A Review: Supreme Court Considers Another FAA Sec. 1 Arbitration Exemption
By Sasha Hill
Next Monday, the U.S. Supreme Court will consider taking a Federal Arbitration Act Sec. 1 case on the extent of an exclusion from arbitration for a class of workers.
Flowers Foods Inc. filed the petition for certiorari, the second time in two Court terms that the company has asked the nation’s top Court for help enforcing its employment arbitration agreements.
The company says it is the nation’s second largest baked goods company and is the maker of Wonder Bread.
The Sept. 29 Supreme Court conference will cover Flowers Food Inc. v. Brock, No. 24-935. The case presents the issue of whether workers who deliver locally goods that travel in interstate commerce—but who do not transport the goods across borders nor interact with vehicles that cross borders—are transportation workers “engaged in foreign or interstate commerce” for purposes of the Federal Arbitration Act Sec. 1 exemption.
Specifically, the Section 1 language states that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.
Last year, Flowers Foods lost a similar Sec. 1 arbitration case. In that case, the company sought an industry-specific limitation for FAA Sec. 1. Because its delivery drivers were working for a bakery, not a transportation company, Flowers Foods maintained that the Sec. 1 exemption didn’t apply.
The Supreme Court disagreed. In an opinion authored by Chief Justice John G. Roberts Jr., a unanimous Court held that a transportation worker need not work in the transportation industry to be exempt from coverage under FAA Sec. 1. Bissonnette v. LePage Bakeries Park St. LLC, 601 U.S. 23 (2024) (available at https://bit.ly/4avulyl). See also Lee Willaims, “Supreme Court Expands Federal Arbitration Act Exemption from ADR,” CPR Speaks (April 12, 2024) (available at https://bit.ly/41YRmrt).
This time, the question presented is more focused on the job function and its place in interstate commerce—an issue left open by Bissonnette.
Below are summaries of the briefs submitted—three by the parties, and one joint amicus brief.
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Flowers Foods’ brief asking the Court to hear its claims contends that the Tenth U.S. Circuit Court of Appeals in the case below incorrectly exempted from arbitration under FAA Sec. 1 drivers at a local baked-goods distributor who were not “engaged in interstate commerce” and solely transported baked goods within its state.
The appellate court found for respondent Angelo Brok even though his company received those goods from interstate delivery drivers who had transported those goods through interstate commerce. The cert petition brief says the decision deepens a circuit split.
Citing Southwest Airlines v. Saxon, 596 U.S. 450 (2022) (available at https://bit.ly/3KfBsCY) and Bissonnette, which held that the statute’s exemption applies to workers involved in interstate commerce by directly transporting goods or people across state lines, petitioner Flowers Foods argues that the FAA’s Sec. 1 exemption should be narrowly construed. It says that the exemption should be applied to transportation workers, for example, as enumerated in the law, like “seamen” and “railroad employees.” It says that the two cases reserved judgment on the extent of the interstate commerce exemption, and the Court should now address that open issue.
Flowers Foods asserts that the exemption was incorrectly applied by the Tenth Circuit to Brock, a Denver Flowers Foods distributor and delivery worker who owns his own company. Flowers Foods maintains that Brock was involved in intrastate commerce rather than the exemption’s requirement of being directly involved with interstate commerce.
Flowers Foods argues this narrow Section 1 interpretation would remain consistent with the statute’s original 1925 meaning. The company’s brief notes that historically, the Court has viewed the exemption from arbitration as limited.
“Most of the products Brock delivers are shipped to the warehouse from out of state,” the cert petition brief states, “But Brock’s territory is entirely contained within the State of Colorado; he never crosses state lines to deliver Flowers products. Nor does he unload products when they arrive at the warehouse from out of state.” [Citations omitted.]
As a result, Flowers Foods seeks via its Feb. 14 cert petition to have the Tenth Circuit decision overruled and arbitration under the parties’ agreement reinstated. The brief discusses the circuit split—in addition to the Tenth Circuit, the brief argues that the First and Ninth Circuits also have wrongly expanded the FAA Sec. 1 exemption by focusing on the goods involved rather than the workers’ tasks. It argues that the Tenth Circuit opinion is wrong because it contravenes precedent and statutory text.
