Amicus Curiae Brief — Total Quality Logistics, LLC, Petitioner v. Robert Cox, as Personal Representative and Special Administrator of the Estate of Greta Cox
Supreme Court briefSep 5, 2025
Ask Donna
What actually matters in this document.
Text
No. 25-145
IN THE
Supreme Court of the United States
————
TOTAL QUALITY LOGISTICS, LLC,
Petitioner,
v.
ROBERT COX,
Respondent.
————
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
————
BRIEF OF THE CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA AND THE
NATIONAL RETAIL FEDERATION AS AMICI
CURIAE IN SUPPORT OF PETITIONER
————
JENNIFER B. DICKEY
AARON M. STREETT
MATTHEW P. SAPPINGTON
Counsel of Record
U.S. CHAMBER
BAKER BOTTS L.L.P.
LITIGATION CENTER
910 Louisiana Street
1615 H Street, N.W.
Houston, TX 77002
Washington, D.C. 20062
(713) 229-1234
(202) 313-8543
aaron.streett@bakerbotts.com
STEPHANIE A. MARTZ
NATIONAL RETAIL
BRENTON H. COOPER
FEDERATION
BAKER BOTTS L.L.P.
1101 New York Ave., N.W. 700 K Street, N.W.
Suite 1200
Washington, D.C. 20001
Washington, D.C. 20005
(202) 639-1325
(202) 626-8100
Counsel for Amici Curiae
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
TABLE OF CONTENTS
Page
Interest of Amici Curiae ...................................................... 1
Summary of Argument ........................................................ 2
Argument .............................................................................. 5
I.
Freight Brokers Are Critical To Trucking
Operations And To The Economy .......................... 6
II. Existing Federal And State Regulation Of
Carriers—Not Tort Liability For Brokers
Selecting Carriers—Represents The Only
Legal And Feasible Way To Protect The
Nation’s Roadways ................................................... 8
A. Federal and state law work together to
protect the nation’s roadways ........................... 9
B. Brokers have no reliable tools to screen
carriers .............................................................. 13
1. The CSA system is designed for law
enforcement, not for brokers to
evaluate carriers ......................................... 13
2. Data limitations plague the CSA
system, making it unsuitable for
comparing carriers ..................................... 15
III. Allowing The Split To Go Unresolved Would
Slow The Transport Of Goods, Drive Up
Prices,
And
Harm
Manufacturers,
Retailers, And Consumers .................................... 19
Conclusion ........................................................................... 22
ii
TABLE OF AUTHORITIES
Page(s)
STATUTES
49 U.S.C. § 14501 .................................................................. 3
49 U.S.C. § 31102 ................................................................ 10
FAST Act, Pub. L. 114-94, 129 Stat. 1312 (2015) ............ 18
Ohio Rev. Code § 4511.204................................................. 12
Ohio Rev. Code § 5503.02 .................................................. 12
Okla. Stat. tit. 47, § 2-117 ................................................... 12
REGULATIONS
49 C.F.R. § 1.87 ..................................................................... 9
49 C.F.R. part 40 ................................................................ 11
49 C.F.R. parts 300–399 ..................................................... 10
49 C.F.R. § 350.105 ............................................................. 10
49 C.F.R. § 350.201 ............................................................. 10
49 C.F.R. § 350.303 ............................................................. 10
49 C.F.R. part 382 .............................................................. 11
49 C.F.R. part 383 .............................................................. 11
49 C.F.R. part 385 .............................................................. 11
iii
TABLE OF AUTHORITIES – Continued
Page
49 C.F.R. § 385.11 ............................................................... 14
49 C.F.R. § 385.13 ............................................................... 14
49 C.F.R. part 387 .............................................................. 11
49 C.F.R. part 392 .............................................................. 11
49 C.F.R. § 392.82 ............................................................... 12
49 C.F.R. part 393 .............................................................. 11
49 C.F.R. § 393.24 ............................................................... 10
49 C.F.R. § 393.52 ............................................................... 10
49 C.F.R. § 393.60 ............................................................... 10
49 C.F.R. part 395 .........................................................10, 11
49 C.F.R. part 396 .............................................................. 11
49 C.F.R. part 397 .............................................................. 11
Enhanced Carrier Measurement System (SMS),
89 Fed. Reg. 91874 (Nov. 20, 2024) ............................. 15
Ohio Admin. Code 4901:2-5-03 .......................................... 11
Okla. Admin. Code § 165:30-3-11 ...................................... 12
Okla. Admin. Code § 595:35-1-4 ........................................ 12
iv
TABLE OF AUTHORITIES – Continued
Page
Revised Carrier Safety Measurement System,
88 Fed. Reg. 9954-01 (Feb. 15, 2023) .......................... 17
OTHER SOURCES
Knut Alicke & Tacy Foster,
Supply Chains: Still Vulnerable,
McKinsey & Co. (Oct. 14, 2024) .................................. 21
American Transportation Research Institute,
E-Commerce Impacts on the
Trucking Industry (Feb. 2019) ..................................... 7
American Trucking Association,
Economics and Industry Data .................................6, 20
American Trucking Association,
Truck Freight and Revenues Rise
in 2022, According to Report
(July 19, 2023) ................................................................. 6
American Trucking Association,
When Trucks Stop,
America Stops (2015) ..................................................... 7
ArcBest,
Freight Brokers: Connecting Shippers
and Carriers (June 1, 2023) ........................................3, 8
Bureau of Transportation Statistics,
Freight Intermodal Connectors on
the National Highway System
by State .......................................................................... 19
v
TABLE OF AUTHORITIES – Continued
Page
Bureau of Transportation Statistics,
Interstate Truck Trips by Origin
and Destination ............................................................. 19
Chron Contributor,
Short Haul vs. Long Haul Trucking,
Chron ............................................................................... 6
Comments from Air & Expedited Motor
Carriers Association, Airforwarders
Association, et al.
