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

No. 24-935

In the Supreme Court of the United States

______________

FLOWERS FOODS, INC., et al.,

Petitioners,

v.

ANGELO BROCK,

______________

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

______________

BRIEF OF ILLINOIS, CALIFORNIA, COLORADO,

DELAWARE, DISTRICT OF COLUMBIA, MAINE,

MARYLAND, MASSACHUSETTS, MICHIGAN,

MINNESOTA, NEW JERSEY, NEW YORK, OREGON,

RHODE ISLAND, AND VERMONT AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

____________

JANE ELINOR NOTZ*

Solicitor General

SARAH A. HUNGER

Deputy Solicitor General

R. HENRY WEAVER

BRIANNA YANG

Assistant Attorneys General

*Counsel of Record

KWAME RAOUL

Illinois Attorney General

115 South LaSalle Street

Chicago, Illinois 60603

(312) 814-5376

Jane.Notz@ilag.gov

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICI CURIAE .............................. 1

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

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

I. Legal Formalities Are Irrelevant To The Scope Of

The Section 1 Exemption ........................................ 5

A. The scope of the Section 1 exemption is

determined by the nature of the work

performed, not the legal formalities

established by the employer ............................. 5

B. State laws similarly do not allow legal

formalities to control the nature of an

employment relationship ................................ 13

II. States Have An Interest In Maintaining

Transparent Dispute Resolution Procedures For

Transportation Workers....................................... 18

A. Unlike typical arbitration proceedings under

the FAA, the processes available to exempted

transportation workers are transparent........ 19

B. States are better able to protect their

economies and exercise their investigatory

and enforcement powers when transportation

disputes are resolved in a transparent

manner............................................................. 22

CONCLUSION........................................................... 26

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Ala. Power Co. v. Bodine,

105 So. 869 (Ala. 1925) ................................... 11

Amos v. Amazon Logistics, Inc.,

74 F.4th 591 (4th Cir. 2023) ........................... 12

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ........................................ 19

Bhd. of R.R. Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369 (1969) ........................................ 22

Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246 (2024) ........................................... 3

Brown v. Advantage Eng’g, Inc.,

960 F.2d 1013 (11th Cir. 1992) ....................... 22

Chi., R.I. & P. Ry. Co. v. Bennett,

128 P. 705 (Okla. 1912) ................................... 10

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) .......................................... 6

C.R. Eng., Inc. v. Dep’t of Emp. Sec.,

7 N.E.3d 864 (Ill. App. Ct. 2014) ................... 18

D. Dierssen, Inc. v. May Valley Logging Co.,

244 P. 564 (Wash. 1926) ................................. 11

iii

Decola v. Cowan,

62 A. 1026 (Md. 1906) ..................................... 10

Epic Sys. Corp. v. Lewis,

583 U.S. 497 (2018) ......................................... 19

Fairbairn v. United Air Lines, Inc.,

250 F.3d 237 (4th Cir. 2001) ........................... 21

Fli-Lo Falcon, LLC v. Amazon.com, Inc.,

97 F.4th 1190 (9th Cir. 2024) ......................... 12

Hoof v. Pac. Am. Fisheries,

284 F. 174 (W.D. Wash. 1922), aff’d, 291 F.

306 (9th Cir. 1923) ............................................ 8

In re Raymour & Flanigan Furniture,

964 A.2d 830 (N.J. Super. Ct. App.

Div. 2009) ........................................................ 24

In re Vega,

149 N.E.3d 401 (N.Y. 2020) ............................ 24

Johnson v. Diakon Logistics, Inc.,

44 F.4th 1048 (7th Cir. 2022) ......................... 13

Luckie v. Diamond Coal Co.,

183 P. 178 (Cal. Dist. Ct. App. 1919) ............. 10

Moore v. United States,

602 U.S. 572 (2024) ......................................... 12

Myers v. Reno Cab Co., Inc.,

492 P.3d 545 (Nev. 2021) .......................... 13, 14

iv

New Prime v. Oliveira,

586 U.S. 105 (2019) ..................... 3, 6, 7, 8, 9, 10

Oliveira v. New Prime, Inc.,

141 F. Supp. 3d 125 (D. Mass. 2015) ............... 7

Reynolds v. CSR Rinker Transp.,

31 So. 3d 268 (Fla. Dist. Ct. App. 2010) ......... 17

Semper v. Am. Press,

273 S.W. 186 (Mo. Ct. App. 1925) .................. 10

Seneca Washed Gravel Corp. v. McManigal,

65 F.2d 779 (2d Cir. 1933) ................................ 9

Smith v. Donald Coal Co.,

115 S.E. 477 (W. Va. 1922) ....................... 10, 11

Steinert v. Ark. Workers’ Comp. Comm’n,

361 S.W.3d 858 (Ark. Ct. App. 2009) ............. 15

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) ....................................... 2, 6

The Bound Brook,

146 F. 160 (D. Mass. 1906) ............................... 9

The Buena Ventura,

243 F. 797 (S.D.N.Y. 1916) ........................... 8, 9

The Hurricane,

2 F.2d 70 (E.D. Pa. 1924), aff’d, 9 F.2d 396

(3d Cir. 1925) ..................................................... 9

v

Union Oil Co. of Cal. v. Leavell,

220 F.3d 562 (7th Cir. 2000) ........................... 21

W. Ports Transp., Inc., v. Emp. Sec.,

41 P.3d 510 (Wash. Ct. App. 2002) ................ 15

Ware v. Industrial Comm’n,

743 N.E.2d 579 (Ill. App. Ct. 2000) ................ 14

West Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937) ......................................... 23

