Petition for Writ of Certiorari — Flowers Foods, Inc., et al., Petitioners v. Angelo Brock

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Published Opinion of the

United States Court of Appeals for the

Tenth Circuit (Nov. 12, 2024) ............................. 1a

APPENDIX B: Order of the United States

Court of Appeals for the Tenth Circuit

Denying Rehearing and Rehearing En Banc

(Dec. 9, 2024) ..................................................... 35a

APPENDIX C: Decision of the United States

District Court for the District of Colorado

(May 16, 2023) ................................................... 37a

1a

_____________________

APPENDIX A

_____________________

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_____________________________

ANGELO BROCK, individually

and on behalf of all others

similarly situated,

Plaintiff–Appellee,

No. 23-1182

v.

FLOWERS FOODS, INC., a

Georgia limited liability company;

FLOWERS BAKERIES, LLC, a

Georgia limited liability company;

FLOWERS BAKING CO. OF

DENVER, LLC, a Colorado

limited liability company,

Defendants–Appellants.

--------------------------CHAMBER OF COMMERCE OF

THE UNITED STATES OF

AMERICA,

Amicus Curiae.

___________________________________

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Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:22-CV-02413-CNS-MEH)

___________________________________

Traci L. Lovitt (Matthew W. Lampe, Jack L. Millman,

and Amanda K. Rice, of Jones Day, New York, New

York and Detroit, Michigan; Jared Lee Palmer and

David Lee Zwisler of Ogletree Deakins, San Francisco,

California and Denver, Colorado, with her on the

briefs), for Defendants-Appellants.

Shaun Markley of Nicholas & Tomasevic, LLP, San

Diego, California, for Plaintiff-Appellee.

___________________________________

Before

MATHESON,

BACHARACH,

PHILLIPS, Circuit Judges.

and

___________________________________

PHILLIPS, Circuit Judge.

___________________________________

Flowers Foods, Inc., Flowers Bakeries, LLC, and

Flowers Baking Co. of Denver, LLC (collectively,

“Flowers”) appeal the district court’s interlocutory

order denying their motion to compel arbitration. This

litigation arises from a putative class-action complaint

alleging wage and hour violations. In 2016, Angelo

Brock began working as an independent distributor

for Flowers Baking Co. of Denver, LLC (“Flowers

Denver”). He delivered baked goods produced out-ofstate to various retail stores in Colorado. But the

working relationship soured. Brock sued Flowers for

violations of the Fair Labor Standards Act and

Colorado labor law on behalf of himself and other

similarly situated workers. Flowers then moved to

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compel arbitration of Brock’s claims based on the

parties’ Arbitration Agreement. The district court

denied that motion.

This appeal focuses on whether the Arbitration

Agreement requires Brock to arbitrate his claims

individually. Flowers challenges the district court’s

order denying arbitration under the Federal

Arbitration Act (FAA) and Colorado law. First,

Flowers argues that the district court erred by

concluding that § 1 of the FAA exempts Brock from

arbitration. Flowers asserts that Brock’s class of

workers is not directly engaged in interstate commerce

and that the parties’ Distributor Agreement does not

qualify as a contract of employment. Second, Flowers

argues that the district court erred by concluding that

the plain language of the Arbitration Agreement

foreclosed arbitration under Colorado law.

On the interstate-commerce question, we agree with

the district court: Brock’s class of workers is engaged

in interstate commerce. Because we either decline to

review or lack jurisdiction over all other issues, we

affirm.

BACKGROUND

I.

Factual Background

A.

The Parties

Flowers Foods, Inc., a packaged-bakery-foods

company, produces “fresh breads, buns, rolls, and

snack cakes” that are sold in supermarkets, drug

stores, and convenience stores throughout the United

States. App. vol. I, at 47, 140. Flowers Foods, Inc.

owns various subsidiaries, including Flowers Bakeries,

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LLC and Flowers Denver. 1 To “bring bakery products

to market,” Flowers uses a “direct-store-delivery”

system. Id. at 47, 49, 141. Under this system, Flowers

contracts with independent distributors who buy the

rights to distribute Flowers products in particular

geographic areas. These distributors buy baked goods

from Flowers and then resell and deliver the goods to

stores along their routes.

The independent distributors also stock shelves,

maintain special displays, and develop and preserve

positive customer relations.

Flowers, in turn,

produces and markets the baked goods. Flowers

operates the second-largest baking company in the

United States and generates billions in sales, with

approximately 85% of sales coming from the directstore-delivery system. This system allows Flowers to

“sell[] its products through a network of independent

distributors to retail and foodservice customers.” Id.

at 129.

Flowers Denver contracted with independent

distributor Brock, Inc., the company owned and

operated by Angelo Brock. Brock, Inc. purchased the

rights to distribute Flowers products in certain parts

of Colorado, as governed by a “Distributor

Agreement.” 2 Under the direct-store-delivery system,

1 Flowers Foods, Inc. is the ultimate parent company of Flowers

Bakeries, LLC and Flowers Denver.

wholly owns Flowers Denver.

2 Flowers

Flowers Bakeries, LLC

Finance, LLC, a subsidiary of Flowers Foods, Inc.,

financed Brock, Inc.’s purchase of the distribution route. The

Secured Promissory Note of Corporation governs Brock’s

repayment of the principal balance and interest to Flowers

Finance, LLC. For most independent distributors, a Flowers

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Brock, Inc. orders products from Flowers Denver or its

affiliates. Most of these products “are produced by outof-state [Flowers] bakeries in response to [Brock’s]

specific orders.” Id. at 49, 130–31. Flowers Denver

then delivers the completed products to an agreed-on

warehouse where Brock picks up the products. 3

Flowers unloads the shipments and places the orders

in a designated area of the warehouse. Brock arrives

at the warehouse within a day of delivery, signs off on

the products, loads the products onto his vehicle, and

delivers the products to the various stores that serve

as his end customers. According to Flowers, Brock,

Inc.’s profit equals the price it sells the Flowers

products to its customers, minus the price expended

for its purchasing products from Flowers as well as its

business expenses.

B.

The Distributor Agreement

In 2016, Brock signed a Distributor Agreement to

become an independent distributor for Flowers. The

Distributor Agreement governs the business

subsidiary finances a portion of the route’s purchase price

through interest-bearing notes.

3 Though the district court referred to the warehouse as “Brock’s

warehouse,” Brock v. Flowers Food, Inc., 673 F. Supp. 3d 1180,

1182–83 (D. Colo. 2023), the record shows that Brock does not

own any of the warehouses used for product pick-up. Instead, the

Distributor Agreement required Brock to choose one of three

warehouse locations for product delivery and to pay a fee to use

the warehouse. App. vol. I, at 61, 82. A declaration from Robert

Shaw, the Distributor Enablement Operations Coordinator for

Flowers Denver, states that Flowers Denver “has a warehouse in

Denver, Colorado, from where Brock, Inc. accepts its ordered

product.” Id. at 281–82. The record thus indicates that Flowers

owns the warehouse where Brock picks up the products.

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relationship between Flowers Denver and Brock, Inc.

Relevant to this appeal, the Distributor Agreement

contains a “Mandatory and Binding Arbitration”

provision

that

incorporates

an

“Arbitration

Agreement.” Id. at 67, 84 (Ex. K to the Distributor

Agreement). The Arbitration Agreement requires that

“any claim, dispute, and/or controversy” be arbitrated

“exclusively” under the FAA, “except as otherwise

agreed to by the parties and/or specified herein.” Id.

at 84. Covered claims include claims challenging the

independent distributor’s status as an independent

contractor and claims for unpaid compensation. The

Arbitration Agreement also states that it “shall be

governed by the FAA and Colorado law to the extent

Colorado law is not inconsistent with the FAA.” Id. at

86.

The

Distributor

Agreement

also

outlines

parameters for Brock, Inc.’s operations. We provide a

snapshot of some parameters here. Brock, Inc. must

use “commercially reasonable best efforts to develop

and maximize the sale” of Flowers products in its

geographic territory. Id. at 55. And it must do so in

accordance with “Good Industry Practice,” which

includes “maintaining an adequate and fresh supply”

of Flowers products, “actively soliciting” unserved

stores in the territory, and promptly removing stale

products. Id. at 53–55. Brock, Inc.’s employees must

“maintain a clean and neat personal appearance

consistent with the professional image customers and

the public associate with [Flowers Denver], and

customer requirements.” Id. at 55. Brock, Inc. may

not sell products that compete with Flowers’s products

or products that otherwise interfere with the

distribution of Flowers’s products in the defined

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territory. If Brock, Inc. believes a certain account is

unprofitable, it must provide Flowers Denver with

written notice and a detailed financial analysis.

Finally, Brock signed a “Personal Guaranty,” under

which he personally guaranteed performance and

compliance with the terms of the Distributor

Agreement. The Personal Guaranty includes an

acknowledgment that Brock is “subject to the

Arbitration Agreement.” Id. at 79.

II. Procedural Background

Brock filed this putative collective and class action

against Flowers for violations of the Fair Labor

Standards Act and Colorado labor law. He alleges that

Flowers misclassifies its delivery-driver distributors

as independent contractors to systematically

underpay its employees. Flowers moved to compel

arbitration under the FAA, 9 U.S.C. § 4, and to either

dismiss or stay the case pending the requested

arbitration.

Flowers argued that the parties’

Distributor Agreement and Arbitration Agreement

required Brock to arbitrate his claims individually.

The district court denied Flowers’s motion. Brock v.

Flowers Food, Inc., 673 F. Supp. 3d 1180, 1190–91 (D.

Colo. 2023). First, the court concluded that Brock fell

within the “transportation workers exemption” under

§ 1 of the FAA, which exempts transportation workers

engaged in interstate commerce from arbitration. Id.

at 1184–89. The district court concluded that Brock

“belongs to a class of workers who deliver Flowers

goods in trucks to their customers, by loading and

unloading Flowers’ bakery products.” Id. at 1186. The

court also determined that Brock “actively engaged in

the transportation of Flowers’ products across state

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lines into Colorado.” Id. at 1188. Second, the district

court rejected Flowers’s assertion that Brock was

nevertheless required to arbitrate under Colorado’s

Uniform Arbitration Act. Id. at 1189–90. The court

noted that the Arbitration Agreement applied

Colorado law only “to the extent Colorado law is not

inconsistent with the FAA.” Id. at 1190 (quoting the

Arbitration Agreement). It had earlier concluded that

Brock fell within the FAA’s § 1 exemption for

transportation workers—an exemption that did not

exist under Colorado law. Id. The court determined

that the plain language of the Arbitration Agreement

therefore did not allow for arbitration under Colorado

law, because Colorado law was “inconsistent with” the

FAA. Id. at 1190. Flowers timely appealed the district

court’s decision.

