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

Supreme Court briefJan 22, 2026

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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 AMICI CURIAE AARP AND AARP

FOUNDATION IN SUPPORT OF RESPONDENT

_______________________

LOUIS LOPEZ

Counsel of Record

WILLIAM ALVARADO RIVERA

DEAN GRAYBILL

AARP FOUNDATION

601 E Street, NW

Washington, DC 20049

202-322-4180

llopez@aarp.org

January 22, 2026

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

STATEMENT OF INTEREST ................................. 1

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

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

I.

TRUCKING IS A VITAL “AGING”

INDUSTRY WITH A

DISPROPORTIONATE NUMBER

OF OLDER WORKERS SEEKING

LABOR PROTECTIONS FROM THE

COURTS............................................................ 4

II.

MANDATORY ARBITRATION HAS

PROVEN TO BE AN INEFFECTIVE

SUBSTITUTE FOR COURTS AND

THEIR REMEDIES IN THE

WORKERS’ RIGHTS REALM,

WARRANTING PRESERVATION OF

THE FAA § 1 EXEMPTION

IN FULL MEASURE ...................................... 10

III.

PETITIONER’S PROPOSED TEST

FOR FAA § 1 COVERAGE IS AT ODDS

WITH SETTLED PRECEDENT,

WOULD IMPEDE THE “FREE

FLOW OF GOODS,” AND PORTENDS

DIRE CONSEQUENCES FOR MANY

OLDER TRUCK DRIVERS ............................ 16

ii

A.

Petitioner’s test for inclusion in

FAA § 1’s exemption is

inconsistent with established

precedent and Congress’s

concern over the “free flow of

goods” .................................................... 16

B.

Petitioner’s test would have

excluded even the egregious

“first leg” Los Angeles port truck

driver abuses from the FAA § 1

exemption ............................................. 22

CONCLUSION ......................................................... 28

iii

TABLE OF AUTHORITIES

Cases

Adler v. Gruma Corp.,

135 F.4th 55 (3d Cir. 2025)............................. 18

Alvarez v. XPO Logistics Cartage, LLC,

No. 2:18-cv-03736, 2022 WL 644168

(C.D. Cal. Feb. 8, 2022)............................... 7, 25

Am. Exp. Co. v. Italian Colors Rest.,

570 U.S. 228 (2013) ......................................... 14

Arellano v. XPO Port Service Inc.,

No. 2:18-cv-08220, 2021 WL 6882163

(C.D. Cal. Oct. 8, 2021) ........................ 7, 25, 26

Ash v. Flowers,

No. 23-30356, 2023 WL 6930370

(5th Cir. Oct. 10, 2023) ............................. 19, 20

Ash v. Flowers,

No. 23-30356, 2024 WL 1329970

(5th Cir. Mar. 28, 2024) .................................. 19

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ................................... 14, 27

Barrentine v. Arkansas-Best Freight Sys., Inc.,

450 U.S. 728 (1981) ................................... 10, 11

Bissonnette v. LePage Bakeries Park St., LLC,

123 F.4th 103 (2d Cir. 2024)........................... 18

iv

Bonilla v. Young’s Market Co., LLC,

No. 24-cv-03489-EMC, 2025 WL 916020

(N.D. Cal. Mar. 26, 2025)............................ 7, 12

Brock v. Flowers Foods, Inc.,

121 F.4th 753

(10th Cir. 2024) ....................... 16, 17, 18, 19, 20

Capriole v. Uber Techs., Inc.,

7 F.4th 854 (9th Cir. 2021) ....................... 16, 17

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ......................................... 20

Cross v. Amazon, Inc.,

No. 23-cv-02099, 2024 WL 4346414

(D. Colo. Sept. 30, 2024) ....................... 7, 11, 12

Doctor’s Associates, Inc. v. Casarotto,

517 U.S. 681 (1996) ......................................... 15

Flores v. Velocity Express, LLC,

250 F. Supp. 3d 468 (N.D. Cal. 2017)......... 7, 14

GGNSC Louisville Hillcreek, LLC v. Estate

of Bramer,

932 F.3d 480 (6th Cir. 2019)............................. 1

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) ........................................... 12

Harrod v. Country Oaks Partners, LLC,

15 Cal. 5th 939 (2024)....................................... 1

v

Hayes v. XPO Last Mile Inc.,

No. 1:17-CV-319, 2017 WL 4900387

(W.D. Mich. Aug. 21, 2017)......................... 7, 12

Lamps Plus, Inc. v. Varela,

587 U.S. 176 (2019) ......................................... 12

Mejia v. RXO Last Mile, Inc.,

No. 22-cv-08976, 2023 WL 5184153

(N.D. Cal. Aug. 10, 2023) ............................ 7, 11

Miller v. Amazon.com. Inc.,

No. 21-36048, 2023 WL 5665771

(9th Cir. Sept. 1, 2023).............................. 15, 16

Munro v. Univ. of S. Cal.,

896 F.3d 1088 (9th Cir. 2018).......................... 2

People ex rel. Harris v. Pac Anchor Transp., Inc.,

59 Cal. 4th 772 (2014)....................................... 7

Peter v. Priority Dispatch, Inc.,

681 F. Supp. 3d 800 (S.D. Ohio 2023) ............ 16

Philadelphia & Reading Ry. Co. v. Hancock,

253 U.S. 284 (1920) ......................................... 18

Rittman v. Amazon.com., Inc.,

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

cert. denied, ___ U.S. ___ (2021) .............. 16, 18

Seaboard Air Line Railway v. Moore,

228 U.S. 433 (1913) ......................................... 18

vi

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) ......................................... 17

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,

559 U.S. 662 (2010) ......................................... 12

Tenney Eng’g, Inc. v. United Elec. Radio &

Mach. Workers of Am.,

(U.E.) Local 437, 207 F.2d 450

(3d Cir. 1953). ................................................. 18

Waithaka v. Amazon.com, Inc.,

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

cert. denied, ____ U.S. ___ (2021) ............. 16, 18

Walsh v. Procorp LLC,

No. 20-cv-11447-SFC, 2021 WL 5860774

(E.D. Mich. Aug. 12, 2021)................................ 7

Statutes

9 U.S.C. § 1 ................................................................ 10

9 U.S.C. § 2 ................................................................ 15

29 U.S.C. § 202 ......................................................... 20

29 U.S.C. § 202(a) ...................................................... 10

29 U.S.C. § 213(b)(1) .............................................. 8, 19

29 U.S.C. § 216 .......................................................... 10

29 U.S.C. § 216(b) ...................................................... 20

vii

Other Authorities

Am. Transp. Rsch. Inst., Evolving

Truck Driver Demographics: Issues and

Opportunities (July 2025), https://www.