“[I]f [Sec.] 1 covers anyone who merely facilitates interstate transportation in some way, almost any worker could suddenly find himself excluded from arbitration,” warns the Flowers Foods cert petition brief. It adds that the Tenth, Ninth, and First Circuits’ “approach will engender the sort of protracted threshold litigation the FAA was designed to avoid by requiring courts to delve into the minutiae of supply chains and customer relationships.”
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On June 26, 2025, Brock responded to Flowers Foods’ cert petition brief asking the Court to deny the company’s request to overturn the Tenth Circuit decision.
Brock claims Flowers Food’s argument incorrectly lumps two classes of workers together: last-mile drivers–“workers who transport goods on the final leg of an interstate journey to their intended destination” –and “workers who transport goods ordered by local customers from local retail stores,” such as rideshare or food delivery workers. The former group is the one involved in Flowers Foods’ case, Brock maintains, and the class containing his job. Even though he also states that Flowers Foods treats him as an “independent businessman,” the respondent’s brief states that drivers like Brock “are not independent resellers of Flowers’ products; they are Flowers’ employees that transport Flowers’ goods to market.”
Brock argues that there is not a circuit split as Flowers Foods claims because the petition brief incorrectly lumps together the two separate classes of workers into one category, and then claims that the circuits treated these cases differently.
In reality, Brock contends, the Tenth Circuit considers last-mile truckers like himself, who transport goods from out of state on the last part of their journey, exempt and “engaged in interstate commerce” by the FAA’s ordinary meaning of the Act--while restaurant delivery workers, for example, are not exempt.
Brock then highlights the FAA’s history to demonstrate how the FAA Section 1 exemption is not limited to people physically transporting goods across borders, as Flowers Foods contends, but is more broadly applied to include workers who perform local deliveries that are on the last step in goods’ interstate journey.
The brief cites Southwest Airlines (see above), which held that the exemption should not be limited solely to workers who personally cross state lines, because that limitation has no basis in the text of the statute; it states, "therefore interstate commerce—encompassed loading goods at the start of an interstate journey and unloading them once they had reached their destination.”
Additionally, Brock also mentions Bissonnette, but he focuses on where the court rules that Section 1 exemptions focus on what the worker does, and not the employer’s industry. Brock argues that since he is a delivery driver, his role would constitute that of a transportation worker, thus making him exempt within the meaning of FAA Sec. 1.
This disagreement over how to categorize Brock’s role, in order to know how apply the law to the current scenario, is significant in the opposing views on whether the Supreme Court should hear the case. According to Brock (and the Tenth Circuit), he is a last-mile truck driver; but according to Flowers Foods, he is an independent businessman. Brock brief explains:
Flowers asks this Court . . . to decide whether “workers who deliver locally goods that travel in interstate commerce” are exempt from the Federal Arbitration Act. But that question encompasses at least two distinct questions: (1) Are last-mile truck drivers— workers who deliver goods on the last leg of an interstate journey—exempt? And (2) are workers who deliver goods from local retailers to local customers, like restaurant delivery workers, exempt? This case presents, at most, only one of those questions. But the parties dispute which.
Therefore, Brock argues, before the Court can take on the question presented, it would need to solve the factual dispute about what Brock actually does in his occupation to see if it applies. Because of this, the brief goes on to assert that this case is a poor vehicle for deciding whether last-mile drivers, or any other class of workers, are exempt from the Federal Arbitration Act; the facts, Brock claims, are simply not applicable to the questions Flowers Foods asks.
Finally, the respondent’s brief states that the Tenth Circuit’s ruling was correct in that last-mile truck drivers are no different than the seamen and railroad employees of the early twentieth century that the FAA was enacted to exempt. Brock cites cases such as Rearick v. Pennsylvania, 203 U.S. 507, 512–13 (1906) and Seaboard Air Line Ry. v. Moore, 228 U.S. 433, 435 (1913), where the courts held that truck drivers who transport goods on the last leg of the interstate journey, through intrastate travel, are “engaged in interstate commerce.” The reply brief also cites three old cases that held interstate commerce ends when the goods reach the customer.
Thus, Brock makes the argument that when the FAA was passed, Congress was aware that exempting workers who were “engaged in commerce,” would exempt last-mile transportation workers, such as Brock, as well.
