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, INC., et al.,

Petitioners,

v.

ANGELO BROCK,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Tenth Circuit

BRIEF FOR THE CALIFORNIA

EMPLOYMENT LAW COUNCIL AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

Paul Grossman

Leslie L. A bbott

Chris A. Jalian

Counsel of Record

Sean D. Unger

Eric D. Distelburger

Paul Hastings LLP

515 South Flower Street, 25th Floor

Los Angeles, CA 90071

(213) 683-6000

chrisjalian@paulhastings.com

Counsel for Amicus Curiae

387975

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Court Should Reconfirm Bissonnette

Is The Test And Reverse . . . . . . . . . . . . . . . . . . . 4

A. This Court’s Precedents, Up And

Through Bissonnette, Provide Another

Avenue For Reversal . . . . . . . . . . . . . . . . . . . 4

B. The Court’s Holding Below Failed To

Follow Bissonnette, And Thus Should

Be Overturned . . . . . . . . . . . . . . . . . . . . . . . . 8

II. CELC Asks The Court Confirm Which Circuit

Decisions Chronicled In Brock Do Not Survive . . . . 9

III. CELC Members Look For Clear Rules . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Allied-Bruce Terminix Cos. v. Dobson,

513 U.S. 265 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Alvarado v. Dart Container Corp. of Cal.,

4 Cal. 5th 542 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Bissonnette v. LePage Bakeries Park St., LLC,

49 F.4th 655 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . 6

Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246 (2024) . . . . . . . . . . . . . . . . . . . . . . 2-4, 6-15

Carmona Mendoza v. Domino’s Pizza, LLC,

73 F.4th 1135 (9th Cir. 2023), cert. denied

144 S. Ct. 1391 (2024) . . . . . . . . . . . . . . . . . . 2, 6, 10, 11

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Donahue v. AMN Servs., LLC,

11 Cal. 5th 58 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. Commc’ns Comm’n v. Consumers’ Rsch.,

606 U.S. 656 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ferra v. Loews Hollywood Hotel, LLC,

11 Cal. 5th 858 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iii

Cited Authorities

Page

Frlekin v. Apple Inc.,

8 Cal. 5th 1038 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

In re Grice,

974 F.3d 950 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 14

Lopez v. Cintas Corp.,

47 F.4th 428 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 11

Marcelle v. Lupia,

348 U.S. 956 (1955) (per curiam) . . . . . . . . . . . . . . . . 12

Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp.,

460 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Preston v. Ferrer,

552 U.S. 346 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Rittmann v. Amazon.com, Inc.,

971 F.3d 904 (9th Cir. 2020) . . . . . . . . . . . . . 6, 7, 10, 11

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) . . . . . . . . . . . . . . . . . . . 5, 10, 11, 13

Sturgeon v. Frost,

577 U.S. 424 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv

Cited Authorities

Page

Tisdale v. Apria Healthcare LLC,

No. 2:24-cv-09620-AH, 2025 WL 1356942

(C.D. Cal. Apr. 24, 2025) appeal filed

No. 25-3387 (9th Cir. May 28, 2025) . . . . . . . 9, 10, 13

Troester v. Starbucks Corp.,

5 Cal. 5th 829 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Viking River Cruises, Inc. v. Moriana,

596 U.S. 639 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Waithaka v. Amazon.com, Inc.,

966 F.3d 10 (1st Cir. 2020) . . . . . . . . . . . . . . . . . 6, 7, 10

Walker v. Amazon Logistics, Inc.,

No. 1:25-cv-1840, 2025 WL 2933896

(N.D. Ohio Oct. 15, 2025) . . . . . . . . . . . . . . . . . . . . 9, 10

Wallace v. Grubhub Holdings, Inc.,

970 F.3d 798 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 14

Wirtz v. Hotel, Motel & Club Emp. Union, Loc. 6,

391 U.S. 492 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wirtz v. Local Unions 410, IUOE,

366 F.2d 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wooddell v. Int’l Bhd. of Elec. Workers, Loc. 71,

502 U.S. 93 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

STATUTES

9 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

RULES

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

INTEREST OF AMICUS CURIAE

Amicus Curiae California Employment Law Council

(“CELC”) files this brief in support of petitioners

Flower Foods, Inc., et al.1 CELC is a voluntary, nonprofit organization that promotes the common interests

