# Amicus Curiae Brief — New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) (No. 17-340) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0780%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2019 ## Text No. 17-340 In The Supreme Court of the Anited States oe ¥ NEW PRIME, INC., Petitioner, v. DOMINIC OLIVEIRA, Respondent. . - On Writ Of Certiorari To The United States Court Of Appeals For The First Circuit = - BRIEF OF THE OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC. AS AMICUS CURIAE IN SUPPORT OF RESPONDENT * ¥ PAUL D. CULLEN, SR. PAUL D. CULLEN, JR.* THE CULLEN LAW Firm, PLLC 1101 30th Street NW, Suite 300 *Counsel of Record Drivers Association, Inc. COCKLE LEGAL BRIEFS (800) 225-6964 WWW COCKLELEGALBRIEFS COM i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...............c0c00ceceseseeeeee0s ii IDENTITY AND INTEREST OF AMICUS CURIAE I censioiouabanant 1 SUMMARY OF THE ARGUMENT ..................... 2 acl A CONGRESS HAS REGULATED THE CONTRAC- TUAL RELATIONSHIPS OF MOTOR CARRI- ERS AND OWNER-OPERATORS SINCE THE A. Congress and The ICC First Mandated Motor Carrier Control of and Responsibil- ity for Owner-Operators .................0:0000c000 5 B. The Expansion of The Leasing Rules to Address Motor Carrier Exploitation of OD cntesncnncesnececiansssienmemennesnses 7 C. The Provisions in Federal Law For Motor Carrier/Owner-Operator Dispute Resolu- 1. Pre-1995 Enforcement of Owner-Operator Complaints by the ICC......................... 10 2. The ICC Termination Act Granted a Specific Private Right of Action in Fed- LNT SE i ES ore a 12 i ssccnccsscuccsrmccoscssreesovsssensenceeoenseseunes 17 il TABLE OF AUTHORITIES Page CASES Alford v. Major, 470 F.2d 132 (7th Cir. 1972)............... 5 Am. Trucking Ass’ns, Inc. v. United States, 344 BIT cscs cen coninictbatinintginiinenanenenstdadiomnibitmedesionerse 5 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 STI thcecc hide chaiaseireeride cidade da inaesataiapenenaneneed 4 Gagnon v. Serv. Trucking Inc., 266 F. Supp. 2d ee eis SN icecnssiensccescseusevensenossnenenenscanccces 15 Global Van Lines v. Interstate Commerce Comm'n, GER ee Oe Ge GI BID ceccccccccccscececccccoccccssese 7,9 Interstate Commerce Comm’n v. All-American, Inc., 505 F.2d 1360 (7th Cir. 1974) ...0.......:ccccccceeeees 11 Interstate Commerce Comm'n v. Am. Trucking Ass’ns, Inc. , 467 U.S. 354 (1984)..........ccccccceeceeeeeeeees 12 Interstate Commerce Comm’n v. Transcon Lines, aos cctcsinsicsnmsininndeneseestnes 12 Morton v. Mancari, 417 U.S. 535 (1974).................... 16 Owner-Operator Indep. Drivers Ass'n, Inc. v. CR. England, Inc., 325 F. Supp. 2d 1252 (D. Utah uiiiisiaidnintocitnesnickatapenmienlenedinaigaiamtapnistiaiiciedasibemees 14 Owner-Operator Indep. Drivers Ass’n, Inc. v. Land- star Sys., Inc., No. 3:02-CV-1005-J-25HTS, 2003 WL 23941713 (M.D. Fla. September 30, 2003) ......15 Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 192 F.3d 778 (8th Cir. 1999) ......... 03, 18 Owner-Operator Indep. Drivers Ass'n, Inc. v. New Prime, Inc., 398 F.3d 1067 (8th Cir. 2005) ........ 13, 14 TABLE OF AUTHORITIES — Continued Page Owner-Operator Indep. Drivers Ass’n, Inc. v. United Van Lines, LLC, 556 F.3d 690 (8th Cir. 2009) ........ 13 Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006 GE HEED vnnccossasucncinnsntinniccniiatniidtinntaametaniaiininteiasall 9 Ruckelshaus v. Monsanto Co., 467 U.S. 986 Cie havbinnteccnncsncendsenieavecvicenindisiauannssnbiduimnbinseeedians 16 S. Pac. Transp. Co. v. Commercial Metals Co., 456 Se EID cornsnstucbestscnntithiasteiiapdinsinniitieiaianetiaamde 11 Shaw Warehouse Co. v. S. R. Co., 308 1.C.C. 609 [eerie insesinctsiasenrtconsincsunsespisbidasesterndandiaticltaatetiddiepadais 11 Transamerican Freight Lines, Inc. v. Brada Mil- ler Freight Sys., Inc., 423 U.S. 28 (1975)................0. 5 Westfield Ins. Co. v. Hanover Ins. Co., 9 F.3d 656 SPINE Dai itte ccemscicnenitinisicniiiginacnipaniiltanssiiieighieeaeltinita etnias) ) White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir. SIDIITED ciinsisinaietaniniicanctenssnnastiisediuleaiiinimminmadidiataticctl 5 Zola v. Interstate Commerce Comm'n, 889 F.2d Ce ecerscscssnicdancnionsclicebdesvsiiiatediianiime’ 12 STATUTES Ee BP winwieiccssintehtscntintninbaieniiaitemusitadindniietaneaane 2 ae NG Oe I secessicnestnaninicssccntinssecicnitninisea ianinitieatdanacetiaeaaaias 13 49 U.S.C. §§ 16(8), 11901(a) (1976 ed., Supp. IID) ....... 