs), of Ogletree, Dea-kins, Nash, Smoak & Stewart, P.C., Dallas, Texas, for Defendant-Appellant.
    Anthony Resnick, United Steelworkers of America, Pittsburgh, Pennsylvania (Steven R. Hickman, of Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, with him on the brief), for Plaintiffs-Appellees.
    Before BRISCOE, MURPHY and PHILLIPS, Circuit Judges.
   BRISCOE, Circuit Judge.

Phillips 66 Company (“the Company”) appeals from the district court’s grant of summary judgment and order compelling arbitration. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and its Local 13-857 (collectively, “the Union”) filed two grievances on behalf of employees of the Company and sought arbitration pursuant to the grievance procedure in the parties’ collective bargaining agreement (“CBA”). The Company refused to arbitrate. The Union sued and the district court issued an order compelling arbitration. The Company now appeals, arguing that the grievances are not arbitrable under the CBA. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

A. Background, and the CBA

The Union is the collective bargaining representative of employees at the Company’s oil refinery in Ponca City, Oklahoma. The Company was a subsidiary of Conoco-Phillips, the previous owner of the refinery. The Company spun off from Conoco-Phillips to form an independent entity, and ConocoPhillips transferred the Ponca City refinery and other various assets to the Company in the spin-off. When the Company took over the refinery, it assumed the CBA with the Union.

The provisions of the CBA relevant to this case are Articles 15 and 30, and a Letter of Understanding (the “Letter”) between ConocoPhillips and the Union. Article 15 states in part:

The ... benefit plans available to the employees in this bargaining unit on the date of [the CBA,] [including the Employee Medical and Dental Plans,] shall be continued for the period of [the CBA] subject to the rules and regulations of the plans and [the CBA].
Eligible employees covered by the [CBA] will participate in the Employee Medical and Employee Dental Plans generally available to the employees of the Company as of the date of [the CBA] as well as subsequent modifications to these Plans that might occur during the term of [the CBA] that also apply generally to the employees of the Company.
The Company agrees to pay 80% of the premiums for the Employee Medical and Dental Plan. The Company also agrees to pay 80% of any premium increases that occur during the term of [the CBA]. Employees covered by [the CBA] are responsible for the remaining 20% of the premium and 20% of any premium increases occurring during the term of [the CBA],

Aplt. App. at 39-40.

The Letter of Understanding states in part:

The parties agree that in the event [Co-noco Phillips] enters into an agreement to sell the Ponca City Refinery covered by the [CBA] in its entirety to a third party or enters into a joint venture or merger agreement covering the Ponca City Refinery in its entirety, [Conoco Phillips] will include in any sale, merger or joint venture agreement the requirement that the successor company shall recognize the Union- as the exclusive representative of the bargaining unit and shall adopt the [CBA] and all existing Memoranda of Agreement....
Except that such successor company shall not be required to continue the existing employee benefits, but shall be entitled to establish a package of benefits for employees covered by the [CBA] that are reasonably comparable in the aggregate. If requested by the Union, the [successor] company shall negotiate with the Union in good faith regarding those benefits. Should an agreement not be reached, the successor company may proceed with implementation of the proposed Benefits Plans and the Union will not have the right to strike,
However, if the parties are unable to reach an agreement on Benefits Plans, the successor company will have the option to waive the foregoing “reasonably comparable Benefits Plans in the aggregate” commitment and provide the Union with the option to strike the successor employer on Benefits Plans only by giving the successor company 45 days notice within 15 days after the Union has been informed by the successor company that it is waiving the commitment for “reasonably comparable Benefits Plans in the aggregate”.

Id, at 96-97. A later addendum to the CBA dictates that the Letter would remain in force for the term of the CBA.

Article 30 dictates a four-step procedure for settling grievances. Step A begins when the grieving party requests a meeting with a supervisor to discuss the details of the grievance. If the Company denies the grievance at Step A, the grieving party may progress to Step B by providing the grievance in writing to the second level of supervision. If the Company denies the grievance again, the party may proceed to Step C, where the grievance will be discussed at the next meeting between the Union and the Company’s management. If the Company denies the grievance at the first three steps, then the grieving party may submit the dispute to arbitration. The CBA’s arbitration clause defines the scope of arbitration: “Only differences arising between the Union and the Company relating to interpretation or performance of [the CBA] which cannot be adjusted by mutual agreement and have gone through the grievance procedure are arbitrable, except as otherwise provided in [the CBA].” Id. at 84.

B. The Grievances

In July 2012, the Company notified the Union that certain benefits plans would be modified or canceled, including benefits for current employees and retirees contained in the Employee Medical Plan, effective January 1, 2013. The Union responded in September 2012, requesting to bargain over the changes pursuant to the CBA, thereby initiating the grievance procedure. The Company denied the request to bar-gaini and the Union filed two written grievances: Grievance R12-5 (Changes to Employee Medical Plan) and Grievance R12-6 (Changes to Retiree Medical Plan). In Grievance R12-5, the Union said in part:

The Union sites' [sic] articles 1, 3 and 15 in this grievance, as well as the successor ship [sic] letter, and any other articles that may be found to apply. Article 15 states that the Company agrees to pay 80% of the premiums for the plan, and also states that the Company agrees to pay 80% of any premium increases. It appears that the plan increases for the employee exceed the medical inflation rate and therefore exceed the 20% employee portion.