(May 16, 2023) ..........................................................15, 17
Comments from Truck Safety
Coalition (May 16, 2023) .............................................. 18
Commercial Vehicle Safety Alliance,
2025 Out-of-Service Criteria Now
In Effect (Apr. 1, 2025) ................................................ 10
Commmercial Vehical Safety Alliance,
About the Alliance ........................................................ 10
Federal Highway Administration,
National Highway System:
FHWA Route Log and
Finder List .................................................................... 20
Federal Motor Carrier Safety Administration,
2023 Pocket Guide to Large Truck
and Bus Statistics (Dec. 2023) ..................................... 14
vi
TABLE OF AUTHORITIES – Continued
Page
Federal Motor Carrier Safety Administration,
The Safety Measurement
System (SMS) ............................................................... 14
Stan Mack,
The Importance of the
Trucking Industry, Chron ............................................. 6
National Academy of Sciences,
Improving Motor Carrier Safety
Measurement (2017) ..................................................... 17
Oklahoma Commercial Vehicle Safety Plan
for Fiscal Year 2023 (2023) .......................................... 12
David Randall Peterman,
Commercial Truck Safety: Overview,
U.S. Congressional Research Service (2017) ............ 11
Karl Plume,
Truckers Hit by Coronavirus Pandemic
Face Rocky Road to Recovery,
Reuters (May 14, 2020) ................................................ 20
Public Utilities Commission of Ohio,
Commercial Vehicle Safety Plan
for Fiscal Year 2023 (2023) .......................................... 12
John D. Schulz,
Transportation Trends and Best
Practices: The Battle for the Last Mile,
Logistics Mgmt. (May 2, 2017) ...................................... 7
vii
TABLE OF AUTHORITIES – Continued
Page
Hiranmayi Srinivasan,
Historical U.S. Inflation Rate by
Year: 1929 to 2025, Investopedia
(Aug. 12, 2025)............................................................... 21
U.S. Department of Transportation,
Report No. ST2019084, FMCSA’s
Plan Addresses Recommendations
on Prioritizing Safety Interventions
But Lacks Implementation Details (2019)................. 17
U.S. Government Accountability Office,
GAO-14-114, Federal Motor Carrier
Safety: Modifying the Compliance,
Safety, Accountability Program Would
Improve the Ability to Identify High Risk
Carriers (2014) .............................................................. 16
U.S. Government Accountability Office,
GAO-17-132, Motor Carriers:
Establishing System for Self-Reporting
Equipment Problems Appears Feasible,
But Safety Benefits Questionable and
Costs Unknown (2016) ................................................. 16
IN THE
Supreme Court of the United States
————
TOTAL QUALITY LOGISTICS, LLC,
Petitioner,
v.
ROBERT COX,
Respondent.
————
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
————
BRIEF OF THE CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA AND THE
NATIONAL RETAIL FEDERATION AS AMICI
CURIAE IN SUPPORT OF PETITIONER
————
INTEREST OF AMICI CURIAE1
The Chamber of Commerce of the United States of
America (the “Chamber”) and the National Retail
Federation (“NRF”) represent a range of companies that
rely on commercial trucks to transport goods across the
country. This includes raw products to be manufactured
into final products that are then shipped on to retailers
and ultimately consumers. The members of these associations often rely on freight brokers to arrange for that
transportation. Amici are concerned that the deepening
split over the imposition of tort liability on those brokers
No counsel for any party authored this brief in whole or in part and
no entity or person, aside from amici, their members, or their counsel,
made any monetary contribution intended to fund the preparation or
submission of this brief. All parties were timely notified of the intent
to file this brief.
1
2
would increase prices for businesses and consumers but
have little to no benefit to the safety of America’s roads.
The Sixth Circuit has joined the Ninth Circuit, and split
with the Seventh and Eleventh Circuits, complicating the
inherently interstate shipment of goods. Brokers may enjoy the certainty of a federal standard of transportation
regulation when goods are traveling through the Seventh
or Eleventh Circuits but will be subject to a patchwork of
state law when goods are traveling through the Sixth or
Ninth Circuits.
The Chamber is the world’s largest business federation. It represents approximately 300,000 direct members
and indirectly represents the interests of more than 3 million companies and professional organizations of every
size, in every industry sector, and from every region of the
country. An important function of the Chamber is to represent the interests of its members before Congress, the
Executive Branch, and the courts.
NRF is the world’s largest retail trade association,
representing discount and department stores, home goods
and specialty stores, Main Street merchants, grocers,
wholesalers, chain restaurants, and internet retailers from
the United States and more than 45 countries. Retail is the
largest private-sector employer in the United States, supporting more than one in four U.S. jobs—approximately
55 million American workers—and contributing $5.3 trillion to the annual GDP.
Both amici frequently submit amicus briefs in courts
across the country to help courts understand issues of importance to their members.