12 Ss ee coiitcintniitittincisiepiditepaiisaiiinabianiieeiiaiioaad 11 49 U.S.C. § 11701(a) (1906) ..............ccccccserercrcereseserers 11 4D TERA. © BERR CRD crcsverecccecsccesseinsvinnssneinniiais 11 iv TABLE OF AUTHORITIES — Continued Page Ec ee 1 EE 1, 2,13 I 2, 3, 10, 13 Ee ee 13 TE 13, 14 REGULATIONS CEE 1,7 ee 7 a 13 ina ae sein ceeaneeemanenenintanstiin 7 Te 6 nin srirsinrerenenniinnentineannmnnatived i) OTHER AUTHORITIES Amendments to the Interstate Commerce Act, EE ee 5 H.R. Rep. No. 84-2425 (1966) ...............cccccccccceeeceeeeeeeeee 5 ICC Termination Act of 1995, Pub. L. No. 104-88....... 10 Lease and Interchange of Vehicles, 43 Fed. Reg. A 8 Lease and Interchange of Vehicles, 129 M.C.C. EE ae 7 Lease and Interchange of Vehicles, 131 M.C.C. IE brictnctantininentesimmmumntennensacnn 7, 8,9 Vv TABLE OF AUTHORITIES — Continued Page Motor Carrier Transportation; Redesignation of Regulations From the Surface Transportation Board Pursuant to the ICC Termination Act of 1995, 61 Fed. Reg. 54706 (October 21, 1996)............ 7 Study of Interstate Commerce Commission Reg- Reform Act of 1994, 1994 WL 639986 (October BB, BOD wcccescscnseseccsvsrssvesnsnncancenstneaseonsnnsesmmensenstsesses 11 1 IDENTITY AND INTEREST OF AMICUS CURIAE OOIDA' The Owner-Operator Independent Drivers Associ- ation, Inc. (“OOITDA”) is a not-for-profit corporation in- corporated in 1973 under the laws of the State of Missouri, with its principal place of business in Grain Valley, Missouri. OOIDA is the largest international trade association representing the interests of inde- pendent owner-operators, small-business motor carri- ers, and professional drivers. More than 160,000 members of OOIDA are professional drivers and small businessmen and women located in all 50 states and Canada. “Owner-operator” is the term for an individual who owns a commercial motor vehicle (“CMV”) and leases that CMV and his or her driving services to a motor carrier under rules authorized under 49 U.S.C. § 14102 and promulgated at 49 C.F.R. Part 376 (the “Truth-in-Leasing” rules). Motor carriers, such as New Prime, Inc., are companies who are authorized and reg- istered by the federal government to operate commer- cial motor vehicles in interstate commerce. 49 U.S.C. § 13902. The question of whether or not the contracts of owner-operators are subject to the Federal Arbitration ' No party’s counsel authored this brief in whole or in part. No party, party’s counsel, or person — other than the amicus cu- riae — contributed money intended to fund the preparing or sub- mitting of this brief. Counsel for both parties have consented to the filing of this brief. 2 Act (“FAA”) will determine whether or not owner-oper- ators will continue to have any meaningful oppor- tunity to protect their small businesses from the type of predatory behavior described in Mr. Oliveira’s brief. Congress and federal motor carrier regulators’ concern for these issues are the reasons the Truth-in-Leasing rules were promulgated. Especially important is the right to bring an action in federal court for damages and injunctive relief specifically granted to owner- operators by Congress in 1995. 49 U.S.C. §§ 14102, 14704. a) SUMMARY OF THE ARGUMENT OOIDA submits this brief as amicus curiae to in- form the court how owner-operator truck drivers are a class of workers engaged in interstate commerce, and how their lease agreements with motor carriers, such as New Prime, Inc., are contracts of employment, as set out in the FAA exemption found at 9 U.S.C. § 1. Con- gress looked to two factors when it formed the scope of Section 1 of the FAA: the maintenance of a smooth the contracts of transportation workers. In the 1950s Congress authorized the Interstate Commerce Com- mission (“ICC”) to promulgate rules requiring motor carriers, such as New Prime, Inc., to assume responsi- bility and control over the operations of their owner- operators. Motor carriers are also required to obtain public liability insurance for their owner-operator op- erations, as if their owner-operators were the carriers’ 3 own trucks and employee drivers. Later, the ICC prom- ulgated additional rules under this regulatory scheme to protect owner-operators from being exploited by mo- tor carriers. The newer rules established standards for the contracts presented by motor carriers to owner-op- erators and for the conduct of motor