STANDARDS OF REVIEW

We review de novo a district court’s decision to grant

or deny a motion to compel arbitration. Reeves v. Enter.

Prods. Partners, LP, 17 F.4th 1008, 1011 (10th Cir.

2021). We accept the district court’s findings of fact,

subject to clear error review. In re Cox Enters., Inc.

Set-top Cable Television Box Antitrust Litig., 790 F.3d

1112, 1116 (10th Cir. 2015).

DISCUSSION

Flowers appeals the district court’s denial of

arbitration. Its arguments fall into two buckets—one

based on the FAA and one based on Colorado law.

First, Flowers argues that the district court erred by

concluding that § 1 of the FAA exempted Brock from

arbitration. According to Flowers, Brock does not

qualify for the § 1 exemption, because he does not

directly engage in interstate commerce. Flowers also

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asserts—for the first time on appeal—that the

Distributor Agreement is not a contract of

employment and is therefore outside the scope of § 1.

Second, Flowers argues that the district court erred by

finding that the text of the Arbitration Agreement

foreclosed arbitration under Colorado law. Flowers

contends that the § 1 exemption did not create an

“inconsistency” with Colorado law but merely created

a gap in arbitration enforcement that Colorado law

could freely fill. We start with the FAA challenge and

then review the Colorado law challenge.

I.

The

Arbitration

Agreement

is

not

enforceable under the FAA because Brock

falls

within

§ 1’s

exemption

for

transportation workers.

The FAA promotes a “liberal federal policy favoring

arbitration agreements.” Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

Through the FAA, Congress sought to remedy the

widespread “hostility of American courts to the

enforcement of arbitration agreements.” Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 111 (2001). Yet

the FAA does not authorize federal courts “to favor

arbitration over litigation”; it makes “arbitration

agreements as enforceable as other contracts, but not

more so.” Morgan v. Sundance, Inc., 596 U.S. 411, 418

(2022) (internal quotation marks omitted); cf.

Waithaka v. Amazon.com, Inc., 966 F.3d 10, 24 (1st Cir.

2020) (“[T]he FAA’s pro-arbitration purpose cannot

override the original meaning of the statute’s text.”).

Within this context, § 2 of the FAA provides that

arbitration agreements “shall be valid, irrevocable,

and enforceable, save upon such grounds as exist at

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law or in equity for the revocation of any contract.”

9 U.S.C. § 2. Though courts must generally enforce

valid arbitration agreements, § 1 of the FAA carves

out certain workers from the FAA’s purview: It

exempts “contracts of employment of seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce.” Id. § 1. In effect, § 1

shields workers with these types of employment

contracts from compelled arbitration under the FAA.

This appeal deals with § 1’s residual clause—”any

other class of workers engaged in foreign or interstate

commerce.” Id. The Supreme Court employs a twostep framework to analyze whether an individual falls

within this clause (and therefore falls within the

exemption). Sw. Airlines Co. v. Saxon, 596 U.S. 450,

455 (2022). First, we must “defin[e] the relevant ‘class

of workers’ to which [the individual] belongs.” Id.

Second, we must “determine whether that class of

workers is ‘engaged in foreign or interstate commerce.’”

Id.

We have jurisdiction under 9 U.S.C. § 16(a)(1) to

review the district court’s interlocutory order denying

arbitration under the FAA.

Here, though the

Arbitration Agreement requires that “any claim” be

“determined exclusively by binding arbitration,” the

district court concluded that Brock qualified for the

exemption for transportation workers under § 1’s

residual clause. Brock, 673 F. Supp. 3d at 1183, 1189.

Specifically, the court determined that (1) Brock

“belongs to a class of workers who deliver Flowers

goods in trucks to their customers, by loading and

unloading Flowers’ bakery products,” and (2) Brock, as

a member of this class of workers, is engaged in

interstate commerce. Id. at 1186, 1188–89. Flowers

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asserts that the district court erred in finding that

Brock fell within this exemption. We review the

district court’s decision under Saxon’s two-step

framework.

A.

We accept the district court’s defined

class of workers.

At step one, Flowers initially argued on appeal that

Brock is not a “transportation worker” because he does

not work in the transportation industry. See Circuit

City, 532 U.S. at 119 (“Section 1 exempts from the

FAA only contracts of employment of transportation

workers.”). But it now concedes that Bissonnette v.

LePage Bakeries Park St., LLC, an intervening case,

has foreclosed this argument. 601 U.S. 246, 256 (2024)

(“A transportation worker need not work in the

transportation industry to fall within the exemption

from the FAA provided by § 1 of the Act.”). Flowers

does not otherwise challenge the district court’s

determination that Brock “belongs to a class of

workers who deliver Flowers goods in trucks to their

customers, by loading and unloading Flowers’ bakery

products.” 4 Brock, 673 F. Supp. 3d at 1186. So we

decline to disturb this finding, and we accept that

Brock is a transportation worker under § 1 of the FAA.

B.

The class of workers is directly engaged in

interstate commerce.

We now turn to the second step—whether the

defined class of workers is engaged in interstate

4 The district court provides another iteration of the defined class

of workers as “independent distributors who load and unload

Flowers bakery products.” Brock, 673 F. Supp. 3d at 1189. We

treat this iteration of the defined class as identical to the one

listed above.

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commerce. As an initial matter, “neither Brock nor

any others he employed crossed state lines to deliver

goods in connection with the operation of his business.”

App. vol. I, at 48, 73, 82, 120. This fact alone is not

dispositive. In Saxon, the Supreme Court reviewed

the text of § 1 and concluded that “any class of workers

directly involved in transporting goods across state or

international borders falls within § 1’s exemption.”

596 U.S. at 457 (emphasis added). In holding that a

class of airplane cargo loaders “engaged in foreign or

interstate commerce,” the Court rejected the view that

§ 1 exempts “only workers who physically move goods

or people” across state or international borders. Id. at

456–57, 461. The Court stated “[t]here could be no

doubt” that a worker who loads or unloads cargo “from

a vehicle carrying goods in interstate transit” is

engaged in interstate commerce. Id. at 458–59

(cleaned up). Like the airplane cargo loaders in Saxon,

Brock does not physically cross state borders when

delivering Flowers products from the warehouse to his

customers. Because Brock’s intrastate deliveries may

still qualify as engagement in interstate commerce, we

closely examine Brock’s intrastate delivery role in

relation to the goods’ interstate journey.

To engage in interstate commerce, a class of workers

“must at least play a direct and ‘necessary role in the

free flow of goods’ across borders.” Id. at 458 (quoting

Circuit City, 532 U.S. at 121); see New Prime Inc. v.

Oliveira, 586 U.S. 105, 108, 112–13 (2019) (noting the

parties’ agreement that interstate truckers are

workers engaged in interstate commerce). We have

yet to consider whether a class of workers making

intrastate deliveries can qualify as engaging in

interstate commerce under § 1 of the FAA. But two

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circuits have found circumstances where delivery

drivers were engaged in interstate commerce despite

making wholly intrastate deliveries of interstate goods.

See Waithaka, 966 F.3d at 26 (1st Cir. 2020); Rittmann

v. Amazon.com, Inc., 971 F.3d 904, 919 (9th Cir. 2020).

Other circuits have also addressed similar issues

involving rideshare drivers and food-delivery drivers.

We therefore begin with an overview of cases from

other circuits for guiding principles and then analyze

Brock’s intrastate delivery route in relation to the

goods’ interstate journey.

1.

Legal Framework

We first review the legal landscape relevant to this

appeal. Two lines of cases help us define the boundary

for when an intrastate delivery qualifies as direct

engagement in interstate commerce: (a) “Last-mile”

delivery driver cases, and (b) rideshare and fooddelivery cases. We expound on both below.

a.

Last-Mile Delivery Driver Cases

The First and Ninth Circuits have concluded that

last-mile delivery drivers—drivers who make the last

intrastate leg of an interstate delivery route—are

directly engaged in interstate commerce.

See

Waithaka, 966 F.3d at 26; Rittmann, 971 F.3d at 919;

see also Saxon, 596 U.S. at 457 n.2 (leaving this

question unresolved); but see Lopez v. Cintas Corp., 47

F.4th 428, 432–33 (5th Cir. 2022) (concluding that

last-mile delivery drivers did not engage in interstate

commerce because the interstate delivery ended once

the goods were unloaded at the local warehouse). Both

circuits focused on whether the goods moved in a

continuous interstate journey or as part of multiple

independent transactions.

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In Waithaka, the First Circuit held that last-mile

delivery drivers for Amazon engaged in interstate

commerce, despite transporting goods “entirely within

a single state.” 966 F.3d at 20, 26. The First Circuit

looked to the Supreme Court’s line of cases addressing

the Federal Employers’ Liability Act (FELA) for

guidance on intrastate deliveries of interstate goods.

Id. at 19–20. FELA contains language identical to the

FAA’s; it covers injuries that railroad employees

sustained if both the railroad and employee were

“engaged in interstate commerce” at the time of injury.

Id. at 19. In the FELA cases, the Court distinguished

intrastate railroad workers who operated railroad cars

carrying “interstate freight,” Phila. & Reading Ry. Co.

v. Hancock, 253 U.S. 284, 285–86 (1920), from those

who operated cars carrying “intrastate freight,” Ill.

Cent. R.R. Co. v. Behrens, 233 U.S. 473, 477–78 (1914).

The former are “engaged in interstate commerce,”

while the latter are not. Hancock, 253 U.S. at 286;

Behrens, 233 U.S. at 478. With this context, the First

Circuit concluded that last-mile delivery workers “who

haul goods on the final [intrastate] legs of interstate

journeys are transportation workers engaged in

interstate commerce.” Waithaka, 966 F.3d at 26

(cleaned up).