trucking.org/news-insights/ata-americantrucking-trends-2025 ........................................ 4

Am. Trucking Ass’ns, American

Trucking Trends 2025 (Aug. 2025),

https://www.trucking.org/news-insights/

ata-american-trucking-trends-2025 ................. 5

Brief of Appellees, Ash v. Flowers,

No. 23-30356, 2023 WL 6930370

(5th Cir. Oct. 10, 2023) ................................... 19

Brown, S. Kathi, Increase in Overall Sense of

Financial Security and Spike in

Optimism, Though Common Financial

Worries Persist, AARP POLICY

RESEARCH INSTITUTE

(Sept. 24, 2025), https://www.aarp.org/

pri/topics/work-finances-retirement/

financial-security-retirement/financialsecurity-trends-survey/ ..................................... 9

Colvin, Alexander J.S., The Growing Use of

Mandatory Arbitration, Econ. Policy

Inst. (2017) http://www.epi.org/files

/pdf/135056.pdf) .............................................. 13

viii

Colvin, Alexander J.S., The Metastasization of

Mandatory Arbitration, 94 Chi.-Kent L.

Rev. 3 (2019).................................................... 11

Editorial Board, Rigged system rips off port

truckers, USA TODAY (June 20, 2017),

https://www.usatoday.com/story/

opinion/2017/06/20/rigged-system-ripsoff-port-truckers-editorials-debates/103

015290/ ............................................................ 22

Estlund, Cynthia, The Black Hole of Mandatory

Arbitration, 96 N.C. L. Rev. 679

(Mar. 2018) .......................................... 12, 13, 14

Flat World Global Solutions, The Ins and

Outs of Intermodal Shipping Logistics

(July 18, 2022), https://flatworldgs.com/

intermodal-shipping-logistics/ ........................ 26

Hollis, David, Retirement: Not a choice for

many drivers; a lot say they can’t afford

it, TRUCKERS NEWS (July 18, 2023),

https://www.truckersnews.com/home/

article/15542236/retirement-not-achoice-for-many-drivers-a-lot-say-theycant-afford-it ..................................................... 9

ix

Ju, Shengyang & Belzer, Michael H., Follow

the Money: Trucker pay incentives,

working time, and safety, THE

ECONOMIC AND LABOUR RELATIONS

REVIEW, Vol. 35, Issue 1 (March 2024),

https://www.cambridge.org/core/

services/aop-cambridgecore/content/

view/71B27AFF3CEA61551453CF15E

4358912/S103530462400005Xa.pdf/

follow-the-money-trucker-payincentives-working-time-andsafety.pdf ................................................. 5, 8, 21

Murphy, Brett, Asleep at the Wheel:

Companies risk lives by putting

sleep-deprived port truckers on the road,

USA TODAY (Dec. 28, 2017),

https://web.archive.org/web/202

00427101400/https://www.usatoday.com

/pages/interactives/news/rigged-asleepat-the-wheel/ ............................................. 23, 27

Murphy, Brett, Rigged: Forced into debt.

Worked past exhaustion. Left with

nothing., USA TODAY (June 16, 2017),

https://web.archive.org/web/20250827

182326/https://www.usatoday.com/pages/

interactives/news/rigged-forced-intodebt-worked-past-exhaustion-leftwith-nothing/ ................................... 8, 22, 23, 24

x

Murphy, Brett, “Shameful” labor abuse of

truckers, USA TODAY (July 31, 2017),

https://www.usatoday.com/story/news/

2017/07/31/senators-pressure-retailersroot-out-shameful-labor-abusetruckers/104168828 ........................................ 25

Roosevelt, Margot, Port truckers win $30

million in wage theft settlements,

LOS ANGELES TIMES (Oct. 13, 2021),

https://www.latimes.com/business/story

/2021-10-s13/la-fi-port-trucker-xposettlements ................................................ 24, 25

Shifting Gears: Issues Impacting the Trucking

and Commercial Bus Industries,

Hearing Before the S. Subcomm. on Surf.

Transp., Freight, Pipelines & Safety,

119th Cong. 1 (July 22, 2025),

https://www.congress.gov/119/chrg/

CHRG-119shrg61704/CHRG-119shrg6

1704.pdf ................................................... 6, 7, 21

Sternlight, Jean R., Creeping Mandatory

Arbitration: Is It Just?, 57 Stan. L. Rev.

1631 (2005) ...................................................... 15

Stone, Katherine V.W. & Colvin, Alexander J.S.,

The arbitration epidemic: Mandatory

arbitration deprives workers and

consumers of their rights,

ECON. POLICY INST. (Dec. 7, 2015),

https://files.epi.org/2015/arbitrationepidemic.pdf .............................................. 11, 14

xi

Tenth Circuit Joint Appendix ................................... 19

U.S. Census Bur., Current Population Survey,

2025 Annual Social and Economic

Supplement (March 2025), https://

www.census.gov/data/datasets/time

-series/demo/cps/cps-asec.html ..................... 4, 9

U.S. Courts, U.S. District Courts—Civil Cases

Commenced, by Nature of Suit, During

the 12-Month Period Ending September

30, 2012 Through 2016, http://www.

uscourts.gov/sites/default/files/data_

tables/jb_c2a_0930.2016.pdf ........................... 13

Viscelli, Steve, The Big Rig: Trucking and the

Decline of the American Dream (2016) ............. 5

1

STATEMENT OF INTEREST 1

AARP is the nation’s largest nonprofit,

nonpartisan organization dedicated to empowering

Americans 50 and older to choose how they live as they

age. With a nationwide presence, AARP strengthens

communities and advocates for what matters most to

the more than 100 million Americans 50-plus and

their families: health and financial security, and

personal fulfillment. AARP’s charitable affiliate,

AARP Foundation, works for and with vulnerable

people over 50 to end senior poverty and reduce

financial hardship by building economic opportunity.

Amici have long advocated on behalf of older

adults by filing litigation cases and amicus briefs

challenging practices that pose a threat to their

financial security. This has included, among other

things, filing amicus briefs urging that pre-dispute

mandatory arbitration agreements be accurately

construed and not pose an improper bar to judicial

relief prescribed by Congress and state legislatures.

See, e.g., GGNSC Louisville Hillcreek, LLC v. Estate of

Bramer, 932 F.3d 480, 482 (6th Cir. 2019) (denying

nursing home’s FAA § 2 motion to compel arbitration

of wrongful death claims); Harrod v. Country Oaks

Partners, LLC, 15 Cal. 5th 939, 946 (2024) (finding

nursing home resident’s representative lacked

authority to consent to arbitration of elder abuse

Pursuant to Supreme Court Rules 37.2 and 27.6, amici certify

that no counsel for either party authored the brief in whole or in

part. In addition, no person or entity, other than amici, their

members, and their counsel, has made any monetary

contribution to the preparation and submission of this brief.