carriers under those contracts. These statutes and rules support the economic stability and safety performance of the par- ticipants in the motor carrier industry and, therefore, promote the smooth flow of goods in interstate com- merce. Also, consistent with Congress’ intention to ex- clude contracts of employment of workers engaged in interstate commerce from the FAA, Congress specifi- cally provided for the means of resolving owner-opera- tor/motor carrier disputes by statute. Originally, the ICC was charged with adjudication of such disputes. Once the ICC was terminated in 1995, Congress granted owner-operators a private right of action in federal courts to adjudicate those rights and seek dam- ages and injunctive relief. See 49 U.S.C. § 14704, and Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 192 F.3d 778, 785 (8th Cir. 1999). This legislative and regulatory history demon- strates that motor carrier/owner-operator contracts are among the contracts Congress exempted in Section 1 of the FAA. 4 But even if the Court believes that the FAA ex- emption may not have originally contemplated con- tracts such as those between motor carriers and owner- operators, Congress’ grant of a private right of action in federal court was a de facto expansion of the FAA exemption, providing owner-operators the right to go to court to resolve disputes with motor carriers. , a ARGUMENT CONGRESS HAS REGULATED THE CONTRAC- TUAL RELATIONSHIPS OF MOTOR CARRIERS AND OWNER-OPERATORS SINCE THE 1950S Congress relied upon two factors to form the scope of Section 1 of the FAA: the maintenance of a smooth operating transportation system and Congressional concerns for enacting specific regulations governing the contracts of transportation workers (as detailed in Respondent’s brief). In holding that the FAA exemp- tion applies to “transportation workers,” the Court has held that it was “rational for Congress to ensure that workers in general would be covered by the provisions of the FAA, while reserving for itself more specific leg- islation for those engaged in transportation.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). For motor carrier transportation, Congress and several federal regulatory agencies acted upon those concerns by establishing requirements for leasing agreements (the contracts) between motor carriers and owner-operators and by providing administrative and 5 then statutory schemes for resolving disputes that arise under those leasing agreements. A. Congress and The ICC First Mandated Mo- tor Carrier Control of and Responsibility for Owner-Operators The federal government's oversight of owner- operator/motor carrier contracts began when Congress required motor carriers operating with federal author- ity to assume responsibility for the safe ope: ution of owner-operators with whom they contract. Congress responded to agency and congressional findings that motor carriers had attempted to immunize themselves from the negligence of the drivers who operated their own vehicles by making them all nominally “independ- ent contractors.” See Amendments to the Interstate Commerce Act, Pub. L. No. 84-957; H.R. Rep. No. 84- 2425, reprinted in 1956 U.S.C.C_A.N. 4304, 4309; see also White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th Cir. 1979) (citing Transamerican Freight Lines, Inc. v. Brada Miller Freight Sys., Inc., 423 U.S. 28 (1975)); Am. Trucking Ass’ns, Inc. v. United States, 344 U.S. 298, (1953); Alford v. Major, 470 F.2d 132 (7th Cir. 1972). Because the financial condition of owner-operators was such that injured members of the public were not able to recover in legal actions against them, Congress as- signed public liability and the responsibility for insur- ance to motor carriers. Amendments to the Interstate Commerce Act, Pub. L. No. 84-957; H.R. Rep. No. 84- 2425, reprinted in 1956 U.S.C.C.A.N. 4304, 4309. 6 Congress imposed those requirements upon motor carriers by authorizing the ICC to promulgate “regula- tions as may be reasonably necessary to assure that motor carriers will have full direction and control of vehicles while they are being used under such leases, and will be fully responsible for the operation thereof in accordance with applicable law and regulation, as if they were the owners of the vehicles,” including com- pliance with all safety rules. Jd. The ICC thereafter promulgated rules which stated, in part: “The lease shall provide that the au- thorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the au- thorized carrier lessee shall assume complete respon- sibility for the operation of the equipment for the duration of the lease.” 