Amicus Curiae Brief — Flowers Foods, Inc., et al., Petitioners v. Angelo Brock

No. 24-935

In the

Supreme Court of the United States

____________

FLOWER FOODS, I NC., et al.,

Petitioners,

v.

ANGELO BROCK,

Respondent.

___________

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

____________

BRIEF OF WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING PETITIONER

____________

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

December 11, 2025

i

QUESTION PRESENTED

Whether workers who locally deliver goods

that have traveled in interstate commerce—but who

neither transport the goods across state borders nor

interact with vehicles that cross borders—are

“transportation workers” “engaged in foreign or

interstate commerce” under 9 U.S.C. § 1.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICUS CURIAE ......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 1

ARGUMENT ............................................................ 5

I.

AFFIRMING THE DECISION BELOW WILL

“BREED LITIGATION FROM A STATUTE

THAT SEEKS TO AVOID IT.”.............................. 5

II.

THE DECISION BELOW MISINTERPRETS

THE TEXT OF SECTION 1 .................................. 9

CONCLUSION ...................................................... 12

iii

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935)................................................7

Asahi Metal Indus. Co. v. Superior Ct. of Cal.,

480 U.S. 102 (1987)................................................6

Biden v. Neb.,

600 U.S. 477 (2023)................................................2

Bissonnette v.

LePage Bakeries Park St., LLC,

601 U.S. 246 (2024)............................ 1, 2, 3, 6, 8, 9

Cir. City Stores, Inc. v. Adams,

532 U.S. 105 (2001)........................................5, 6, 8

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)................................................3

Fischer v. United States,

603 U.S. 480 (2024)................................................9

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011)................................................6

Lopez v. Cintas Corp.,

47 F.4th 428 (5th Cir. 2022) ............................3, 10

iv

Moses H. Cone Mem. Hosp. v.

Mercury Construction Corp.,

460 U.S. 1 (1983)....................................................4

Rittman v. Amazon.com, Inc.,

971 F.3d 904 (9th Cir. 2020)..................................6

Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220 (1987)............................................4, 5

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022).................................. 1, 3, 9, 10

United States v. Williams,

553 U.S. 285 (2008)................................................9

Wallace v. Grubhub Holdings, Inc.,

970 F.3d 798 (7th Cir. 2020)............................3, 10

Statutory Provisions

9 U.S.C. § 1 ........................... i, 2, 3, 4, 5, 6, 7, 9, 10, 12

9 U.S.C. § 2 ..................................................................5

Other Authorities

Antonin Scalia,

The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) ..............................8

Victor Schwartz & Christopher Appel,

Setting the Record Straight

About the Benefits of Pre-Dispute Arbitration,

WLF Legal Backgrounder (June 7, 2019) .............5

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. It defends free enterprise,

individual rights, limited government, and the rule of

law. WLF advances that mission, in part, by

appearing as amicus curiae to urge this Court to give

proper effect to Congress’s longtime policy favoring

arbitration agreements. Bissonnette v. LePage

Bakeries Park St., LLC, 601 U.S. 246 (2024); Sw.

Airlines Co. v. Saxon, 596 U.S. 450 (2022).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Basic textualism suggests that a law called the

Federal Arbitration Act likely sets out federal policy

for arbitration. And so the FAA does—as it has since

President Coolidge signed it into law in 1925. The

FAA ousted old caselaw that effectively deleted

arbitration clauses from contracts, and requires

courts to give effect to the written agreements as

signed by the parties. The FAA accordingly eschews

“complexity

and

uncertainty”

about

its

pro-arbitration mission and ought not be interpreted

to “breed litigation from a statute that seeks to avoid

it.” Bissonnette, 601 U.S. at 254 (punctuation altered,

citation omitted).

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, paid for the brief’s preparation or submission.

2

That context matters when reading the FAA’s

modest exemptions from its sweeping scope. After all,

“a vacuum is no home for a textualist.” Biden v. Neb.,

600 U.S. 477, 517 (2023) (Barrett, J., concurring).

Section 1 of the Act provides that “nothing herein

contained shall apply to contracts of employment of

seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce.”

9 U.S.C. § 1. That narrow exception should be an easy

one for a court to apply when reviewing a defendant’s

motion to compel arbitration. But the Tenth Circuit,

compounding a similar error by the First and Ninth

Circuits, has developed an inchoate balancing test

based on the flawed proposition that workers

operating wholly in-state may be treated as “engaged

in interstate commerce,” Pet. App. 3a, not based on

“what they do,” but on how isolated provisions of a

distributor

agreement

sound.