1

2

claims); Munro v. Univ. of S. Cal., 896 F.3d 1088, 1090

(9th Cir. 2018) (denying retirement plan’s FAA § 2

motion to compel arbitration and permitting ERISA

breach of fiduciary duty claims to proceed in federal

court).

SUMMARY OF ARGUMENT

The trucking industry, employing over 1.6

million older adults, plays a vital role in the American

economy, with the vast majority of trucking firms

presumably complying with federal and state fair

labor laws governing their work. However, there also

is evidence that a significant minority of firms may be

violating those laws, denying truck drivers minimum

wage and overtime pay; imposing unjust costs; failing

to observe regulations relating to rest periods and

waiting time; failing to pay workers’ compensation;

and committing other offenses. For the estimated

300,000 low-income workers over 50 years old in the

trucking industry, such violations can pose an

existential threat to their financial security.

Workers’ access to the courts to address these

alleged labor violations is increasingly being displaced

by ineffectual mandatory arbitration agreements

utilized by employers, including many in the trucking

industry. Emerging data reveals alarming news—

that practically nobody actually arbitrates workers’

rights disputes. One can debate the reasons, but the

daunting challenges faced by victims (e.g., fear of

retaliation, the difficulty of finding counsel, lack of

adequate discovery for complex cases, and the lack of

3

meaningful remedies) are certainly some of the most

common explanations.

The Federal Arbitration Act (FAA), passed by

Congress in 1925, provides for arbitration as an

alternative means to resolve private disputes while

still protecting the free flow of goods via its

longstanding statutory exemption for workers

“engaged in foreign or interstate commerce.” In this

case, the truck driver accepted the company’s baked

goods from out of state, loaded them on his truck

within 24 hours, and drove them intrastate to the

company’s retail customers in Colorado. The Tenth

Circuit found the driver to fall within the exemption

because he served as an integral part of a single,

unbroken stream of commerce.

The company’s

disagreement with the Tenth Circuit—and proposed

alternative test—has no basis in the statute or

Supreme Court precedent, belies common sense, and

threatens the free flow of goods by contributing to

poverty wages and the chronic shortage of drivers in

the trucking industry. But perhaps most troubling,

the proffered test blows a gaping hole in FAA § 1

coverage by failing to exempt even workers who

undeniably play critical roles in nationwide transit

and suffer severe wage-and-hour abuses not amenable

to arbitration. Congress cannot have intended this

result.

4

ARGUMENT

I.

TRUCKING IS A VITAL “AGING”

INDUSTRY

WITH

A

DISPROPORTIONATE

NUMBER

OF

OLDER WORKERS SEEKING LABOR

PROTECTIONS FROM THE COURTS

Truck driving, employing over 3.7 million

people, is an “aging” industry disproportionately

populated by older adults. 2 A study by the American

Trucking Research Institute cited 20 years of data

showing a trend toward an “aging driver workforce,”

including a 2024 survey showing “an average driver

age of 58 years old.” 3 Respondent Angelo Brock,

himself, is 54 years old. In absolute terms, some 1.6

million adults over 50 years of age work in this line of

commerce. 4

Many older adults are proud to be in this

industry, and for good reason.

Trucking is a

challenging profession that plays a vital role in this

nation’s economy. In the United States, supply chains

rely on trucking for about 80 percent of the value of

U.S. Census Bur., Current Population Survey, 2025 Annual

Social

and

Economic

Supplement

(March

2025),

https://www.census.gov/data/datasets/time-series/demo/cps/cpsasec.html (cited figures from unpublished AARP Foundation

analysis of Census data).

3 Am. Transp. Rsch. Inst., Evolving Truck Driver Demographics:

Issues

and

Opportunities

(July

2025)

at

18,

https://truckingresearch.org/2025/07/evolving-truck-driverdemographics-issues-and-opportunities/.

4 U.S. Census Bur., supra note 2.

2

5

freight transport. 5 Supply chain disruptions during

the pandemic and subsequent years have revealed the

extent to which the economy depends on that reliable

freight transport. 6 For many, there is the lure of the

open road and the possibility of living the American

Dream of running your own business. 7

The industry consists of large trucking firms

whose fleets serve numerous clients; retail or

wholesale firms with their own delivery fleets; small

and solo independent firms; and others. While a few

major carriers dominate a portion of the market, the

industry is largely composed of a vast number of small

and medium-sized companies. 8

The workercompensation model includes both employer-employee

Shengyang Ju & Michael H. Belzer, Follow the Money: Trucker

pay incentives, working time, and safety, The Economic and

Labour Relations Review, Vol. 35, Issue 1 (March 2024), at 7,

https://www.cambridge.org/core/services/aop-cambridge-core/

content/view/71B27AFF3CEA61551453CF15E4358912/S103530

462400005Xa.pdf/follow-the-money-trucker-pay-incentivesworking-time-and-safety.pdf.

6 Id.

7 Steve Viscelli, The Big Rig: Trucking and the Decline of the

American Dream 105, 110 (2016) (“‘knights of the road’” desiring

to “make good money and see the country”); see also id. at 11619 (advertisements touting the “American Dream” of being an

independent operator).

8 According to one recent report, 91.5 percent of carriers operate

10 or fewer trucks and 99.3 percent of carriers operate fewer than

100 trucks. Am. Trucking Ass’ns, American Trucking Trends

2025 (Aug. 2025), https://www.trucking.org/news-insights/ataamerican-trucking-trends-2025.

5

6

arrangements and a variety of independent contractor

models described as “the heart of the industry.” 9

As in any industry, there’s a wide range of pay

for truck drivers.

The American Trucking

Associations reported that employee drivers in 2023

made a range of $76,000 to $95,000 per year, with

some independent contractors earning more. 10

However, industry testimony before Congress, along

with the prevalence of trucker lawsuits, indicate that

there also are large numbers of drivers suffering from

alleged predatory truck leasing schemes and

violations of wage-and-hour laws. As the executive

vice president of a major industry association recently

testified before the Senate:

Predatory truck leasing schemes are

another longstanding problem within our

industry.

While traditional lease

agreements can allow truckers to operate

as independent small-businesses, there

is a subset of leasing arrangements that

almost always exploit[] drivers . . .