49 C.F_.R. § 376.12(c)(1). Congress’ mandate over motor carrier/owner- operator leasing agreements illustrates how it consid- ered and treated such agreements as falling within the FAA exemption. This statute and the rules directing motor carriers to assume responsibility and control over owner-operators in their lease agreements were intended to promote a safer and more stable motor car- rier industry, thereby ensuring the smoother flow of goods. 7 B. The Expansion of The Leasing Rules to Ad- dress Motor Carrier Exploitation of Owner- Operators The leasing rules were amended significantly by the ICC in 1979 and have existed without material change since then. Lease and Interchange of Vehicles, 131 M.C.C. 141 (January 9, 1979); 49 C_F.R. Part 376.’ In promulgating these regulations, the ICC responded to a well-documented and longstanding history of abuses by motor carriers of owner-operators in their lease/contract relationship. Global Van Lines v. Inter- state Commerce Comm’n, 627 F.2d 546, 548 (D.C. Cir. 1980). These amendments, which have become known as the “Truth-in-Leasing Rules,” were intended to achieve “full disclosure of the benefits and obligations of leasing arrangements between owner-operators and regulated carriers.” Lease and Interchange of Vehicles, 129 M.C.C. 700, 702 (June 13, 1978). Specific provi- sions are required to be included in the written lease, such as specifying owner-operator compensation, pro- hibiting motor carriers from forcing owner-operators to purchase goods and services from the carrier as a con- dition for entering the lease, and disclosing the type and amount of any charge-backs the motor carrier may deduct from an owner-operator’s compensation during the term of the lease. See 49 C.F_R. § 376.12. To impart the importance of these rules to motor carriers, the ? In 1996, the regulations were redesignated from 49 C.F.R. Part 1057 to Part 376 without substantive change. See 61 Fed. Reg. 54706, 54707 (October 21, 1996). 8 ICC required that those provisions “shall be adhered to and performed by the authorized carrier.” Jd. Particularly pertinent to the FAA transportation exemption, the ICC’s stated purposes for these regula- tions were: (1) to simplify existing and new regulations and to write them in understandable English; (2) to promote truth-in-leasing — a full disclo- sure between the carrier and the owner-oper- ator of the elements, obligations, and benefits of leasing contracts signed by both parties; (3) to eliminate or reduce opportunities for skimming and other illegal or inequitable practices; and (4) to promote the stability and economic welfare of the independent trucker segment of the motor carrier in- dustry. Lease & Interchange of Vehicles, 131 M.C.C. 141 (Jan- uary 9, 1979) (emphasis added). When commenting on the proposed rules, ICC Chairman O’Neal observed: My concern is that because they like to eat, owner-operators will continue to find it neces- sary to enter into contracts with carriers they would like to avoid... . The difficulty is that one owner-operator by himself will have very little chance of bargaining any changes in any contract. His option will be take it or leave it. Lease and Interchange of Vehicles, 43 Fed. Reg. 29812, 29813 (July 11, 1978). S The regulation of the contractual relationship be- tween motor carriers and owner-operators underscores Congress’ concern about this particular group of inter- state transportation workers and their necessary role in the free flow of goods. See Lease and Interchange of Vehicles, 131 M.C.C. 141, 143-44 (January 9, 1979); Global Van Lines v. Interstate Commerce Comm’n, 627 F. 2d 546, 550-51 (D.C. Cir. 1980). These rules protect owner-operators and benefit the public: “Since only the carrier has ICC authority, it is not permitted to delegate it, abrogate it, or evade the responsibilities imposed on it by means of a contrac- tual device, for there are basic requirements that are inherent in the relationship of the carrier for hire with operating authority to the public. . . . [T]hus, responsi- bility to the public under the leasing device is fixed.” Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ind. 1986) (citations omitted). As the Seventh Circuit noted in a review of Section 376.12(j)(1), the point of the leas- ing regulations “is to remove from the domain of pri- vate choice the terms on which [those with federal operating authority] may do business.” Westfield Ins. Co. v. Hanover Ins. Co., 9 F.3d 656, 657 (7th Cir. 1993). The immutability of the rights of owner-operators and the duties of motor carriers under these rules is pre- cisely the type of public policy choice that Congress in- tended to remove from private discretion and preserve for itself under the FAA Section 1 exemption. Contracts by regulated carriers employing owner-operators to transport goods in interstate commerce are thus 10 squarely within the exemption of Section 1 to the FAA applicable to “transportation workers.” That policy is further bolstered by the history of the government’s direction of the resolution of owner- operator and motor carrier disputes, which New Prime, Inc. attempts to avoid by requiring its drivers to accept an arbitration clause in its contracts. C. The Provisions in Federal Law For Motor Carrier/Owner-Operator Dispute Resolution Consistent with Congress’ intent to reserve from the FAA the resolution of owner-operator/motor carrier disputes, federal law has long provided for the resolu- tion of contractual disputes between owner-operators and motor carriers. Originally, the ICC resolved dis- putes between owner-operators and motor carriers through enforcement proceedings. Then, when, Con- gress passed the ICC Termination Act (“ICCTA”), Pub. L. No. 104-88, 89 Stat. 26 (December 29, 1995), it granted owner-operators a private right of action in federal court to resolve these disputes. 49 U.S.C. § 14704. 1. Pre-1995 Resolution of Owner-Operator Complaints by the ICC Prior to the 1995 enactment of the ICCTA, the ICC regulated economic and market rules for motor carri- ers. The ICC held plenary authority over enforcement of the Truth-in-Leasing regulations, including the au- thority to seek court enforcement of a motor carrier’s 11 obligation to safeguard, account for, pay interest on, and eventually return escrow funds. The ICC could “begin an investigation lof a violation of the leasing regulations] on its own authority or on a complaint.” 49 U.S.C. §11701(a) (1995). Owner-operators could bring such a complaint under the authority of 49 U.S.C. § 11701(b) (1995). As noted by the ICC: Carrier leasing practices are investigated based on patterns of complaints and other in- formation received or developed by the Com- mission’s field staff and through compliance surveys. The Commission takes enforcement action to ensure compliance with the leasing regulations. For example, the Commission seeks injunctions against carriers that fail to make payments to owner-operators. Interstate Commerce Commission, Study of Interstate Commerce Commission Regulatory Responsibilities Pursuant to Section 210(a) of the Trucking Industry Regulatory Reform Act of 1994, 1994 WL 639996, at *53 (October 25, 1994). The ICC had broad authority to enforce its regula- tions, including the Truth-in-Leasing regulations, un- der 49 U.S.C. §§ 11701, et seg. (1995). See S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 349-50 (1982). This authority included the power to issue a cease-and- desist order, Shaw Warehouse Co. v. S. R. Co., 308 1.C.C. 609, 633-634, 637 (1959), to seek a federal court injunc- tion requiring a carrier to comply with its regulations, Interstate Commerce Comm’n v. All-American, Inc. , 505 F.2d 1360 (7th Cir. 1974), and to bring suit for civil 12 forfeiture, 49 U.S.C. §§ 16(8), 11901(a) (1976 ed., Supp. IID), for each knowing violation of an order of the Com- mission. This Court noted that “(t]he Commission’s au- thority under the Interstate Commerce Act [wal]s not bounded by the powers expressly enumerated in the Act.” Interstate Commerce Comm’n v. Am. Trucking Ass’ns, Inc., 467 U.S. 354, 365 (1984). Instead, the ICC could fashion any number of remedies so long as they were “legitimate, reasonable, and directly adjunct to the Commission’s explicit statutory power.” Jd.; Inter- state Commerce Comm’n v. Transcon Lines, 513 U.S. 138, 145 (1995). These broad, undefined remedies were authorized out of the recognition that Congress could not be expected to anticipate “every evil sought to be corrected” by the ICC and that “the absence of express remedial authority should not force the Commission to sit idly by and wink at practices that lead to violations of ICA provisions.” Am. Trucking, 467 U.S. at 371; see also Zola v. Interstate Commerce Comm’n, 889 F.2d 508, 516 (3d Cir. 1989) (holding that “t]he Commis- sion’s discretionary remedial powers are not limited to the rate-making area”). OOIDA is unaware of any mo- tor carrier ever invoking the FAA and an arbitration clause in an owner-operator contract to try to deprive the ICC of its dispute resolution jurisdiction. 