of employers and the general public in fostering the

development in California of reasonable, equitable, and

progressive rules of employment law. CELC’s membership

includes approximately 80 private-sector employers in the

State of California who collectively employ well in excess

of a half-million Californians. CELC has participated as

amicus in many of California’s leading employment cases, 2

and several in this Court. 3

Many members of amicus have arbitration agreements

with some or all of their employees, and therefore have

a significant stake in the outcome of this case. Amicus’

experience with and expertise in the practical aspects

1. Pursuant to Supreme Court Rule 37.6, amicus declares

that no party or any counsel in the pending appeal either authored

this brief in whole or in part, or made a monetary contribution to

fund the preparation or submission of the accompanying brief, and

no person or entity made a monetary contribution intended to fund

the preparation or submission of the accompanying brief other than

amicus and its members.

2. See, e.g., Donahue v. AMN Servs., LLC, 11 Cal. 5th 58 (2021);

Ferra v. Loews Hollywood Hotel, LLC, 11 Cal. 5th 858 (2021); Frlekin

v. Apple Inc., 8 Cal. 5th 1038 (2020); Troester v. Starbucks Corp.,

5 Cal. 5th 829 (2018); Alvarado v. Dart Container Corp. of Cal., 4

Cal. 5th 542 (2018).

3. See, e.g., Viking River Cruises, Inc. v. Moriana, 596 U.S.

639 (2022).

2

of employment matters allow it to assist this Court in

evaluating the issues in this case.

SUMMARY OF ARGUMENT

After years of divergence in the lower courts, this

Court’s decision in Bissonnette v. LePage Bakeries Park

St., LLC, 601 U.S. 246 (2024) set clear rules for the Federal

Arbitration Act’s transportation worker exemption. To

fall within the exemption, this Court said, “any” employee

claiming the exemption is “require[ed]” to show they

“play[ed] a direct and ‘necessary role in the free flow of

goods’ across borders[.]” Id. at 256 (citation omitted). The

beauty of the test is its simplicity. Employees and HR

managers alike can easily understand and apply the test

with nothing more than common sense—and without the

need for a law degree.

Lower cou r ts, however, have fa i led to apply

Bissonnette. As the decision below highlights, lower

courts have looked for nuance when this Court looks

for clean lines. Cert. Pet. App. at 18a-22a. This Court

instructs to look to the worker and the work he or she

performed, not to undertake an employer-focused review

of business operations. Bissonnette, 601 U.S. at 253-54.

Make the analysis straightforward, this Court says. Id.

Do not create a test that “turn[s] on arcane riddles about

the nature of a company’s services.” Id. at 254.

But courts below have failed to adhere to that

message. Lower courts continue to focus on the business

and not the worker’s work. See, e.g., Carmona Mendoza v.

Domino’s Pizza, LLC, 73 F.4th 1135, 1138 (9th Cir. 2023),

cert. denied 144 S. Ct. 1391 (2024). And, as evidenced by

3

the Tenth Circuit’s decision, lower courts have continued

to develop multi-factor, fluctuating tests that even the

trained lawyer has trouble applying. Cert. Pet. App.

at 18a-22a.

CELC’s ask as amicus is straightforward: Reaffirm

the simple test that Bissonnette directs. Each element of

the test is binary. Does the exemption potentially apply to

any worker claiming the exemption regardless of industry?