Id. at 111. With respect to the Company’s “High Deductible Health Plan (HDHP)” and “Primary Preferred Provider Organization (PPO)” plan, id. at 103, in Grievance R12-5, the Union also said:

Further, the HDHP plan [sic], or “consumer” plan, has and [sic] employee premium even though 100% of the HDHP/Consumer premium would be less than the 80% portion of the PPO plan. We believe the PPO [plan] to be the benchmark plan for purposes of 80/20. In previous years the HDHP plan [sic] premium for employees was $0, or effectively $0 with the wellness credit. The Union demands that the Company honor the CBA, adjust the premiums and comply with the 80/20 language and make whole all affected employees. Further, the Union demands that the Company seice [sic] and desist violating the CBA.

Id. at 111.

In Grievance R12-6, with respect to “the Company’s proposed changes to the retiree medical plan,” id. at 112, the Union said in part:

The Company has denied the Union’s demand to bargain, citing Article 15. Article 15 does not mention the retiree medical plan.
The Union cites Articles 1, 3 and 15 in this grievance as well as the successor ship [sic] letter and any other articles that may be found to apply. The Union demands that the Company honor the CBA and make whole all affected employees. Further, the Union demands that the Company seice [sic] and desist violating the CBA.

Id.

The Company responded to both grievances. As to the Retiree Medical Plan, the Company responded that “[t]he retiree medical plan is not a separate medical plan, but a part of the Employee Medical Plan.” Id. at 118. The Company then stated that “[u]nder Article 15, the Union ha[d] explicitly agreed to the terms of the Company medical plans, as well as any subsequent modifications, which generally apply to all Phillips 66 employees” and that, because the proposed modifications applied to all Company employees (and retirees), the modifications were “permissible under Article 15.” Id. at 115, 118. The Company also pointed out that Conoco-Phillips had modified the plans on several occasions, to which the Union had not filed grievances.

Next, the Company contended that the Letter of Understanding was not relevant to the dispute because it only applied if ConocoPhillips sold the refinery or entered into a joint venture or merger with another company to manage the refinery, whereas ConocoPhillips had spun off the refinery to the Company. Finally, as to only Grievance R12-5, the Company said:

In addition, contrary to the Union’s claims, there is no requirement under the [CBA] that the PPO medical plan be used as a “benchmark” for calculating employee premiums paid for other medical plans. We also note that the [CBA] contains no reference to a “medical inflation rate”, or that this be used as a factor to calculate employee premiums. Rather, Article 15 clearly states the method to be used when calculating employee premium costs for the medical and dental plan, as well as the cost allocation for premiums between the Company and employees (the “80/20 split”)....
In this instance, the Company will pay more than 90% of the total cost for the HDHP in 2013 as confirmed by data recently submitted to the Union in response to an information request. This is well in excess of its obligations under Article 15.

Id. at 115.

The Union advanced the grievances to Step C, and the Company replied with statements virtually identical to its Step B responses. The Union requested to advance the grievances to arbitration. The Company refused:

The Company has been advised of your request to arbitrate the above-referenced grievances. However, these grievances are not arbitrable, and the Company will not agree to arbitrate these matters. Pursuant to Article 15 of the [CBA], the Union agreed to participate in certain Employer-sponsored benefit plans “... as of the date of this Agreement as well as subsequent modification to these Plans that might occur during the term of this Agreement ... [.]” As such, the decision to modify such plans has been delegated to the Company under the CBA, and there is nothing to arbitrate. The Company clearly did not agree to arbitrate disputes arising from such modifications.
Furthermore, over the past several years, the Company has often made changes to these Plans pursuant to the language of Article 15, never bargained with the Union regarding such changes, and the Union has never sought to arbitrate over the Company’s right to make such changes or the changes themselves. Thus, by its past practice, the Union has waived its right, to the extent it ever had such right, to arbitrate the Company’s right to make such changes, or the changes themselves.
The Union’s claim that its right to arbitrate these disputes arises under the Parties’ Letter of Understanding regarding successorship is similarly misplaced. That Letter of Understanding only applies to a sale, merger, or joint venture. It is undisputed that Conoco-Phillips’ spin-off of Phillips 66 to new owners does not qualify under any of those three corporate transactions. Therefore, there was never any agreement to arbitrate such disputes.
Finally, with respect to R12-6 and the Retiree Medical Plan, there is no agreement to arbitrate any dispute over changes to such benefits because there is no duty to bargain over such benefits in the first place and, therefore, nothing to arbitrate.

Id. at 134.

The Union filed suit in the Northern District of Oklahoma, seeking an order to compel arbitration. After cross-motions for summary judgment, the court granted summary judgment for the Union, ordering the parties to submit both grievances to, arbitration. The Company timely appealed.

II

We review de novo the grant of summary judgment, including where the district court has ordered arbitration, “applying the same legal standard as the district court.” Commc’n Workers of Am. v. Avaya, Inc., 693 F.3d 1295, 1300 (10th Cir. 2012). “Whether a particular grievance is arbitrable under the terms of a collective bargaining agreement is a question of law we review de novo.” Local 5-857 Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Conoco, Inc., 320 F.3d 1123, 1125 (10th Cir. 2003). The Supreme Court’s pathmarking “Steelworkers trilogy” established the framework used to determine whether a collective-bargaining dispute is arbitrable. See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960). The Court also recently “reemphasize[d] the proper framework for deciding when disputes are arbi-trable under [its] precedents.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 297, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010).

