Flowers Foods’ SCOTUS Return: Amicus Support for Limiting the FAA Sec. 1 Arbitration Exemption
By Sasha Hill
Next month, the U.S. Supreme Court will hear oral arguments for the arbitration case Flowers Foods Inc. v. Brock, 24-935.
This case arises out of a Tenth U.S. Circuit Court of Appeals decision, which held that the Federal Arbitration Act did not apply to an agreement between one of the nation’s largest baked goods company—Flowers Foods makes Wonder Bread—and a “last-mile” driver, who delivers goods locally that originated out-of-state. See Brock v. Flowers Foods Inc., No. 23-1182 (10th Cir. Nov. 12, 2024) (available at https://bit.ly/42QO366).
For more on Flowers Foods’ successful cert petition, see Russ Bleemer, “Flowers Foods Gets Another SCOTUS Chance at Limiting the FAA Sec. 1 Arbitration Exemption,” CPR Speaks (Oct. 20, 2025) (available here), and Sasha Hill, “A Review: Supreme Court Considers Another FAA Sec. 1 Arbitration Exemption,” CPR Speaks (Sept. 22, 2025) (available here).
The issue being argued March 25 is whether workers like the respondent, 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 FAA Sec. 1 exemption from arbitration for “workers engaged in foreign or interstate commerce.”
Flowers Foods—in its second attempt to limit the breadth of the FAA Sec. 1 arbitration exemption in the nation’s top Court (for more, see below) —contends that the Tenth Circuit incorrectly exempted the respondent and other local distributors from arbitration who are not directly involved with interstate commerce.
Original plaintiff Angelo Brock counters that Flowers Foods’ argument incorrectly groups two classes of workers together—“last-mile” drivers who transport goods on the final leg of their interstate journey to their intended destination, and local rideshare or food delivery workers who transport local goods to local customers.
Over two days in December, amicus curiae supporting petitioner Flowers Foods filed 10 briefs for the Supreme Court to review and consider prior to the argument date. Below is a summary of the arguments made within each brief. On the side of the original plaintiff/Supreme Court respondent, eight amicus briefs were filed last month; CPR Speaks will review and summarize those views soon.
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Pioneer New England Legal Foundation
The first amicus brief was submitted by Pioneer New England Legal Foundation, which is a Boston-based nonprofit, nonpartisan legal research and litigation entity, whose mission is to promote balanced economic growth in New England, protect the free enterprise system, and defend economic and property rights. Their members include large and small businesses throughout New England.
The organization was formed last May, combining a three-year-old nonprofit legal research organization, PioneerLegal LLC, with the New England Legal Foundation, a 48-year-old free-enterprise business group which has been a frequent amicus participant in Supreme Court arbitration cases.
PNELF first argues that the FAA Sec. 1 exemption should be interpreted narrowly and should only apply to workers who directly transport goods across state or international borders, or who engage directly with an instrumentality of interstate commerce. Therefore, someone like Brock, who solely delivers goods locally that have already crossed state lines without his involvement, should not be included under the exemption. “Section 1’s plain language turns on what the worker does with the goods, not where the goods have been,” the brief notes.
PNELF goes on to distinguish respondents like Brock from transportation workers in Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022) (available at https://bit.ly/4tuG621), who were exempt from arbitration because the Court found a Sec. 1 textual basis supporting the notion that workers who load and unload cargo from planes in interstate travel were involved in interstate commerce--they directly engaged with the instrumentalities of interstate and foreign commerce. In contrast, Brock’s role does not include loading and unloading goods, nor is he directly engaged with the instrumentalities of interstate commerce.
PNELF goes on to contend that the Tenth Circuit erred when it improperly adopted a “continuous interstate journey” test that treats local deliveries as part of a larger interstate route–a test which does not have FAA textual support. The brief states that Sec. 1 “focuses narrowly on what each worker, acting by herself, actually does with the goods. Under § 1, a worker’s local delivery of the goods remains unchanged, whether or not she receives the goods as part of a larger business transaction connecting the out-of-state seller to the local end-purchaser.”