Likewise, in Rittmann, the Ninth Circuit held that

Amazon’s last-mile delivery providers engaged in

interstate commerce when transporting packages in

the final intrastate leg of the interstate journey. 971

F.3d at 915. The Ninth Circuit concurred with the

First Circuit’s reasoning in Waithaka—a “nearly

identical case”—and applied that reasoning to the

facts before it. Id. at 910, 915. It underscored that the

“Amazon packages [that delivery providers] carry are

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goods that remain in the stream of interstate

commerce until they are delivered.” Id. at 915. The

Ninth Circuit distinguished the circumstances in

Rittmann from A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935). There, the

Supreme Court concluded that the interstate

transaction of live poultry ended when the poultry

reached the slaughterhouses for “slaughter and local

sale to retail dealers and butchers who in turn sold

directly to consumers.” A.L.A. Schechter Poultry Corp.,

295 U.S. at 543. At that point, the poultry “had come

to a permanent rest within the state.” Id. Any sales

to retail dealers and butchers were “local sale[s].” Id.

By contrast, the Ninth Circuit in Rittmann stated that

“Amazon packages do not ‘come to rest,’ at Amazon

warehouses,” so “the interstate transactions do not

conclude at those warehouses.” 971 F.3d at 916. The

packages are held at the warehouse as “part of a

process by which a delivery provider transfers the

packages to a different vehicle for the last mile of the

packages’ interstate journeys.” Id. The Ninth Circuit

determined that “[t]he interstate transactions

between Amazon and the customer do not conclude

until the packages reach their intended destinations.”

Id. For that reason, the last-mile delivery drivers “are

engaged in the movement of interstate commerce.” Id.

b.

Rideshare and Food-Delivery Cases

On the other end of the spectrum, courts have

declined to find direct engagement in interstate

commerce for app-based rideshare and food-delivery

drivers. See Cunningham v. Lyft, Inc., 17 F.4th 244,

253 (1st Cir. 2021); Immediato v. Postmates, Inc., 54

F.4th 67, 78 (1st Cir. 2022); Singh v. Uber Techs., Inc.,

67 F.4th 550, 560 (3d Cir. 2023); Wallace v. Grubhub

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Holdings, Inc., 970 F.3d 798, 802–03 (7th Cir. 2020);

Capriole v. Uber Techs., Inc., 7 F.4th 854, 863–64, 866–

67 (9th Cir. 2021). The First and Ninth Circuits’ cases

are particularly instructive because of their

discussions contrasting rideshare and food-delivery

cases from last-mile-driver cases. We review those

cases below.

After Waithaka, the First Circuit refined its

distinction between wholly intrastate trips and

intrastate trips occurring as part of an interstate

journey. See Cunningham, 17 F.4th at 250–51, 253;

Immediato, 54 F.4th at 77–79. In Cunningham, the

First Circuit concluded that Lyft rideshare drivers

who transported passengers to and from Boston’s

Logan Airport did not engage in interstate commerce.

17 F.4th at 250–51, 253.

In reaching this decision, the First Circuit

considered two scenarios from United States v. Yellow

Cab Co., 332 U.S. 218 (1947), overruled on other

grounds by Copperweld Corp. v. Indep. Tube Corp.,

467 U.S. 752, 759–60 (1984). In the first scenario,

railroads agreed to provide passengers with transit

when interstate rail journeys required passengers to

disembark at one station and travel up to two miles to

board another train at a different station. Yellow Cab,

332 U.S. at 228. The railroads contracted with cab

companies to transport passengers between

connecting stations. Id. The Yellow Cab Court held

that this first scenario implicated interstate commerce.

Id. at 228–29. In the second scenario, the rail

passengers hailed taxi cabs during the cab drivers’

normal local taxi service to and from stations. Id. at

230. The Court held that “such transportation is too

unrelated to interstate commerce.” Id.

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Using the Yellow Cab scenarios for comparison, the

First Circuit concluded that the class of Lyft drivers

more closely resembled the second scenario because

they “contract[ed] with the passenger as part of the

driver’s normal local service to take the passenger to

the start (or from the finish) of the passenger’s

interstate journey.” Cunningham, 17 F.4th at 250. By

contrast, the First Circuit observed that the drivers in

Waithaka more closely resembled the first scenario:

Amazon (like the railroads in Yellow Cab) agreed

with Amazon customers to transport goods

interstate from their point of origin to the

customer’s home. The local delivery drivers (like

the taxi companies in the first scenario of Yellow

Cab) then agreed with Amazon to carry the goods

for a portion of that single interstate journey

(“the so-called ‘last mile’”).

Id. at 251 (citations omitted).

The Yellow Cab scenarios informed the First

Circuit’s reasoning again in Immediato. The First

Circuit held that couriers who delivered meals

prepared at local restaurants and goods sold by local

retailers did not engage in interstate commerce.

Immediato, 54 F.4th at 78. Citing Yellow Cab, it

stated that being engaged in interstate commerce

“excludes intrastate transactions that bear only a

‘casual’ or ‘incidental’ relationship to the interstate

movement of goods or people.” Id. at 79. The First

Circuit distinguished Immediato from Waithaka: In

Waithaka, the customers bought goods directly from

Amazon, Amazon orchestrated the interstate

movement of the goods, and Amazon arranged, as part

of the purchase, for the goods’ delivery directly to the

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customer. Id. at 78. The Amazon delivery drivers thus

engaged in interstate commerce. Id. at 74–75. In

Immediato, customers purchased goods from local

vendors after the goods had “already exited the flow of

interstate commerce.” Id. at 78. These local delivery

drivers merely engaged in intrastate commerce. Id.

Similarly, in Capriole, the Ninth Circuit held that

Uber drivers are not “engaged in foreign or interstate

commerce.” 7 F.4th at 863. The Ninth Circuit invoked

the Yellow Cab scenarios as well and concluded that

the class of Uber drivers more closely resembled the

second scenario of local taxi services. Id. at 863–64.

In contrasting Capriole’s rideshare drivers from

Rittmann’s last-mile drivers, the Ninth Circuit stated

that “Uber drivers are unaffiliated, independent

participants in the passenger’s overall trip, rather

than an integral part of a single, unbroken stream of

interstate commerce like [Amazon’s last-mile delivery]

workers.” Id. at 867.

2.

Analysis

We find the First and Ninth Circuits’ cases on this

issue persuasive and adopt their reasoning as

guideposts for our own analysis. These cases suggest

that we should consider the following factors to

determine if Brock’s intrastate route formed a

constituent part of the goods’ interstate journey or an

entirely separate local transaction: (1) the buyerseller relationship between Flowers and Brock, (2) the

buyer-seller relationship between Brock and Brock’s

customers, and (3) the buyer-seller relationship, if any,

between Flowers and Brock’s customers. See Fraga v.

Premium Retail Servs., Inc., 61 F.4th 228, 240 (1st Cir.

2023) (finding that First Circuit cases “suggest that

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the contractual relationships among the various actors

play an important role in determining whether an

intrastate trip is part of an integrated interstate

journey”). In our view, the third factor—any buyerseller relationship between Flowers and Brock’s

customers—is key to whether the interstate leg of the

goods’ journey and Brock’s intrastate delivery of the

goods form one continuous interstate journey. 5

Some diagrams may better illustrate the

importance of a buyer-seller relationship between

Flowers and Brock’s customers to this case. Below,

each arrow represents a buyer-seller relationship. 6

As depicted in the first two diagrams, courts have

found the final intrastate leg of a journey to be part of

a continuous interstate journey where the product’s

Though the facts here make the contractual relationships

important to the outcome, we clarify that we do not foreclose the

consideration of other factors in this analysis. See Singh v. Uber

Techs. Inc., 939 F.3d 210, 227–28 (3d Cir. 2019) (listing potential

factors, including the parties’ agreements, to consider in inquiry

of whether a worker belonged to a class of transportation workers

engaged in interstate commerce).

5

6 Yellow Cab considered interstate commerce in the context of the

Sherman Antitrust Act. 332 U.S. at 225, 228–29. The Sherman

Act “outlaws unreasonable restraints on interstate commerce.”

Id. at 225. We recognize that “affecting interstate commerce”

does not equate to being “engaged in interstate commerce.” See

Cunningham, 17 F.4th at 251 (“The [Sherman] Act is broadly

construed, whereas the FAA exception at issue here is narrowly

construed. (citations omitted)). So a case that merely “affects”

interstate commerce may not meet the threshold for being

“engaged in interstate commerce.” We find the Yellow Cab

scenarios to be useful comparators with cases under the FAA only

to illustrate the various relationships between parties.

20a

originating company contracts with both the customer

and the intrastate delivery driver.

(1) Yellow Cab scenario one: Affecting Interstate

Commerce (Sherman Act)

Customer

Railroad

company

Cab Driver

See Yellow Cab, 332 U.S. at 228–29 (holding that cab

drivers were “clearly a part of the stream of interstate

commerce” where railroads contracted with drivers to

provide same-city station transfers for rail customers

traveling interstate).

(2) Amazon Last-Mile Drivers:

Interstate Commerce (FAA)

Engaged

in

Customer

Amazon

Delivery Driver

See Cunningham, 17 F.4th at 251 (observing that

Amazon’s last-mile drivers in Waithaka resembled the

first Yellow Cab scenario because Amazon contracted

with the local delivery driver and with the customer).

*

*

*

By contrast and as depicted in the next two

diagrams, courts have found the final intrastate leg of

the journey to be wholly separate where the customer

has a separate relationship with the intrastate

delivery driver.

21a

(3) Yellow Cab scenario

Commerce (Sherman Act)

two:

No

Interstate

Customer

buy transport service

Railroad company

Cab Driver

See Yellow Cab, 332 U.S. at 230–31 (holding that cab

drivers transporting rail customers during the drivers’

normal local taxi service is “too unrelated to interstate

commerce”).

(4) Rideshare Drivers: Not Engaged in Interstate

Commerce (FAA)

Customer

Airline

buy transport service

Lyft Driver

See Cunningham, 17 F.4th at 250–51 (finding that

Lyft drivers with intrastate routes did not engage in

interstate commerce by transporting customers

traveling interstate to the airport and noting that this

case matched the second scenario in Yellow Cab).

*

*

*

And finally, we end with a diagram depicting the

buyer-seller relationships between Flowers, Brock,

and the retail stores.

(5) Flowers and Brock’s Buyer-Seller Relationships:

22a

Customer

Flowers

resell & transport

Flowers product

Brock

So we turn to examining the various relationships

at play here. Flowers argues that Brock operates a

“fundamentally local” franchise business, “whereby

Brock Inc. purchases Flowers products and then sells

those products to its local customers in Colorado.”

Flowers wants us to view the initial cross-border

delivery of goods as a wholly separate transaction from

Brock’s intrastate deliveries of the same goods to his

customers. On a surface level, this appears plausible:

Brock operates his own business, takes title to the

goods, services his own customers, and can increase

profits through various business strategies of his

choice. But on closer inspection, we view the situation

differently. Though Brock, Inc. and Flowers are

different companies, they form an integrated

distribution chain, in which Flowers exercises a

significant degree of control over Brock’s operations.