Statutes

9 U.S.C. § 1 ............................................................... 1, 2

Erdman Act of 1898, ch. 370, 30 Stat. 424 ................. 9

Transportation Act of 1920, ch. 91, 41 Stat. 456........ 9

Ala. Code § 25-2-2(a) .................................................. 23

Ark. Code Ann § 11-2-108(1) ..................................... 23

Ariz. Admin. Code § R6-3-1723 ................................. 15

Cal. Code. Regs. tit. 22, § 4304-1 .............................. 15

Cal. Lab. Code § 90.5(a)-(c)........................................ 23

Cal. Lab. Code § 2775(b)(1) ....................................... 15

Colo. Rev. Stat. § 8-4-111(1)-(2) ................................ 23

Conn. Gen. Stat. § 31-3 .............................................. 23

vi

Conn. Gen. Stat. § 31-222(a)(1)(B) ............................ 15

Conn. Gen. Stat. § 31-222(a)(5)(P) ...................... 16, 17

Del. Code Ann. tit. 19, § 107...................................... 23

Del. Code Ann. tit. 19, § 1111.................................... 23

D.C. Code § 32-1306(a) .............................................. 23

Fla. Stat. § 440.02(18)(d) ..................................... 16, 17

Ga. Code Ann. § 34-2-3(e) .......................................... 23

Ill. Admin. Code tit. 56, § 240.110 ............................ 14

15 Ill. Comp. Stat. 205/6.3(b) .................................... 23

820 Ill. Comp. Stat. 115/2 .......................................... 15

820 Ill. Comp. Stat. 115/11 ........................................ 23

820 Ill. Comp. Stat. 185/10 ........................................ 14

820 Ill. Comp. Stat. 405/212.1 ............................. 16, 17

Iowa Code § 85.61(12)(c)(3)(b) ............................. 16, 17

Kan. Stat. Ann. § 44-636 ........................................... 23

Ky. Rev. Stat. Ann. § 337.990 ................................... 23

Mass. Gen. Laws ch. 149, § 3 .................................... 23

Md. Code Ann., Lab. & Empl. § 3-103 ...................... 23

vii

Me. Rev. Stat. tit. 26, § 42 ......................................... 23

Minn. R. 5224.0190 .................................................... 16

N.D. Cent. Code § 34-06-02 ....................................... 23

N.H. Rev. Stat. Ann. § 273:9 ..................................... 23

N.H. Rev. Stat. Ann. § 275:51(I) ............................... 23

N.J. Stat. Ann. § 34:1A-1.12 ...................................... 23

N.J. Stat. Ann. § 43:21-19(i)(6) ................................. 15

N.J. Stat. Ann. § 43:21-19(i)(7)(X) ...................... 16, 17

N.M. Stat. Ann. § 50-4-8(A)-(B)................................. 23

Ohio Rev. Code Ann. § 4111.04(A)-(B) ...................... 23

Or. Rev. Stat. § 651.060(1) ........................................ 23

S.D. Codified Laws § 60-5-15 .................................... 23

Tex. Lab. Code Ann. § 201.073(1) ....................... 16, 17

Utah Code Ann. § 34-28-9 ......................................... 23

Va. Code Ann. § 60.2-212.1 ................................. 16, 17

Other Authorities

Am. Arbitration Ass’n, Commercial Arbitration

Rules and Mediation Procedures, Rule 45

(Sept. 1, 2022).................................................. 20

viii

JAMS Comprehensive Arbitration Rules &

Procedures, Rules 26, 29 (June 1, 2021) ........ 20

Kratky Doré, Laurie, Public Courts Versus Private

Justice: It’s Time to Let Some Sun Shine in

on Alternative Dispute Resolution,

81 Chi.-Kent L. Rev. 463 (2006) ..................... 21

Press Release, AG Campbell Reaches NationLeading Settlement with Uber and Lyft, Secures

Landmark Wages, Benefits and Protections

for Drivers (June 27, 2024) ............................. 24

Press Release, Uber Pays $100M in Driver

Misclassification Case with NJ Department

of Labor and Workforce Development and

Attorney General’s Office (Sept. 13, 2022)...... 24

Resnik, Judith, The Privatization of Process:

Requiem for and Celebration of the

Federal Rules of Civil Procedure at 75,

162 U. Pa. L. Rev. 1793 (2014) ................. 20, 22

Ry. Emps.’ Dep’t v. Ind. Harbor Belt R.R. Co.,

Decision No. 982, 3 R.L.B. 332 (1922) ........ 9, 10

1

INTERESTS OF AMICI CURIAE

Illinois, California, Colorado, Delaware, the District of Columbia, Maine, Maryland, Massachusetts,

Michigan, Minnesota, New Jersey, New York, Oregon,

Rhode Island, and Vermont (“amici States”) submit

this brief in support of respondent Angelo Brock to

urge affirmance of the court of appeals, which correctly held that the transportation-worker exemption

in Section 1 of the Federal Arbitration Act (“FAA”) for

“contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign

or interstate commerce,” 9 U.S.C. § 1, applies to lastmile truck drivers like Brock, who are responsible for

completing the final, intrastate portion of a product’s

interstate delivery.

Amici States have an interest in ensuring that disputes involving transportation workers are resolved

in public and transparent proceedings that allow

States to monitor such disputes and respond as necessary, as opposed to private and confidential arbitration proceedings. Petitioners’ unduly narrow reading

of the Section 1 exemption interferes with this interest because when workers are subject to arbitration

agreements—which typically include confidentiality

provisions—it is more difficult for States to gather information about the pervasiveness of unlawful practices and any potential disruptions to the transport of

goods.

By contrast, the interpretation of the Section 1 exemption set forth by the lower court and Brock—

which would cover transportation workers delivering

goods that remain in an interstate journey, including

last-mile truck drivers—supports the States’ efforts to

2

ensure smooth functioning of commerce within their

borders and to protect their residents from unlawful

working conditions. Accordingly, the Court should affirm the lower court’s decision.

SUMMARY OF ARGUMENT

At issue in this case is whether the FAA requires

transportation workers like Brock—last-mile drivers

who complete the final, intrastate leg of a product’s

interstate journey—to raise claims against their employer in private arbitration proceedings or whether

they fall within the scope of the FAA’s Section 1 exemption for “contracts of employment of . . . workers

engaged in foreign or interstate commerce.” 9 U.S.C.