Whether the parties intended to arbitrate a particular dispute “typically” is a question for a court rather than an arbitrator. Id. at 296, 130 S.Ct. 2847. The parties must have consented to arbitrate the'dispute at issue: “Arbitration is strictly ‘a matter of consent,’ and thus ‘is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.’” Id. at 299, 130 S.Ct. 2847 (first quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989); then quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). On the other hand, the Supreme Court has recognized a “federal ‘policy favoring arbitration’ ” of labor disputes. Id. at 301, 130 S.Ct. 2847 (quoting AT&T Techs., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)); Avaya, 693 F.3d at 1300 (citing Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. 1347).

We strike a balance between.these competing principles by applying a presumption that a dispute is arbitrable unless we,may say “with positive assurance” that the parties intended otherwise:

The Supreme Court has held that when a collective-bargaining agreement contains an arbitration provision, “there is a presumption of arbitrability in. the sense that am order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” This rule reconciles the principle that “a party cannot be required to submit to arbitration any dispute [that] he has not agreed so to submit” with the federal policy and presumption favoring arbitration in the labor context.

Int’l Bhd. of Elec. Workers, Local #111 v. Pub. Serv. Co. of Colo., 773 F.3d 1100, 1107-08 (10th Cir. 2014) (alteration in original) (citations omitted) (first quoting AT&T Techs., 475 U.S. at 650, 106 S.Ct. 1415; then quoting id. at 648, 106 S.Ct. 1415).

Courts “discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted.” Granite Rock, 561 U.S. at 301, 130 S.Ct. 2847. To rebut the presumption, the party opposing arbitration must provide “forceful evidence” that the parties intended to exclude the dispute from arbitration: “In the absence of any express provision excluding a particular grievance from arbitration,” the Court held, “only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here ... the arbitration clause [is] quite broad.” Warrior & Gulf, 363 U.S. at 584-85, 80 S.Ct. 1347.

Therefore, “[w]hen a collective-bargaining agreement contains an arbitration provision and a dispute arises between the parties to the agreement, a court should send the dispute to arbitration unless it can say with positive assurance that the arbitration provision is not susceptible to an interpretation that covers the dispute.” Local #111, 773 F.3d at 1107. We must examine the grievances here and determine whether they fall within the scope of the arbitration agreement contained in Article 30. Unless we can say with positive assurance that they do not, we must affirm the order compelling arbitration, unless the Company has rebutted the presumption with forceful evidence that the parties intended to exclude the grievances from arbitration.

A The Scope of the Arbitration Agreement

The arbitration agreement in Article 30 of the CBA states: “Only differences arising between the Union and the Company relating to interpretation or performance of [the CBA] which cannot be adjusted by mutual agreement and have gone through the grievance procedure are arbitrable, except as otherwise provided in [the CBA].” Aplt. App. at 84. The grievances here went through the grievance procedure and could not be adjusted by mutual agreement. Therefore, the grievances fall within the scope of the arbitration agreement if they are differences arising between the Union and the Company relating to interpretation or performance of the CBA, unless the CBA otherwise provides an exception.

In Grievance R12-5, the Union expressly alleged violations of the Company’s performance obligations under the CBA. Specifically, the Union alleged" that the Company had violated its obligation in Article 15 to pay 80% of benefit plan premiums and increases in those premiums, contending that “[i]t appears that the plan increases for the employee exceed the medical inflation rate and therefore exceed the 20% employee portion.” Id. at 111. The Union further alleged that the HDHP charged a premium “even though 100% of the HDHP/Consumer premium would be less than the 80% portion of the PPO plan.” Id. It alleged that this would violate the CBA, because the Union “believe[ed] the PPO [plan] to be the benchmark plan for purposes of 80/20,” whereas, “[i]n previous years, the HDHP ... premium for employees was $0, or effectively $0 with the wellness credit.” Id. This grievance relates to both the Union’s interpretation of the 80% obligation and the Company’s performance of that obligation. The Union also alleged violations of the CBA, albeit less specifically, in Grievance R12-6. In both grievances, the Union alleged that the Company had violated Articles 1, 3, and 15, and the Letter of Understanding.

In its responses to the grievances, the Company argued that it had not violated the CBA. For example, the Company disputed that it had violated the 80% obligation, contending that it would pay “well in excess of its obligations under Article 15.” Id. at 115. Thus, the Company and the Union did not disagree that Article 15 applied to the dispute. Instead, they disagreed on whether the Company had violated Article 15. The Company in fact argued that Article 15 applies, but that the Union’s interpretation of the CBA is incorrect.

Once the Union requested to proceed to arbitration, the Company responded that the parties did not agree to arbitrate the grievances. The Company argued that Article 15 indicated the Union’s agreement that the Company could unilaterally modify the benefit plans. The Company argued that it “clearly did not agree to arbitrate disputes arising from such modifications.” Id. at 134. This argument itself shows that the parties differed over the interpretation of Article 15—and it ignores the main thrust of Grievance R12-5, which was that the Company had breached its 80% premium-coverage obligation under the CBA. Regarding Grievance R12-6, the Company argued that “there is no agreement to arbitrate any dispute over changes to [the Retiree Medical Plan] benefits because there is no duty to bargain over such benefits in the first place and, therefore, nothing to arbitrate.” Id. These arguments related to the interpretation of Article 15 and the. Company’s performance obligations under that article.

The scope of the arbitration clause is broad; the disputes between the parties need only relate to interpretation or performance of the CBA. The parties’ disputes here almost certainly relate to the interpretation or performance of the CBA, and the Company has not' shown otherwise. Therefore we cannot say with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the grievances unless the Company shows an express provision of the CBA excludes the grievances from arbitration or has adduced forceful evidence showing the parties did not intend to arbitrate them. See Warrior & Gulf, 363 U.S. at 584-85, 80 S.Ct. 1347.