The brief ends stating that Flowers Foods did not examine the ordinary meaning of the statute’s text in 1925. Rather than using evidence in the statute’s text or history, the petition appeals to policy in order to convince the Court to hear the case–concerns Brock contends are blown out of proportion and don’t make sense.
For example, “Flowers worries . . . that construing the exemption to reach last-mile truck drivers will somehow sweep in everyone from ‘pet shop employees’ to ‘grocery store clerks.’” Brock says those are not analogous roles to last-mile drivers who are transporting goods that are in interstate commerce, while the other roles “don’t transport anything.”
Thus, the brief concludes, Flowers Foods’ arguments are not compelling enough to justify the Court to hear this case.
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In Flowers Foods’ July 16 reply to Brock’s opposition-to-cert brief, the company offers four counter-arguments. First, it re-assers that the nation's appeals courts are divided on this issue. For example, the brief cites Lopez v. Cintas Corp., 47 F.4th 428, 432 (5th Cir. 2022), where the Fifth U.S. Circuit Court of Appeals held that a local delivery driver who transported goods from a local warehouse to local customers was not, in fact, “engaged in interstate commerce” under FAA Sec. 1. “Once the goods arrived at the Houston warehouse and were unloaded,” the Lopez court explained, “anyone interacting with those goods was no longer engaged in interstate commerce.” Id. at 433.
Brock also transported the baked goods only after they had arrived at a local warehouse and were unloaded–just as had happened in Lopez. Furthermore, Flowers Foods notes that the Fifth Circuit expressly acknowledged the conflicting circuit rulings.
Though Brock insists that the Fifth Circuit would consider him a “transportation worker” for purposes of Section 1 under the Fair Labor Standards Act, Flowers Foods contends that the FLSA does not inform the meaning of FAA Sec. 1.
Second, Flowers Foods asserts that the question presented is important, and points out that Brock made no attempt to say that this question is not significant because “[h]e cannot”; he instead “argues only that this Court has previously denied petitions presenting this question.”
In its third argument, Flowers Foods states that this case is an “unusually good opportunity” to answer the question presented, despite Brock's opposite contentions. Though Brock argues that Flowers Foods sees him as “restaurant-delivery worker,” rather than a “last-mile truck driver,” the facts are that he delivers goods that have traveled across state lines from local warehouses to local retailers–“the sole question is whether those facts satisfy § 1,” the reply brief states, adding:
What matters to resolving the Question Presented is the work Brock performed. And as to that issue, the relevant facts are undisputed: Brock never crossed state lines; he never loaded or unloaded goods from vehicles that traveled across state lines; and the products he carried originated from out of state. Those facts cut across each case in the split. And they tee up the Question Presented perfectly.
Finally, the last argument Flowers Foods makes is reasserting that the Tenth Circuit’s decision was wrong because it focused on the goods’ journey, rather than the worker’s role and how that fits with the meaning of FAA Sec. 1. The appellate decision ignores the statutory text that workers must be “actively” and “directly involved in transporting goods across state or international borders” for the Section 1 arbitration exemption to apply.
Furthermore, Brock asserts that seamen and railroad workers include “workers responsible for an intrastate leg of an interstate journey” under Section 1, but his primary authority, Pacific Mail S.S. Co. v. Joliffe, 69 U.S. 450 (1864), is unpersuasive as it involved a worker who offered to pilot out to sea, which would clearly then involve interstate commerce.
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A joint amicus brief was filed March 31 by frequent U.S. Supreme Court arbitration-case participants DRI Center for Law and Public Policy and the Atlantic Legal Foundation. The DRI Center for Law and Public Policy is the public policy arm of the DRI, a 65-year-old, Chicago-based defense bar association. ALF is a nearly 50-year-old national, nonprofit, public interest law firm with offices in Larchmont, N.Y., Washington, and Los Angeles. ALF’s mission is to advance the rule of law and civil justice by advocating for individual liberty, free enterprise, property rights, limited and responsible government, sound science in judicial and regulatory proceedings, and effective education, including parental rights and school choice.
The brief states that the filing was made to urge the Court to ascertain “the proper scope . . . of the FAA’s exemption for ‘contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,’” because the phrase “`engaged in commerce’ has generated inconsistent decisions across the circuits and remains unsettled.”