§ 1. As this Court recognized in Southwest Airlines

Co. v. Saxon, 596 U.S. 450 (2022), this exemption is

not limited to workers who cross state borders. Id. at

463. On the contrary, it includes workers, such as airline ramp supervisor Latrice Saxon, who “handle

goods traveling in interstate and foreign commerce.”

Ibid. Like Saxon, Brock’s work is “part of the interstate transportation of goods” for Flowers Foods, Inc.,

even though he does not “physically accompany [the

goods] across state or international boundaries.” Id.

at 457, 461. That is because, as Brock explains, he

transports baked goods that are in nearly continuous

transit from Flowers Foods’ out-of-state bakeries to its

retail customers in Colorado. Resp. Br. 7-8.

Petitioners, however, assert that Brock is differently situated in several respects, including that his

work is wholly intrastate and, in petitioners’ view,

does not closely relate to interstate transportation.

E.g., Pet. Br. 21-23. As part of this argument, petitioners repeatedly refer to the fact that Brock does not

3

have a contractual relationship with Flowers Foods or

any of its subsidiaries; rather, Brock “is the owner and

operator of Brock, Inc.,” which “is a party to a distribution agreement with the Flowers Denver subsidiary.” Id. at 9. And under that agreement, petitioners

note, Brock, Inc.’s operations are “limited to local services.” Ibid. In other words, petitioners suggest that

the existence of a corporate intermediary between

Flowers Foods and Brock is relevant to determining

the scope of the Section 1 exemption. Ibid.1 And at

least one coalition of amici would take this argument

a step further, asserting that this Court should adopt

a rule applying the Section 1 exemption based solely

on “the [distribution] agreement as written.” Br. of

Coalition for Workforce Innovation at 12.

But as this Court’s recent decisions make clear,

whether workers qualify for the Section 1 exemption

turns on “what they do,” e.g., Bissonnette v. LePage

Bakeries Park St., LLC, 601 U.S. 246, 255 (2024), not

the legal structures surrounding their work. And the

materials the Court has relied on provide additional

support for this conclusion. In particular, the materials cited in New Prime v. Oliveira, 586 U.S. 105

(2019)—early twentieth-century cases and statutes—

Petitioners concede that they did not present the existence of a

corporate intermediary as an independent reason for reversal.

Pet. Br. 12 n.1. Notwithstanding that concession, however, petitioners repeatedly reference the distribution agreement between

Flowers Foods and Brock, Inc. See Pet. Br. 2, 9-10 (contending

that Brock’s corporation, Brock Inc., orders baked goods from petitioners); see also id. at 2, 9, 21 (claiming that Brock, Inc. “takes

title” to the goods).

1

4

focused on the nature of the work rather than any corporate or contractual formalities governing the relationship between the worker and employer. Additionally, the principle underlying these modern and historical sources—that one looks to the nature of the

work rather than any legal formalities—is consistent

with state employment laws governing the classification of workers. Thus, notwithstanding any suggestion otherwise, resolution of the question presented

does not turn on the fact that a Flowers Foods subsidiary entered into distribution agreement with Brock,

Inc., rather than a legal relationship with Brock himself.

Moreover, petitioners’ view of the scope of the Section 1 exemption, if accepted, would impede efficient

access to information involving the transportation of

goods within state borders by requiring that transportation workers like Brock arbitrate their claims. As

amici States know from their experience in this area,

such information is critical to ensuring States are able

to monitor the smooth operation of commerce within

their borders and ensure safe and lawful workplace

conditions for their residents. These interests are furthered by allowing transportation workers to resolve

complaints in public proceedings. When workers are

subject to the FAA, they must maintain confidentiality and present their claims in private proceedings. If

exempted from the FAA, however, workers may bring

their claims in more transparent and public fora, such

as a federal or state court.

5

For these reasons and those discussed in respondent’s brief, amici States agree with Brock that the

lower court’s decision should be upheld.

ARGUMENT

I.

Legal Formalities Are Irrelevant To The

Scope Of The Section 1 Exemption.

Petitioners’ repeated references to the distribution

agreement between a Flowers Foods subsidiary and

Brock, Inc. as support for their characterization of

Brock’s work as “delivering goods intrastate” and

therefore within the FAA’s Section 1 exemption, e.g.,

Pet. Br. 3, should be disregarded for at least two reasons. First, this Court’s recent opinions, as well as the

legal materials from the early twentieth century

(when the FAA was enacted) that the Court relied on,

make clear that resolving questions about the availability of the Section 1 exemption requires focusing on

the work performed, and not the contractual arrangements or other corporate formalities established by

the employer. Second, these precedents are consistent

with broader employment law principles governing

the classification of workers, which are typically established by state law and likewise look to the nature

of the work rather than any legal formalities.

A. The scope of the Section 1 exemption is determined by the nature of the work performed, not the legal formalities established by the employer.

Petitioners imply that the contracts and corporate

entities they have set up to govern their relationship

with last-mile drivers can dictate the nature of the

6

work done by those drivers for purposes of the Section

1 exemption, and one set of petitioners’ amici argue

that the terms of the distribution agreements petitioners require should control whether the exemption applies. On the contrary, this Court’s recent opinions

addressing the scope of Section 1, and the historical

materials the Court relied on, show that the substance

of the work, not legal formalities, determines whether

someone is a worker engaged in interstate commerce

and thus entitled to the exemption.

1. To start, the Court’s recent opinions addressing

the Section 1 exemption have consistently focused on

the nature of the work, not the legal arrangements

that surround it. For instance, in Circuit City Stores,

Inc. v. Adams, 532 U.S. 105 (2001), the Court noted

that the exemption focuses on “transportation workers and their necessary role in the free flow of goods.”