The Company does not point to any express provision excluding the grievances from arbitration. On appeal, the Company argues that “benefits disputes under the Letter” are excluded from the arbitration procedure because the Letter “provides its own dispute-resolution procedures separate from, the CBA’s grievance/arbitration process.” Aplt. Br. at 13. But that procedure requires that the successor company provide benefits “that are reasonably comparable in the aggregate” and, upon request, “negotiate with the Union in good faith regarding those benefits.” Aplt. App. at 96. The Letter does not provide a procedure in the event that the successor company does not negotiate in good faith. Therefore, we cannot interpret the above language to exclude from arbitration disputes related to the interpretation or performance of the Letter where, as here, the Company refuses to negotiate in good faith. We cannot say with positive assurance that the Letter excludes these grievances from arbitration.

The Company also argues that the Union relinquished its right to negotiate the terms of the benefit plans because, per Article 15, participation in the plans is subject to “subsequent modifications to these Plans that might occur.” Aplt. Br. at 8. This is an argument over the interpretation of Article 15, not an express exclusion from arbitration. The interpretation of this language in the CBA is an example of exactly what the parties reserved for arbitration. Even if the meaning of this provision of the CBA were unambiguously favorable to the Company (which we do not decide), we could not deny arbitration on that basis, because we do not compel the arbitration of “merely those [grievances] that [we] may deem to be meritorious.” Am. Mfg. Co., 363 U.S. at 567, 80 S.Ct. 1363; see also Avaya, 693 F.3d at 1300 (holding that we do not rule on the potential merits unless they “are bound up with the question of arbitrability”).

The Company does not cite any other express provision in the CBA that excludes the grievances from the scope of arbitration. We cannot say with positive assur-anee that the arbitration agreement is not susceptible to an interpretation that covers the grievances. Therefore, the parties must arbitrate the grievances unless the Company has provided forceful evidence that the parties intended to exclude them from arbitration.

B. No Forceful Evidence to Exclude the Grievances from Arbitration

On appeal, the Company attempts to show that the parties intended to exclude the grievances from arbitration in three ways. First, it contends that “[t]he Plan is not a negotiated part of the CBA, and changes to the Plan are not subject to the CBA’s arbitration clause.” Aplt. Br. at 7. Second, it argues that “[t]he Plan’s independent dispute-resolution procedure is evidence that the parties did not intend to arbitrate disputes over Plan amendments.” Id. at 9. Third, it maintains that “[t]he Letter of Understanding demonstrates that the Grievances are not arbitrable.” Id, at 12. None of these arguments is forceful evidence that the parties intended to exclude the grievances from arbitration.

The Company’s first argument is that the grievances only “challenge amendments to the benefits Plan—a document outside of and independent from the CBA.” Id at 7. The Company then suggests that “the parties expressly agreed” in Article 15 that the Plan could be modified “according to the Plan rules.” Id. at 8. Under those rules, it avers, the Plan may be unilaterally amended, notwithstanding the terms of Article 15. The Company states that the Union “expressly agreed” to allow the Plan to be amended unilaterally “in exchange for access to the Plan.” Id. at 9. It also argues that anything “outside the four corners of the CBA” is not arbi-trable. Id.

The Company misstates the Union’s argument. The Union did not merely challenge the amendments to the benefits plans; it also challenged the right to unilaterally modify the plans in the first place. As just one example, the Union alleged that the Company violated its obligation to pay 80% of any increase in the employees’ premiums under any new or modified plan—a dispute squarely on the terms of Article 15. The Company fails to address this allegation in its briefing. And though it did not concede the issue, at oral argument the Company offered no plausible rationale for concluding that a dispute over the CBA’s 80/20 rule does not relate to the CBA.

Where the Company says the Union “expressly agreed” to anything, not only does the Company exaggerate the terms of the CBA, it is arguing about the interpretation of the terms. The arbitration agreement encompasses disputes “relating to interpretation or performance of [the CBA],” Aplt. App. at 84, so the CBA is forceful evidence that arbitration is not restricted to the four corners of the CBA. And even if the Union were arguing solely about the terms of the plans (which it is not), the plans arguably relate to the Union’s interpretation and the Company’s performance of the CBA. The Company’s first argument fails to provide forceful evidence that the parties intended to exclude the grievances from arbitration.

The Company’s second argument is that “[t]he Plan’s internal dispute-resolution procedure further rebuts the presumption of arbitrability.” Aplt. Br. at 9. The Company contends that challenges to Plan amendments must go through the Plan’s procedures rather than the CBA’s grievance process. That is so, it argues, because the Plan dictates that “the Plan’s Administrators have sole authority ‘to interpret the Plan’ and ‘to determine all questions of participation, benefit eligibility and benefit amount[s]’ and further provides that the Plan Administrators “ ‘review and resolve any disputes or claims which may arise under the Plan,’ and [that] their determinations are ‘binding, final and conclusive on all parties.’ ” Id. (quoting Aplt. App. at 284-85).

Most importantly, the internal rules of the Plan could not provide forceful evidence of the parties’ intent because the parties did not adopt those rules together. Rather, the Plan document was adopted unilaterally—the last line of the document reads, “Phillips 66 Company has executed this document,” with no mention of the Union or its involvement. Aplt. App. at 287. The Company does not offer evidence to the contrary. And because Article 3 of the CBA states that “[the CBA] is the entire Agreement between the [Union] and the [Company],” id. at 34, a conflicting provision in the Plan documents could not provide evidence of the parties’ agreement.