2. The ICC Termination Act Granted a Spe- cific Private Right of Action in Federal Court Congress terminated the ICC as a federal agency by passing ICCTA. Congress transferred several areas sd of the ICC’s authority and functions (including its ju- risdiction over the Truth-in-Leasing regulations) to the U.S. Department of Transportation (“DOT”). See 49 U.S.C. § 14102. Within the DOT, responsibility over the Truth-in-Leasing regulations now resides with the Federal Motor Carrier Safety Administration. 49 C.F.R. § 1.87(a)(6), (8). The ICCTA provision codified at 49 U.S.C. § 14704(a) expressly authorizes private ac- tions for damages and injunctive relief to remedy vio- lations of that section of the Motor Carrier Act and its implementing regulations. This private right of action was first recognized by the courts in litigation between OOIDA and New Prime, Inc.: Owner-Operator Indep. Drivers Ass'n, Inc. v. New Prime, Inc. , 192 F.3d 778, 785 (8th Cir. 1999). The courts have further recognized that the fed- eral default four-year statute of limitations under 28 U.S.C. § 1658 applies to actions under 49 USC. § 14704. Owner-Operator Indep. Drivers Ass’n, Inc. v. United Van Lines, LLC, 556 F.3d 690, 696 (8th Cir. 2009), and under the American Rule, prevailing plain- tiff owner-operators, but not prevailing motor carrier defendants, have a right to recover reasonable attor- neys fees under 49 U.S.C. § 14704(e). Owner-Operator Indep. Drivers Ass'n, Inc. v. New Prime, Inc., 398 F.3d 1067, 1071 (8th Cir. 2005). In rejecting New Prime, Inc.’s assertion that it was entitled to attorneys fees, the Eighth Circuit observed: The right to enforce privately the Truth in Leasing regulations, a right which this court recognized in Prime I, would be severely 14 chilled if we were to adopt Prime’s interpreta- tion of § 14704(e). Claims of independent owner operators may often be for a relatively small amount of damages. The class action complaint filed in this action, for example, alleged that each prospective class member had deposited approximately $1,000—$20,000 with Prime under the disputed contract terms that established reserve funds and a security deposit. This shows that the potential rewards are already low, and increasing the risks by imposing attorney fees on owner operators who do not prevail would discourage them from pursuing their claims in court. Absent any evidence to the contrary, we do not con- clude that Congress established a private remedy and simultaneously created a unique and formidable barrier to its attainment. Id. Similarly, here, New Prime, Inc.'s effort to apply the FAA to owner-operator contracts would create another formidable barrier, effectively denying owner-opera- tors the private remedy in federal court granted by Congress. Several federal courts have held that motor carri- ers lease contracts with owner-operators fall into the FAA exemption: See Owner-Operator Indep. Drivers Ass’n, Inc. v. CR. England, Inc., 325 F. Supp. 2d 1252, 1257 (D. Utah 2004) (“It is clear that Plaintiffs, as per- sons who, pursuant to the Operating Agreements at is- sue, actually move items in interstate commerce, are in a class of workers engaged in interstate commerce, or are transportation workers, within the meaning of 15 the exemption.”); Owner-Operator Indep. Drivers Ass'n, Inc. v. Landstar Sys., Inc., No. 3:02-CV-1005-J-25HTS, 2003 WL 23941713, at *2 (M.D. Fla. September 30, 2003) (“[Bly operation of federal law the individual Plaintiffs and Defendants have an employee-employer relationship.”); Gagnon v. Serv. Trucking Inc., 266 F. Supp. 2d 1361, 1364 (M.D. Fla. 2003), vacated pur- suant to settlement, No. 5:02-CV-342-OC-10GRJ, 2004 WL 290743 (M.D. Fla. February 3, 2004) (“The Court agrees that the Plaintiff — and the other putative class members, all of whom are truck drivers — fall within the definition of ‘workers engaged in interstate com- merce.””). The