Id. at 121. And in Saxon, the Court explained that

“[t]he word ‘workers’ directs the interpreter’s attention to ‘the performance of work.’” 596 U.S. at 456

(quoting New Prime, 586 U.S. at 116) (emphasis in

original). Indeed, the Court added, to qualify for the

exemption, “transportation workers must be actively

‘engaged in transportation’ of . . . goods across borders

via the channels of foreign or interstate commerce.”

Id. at 458 (quoting Circuit City, 532 U.S. at 121). Accordingly, the Court again relied on the nature of the

work, and not any contractual or corporate formalities

surrounding it, to decide the availability of the exemption.

7

This Court has also made clear that an employer

cannot avoid the conclusion that a worker fits within

the Section 1 exemption through contractual or corporate formalities that do not align with the work actually being performed. In New Prime, the Court held

that the Section 1 exemption is not limited to “agreements between employers and employees” but rather

encompasses any “contract for the performance of

work by workers,” including agreements that label the

worker as an independent contractor. 586 U.S. at 114,

116 (emphasis in original). In fact, New Prime concerned a strikingly similar arrangement to the one between Flowers Foods and Brock. The employer in New

Prime had arranged a putatively arms-length agreement between itself and a corporate entity—not the

individual plaintiff Dominic Oliveira but rather his

company Hallmark Trucking LLC. See Oliveira v.

New Prime, Inc., 141 F. Supp. 3d 125, 128 (D. Mass.

2015). Although not expressly addressed by the

Court, this arrangement did not affect the result. As

noted, the Court focused on the substance of Oliveira’s

work—not the contractual label given to him by New

Prime—in concluding that it entitled him to exemption. See New Prime, 586 U.S. at 116.

2. Not only do the Court’s recent opinions demonstrate that the contractual and corporate formalities

do not dictate the applicability of the Section 1 exemption, but the legal materials the Court relied on, as

well as similar sources of the same kind, provide additional support for this conclusion. In New Prime,

the Court cited cases and statutes from the early

8

twentieth century (when the FAA was enacted) to assess whether independent contractors had “contracts

of employment . . . of workers” within the meaning of

the Section 1 exemption. 586 U.S. at 115-116. And

these cases and statutes placed no weight on the existence or non-existence of an intermediary corporate

entity to determine the nature of the relationship between the worker and the employer.

To begin, as part of its analysis, the Court evaluated the nature of the employment relationships for

the enumerated categories of workers identified in the

Section 1 exemption—specifically, “seamen” and “railroad employees.” New Prime, 586 U.S. at 119-120. As

to “seamen,” the Court cited cases holding that independent contractors could be “seamen” within the

meaning of the exemption. Id. at 119 & n.10. In one

such case, The Buena Ventura, 243 F. 797 (S.D.N.Y.

1916), the injured seaman “was a ‘wireless operator’

who came on board the Buena Ventura in pursuance

of a contract between her owners and the Marconi

Wireless Telegraph Company of America.” Id. at 798.

In other words, he was not employed by the ship’s

owners. Ibid. This Court rejected the owners’ argument that this made a difference to the wireless operator’s status as a seaman. Id. at 800. Rather, his

rights depended “on the fact of service.” Ibid.; see also

Hoof v. Pac. Am. Fisheries, 284 F. 174, 176 (W.D.

Wash. 1922) (the fact the seaman in The Buena Ventura was “employed by another” made no difference to

the result), aff’d, 291 F. 306 (9th Cir. 1923).

9

Other contemporary courts adopted similar reasoning. According to one decision, “[t]he crew . . . is naturally and primarily thought of as those who are on

board and aiding in the navigation without reference

to the nature of the arrangement under which they

are on board.” Seneca Washed Gravel Corp. v.

McManigal, 65 F.2d 779, 780 (2d Cir. 1933); see also

The Bound Brook, 146 F. 160, 164 (D. Mass. 1906)

(cited at The Buena Ventura, 243 F. at 799) (same);

The Hurricane, 2 F.2d 70, 73 (E.D. Pa. 1924), aff’d, 9

F.2d 396 (3d Cir. 1925) (wage liens allowed against

the ship on behalf of seamen in the employ of a third

party).

In addition, New Prime cited the Erdman Act of

1898 and the Transportation Act of 1920 to reach its

conclusion that “railroad employees” may include independent contractors. 586 U.S. at 120. The Erdman

Act expressly disregarded contractual and corporate

formalities by defining “employees” to include “all persons actually engaged in any capacity in train operation or train service of any description, and notwithstanding that the cars upon or in which they are employed may be held and operated by the carrier under

lease or other contract.” Ch. 370, § 1, 30 Stat. 424,

424. And although the Transportation Act left the

term “employee” undefined, ch. 91, § 300, 41 Stat. 456,

469, shortly after its enactment, the Railroad Labor

Board ruled that “employee” should be defined without regard to corporate formalities. In Decision 982,

which this Court cited in New Prime, 586 U.S. at 120

n.11, a railroad had fired its repair shop employees

10

and contracted the shop work to the Burnham Car Repair Co. See Ry. Emps.’ Dep’t v. Ind. Harbor Belt R.R.

Co., Decision No. 982, 3 R.L.B. 332, 336 (1922). The

Board held that the repair company’s workers were

railroad employees within the scope of the Transportation Act because for “all intents and purposes, the

contractor’s operations constitute a department of the

carrier.” Id. at 339.

Finally, New Prime looked to state-court cases to

determine the meaning of “employment” at the time.

See 586 U.S. at 115 & n.3. As those cases explain, a

contract’s terms did not control the nature of an employment relationship if the facts pointed in a different direction: “the nature of [the] relation to defendant . . . , whether that of an independent contractor or

servant, must be determined not alone from the terms

of the written contract of employment, but from the

subsequent conduct of each, known to and acquiesced

in by the other.” Luckie v. Diamond Coal Co., 183 P.

178, 182 (Cal. Dist. Ct. App. 1919); see also, e.g., Semper v. Am. Press, 273 S.W. 186, 190 (Mo. Ct. App.