Bissonnette’s answer: Yes, the test applies to “any exempt

worker[.]” Bissonnette, 601 U.S. at 256. Would a tangential

or once-removed connection to the movement of goods

across state lines qualify? Bissonnette’s answer: No, the

exemption was intended a “narrow scope[,]” and thus to

qualify for it, the work must be “direct and ‘necessary

[to] the free flow of goods’ across borders.” Id. (citations

omitted). Up or down. Yes or no. Clear lines. The binary

nature of the analysis helps both employer (from small to

big) and employee (from executive to warehouse worker)

understand whether a given worker is exempt or not.

CELC asks that the Court confirm for the lower courts

that Bissonnette is the test, and that their continual push

to make the test more complex (and multi-factored) is

inconsistent with the easily applicable approach this Court

has developed. Bissonnette fully answers the question

presented in this appeal and should lead to reversal. The

lower courts need only be reminded to listen to and apply

that answer.

4

ARGUMENT

I.

The Court Should Reconfirm Bissonnette Is The

Test And Reverse

Amicus agrees with Petitioners’ arguments and will

not repeat them. Petitioners’ discussion of the statutory

language and its history is compelling and dispositive.

Reversal should follow.

A.

This Court’s Precedents, Up And Through

Bissonnette, Provide Another Avenue For

Reversal

While amicus agrees with Petitioner’s analysis,

CELC suggests that to reverse, the Court need only apply

Bissonnette. The opinion readily provides controlling

answers. First, some context.

The FAA makes “valid, irrevocable, and enforceable”

any contract “to settle by arbitration a controversy

thereafter arising out of such contract or transaction.”

9 U.S.C. § 2. A narrow exemption exists, however, under

Section 1 of the FAA; it extends no further than “contracts

of employment of seamen, railroad employees, or any

other class of workers engaged in foreign or interstate

commerce.” 9 U.S.C. § 1.

In Circuit City Stores, Inc. v. Adams, 532 U.S.

105 (2001), this Court applied cannons of statutory

interpretation to understand what Congress intended

by the phrase “any other class of workers engaged in

. . . interstate commerce.” Id. at 113 (citation omitted).

The Court explained that this phrase is “controlled and

5

defined by reference to the enumerated categories of

workers which are recited just before it,” i.e., “seamen”

and “railroad employees.” Id. at 114-15. The “linkage”

between “seamen” and “railroad employees,” the Court

found, is that both “concern . . . transportation workers

and their necessary role in the free flow of goods.” Id.

at 121. “[T]he residual exclusion of ‘any other class of

workers’” is therefore limited in the same way, id., and

should “be afforded a narrow construction.” Id.

Decades later, in Southwest Airlines Co. v. Saxon, 596

U.S. 450 (2022), this Court again addressed the scope of

the exemption and held that to claim the exemption, “any

such worker must at least play a direct and necessary

role in the free flow of goods across borders.” Id. at 458

(citations and quotation marks omitted). “Put another

way,” the Court continued, “transportation workers must

be actively ‘engaged in transportation’ of those goods

across borders via the channels of foreign or interstate

commerce.” Id. (citing Circuit City, 532 U.S. at 121).

Saxon “rejected” an “industrywide approach.” Saxon,

596 U.S. at 456. Just as “seamen” refers to a “subset of

workers engaged in the maritime shipping industry”—

“only those who work on board a vessel”—transportation

workers must be understood within this same narrow

context and should not be expanded to include “virtually

all employees of major transportation providers.” Id.

at 446-61. Rather, the proper analysis requires focus on

“‘the performance of work’ . . . emphasiz[ing] the actual

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

carry out.” Id. at 456 (emphasis in original, citation

omitted).