Companies peddling these supposed

‘opportunities’ typically offer the false

promise of fair compensation, future

ownership

of

the

truck,

and

Shifting Gears:

Issues Impacting the Trucking and

Commercial Bus Industries, Hearing Before the S. Subcomm. on

Surf. Transp., Freight, Pipelines & Safety, 119th Cong. 1 (July

22, 2025) at 12 (Testimony of Chris Spear of the American

Trucking Ass’ns), https://www.congress.gov/119/chrg/CHRG119shrg61704/CHRG-119shrg61704.pdf.

10

Id. at 11-12.

9

7

independence from employer-employee

requirements. 11

Notably, these practices include the alleged failure to

pay minimum wage and other “wage theft” violations

of the Fair Labor Standards Act (FLSA) and other

state labor laws. 12 Additional class action lawsuits

filed by truck drivers and government authorities in

recent years provide further evidence of prevalent

wage-and-hour violations. 13

Of the alleged labor violations, perhaps the

greatest threat to older workers is an employer’s

failure to pay minimum wage (a paltry $7.25 per hour

in many states). Trucking firms may fail to pay

minimum wage through various forms of wage theft,

Id. at 23 (Testimony of Lewie Pugh of the Owner-Operator

Independent Drivers Ass’n).

12

See, e.g., Alvarez v. XPO Logistics Cartage, LLC, No. 2:18-cv03736, 2022 WL 644168, at *1 (C.D. Cal. Feb. 8, 2022) (settlement

of $20 million for wage-and-hour claims and other predatory

practices including unlawful deductions to cover lease payments);

Arellano v. XPO Port Service Inc., No. 2:18-cv-08220, 2021 WL

6882163, at *4 (C.D. Cal. Oct. 8, 2021) (settlement of $9.5 million

for similar state wage-and-hour violations).

13

See, e.g., Bonilla v. Young’s Market Co., LLC, No. 24-cv-03489EMC, 2025 WL 916020, at *5 (N.D. Cal. Mar. 26, 2025); Cross v.

Amazon, Inc., No. 23-cv-02099, 2024 WL 4346414, at *4-5 (D.

Colo. Sept. 30, 2024); Mejia v. RXO Last Mile, Inc., No. 22-cv08976, 2023 WL 5184153, at *2-3 (N.D. Cal. Aug. 10, 2023); Walsh

v. Procorp LLC, No. 20-cv-11447-SFC, 2021 WL 5860774, at *4-5

(E.D. Mich. Aug. 12, 2021); Flores v. Velocity Express, LLC, 250 F.

Supp. 3d 468, 493-94 (N.D. Cal. 2017); Hayes v. XPO Last Mile

Inc., No. 1:17-CV-319, 2017 WL 4900387, at *1, *7 (W.D. Mich.

Aug. 21, 2017); People ex rel. Harris v. Pac Anchor Transp., Inc.,

59 Cal. 4th 772, 776 (2014).

11

8

including unpaid “off-the-clock” work, illegal paycheck

deductions, misclassifying employees as independent

contractors, and other means. Failure to pay timeand-a-half overtime is also a killer in an industry

where truck drivers work an average of 63 hours per

week, and much longer hours in many

circumstances. 14 And there can be further penalties—

firms unlawfully failing to pay workers’ compensation,

requiring employees to pay double FICA, and

imposing inappropriate costs such as diesel fuel,

vehicle insurance, maintenance repair costs, so-called

administrative fees, equipment rental fees, and other

fees. Put it all together, and one has the poverty

wages seen in an anecdote described in USA Today—

a truck driver’s tax return showing gross annual

income of $94,000, but only $21,000 in net pay after

costs. 15

Unlawful penalties of this size can pose an

existential threat to older truck drivers’ financial

security. It is well-established that there already is a

full-blown retirement crisis for older adults in this

country—workers aging with inadequate savings and

Ju & Belzer, supra note 5, at 17 (citing 2010 NIOSH survey

data).

Amici recognize that trucking firms following the

employer-employee model can lawfully avoid paying overtime

time-and-a-half rates if meeting certain requirements under the

Motor Carrier Act (MCA), 29 U.S.C. § 213(b)(1).

15 Brett Murphy, Rigged: Forced into debt. Worked past

exhaustion. Left with nothing., USA TODAY (June 16, 2017),

https://web.archive.org/web/20250827182326/https://www.usato

day.com/pages/interactives/news/rigged-forced-into-debt-worked

-past-exhaustion-left-with-nothing/.

14

9

struggling to afford essential expenses. 16 And the

trucking industry is no exception in that regard.

There are some 300,000 truck drivers over 50 years of

age who are categorized as “low income” and

struggling to survive. 17 A survey of the industry at

large also found that 63 percent of drivers stated they

lacked savings needed to retire; that 58 percent of

drivers age 55 and above had fallen short on saving for

retirement; and that 34 percent of truckers cited

financial necessity as the reason they continued

driving. 18

See, e.g., S. Kathi Brown, Increase in Overall Sense of

Financial Security and Spike in Optimism, Though Common

Financial Worries Persist, AARP POLICY RESEARCH

INSTITUTE (Sept. 24, 2025), https://www.aarp.org/pri/topics/

work-finances-retirement/financial-security-retirement/

financial-security-trends-survey/ (“Prices, retirement security,

and unexpected expenses continue to be top financial worries

while worry about health care costs increased.”).

17

Some 297,000 truckers over age 50 live in households that

have total annual earnings below 250% of the federal poverty

level. See U.S. Census Bur., supra note 2 (AARP Foundation

analysis of Census data).

18

David Hollis, Retirement: Not a choice for many drivers; a lot

say they can’t afford it, TRUCKERS NEWS (July 18, 2023),

https://www.truckersnews.com/home/article/15542236/retireme

nt-not-a-choice-for-many-drivers-a-lot-say-they-cant-afford-it.

16

10

II.

MANDATORY

ARBITRATION

HAS

PROVEN TO BE AN INEFFECTIVE

SUBSTITUTE FOR COURTS AND THEIR

REMEDIES IN THE WORKERS’ RIGHTS

REALM, WARRANTING PRESERVATION

OF THE FAA § 1 EXEMPTION IN FULL

MEASURE

About a century ago, Congress passed the FAA,

providing for the non-judicial facilitation of private

disputes through arbitration. See 9 U.S.C. § 1 et seq.

While the FAA mandates the judicial enforcement of

arbitration agreements, there has been an exception—

since the statute’s inception—for workers “engaged in

foreign or interstate commerce.” 9 U.S.C. § 1.