The brief also argues that a narrow interpretation of the FAA’s Sec. 1 exemption aligns with the statute’s “broad” pro-arbitration mandate in Sec. 2.
The brief concludes analyzing historic cases dating to 1945 to emphasize that the Tenth Circuit’s focus on the transaction was erroneous. “Section 1 focuses on the worker, not the underlying transaction,” the brief states (emphasis is in the brief).
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Coalition for Workforce Innovation
The Coalition for Workforce Innovation is a Washington, D.C.-based organization that advocates for modernized federal labor policies, while representing businesses in the media, transportation, distribution, retail and service industries. Its express interest in this case is in having clear, objective standards for interpreting and applying contracts and arbitration agreements.
Because the Tenth Circuit first examined questions around worker classification and job duties and then used those findings to conclude that the FAA did not apply to the respondent, the CWI brief states that the appeals court reversed the steps in determining whether FAA Sec. 1 applies.
The brief says that the Tenth Circuit’s process should have first decided whether the FAA applied based on the contract between the petitioner and respondent. The CWI argues that the appellate court undermined the foundational principles the FAA was founded on: (1) a broad federal policy favoring arbitration when both parties want it; (2) arbitration as a matter of contract, and (3) enforcement of arbitration agreements according to their terms.
In other words, whether the respondent falls within the FAA’s Sec. 1 transportation-worker exception is a threshold legal question that should be decided first, before going on to assess the merits of the parties’ underlying contract dispute.
The Court, the brief contends, should make clear that the analysis has two steps: first, the exception; second, the merits. If the exception does not apply, the FAA commands the merits be addressed by an arbitrator. Courts should not usurp the arbitrator’s role by conflating the two steps, the brief contends.
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Missouri, Arkansas, Texas, Montana & Alaska
The states of Missouri, Arkansas, Texas, Montana and Alaska joined forces and filed an amicus brief in support of Flowers Foods’ position in the case, seeking to protect businesses “that rely on arbitration agreements to facilitate economic activity.” They argue that the Tenth Circuit erred by exempting Brock from the FAA and arbitration because his job position is not a direct or necessary role in interstate or foreign commerce.
They also argue that FAA Sec. 1 should be interpreted narrowly and strictly according to its text, and an exemption should solely cover classes of workers who are directly involved in transporting goods across states and international borders as a core function of their job.
According to the states, Respondent Brock’s job activities were connected to interstate commerce, but were not directly involved in moving goods across borders–the latter of which the states argue is a requisite qualification exemption under the FAA.
Furthermore, they assert that a more expansive FAA Sec. 1 reading harms businesses and the states because it “would exempt millions of valid arbitration agreements” under the FAA. They reason that almost every employment contract that has any relationship to interstate commerce would be unenforceable, rendering the efficiency and lower cost benefits of arbitration out of reach for employers and states alike.
For example, a pizza delivery driver or a sandwich shop worker would be exempt under Sec. 1 because the ingredients used to make the food were involved in interstate commerce. For the states, “[w]ithout the FAA’s preemptive effect, whether an arbitration agreement is enforceable depends entirely on a State’s contract law. . . . [S]tate courts will be flooded with litigation over the enforceability of arbitration agreements.”
Thus, the states reason, the Supreme Court should reverse the Tenth Circuit’s decision to ensure uniformity of law throughout the country, and ensure that businesses are able to enforce valid arbitration agreements.
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U.S. Chamber of Commerce & five business organizations
The U.S. Chamber of Commerce is the world’s largest business federation, representing more than 300,00 direct members and more than three million businesses across every industry sector. In that capacity, it asserts a strong interest in Flower Foods v. Brock, as its members rely on the enforceability of their existing contractual agreements, which typically include arbitration clauses.