Moreover, the Union does not seek an interpretation of the Plan or a determination of participation and benefits; the grievances did not arise under the Plan. Rather, the parties dispute the Company’s authority to unilaterally modify or cancel the benefits plans under the terms of the CBA. The Plan’s internal procedures are wholly irrelevant to a dispute over whether the Company violated the CBA, which is all the Union has alleged. The salient example is the alleged violation of the 80% premium-payment obligation, which is enumerated in the CBA, not the Plan. Therefore, the Plan does not provide forceful evidence that the parties intended to exclude the grievances from arbitration.

The Company’s third argument is that the Letter of Understanding shows that the grievances are not arbitrable. It argues that the Letter is inapplicable because it only applies when there has been a sale, merger, or joint venture, whereas the Company spun off from its former parent company, ConocoPhillips. This argument requires interpreting the terms of the Letter, which was incorporated into the CBA, And the interpretation of the CBA is exactly what the parties agreed to arbitrate.

The Company then contends that, even if the Letter bears on the grievances, the parties did not agree to arbitrate disputes over the Letter, because it contains a separate dispute-resolution procedure allowing the Company to implement changes to the plans unilaterally without affording the Union the right to strike. But the Company is incorrect—for benefit plans, the Letter provides the Union with the right'to strike if the successor company waives the commitment to provide reasonably comparable benefits in the aggregate. The Letter also does not specify a procedure in case the successor company refuses to negotiate, so we must presume that the CBA’s grievance procedure applies in such instances, as occurred here. Therefore, the Letter does not provide forceful evidence that the parties intended to exclude the grievances from arbitration.

Ill

We cannot say with positive assurance that the arbitration provision in the CBA is not susceptible to an interpretation that covers the grievances. The Company does not rebut that interpretation with forceful evidence of the parties’ intent to exclude the grievances from arbitration. Therefore, the parties must arbitrate both grievances.

The judgment of the district court is AFFIRMED.

      . The CBA expressly excludes certain claims from arbitration. See Aplt. App. at 171 (art. 11) ("Discharge for a confirmed positive test under the substance abuse policy shall not be subject to grievance or arbitration.”); id. at 172 (art. 11) ("Grievances originating under Article 11 are subject to the grievance procedure but cannot be submitted to arbitration; and no arbiter has the authority to rule on Article 11 with the exception of determination of just cause in the first sentence of Article 11.”); id at 194 (art. 20-3) (“During the period an employee is classified as probationary, his termination shall not be subject to the grievance procedure and arbitration.”); id. at 225 (art. 37) ("Discharge of any casual/temporary employee shall be at Management’s discretion and shall not be a subject for grievance or arbitration.”). The Company does not cite any such provision that applies here.


source: Caselaw Access Project

author: EBEL, Circuit Judge.

license: Public Domain

text:
    Candace FOX; Anthony Gillespie; Charles Schreckenbach, Plaintiffs Counter Defendants-Appellees, v. TRANSAM LEASING, INC.; Transam Trucking, Inc., Defendants Counterclaimants-Appellants.
    No. 15-3203
    United States Court of Appeals, Tenth Circuit.
    Filed October 18, 2016

      Christopher M. McHugh (Shannon D. Johnson and Kendra D. Hanson with him on the briefs), Seigfreid Bingham, P.C., Kansas 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.
   EBEL, Circuit Judge.

Plaintiffs, three independent truckers representing themselves and a class of similarly situated truck drivers (“truckers”), contend that Defendants TransAm Trucking, Inc. and TransAm Leasing, Inc. (collectively “TransAm”) violated the Department of Transportation’s truth-in-leasing regulations by requiring the truckers, who lease their trucks and driving services to TransAm, to pay TransAm $15 each week to use TransAm’s satellite communications system. This $15 usage fee violates 49 C.F.R. § 376.12(i), which precludes a motor carrier like TransAm from requiring a trucker “to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement.” We, therefore, affirm partial summary judgment for the truckers. That ruling will support the truckers’ requests for injunctive and declaratory relief. But the truckers also asserted a claim for damages, which the district court certified as a class action. Because the truckers failed to present any evidence of their damages resulting from the unlawful usage fee, however, the district court should have entered summary judgment for TransAm on that damages claim. Having 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 independent truckers and federally regulated motor carriers like TransAm, requiring, among other things, that the leases 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 Transportation (“DOT”) with further regulating these leases; the DOT does so through its Federal Motor Carrier Safety Administration and its truth-in-leasing regulations, 49 C.F.R. Pt. 376. See Swift Transp., 632 F.3d at 1113.

The truth-in-leasing regulations protect independent truckers from motor carriers’ abusive leasing practices. See Owner-Operator Indep. 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 546, 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 disclosure between the carrier and the owner-operator of the elements, obligations, and benefits 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 stability and economic welfare of the independent trucker segment of the motor carrier industry.

In re Arctic Express, 636 F.3d at 796 (internal quotation marks, 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 Tran-sAm has undertaken abusive practices that the . truth-in-leasing regulations preclude. Plaintiffs, three independent truckers, sued TransAm on behalf of themselves and all similarly situated truckers. The truth-in-leasing claim at issue here, is but one of a number of claims that the truckers have asserted against TransAm. As a general overview of this litigation, the truckers have alleged that TransAm recruited independent .drivers by falsely representing, among other things, how much money drivers could make as independent truckers leasing their trucks and driving services to TransAm, 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 vehicles; the truckers in turn leased the vehicles, plus their driving services, back to TransAm; and, contrary to its promises, TransAm limited the amount of money that the independent truckers made.