In 1938, 13 years after the FAA’s passage,

Congress enacted the FLSA, proclaiming that “labor

conditions detrimental to the maintenance of the

minimum standard of living necessary for health,

efficiency, and general well-being of workers” leads to

various obstructions in the flow of commerce. 29

U.S.C. § 202(a). Congress further declared the proper

remedy for unfair labor practices under the FLSA is to

seek individual and collective action relief in federal

or state court. See 29 U.S.C. § 216. The Supreme

Court later noted, “the FLSA was designed to give

specific minimum protections to individual workers

and to ensure that each employee covered by the Act

would receive a fair day’s pay for a fair day’s work and

would be protected from the evil of overwork as well

as underpay.” Barrentine v. Arkansas-Best Freight

Sys., Inc., 450 U.S. 728, 739 (1981) (citation modified)

(emphasis in original).

Importantly, the Court

11

affirmed that the FLSA’s “statutory enforcement

scheme grants individual employees broad access to

the courts . . . permit[ting] an aggrieved employee to

bring his statutory wage and hour claim in any

Federal or State court of competent jurisdiction.” Id.

at 740 (citation modified). In so doing, the Court

emphasized it had often “held that FLSA rights cannot

be abridged by contract or otherwise waived because

this would ‘nullify the purposes’ of the statute and

thwart the legislative policies it was designed to

effectuate.” Id.

Today, however, workers’ access to the courts is

increasingly being displaced by ineffectual mandatory

arbitration agreements. 19 While the exact percentage

of truck drivers bound by these agreements is difficult

to measure, 20 the estimate is that they are found in

more than 50 percent of all establishments in the

transportation sector. 21 The prevalence of mandatory

arbitration can also be seen in the many recent

Amici exclude from their analysis the prevalence and efficacy

of labor arbitration procedures seen in the unionized setting. See

Katherine V.W. Stone & Alexander J.S. Colvin, The arbitration

epidemic:

Mandatory arbitration deprives workers and

consumers of their rights 14, ECON. POLICY INST. (Dec. 7, 2015),

https://files.epi.org/2015/arbitration-epidemic.pdf (citing

numerous differences in the establishment and management of

the two systems).

20

Id. at 15.

21

Alexander J.S. Colvin, The Metastasization of Mandatory

Arbitration, 94 Chi.-Kent L. Rev. 3, 14 (2019) (table showing

51.3% adoption rate in transportation industry).

19

12

trucking industry cases involving motions to compel

arbitration. 22

Amici are mindful of the Court’s view in recent

years that arbitration is an entirely viable and, in

some instances, preferable and less costly avenue for

vindicating workers’ rights. 23 However, more than 30

years after Gilmer, 24 we now have new data casting

serious doubt on that premise. What does that data

show? That practically no workers’ rights disputes are

actually resolved in arbitration. In one observer’s

words, mandatory arbitration has proven to be “a

black hole into which matter collapses and no light

escapes.” 25

Until recently, comparing the number of

workers’ rights court cases filed, versus arbitrations,

was almost impossible to measure. Arbitrations are

conducted in secret and the results kept confidential.

However, a clearer picture has emerged due to state

laws requiring greater disclosure of arbitration data,

See supra note 13 (citing, inter alia, Bonilla v. Young’s Market

Co., LLC; Cross v. Amazon, Inc.; Mejia v. RXO Last Mile, Inc.;

Hayes v. XPO Last Mile, Inc.). The many additional truckingrelated FAA cases cited in the parties’ briefs are further evidence.

23

See, e.g., Lamps Plus, Inc. v. Varela, 587 U.S. 176, 184-85

(2019) (quoting Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 559

U.S. 662, 685 (2010) (citing lower cost, speed, and the “ability to

choose expert adjudicators”).

24

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)

is viewed as the first case upholding the FAA’s application to

workers’ rights claims (there under the Age Discrimination in

Employment Act).

25

Cynthia Estlund, The Black Hole of Mandatory Arbitration,

96 N.C. L. Rev. 679, 680-82 (Mar. 2018).

22

13

the willingness of the American Arbitration

Association (AAA) to disclose aggregate data, and

intrepid scholarly research. 26

For example, the

number of employee rights matters filed as

arbitrations in 2016, versus the federal court cases,

tells a sobering tale. That year, data shows that 56

percent of non-union private sector workers—or about

60 million employees—were subject to mandatory

arbitration agreements. 27 Of those, about 5,126

employees filed arbitration cases that year. 28 By

comparison, the other 44 percent of workers not

subject to mandatory arbitration agreements filed

some 31,881 federal workers’ rights lawsuits. 29 When

an estimated 195,000 state court employment actions

Id. at 687-89.

Id. at 689 (citing Alexander J.S. Colvin, The Growing Use of

Mandatory Arbitration 4, Econ. Policy Inst. (2017), http://www.

epi.org/files/pdf/135056.pdf).

28

Id. at 690. Estlund arrives at this number based on AAA

reports that 2,879 individuals filed employment cases with the

AAA under employer-promulgated procedures, and the further

assumption, based on others’ studies, that this would represent

half of all such arbitrations. Recognizing the many assumptions

at play, the author offers a wide range of calculations in favor of

both arbitration and court action. Id. at 689-99 (offering

alternative calculations). She notes that however one looks at

the numbers, “except for a relative handful of cases, arbitration

does not take place at all.” Id. at 700.

29

This 2016 figure encompasses five sub-categories drawn from

federal court filing data: Civil Rights/Employment (11,878

cases); ADA-Employment (2,231); FLSA (8,686); ERISA (6,831);

and FMLA (1,255). U.S. Courts, U.S. District Courts—Civil

Cases Commenced, by Nature of Suit, During the 12-Month

Periods Ending September 30, 2012 Through 2016,

http://www.uscourts.gov/sites/default/files/data_tables/jb_c2a_09

30.2016.pdf.

26

27

14

are added into the mix the comparison becomes more

stark: 226,881 lawsuits versus 5,126 arbitrations. 30

The paucity of filed arbitrations should not be a

surprise given the procedural hurdles and the low

prospects of meaningful relief. In the trucking

industry, workers subject to mandatory arbitration

often will have to arbitrate quite complex FLSA

claims31 on a solo basis. 32 This requires hiring

counsel, an insurmountable barrier in and of itself for

many with low income. One study of workers’ rights

cases showed federal court cases reaping monetary

relief 6.1 times higher than arbitrated awards, and

state court cases earning 13.9 times higher. 33 That

disparity, in turn, impacts the likelihood that a worker

will find a lawyer willing to take the arbitration case

on contingency. 34

Assuming the truck driver obtains counsel, the

worker then faces one or more of the oft-cited

challenges of arbitration procedure. These include,

Estlund, supra note 25, at 693-94.

A frequent dispute in the trucking industry is the alleged

misclassification of drivers as independent contractors rather

than employees, an inherently complex undertaking for

plaintiffs. See Flores v. Velocity Express, LLC, 250 F. Supp. 3d

468 (N.D. Cal. 2017) (applying multi-factorial FLSA “economic

reality” test).