Bissonnette,

601 U.S. at 255.

That’s a recipe for “mini-trials,” “extensive

discovery,” and an invitation for the courts “to explore

the internal structure and revenue models of a

company before deciding a simple motion to compel

arbitration.” Id. at 254 (capitalization altered).

There’s no need for this Court to bless the creation of

such “a regular, slow, and expensive practice in FAA

cases” that flies in the face of Congress’s policy choice

to minimize, not unleash, litigation. Id.

Inchoate balancing tests not only breed judicial

inefficiency, but they also inevitably yield

counterintuitive outcomes like the one below. “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.”

3

Pet. App. 22a. Sure, the contract between Brock and

Flower Foods imposes some conditions for the sake of

both parties’ business reputations, like a provision

preventing Brock from purchasing products just to let

them rot. Id. at 23a–24a. But that can’t change the

cut-and-dried fact that Brock buys the products, owns

the products, and then takes them “from a Colorado

warehouse to his Colorado customers.” Pet. 3. And yet

the Tenth Circuit’s balancing test transmogrifies that

in-state commerce into interstate commerce,

cancelling the arbitration agreement and swinging

open the courthouse door.

Thankfully, the best reading of the statute

doesn’t compel an outcome so inconsistent with the

FAA’s purpose. Cf. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a

fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme”) (internal quotation marks and citation

omitted). By beginning its list of caveats with

“seamen” and “railroad workers,” the FAA limits the

scope of that exemption to workers that, like those

two categories, “‘must at least play a direct and

necessary role in the free flow of goods across

borders.’” Bissonnette, 601 U.S. at 256 (quoting Sw.

Airlines, 596 U.S. at 458) (emphasis supplied).

So the statute’s text compels reversal here.

Brock just isn’t “actively engaged in the enterprise of

moving goods across interstate lines.” Wallace v.

Grubhub Holdings, Inc., 970 F.3d 798, 802 (7th Cir.

2020) (Barrett, J.); Lopez v. Cintas Corp., 47 F.4th

428, 433 (5th Cir. 2022) (“Giving § 1 more limited

reach means limiting its applicability to those actively

4

engaged in transportation of those goods across

borders, which is something the class of local delivery

drivers here simply does not do”) (internal quotation

marks and citation omitted). They never leave

Colorado. Pet. 3. And “neither Brock nor any others

he employed crossed state lines to deliver goods in

connection with the operation of his business.” Pet.

App. 12a (internal quotation marks and citation

omitted).

So text and purpose are perfectly aligned.

In-state commerce—here the delivery of goods by a

last-mile service delivered wholly within a state’s

borders—cannot be converted to interstate commerce.

That means the actual requirements to meet

the text of § 1 are straightforward. Does the class of

workers at issue typically move goods across state

lines? If yes, they’re exempted. Does the class of

workers typically move goods wholly in-state? If so,

they’re not exempted, and Congress’s centenarian

command to the courts to “‘favor[] arbitration’”

prevails. Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220, 226 (1987) (quoting Moses H. Cone

Mem. Hosp. v. Mercury Construction Corp., 460 U.S.

1, 24 (1983)). That’s an on/off switch that the lower

courts can swiftly apply—no complicated, multi-factor

balancing, extensive discovery, or cumbersome

motions practice needed. This Court should reverse.

5

ARGUMENT

I.

AFFIRMING THE DECISION BELOW WILL

“BREED LITIGATION FROM A STATUTE THAT

SEEKS TO AVOID IT.”

Litigation is expensive. Arbitration—less so.

Victor Schwartz & Christopher Appel, Setting the

Record Straight About the Benefits of Pre-Dispute

Arbitration, WLF Legal Backgrounder (June 7, 2019);

https://perma.cc/SW5P-JFCK. But for most of the

Nation’s history, the courts—federal and state—

evinced abject “hostility” to “the enforcement of

arbitration agreements.” Cir. City Stores, Inc. v.

Adams, 532 U.S. 105, 111 (2001). This judicial

skepticism of contracted-for arbitration was a

hangover from the “then-longstanding English

practice” of finding ways to render arbitration

agreements unenforceable. Id.