Based on these allegations, the truckers asserted two claims alleging that TransAm had violated the Kansas Consumer 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’ vehicles and driving services violated the DOT’s truth-in-leasing regulations. TransAm, in turn, asserted counterclaims alleging that the truckers had breached their contracts with TransAm.

The only claim at issue in this interlocutory appeal is the truckers’ claim that TransAm violated the truth-in-leasing regulations—specifically 49 C.F.R. § 376.12(i)—by requiring the truckers to pay TransAm $15 each week to use Tran-sAm’s satellite communications system. Such a system has a variety of uses in the trucking industry, including providing a means of communication between the carrier and the truckers, route planning, keeping automated records of drivers’ hours and state fuel taxes, and monitoring the temperature of any refrigerated trailer being hauled.

TransAm purchases its satellite communications system from third-party vendors. According to TransAm, it pays $25 per week per driver for its system.

In order to access TransAm’s system, TransAm’s standard lease requires that a trucker’s vehicle “must contain a satellite communications unit which is compatible with Carrier’s satellite communications system. If the Equipment does not have a compatible satellite communications unit, then Contractor [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 compatible satellite communications unit in the Equipment 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 this subparagraph 1(b) from the compensation otherwise payable to Contractor hereunder.

(Id. (emphasis added); see also id. 578 ¶ 15(b) (further authorizing TransAm to deduct this $15-per-week usage fee jrom compensation TransAm owes the trucker).) Drivers who work as TransAm’s employees also use its satellite 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 TransAm and then leased their vehicles and driving services back to TransAm—but only for the truckers’ claim challenging the $15 fee for using TransAm’s satellite communications system. The parties then filed cross-motions for summary judgment on that claim. The district court granted the truckers’ motion for partial summary judgment on liability, ruling the $15 fee violated 49 C.F.R. § 376.12(1).

TransAm also moved for summary judgment, arguing among other things that, even if its $15 usage fee technically 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.

II. STANDARD OF REVIEW

Rule 56(a), Fed. R. Civ. R, requires a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material 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 States v. Supreme Ct. of N.M., 839 F.3d 888, 907-08, 2016 WL 5946021, at *13 (10th Cir. June 7, 2016). “Where, as here, we are presented with cross-motions for summary 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 quotation marks omitted).

III. DISCUSSION

A. TransAm violated the truth-in-Ieas-ing regulations by requiring truckers to pay TransAm $15 each week to use TransAm’s satellite communications system

The truckers’ claim challenging TransAm’s $15 weekly fee to use Tran-sAm’s satellite communications system requires us to address the interplay between two truth-in-leasing regulations. The truckers contend that this $15 usage fee violates 49 C.F.R. § 376.12(i). That regulation provides in pertinent part that

[t]he lease shall specify that the lessor is not required 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 lease agreements, but the carrier must also “adhere[] to and perform[]” this lease provision, id. § 376.12; that is, the carrier cannot actually require truckers “to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement.”

In defending its $15 usage fee, TransAm relies on a second truth-in-leasing regulation, 49 C.F.R. §’ 376.12(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 copies 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 its 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 violates § 376.12Ü)

TransAm violated § 376.12(f) because it required truckers to purchase a service— the use of TransAm’s satellite communications system—as a condition of entering into a lease arrangement. More specifically, TransAm required truckers to pay TransAm $15' each week to use TransAm’s satellite communications system, regardless of whether the truckers borrowed the hardware to access that system from TransAm or furnished it themselves. We agree with the district court that, while TransAm can require truckers to use a satellite communication system, TransAm “cannot under § 376.12(i) require its independent contractors to purchase or rent this system from it” (Aplt. App. 1018). Instead, truckers “must have the option of obtaining equipment or services—including satellite communications services— from an outside source.” (Id. (citing Lease & Interchange of Vehicles, 129 M.C.C. 700, 729-30 (I.C.C. 1978)); ck Port Drivers Fed’n 18, Inc. v. All Saints, 757 F.Supp.2d 463, 467 (D.N.J. 2011) (holding lease that required truckers 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)).

Our conclusion that TransAm’s requiring truckers to pay it $15 each week to use TransAm’s satellite communications system violated 49 C.F.R. § 376.12(f) 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 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 numerous problems and abuses suffered by the independent truckers.” In re Arctic Express, 636 F.3d at 795. “Congress’s substantive purpose in' authorizing the Truth-In-Leasing regulations was to protect” independent truckers, M. (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 “inequities in the lessor/lessee relationship” between carriers and independent truckers, Lease and Interchange 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 carrier from requiring a trucker to purchase products, equipment, or services from it as a condition of entering into a lease with the carrier eliminates the opportunity for “unscrupulous carriers ... • to take unfair advantage” of truckers, but otherwise leaves the trucker and carrier free to negotiate the terms of their lease. Lease and Interchange 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 than the carrier, but a trucker with that option can still choose to purchase or rent the product, equipment, or service from the carrier. See id. This restriction on a carrier requiring a trucker to purchase or rent products, equipment, or services is “all inclusive.” Id.

For the foregoing reasons, then, we conclude that the provision in TransAm’s standard lease requiring truckers to pay it $15 each week to use TransAm’s satellite communications system violates § 376.12(i).

2. Section 376.12(h) does not validate TransAm’s $15 usage fee

In defending its requirement that truckers pay TransAm $15 each week for using TransAm’s satellite communications system, TransAm argues that this fee is lawful because it complies with another 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 amount of each item is to be computed.” Id. In addition, that regulation provides that “[t]he lessor shall be afforded copies of those documents which are necessary to determine the validity of the charge.” Id.