32

See Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228, 235-38

(2013) (upholding contractual waiver of class arbitration); AT&T

Mobility, LLC v. Concepcion, 563 U.S. 333 (2011) (invalidating a

law conditioning enforcement of arbitration on the availability of

class procedure).

33

Stone & Colvin, supra note 19, at 21.

34

Id.

30

31

15

among others, (1) the lack of comparable discovery (a

must in many FLSA cases); (2) the employer’s

advantage in using “repeat player” arbitrators; (3)

altered due process procedures (e.g., statutes of

limitations, time to present case, burdens of proof); (4)

the absence of appeal rights; (5) the costliness of

fighting off compelled arbitration; (6) bans on class or

collective actions that might help to defray costs; and

(7) sometimes, forbidding “loser pays all arbitration

fees” clauses. 35

The FAA § 1 exemption gives workers engaged

in interstate commerce who are forced to sign

mandatory arbitration agreements a greater fighting

chance to have their day in court. Employers, if

unconstrained by the exemption, will file FAA § 2

motions seeking to nullify all state laws and court

decisions specifically protecting these workers from

This critical

unfair arbitration provisions. 36

exemption, upheld regularly by this Court, gives

covered workers the freedom to avail themselves of

such laws and, if successful, either file suit in court or

at least to arbitrate on fairer terms (e.g., permitting

collective action or severing financially onerous

Jean R. Sternlight, Creeping Mandatory Arbitration: Is It

Just?, 57 Stan. L. Rev. 1631, 1648-53 (2005).

36

Section 2 of the FAA states that arbitration agreements

“shall be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation of any

contract . . . .” 9 U.S.C. § 2. That leaves arbitration-specific

protections as fair game for preemption under current Supreme

Court precedents, see, e.g., Doctor’s Associates, Inc. v. Casarotto,

517 U.S. 681, 688 (1996) (preempting Montana statutory defense

that franchisor failed to give prominent notice of arbitration

requirement in franchise agreements).

35

16

clauses). See, e.g., Miller v. Amazon.com. Inc., No. 2136048, 2023 WL 5665771, at *2 (9th Cir. Sept. 1, 2023)

(finding worker exempt under FAA § 1 and arbitration

agreement unenforceable under Delaware state law);

Waithaka v. Amazon.com, Inc., 966 F.3d 10, 13 (1st

Cir. 2020), cert. denied, ____ U.S. ___ (2021) (same

under FAA and Massachusetts law); Rittman v.

Amazon.com., Inc., 971 F.3d 904, 919-20, 921 (9th Cir.

2020), cert. denied, ___ U.S. ___ (2021) (same under

FAA and Washington law); Peter v. Priority Dispatch,

Inc., 681 F. Supp. 3d 800, 802 n.3 (S.D. Ohio 2023)

(same under FAA and Ohio law).

III.

PETITIONER’S PROPOSED TEST FOR

FAA § 1 COVERAGE IS AT ODDS WITH

SETTLED

PRECEDENT,

WOULD

IMPEDE THE “FREE FLOW OF GOODS,”

AND PORTENDS DIRE CONSEQUENCES

FOR MANY OLDER TRUCK DRIVERS

A.

Petitioner’s test for inclusion in FAA

§ 1’s exemption is inconsistent with

established

precedent

and

Congress’s concern over the “free

flow of goods”

Flowers Foods manufactures baked goods for

delivery to its retailer customers across the country

(e.g., Walmart, Safeway, Costco). To reach those

retailers in “certain parts of” Colorado, Flowers ships

the goods to its distributor Angelo Brock, who within

24 hours loads the goods onto a truck and personally

drives them to those retailers’ receiving locations. See

Brock v. Flowers Foods, Inc., 121 F.4th 753, 758 (10th

17

Cir. 2024). Although Flowers contends that Brock is

an independent business serving as Flowers’s true

customer and the endpoint of the journey, the Tenth

Circuit, applying precedent and common sense, ruled

that “Brock’s intrastate delivery . . . forms the last leg

of an interstate route,” id. at 769, because he is “‘an

integral part of a single, unbroken stream of

commerce.’” Id. at 768 (quoting Capriole v. Uber

Techs., Inc., 7 F.4th 854, 867 (9th Cir. 2021)). As such,

the Tenth Circuit held that Brock falls within the FAA

§ 1 exemption for interstate transportation workers.

Id. at 770.

Flowers contends that the Tenth Circuit’s

approach will result in the courts being “flooded with

litigation” having “to determine the various customer

relationships, when an employer exercises control

over third-party transactions, and when a good’s

interstate journey begins and ends.” Pet. Br. 42. To

remedy this, Petitioner appears to urge a supposedly

simpler test that the worker, to fall within FAA § 1,

must either personally transport goods across state

lines or interact with a vehicle that crosses state lines.

Pet. Br. i, 21-22. This novel test is inconsistent with

established precedent, elevates so-called “simplicity”

over common sense, and threatens the “free flow of

goods.” The impropriety of the first part of the test

was settled in Southwest Airlines Co. v. Saxon, where

the Court held that a baggage handler for the airline

was exempt under FAA § 1 despite not personally

transporting goods across state lines. 596 U.S. 450,

461-63 (2022). The Court ruled there was no basis in

the FAA’s text for such limitation. Id.

18

Petitioner’s test—as a whole—also conflicts

with contemporaneous precedents at the time of FAA’s

passage. For example, cases construing the Federal

Employers’

Liability

Act

(FELA)—containing

language nearly identical to FAA § 1 37—held that

workers engaged in the wholly-intrastate first or last

leg of an interstate carriage of goods were engaged in

interstate commerce. See, e.g., Seaboard Air Line

Railway v. Moore, 228 U.S. 433, 434-35 (1913)

(Florida intrastate carriage of goods destined for New

Jersey); Philadelphia & Reading Ry. Co. v. Hancock,

253 U.S. 284, 285-86 (1920) (intrastate movement of

coal in Pennsylvania destined for interstate shipping).

Today, and perhaps more importantly, this commonsense approach has been adopted in several circuits,

including the First, Second, Third, Ninth, and Tenth

Circuits. 38

Petitioner’s contention that the “undue

complexity” of the Tenth Circuit’s approach supports

its new test is baseless and ironic in the extreme. Any

court reviewing this record would see the peril of

accepting at face value Flowers’s claims that Brock

As one court later noted, Congress “must have had [the

FELA] in mind” when drafting the residual clause in Section 1 of

the FAA, given that Congress “incorporate[d] almost exactly the

same phraseology.” Tenney Eng’g, Inc. v. United Elec. Radio &

Mach. Workers of Am., (U.E.) Local 437, 207 F.2d 450, 453 (3d

Cir. 1953).