In 1925, Congress intervened. It passed the

FAA, which firmly “establishes a federal policy

favoring arbitration.” Shearson/Am. Express, 482

U.S. at 226 (internal quotation marks and citation

omitted). It instructs that “a contract evidencing a

transaction involving commerce to settle by

arbitration a controversy . . . shall be valid,

irrevocable, and enforceable.” 9 U.S.C. § 2. But there’s

a caveat. “[N]othing” in the FAA “shall apply to

contracts of employment of seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce.” Id. § 1.

Given the FAA’s litigation-minimizing mission,

it follows that applying those exceptions shouldn’t

require a lot of lifting from the parties or the judge.

6

Determining whether a prospective plaintiff belongs

to a “class of workers engaged in foreign or interstate

commerce,” 9 U.S.C. § 1, shouldn’t require a court to

oversee “[e]xtensive discovery” or minutely sift “the

internal structure and revenue models of a company

before deciding a simple motion to compel

arbitration.” Bissonnette, 601 U.S. at 254. As “a

statute that seeks to avoid” litigation, Cir. City, 532

U.S. at 123 (internal quotation marks and citation

omitted), § 1 appropriately resists a reading that will

make “[m]ini-trials . . . a regular, slow, and expensive

practice in FAA cases.” Bissonnette, 601 U.S. at 254.

But that’s the future that Brock and other

plaintiffs (and their lawyers) across the Nation have

placed on offer. This Court, unlike the First, Ninth,

and Tenth Circuits, should refuse to accept. Those

courts of appeals have insisted that so long as a

worker merely delivers goods that were placed in the

stream of commerce, that’s sufficient to reverse the

100-year-old general rule favoring arbitration. Pet.

App. 26a–28a (collecting cases); Rittman v.

Amazon.com, Inc., 971 F.3d 904, 915–16 (9th Cir.

2020).

As anyone with even a passing knowledge of

this Court’s personal jurisdiction caselaw knows, the

stream-of-commerce metaphor cannot provide an

objective, bright-line rule for lower courts to apply.

Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480

U.S. 102, 112 (1987) (O’Connor, J., plurality);

J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883

(2011) (Kennedy, J., plurality). And because streamof-commerce is so vague and elastic a term, it risks

“obliterat[ing] the distinction between what is

national and what is local in the activities of

7

commerce.” A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 554 (1935) (Cardozo, J.,

concurring).

Consider this case. To find that the § 1

exemption applied, the Tenth Circuit had to

determine that wholly in-state deliveries were

performed by “workers engaged in foreign or

interstate commerce.” 9 U.S.C. § 1. Yet unlike the

airline workers in Southwest Airlines, Brock wasn’t

sending and receiving the goods of others on crosscountry or international trips. “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.” Pet. App.

22a. Brock contracts for the property, loads it up, and

delivers his goods “from a Colorado warehouse to his

Colorado customers.” Pet. 3 (emphasis supplied). If

§ 1 for some reason excused a “class of workers

engaged in intrastate commerce,” Brock would have

the law on his side. But it doesn’t, so he must arbitrate

his claims.

These aren’t contested facts, either. The Tenth

Circuit tells us that “neither Brock nor any others he

employed crossed state lines to deliver goods in

connection with the operation of his business.” Pet.

App. 12a (internal quotation marks and citation

omitted). Rather than letting these facts control the

law, however, the Tenth Circuit went prospecting for

new, better facts. There weren’t any, so the court of

appeals chose to blow up modest contracting

provisions, like those designed “to protect the

business reputation of both Brock, Inc. and Flowers

Denver,” Pet. App. 23a (internal punctuation and

citation omitted, emphasis in original), and to gin up

8

a fuzzy balancing test. But “when an appellate judge

comes up with nothing better than a totality of the

circumstances test to explain his decision, he is not so

much pronouncing the law in the normal sense as

engaging in the less exalted function of fact finding.”

Antonin Scalia, The Rule of Law as a Law of Rules, 56

U. Chi. L. Rev. 1175, 1180–81 (1989).

That’s a mess—and it’s not the kind of thing

that’s reducible to a straightforward standard that

can resolve “a simple motion to compel arbitration.”

Bissonnette, 601 U.S. at 254. The distributor

agreement between Flower Foods and Brock, for

instance, stipulated that Brock’s delivery personnel

should look “‘clean and neat.’” Pet. App. 23a (citation

omitted). How much should that, and other picayune

contractual restrictions, weigh against the fact that

Brock took “title to . . . goods” that never left Colorado

once Brock owned them? Id. at 22a.