1925); Chi., R.I. & P. Ry. Co. v. Bennett, 128 P. 705,

707 (Okla. 1912); Decola v. Cowan, 62 A. 1026, 1028

(Md. 1906).

More specifically, state-court decisions contemporaneous to the enactment of the FAA disregarded the

existence of intermediary corporations and held the

ultimate employer liable for workplace injuries if it retained control. For instance, in Smith v. Donald Coal

Co., 115 S.E. 477 (W. Va. 1922), the court addressed

whether an engineering company was an employee of

a coal mining company to determine liability in a personal injury suit. Id. at 480. The court held that the

11

fact “[t]hat the engineering company is a corporation

does not change the relation.” Ibid. Similarly, as another court explained, the corporate form did not alter

the ordinary analysis: “Giving orders is the roll of the

master. The relation of master and servant may exist

between corporations as between individuals.” Ala.

Power Co. v. Bodine, 105 So. 869, 871 (Ala. 1925); see

also D. Dierssen, Inc. v. May Valley Logging Co., 244

P. 564, 565 (Wash. 1926) (principals were liable because corporation “was but the creature of [the principals] acting under their direction and with their consent”).

3. The facts of this case only underscore why the

Court should not credit the mere existence of the corporate intermediary (Brock, Inc.) as a reason to disregard the nature of the work that Brock performs and

the relationship between Brock and Flowers Foods.

Indeed, there are many indications that Flowers

Foods retains an inordinate amount of control over the

purportedly distinct corporate entity.

For instance, the record here shows that Flowers

Foods designed the distribution arrangements to

serve its interests and has facilitated the use of corporate intermediaries by the truck drivers. E.g., Doc. 295, at 1-2 (Flowers Foods instituted incorporation requirement for last-mile truck drivers); id. at 1 (Flowers Foods finances distributorships through its “subsidiary Flowers Finance Inc.”). The terms in these

agreements further confirm that there is no real distinction between Brock and Brock, Inc. Although the

primary purpose of the corporate form is to limit liability for owners and directors, see, e.g., Moore v.

12

United States, 602 U.S. 572, 616 n.4 (2024) (Barrett,

J., concurring), the distribution agreement requires

Brock to personally “pay any amounts due and owing

due to [Brock, Inc.’s] breach of the Distributor Agreement,” JA 55. Similarly, while the arbitration clause

is executed between Flowers Foods and Brock, Inc., JA

63, Brock “acknowledges he/she is subject to” the

clause via the “personal guaranty,” JA 55-56. Finally,

the day-to-day work is both performed by Brock himself and tightly controlled by Flowers Foods. Flowers

Foods requires Brock to arrive at its warehouse

around 10:00 p.m., Doc. 29-6 ¶ 3, pick up baked goods

that just arrived from out-of-state bakeries, id. ¶ 2,

and immediately deliver the goods to its retail customers, id. ¶ 4. No additional employees perform these

deliveries for Brock, Inc. beyond Brock himself. Ibid.2

All told, this Court’s recent opinions interpreting

Section 1 and the legal materials they cite, as well as

similar sources of the same kind, focus on the nature

of the nature of the work performed rather than any

contractual or corporate formalities. Petitioners’ re-

This fact distinguishes cases cited by petitioners, Pet. Br. 12

n.1, where the corporate entity in fact employed dozens or hundreds of employees in its own name, see Fli-Lo Falcon, LLC v.

Amazon.com, Inc., 97 F.4th 1190, 1192 (9th Cir. 2024) (“multiple

individuals”); Amos v. Amazon Logistics, Inc., 74 F.4th 591, 596

(4th Cir. 2023) (“450 delivery drivers”).

2

13

peated references to the distribution agreement between a Flowers Foods subsidiary and Brock, Inc.

should be disregarded.

B. State laws similarly do not allow legal formalities to control the nature of an employment relationship.

The principle underlying this Court’s recent decisions interpreting Section 1 and the materials cited

therein—that to determine the nature of an employment relationship, one looks to the substance of work

performed rather than any contractual provisions or

corporate formalities—is consistent with state employment laws governing the classification of workers.

And these state employment laws, in turn, further

demonstrate that the fact that Flowers Foods entered

into a distribution agreement with Brock, Inc. rather

than a legal relationship with Brock himself is irrelevant to determining whether the Section 1 exemption

applies.

1. Many States apply statutory tests to determine

employment status, looking beyond contractual labels

to the actual facts and circumstances of the work performed. See, e.g., Johnson v. Diakon Logistics, Inc., 44

F.4th 1048, 1053 (7th Cir. 2022) (“The test for employee status under the [Illinois Wage Payment and

Collections Act] does not depend on (and often disregards) contractual designations.”); Myers v. Reno Cab

Co., Inc., 492 P.3d 545, 550 (Nev. 2021) (“[A] worker is

not necessarily an independent contractor solely because a contract says so. Instead, the court must determine employee status under the applicable legal

14

test . . . .”). States thus recognize that contractual language may not accurately capture the nature of the

employment relationship and can instead reflect “the

artifice of mislabeling what is truly employment.”

Ware v. Industrial Comm’n, 743 N.E.2d 579, 586 (Ill.

App. Ct. 2000); see also Myers, 492 P.3d at 550

(“Courts must not allow contractual recitations to be

used as subterfuges to avoid mandatory legal obligations.” (internal quotations omitted)).

Indeed, reflecting a concern about subterfuge, Illinois has established a statutory scheme for evaluating

the legitimacy of a corporate intermediary—an entity

like Brock, Inc.—before classifying the worker operating under that intermediary as an independent contractor. Specifically, to prevent improper classification of individuals performing services as corporate

entities in the construction industry, Illinois requires

an assessment of whether that entity bears the hallmarks of a bona fide corporation. To be deemed a “legitimate sole proprietor or partnership,” the individual must have “a substantial investment of capital . . .

beyond ordinary tools and equipment and a personal

vehicle,” “own[ ] the capital goods and gains the profits

and bears the losses,” and have “the right to perform

similar services for others,” among other factors. 820

Ill. Comp. Stat. 185/10; see also Ill. Admin. Code tit.