The brief starts with the argument that the Federal Arbitration Act supports a narrow and precise reading of Sec. 1 such that the exemption reaches transportation workers directly involved in transporting goods across state lines and borders. Local drivers who solely deliver goods within a state, such as the Flower Foods respondent, should not be improperly grouped within this exemption because their primary job responsibilities do not include crossing state lines nor international borders—in other words, their job duties are not directly involved with interstate commerce.
Moreover, the Chamber states that Supreme Court precedent in and Bissonnette v. LePage Bakeries Park St. LLC, 601 U.S. 246 (2024) (available at https://bit.ly/4txWaA7) (holding that the worker’s duties, not the industry definition, were the test of FAA Sec. 1 exemption applicability), and Saxon also supports a narrow reading of the FAA’s exemption standard.
In support of this narrow interpretation, the brief asserts that Sec. 1’s so-called residual clause—exempting from arbitration contracts of "any other class of workers engaged in foreign or interstate commerce”— requires that a central part of the transportation worker’s job must include direct involvement in transporting goods across state or international borders, in order to be exempt.
Indeed, citing standards set in the First, Third and Ninth Circuits, the brief argues that the Court has instructed lower courts to look at the actual work typically carried out by individuals on the job when assessing for exemption status. The Chamber maintains that the Tenth Circuit erred in classifying a local delivery driver as exempt because the decision focused on the origin and movement of the goods and the relationships within the company, rather than the actual work performed by the respondent.
Finally, the brief offers a policy argument for reversal: If the Tenth Circuit’s decision is left as is and the FAA Sec. 1 “residual clause exemption” is improperly expanded, uncertainty and chaos would certainly result—harming businesses, workers, and the courts:
[A]dopting the Tenth Circuit’s overbroad reading of the Section 1 exemption would impose real costs on businesses and workers. Not only is traditional litigation more expensive than arbitration— and takes longer to resolve—for businesses and workers alike, but the uncertainty stemming from the Tenth Circuit’s approach would engender additional expensive disputes over the enforceability of arbitration agreements with workers. Businesses would inevitably pass on these litigation expenses to consumers (in the form of higher prices) and to workers (in the form of lower compensation).
Accordingly, the Chamber urges the Supreme Court to reverse the lower court’s decision and standardize a narrow FAA interpretation under which local delivery drivers who do not themselves participate directly in interstate commerce are not deemed exempt.
The U.S. Chamber of Commerce was joined by five Washington, D.C., business organizations, all of which, like the Chamber, are frequent participants in Supreme Court arbitration cases are amicus parties. The industry associations are the Retail Litigation Center, the National Retail Federation, the National Association of Wholesaler-Distributors, the National Association Of Manufacturers, and the National Federation Of Independent Business Small Business Legal Center.
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Menzies Aviation Inc.
Menzies Aviation Inc. is based in London and is one of the world’s largest aviation services companies, providing ground-handling support, air cargo services, fuel services, and more to passenger and commercial cargo airplanes. On behalf of U.S. subsidiaries, Menzies asserts that the company has been directly impacted by “lower court’s inconsistent application and expansion of the transportation worker exemption following Saxon,” referring to that case’s holding that airline ramp supervisors who load cargo are "engaged in foreign or interstate commerce," letting them avoid contractual mandatory arbitration under the FAA "transportation workers" exemption.
That decision, the brief notes, creates uncertainty about the enforceability of arbitration agreements between employers and employees across transportation-related industries.