Section 376.12(h) addresses a different abusive practice than § 376.12(i). Section 376.12(i), on which the truckers rely, prevents a carrier from forcing truckers to purchase or rent products or services from the carrier rather than having the option of purchasing or renting those products or services from someone else. Section 376.12(h), on the other hand, precludes a motor carrier from unexpectedly reducing truckers’ compensation through unexplained deductions from their pay by requiring 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 carriers disclose the full costs that lessors will be obligated 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 affirmatively to authorize a carrier to deduct any particular fee. Instead, it addresses the procedures and disclosure requirements by which the carrier can deduct an authorized fee 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 the lessor’s compensation at the time of payment or settlement” (emphasis 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®), 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 calculated, and the carrier provides truckers with adequate documentation of the fees charged back to them. See Swift Transp., 632 F.3d at 1115-21; Owner-Operator Indep. Drivers Ass’n, Inc. v. Landstar Sys., Inc., 622 F.3d 1307, 1320-21 (11th Cir. 2010). Section 376.12(h) is a provision requiring disclosure and documentation of permissible fees, whereas § 367.12® imposes substantive restrictions as well as disclosure requirements on what fees a carrier can impose on truckers in the first place. Section 376.12(h), then, is not in tension with § 376.12(i), and it does not authorize TransAm to require truckers to pay a fe.e to purchase use of TransAm’s satellite communications system in violation of § 376.12(1).

3. The Seventh Circuit’s decision in Mayflower is inapposite

For the first time on appeal, TransAm relies on Owner-Operator Independent Drivers Association, Inc. v. Mayflower Transit. LLC, 616 F.3d 790 (7th Cir. 2010), to argue that § 376.12(h) permits Tran-sAm to pass along its expenses for the satellite communications system to the truckers. But Mayflower is inapposite.

Mayflower addressed payments for liability insurance which the carrier, by law, is required to purchase. 615 F.3d at 791. More specifically, the carrier must provide liability insurance for any vehicles it uses to transport freight, including vehicles it leases from independent truckers. Id. (citing 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 incurred 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 carrier was, in essence, forcing 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 expense in purchasing the required liability insurance to the truckers as forcing them to purchase liability insurance'from the carrier, contrary to § 376,12(i). Mayflower, 615 F.3d at 793, The Seventh Circuit further concluded that the carrier could charge truckers for the carrier’s 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 carrier could pass along to truckers the carrier’s own cost of purchasing required liability insurance. The carrier in Mayflower was not compelling truckers to purchase insurance that they could obtain elsewhere. In fact, the carrier 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 access to a satellite system from TransAm, when truckers could instead purchase that same service from another.entity. It is those compelled purchases that § 376.12(f) prohibits.

Importantly, Mayflower also held that another truth-in-leasing regulation, 49 C.F.R. § 376.12(j)(l), expressly permitted the carrier to charge back to truckers the carrier’s cost of providing liability insurance. 615 F.3d at 793-94. Section 376.12(j)(l) provides:

The lease shall clearly specify the legal obligation of the authorized carrier to maintain insurance coverage for the protection of the public pursuant to [Federal Motor Carrier Safety Administration] regulations under 49 . U.S.C. 13906. The lease shall further specify who is responsible for providing any other insurance coverage for the operation of the leased equipment, such as bobtail insurance. If the authorized carrier will make a charge back to the lessor for any of this insurance, the lease shall specify the amount which will be charged-back to the lessor.

The Court in Mayflower interpret ed the third sentence of this regulation— “[i]f the authorized carrier will make a charge 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 authorize 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 satellite and communications costs down to the truckers.

For the foregoing reasons, the district court correctly granted the truckers partial summary judgment, holding that Tran-sAm’s requirement that truckers pay it a $15 weekly fee to use TransAm’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 from TransAm’s § 376.12(i) violation

In addition to seeking declaratory and injunctive relief, the truckers also sought money damages for TransAm’s violation of 49 C.F.R. § 376.12®. See 49 U.S.C. § 14704(a)(2) (“A carrier ... is liable for damages sustained by a person as a result of an act or omission of that carrier ... in violation of this part”). It was the truckers’ burden to prove their actual damages, 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 TransAm’s satellite communications system instead of giving the truckers the option of purchasing that service elsewhere and not paying TransAm’s $15 weekly fee, see 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® (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 erred 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 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). As the movant, it was TransAm’s “initial burden of making a pri-ma facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016) (internal quotation marks omitted). Where, as here, however, the movant (TransAm) “does not bear the burden of persuasion at trial,” it “may satisfy [its summary-judgment] burden by pointing out to the court a lack of evidence on an essential element of the nonmovant’s claim.” Id. (internal quotation marks omitted). 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®.

The burden then shifted to the non-moving 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 marks omitted). “To satisfy this burden, the nonmovants [truckers] must identify facts by reference to affidavits, deposition transcripts, or specific exhibits 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.” M. (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® violation. In fact, the truckers did not even try to meet their burden. Nor did they posit a theory of how they would be entitled to damages. Instead, in response to TransAm’s motion for summary judgment, the .truckers simply asserted:

Defendants’ arguments regarding damages are premature. Plaintiffs can and will put on evidence regarding damages at time of trial. Defendants’ attempts to require Plaintiffs to establish damages at a summary judgment phase is incorrect. Plaintiffs are entitled to seek summary judgment on liability only—especially when liability is as clear-cut as it is here—leaving damages 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.