56, § 240.110 (listing factors for determining whether

a limited liability company is bona fide).

Other States use a more general test to evaluate

whether a legal arrangement properly reflects the employment relationship. Many States, for instance,

have enacted statutes that follow the three-pronged

15

“ABC” test, which assesses whether (a) an individual

has been and will be free from control or direction over

the performance of their service, (b) such service is

outside the usual course of business, and (c) such individual is customarily engaged in an independently

established business.3 Alternately, some States use

common-law tests, assessing factors like the right to

control work, whether the worker is engaged in a distinct occupation, the skills required for the work;

whether the worker supplies the instrumentalities,

and whether the work is part of the regular business

of the employer.4

Regardless of the specifics of each test, state law

presumes that contractual provisions or corporate formalities do not control; rather, a fact-intensive inquiry

into the nature of the work determines employment

status. See, e.g., Steinert v. Ark. Workers’ Comp.

Comm’n, 361 S.W.3d 858, 864 (Ark. Ct. App. 2009)

(applying common-law test to conclude, “despite the

labels given by the parties,” that truck drivers were

employees); W. Ports Transp., Inc., v. Emp. Sec., 41

P.3d 510, 516 (Wash. Ct. App. 2002) (noting that

“[c]ontractual language, such as a provision describing drivers as independent contractors, is not dispositive” and instead applying ABC test and “consider[ing] all the facts related to the work situation”).

E.g., Cal. Lab. Code § 2775(b)(1); Conn. Gen. Stat. § 31222(a)(1)(B); 820 Ill. Comp. Stat. 115/2; N.J. Stat. Ann. § 43:2119(i)(6).

3

E.g., Ariz. Admin. Code § R6-3-1723; Cal. Code Regs. tit. 22,

§ 4304-1.

4

16

2. Some States have gone further and codified tests

to determine whether workers like Brock, specifically—that is, truck drivers who operate under a corporate intermediary—qualify as employees regardless

of any legal formalities suggesting otherwise. For instance, Minnesota classifies an “agent driver” (or

“salesperson who drives a truck in selling and delivering bread . . . or similar services”) as an employee if

the driver “is assigned a route and required to cover it

at regular intervals,” “[p]rices are set by the company,” and the driver “reports to the company office at

specified times to load trucks, return unsold goods,

and report on activities as requested,” among other

criteria. Minn. R. 5224.0190.

Other States, such as Connecticut, Florida, Illinois,

Iowa, New Jersey, Texas, and Virginia, consider factors including whether the truck driver owns the vehicle or “holds it under a bona fide lease arrangement,”5 whether the driver is responsible for maintenance and operating costs of the vehicle,6 whether the

Conn. Gen. Stat. § 31-222(a)(5)(P)(ii); 820 Ill. Comp. Stat.

405/212.1(4); N.J. Stat. Ann. § 43:21-19(i)(7)(X); Va. Code Ann.

§ 60.2-212.1(1).

5

Fla. Stat. § 440.02(18)(d)(4); 820 Ill. Comp. Stat. 405/212.1(5);

Iowa Code § 85.61(12)(c)(3)(b)(i)-(ii); Tex. Lab. Code Ann.

§ 201.073(1)(E); Va. Code Ann. § 60.2-212.1(2)-(3).

6

17

driver may decide the means of performing the services,7 whether compensation is based on performance-related factors,8 and whether the driver may

refuse work or accept work from other entities without

consequence.9 Illinois also makes relevant whether

the driver “[m]aintains a separate business identity.”10

And while a minority of States take into consideration whether the contract between the driver and the

employer “specifies the relationship to be that of an

independent contractor and not that of an employee,”11 that factor is only one of several that must

be “substantially present” to classify the driver as an

independent contractor under these statutes.12 In any

event, state courts have generally found that the absence of any one factor means the driver is not an independent contractor. See Reynolds v. CSR Rinker

Transp., 31 So. 3d 268, 271 (Fla. Dist. Ct. App. 2010);

820

Ill.

Comp.

Stat.

405/212.1(3);

Iowa

Code

§ 85.61(12)(c)(3)(b)(v); Tex. Lab. Code Ann. §§ 201.073(1)(B), (F);

Va. Code Ann. § 60.2-212.1(6).

7

8 Conn. Gen. Stat. § 31-222(a)(5)(P)(iii); Fla. Stat. § 440.02(d)(4);

Iowa Code § 85.61(12)(c)(3)(b)(iv); N.J. Stat. § 43:21-19(7)(X);

Tex. Lab. Code Ann. § 201.073(1)(C); Va. Code Ann. § 60.2212.1(5).

Conn. Gen. Stat. § 31-122(a)(5)(P)(iv); 820 Ill. Comp. Stat.

405/212.1(2); Tex. Lab. Code Ann. § 201.073(1)(A).

9

10

820 Ill. Comp. Stat. 405/212.1(6).

Iowa Code § 85.61(12)(c)(3)(b)(vi); Tex. Lab. Code Ann.

§ 201.073(1)(H); Va. Code Ann. § 60.2-212.1(7).

11

12

Iowa Code § 85.61(12)(c)(3)(b); Va. Code Ann. § 60.2-212.1.

18

C.R. Eng., Inc. v. Dep’t of Emp. Sec., 7 N.E.3d 864, 881

(Ill. App. Ct. 2014).

Thus, petitioners’ suggestions that the fact that

Flowers Foods entered into a distribution agreement

with Brock, Inc. is relevant to the question whether

Brock falls within the scope of the Section 1 exemption

cannot be reconciled with the broader principles articulated in state employment laws. Nor can the argument by petitioners’ amici that the terms of that

agreement should dictate the availability of the exemption. By contrast, Brock’s position, which looks to

the nature of the work rather than the legal formalities surrounding it, is supported not only by this

Court’s decisions and the materials cited but also by

the States’ recognition that contractual language and

corporate formalities may not accurately describe employment relationships.