SUMMARY OF ARGUMENT
Although not apparent from its name, the Federal
Aviation Administration Authorization Act (“FAAAA”)
contains important provisions that regulate shipping by
commercial trucks as well as the brokerage services
3
necessary to facilitate that shipping. To that end, the
FAAAA preempts certain state laws, as they apply to brokers, but preserves “the safety regulatory authority of a
State with respect to motor vehicles.” 49 U.S.C.
§ 14501(c)(2)(A). While this Court has affirmed that the
FAAAA does not preempt a negligence suit brought
against a trucking company, the circuits are evenly divided over whether the FAAAA’s so-called “safety exemption” allows negligence suits against a broker.
Petitioner has explained why negligence actions
against brokers do not fit within the safety exemption and
outlined the harm to brokers that will flow from the decision below. But the harms go beyond just brokers. By increasing liability risk from inconsistent state common law
tort claims against brokers—claims that brokers have almost no ability to manage or guard against—the deepening circuit split threatens a huge swath of the nation’s
economy with negligible benefit to public safety.
Shipping goods by truck is essential to manufacturers,
retailers, and consumers. Most freight in the U.S. is carried by truck on some or all of its journey, and trucking is
particularly important in the states of the Sixth Circuit,
from which this decision arises. Brokers play a key role in
trucking, by connecting a shipper (the entity that has
goods to transport) with a motor carrier that wants to
transport those goods. ArcBest, Freight Brokers:
Connecting Shippers and Carriers (June 1, 2023).2 Thus,
brokers serve a critical function in the economy by finding
the most efficient way to transport goods across the country.
Brokers develop networks of motor carriers ready to
transport the goods that shippers need to move. Ibid.
Those motor carriers—the entities that are directly
https://arcb.com/blog/freight-brokers-connecting-shippers-and
-carriers
2
4
responsible for safety on the roads—are extensively regulated through a matrix of federal and state laws, which ensures the safety of the nation’s roadways. Adding in tort
liability against brokers, contrary to principles of preemption and regulatory structure, would upset the balance
that Congress struck in the FAAAA and other laws.
If brokers were meant to be subject to tort liability for
negligently selecting a carrier, then one would assume
that brokers must have a way to evaluate the relative
safety of carriers. But there is no simple, reliable way for
brokers to determine whether a particular motor carrier
presents safety concerns. Although the Federal Motor
Carrier Safety Administration (“FMCSA”) has tried to
create a database with safety information about carriers,
it is an imperfect law-enforcement tool that does not help
brokers accurately assess carriers. Thus, imposing negligence liability on brokers would not make the roads safer.
Imposing such liability would also conflict with statutory commands. Congress entrusted the task of overseeing carrier safety to the Department of Transportation
and the FMCSA. Those agencies have directly addressed
that subject through safety regulations and insurance requirements to protect against injuries caused by motor
carriers and drivers.
Saddled with the risk of tort liability for the actions of
carriers and drivers, brokers are likely to stop using
smaller carriers or new entrants that may lack a long history of safety. This will restrict an already constrained
source of trucks, drive up prices, and slow delivery. Those
downstream effects are particularly troublesome given
modern supply chains’ reliance on just-in-time delivery
with low inventories. Consumers expect rapid shipping,
and many retailers rely on “drop-shipping” to supply
goods without maintaining inventories of their own.
5
The Sixth Circuit and Ninth Circuits’ position conflicts
with a plain reading of the FAAAA’s preemption and state
safety provisions, as interpreted by this Court in several
prior decisions. If not corrected, the deepening circuit split
will inflict negative repercussions on the economy and on
consumers who rely on goods to be shipped not just to
stores, but directly to their homes. The Court should grant
the Petition and safeguard brokers’ ability to connect shippers and carriers without facing the threat of tort liability.
ARGUMENT
The decision below joins the Ninth Circuit in impermissibly expanding the plain text of the FAAAA by
holding that a “deep pocket” tort theory is in fact a safety
regulation. This deepening circuit split will have farreaching effects on the transportation of goods across the
country and therefore on the overall economy. The decision will harm manufacturers who rely on truck transportation for raw materials; retailers who rely on it to obtain
goods or to drop-ship them directly to their customers;
and ultimately, consumers who will pay more for transportation or for the goods themselves.
For all these costs, there is negligible benefit in return.
An extensive federal-state partnership already exists to
directly regulate carriers. Brokers themselves are not well
situated to make the type of safety determinations required by the Sixth Circuit’s holding, as evidenced by the
findings of regulators, legislators, and even the National
Academy of Sciences. Without a reliable way to make
safety determinations, or even a standard against which to
make them, the Sixth and Ninth Circuits have imposed a
mismatched system of liability in which trucking companies may understand and manage their risk, but brokers
may not.
6
This case presents a recurring question of great legal,
practical, and economic importance that has not been, but
should be, resolved by the Court.
I.
FREIGHT BROKERS ARE CRITICAL TO TRUCKING OPERATIONS AND TO THE ECONOMY
A. Brokers like Total Quality Logistics facilitate the
transportation of goods by truck over both short and long
distances. Trucking is the dominant mode of freight transportation in the U.S. Measured by weight, trucks
transport 72.6% of the country’s freight. Am. Trucking
Ass’n, Economics and Industry Data.3 In 2022, trucks
moved 11.4 billion tons of freight at a cost of over $940 billion. Am. Trucking Ass’n, Truck Freight and Revenues
Rise in 2022, According to Report (July 19, 2023).4 This accounted for 80.7% of the nation’s freight bill. Ibid. Truck
shipments include both short-haul deliveries (within a 150mile radius) and long-haul or over-the-road trucking (usually more than 250 miles). Chron Contributor, Short Haul
vs. Long Haul Trucking, Chron.5
More than 577,000 U.S. motor carriers own or lease at
least one tractor. Economics and Industry Data, supra n.3.