38

Waithaka v. Amazon.com, Inc., 966 F.3d 10, 26 (1st Cir.

2020), cert. denied, __ U.S. __ (2021); Bissonnette v. LePage

Bakeries Park St., LLC, 123 F.4th 103, 106-07 (2d Cir. 2024);

Adler v. Gruma Corp., 135 F.4th 55, 67-68 (3d Cir. 2025);

Rittmann v. Amazon.com, Inc., 971 F.3d 904, 910-18 (9th Cir.

2020), cert. denied, __ U.S. __ (2021); Brock, 121 F.4th at 762-64.

37

19

was a wholly independent business acting as the true

purchaser of the goods and endpoint of the journey.

This is especially true as Flowers: (1) stated in

Security and Exchange Commission (SEC) filings that

the Costcos and Safeways of the world, not Brock, are

its customers; 39 (2) observed in an internal

memorandum that the “primary purpose [of its

distributors] . . . is to deliver bread products for us

[Flowers] to our customers”; 40 (3) wrote a distributor

agreement containing numerous indicia of control over

Brock’s business; 41 and (4) contended in another

lawsuit that its distributors performing purely

intrastate “last leg” deliveries in Louisiana were

engaged in interstate commerce for purposes of the

MCA, thereby enabling Flowers to avoid paying them

overtime. See Ash v. Flowers, No. 23-30356, 2024 WL

1329970, at *2-3 (5th Cir. Mar. 28, 2024). 42

Brock, 121 F.4th at 768 (Tenth Circuit describing 2022 Form

10-K filed with SEC).

40

Tenth Circuit J.A. at 263.

41

Sample indicia include that (1) Brock continued the journey

within 24 hours of the receipt of goods; (2) Brock was forbidden

to sell competing products; (3) Flowers retained ownership of

Brock’s distribution route; and (4) Flowers micromanaged

Brock’s relations with the ultimate customers despite Flowers’s

contention that they belonged only to Brock. Brock, 121 F.4th at

766-69.

42

Under the MCA, 29 U.S.C. § 213(b)(1), goods carried

intrastate are “in the flow of interstate commerce” when,

considering “the totality of all the facts and circumstances . . . a

shipper has the requisite intent to move goods continuously in

interstate commerce.” Brief of Appellees at *10, Ash v. Flowers,

Inc., No. 23-30356, 2023 WL 6930370 (5th Cir. Oct. 10, 2023).

Flowers, though correctly noting distinctions between the MCA

and FAA § 1 (id. at *18 n.2), nevertheless asserted such facts as

(1) Flowers’s clear intent to move goods to a retailer endpoint, not

39

20

Turning a blind eye to such relevant facts is not

a court’s job. Nor, for the sake of supposed simplicity,

is it a court’s job to apply a test so absurd that Brock

would be exempt under FAA § 1 if he happened to

unload the Flowers truck on arrival, but would not be

exempt if he didn’t. See Pet. Br. at 9 (making special

note that goods arriving at Brock’s warehouse “are

unloaded and sorted by Flowers personnel,” not

Brock). Moreover, the Tenth Circuit’s approach also

sidesteps the complexities attendant to the

classification of ride share and food-delivery drivers.

See Brock, 121 F.4th at 763-74 (distinguishing these

cases).

In addition, Petitioner’s position conflicts with

Congress’s intent that the FAA § 1 exemption help to

protect the “free flow of goods.” Circuit City Stores,

Inc. v. Adams, 532 U.S. 105, 121 (2001) (recognizing

this goal of FAA § 1). When passing the FLSA,

Congress expressed a similar concern that unfair

labor practices also not “burden[] commerce and the

free flow of goods in commerce,” 29 U.S.C. § 202,

decreeing that access to the courts—not mandatory

arbitration—was the preferred protective measure.

29 U.S.C. § 216(b). Congress’s concern was prescient,

indeed. Today, the main threat to the free flow of

goods in the trucking industry is a chronic shortage of

drivers and enormous turnover, caused in part by

the distributor; (2) the relevance of its distributors’ quick

turnaround at the warehouse; and (3) that the passage of the

goods’ title to the distributor did not interrupt this interstate

journey of goods. Id. at *27-31.

21

wage-and-hour violations leading to poverty wages. 43

As noted in the industry’s Senate testimony:

While the purported goal of these

[leasing] agreements is for the driver to

become a full-fledged owner-operator at

the end of the lease, these schemes rarely

work. Instead, drivers are paid pennies

on the dollar and have their work limited

by the leasing entity to prevent them

from ever securing ownership of the

truck they lease. They are also provided

no independence to seek better

compensation or more steady work with

other motor carriers. This system pushes

individuals who genuinely desire a

career in trucking out of the industry and

further contributes to driver turnover . .

. .” 44

Congress, when enacting the FAA in 1925, cannot

have intended that its future legislation prescribing

court action as the cure for wage-and-hour abuses

should take a second seat to mandated arbitration in

these circumstances.

43

Ju & Belzer, supra note 5, at 7, 9-11 (shortage of drivers and

100% worker turnover).

44

Testimony of Lewie Pugh, supra note 11.

22

B.

Petitioner’s

test

would

have

excluded even the egregious “first

leg” Los Angeles port truck driver

abuses from the FAA § 1 exemption

A USA Today exposé in 2017 detailed the plight

of some 13,000 Los Angeles port truck drivers who

allegedly were coerced into starvation wages even

after working hours exceeding federal labor laws. 45

The findings of a year-long investigation, based on

accounts of 300 drivers and reviews of labor dispute

testimony, company contracts, and other sources,

included the following allegations.

The truck drivers moved almost half of the

nation’s container imports out of Los Angeles area

ports. They can confidently be described as handling

the intrastate “first leg” of interstate journeys, driving

goods “to nearby rail yards or storage depots, a key

step in the goods' journey to some of the nation’s

leading retail stores.” 46 The article stated:

“Most car parts manufactured across the

Pacific

come

through

Southern

California. [The] same with electronics

from China, Thailand or Indonesia. If

you’ve bought anything from Walmart,

Amazon, JC Penney, or any other store

at the mall, there’s a good chance it

Murphy, supra note 15.

Editorial Board, Rigged system rips off port truckers, USA

TODAY (June 20, 2017), https://www.usatoday.com/story/

opinion/2017/06/20/rigged-system-rips-off-port-truckerseditorials-debates/103015290/.

45

46

23

started its trip across the U.S. with the

port truckers around Los Angeles.” 47

One driver was described as “driv[ing] more than 16

hours straight hauling LG dishwashers and Kumbo

tires to warehouses around Los Angeles, on their way

to retail stores nationwide.” 48 According to the article:

“Over the past decade, many companies

pushed drivers into debt by requiring

them to buy trucks through companysponsored

lease-to-own

programs.