This control makes it evident to us that Brock serves

as Flowers’s last-mile driver, because Flowers’s real

interest lies in delivering the baked goods to its true

customer—the various retail stores on Brock’s route,

not Brock, Inc. See Rittmann, 971 F.3d at 916.

The Distributor Agreement, which governs the

business relationship between Brock, Inc. and Flowers

Denver, reveals Flowers’s substantial involvement in

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the operation of Brock, Inc. 7 At Brock, Inc.’s inception,

Flowers Finance, LLC, another Flowers entity,

financed Brock’s purchase of the distribution route.

App. vol. I, at 87–90; see also id. at 260 (stating that a

Flowers subsidiary finances the route’s purchase price

for most independent distributors). From there, the

Distributor Agreement restricts Brock, Inc.’s

operations in multiple ways. Certain provisions

prevent Brock from selling products that compete with

Flowers goods in his territory, selling noncompetitive

products that interfere with the distribution of

Flowers goods, or terminating any unprofitable

accounts without Flowers Denver’s approval. Another

provision requires Brock to cooperate with Flowers on

marketing and sales efforts and to ensure his

employees “maintain a clean and neat personal

appearance consistent with the professional image

customers and the public associate with [Flowers

Denver].” Id. at 55.

The Distributor Agreement also requires Brock to

remove stale products from customers’ shelves “to

protect the business reputation of both [Brock, Inc.]

and [Flowers Denver].” Id. at 61 (emphasis added).

7 Brock alleges in his complaint that the Distributor Agreement

does not reflect Flowers’s “actual” business model. He contends

that in practice, “Flowers itself negotiates, carries out, and

receives gross proceeds from the vast majority of bakery sales”

and that he “do[es] not, in-fact, take title and then resell the

products.” App. vol. I, at 14. We do not wade into this factual

dispute, which the district court did not resolve in its order.

Because the less-restrictive terms of the Distributor Agreement

suffice to show a continuous interstate journey, we conclude that

the district court did not need to resolve this factual dispute for

us to decide the interstate commerce issue on appeal.

24a

That provision includes an offer from Flowers Denver

to repurchase a certain percentage of Brock’s stale

products to motivate the removal of spoiled goods.

Brock could not sell out-of-code products, except for

non-human consumption. And most importantly, the

Distributor Agreement obligates Brock, Inc. to use

“commercially reasonable best efforts to develop and

maximize the sale” of Flowers products in its territory.

Id. at 55. Had the interstate delivery truly ended, as

Flowers claims, at the warehouse where Brock picks

up the goods, Flowers should not have cared about

Brock’s actions after his receipt of the goods. Yet the

terms of the Distributor Agreement belie Flowers’s

claim that the goods “come to rest” at the warehouse.

Other terms of the Distributor Agreement evince

Flowers’s continuing control over the distribution

route. For example, if Flowers Denver and Brock, Inc.

agree that a particular account is unprofitable,

Flowers Denver can make alternate distribution

arrangements for that account. Brock is barred from

receiving any credit for sales associated with these

alternate distribution arrangements. If Brock fails to

service his territory for any reason, Flowers Denver

has the right to service the territory on its own accord

(while Brock pays a daily fee and any operating

expenses) and even has the right to use Brock’s

delivery truck for that purpose (a truck the Distributor

Agreement required he purchase). Id. at 59, 62, 96.

The Distributor Agreement provides Flowers Denver

and Flowers Finance, LLC with a security interest in

Brock’s distribution route, meaning Brock’s failure to

pay any debts could revert ownership of the

distribution route to Flowers.

The Distributor

Agreement also states that in the event of termination,

25a

Flowers Denver will operate the business for Brock,

Inc.’s account and sell Brock, Inc.’s distribution rights.

These terms ensure that Flowers Denver never

actually loses access to Brock’s distribution route.

They demonstrate Flowers’s significant interest in the

out-of-state goods’ continued route from the

warehouse to various retail stores.

The terms of the Distributor Agreement also show

the preserved relationship between Flowers Denver

and the retail stores that purchase Flowers goods from

Brock. One provision permits Flowers Denver to act

on Brock, Inc.’s behalf to obtain authorization to sell

Flowers products to chain stores; these authorization

discussions include negotiating product space,

position, and pricing. 8 Another provision allows

Flowers Denver to “continue carrying the accounts

receivable” for all chain-store accounts and other

major accounts. Id. at 58. Flowers Denver can, at its

sole discretion, approve various stores for non-cash

sales via electronic data with corresponding proof of

delivery, charge slips, store-generated authorizations,

or other forms of payment authorizations. Brock must

also use Flowers’s proprietary administrative services,

which include “accumulation of sales histories,”

“automated route book information,” “individual

customer sales profiles,” and “suggested orders for

each customer.” For customer pricing, Brock needs to

adhere to all of Flowers’s promotions and feature

8 According

to Flowers Foods, Inc.’s Form 10-K filed with the

Securities and Exchange Commission, in 2022, Walmart/Sam’s

Club comprised 21.7% of customer sales, and Flowers’s top ten

largest customers comprised 54.5% of sales. These statistics

suggest that Flowers can directly interact with customers for a

significant number of orders.

26a

pricing for major accounts and chain-store accounts in

his territory. These terms give Flowers significant

control over Brock’s business with his customers and

demonstrate Flowers’s intense interest in the goods’

delivery route even after they reach the warehouse.

We are thus not convinced that these customers are

merely “Brock’s” customers, rather than Flowers’s

customers. Indeed, even Flowers itself describes the

various stores, not the independent distributors, as its

customers. In its 2022 Form 10-K filed with the

Securities and Exchange Commission, Flowers lists its

customers as “mass merchandisers, supermarkets,

and other retailers.” Id. at 141.

Last, we review the mechanics of the delivery itself.

Brock starts the interstate-delivery process by placing

orders for products produced in out-of-state bakeries

owned by Flowers. Flowers Denver then delivers the

products to the agreed-upon warehouse (owned by

Flowers) and unloads the products for Brock to pick up.

Brock pays Flowers a fee to use the warehouse. In less

than a day after the drop-off, Brock loads the products

at the warehouse onto his vehicle and delivers the

goods to retail stores on his intrastate delivery route.

Viewing Brock’s intrastate delivery in the context of

the Distributor Agreement’s terms and the interstate

route that came before it, we are convinced that Brock

serves as the last-mile driver for Flowers, such that he

is directly engaged in interstate commerce. 9 U.S.C.

§ 1. Like the last-mile drivers in Waithaka and

Rittmann, Brock’s intrastate delivery route forms the

last leg of the products’ continuous interstate route; he

is “an integral part of a single, unbroken stream of

interstate commerce.” Capriole, 7 F.4th at 867. The

Flowers products do not “come to rest” at the

27a

warehouse. Rather, the warehouse drop-off is “simply

part of a process by which a delivery provider transfers

the packages to a different vehicle for the last mile of

the packages’ interstate journeys.” Rittmann, 971

F.3d at 916. The significant control that Flowers has

over Brock, Inc.’s operations demonstrates that, for

Flowers, the goods’ delivery concludes at the various

stores’ locations, not the warehouse. See id. (“The

interstate transactions between Amazon and the

customer do not conclude until the packages reach

their intended destinations, and thus [Amazon’s lastmile] drivers are engaged in the movement of

interstate commerce.”). For these reasons, Brock’s

intrastate delivery of goods from the warehouse to the

various stores on his route is not an isolated

transaction; instead, his delivery route forms the last

leg of an interstate route.

Flowers attempts to rely on the line of cases

involving rideshare drivers and food-delivery drivers

to support its position that Brock merely performs

local deliveries. We disagree. In both Wallace and

Immediato, the food-delivery drivers delivered food

from local restaurants or convenience stores to

intrastate customers. Wallace, 970 F.3d at 802;

Immediato, 54 F.4th at 78. Any interstate transaction

that occurred before the intrastate purchase, such as

the purchase of raw ingredients, was far too removed

from the local transaction that the delivery drivers

engaged in. Wallace, 970 F.3d at 802; Immediato, 54

F.4th at 78. At no point did the customers “summon[]

couriers for local deliveries” to “buy[] goods as part of

an interstate transaction.” Immediato, 54 F.4th at 78.

The unnamed companies that sent the goods

interstate to restaurants and grocery stores had no

28a

interest or obligation to ensure the couriers delivered

those goods to consumers. The same reasoning

applied to rideshare drivers in Cunningham and

Capriole. In both cases, the First Circuit and Ninth

Circuit concluded that the rideshare drivers “are

unaffiliated, independent participants in the

passenger’s overall trip, rather than an integral part

of a single, unbroken stream of interstate commerce.”

Capriole, 7 F.4th at 867; see Cunningham, 17 F.4th at

251 (concluding that the Lyft drivers’ intrastate trips

to take their customers to interstate flights formed a

separate transaction from the flight itself due to the

lack of any relationship between the Lyft drivers and

the airlines).

By contrast, Brock places orders with out-of-state

bakeries to commence the interstate delivery of

products. He picks up the products within a day of the

warehouse delivery, signs off on the products, loads

the products onto his vehicle, and delivers the

products through the final intrastate leg of the trip.

And as discussed earlier in this section, Flowers

retains significant control over Brock, Inc., such that

we view Flowers’s true customers as the various retail

stores and Brock as Flowers’s last-mile delivery driver.

The rideshare and food-delivery driver cases are

therefore not an apt comparison.

Flowers also argues that we should follow the Fifth

Circuit’s reasoning in Lopez. There, the Fifth Circuit

found that last-mile delivery drivers did not engage in

interstate commerce because “[o]nce the goods arrived

at the Houston warehouse and were unloaded, anyone

interacting with those goods was no longer engaged in

interstate commerce.” Lopez, 47 F.4th at 433. The

Fifth Circuit focused on the last-mile drivers’

29a

“customer-facing role” to support its conclusion that

they did not fall within the § 1 exemption. Id. We

agree with the district court’s decision to reject the

reasoning in Lopez and similarly find it unpersuasive.

Brock, 673 F. Supp. 3d at 1188. As the district court

noted, Lopez included only an “abbreviated analysis of

[the] class’s engagement with interstate commerce”; it

also does not provide much factual background for

comparison. Id. Given this context, we decline to

follow Lopez.

