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
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