Those carriers range from large fleets to small businesses
to single-truck owner-operators. In fact, 95.5% of carriers
operate 10 or fewer trucks, and 99.6% operate 100 or fewer
trucks. Ibid. These carriers play a critical role at every
stage of the supply chain. They bring raw materials to
manufacturers. They move finished goods to warehouses
and retailers. And they deliver goods to consumers. See
Stan Mack, The Importance of the Trucking Industry,
https://www.trucking.org/economics-and-industry-data
https://www.trucking.org/news-insights/truck-freight-tonnage-and
-revenues-rise-2022-according-report
5
https://work.chron.com/short-haul-vs-long-haul-trucking-22928
.html
3
4
7
Chron. Even if other modes of transportation move an
item—a train, plane, or ship—a truck will likely also be involved on one end or the other. Ibid.; see also Am. Trucking Ass’n, When Trucks Stop, America Stops 3–4 (2015).7
Although many smaller goods are delivered to consumers by dedicated delivery services like FedEx, UPS, DHL,
or the United States Postal Service, larger items are frequently delivered by other trucking companies. John D.
Schulz, Transportation Trends and Best Practices: The
Battle for the Last Mile, Logistics Mgmt. (May 2, 2017).8
Retailers often use a drop-shipping model, which depends
on an efficient freight network. In this model, retailers—
either online or in person—do not stock inventory. Rather,
customers view the product online or as a display model in
a store. When they make a purchase, the retailer transmits the order to a third party—usually a wholesaler or
manufacturer. The product is then shipped directly to the
customer (sometimes immediately after it is manufactured, other times from inventory). See Am. Transp. Rsch.
Inst., E-Commerce Impacts on the Trucking Industry 1920 (Feb. 2019).9
B. Given the large number of trucking carriers, many
shippers engage freight brokers to help them identify carriers that will be able to transport their goods efficiently
and at a reasonable price. Freight brokers essentially
function as “matchmakers,” connecting shippers with willing and able carriers in their networks based upon the
6
https://smallbusiness.chron.com/importance-trucking-industry
-71922.html
7
https://www.trucking.org/sites/default/files/2019-12/When
%20Trucks%20Stop%20America%20Stops.pdf
8
https://www.logisticsmgmt.com/article/transportation_trends_and
_best_practices_the_battle_for_the_last_mile
9
Available for download at: https://truckingresearch.org/2019/02/e
-commerce-impacts-on-the-trucking-industry/
6
8
carriers’ schedules, routes, qualifications, and prices.
Freight Brokers: Connecting Shippers and Carriers, supra n. 2.
Once the freight broker identifies an appropriate carrier willing to carry the load for an agreed rate, the broker
typically maintains communication with the carrier regarding shipment logistics from pick-up to delivery. However, brokers are not privy to specific details of the motor
carriers’ operations (e.g., specific drivers assigned or
other related employment information). By leveraging
freight brokers’ expertise and experience with trucking
carriers, manufacturers can reduce the overhead costs associated with identifying and contracting with carriers to
transport their products. Those reduced overhead expenses are passed on to the American consumer in the
form of lower prices.
Given the central role that shipping by truck plays in
the U.S. economy and the essential function that brokers
perform in that system, any question about brokers’ potential tort liability will have a multiplier effect on manufacturers, retailers, and consumers.
II. EXISTING FEDERAL AND STATE REGULATION OF
CARRIERS—NOT TORT LIABILITY FOR BROKERS SELECTING CARRIERS—REPRESENTS THE ONLY LEGAL AND FEASIBLE WAY TO PROTECT THE NATION’S
ROADWAYS
While brokers are an essential part of the truck shipping industry, they do not physically transport goods.
They do not employ the drivers, own the trucks, or pay for
the fuel. That is done by the carriers and the operators.
Fortunately, there are extensive federal and state regulatory regimes that protect the safety of the roads.
Respondent warns that the absence of tort liability for
brokers selecting carriers would endanger roadway
safety. Br. in Opp. 14-16. But that is not so. The
9
administrative entities that oversee these federal and
state regimes are far better equipped to regulate the
safety of motor carrier operations than the private plaintiffs and lay juries that the decision below would task with
evaluating a broker’s decision to select a particular carrier
for a load.
Although brokers have extensive information about
prices, routes, and locations of truck resources and loads,
they do not have access to specific information about the
comparative safety of the carriers and drivers with which
they work. Absent unusual circumstances, brokers have
little or no ability to meaningfully improve the overall
safety of the roads by selecting one trucking company over
another. Imposing tort liability on brokers for their selection of a carrier is therefore unnecessary, unproductive,
and ultimately unfair.
A. Federal and state law work together to protect
the nation’s roadways
The FAAAA is sometimes said to have “deregulated”
the trucking industry. But although the FAAAA certainly
steers clear of governmental rate setting, it did not diminish the extensive federal safety laws that govern trucking.
See Pet. 6-7. The FAAAA also preserved state safety regulations. In sum, Congress crafted a balanced regime in
which the federal and state governments work in partnership to ensure that unsafe drivers and carriers are identified and removed from the road. Given the robust safety
system that already governs trucking, there is little to be
gained by imposing tort liability on brokers for trucking
accidents.