For these reasons, we conclude that Brock’s class of

workers is engaged in interstate commerce and

therefore falls within the § 1 exemption. We find no

error in the district court’s ruling.

C.

We decline to review whether the

Distributor Agreement qualifies as a

contract of employment.

As a last attempt to salvage the Arbitration

Agreement’s enforcement under the FAA, Flowers

argues that the Distributor Agreement does not

qualify as a “contract of employment” for

transportation services under § 1 of the FAA. Flowers

concedes that it failed to make this argument before

the district court but urges us to address the issue

anyway. We have exercised our discretion to consider

a forfeited argument on appeal when the argument

involves a “pure matter of law and the proper

resolution of the issue is certain.” United States v.

Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007). “But

even for matters of law, we decline to consider newly

presented legal arguments unless the proper legal

disposition is beyond reasonable doubt.” Ave. Cap.

Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 886 (10th Cir.

30a

2016). Reasonable doubt exists if an issue “involves a

matter of first impression in our circuit.” Id.

Whether a “contract of employment” under § 1 of the

FAA extends to contracts between corporate entities is

a matter of first impression here.

We cannot

determine if the Distributor Agreement between

Flowers Denver and Brock, Inc. qualifies as a contract

of employment without addressing this issue. Because

the proper legal disposition is not beyond reasonable

doubt, we decline to consider Flowers’s forfeited

argument on appeal. See, e.g., GeoMetWatch Corp. v.

Behunin, 38 F.4th 1183, 1207 (10th Cir. 2022)

(declining to consider forfeited argument); Lone Star

Steel Co. v. United Mine Workers of Am., 851 F.2d 1239,

1243 (10th Cir. 1988) (“Ordinarily, a party may not

lose in the district court on one theory of the case, and

then prevail on appeal on a different theory.”).

II. We do not have jurisdiction to consider

Flowers’s state-law arguments.

Regardless of the Arbitration Agreement’s

enforceability under the FAA, Flowers argues that we

can enforce the Arbitration Agreement under Colorado

law alone. Brock counters that we lack jurisdiction to

consider an interlocutory appeal based on state law.

We agree with Brock’s assessment.

Section 16(a)(1) of the FAA allows us to review an

interlocutory order “denying a petition under section 4

of [the FAA] to order arbitration to proceed.” 9 U.S.C.

§ 16(a)(1). But the FAA does not permit us to review

interlocutory orders denying arbitration based on

state law. See Conrad v. Phone Directories Co., 585

F.3d 1376, 1383 (10th Cir. 2009) (“[Section] 16(a)

permits interlocutory appeals only over those motions

31a

brought explicitly pursuant to the FAA, or motions in

which it is unmistakably clear that the defendant

seeks only the relief offered by the FAA.”). We

therefore do not have jurisdiction under § 16(a)(1) to

review the district court’s denial of arbitration under

Colorado law. The remaining avenue for us to

potentially exercise jurisdiction over this portion of

Flowers’s appeal is pendent appellate jurisdiction.

Under pendent appellate jurisdiction, we may

“exercise jurisdiction over an otherwise nonfinal and

nonappealable lower court decision” given sufficient

overlap with an appealable decision. Paugh v. Uintah

Cnty., 47 F.4th 1139, 1171 (10th Cir. 2022) (internal

quotation marks omitted).

“Pendent appellate

jurisdiction is a matter of discretion, not of right.”

Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).

“Our exercise of pendent jurisdiction is only

appropriate in either of two scenarios: (1) when the

otherwise nonappealable decision is inextricably

intertwined with the appealable decision, or (2) where

review of the nonappealable decision is necessary to

ensure meaningful review of the appealable one.”

Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir.

2019) (cleaned up). Neither applies here.

In the first scenario, an otherwise nonappealable

decision is inextricably intertwined with an

appealable decision “if a ruling on the merits of the

interlocutory appeal . . . resolve[s] all of the remaining

issues presented by the pendent appeal.” United

Transp. Union Loc. 1745 v. City of Albuquerque, 178

F.3d 1109, 1115 (10th Cir. 1999) (internal quotation

marks omitted). Our review of the nonappealable

decision must “not require the consideration of legal or

factual matters distinct from those raised by the

32a

claims over which we unquestionably have

jurisdiction.” Malik v. Arapahoe Cnty. Dep’t of Soc.

Servs., 191 F.3d 1306, 1317 (10th Cir. 1999). Here, the

district court found that the plain language of the

Arbitration Agreement rendered Colorado’s Uniform

Arbitration Act inapplicable to this case. Brock, 673 F.

Supp. 3d at 1189. To review the district court’s denial

of arbitration under Colorado’s Uniform Arbitration

Act, we would need to consider whether the Uniform

Arbitration Act is “inconsistent” with the FAA, as

provided in the Arbitration Agreement and if not,

whether the Uniform Arbitration Act compelled Brock

to arbitrate his claims. See App. vol. I, at 86 (providing

that the Arbitration Agreement “shall be governed by

the FAA and Colorado law to the extent Colorado law

is not inconsistent with the FAA”). These issues are

distinct from the FAA ruling, so the district court’s

denial of compelled arbitration under the FAA is not

inextricably intertwined with its denial under

Colorado law.

For the second scenario, a “review of the

nonappealable decision is necessary to ensure

meaningful review of the appealable one” if “we are . . .

required to decide the core issues implicated in this

ostensibly pendent matter” to resolve the appealable

one. Cummings, 913 F.3d at 1235–37 (cleaned up).

That does not apply here. The FAA and Colorado law

form two separate bases for potentially enforcing the

Arbitration Agreement. We do not (and did not) need

to consider Colorado’s Uniform Arbitration Act to

resolve the FAA issue on appeal. Flowers has

therefore failed to establish that we have pendent

appellate jurisdiction to review the district court’s

decision under Colorado law.

33a

We are not persuaded by Flowers’s argument that

§ 16(a)(1) directly confers appellate jurisdiction over

Colorado law issues. Flowers asserts that the text of

§ 16(a)(1), which permits appeals of any “order . . .

denying a petition under section 4 [of the FAA],”

confers jurisdiction over “orders,” not issues. 9 U.S.C.

§ 16(a)(1). But this reading of § 16 elevates form over

substance. Flowers’s position would permit any

litigant to use § 16 of the FAA as an appellate fasttrack by tacking on multiple issues to an arbitration

request invoking the FAA. As discussed in Conrad, we

read the phrase “under section 4” as indicating that

appellate jurisdiction “encompass[es] only those

motions explicitly brought under the FAA or

unmistakably invoking its remedies, rather than all

motions founded at least in part on arbitration

agreements.” 585 F.3d at 1382. Though Conrad dealt

with a motion to dismiss containing two offhand

references to arbitration, id. at 1386, we conclude that

the reasoning applies here as well. The phrase “under

section 4” means we have appellate jurisdiction for the

FAA issue, but not the Colorado-law issue. Cf. Palcko

v. Airborne Express, Inc., 372 F.3d 588, 594 (3d Cir.

2004) (“While we may review Airborne’s appeal with

respect to the FAA under 9 U.S.C. § 16(a), that section

does not cover our review of a non-FAA, state-law

arbitration claim in an otherwise nonappealable

interlocutory order.”); Hamrick v. Partsfleet, LLC, 1

F.4th 1337, 1352 (11th Cir. 2021) (“[T]he interlocutory

appeal section of the Federal Arbitration Act doesn’t

carve out an exception to the general rule for

interlocutory orders denying motions to compel

arbitration based on state law.”).

34a

We therefore find that we do not have jurisdiction

over issues of Colorado law in this case.

CONCLUSION

For these reasons, we affirm.

35a

_____________________

APPENDIX B

_____________________

FILED

United States Court of Appeals

Tenth Cricut

December 9, 2024

Christopher M. Wolpert

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ANGELO BROCK, individually

and on behalf of all others

similarly situated,

Plaintiff - Appellee,

v.

FLOWERS FOODS, INC., a

Georgia limited liability

company, et al.,

Defendants - Appellants.

CHAMBER OF COMMERCE

OF THE UNITED STATES

OF AMERICA,

Amicus Curiae.

No. 23-1182

(D.C. No. 1:22-CV02413-CNS-MEH) (D.

Colo.)

36a

ORDER

Before

MATHESON,

BACHARACH,

PHILLIPS, Circuit Judges.

and

Appellants’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular

active service.

As no member of the panel and no judge in regular

active service on the court requested that the court be

polled, that petition is also denied.

Entered for the Court

CHRISTOPHER M. WOLPERT,

Clerk

37a

_____________________

APPENDIX C

_____________________

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Charlotte N. Sweeney

Civil Action No. 1:22-cv-02413-CNS-MEH

ANGELO BROCK, individually and on behalf of all

others similarly situated,

Plaintiff,

v.

FLOWERS FOOD, INC., a Georgia corporation,

FLOWERS BAKERIES, LLC, a Georgia limited

liability company, and

FLOWERS BAKING CO. OF DENVER, LLC, a

Colorado limited liability company,

Defendants.

ORDER

Before the Court is Defendants Flowers Food, Inc.,

Flowers Bakeries, LLC, and Flowers Baking Co. of

Denver, LLC’s Motion to Dismiss or Stay Proceedings

and Compel Individual Arbitration (ECF No. 28). For

the reasons set forth below, the Court DENIES the

motion.

38a

I. BACKGROUND 1

Flowers Foods, Inc. is a baking company that

operates several subsidiaries (see, e.g., ECF No. 28-1

at 1 ¶ 3). Flowers Foods, Inc. is the ultimate parent

company of Flowers Bakeries, LLC, and Flowers

Baking Company of Denver, LLC, which is a wholly

owned subsidiary of Flowers Bakeries, LLC (id. at ¶ 2).

Flowers Foods, Inc., and its subsidiaries (collectively

“Flowers”) produce “fresh breads, buns, rolls, and

snack cakes” (id. at ¶ 3). These products are sold in

supermarkets, drug stores, and convenient stores

throughout the United States (ECF No. 29-3 at 8).

Flowers’ sale of these products generates billions of

dollars in revenue each year (ECF No. 29-1 at 2 ¶ 2).

Flowers uses “Direct-Store-Delivery” to sell its

products (ECF No. 29-2 at 2). Under this sales model,

Flowers produces and markets its baked goods, and

“sells its products through a network of independent

distributors to retail and foodservice customers” (id.).