6

Two years later, in Bissonnette, this Court again

was met with confusion over the exemption. The Second

Circuit held the transportation worker exemption

inapplicable unless the worker worked in a “transportation

industry[;]” it found that a worker who does not work in

a transportation industry cannot be “excluded from the

FAA[.]” Bissonnette v. LePage Bakeries Park St., LLC,

49 F.4th 655, 661-62 (2d Cir. 2022). This Court reversed.

Having told lower courts to focus on the work

performed not the industry of the worker, this Court

again rejected an industry-based focus and again sought

to clarify both the narrowness and simplicity of the test

it expected lower courts to apply. Bissonnette, 601 U.S.

at 252-54. The Court sought to avoid “arcane riddles about

the nature of a company’s services,” such as: “ Does a pizza

delivery company derive its revenue mainly from pizza or

delivery? Do companies like Amazon and Walmart—which

both sell products of their own and transport products

sold by third parties—derive their revenue mainly from

retail or shipping?” Id. at 254. These were the wrong

questions and would entangle the parties on irrelevant

disputes. “Mini-trials on the transportation-industry

issue could become a regular, slow, and expensive practice

in FAA cases.” Id. So focus on the worker and the work

performed, the Court instructed, not the industry: “The

relevant question was ‘what [Saxon] does at Southwest,

not what Southwest does generally.’” (Id. (quoting Saxon,

596 U.S. at 456.)4

4. That this Court chose to use Amazon and pizza delivery as

examples strikes CELC as a suggestion that the Court was aware

of the decisions in Rittmann v. Amazon.com, Inc., 971 F.3d 904

(9th Cir. 2020), Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir.

2020), and Carmona Mendoza, supra, and disfavored those decisions.

7

But the Court did not stop there. In rejecting

defendant’s argument that “[b]ecause ‘virtually all

products move in interstate commerce,’” “all workers

who load or unload goods—from pet shop employees to

grocery store clerks—will be exempt from arbitration[,]”

Bissonnette, 601 U.S. at 256, the Court went out of its

way to confirm the opposite: “We have never understood

§ 1 to define the class of exempt workers in such limitless

terms.” Id. (emphasis added). “To the contrary,” the

Court held, “a transportation worker is one who is actively

engaged in transportation of . . . goods across borders

via the channels of foreign or interstate commerce.” Id.

at 256 (citation and quotation marks omitted). “In other

words, any exempt worker must at least play a direct and

necessary role in the free flow of goods across borders.” Id.

(emphases added; quotation marks and citation omitted).

“These requirements”—“any” worker, “must,” “direct

and necessary” “goods across borders”— “limit[] § 1 to

its appropriately narrow scope.” Id. (quotation marks and

citation omitted).

CELC can’t help but think that the clarity of

the Bissonnette discussion was meant as a message.

“Requirements” is not the language of nuance. “Direct

and necessary” is not vague. Application of the test

to “any” worker is not an invitation to find exceptions.

Rather, the Court used language any lay person would

understand, which was binary, rigid, and simple. That

language controls here.

As the Tenth Circuit was express in its reliance on Rittmann and

Waithaka in deciding Brock, see infra, CELC asks that should the

Court reverse, it make clear that Rittmann and Waithaka and the

cases that apply them are also set aside.

8

B. The Court’s Holding Below Failed To Follow

Bissonnette, And Thus Should Be Overturned

The question, then, is whether the Tenth Circuit

properly applied Bissonette’s test. The answer is clearly

“no.”5 Rather than focus on the worker, the court below

focused on the contractual relationships between the

employer, its customers, and the worker. Cert. Pet. App.

at 18a-22a. The problem with that approach is apparent:

The same worker might be a transportation worker in one

instance, but not in another, depending on factors wholly

unrelated to the duties he performs.

Brock, for example, was found to be a transportation

worker notwithstanding that he “operates his own

business, takes title to the goods, services his own

customers, and can increase profits through various

business strategies of his choice,” all within a single state.

Cert. Pet. App. at 22a. In other words, under the Tenth

Circuit’s formulation, it matters not what the worker is

doing, but rather for whom the worker works—again an

industry focus not a worker focus. That’s no different

than the test Bissonette, adhering to Saxon, expressly

rejected. Bissonnette, 601 U.S. at 254.