Menzies argues that lower courts are misapplying the FAA’s transportation-worker exemption through their use of various judge-made, nonexclusive, multi-factor balancing tests that improperly expand the exemption beyond its intended scope and in direct conflict with Supreme Court precedents in Saxon, Bissonette, and Circuit City Stores Inc. v. Adams, 532 U.S. 105 (2001) (available at https://bit.ly/4asdg9U). Thus, Menzies supports Flowers Foods’ argument that FAA Sec. 1 should be narrowly construed:
This Court should . . . reverse the judgment of the Tenth Circuit … and for all reiterate to lower courts what it means to be a “transportation worker.” . . . Transportation workers are only those classes of workers whose jobs require them to actively and directly move goods or passengers cross-border as measured by: (i) themselves frequently transporting passengers or goods on interstate vehicles across a border; (ii) frequently loading goods onto vehicles that will cross a border as part of the most immediate next part of their journey; and/or (iii) frequently unloading goods from vehicles that have crossed a border as part of the most recent part of their journey.
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DRI Center for Law and Public Policy & the Atlantic Legal Foundation
The Chicago-based DRI Center for Law and Public Policy is the research, advocacy, and public policy arm of the DRI--Association of Lawyers Defending Business, and represents 16,000 civil defense attorneys. Its mission is to defend an equitable civil justice system, protect the interests of businesses in litigation, promote an independent judiciary, and serve as the voice of the defense bar.
DRI is joined by the Atlantic Legal Foundation, of Larchmont, N.Y., a nonprofit, nonpartisan public interest law firm that aims to advance the rule of law and civil justice by advocating for individual liberty, free enterprise, property rights, limited government, and sound science in judicial proceedings. Its stated interest in this case is resolving the question of when interstate commerce ends for purposes of clarifying the enforceability of arbitration agreements.
The two organizations, longtime and frequent participants in appellate court arbitration litigation, support Flowers Foods’ position that the Tenth Circuit judgment should be reversed.
In the brief, DRI and ALF contend that the Tenth Circuit’s adoption of the “final leg of a continuous interstate journey” test was correct, however, the court applied the wrong factors, resulting in an incorrect outcome. Specifically, the brief asserts that the court improperly focused on business control elements (such as contractual controls, pricing authority, security interests, and operational oversight), instead of following the physical progression of goods in their interstate journey:
The [Tenth Circuit’s] decision below upends the structure of the FAA. Affirmance would sweep into § 1 local delivery workers across sectors—drivers who never cross state lines, negotiate sales, and operate wholly within a single metropolitan area—so long as the goods once crossed a state border and their employer manages them. This threshold inquiry is a fact-intensive merits preview at odds with the speed and predictability of the FAA.
Relying on Supreme Court precedent in Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943) (available at https://bit.ly/4aePPC7), the brief argues that the Court should use its functional test that examines the “practical continuity of movement” of the goods from their origin to their final destination, rather than who the work is done for.
Within this test, once goods have come to a stop locally—where they are unloaded, stored for extended periods, potentially re-sorted and subjected to inspection, reallocation, or sale rejection, before being delivered intrastate to their final destination—they should no longer be considered part of the interstate commerce journey for the purposes of the FAA exemption. Thus, the brief argues exemption should not include last-mile deliveries that have ceased interstate movement to ensure arbitration agreements are applied consistently and uniformly.
The brief also parsed the federal Bureau of Labor Statistics category “Driver/Sales Workers and Truck Drivers” to note that the “Truck Drivers” are separate classes of workers from the more localized “Driver/Sales Workers.” The brief notes, “Driver/sales workers do not operate interstate carriers; they distribute goods locally after those goods arrive.”
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Washington Legal Foundation
The Washington Legal Foundation (WLF) is another frequent participant in Supreme Court arbitration cases. It’s a 49-year-old Washington, D.C., nonprofit, public interest law firm and policy center focused on free markets and advocating for limited government.
WLF argues that the Tenth Circuit decision will breed litigation. FAA Sec. 1 does not apply to workers like the respondent, who are engaged solely in local, in-state delivery of goods, the WLF argues.
Moreover, the think tank asserts that if the Tenth Circuit’s decision is left standing, arbitration agreements will be less enforceable, thus increasing litigation to decide on arbitration issues and frustrating the FAA’s objective to minimize litigation.