Independent distributors are responsible for ordering

products, which are then delivered to them from

bakeries for sale and “direct delivery to customer

stores” (ECF No. 29-3 at 9). Bakeries are located

throughout the United States (see, e.g., ECF No. 29-2

at 3; ECF No. 29-8 at 7–8). Flowers Baking Company

of Denver, LLC contracts with independent distributor

franchisees, including Brock, Inc., the company owned

and operated by Plaintiff Angelo Brock, to bring

1 The background facts are taken from materials submitted in

connection with the parties’ briefing. See Bigben 1613, LLC v.

Belcaro Grp., Inc., No. 17-CV-00272-PAB-STV, 2017 WL

9938347, at *1 (D. Colo. Apr. 25, 2017).

39a

Flowers bakery products to market (ECF No. 28-1 at 1

¶ 4).

Most products that Brock Inc. orders for Mr. Brock’s

customers “are produced by out-of-state bakeries in

response to his specific orders” (ECF No. 28-1 at 3 ¶

11). These products are then shipped to Mr. Brock’s

warehouse in Colorado, where Mr. Brock and Brock

Inc.’s “ultimate sale and delivery of the products to end

customers for whom he ordered them pursuant to the

Direct Store Delivery system” occurs (id.; see also ECF

No. 28-1 at 36). When delivery trucks containing the

Flowers products that he has ordered arrive at Mr.

Brock’s warehouse, he accepts the products, “sign[s]

off” on them, loads them onto trucks, and “gets to work

in [his] territories” (ECF No. 29-6 at 2 ¶¶ 3–4). Then,

Mr. Brock “begin[s] to service the customers on [his]

stops immediately after” (id. at ¶ 4).

To become an independent distributor for Flowers,

Mr. Brock signed a Distributor Agreement (see ECF

No. 28-1 at 6). The Distributor Agreement contained

an “Arbitration Agreement” (id. at 38–40). The

Arbitration Agreement provides:

The parties agree that any claim, dispute,

and/or controversy except as specifically

excluded

herein,

that

either

DISTRIBUTOR may have against

COMPANY

(and/or

its

affiliated

companies . . . ) . . . arising from, related

to, or having any relationship or

connection

whatsoever

with

the

Distributor

Agreement

between

DISTRIBUTOR

and

COMPANY,

including . . . any other association that

40a

DISTRIBUTOR

may

have

with

COMPANY (“Covered Claims”) shall be

submitted to and determined exclusively

by binding arbitration under the Federal

Arbitration Act (9 U.S.C. §§ 1, et seq.)

(“FAA”) . . . .

Covered Claims covered under this

Arbitration Agreement include, but are

not limited to: breach of contract, any

claims challenging the independent

contractor status of DISTRIBUTOR,

claims alleging that DISTRIBUTOR was

misclassified

as

an

independent

contractor, any other claims premised

upon DISTRIBUTOR’s alleged status as

anything other than an independent

contractor, … claims for alleged unpaid

compensation, … or statutory penalties

under either federal or state law

(ECF No. 28-1 at 38–39). The Arbitration Agreement

also states that it “shall be governed by the [Federal

Arbitration Act] and Colorado law to the extent

Colorado law is not inconsistent” with the Federal

Arbitration Act (id. at 38, 40 (original emphasis)).

Mr. Brock filed his Class and Collective Action

Complaint in September 2022, alleging that Flowers

violated the Fair Labor Standards Act and Colorado

law principally by misclassifying its employees as

independent contractors and failing to pay overtime

and other wages (see generally ECF No. 1). Flowers

filed the instant motion to compel in February 2023,

seeking to compel Mr. Brock to individual arbitration

41a

(see, e.g., ECF No. 28 at 20). The motion to compel is

fully briefed (see ECF Nos. 29 and 33).

II. LEGAL STANDARD

A strong federal policy favoring arbitration “is about

treating arbitration contracts like all others, not about

fostering arbitration.” Morgan v. Sundance, Inc., 142

S. Ct. 1708, 1713 (2022) (citation omitted). The

Federal Arbitration Act requires courts to enforce

arbitration agreements in contracts “evidencing a

transaction involving commerce . . . save upon such

grounds as exist at law or in equity” for contracts’

revocation. 9 U.S.C. § 2.

Under the Federal

Arbitration Act, a party may bring a motion to compel

arbitration. See, e.g., 9 U.S.C. § 4; Fundamental

Admin. Servs., LLC v. Patton, 504 F. App’x 694, 698

(10th Cir. 2012). The party attempting to compel

arbitration bears the burden of “demonstrating a valid

arbitration

agreement”

exists.

Fundamental

Administrative Services, 504 F. App’x at 698

(quotations omitted); see also Burgess v. Johnson, 835

F. App’x 330, 332 (10th Cir. 2020). The party opposing

arbitration based on an arbitration exemption bears

the burden of demonstrating that they fall within an

exemption under the Federal Arbitration Act. See, e.g.,

Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220,

227 (1987) (“The burden is on the party opposing

arbitration, however, to show that Congress intended

to preclude a waiver of judicial remedies for the

statutory rights at issue.” (citation omitted)); 9 U.S.C.

§ 1.

“When deciding whether the parties agreed to

arbitrate a certain matter . . . courts generally . . .

should apply ordinary state-law principles that govern

42a

the formation of contracts.” First Options of Chicago,

Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (citation

omitted). The Federal Arbitration Act contains several

“enforcement mechanisms” for parties to compel

arbitration pursuant to a valid agreement to arbitrate.

Rittmann v. Amazon.com, Inc., 971 F.3d 904, 909 (9th

Cir. 2020). However, “a party cannot be required to

submit to arbitration any dispute which he has not

agreed so to submit.” Howsam v. Dean Witter

Reynolds, Inc., 537 U.S. 79, 84 (2002) (quotations

omitted). Moreover, § 1 of the Federal Arbitration Act

provides that “contracts of employment of seamen,

railroad employees, or any other class of workers

engaged in foreign or interstate commerce” are exempt

from the Act’s coverage. “[A] court should decide for

itself whether § 1’s ‘contracts of employment’ exclusion

applies before ordering arbitration.” New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 537 (2019).

III. ANALYSIS

Having considered Flowers’ motion, related briefing,

and relevant legal authority, the Court denies Flowers’

motion. In explaining this denial, the Court first

details recent legal developments regarding the

Federal Arbitration Act, and then applies those

developments in its analysis of Flowers’ motion.

A. Southwest Airlines Company v. Saxon and

Section 1

Central to the parties’ dispute is the Supreme

Court’s recent decision in Southwest Airlines Company

v. Saxon, 142 S. Ct. 1783 (2022). Flowers urges an

interpretation of § 1 and Saxon under which the Court,

in determining whether § 1’s “transportation workers”

exemption applies, should look to the nature of

43a

Flowers’ business and whether Mr. Brock is “involved

in interstate commerce” (ECF No. 28 at 9). Mr. Brock

reads § 1 and Saxon differently, arguing that the

Court’s inquiry should focus on the relevant class of

workers to which he belongs, and if that class of

workers is engaged in interstate commerce (see, e.g.,

ECF No. 29 at 19). The Court agrees with Mr. Brock.

Saxon’s import is widely acknowledged. See, e.g.,

Bissonnette v. LePage Bakeries Park St., LLC, 59 F.4th

594 (2d Cir. 2023) (“The Supreme Court’s decision in

Saxon . . . is [an] intervening decision . . . [warranting]

rehearing en banc.”) (Nathan, J., dissenting from

denial of rehearing en banc). Saxon clearly established

the legal framework for applying § 1’s “transportation

workers” exemption: in assessing § 1’s applicability,

courts first “define the relevant ‘class of workers’ to

which [the plaintiff] belongs [and then] determine

whether that class of workers is ‘engaged in foreign or

interstate commerce.’” Saxon, 142 S. Ct. at 1788; see

also id. at 1793. Although divided on the factual

circumstances that warrant § 1’s application in

Saxon’s wake, appellate courts are largely in accord on

the § 1 framework that Saxon established. Compare

Fraga v. Premium Retail Servs., Inc., 61 F.4th 228, 234

(1st Cir. 2023), with Lopez v. Cintas Corp., 47 F.4th

428, 431 (5th Cir. 2022). 2

Flowers interprets Saxon and § 1 differently.

According to Flowers, in determining whether § 1

applies the Court should look to the nature of its own

business—and that, dispositively in this case, Flowers

is not a transportation company (ECF No. 28 at 9).

2 As Mr. Brock notes, the Tenth Circuit has not yet had occasion

to interpret or apply Saxon (ECF No. 29 at 25).

44a

But Saxon forecloses this interpretation of § 1.

Assessing § 1’s applicability, the nature of an

employer’s business is not dispositive, given courts’

focus on the work a plaintiff performs. See, e.g.,

Canales v. CK Sales Co., LLC, --- F.4th ----, No. 221268, 2023 WL 3269173, at *5 (1st Cir. May 5, 2023)

(“[T]he inquiry trains on what the worker does at the

company, not what the company does generally . . . .

[therefore] [w]e look to what work plaintiffs do, not

what defendants do generally.” (first alteration added)

(quotations removed)); Saxon, 142 S. Ct. at 1788

(“Saxon is therefore a member of a ‘class of workers’

based on what she does at Southwest, not what

Southwest does generally.” (emphasis added)).

In its invitation to misinterpret Saxon and § 1,

Flowers relies chiefly on two appellate cases,

Bissonnette v. LePage Bakeries Park St., LLC, 49 F.4th

655 (2d Cir. 2022), and Hill v. Rent-A-Ctr., Inc., 398

F.3d 1286 (11th Cir. 2005). The Court declines

Flowers’ invitation and rejects the reasoning of Hill

and Bissonnette. First, Hill was decided without

Saxon’s controlling guidance on § 1’s interpretation.

See generally Hill, 398 F.3d 1286. Second, Bissonnette

discussed Saxon in concluding that “an individual

works in a transportation industry if the industry in

which the individual works pegs its charges chiefly to

the movement of goods or passengers, and the

industry’s predominant source of commercial revenue

is generated by that movement.” Bissonnette, 49 F.4th

at 661. But in the Second Circuit’s view, Saxon was

speed bump: “[O]nly a worker in a transportation

industry can be classified as a transportation worker.

That point needed no elaboration in Saxon because

there the plaintiff worked for an airline.” Id. This—

45a

as the dissent from the order denying rehearing of

Bissonnette en banc persuasively observed—did “the

opposite of what Saxon’s reasoning and holding

require.” Bissonnette, 59 F.4th at 596 (Nathan, J.,

dissenting from denial of rehearing en banc). Recall

Saxon—as this dissent reiterates—“emphasizes ‘the

performance of work’ and ‘the actual work that the

members of the class, as a whole, typically carry out.’”