. Because the truckers did not try to meet their burden of proffering evidence to support their claim for damages in response to TransAm’s motion for summary judgment, Rule 56(a) required the district court to grant TransAm summary judgment on that damages claim. See Swift, 632 F.3d at 1122 (upholding summary judgment for carrier because truckers failed to produce any evidence that they had suffered any monetary loss from the carrier’s violations of the truth-in-leasing regulations).

The truckers could have made other arguments as to why it was premature for the district court to address their claim for damages. For example, the truckers could have argued they needed additional discovery in order to respond to TransAm’s motion for summary judgment on their damages claim. See Fed. R. Civ. P. 56(d) (addressing when facts are as yet unavailable to the nonmovant to oppose summary judgment). The truckers successfully made such an argument as to their individual claims for other violations of the truth-in-leasing regulations, and they made that argument in the same pleading in which truckers asserted they did not yet have to put forth evidence of their damages stemming from the § 376.12® violation. But the truckers never made a Rule 56(d) argument regarding their § 376.12® 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 district court’s determination that TransAm violated 49 C.F.R. § 376.12(i). But we REVERSE the district court’s decision to deny TransAm summary judgment on the truckers’ claim for damages resulting from that § 376.12(i) violation, and REMAND for further proceedings consistent with this decision.

      . Congress initially regulated leases between independent truckers and motor carriers through the Interstate Commerce Commission (“ICC”) until 1996, when Congress abolished that agency, see Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1082 (9th Cir. 2005), and transferred the responsibility 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 ICC originally enforced the truth-in-leasing regulations against carriers, when Congress abolished the ICC, Congress chose to enforce the regulations instead by providing truckers with a private cause of action against carriers for violating those regulations, see 49 U.S.C. § 14704(a). See also Swift Transp., 632 F.3d at 1113.

      . TransAm, then, has two lease arrangements with the truckers: 1) Defendant TransAm Leasing, Inc. leased vehicles to the truckers, and 2) the truckers then leased their vehicles and driving services to Defendant TransAm Trucking, Inc. TransAm Trucking is the parent company of TransAm Leasing. It is Tran-sAm Trucking's standard form lease agreement for the truckers' vehicles and their driving services that underlies the truth-in-leasing claim at issue in this case. Nevertheless, throughout. this litigation, the parties and the district court have treated the two TransAm business entities as one. Thus, we have not distinguished between them in this opinion.

      . See Al-Anazi v. Bill Thompson 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-Operator Indep. Drivers 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-CVW-FJG, 2004 WL 5249148, at *7 (W.D. Mo. Dec. 30, 2004) (unreported).

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

      . See also Davis v. Larson Moving & Storage Co., Civ. No. 08-1408 (JNE/JJG), 2008 WL 4755835, at *7-8 (D. Minn. Oct. 27, 2008) (unreported) (holding allegations that carrier required truckers to buy uniforms from the carrier stated 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(0); Ledar Transp., 2004 WL 5249148, at *7 (holding carrier’s requirement that truckers buy "insurance products” from carrier violated § 376.12(0); 1⅛ (holding carrier’s requirement that truckers "purchase repair services” from carrier violated § 376.12(0). These cases, plus the cases discussed in the text, appear to be all of the cases applying § 376.12(0 to alleged forced purchases from a carrier.

      . Cases applying § 376.12(h) illustrate that this regulation addresses the disclosures the carrier must make and the 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 that fee itself. See, e,g., Port 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 because it did not indicate how the amounts charged for "repairs or maintenance, gasoline, fuel, oil, labor, tires, insurance or merchandise” would be computed and because lease did "not include a provision that allows drivers to examine documentation regarding charge-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 the charges in their leases for drug 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 2007) (holding carrier violated § 376.12(h) by not clearly specifying charge backs for such things as fuel, repairs, tires, and administrative fees, by failing 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”); Owner-Operator Indep. Drivers Ass’n, Inc. v. Ledar Transp., No. 00-0258-CV-W-2-ECF, 2000 WL 33711271, at *1, *10 (W.D. Mo. Nov. 3, 2000) (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, license fees, fuel and highway use taxes, Qualcomm communications systems, cash advances, etc.”). Further, viewing § 376.12(h) as stating disclosure and documentation requirements is consistent with other provisions of the truth-in-leasing regulations, which mandate similar procedural protections and disclosure requirements for truckers by requiring, e.g„ that the lease specifies when the lease term begins and ends, 49 C.F.R. § 376.12(b); clearly states the compensation that the carrier will pay the trucker, id. § 376.12(d); specifies which party is responsible for removing identification devices at the end of the lease, id § 376.12(e); "clearly specifies] the responsibility of each party with respect to the cost of fuel, fuel taxes, empty mileage, permits of all types, tolls, ferries, detention and accessorial services, base plates and licenses, and any unused portion of such items,” id.; and specifies who is responsible for loading and unloading the vehicle and the compensation, if any, to be paid for that service, id

      . TransAm, for the first time on appeal, attempted to argue that the weeldy charge to truckers was only an economic adjustment of its costs, and not a required purchase. That argument is inconsistent with the characterization TransAm made to the district court and, further, we will not address arguments raised for the first time on appeal, see Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238-39 (10th Cir. 2016).

      . The truckers contend that evidence of actual damages is not "an essential element” of liability for violating § 376.12(1). We need not address whether that statement is correct, however, because TransAm does not appear 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 truckers want to recover damages for the violation of § 376.12(i) (which they do), then the . truckers must come forward with some evidence of their damages in order to oppose TransAm’s summary judgment motion successfully.