Bissonnette makes clear that the Tenth Circuit’s

analysis was incorrect. First, no emphasis was placed on

the “requirements” that the work be “direct and necessary”

to the interstate movement of goods. Bissonnette, 601 U.S.

at 256. Second, contrary to Bissonnette’s instruction to

5. The Tenth Circuit cited Bissonnette only once despite it

being the Court’s most recent statement of the law. Cert. Pet. App.

at 11a.

9

avoid “arcane riddles,” id. at 247, the Tenth Circuit’s

test is a paradigm of confusion, requiring an in-depth

analysis to “the various relationships at play.” Cert. Pet.

App. at 22a. A straightforward application of Bissonnette

compels reversal.

II. CELC Asks The Court Confirm Which Circuit

Decisions Chronicled In Brock Do Not Survive

CELC’s strong desire is that the Court keep to

the Bissonnette test, apply it, and be emphatic in that

application. It will hopefully lead to greater certainty and

fewer conflicts reaching this Court.

But if the Court is looking for a more incremental

approach or w ishes to leave open further future

development, CELC, as it did in Bissonnette, has a

suggestion: Make express what Circuit decisions do not

survive. Why? Because history teaches that without such

clear statements the disparity in lower court approaches

will remain.

Take for example two recent district court cases:

Tisdale v. Apria Healthcare LLC, No. 2:24-cv-09620-AH

(PVCx), 2025 WL 1356942, at *1 (C.D. Cal. Apr. 24, 2025)

appeal filed No. 25-3387 (9th Cir. May 28, 2025), and

Walker v. Amazon Logistics, Inc., No. 1:25-cv-1840, 2025

WL 2933896, at *6 (N.D. Ohio Oct. 15, 2025).

At issue in Tisdale were drivers delivering medical

equipment from store branches to customers. The

equipment they delivered, some of which originated out of

state, first sat in a distribution center in California, then

a branch in California “where ‘it generally sits for over 30

10

days,’” before the drivers ever interacted with the goods.

Tisdale, 2025 WL 1356942 at *4. Nevertheless, relying

heavily on Rittmann and Carmona Mendoza, the court

held the drivers exempt transportation workers, akin to

the “last mile” delivery drivers at issue in Rittmann. Id.

Ignoring that Bissonnette expressly rejected the idea

that “all workers who load or unload goods—from pet

shop employees to grocery store clerks”— fall within the

exemption, Bissonnette, 601 U.S. at 256, the Tisdale court

embraced reasoning that any worker within an “interstate

supply chain,” regardless of work done, falls within the

exemption, so long as at one point they touched the good.

Tisdale, 2025 WL 1356942, at *4.

Now compare that with the court’s decision in Walker.

There, the Court dealt with Amazon delivery drivers like

in Rittmann and Waithaka on which the Tenth Circuit

grounded its analysis below. The Walker Court understood

that the implication of Saxon and Bissonnette was to

negate Rittmann and Waithaka:

Walker cites two circuit court opinions in

support of his position. See Doc. 10, at 2 (citing

Rittmann v. Amazon.com, Inc., 971 F.3d 904

(9th Cir. 2020) and Waithaka v. Amazon.com,

Inc., 966 F.3d 10 (1st Cir. 2020)). But these

decisions predate Saxon and Bissonnette[sic].

And while both of these cases involved Amazon

Flex drivers like Walker, both decisions also

used language that conflicts with Saxon and

Bissonnette.

Walker, 2025 WL 2933896, at *6.

11

The Ohio court thus understood Bissonnette to

reject prior circuit-level reasoning. The California court

did not. This confusion will remain without this Court’s

definitive statement. Post-Saxon, for example, the Ninth

Circuit believed Rittmann remained good law despite the

evident conflict in its reasoning with Saxon’s.6 Compare

Rittmann, 971 F.3d at 918 (“In this case, Amazon’s

business includes not just the selling of goods, but also

the delivery of those goods, typically undertaken by those

businesses we have considered to be engaged in foreign

and interstate commerce, e.g., FedEx and UPS.”) with

Saxon, 596 U.S. at 456 (“Saxon is therefore a member of

a ‘class of workers’ based on what she does at Southwest,

not what Southwest does generally.”).

