Domino’s delivery drivers challenge arbitration clauses after Southwest Airlines ruling

Petitions of the week
A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Over the past four decades, the Supreme Court has issued a long string of decisions interpreting the Federal Arbitration Act to provide extensive protection for arbitration agreements. This term, however, was more of a mixed bag. Although the court issued a number of opinions that were pro-arbitration, it also wrote two that cut against the common business practice. In Southwest Airlines v. Saxon, the court ruled that the airline could not force the supervisor of a ramp for loading cargo onto its airplanes into arbitration under the FAA because the act exempts any “class of workers engaged in foreign or interstate commerce.” This week, we highlight cert petitions that ask the court to consider, among other things, whether delivery drivers for Domino’s Pizza are also “workers engaged in … interstate commerce.”

The pizza that Domino’s delivers to you on a Friday night may come from your local franchise three miles down the road. But that franchise gets its ingredients from the end of a long and complicated supply chain that spans the country, if not the globe. Domino’s franchises in Los Angeles or San Diego, for example, receive their ingredients from the Southern California Supply Chain Center, which ships in some ingredients across state lines. The company employs delivery drivers to carry these goods from the center to the franchises. Like for many of its employees, Domino’s includes clauses in these drivers’ contracts that require the handling of employment disputes in arbitration, instead of in court.

A group of these center-to-franchise drivers sued Domino’s in California state court for refusing to reimburse expenses they incurred on the job. The company removed the case to federal district court and asked the judge to send the disputes into arbitration under the FAA. The district court refused, and the U.S. Court of Appeals for the 9th Circuit affirmed, on the grounds that the drivers are a “class of workers engaged in foreign or interstate commerce.”

In Domino’s Pizza, LLC v. Carmona, the company asks the justices to resolve this question in the wake of their decision in Southwest. In doing so, Domino’s joins the likes of Amazon, Uber, and Lyft, all of which filed amicus briefs in Southwest to warn the court that a ruling against the airline could jeopardize the arbitration agreements those companies require for their own drivers. The court’s opinion in Southwest explicitly left this question open in a footnote.

A list of this week’s featured petitions is below:

Ragan v. Ragan
Issue: Whether, after an Employee Retirement Income Security Act plan administrator has fully distributed life insurance plan proceeds, ERISA preempts a claimant’s state-law right to those proceeds.

Domino’s Pizza, LLC v. Carmona
Issue: Whether drivers making solely in-state deliveries of goods ordered by in-state customers from an in-state warehouse are nevertheless a “class of workers engaged in foreign or interstate commerce” for purposes of Section 1 of the Federal Arbitration Act simply because some of those goods crossed state lines before coming to rest at the warehouse.

Smith v. United States
Issue: Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the U.S. Courts of Appeals for the 6th, 9th, 10th and 11th Circuits have held.

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