At the federal level, the Federal Motor Carrier Safety
Administration (“FMCSA”), a component of the U.S.
Department of Transportation, possesses primary authority to promulgate regulations governing the operation of
motor carriers. See 49 C.F.R. § 1.87. The Federal Motor
10
Carrier Safety Regulations (“FMCSR”) span over 700
pages in the Code of Federal Regulations. 49 C.F.R. parts
300–399. These rules govern everything from hours of service for drivers, 49 C.F.R. part 395, to requirements for
headlights, id. § 393.24, to brake performance, id. § 393.52,
to window construction, id. § 393.60.
While these rules apply to interstate operations, each
state must adopt the FMCSRs into its own laws for intrastate operations, meaning a violation of the federal standard is also a violation of a state standard. Id. §§ 350.105,
350.303; see also 49 U.S.C. § 31102; 49 C.F.R. § 350.201.
Thus, a truck and its driver traveling from Kentucky to
Ohio will be governed by a uniform set of standards. Either a federal FMCSA inspector or a state law-enforcement official (or regulatory official, depending on the
state) can enforce those rules and ensure trucking safety.
The system created by the Commercial Vehicle Safety
Alliance further ensures uniform enforcement. The
Alliance is a nonprofit association made up of local, state,
territorial, and federal commercial motor vehicle safety officials and industry representatives. Com. Vehicle Safety
All., About the Alliance.10 The Alliance’s “Out-of-Service
Criteria” dictate when a vehicle or driver must be removed
from service because they present an “imminent hazard”
to safety. Com. Vehicle Safety All., CVSA’s 2025 Out-ofService Criteria Now in Effect (Apr. 1, 2025).11 The Outof-Service Criteria allow inspectors in different states to
assess when a vehicle or driver presents an imminent hazard under a uniform set of guidelines.
Ohio, where this lawsuit was filed, exemplifies the comprehensive regulatory regime for trucking safety. The
state’s Public Utilities Commission has promulgated a
10
11
https://www.cvsa.org/about-cvsa/about-the-alliance/
https://cvsa.org/news/2025-oosc/
11
regulation incorporating by reference numerous FMCSR
safety provisions, including rules governing:
Drug and alcohol testing programs (49 C.F.R.
parts 40 and 382);
Commercial drivers’ license standards (49
C.F.R. part 383);
Safety and fitness determinations and procedures (49 C.F.R. part 385);
Minimum insurance coverage (49 C.F.R. part
387);
Equipment safety (including standards related
to brakes, lights, windows, fuel systems, and
tires) (49 C.F.R. part 393);
Driving safety (including standards related to
speed, use of alcohol, railroad crossings, and use
of handheld devices and texting) (49 C.F.R. part
392);
Hours-of-service limitations (49 C.F.R. part
395);
Vehicle inspections (49 C.F.R part 396); and
Transportation of hazardous materials (49
C.F.R. part 397).
Ohio Admin. Code 4901:2-5-03.
By incorporating these federal standards into state
regulations, Ohio law enforcement and regulators can enforce the federal law, conduct inspections for compliance
with federal law, and ensure that trucks meet a uniform
national standard for safe operation. David Randall
Peterman, Commercial Truck Safety: Overview, U.S.
Congressional Research Service 1 (2017).12
In Ohio, “two state agencies are responsible for enforcement of the” FMCSRs: the Public Utilities
12
https://sgp.fas.org/crs/misc/R44792.pdf
12
Commission, through its Transportation Department; and
the Department of Public Safety, through its Bureau of
Motor Vehicles division and the Ohio State Highway
Patrol. Pub. Utils. Comm. of Ohio, Commercial Vehicle
Safety Plan for Fiscal Year 2023 5 (2023).13 As part of the
state’s commercial vehicle safety plan, these agencies
wield a variety of tools to enforce the FMCSRs, including
“[c]ompliance reviews at carrier and shipper facilities,”
“[r]egistration and regulatory oversight of motor carrier
companies,” and “[d]river/vehicle inspections” during
“traffic stops” or otherwise. Ibid.
The Ohio State Highway Patrol also has authority to
pull over trucks for driving violations. Ohio Rev. Code
§ 5503.02. For example, troopers can stop truckers for
speeding or using a handheld phone while driving, which
is illegal under both state law, Ohio Rev. Code § 4511.204,
and the FMCSRs incorporated into Ohio law. 49 C.F.R.
§ 392.82.
The same is true in Oklahoma, where the accident that
gave rise to this lawsuit occurred. Oklahoma has largely
adopted the FMCSRs, Okla. Admin. Code § 595:35-1-4,
with the limited exception of minor modifications to certain insurance requirements, id. § 165:30-3-11. The
Oklahoma Highway Patrol, a division of the Oklahoma
Department of Public Safety, is tasked with enforcing the
FMCSRs. Oklahoma Commercial Vehicle Safety Plan for
Fiscal Year 2023 4 (2023).14 The Oklahoma Highway Patrol
also enforces the state’s traffic laws. Okla. Stat. tit. 47, § 2117.
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2023-09/Ohio
%20FY23%20CVSP%20Final.pdf
14
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2023-09/
Oklahoma%20FY23%20CVSP%20Final_0.pdf
13
13
B. Brokers have no reliable tools to screen carriers
While the extensive federal-state regulatory system
protects the roadways, governmental attempts at creating
a trucker-safety database have not proven nearly as successful. As a result, brokers cannot effectively evaluate the
comparative safety of different carriers or truckers. This
informational deficit renders it perverse to impose a tort
standard of care on brokers.