CELC suggests that should the Court be more

inclined to leave open some issues for future cases, even

while reconfirming Bissonnette, it should, at a minimum,

make express which Circuit decisions it is overruling

when it otherwise might leave that to implication. The

Tenth Circuit below chronicled the divergence among

the Circuits. Cert. Pet. App. at 13a-15a (collecting cases

like Rittmann, Waithaka, and Lopez v. Cintas Corp.,

47 F.4th 428 (5th Cir. 2022)). A clear statement of which

cases on that list survive and which ones do not will be

of immeasurable value in slowing the pace of the current

disputes.7

6. See, e.g., Carmona Mendoza, 73 F.4th at 1137 (“Our prior

decision squarely rested upon our reading of Rittmann [], a case

whose continued validity Saxon expressly declined to address.

Saxon, 142 S. Ct. at 1789 n.2. Unless Rittmann is somehow ‘clearly

irreconcilable’ with Saxon, we are required to continue to follow it.”).

7. Helpful to district courts in navigating what remains good

law, this Court has often been express when rejecting Circuit-level

12

Should the Court agree and do so, CELC expects

that the expressed or implied result will be a presumption

that two—and only two—categories of workers would fall

within the transportation worker exemption, consistent

with its “appropriately narrow scope.” Bissonnette, 601

U.S. at 256.

The first category is workers who physically transport

goods or people across borders—such as the airline pilot

or railroad conductor. Their inclusion should be obvious

and would fit expressly under the test in both Bissonnette

and Saxon.

The second category would include workers who

“typically” or “frequently” physically load or unload goods

“directly” from the interstate transporter, consistent with

approaches. E.g., Fed. Commc’ns Comm’n v. Consumers’ Rsch., 606

U.S. 656, 672 (2025) (“We reject . . . the Fifth Circuit’s combination

theory.”); Sturgeon v. Frost, 577 U.S. 424, 438 (2016) (“We reject

the interpretation of Section 103(c) adopted by the Ninth Circuit.”).

And, the Court has likewise been clear when adopting a Circuitlevel approach. E.g., Wooddell v. Int’l Bhd. of Elec. Workers, Loc.

71, 502 U.S. 93, 102, 112 (1991) (citing specific cases; “As respondents

must be aware, the interpretation we adopt today has been the law

in a number of Federal Circuits for some time and was adopted 10

years ago by the Court of Appeals for the Ninth Circuit in a case

specifically involving the IBEW Constitution.”); Wirtz v. Hotel,

Motel & Club Emp. Union, Loc. 6, 391 U.S. 492, 507 (1968) (“In such

case we adopt the reasoning of the Court of Appeals for the Second

Circuit in Wirtz v. Local Unions 410, IUOE, 366 F.2d 438, 443 . . .

.”). Ideal here would be an express rejection and an express adoption

(or clarification). E.g., Marcelle v. Lupia, 348 U.S. 956, 957 (1955)

(per curiam) (“We reject the construction placed upon the statute by

the Fifth Circuit . . . and approve the construction placed thereon

by the Second Circuit whose judgment is affirmed.”).

13

Saxon. Such loaders/unloaders would engage “directly”

with the interstate conduit (the plane that crossed the

border) and be “necessary” to the movement of goods

across state lines in that without their efforts the goods—

as a practical matter—would not have moved across state

lines and would simply return to their point of origin.

Every other indirect worker—the shelf-stocker, the

retail clerk, the internal warehouse worker, or the local

delivery driver who never touched the goods until they

were already in the state—would be neither direct nor

necessary. Such a rule, in turn, would negate the difficult

to administer nuances courts have sought to permit. The

question would not be whether one is a last mile driver or

whether the good has come to rest—though surely, and

contrary to Tisdale, when a good has sat within a state

for a period of time, any further worker engaging with

the good would be neither “direct” nor “necessary” to its

movement across state borders (and the Court could say

so as an intermediate step). 8 Instead, the Court would

simply ask: Was your job to drive the good over state

lines? Or, were you the first to unload it from the plane?