The brief maintains that the original exemption was narrowly cast, and creeping expansion of the Sec. 1 exemption has eroded the uniformity of FAA application. The organizations state in their argument summary that they “take no position on the ultimate outcome for the particular workers here.” But they continue:
Our concern is solely with ensuring a correct and uniform legal test. Every unwarranted expansion of § 1’s exemption undermines Congress’s goal of a uniform policy of enforcing arbitration agreements nationwide and invites the very inconsistencies the FAA was enacted to avert. Granting certiorari will protect the historical fidelity of the FAA and provide much-needed certainty to American employers and workers in virtually every sector who are parties to arbitration agreements.
The friend-of-the-Court brief argues that the Supreme Court’s past decisions also reflect that FAA Sec. 1 should be construed narrowly. In Gulf Oil Corp. v. Copp Paving Co., 330 U.S. 501 (1947), the Court held that that Copp Paving, which ran an asphalt plant and sold asphalt all within California, was not “engaged in commerce” as required by the Clayton Act.
Additionally, in United States v. American Bldg. Maint. Indus., 422 U.S. 271 (1975), the Court again interpreted “engaged in commerce” language from the Clayton Act, holding that the Benton janitorial services companies solely operated intrastate to clean offices in California, and thus were not engaging in commerce.
When considering cases where FAA Sec. 1 is at issue, Flowers Foods asserts that the Supreme Court continued to align with the narrow interpretation of the statute. For example, in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (available at https://bit.ly/4nLEBZS), the Court held that a Circuit City salesman was not exempt under FAA Sec. 1 because his sales role with goods that were manufactured overseas and then dispatched internationally to the Circuit City store was not “engaging in commerce.”
In New Prime Inc. v. Oliveira, 586 U.S. 105, 112 (2019) (available at https://bit.ly/4ngH9iI), the Court affirmed that the FAA Sec. 1 exemption applied to an interstate truck driver who was engaged in interstate commerce despite the fact that he was an independent contractor.
Finally, in Southwest Airlines Co. (see above), the Court held that airline cargo loaders who load and unload goods from airplanes traveling across state lines fall within the exemption because that class of employees is directly involved in interstate commerce.
The brief says that reading the exemption more broadly to include someone like a local bakery distributor is in direct opposition to Congress’ intent to limit the exemption to a narrow set of workers who are solely engaged in interstate commerce, while also not being aligned with the Supreme Court’s past rulings.
The amici contend that the Court should review this case to prevent further erosion of the FAA’s uniform application, to reaffirm the historically correct interpretation of FAA Sec. 1, and to establish a strong federal policy favoring arbitration, regardless of where a worker files suit. Otherwise, individuals may try to be strategic on where they bring a suit–endangering the fairness of the FAA’s application across cases–while also complicating matters for multi-state employers, who may then have arbitration agreements they can enforce on some employees, but not others. “The FAA was intended to preclude such inconsistency and to make arbitration agreements reliably enforceable except in the narrow instances Congress excluded,” the DRI and ALF note.
The amicus brief concludes by asserting that this issue is “exceptionally important” because it covers millions of transportation workers. It is also important for businesses to know how to apply this rule when assessing the enforceability of class-action waivers and other contract provisions tied to arbitration clauses.
Businesses need clarity on this point when deciding whether to invest in nationwide arbitration programs. Workers, too, deserve to know their rights: a true transportation worker should understand if he or she is entitled to pursue remedies in court notwithstanding an arbitration agreement, whereas a non-transportation worker should know that his or her arbitration agreement will be honored.
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Flowers Foods is one of three arbitration cases slated for the so-called Sept. 29 Supreme Court “long conference” that will assess matters in which certiorari could be granted and then heard in the new 2025-2026 Court term, which will begin a week later. (For more, see Amy Howe, “What is the Supreme Court’s long conference?” Scotusblog (Aug. 11) (available at http://bit.ly/4nHjyYf).) CPR Speaks last week posted about a high-profile mass arbitration case seeking a Washington, D.C., hearing. Bryan Ward, “A Review: The Scotus Papers in Live Nation v. Heckman, CPR Speaks (Updated 9/19) (Sept. 17) (available here). Watch for CPR Speaks details soon on the third case, Mungo Homes LLC v. Huskins, No. 24-1092.
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The author is the CPR Institute’s 2025-2026 academic year intern from the Howard University School of Law ADR Program, where she is a second-year student in Washington, D.C.
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