Drivers found themselves trapped in jobs

that paid them pennies per hour after

expenses. If they complained or refused

to work past the legal limit, they could be

fired and lose their truck along with

thousands they paid toward its

purchase.” 49

Truck drivers at dozens of companies described

the same basic scene. They were handed a lease-toown contract by their employer and given a choice:

sign immediately or be fired. Many drivers who spoke

little English said “managers gave them no time to

seek legal advice or even an interpreter to read the

Murphy, supra note 15.

Brett Murphy, Asleep at the Wheel: Companies risk lives by

putting sleep-deprived port truckers on the road, USA TODAY

(Dec. 28, 2017), https://web.archive.org/web/20200427101400/

https://www.usatoday.com/pages/interactives/news/riggedasleep-at-the-wheel/.

49

Id.

47

48

24

contract.” 50 Drivers gave their old trucks—many of

which they owned outright—to their company as a

down payment. “And just like that they were up to

$100,000 in debt to their own employer. The same

guys would have had a tough time qualifying for a

Hyundai days earlier.” 51

Trucking firms, allegedly misclassifying truck

drivers as independent contractors, denied them

minimum wage and overtime pay, and imposed costs

ordinarily borne by employers (e.g., diesel fuel,

insurance, laptop rental, others). Further anecdotes

included drivers living in fear of managers refusing to

send them business (called “starving them out of the

truck”); a driver working 20 hours a day, six days a

week, and earning a total of 67 cents; firms physically

barring workers from going home at night; and 100

worker

interviewees

reporting

threats

and

retaliation. 52 The veracity of these allegations is

supported by California administrative rulings over

the years that Los Angeles port authority firms had

misclassified their workers, awarding them some $50

million in compensation. 53

Murphy, supra note 15.

Id.

52

Id.

53

As of 2017, at least 1,150 Los Angeles port truck drivers had

since 2010 filed claims in civil court or with the California

administrative agencies—with judges ruling 97% of the time that

port workers had been misclassified. Id.; see, e.g., Margot

Roosevelt, Port truckers win $30 million in wage theft settlements,

LOS ANGELES TIMES (Oct. 13, 2021), https://www.latimes.

com/business/story/2021-10-s13/la-fi-port-trucker-xpo

settlements.

50

51

25

The USA Today articles sparked Senate

hearings, wide-ranging federal and state inquiries to

involved trucking firms, proposed legislation, and

other measures. 54 More to the point, two classes of

victims not forced to arbitrate made the most of their

access to the courts, reaping $30 million in damages

against XPO Logistics, one of the world’s largest

trucking companies. 55

(1)

Alvarez v. XPO Logistics Cartage, LLC,

No. 2:18-cv-03736, 2022 WL 644168

(C.D. Cal. Feb. 8, 2022) (three

consolidated cases brought under

California law resulting in a settlement

fund of $20 million for among other

allegations, “failure to pay minimum

wage,” “wages for missed meal periods,”

“wages for missed rest periods,” “failure

to reimburse business expenses,” and

“waiting time penalties”). The case also

included, as a matter of deterrence, the

imposition of civil penalties under

California’s Labor Code Private Attorney

Act (Cal. Lab. Code §§ 2698 et seq.); and

(2)

Arellano v. XPO Port Service Inc., No.

2:18-cv-08220, 2021 WL 6882163 (C.D.

Cal. Oct. 8, 2021) (settlement of $9.5

million for various alleged violations of

Brett Murphy, “Shameful” labor abuse of truckers, USA

TODAY

(July

31,

2017),

https://www.usatoday.com/

story/news/2017/07/31/senators-pressure-retailers-root-outshameful-labor-abuse-truckers/104168828.

55

Roosevelt, supra note 53.

54

26

the California Labor Code, including,

inter alia, misclassification, unpaid

minimum wages, violations relating to

rest periods and waiting time, and unfair

business practices).

Courts in the First, Second, Third, Ninth, and

Tenth Circuits—if confronting the same fact pattern—

almost certainly would have ruled that these truck

drivers, if forced to sign mandatory arbitration

agreements, were performing the “first leg” of an

interstate journey and therefore fell within the FAA

§ 1 exemption. But not so, if the Court accepts

Petitioner’s test. These drivers, though obviously

participating in interstate commerce, neither crossed

state lines nor interacted with a vehicle that did. They

were short-haul drivers usually driving to warehouses

and rail yards within California, dropping off

containers and returning to the Los Angeles port for

more loads rather than lingering to help re-load those

containers onto long-haul trucks or rail cars. 56 The

idea that these victims possibly would fall within the

FAA § 1 exemption, if only they waited around to help

load interstate trucks or rail cars, demonstrates the

absurdity of Petitioner’s test.

See, e.g., Plaintiffs “are short-haul drivers . . . who operate(d)

within a 100-mile radius and 150 miles after 2020.” 5th Am.

Compl. 22, Arellano, 2:18-cv-08220, ECF No. 129 (C.D. Cal. Apr.

5, 2021); see also Flat World Global Solutions, The Ins and Outs

of Intermodal Shipping Logistics (July 18, 2022),

https://flatworldgs.com/intermodal-shipping-logistics/

(describing Los Angeles port intermodal shipping as involving

port authority truckers taking containers to in-state warehouses,

whereupon other transportation firms later pick them up for

56

27

If found to lack FAA § 1 protection, the Los

Angeles port truck drivers would have faced the

impossible task of trying to arbitrate their complex

FLSA claims almost certainly on a solo basis, with

FAA § 2 preempting all California state laws giving

them added protection against unfair arbitration

agreements. 57 Congress, in enacting the FAA in 1925

and the FLSA in 1938, cannot have intended so unjust

a result. And there is every reason to believe that, if

Petitioner’s test is adopted, the types of abuses seen in

this cautionary tale will be the subject of future FAA

§ 1 litigation in jurisdictions across the country.

loading onto rail); Murphy, supra note 48 (citing example of port

truck drivers handling two to three loads per day).

57

See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(2011) (FAA § 2 preempting the judicial rule in California that

waivers of class action in arbitration agreements are

unconscionable in certain circumstances).

28

CONCLUSION

For the foregoing reasons, amici curiae

respectfully request this Court affirm the decision of

the United States Court of Appeals for the Tenth

Circuit.

January 22, 2026

Respectfully submitted,

LOUIS LOPEZ

Counsel of Record

WILLIAM ALVARADO RIVERA

DEAN GRAYBILL

AARP FOUNDATION

601 E Street, NW

Washington, DC 20049

202-322-4180

llopez@aarp.org

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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