The brief ends with the argument that the Tenth Circuit decision misinterprets Sec. 1. It says that the most accurate reading of the statute demonstrates that solely workers who are directly and regularly engaged in interstate commerce—as opposed to those whose scope of employment is loosely (but not directly) related to interstate commerce—are exempt under the FAA.
The brief explains that the Fifth and Seventh Circuits correctly apply and follow this logic in Saxon and Wallace v. Grubhub Holdings Inc., 970 F.3d 798 (7th Cir. 2020) (available at https://bit.ly/3ObMOtN) (holding that local food delivery drivers were not exempt from arbitration under FAA Sec. 1 analysis).
The brief states, “Rather than treating cases before them as a philosophy seminar on causation or as an invitation to mini-trials over ancillaries in a contract, those courts have laid down a rule of general application: did the class of workers typically and directly more the goods across state lines?”
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Independent Bakers Association & American Bakers Association
The Independent Bakers Association is a Washington, D.C.-based national trade association founded in 1968 that represents more than 200 family-owned bakeries. The American Baker’s Association was founded in 1897. It is also headquartered in Washington, and is the largest trade association for commercial baking, representing more than 350 member companies.
As organizations whose members regularly contract with independent wholesale distributors and who purchase their products and sell them to local retailers, the organizations say they have a vested interest to maintain the enforceability of the arbitration provisions within their contracts in order to solve disputes promptly and efficiently.
They argue for limiting the scope of the FAA Sec. 1 exemption and narrowly construing its applicability to transportation workers directly involved and engaged in interstate commerce. They ask for a straight red-line test: “Workers who do not typically transport goods across state lines or load or unload goods from vehicles that transport goods across state lines do not fall within the FAA’s transportation-worker exemption.”
Similar to the DRI’s argument, the brief asserts that the Tenth Circuit erred in using a multifactor test that mistakenly focused on facts demonstrating that Flowers exercised control over Brock through contracts and established business practices, which is unrelated to whether workers actually transport goods across state lines. This led the court to incorrectly conclude that the goods Brock sold and distributed were moving in a continuous interstate journey:
This misguided analysis confuses the threshold question of the FAA’s applicability with a fact-intensive, merits-like inquiry into a distributor’s business relationship with the manufacturer. It is bound to yield divergent results in different cases even within the baked-goods industry, where business arrangements vary from company to company. And the court’s analysis was wrong on its own terms, confirming its unworkable and unpredictable nature.
The brief goes on to argue that the transportation-worker exemption does not apply to the respondent because he was not “actively, directly, and necessarily engaged in moving goods across state borders. “ Just as most wholesale distributors of baked goods within the United States typically operate locally within a single state, Brock solely delivers goods locally and is only directly engaged in local commerce.
The brief ends by stating the Tenth Circuit should be reversed and that the “Court need not break new ground to reject the decision below. It need only reiterate that where, as here, a worker is not actively, directly and necessarily involved in transporting goods across borders, the worker is not a transportation worker engaged in interstate commerce within the meaning of Section 1 of the FAA.”
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Amazon.com Inc.
Amazon.com is a ubiquitous Seattle-based technology company offering products for sale through websites, apps, and physical retail locations. Through its Amazon Logistics Inc. subsidiary with independent contractor “Delivery Partners” who deliver goods from Amazon’s warehouses to its customers, often crossing state lines to do so, the company regularly relies on arbitration. As a result, Amazon has a strong interest in and “significant experience litigating, the potential application of the FAA’s interstate-transportation exemption.”
“Numerous” courts, the brief adds, have addressed the question of whether Amazon’s local drivers were exempt from arbitration because the goods they delivered emanated from interstate deliveries.
Amazon argues that the FAA exemption centers on the work performed by the class of employees, and only applies when a worker is actively and directly engaged in transporting goods across state lines—not merely because the goods themselves were moved interstate before local delivery.