Id. (quoting Saxon, 142 S. Ct. at 1788) (emphasis in

original). Other courts have declined to follow the

Bissonnette majority. See, e.g., Fraga, 61 F.4th at 234.

The Court joins them, finding that Saxon’s guidance is

abundantly clear. See, e.g., id. at 235. 3

Accordingly, and for the reasons set forth above, in

its analysis of Flowers’ motion to compel, the Court

applies Saxon’s clearly established legal framework,

asking: (1) to what class of workers did Mr. Brock

belong, and (2) was that class of workers in engaged in

foreign or interstate commerce? See Saxon, 142 S. Ct.

at 1788. The Court proceeds to answer these questions

below.

B. Class of Workers

Flowers argues that Mr. Brock does not satisfy § 1’s

first requirement because he “cannot be a

transportation worker,” given that Flowers “is not in

the transportation industry” (ECF No. 28 at 9; see also

ECF No. 33 at 7–9). Flowers further argues that the

class of workers to which Mr. Brock belongs “are not

3 Curiously,

in arguing that Mr. Brock does not satisfy § 1’s

“engaged in foreign or interstate commerce” requirement,

Flowers appears to acknowledge that Saxon looks to a plaintiff’s

class of workers and rejects an “industrywide approach” (ECF No.

28 at 13).

46a

transportation workers” (ECF No. 28 at 18). Mr.

Brock contends that, looking to the work he performs,

the Court should characterize the “class of workers”

for its § 1 first-step inquiry as Flowers “Distributors”

who “load and unload bakery products” (ECF No. 29 at

20). The Court agrees with Mr. Brock.

As discussed above, the Court first asks to what

class of workers Mr. Brock belongs. See Saxon, 142 S.

Ct. at 1788. In doing so, the Court looks to the work

he performs. See id.

This question is easily answered. Mr. Brock is an

independent distributor who brings Flowers bakery

products to market (see, e.g., ECF No. 28-1 at 1 ¶ 4).

In doing so, he receives shipments of Flowers products

prepared outside of Colorado that he has ordered for

his customers, loads them onto his own trucks, and

delivers the products to his customers (see id; see also

ECF No. 29-6 at ¶ 4). Accordingly, Mr. Brock belongs

to a class of workers who deliver Flowers goods in

trucks to their customers, by loading and unloading

Flowers’ bakery products (see ECF No. 29 at 20). See

also Canales, --- F.4th ---, 2023 WL 3269173, at *6 (1st

Cir. May 5, 2023); Saxon, 142 S. Ct. at 1788–89 (2022).

Mr. Brock’s status as an independent distributor who

owns his own company, Brock, Inc., does not disturb

this conclusion. See Canales, --- F.4th ----, 2023 WL

3269173, at *6 (“[The] plaintiffs’ additional

membership in a class of workers who own companies

that distribute products for defendants does not

remove them from the class of workers who deliver

goods.”). 4

4 Nor

does the nature of Flowers’ business alter the Court’s

characterization of the class of workers to which Mr. Brock

47a

Flowers’ argument that Mr. Brock does not belong

to a class of “transportation workers”—and that,

crucially, Flowers’ distributors are factually dissimilar

to the airline cargo loaders in Saxon—fails to persuade,

given that Saxon’s definition of “class of workers” was

not confined to airline cargo loaders (ECF No. 28 at 19).

See Saxon, 142 S. Ct. at 1788–89. Instead, Saxon

teaches that, in defining a “class of workers,” courts

should look to “the actual work that the members of

the class, as a whole, typically carry out.” Id. For this

reason, reading Saxon as Flowers urges disserves—

and ignores—its thorough textual analyses and

ultimate instruction. And to the extent that Flowers

argues that Mr. Brock belongs to a class of workers

who are not engaged in foreign or interstate commerce,

this is a separate analytical exercise that the Court

conducts below (see ECF No. 28 at 18–19). See also

Saxon, 142 S. Ct. at 1788.

C. Engaged in Foreign or Interstate

Commerce

Flowers argues that Mr. Brock cannot satisfy § 1’s

“engaged in foreign or interstate commerce”

requirement because essentially he is a “purely local

distributor who does not cross state lines” (ECF No. 28

at 13). Mr. Brock contends that the class of workers

to which he belongs is “directly involved” in interstate

belongs, or foreclose his membership into a class of workers that

falls under § 1’s exemption (see ECF No. 29 at 20 n.8). See also

Waithaka v. Amazon.com, Inc., 966 F.3d 10, 23 (1st Cir. 2020)

(“[W]e do not hold that a class of workers must be employed by

an interstate transportation business or a business of a certain

geographic scope to fall within the Section 1 exemption.”);

Rittmann, 971 F.3d at 919. Flowers’ argument to the contrary is

unavailing (see, e.g., ECF No. 28 at 9–12; ECF No. 33 at 8).

48a

commerce as contemplated by § 1 (ECF No. 29 at 20).

The Court agrees with Mr. Brock.

To be sure, § 1’s scope is limited. See Cir. City Stores,

Inc. v. Adams, 532 U.S. 105, 118 (2001) (“[T]he § 1

exclusion provision [is] afforded a narrow

construction.”); see also id. at 119 (“[T]he text of § 1

precludes interpreting the exclusion provision to

defeat the language of § 2 as to all employment

contracts. Section 1 exempts from the FAA only

contracts of employment of transportation workers.”);

McWilliams v. Logicon, Inc., 143 F.3d 573, 576 (10th

Cir. 1998) (“[A] narrow construction of 9 U.S.C. § 1 to

include only employees actually engaged in the

channels of foreign or interstate commerce comports

with both the text and history of the Federal

Arbitration Act.”). 5

In addressing whether a class of workers who

“physically load and unload cargo on and off airplanes

on a frequent basis” was engaged in interstate

commerce under § 1, the Supreme Court concluded

that the airplane cargo loaders “plainly do perform

activities within the flow of interstate commerce when

they handle goods traveling in interstate and foreign

commerce, either to load them for air travel or to

unload them when they arrive.” Saxon, 142 S. Ct. at

1789, 1792 (quotations omitted); see also id. at 1790

5 As the Supreme Court in Circuit City noted, textual differences

distinguish § 1 from § 2 of the Federal Arbitration Act. See Circuit

City, 532 U.S. at 114 (“Unlike the ‘involving commerce’ language

in § 2, the words ‘any other class of workers engaged in . . .

commerce’ [in § 1] constitute a residual phrase.”); see also Wallace

v. Grubhub Holdings, Inc., 970 F.3d 798, 803 (7th Cir. 2020)

(explaining textual differences between § 1 and § 2).

49a

(“[A]ny [transportation] worker must at least play a

direct and ‘necessary role in the free flow of goods’

across borders . . . . transportation workers must be

actively ‘engaged in transportation’ of those goods

across borders via the channels of foreign or interstate

commerce.” (citations omitted)). In reaching this

conclusion, Saxon explicitly rejected an interpretation

of § 1 under which “only workers who physically move

goods or people across foreign or international

boundaries” qualify for its exemption. Id. at 1791.

Before and after Saxon, appellate courts have reached

differing conclusions regarding the applicability of

§ 1’s “engaged in foreign or interstate commerce”

requirement. Compare Fraga, 61 F.4th at 240, and

Rittmann, 971 F.3d at 917–18, with Lopez, 47 F.4th at

433, and Wallace, 970 F.3d at 802.

In arguing that Mr. Brock cannot satisfy § 1’s

“engaged in foreign or interstate commerce”

requirement because he is a local, “intrastate” delivery

person—who does not transport Flowers’ products

across state lines—and is too far removed from the

interstate transportation of products, Flowers relies

on many of these appellate decisions, and encourages

the Court to adopt their reasoning (see ECF No. 28 at

14–15; ECF No. 33 at 10). The Court declines to do so.

For instance, Flowers cites Wallace, emphasizing that

§ 1 is “about what the worker does, and not where the

goods have been” (ECF No. 28 at 15 (quotations

omitted)). See also Wallace, 970 F.3d at 802. Wallace

reasoned—relying heavily on Circuit City’s “narrow”

construction of § 1—that delivery drivers who collected

takeout orders from “local restaurants” did not fall

under § 1’s exemption because they were not

50a

“connected . . . to the act of moving [the orders] across

state or national borders.” Id. at 799, 802.

Wallace is factually distinguishable. Unlike the

Wallace drivers who delivered takeout orders from

intrastate restaurants to intrastate customers, Mr.

Brock orders Flowers products from bakeries across

state borders, “sign[s] off” on them at his warehouse,

loads them onto his trucks, and delivers them (ECF No.

29-6 at 2 ¶¶ 3–4). Cf. Wallace, 970 F.3d at 802. As Mr.

Brock argues, he belongs to a class of workers who

“haul goods on the final legs of interstate journeys”—

in this case, Flowers baked goods from out-of-state

bakeries—and is therefore engaged in interstate

commerce, “regardless of whether [he] physically

cross[es] state lines” (see ECF No. 29 at 22– 23). See

also Waithaka, 966 F.3d at 26 (quotations omitted);

Rittmann, 971 F.3d at 916 (“The packages . . . are

simply part of a process by which a delivery provider

transfers the packages to a different vehicle for the

last mile of the packages’ interstate journeys.”). At

bottom, this—unlike Wallace—is not a case where Mr.

Brock’s delivery of Flowers’ products “occur[s] in an

entirely separate intrastate transaction.” Fraga, 61

F.4th at 240 (emphasis added); see also Immediato v.

Postmates, Inc., 54 F.4th 67, 77 (1st Cir. 2022) (“[The]

work, though, must be a constituent part of that

[interstate] movement, as opposed to a part of an

independent and contingent intrastate transaction.”

(citation omitted) (emphasis added)). Instead, Mr.

Brock is actively engaged in the transportation of

Flowers’ products across state lines into Colorado, by

placing orders for products that arrive from out-ofstate bakeries and then delivering those products to

his Colorado customers, through Flowers’ “Direct-

51a

Store-Delivery” sales model (see ECF No. 29 at 23).

See also Saxon, 142 S. Ct. at 1790. This directly affects

channels of commerce and constitutes the requisite

engagement with interstate commerce that § 1

contemplates. See id; see also Rittman, 971 F.3d at

916; McWilliams, 143 F.3d at 576. 6

Flowers also urges the Court to adopt the reasoning

of Lopez v. Cintas Corporation, 47 F.4th 428 (5th Cir.

