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

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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.

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