In other words, courts must evaluate the specific job duties of the worker when assessing exemption status, rather than assessing the broader business of the employer or the prior journey of the goods, as the Tenth Circuit did in its holding. Citing the reasoning in Saxon and Bissonnette, the brief contends that transportation workers must be “actively engaged” in transporting goods across state lines/borders in order to be exempt. Thus, as a local delivery driver, the Tenth Circuit improperly exempted Brock from arbitration.
Moreover, Amazon asserts that nothing in the FAA’s text supports focusing on the transit history of goods when assessing whether a worker is exempt, and that the Tenth Circuit decision is not aligned with Supreme Court precedent:
Pegging the exemption to the goods’ travel history also turns the FAA’s “narrow” exemption into one that is far more “open-ended.” Bissonnette, 601 U.S. at 256 (citation omitted). . . . Helping interstate goods reach their ultimate destination does not make a class of workers actively engaged in those goods’ transportation across borders.
The brief argues that the enumerated FAA Sec. 1 exclusions from arbitration—seamen and railroad workers—support the residual exemption—"any other class of workers engaged in foreign or interstate commerce”—in concluding that “the Court should recognize the same separation between local delivery and long-distance foreign and interstate transportation that was already established by 1925.”
The brief concludes asserting that the respondent’s position “is unworkable and leads to arbitrary results,” which will negatively affect businesses that rely on contractual arbitration provisions to resolve disputes quickly and efficiently.
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California Employment Law Council
The California Employment Law Council is a nonprofit business consortium headquartered in Los Angeles that advocates for employers’ use of arbitration to resolve employment disputes..
The brief argues that the court should reconfirm the test in Bissonnette v. LePage Bakeries Park St. LLC, 601 U.S. 246 (2024) (available at https://bit.ly/4txWaA7) for assessing exemption status and reverse the Tenth Circuit.
Bissonnette, written by Chief Justice John G. Roberts Jr. for a unanimous Court, held that “A transportation worker need not work in the transportation industry to be exempt from coverage under §1 of the FAA.” In Bissonnette, defendant Flowers Foods--in its previous 2004 U.S. Supreme Court attempt to limit the reach of the FAA Sec. 1 arbitration exemption--argued that nearly all workers who load or unload goods would be exempt from arbitration by focusing on the transportation function.
“But,” the Court’s case summary notes, Section 1 “does not define the class of exempt workers in such limitless terms. Instead, as the Court held in Saxon, a transportation worker is one who is ‘actively’ ‘engaged in transportation’ of . . . goods across borders via the channels of foreign or interstate commerce.’ [Saxon,] 596 U. S., at 458 (quoting Circuit City, 532 U. S., at 121). In other words, a transportation worker ‘must at least play a direct and ‘necessary role in the free flow of goods’ across borders.’ 596 U. S. at 458 (quoting Circuit City, 532 U. S., at 121). These requirements ‘undermine[] any attempt to give the provision a sweeping, open-ended construction,’ instead limiting §1 to its appropriately ‘narrow’ scope.”
The brief asserts that “Bissonnette makes clear that the Tenth Circuit’s analysis was incorrect” because the lower court did not articulate the requirement that Brock’s role be “direct and necessary” to the movement of goods across state lines, as the test requires.
Instead, the brief notes, the decision focused on the various relationships between parties. It requests that the Court reconfirm the Bissonnette test to restore predictability and clarity to the rules that govern U.S. businesses:
The need for a clear and easily administrable test like that confirmed in Bissonnette is of particular import to CELC. . . . Members should not need lawyers (or judges for that matter) to understand whether a newly onboarded worker will be bound by an arbitration agreement, or whether he may avoid his contractual obligations by fitting with the transportation worker exemption. Multi-factored tests, like that fashioned by the Tenth Circuit, fuel litigation and make employee and employer alike uncertain whether contractual agreements on the forum for disputes will hold. And all from a statute that was intended by Congress to do the very opposite.
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The briefs discussed here are linked at the Supreme Court docket page for Flowers Foods v. Brock at the top of this post.
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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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