In allowing a tort claim to proceed, the court of appeals
relied upon information generated by the FMCSA’s
“Compliance, Safety, Accountability” (CSA) program. Respondent relies on the same information. Br. in Opp. 3. But
CSA is a law-enforcement tool used to determine when the
worst carriers should be placed out of service altogether—
and therefore entirely unavailable to brokers—or subjected to increased scrutiny, not a tool for reliably comparing the safety of different operators in most cases. Moreover, there is good reason to doubt the accuracy of the data
in that system. The Government Accountability Office,
third parties, and Congress have all raised serious concerns. As such, the CSA system cannot be used to establish the duty of care in negligence actions against brokers.
1. The CSA system is designed for law enforcement, not for brokers to evaluate carriers
The FMCSA has developed a system to aid law enforcement in identifying problematic carriers. That
system includes the CSA program, which has three core
components. First, the Safety Measurement System
(SMS) allows the FMCSA to collect data about carriers.
Second, the FMCSA uses that data to inform decisions
about how to address dangerous carriers. Third, the
FMCSA can assign a rating to a carrier pursuant to its
Safety Fitness Determination rating system, but it assigns a rating only after conducting a compliance review
or a comprehensive onsite investigation.
14
The SMS uses information from roadside inspections,
crash reports, and other investigative data to identify
high-risk motor carriers for intervention by the FMCSA
and State partners. The SMS data is organized into seven
Behavior Analysis and Safety Improvement Categories
(BASICs) that each pertain to a different attribute of
safety. FMCSA, The Safety Measurement System
(SMS).15 SMS uses the performance data to rank carriers
by percentile within each BASIC. A higher percentile indicates a higher safety risk. Ibid.
These percentile scores are used “to prioritize [carriers] for interventions.” Ibid. The FMCSA has a variety of
intervention tools at its disposal, including warning letters, roadside inspections, investigations, fines and
penalties, and even the termination of a carrier’s right to
operate.
The FMCSA can also assign a carrier one of three
safety ratings: “satisfactory,” “conditional,” or “unsatisfactory.” A carrier is identified as “unsatisfactory” when
the FMCSA determines that the carrier is unfit to continue operating. 49 C.F.R. § 385.11. If the carrier does not
make improvements, it can be placed out of service and its
operating authority revoked. Id. § 385.13.
Only a tiny fraction of carriers has a rating, however.
That is because the FMCSA assigns a rating only after a
compliance review or a comprehensive onsite investigation. FMCSA, 2023 Pocket Guide to Large Truck and Bus
Statistics 27 (Dec. 2023).16And such reviews or investigations typically follow a troubling BASIC SMS score or major event like a fatal truck crash. These are infrequent
enough that 94.4% of interstate freight carriers have no
https://csa.fmcsa.dot.gov/about/Measure
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2024-04/
FMCSA%20Pocket%20Guide%202023-FINAL%20508%20
-%20April%202024.pdf
15
16
15
rating whatsoever. Ibid. The CSA system therefore has
limited value for comparing the relative safety of carriers.
Recently, the FMCSA signaled its intention to make
modest changes to the SMS system. But these changes are
unlikely to convert the system from a law-enforcement
tool for weeding out the worst offenders into a mechanism
that brokers could confidently use to compare carriers.
The proposed revisions include changing the term
“BASICs” to “Compliance Categories” and reorganizing
the categories. See Enhanced Carrier Safety
Measurement System (SMS), 89 Fed. Reg. 91874, 9187476 (Nov. 20, 2024). The FMCSA may also convert the percentile scale to a bimodal “1 or 2” system for assessing the
severity of safety issues and prioritize recent violations
when calculating scores for the Compliance Categories.
Id. at 91877.
None of these proposed amendments will transform
the CSA system into a reliable guide for brokers. Indeed,
a comment submitted by twelve different trade groups
emphasized that the new changes would generate neither
“a significant increase in the annual number of carriers receiving safety ratings” nor “a more effective targeting of
carriers needing safety interventions by FMCSA.”
Comments from Air & Expedited Motor Carriers Association, Airforwarders Association, et al. (May 16, 2023).17 If
anything, the FMCSA’s move to a bimodal severity rating
system will only further obscure the comparative safety of
carriers.
2. Data limitations plague the CSA system,
making it unsuitable for comparing carriers
Various authorities have voiced concerns about the nature, scope, and accuracy of the data produced by the
Safety Measurement System, further militating against
17
https://www.regulations.gov/comment/FMCSA-2022-0066-0176
16
using it as a yardstick for a negligence claim. Specifically,
the Government Accountability Office (GAO), the
National Academy of Sciences, the Department of
Transportation Inspector General, and Congress have all
recognized that the FMCSA’s data tools have severe limitations that reduce their usefulness in making predictive
comparisons. As a result, while a broker would never hire
a carrier with an “unsatisfactory” rating, the system’s data
cannot be used to reliably compare the vast majority of
carriers without “unsatisfactory” ratings.