ICC’s former expansive authority to resolve complaints of owner-operators against motor carriers and the current private right of action express the pur- pose of the FAA exemption: to ensure that conflicts re- lated to persons engaged in interstate commerce are resolved in ways that best fulfill public policy interests. If the FAA applied to motor carrier/owner-operator contracts, then motor carriers’ imposition of an arbitra- ment of rules created to protect the public’s interest in a stable, reliable transportation system. The public would not be protected from an owner-operator who was forced to drive a thousand miles in one week with- out being paid, damaging that driver's economic stabil- ity, health, safety, and ability to operate within federal law and meet all of his economic obligations to his mo- tor carrier, the maintenance of his truck and business, and his family’s needs at home. 16 The FAA exemption applies to whole classes of contracts of employment of persons engaged in inter- state or international commerce. The exemption was not written to expand and contract to the extent the federal government chooses to regulate such contracts. Common law distinctions between “employees” and “in- dependent contractors” were not of concern to Congress in drafting the FAA exemption. The Court need not de- termine whether New Prime, Inc.’s labeling of Mr. Oliveira as an independent contractor was accurate. Both employees and independent contractors, such as owner-operators, fall within the FAA exemption. Even if the court were to find that owner-operator contracts were not the type of contract contemplated by the FAA exemption, the subsequent Congressional! grant of a private right of action to owner-operators for damages and injunctive relief must be harmonized with whatever the FAA exemption may have existed previously. “Where there is no clear intention other- wise, a specific statute will not be controlled or nulli- fied by a general one, regardless of the priority of enactment. The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional! intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (cita- tions omitted), cited with approval by Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984). By requir- ing an arbitration clause in owner-operator contracts, 17 motor carriers would defeat the unmistakable public policy choice of Congress in ICCTA to preserve the remedy to seek damages and injunctive relief in court available previously through the ICC. This statute con- tinues Congress’ intent to protect drivers from coercive contracts and behavior by motor carriers, and ensures the public benefits from a stable and smooth transpor- tation system. ° CONCLUSION The Congress and federal agencies’ historical over- sight and regulation of motor carrier/owner-operator contracts, and their provision of different procedures and forums to resolve disputes under those contracts demonstrate precisely the type of contract for employ- ment of persons engaged in interstate commerce that Congress intended to exempt from the FAA. These statutes and rules ensure a stable transportation in- dustry by requiring motor carriers to take responsibil- ity for the safe operation of owner-operators, requiring motor carriers to use and comply with owner-operator contract provisions that remedy the historical ways that motor carriers have exploited owner-operators, and giving owner-operators the right to go to federal court to resolve disputes under those contracts. These requirements ensure that owner-operators are directed by motor carriers to operate safely and that they have the economic predictability and stability to do so. A de- passage of the FAA that motor carrier/owner-operator 18 contracts are not exempted from the FAA would erect such a burden (similar to the Eighth Circuit's observa- tion quoted above) that it would effectively defeat an owner-operator’s ability to enforce his or her rights, and therefore frustrate the public policy choices of Congress and the regulating agencies. Respectfully submitted, Pau. D. CULLEN, Sr. Pau. D. CULLEN, JR. THe CULLEN LAw Firm, PLLC 1101 30th Street NW, Suite 300 Washington, DC 20007 (202) 944-8600 PDC@cullenlaw.com PXC@cullenlaw.com Counsel for Amicus Curiae Owner-Operator Independent Drivers Association, Inc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0780%3A22. Public record. Not legal advice.