II. States Have An Interest In Maintaining

Transparent Dispute Resolution Procedures

For Transportation Workers.

Amici States also know from their experience that

resolving disputes involving transportation workers

in arbitration interferes with their interests in ensuring the smooth operation of commerce within their

borders and protecting their residents from unlawful

working conditions. Whereas arbitration compelled

by the FAA typically occurs in confidential proceedings, dispute resolution proceedings for exempted

transportation workers are conducted in a more transparent and regulated manner. These transparent proceedings serve important state interests by allowing

19

States to monitor disputes within their borders and

more efficiently perform their investigatory and enforcement duties.

A. Unlike typical arbitration proceedings under the FAA, the processes available to exempted transportation workers are transparent.

Determining whether a transportation worker is

exempted from the FAA has significant practical implications, including for States, given the differences

between the nature and purpose of private arbitration

proceedings, on the one hand, and the procedures governing public dispute resolution processes, on the

other. Specifically, the public processes allow States

to better monitor any burgeoning disputes that might

disrupt their economies and to better perform their investigative and enforcement duties. The confidential

nature of private arbitration proceedings, by contrast,

does not serve those interests.

As this Court has explained, “[t]he principal purpose of the FAA is to ensure that private arbitration

agreements are enforced according to their terms.”

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344

(2011) (cleaned up). In other words, the FAA focuses

on honoring the intent of private parties, and not the

public implications of their agreements. To that end,

parties may agree “to arbitrate according to specific

rules,” ibid., including that “proceedings be kept confidential,” id. at 345, or that they proceed on an individualized, as opposed to a collective, basis, Epic Sys.

Corp. v. Lewis, 583 U.S. 497, 506 (2018).

20

In fact, “the promise of confidentiality” has become

“a linchpin” of private arbitration’s appeal.13 The

leading arbitration associations not only highlight the

confidentiality of their services, but also structure

their governing rules to allow parties to elect nearly

complete opacity in the proceedings. For instance, the

American Arbitration Association’s commercial arbitration rules—which petitioners have selected to govern their arbitration proceedings, JA 63—provide that

the “arbitrator shall keep confidential all matters relating to the arbitration or the award” and “may make

orders concerning the confidentiality of the arbitration proceedings.”14 The JAMS Comprehensive Arbitration Rules contain a similar provision.15 A JAMS

arbitrator has authority to issue orders to protect the

confidentiality of sensitive information, sanction parties for violating the rules, and exclude nonparties

from hearings.16

In practice, then, “[a]rbitration is frequently conducted pursuant to confidentiality rules and agreements that can conceal the existence and substance of

Judith Resnik, The Privatization of Process: Requiem for and

Celebration of the Federal Rules of Civil Procedure at 75, 162 U.

Pa. L. Rev. 1793, 1821 (2014).

13

Am. Arbitration Ass’n, Commercial Arbitration Rules and Mediation Procedures, Rule 45 (Sept. 1, 2022), https://bit.ly/40FAQuw.

14

JAMS Comprehensive Arbitration Rules & Procedures, Rule

26 (June 1, 2021), https://bit.ly/3ueL6O9.

15

16

Id. at Rules 26, 29.

21

a dispute, the identities of the parties, and the resolution of the controversy.”17 Indeed, under the arbitration agreement in this case, which would apply to

Brock if he were not exempted by Section 1 of the FAA,

the “arbitration proceedings are to be treated as confidential,” and no counsel or party may disclose “the

substance of the arbitration proceedings, or the result,

except as required by subpoena, court order, or other

legal process.” JA 67-68.

By contrast, the public dispute resolution procedures for transportation workers exempted from the

FAA are considerably more transparent, and the resulting settlements, judgments, or awards are typically made public. Indeed, many transportation workers, including Brock, can present their claims directly

in state or federal court. See, e.g., Fairbairn v. United

Air Lines, Inc., 250 F.3d 237, 241-242 (4th Cir. 2001).

Unlike proceedings under the FAA, court proceedings

are typically open to the public, and filings and decisions are available to all on a public docket. E.g., Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th

Cir. 2000) (“People who want secrecy should opt for

arbitration. When they call on the courts, they must

accept the openness that goes with subsidized dispute

resolution by public (and publicly accountable) officials.”). Any judgments entered are available for

members of the public (and state regulators) to view,

as are transcripts of relevant proceedings and the

Laurie Kratky Doré, Public Courts Versus Private Justice: It’s

Time to Let Some Sun Shine in on Alternative Dispute Resolution,

81 Chi.-Kent L. Rev. 463, 466 (2006).

17

22

court’s reasoning underlying its decision. When a case

settles, the agreements remain accessible “if filed in

court.”18 And even if the agreement itself remains private, the docket and “court file must remain accessible

to the public.” Brown v. Advantage Eng’g, Inc., 960

F.2d 1013, 1016 (11th Cir. 1992).

B. States are better able to protect their economies and exercise their investigatory and

enforcement powers when transportation

disputes are resolved in a transparent

manner.

The procedures associated with court proceedings

are better suited for transportation disputes than arbitrations conducted pursuant to the FAA, in large

part because of their transparent and public-facing

nature. Disruptions in transportation due to unresolved disputes between employers and employees

have a significant negative impact on States, their

economies, and their residents. E.g., Bhd. of R.R.

Trainmen v. Jacksonville Terminal Co., 394 U.S. 369,

381 (1969) (“A strike in one State often paralyzes

transportation in an entire section of the United

States, and transportation labor disputes frequently

result in simultaneous work stoppages in many

States.”). States thus have an interest in preparing

for any possible transportation disruptions, which is

made more difficult when disputes are heard in confidential proceedings and resolved by opaque judgments.

18

Resnik, supra note 13, at 1818.