The GAO has explained that “for [the Safety
Measurement System] to be effective in identifying carriers more likely to crash, the violations that FMCSA uses
to calculate SMS scores should have a strong predictive
relationship with crashes.” U.S. Gov’t Accountability Off.,
GAO-14-114, Federal Motor Carrier Safety: Modifying
the Compliance, Safety, Accountability Program Would
Improve the Ability to Identify High Risk Carriers
(2014).18 Unfortunately, the GAO has found that “most
regulations used to calculate SMS scores are not violated
often enough to strongly associate them with crash risk for
individual carriers.” Ibid. Consequently, the GAO has observed that “[t]he relationship between violation of most
regulations FMCSA included in the SMS methodology
and crash risk is unclear, potentially limiting the effectiveness of SMS in identifying carriers that are likely to
crash.” Id. at 15.
Two years after recommending “that FMCSA revise
the SMS methodology to better account for limitations in
drawing comparisons of safety performance information
across carriers,” the GAO pointedly stated that the
“FMCSA has not implemented our recommendation.”
U.S. Gov’t Accountability Off., GAO-17-132, Motor
Carriers: Establishing System for Self-Reporting
18
https://www.gao.gov/assets/gao-14-114.pdf
17
Equipment Problems Appears Feasible, But Safety Benefits Questionable and Costs Unknown 9 (2016).19
Along the same lines, the National Academy of Sciences has declared that “much of what is now done” with
SMS “is ad hoc and based on subject-matter expertise that
has not been sufficiently empirically validated.” Nat’l
Acad. of Scis., Improving Motor Carrier Safety Measurement 3 (2017).20 The Academy urged the FMCSA to adopt
“a more statistically principled approach.” Ibid.
In 2019, the Department of Transportation Inspector
General criticized the FMCSA’s failure to implement the
data improvements recommended by the Academy. In one
report, the Inspector General observed that the FMCSA’s
“corrective action plan” failed to set out “implementation
details for improving” SMS “transparency and its assessment of carrier safety rankings” by collecting “more accurate and diverse types of data,” as recommended by the
Academy. Office of Inspector Gen., U.S. Dep’t of Transp.,
Report No. ST2019084, FMCSA’s Plan Addresses
Recommendations on Prioritizing Safety Interventions
But Lacks Implementation Details (2019) (initial capitalization omitted).21
The FMCSA’s current proposed revisions to the SMS
system again expressly reject the statistical changes recommended by the Academy. Revised Carrier Safety
Measurement System, 88 Fed. Reg. 9954-01, 9956 (Feb.
15, 2023) (“FMCSA will not replace SMS with [the] IRT
model” recommended by the Academy). Numerous commentators have criticized the FMCSA’s decision not to implement the Academy’s recommended statistical methods.
See Comments from Air & Expedited Motor Carriers
https://www.gao.gov/assets/gao-17-132.pdf
https://nap.nationalacademies.org/read/24818/chapter/2#3
21
https://www.oig.dot.gov/sites/default/files/FMCSA%20Corrective
%20Action%20Plan%20Final%20Report%5E09-25-19.pdf
19
20
18
Association, Airforwarders Association, et al., supra n.17
(expressing disappointment that the proposed changes offer “no significant correction of systemic flaws noted by
Congress, the National Academ[y] of Sciences and U.S.
DOT, including such problems as * * * data sufficiency
[and] data accuracy issues”); Comments from Truck
Safety Coalition (May 16, 2023)22 (explaining that, “[a]t a
minimum, there is a role for [the] IRT modeling” recommended by the Academy “that can run parallel to SMS”).
Congress has also flagged the inadequacy of the data
feeding the SMS system. In the Fixing America’s Surface
Transportation (FAST) Act, Congress required the
FMCSA website to provide the following warning:
Readers should not draw conclusions
about a carrier’s overall safety condition
simply based on the data displayed in this
system. Unless a motor carrier has received an UNSATISFACTORY safety
rating under part 385 of title 49, Code of
Federal Regulations, or has otherwise
been ordered to discontinue operations by
the Federal Motor Carrier Safety Administration, it is authorized to operate on the
Nation’s roadways.
FAST Act, Pub. L. 114-94, 129 Stat. 1312 (2015). This language highlights the limited value that brokers could
glean from any ratings other than the rare “unsatisfactory” rating.
In sum, the Safety Measurement System does not provide a reliable method for brokers to evaluate the safety
performance of carriers. The system therefore cannot
support imposing tort liability on brokers for selecting
particular carriers. Federal and state law already hold
22
https://www.regulations.gov/comment/FMCSA-2022-0066-0173
19
drivers and carriers responsible for their own actions in
ensuring safety. That approach allows unsafe carriers to
be removed from service, and thus made unavailable to
brokers. The Court should ensure that lower courts enforce the path chosen by Congress, rather than supplementing it with ad hoc tort litigation.
III. ALLOWING THE SPLIT TO GO UNRESOLVED WOULD
SLOW THE TRANSPORT OF GOODS, DRIVE UP
PRICES, AND HARM MANUFACTURERS, RETAILERS,
AND CONSUMERS
The centrality of trucking to the U.S. economy underscores the need for certiorari.
What is more, the importance of the Sixth Circuit, and
Ohio in particular, to national freight flows means that the
deepening split over FAAAA broker liability will have a
significant influence on American shipping. Positioned
critically at the junction of the Eastern seaboard, the
Great Lakes, and the Midwestern heartland, Ohio is a
lynchpin of American truck freight. The state originates
the third-highest number of interstate truck trips. Bureau
of Transp. Statistics, Interstate Truck Trips by Origin and
Destination.23 It ranks fourth in the number of interstate
truck trips that end in the state. Ibid. It boasts the secondhighest number of truck/rail facilities in the country.