Simple. Administrable. Little litigation fuss.

These pronouncements are not only fully consistent

with Bissonnette, but would also confirm that the test

8. On this point, CELC agrees with Petitioners that the

Bissonette requirements applied in full negate the need for an

intermediate come-to-rest step. (See Pet. Br. 37-38 (filed December

4, 2025).) Surely, once a good has come to rest, anyone interacting

with that good thereafter is neither “direct” nor “necessary” to the

movement of goods across borders. But if the Court is looking for

an incremental step, the resting of a good for any period of time is

an intermediate step the Court could take.

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looks to the role of the worker and not to the nature of the

good or the good’s origin story. “Today almost every object

we buy has some component that comes from out-of-state.”

In re Grice, 974 F.3d 950, 958 (9th Cir. 2020). But that

focus is not the exemption’s focus. This Court has already

refused to bring “all workers who load or unload goods”

within the exemption. Bissonnette, 601 U.S. at 256; see

also Wallace v. Grubhub Holdings, Inc., 970 F.3d 798, 802

(7th Cir. 2020) (Barrett, J.) (“A package of potato chips, for

instance, may travel across several states before landing

in a meal prepared by a local restaurant and delivered by

a Grubhub driver; likewise, a piece of dessert chocolate

may have traveled all the way from Switzerland.”).

At a minimum, however, the express confirmation

of what reasoning applies and, importantly, which cases

from within those discussed by the Tenth circuit decision

in Brock fall along with it and which do not, will aid with

Bissonnette’s application in future cases.

III. CELC Members Look For Clear Rules

The need for a clear and easily administrable test

like that confirmed in Bissonnette is of particular import

to CELC—an organization that represents close to

100 private-sector employers who collectively employ

hundreds of thousands of Californians, many of whom

have private arbitration agreements.

CELC members should not need lawyers (or judges

for that matter) to understand whether a newly onboarded

worker will be bound by an arbitration agreement, or

whether he may avoid his contractual obligations by

fitting within the transportation worker exemption. Multi-

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factored tests, like that fashioned by the Tenth Circuit,

fuel litigation and make employee and employer alike

uncertain whether contractual agreements on the forum

for disputes will hold. And all from a statute that was

intended by Congress to do the very opposite.

As Justice Ginsburg explained for the Court in Preston

v. Ferrer, 552 U.S. 346 (2008), the FAA cannot abide

“long delayed [threshold proceedings], in contravention

of Congress’ intent ‘to move the parties to an arbitrable

dispute out of court and into arbitration as quickly and

easily as possible.’” Id. at 357 (quoting Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22

(1983)); accord Allied-Bruce Terminix Cos. v. Dobson, 513

U.S. 265, 282 (1995) (O’Connor, J., concurring) (avoiding a

construction of the FAA that would “foster prearbitration

litigation that would frustrate the very purpose of the

statute”). This Court reaffirmed that animating concern

in Bissonette. 601 U.S. at 254 (“All this complexity and

uncertainty would breed[ ] litigation from a statute that

seeks to avoid it.”) (citation and quotation marks omitted).

CELC asks this Court apply it here again.

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CONCLUSION

CELC asks that the Court reverse the decision below,

reaffirm the Court’s commitment to the Bissonnette test,

and expressly reject the circuit-level decisions on which

the Tenth Circuit relied.

Respectfully Submitted,

Paul Grossman

Leslie L. A bbott

Chris A. Jalian

Counsel of Record

Sean D. Unger

Eric D. Distelburger

Paul Hastings LLP

515 South Flower Street, 25th Floor

Los Angeles, CA 90071

(213) 683-6000

chrisjalian@paulhastings.com

Counsel for Amicus Curiae

December 11, 2025