And just how much judicial economy must be

lost “examining the various relationships at play?” Id.

What other facts might be added to the scales on

either side? What’s the tipping point? Will a court

need access to emails between an independent

distributor and representatives of the goods-maker?

Depositions? In-court witness testimony? In short,

“[a]ll this ‘complexity and uncertainty’ would ‘breed

litigation from a statute that seeks to avoid it.’”

Bissonnette, 601 U.S. at 254 (quoting Cir. City, 532

U.S. at 123) (brackets omitted). This Court should

draw a firm line that favors arbitration.

9

II.

THE DECISION BELOW MISINTERPRETS THE

TEXT OF SECTION 1.

The text doesn’t support the Tenth Circuit’s

balancing test. The exemption clause shields the

“contracts of employment of seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce” from the FAA’s reach.

9 U.S.C. § 1. Let’s start with Congress’s considered

decision to begin that list with “seamen” and “railroad

employees.”

First, it emphasizes that the exemption applies

to categories of workers—as the subsequent “any

other class” language confirms. Section 1 “speaks of

‘workers,’” and therefore is focused on “the actual

work that the members of the class, as a whole,

typically carry out.” Sw. Airlines, 596 U.S. at 456

(emphasis supplied, citation omitted). Section 1 does

not exempt workers who occasionally engage in

interstate commerce, or those whose scope of

employment is ancillary to it. An Uber driver who

occasionally drops off a passenger at an airport for an

international flight, for instance, is too tangential to

foreign commerce to be excused from mandatory

arbitration.

Second, because “a word is ‘given more precise

content by the neighboring words with which it is

associated,’” it cabins the class of workers covered to

those who are the functional equivalent of railroad

employees or seamen. Fischer v. United States, 603

U.S. 480, 487 (2024) (quoting United States v.

Williams, 553 U.S. 285, 294 (2008)); Bissonnette, 601

U.S. at 255 (the “natural inference . . . is that ‘seamen’

10

and ‘railroad employees’ share the employment

characteristic of being transportation workers”).

By 1925, the federal government had spent

untold resources, under the authority of the

Commerce Clause, to build railroads from coast-tocoast and to regulate maritime shipping. So railroad

workers on the Overland Route were obviously

engaged in interstate commerce. Seamen carrying

cargo across the seas to America’s trading partners

were obviously engaged in foreign commerce. And any

other “class of workers” exempted from the reach of

§ 1, must be similarly so intricately involved in either

interstate or foreign commerce. Sw. Airlines, 596 U.S.

at 457 (comparing airline cargo loaders to employees

of the Baltimore & Ohio Southwestern Railroad

Company and citing Baltimore & Ohio Sw. R. Co. v.

Burtch, 263 U.S. 540, 544 (1924)).

The most natural reading of the statute, then,

is that the residual clause covers only workers

directly and regularly engaged in interstate or foreign

deliveries. Indeed, that’s how the Fifth and Seventh

Circuits have interpreted the statute. This Court

should affirm that approach.

The Seventh Circuit requires an “inquiry [that]

is always focused on the worker’s active engagement

in the enterprise of moving goods across interstate

lines.” Wallace, 970 F.3d at 802. That case anticipated

this Court’s ruling in Southwest Airlines, which, in

turn, served as the basis for the Fifth Circuit’s ruling

that “local delivery drivers” who perform a wholly

intrastate route “simply” aren’t “‘actively engaged in

transportation of those goods across borders.’” Lopez,

47 F.4th at 433 (quoting Sw. Airlines, 596 U.S. at

11

458). Rather than treating cases before them as a

philosophy seminar on causation or as an invitation

to mini-trials over ancillaries in a contract, those

courts have laid down a rule of general application:

did the class of workers typically and directly move

the goods across state lines?

That rule, which is the natural reading of the

statute, would resolve this case for Flower Foods. Just

as no one would reduce the work of a stay-at-home

mom who regularly packs her kid a sandwich for

lunch to being a “sandwich maker,” the typical work

done by Brock is not defined by his neat appearance

or other limited responsibilities to Flower Foods

limned in the distributor agreement—it’s the delivery

of goods owned by Brock “from a Colorado warehouse

to his Colorado customers.” Pet. 3.

12

CONCLUSION

Section 1’s residual clause doesn’t apply to a

class of workers engaged in solely in-state commerce.

The Court should reverse.

Respectfully submitted,

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

December 11, 2025