2022), where the Fifth Circuit concluded that “[once]

the [relevant] goods arrived at the [at-issue]

warehouse and were unloaded, anyone interacting

with those goods was no longer engaged in interstate

commerce.” Id. at 433. The Court rejects the

reasoning of Lopez. Lopez determined that its relevant

class of workers—a class that “pick[ed] up items from

a local warehouse and deliver[ed] those items to local

customers, with an emphasis on sales and customer

service”—lacked a “direct and necessary role” in

interstate commerce, emphasizing the class’s

“customer-facing role.” Id. at 432–33. However,

Lopez’s abbreviated analysis of its class’s engagement

with interstate commerce went no further. See id.

Compared to other courts’ thorough analysis of their

class’s engagement with interstate commerce, Lopez

fails to persuade—especially, where, as here, Mr.

Brock’s job duties as an independent distributor

6 The Court’s conclusion is bolstered by the nature of Brock, Inc.’s

contractual relationship with Flowers Baking Company of

Denver, LLC—a subsidiary of Flower Bakeries, LLC—under

which Brock, Inc. gained the authorization to “sell certain defined

[Flowers] products within . . . territories” as an independent

contractor, “act[ing] as a franchise distributor of [Flowers Baking

Company of Denver, LLC’s] products in” that territory (see, e.g.,

ECF No. 28-1 at 1 ¶¶ 2, 6). See Fraga, 61 F.4th at 240–41.

52a

included more “sales and customer service” tasks (see,

e.g. ECF Nos. 28-1 at 36, 29-6 at 2 ¶¶ 3–4). Compare

id., with Fraga, 61 F.4th at 234; Rittmann, 971 F.3d

at 917–18. See also Canales, --- F.4th ---, 2023 WL

3269173, at *6 (“Workers who frequently perform

transportation work do not have their transportationworker status revoked merely because they also have

other responsibilities.”). 7

***

Mr. Brock belongs to a class of workers: independent

distributors who load and unload Flowers bakery

products. For the reasons set forth above, as a member

of this class of workers, Mr. Brock is engaged in

interstate commerce. Accordingly, Mr. Brock has met

his burden of showing that, under Saxon, he is a

transportation worker exempt from the Federal

Arbitration Act under 9 U.S.C. § 1, and therefore the

Arbitration Agreement is unenforceable. See, e.g.,

Wynn v. United Parcel Serv., Inc., No. 21-cv-10029CRB, 2022 WL 18912481, at *5 (N.D. Cal. Oct. 4, 2022)

(concluding that where plaintiff was a “transportation

7 The same is true for Flower’s citation to Hamrick v. Partsfleet,

LLC, 1 F.4th 1337 (11th Cir. 2021), where central to the Eleventh

Circuit’s reasoning was its determination that “[t]he

transportation worker exemption applies only if the worker

belongs to a class of workers in the transportation industry and

the class of workers actually engages in foreign or interstate

commerce.” Id. at 1351 (citation omitted). The cramped

requirement that a worker must belong to a class of workers in

the “transportation industry” is, for the reasons set forth above,

inconsistent with § 1, and the Court declines to impose this

unnecessary requirement in its § 1 analysis. See, e.g., Waithaka,

966 F.3d at 23; Rittmann, 971 F.3d at 919; Bissonnette, 59 F.4th

at 596 (Nathan, J., dissenting from denial of rehearing en banc).

53a

worker exempt from the FAA” under § 1 that “the

arbitration agreement [was] unenforceable” (citing

Rittmann, 971 F.3d at 915)).

D. Colorado’s Uniform Arbitration Act

Flowers argues that, even if Mr. Brock falls under

§ 1’s transportation workers exemption, he must be

compelled to arbitrate under the Colorado Uniform

Arbitration Act (ECF No. 28 at 19). The Uniform

Arbitration Act does not contain a transportation

worker exemption, Flowers’ argument goes, and for

this reason it applies broadly and reaches Mr. Brock’s

claims (see id.).

Mr. Brock contends that the

Arbitration Agreement’s plain language renders the

Uniform Arbitration Act inapplicable in this case

(ECF No. 29 at 25). The Court agrees with Mr. Brock. 8

Courts interpret arbitration agreements using

state-law contract principles. See, e.g., First Options,

514 U.S. at 944. Under Colorado law, courts look to a

contract’s language to ascertain the parties’ intent,

giving contractual terms their “plain and generally

accepted” meanings. See E. Ridge of Fort Collins, LLC

v. Larimer & Weld Irr. Co., 109 P.3d 969, 974 (Colo.

2005); Radil v. Nat’l Union Fire Ins. Co. of Pittsburg,

PA, 233 P.3d 688, 692 (Colo. 2010) (“The existence and

scope of an arbitration agreement [is reviewed]

applying state law principles governing contract

interpretation.”). Courts examine the entire contract,

8 The Court agrees with the Eleventh Circuit that, in this case,

analyzing the state law arbitration issue after analyzing § 1 is

appropriate. See Hamrick, 1 F.4th at 1353 (“We would only look

to state arbitration law after we decided the federal issue of

whether the transportation worker exemption applied to the

drivers.” (emphasis omitted)).

54a

avoiding “strained constructions” of its terms. See

Dunning v. Jefferson Cnty. Sch. Dist. R-1, No. 22-CV00641-MEH, 2022 WL 3212925, at *3 (D. Colo. Aug. 9,

2022) (citations omitted).

“When a contractual

provision unambiguously resolves the parties’ dispute,

the interpreting court’s task is over.”

Level 3

Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146, 1154

(10th Cir. 2008).

A few cases Flowers identifies provide minimal

support for its argument that Mr. Brock’s claims are

arbitrable under the Uniform Arbitration Act (see ECF

No. 33 at 11). For instance, in Davis v. EGL Eagle

Glob. Logistics L.P., the Fifth Circuit concluded that,

where Texas’s General Arbitration Act and the

Federal Arbitration Act applied according to an

arbitration agreement, a claim was arbitrable because

Texas law rendered the arbitration agreement

enforceable, notwithstanding the applicability of an

exception under the Federal Arbitration Act. See

Davis v. EGL Eagle Glob. Logistics L.P., 243 F. App’x

39, 44 (5th Cir. 2007). But in this case, the Court’s

analysis begins with the plain text of the parties’

Arbitration Agreement. See, e.g., Level 3, 535 F.3d at

1154. The Arbitration Agreement states that disputes

“shall be submitted to and determined exclusively by

binding arbitration under the Federal Arbitration Act”

(ECF No. 28-1 at 38 (emphasis added)). Elsewhere,

the Arbitration Agreement states that it “shall be

governed by the FAA and Colorado law to the extent

Colorado law is not inconsistent with the FAA” (id. at

40 (italics added)). Notwithstanding the exclusive

application of the Federal Arbitration Act to any

disputes between the parties—under which Mr. Brock

qualifies for § 1’s transportation exemption—

55a

application of the Uniform Arbitration Act, which does

not have a similar transportation worker exemption,

would be wholly inconsistent with § 1. Simply put, the

Arbitration Agreement mandates application of the

Federal Arbitration Act and applying Colorado law to

require Mr. Brock to arbitrate would be inconsistent

with the Act.

Accordingly,

interpreting

the

Arbitration

Agreement’s relevant and unambiguous provisions,

the plain meaning of the phrases “exclusively” and “to

the extent Colorado law is not inconsistent with the

FAA” mean that Mr. Brock’s claims, which are exempt

from arbitration under § 1, cannot be arbitrated under

the Uniform Arbitration Act (see ECF No. 28-1 at 38,

40). See East Ridge, 109 P.3d at 974; Level 3, 535 F.3d

at 1154. To conclude otherwise would result in an

impermissibly strained construction of the Arbitration

Agreement’s terms. See Dunning, 2022 WL 3212925,

at *3; see also Dean Witter, 537 U.S. at 84 (“[A] party

cannot be required to submit to arbitration any

dispute which he has not agreed so to submit.”

(quotations omitted)). 9

9 As noted above, the parties offer competing interpretations of

the Arbitration Agreement and whether Mr. Brock’s claims and

the parties to this action fall within its scope. Compare ECF No.

28 at 6; ECF No. 33 at 3–7, with ECF No. 29 at 14, 17. The Court

need not address these arguments, because—for the reasons set

forth above—sMr. Brock is a “transportation worker” under § 1,

and for this reason he is exempt from the Federal Arbitration

Act’s coverage. See § 1; Wynn, 2022 WL 18912481, at *5; New

Prime, 139 S. Ct. at 537–38 (“The parties’ private agreement may

be crystal clear and require arbitration of every question under

the sun, but that does not necessarily mean the Act authorizes a

56a

***

The Court makes one final note. Flowers argues

that exempting Mr. Brock “would flout” the Federal

Arbitration Act’s “history and purpose” (ECF No. 28 at

17). To be sure, § 1 provides a narrow exception

relative to § 2’s broad enforcement requirement. See,

e.g., Saxon, 142 S. Ct. at 1792. But the Court cannot

“pave over bumpy statutory texts in the name of more

expeditiously advancing a policy goal.” Id. (quotations

omitted); see also id. at 1792–93 (“[W]e have no

warrant to elevate vague invocations of statutory

purpose over the words Congress chose.”); Bostock v.

Clayton Cnty., Georgia, 140 S. Ct. 1731, 1737 (2020)

(“When the express terms of a statute give us one

answer and extratextual considerations suggest

another, it’s no contest.”).

Section 1 of the Federal Arbitration Act and

Southwest Airlines Company v. Saxon establish a clear

framework for determining whether § 1’s

transportation worker exemption applies. Mr. Brock

loads and unloads interstate bakery products that he

has ordered as an independent distributor for delivery

to his customers. Accordingly, and for the reasons set

forth above, he belongs to a class of workers engaged

in foreign or interstate commerce to which § 1’s

exemption applies. In sum, Mr. Brock has met his

burden of showing that his claims are not arbitrable

under § 1’s and Saxon’s clear framework.

See

Shearson/American Express, 482 U.S. at 227.

court to stay litigation and send the parties to an arbitral

forum.”).

57a

IV. CONCLUSION

Consistent with the above analysis, Flowers’ Motion

to Dismiss or Stay Proceedings and Compel Individual

Arbitration (ECF No. 28) is DENIED.

DATED this 16th day of May 2023.