23

The private nature of arbitration proceedings pursuant to the FAA can also interfere with States’ investigatory and enforcement duties. Courts have long

recognized that the States’ traditional police powers

extend to regulating working conditions. E.g., West

Coast Hotel Co. v. Parrish, 300 U.S. 379, 397-398

(1937). Accordingly, States have not only established

minimum standards on a wide range of working conditions, but also granted state agencies and officials

the authority to investigate and enforce violations of

those standards.19 In many States, the legislature has

designated multiple agencies or officials as responsible for investigating such violations. In Illinois, for

example, both the Illinois Department of Labor and

the Illinois Attorney General have the power and duty

to investigate potential violations and initiate enforcement actions on behalf of employees and the public.

E.g., 15 Ill. Comp. Stat. 205/6.3(b); 820 Ill. Comp. Stat.

115/11. Similarly, California has vested several agencies with such authority, including a Labor Commissioner tasked with establishing a field enforcement

unit that investigates “industries, occupations, and

areas in which . . . there has been a history of violations.” Cal. Lab. Code § 90.5(a)-(c).

E.g., Ala. Code § 25-2-2(a); Ark. Code Ann § 11-2-108(1); Colo.

Rev. Stat. § 8-4-111(1)-(2); Conn. Gen. Stat. § 31-3; Del. Code

Ann. tit. 19, §§ 107, 1111; D.C. Code § 32-1306(a); Ga. Code Ann.

§ 34-2-3(e); Kan. Stat. Ann. § 44-636; Ky. Rev. Stat. Ann.

§ 337.990; Me. Rev. Stat. tit. 26, § 42; Md. Code Ann., Lab. &

Empl. § 3-103; Mass. Gen. Laws ch. 149, § 3; N.H. Rev. Stat. Ann.

§§ 273:9, 275:51(I); N.J. Stat. Ann. § 34:1A-1.12; N.M. Stat. Ann.

§ 50-4-8(A)-(B); N.D. Cent. Code § 34-06-02; Ohio Rev. Code Ann.

§ 4111.04(A)-(B); Or. Rev. Stat. § 651.060(1); S.D. Codified Laws

§ 60-5-15; Utah Code Ann. § 34-28-9.

19

24

States use this authority to investigate and bring

enforcement actions against companies that employ

transportation workers. For example, the New York

Department of Labor established in court that appbased delivery drivers were employees entitled to unemployment insurance benefits. See In re Vega, 149

N.E.3d 401, 405 (N.Y. 2020). Additionally, both the

Massachusetts Attorney General and the New Jersey

Attorney General obtained restitution and penalties

for ride-share drivers who were misclassified as independent contractors and deprived of minimum wage,

overtime pay, sick leave, and other employee entitlements.20 And the New Jersey Department of Labor

and Workforce Development successfully argued that

delivery drivers working for a furniture company were

not exempt from overtime law under an exception for

“trucking industry employers.” In re Raymour &

Flanigan Furniture, 964 A.2d 830, 841 (N.J. Super.

Ct. App. Div. 2009).

Arbitration agreements enforceable under the FAA

cannot supersede this authority or prevent state investigations into potential violations. E.g., JA 67 (recognizing that arbitration agreement does not preclude

relief from state or federal agencies). But the confidentiality provisions that typically govern arbitration

Press Release, AG Campbell Reaches Nation-Leading Settlement with Uber and Lyft, Secures Landmark Wages, Benefits and

Protections for Drivers (June 27, 2024), https://bit.ly/4jupKSF;

Press Release, Uber Pays $100 M in Driver Misclassification

Case with NJ Department of Labor and Workforce Development

and

Attorney

General‘s

Office

(Sept.

13,

2022),

http://bit.ly/3N94cik.

20

25

proceedings can make it more difficult for state investigatory and enforcement bodies to become aware of

potential systemic violations in their States. Specifically, contractual provisions that require confidentiality affect States’ ability to efficiently conduct investigations and determine whether enforcement actions

are warranted. As a practical matter, state agencies

are often dependent on constituent complaints, thirdparty information, and publicly available information

when determining whether to open an investigation

into an employer. Accordingly, when employee complaints, and any resultant awards, are shrouded in secrecy, it is more challenging for state agencies to assess whether violations are occurring on a widespread

basis and thus would warrant an investigation or enforcement action. When such matters are resolved in

public-facing fora, by contrast, States are better able

to track employee claims, search public databases,

and identify troubling trends in workplace conditions.

For these reasons, States have an interest in ensuring that the FAA’s Section 1 exemption covers transportation workers like Brock, who deliver goods that

remain in the stream of interstate commerce. Narrowing the class of workers who fall within the exemption would not only hinder the States’ ability to monitor disputes among transportation workers, but also

make the States’ investigatory and enforcement duties more difficult.

26

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

KWAME RAOUL

Illinois Attorney General

JANE ELINOR NOTZ*

Solicitor General

SARAH A. HUNGER

Deputy Solicitor General

R. HENRY WEAVER

BRIANNA YANG

Assistant Attorneys General

115 South LaSalle Street

Chicago, Illinois 60603

(312) 814-5376

Jane.Notz@ilag.gov

* Counsel of Record

JANUARY 2026

ROB BONTA

Attorney General of California

PHILIP J. WEISER

Attorney General of Colorado

KATHLEEN JENNINGS

Attorney General of Delaware

BRIAN L. SCHWALB

Attorney General for the District of Columbia

27

AARON M. FREY

Attorney General of Maine

ANTHONY G. BROWN

Attorney General of Maryland

ANDREA JOY CAMPBELL

Attorney General of Massachusetts

DANA NESSEL

Attorney General of Michigan

KEITH ELLISON

Attorney General of Minnesota

JENNIFER DAVENPORT

Acting Attorney General of New Jersey

LETITIA JAMES

Attorney General of New York

DAN RAYFIELD

Attorney General of Oregon

PETER F. NERONHA

Attorney General of Rhode Island

CHARITY R. CLARK

Attorney General of Vermont