Bureau of Transp. Statistics, Freight Intermodal
Connectors on the National Highway System by State.24
And, although only the 34th largest state, Ohio has the
sixth-highest interstate highway mileage in the country.
https://www.bts.gov/browse-statistical-products-and-data/state
-transportation-statistics/interstate-truck-trips-origin
24
https://www.bts.gov/browse-statistical-products-and-data/freight
-facts-and-figures/freight-intermodal-connectors
23
20
Federal Highway Administration, National Highway
System: FHWA Route Log and Finder List.25
If embraced nationwide, the Sixth and Ninth Circuits’
approach would subject brokers to a patchwork of different standards of care that would develop state by state,
and court by court, through jury verdicts and judicial decisions. But the circuit split set forth in the Petition already subjects brokers to a different sort of patchwork:
When goods travel through the Seventh or Eleventh
Circuits, an accident in those circuits could not impose
state tort liability on brokers in those jurisdictions. By
contrast, when goods travel through the Sixth or Ninth
Circuits, brokers will be exposed to tort liability for suits
filed within those circuits.
Without this Court’s review now, the Sixth Circuit’s
decision would have spillover effects on the movement of
freight throughout the country. Not only brokers, but also
manufacturers, carriers, retailers, and consumers, would
all suffer under the deepening circuit split.
Carriers. The trucking industry is made up of more
than half a million carriers, including Fortune 100 companies, privately held businesses, small businesses, and
owner-operators that are one-person, one-truck operations. Economics and Industry Data, supra n. 3. Indeed,
95.5 percent of active motor carriers operate 10 or fewer
trucks. Ibid. Many of these smaller carriers succumbed to
the economic pressures of the pandemic. See Karl Plume,
Truckers Hit by Coronavirus Pandemic Face Rocky Road
to Recovery, Reuters (May 14, 2020).26 The deepening circuit split on broker liability would hurt these smaller
https://www.fhwa.dot.gov/planning/national_highway_system/
interstate_highway_system/routefinder/table03.cfm/
26
https://www.reuters.com/article/business/truckers-hit-by
-coronavirus-pandemic-face-rocky-road-to-recovery
-idUSKBN22Q1J4/
25
21
carriers the most. If brokers must start ranking carriers
on perceived safety, they are likely to favor larger companies, leading to more small business failures, less competition, and higher prices.
Manufacturers & Retailers. Manufacturers rely on
brokers to facilitate truck transportation of raw materials
and component parts. Retailers rely on brokers to deliver
goods to warehouses, move those goods into stores, and
ship goods to consumers. In addition, with the advent of
drop-shipping, retailers sell goods before they are manufactured and have them delivered directly to the consumer. Since 2020, global supply chains have come under
increasing stress from a range of factors, including the
COVID-19 pandemic, trade tensions, and production delays. Knut Alicke & Tacy Foster, Supply Chains: Still
Vulnerable (Oct. 14, 2024), McKinsey & Co.27 The deepening circuit split threatens to add yet another. If brokers
have fewer trucking companies to choose from, and if they
take the logical step of building in a price premium for potential tort liability, then the price of shipping will be still
higher. Manufacturers and retailers will reap smaller
profits, unless they pass those costs on to consumers.
Consumers. American customers are already reeling
from years of record-high inflation. Hiranmayi Srinivasan,
Historical U.S. Inflation Rate by Year: 1929 to 2025 (Aug.
12, 2025), Investopedia.28 The deepening circuit split
threatens to increase retail prices even more. As the costs
of brokerage and shipping go up, prices for raw materials,
finished goods, and delivery will all increase. At the end of
the day, consumers will likely bear the brunt of these increases in the form of higher costs and longer delivery
times.
https://www.mckinsey.com/capabilities/operations/our-insights/
supply-chain-risk-survey
28
https://www.investopedia.com/inflation-rate-by-year-7253832
27
22
***
Truck freight plays an extraordinarily important role
in the U.S. economy. Although freight brokers are relatively unknown to the general public, their role in matching cargo with carriers is essential. The uncertainty
caused by the deepening circuit split will only increase the
pressure on brokers to factor tort liability into the prices
they charge for their services. This will affect manufacturers, motor carriers, retailers, and consumers. These
harms will ensue even though strong federal-state safety
systems already exist to protect the public on the roads—
systems that will not be strengthened or enhanced by broker liability. If the Court were to ignore this split now, the
costs of that decision would unfairly fall upon manufacturers, retailers, and consumers across the economy because
brokers do not have reliable mechanisms to determine the
relative safety of different carriers.
CONCLUSION
The Court should grant the Petition and reverse.
23
Respectfully submitted.
JENNIFER B. DICKEY
MATTHEW P. SAPPINGTON
U.S. CHAMBER LITIGATION
CENTER
1615 H Street, N.W.
Washington, D.C. 20062
(202) 313-8543
AARON M. STREETT
Counsel of Record
BAKER BOTTS L.L.P.
910 Louisiana Street
Houston, TX 77002
(713) 229-1234
aaron.streett@bakerbotts.com
STEPHANIE A. MARTZ
BRENTON H. COOPER
NATIONAL RETAIL
BAKER BOTTS L.L.P.
FEDERATION
700 K Street, N.W.
1101 New York Ave., N.W.
Washington, D.C. 20001
Suite 1200
(202) 639-1325
Washington, D.C. 20005
(202) 626-8100
Counsel for Amici Curiae
September 2025
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.