[24-1238] Montgomery v. Caribe Transport II, LLC

Mr. Clement?

“Mr. Chief Justice and may it please the court.”

When Congress ended federal economic regulation of the Transportation Industry, it did not

want states to fill the deregulatory gap with economic regulation of their own. If thus enacted a preemption clause modeled on the Airline deregulation Act that preempt state laws related to prices, routes or services of motor carriers, brokers, with respect to the transportation of property. But while Congress favored economic deregulation, the last thing it wanted with safety deregulation.

To that end, it preserved federal safety regulatory authority and it accepted state regulatory authority with respect to motor vehicles. My friends can see that state tort law is a classic exercise of regulatory authority and

that a principal aim of tort law is safety.

Thus the question in this case boils down to whether the negligent hiring claim here is with respect to motor vehicles. Of course it is. The whole point of the tort is to keep dangerous motor vehicles off of the road. Indeed my friends can see it as much when the tort is directed at a carrier.

But that essentially gives away the game because it's the same tort whether it's directed at a carrier or broker and it is no less with respect to motor vehicles when it's directed against a broker who may well know that the vehicles are poorly maintained or the carrier

is under insured or not registered with the federal government at all.

Nonetheless my friends would immunize the brokers in all those situations. That cannot be squared with the plain text or with common sense. Indeed my friends have to insert words into the statute like direct linked or direct connection that are absent from the statutory text. This court should interpret the statute as written and not let the brokers off scot free.

I welcome the court's questions. >> Mr. Clement, what did the landscape look like before the regulations and by that I mean who was responsible for the safety regulations?

“Was it the ICC or some other federal agency or was it the state?”

>> So it was both the federal transportation department or subparts of the federal transportation department at the federal level and the states at the state level. So the old ICC regulated rates, prices and routes but it did not regulate safety. >> And that's really the regime I think Congress -- >> I'm more interested in the safety aspect because I think much of what we're talking about

will depend on what it means to regulate the safety of motor vehicles including the operation. So I'm interested if you would detail the safety regime before the ICC was deregulated. >> So before the ICC was deregulated? >> Yes, it was unliminated I'm- >> Yeah, eliminated right. You did have some federal safety regulation from the federal government but not through the ICC

through the transportation department but you also had and there was no preemption of it. You also had state safety regulation and they could take many forms that could be positive law regulations that go to safety, everything from speed limits to other provisions, weight limits, maintenance requirements but you also had these state negligent hiring torts that were applied under the old regime both against carriers and against brokers.

And we cite the LB foster case for example from the Ninth Circuit in 1969 in our breathe. And that's a state negligent hiring claim that was brought against both brokers and against carriers and the Ninth Circuit upheld it. And of course there were no basis before 1995 to even argue that that claim against a broker was preempted. It didn't know argument before 1994 that that claim was preempted against a carrier.

“>> One oddity I think that you have to deal with is that your theory would mean that claims”

against brokers would be preempted for intra state transportation but not for interstate transportation, which seems a bit backwards in terms of preemption and that's something. If you think the question here is how broadly to read with respect to motor vehicles and you're thinking about context and common sense which you mentioned, that seems to be intentional with that and you want to respond to that?

>> I would love to because I think there is a counterintuitiveness to the fact that Congress seems to have provided a broader preemption provision for interstate routes, prices and services

Now that anomaly is going to exist no matter how you decide this case because B is broader,

not just because it doesn't have a safety exception but also because it doesn't have the phrase with respect to the transportation of property. So like a case like Dan City, where this court said that with respect to the transportation of property is what meant there was no preemption, there would be preemption for interstate. Now I'm not here to tell you that makes any sense but what I am here to tell you is that Congress

in 1995 made a very deliberate decision to treat brokers and freight forwarders differently for interstate and for interstate. I mean it would have been the easiest thing in the world in 1995 to remember brokers are added to both a year after the principal statute. But in the easiest thing in the world to create like a subsection that was about brokers and

freight forwarders for interstate and interstate.

But Congress didn't do that. They consciously had a separate sub-b clause for interstate and then they consciously dropped the brokers and the freight forwarders in to see which already had the safety exception. Just going back to the real world though, you know, a broker in Los Angeles or ranges of trip to San Francisco, no tour suits available, but if it's to Reno, a tour suit is available

under your theory, right? Under our theory of the safety exception, I'm the safety exception, which is the key. I guess, but still trying to figure out how that makes some sense, particularly when it's just add to it, the other kind of issue that bothers me a little bit here is the fact that Congress required financial security requirements for the truckers but not for the brokers

and with respect to accidents, and that seems another thing that you can respond to. Sure, but let me respond to him in turn. So starting to reiterate what I said with B, I mean, look, I'm not here to tell you that that's not a little bit anomalous, but it would be more anomalous to take two statutes, one of which has a safety exception and one of which doesn't, and interpret them to mean the same thing.

And there's no question that B is not the applicable provision here, C is the applicable provision. And as I said, no matter what you do with the safety exception, you're going to still have an interstate provision that has broader, preemptive force than the interstate provision because B doesn't have that with respect to transportation. What about financial security?

“I mean, if we're trying to figure out what Congress was doing, which I think you've talked”

about here in '94 and '95, they say that the truckers have the truck and companies, they have to have financial security so they can pay judgments with respect to accidents, but they don't do that on brokers. And when you combine the two things we're talking about, that does, I mean, that's intentional in your position, but what's your best response to that?

Well, I think I have several pretty good responses to that. I mean, one of which is it's even more complicated than that because freight forwarders were also supposed to have some insurance against injury risk. So you can't make some idea that everybody in the sub B is different from everybody in the sub C if you're following me on that.

But I am, but if Congress envision towards suits against brokers, why not require brokers to have the insurance to pay the judgments?

“Because I think Congress rationally said, we want to make sure that they have a financial”

security requirement that is responsive to the principal financial risk that they face. And it's different with respect to carriers than with respect to brokers. The principal financial security risk that brokers have is default. But you can't read too much into the insurance requirements because nobody thinks that carriers can't default.

In fact, carriers are defaulting all the time and going bankrupt all the time. And so you can't draw too strong an inference. And what I would also say is, there's also sort of an asymmetry in the inference that you would draw. Because, you know, some lower courts, for example, have focused on that insurance requirement by finding that safety torts are not preempted in the airline derregulatory act context.

But that sort of makes sense because it would be very weird for Congress to force a carrier to ensure against a risk that is actually zero because the risk is preempted.

“So when Congress says you must ensure against something, it's actually a pretty positive sign”

that there's not preemption. But I don't think it works the other way around. There's all sorts of contexts where you say things are not preempted and Congress hasn't even thought to make somebody ensure against it. So I just don't think, you know, I don't think there is a presumption against preemption

in the express preemption context. But well, you need something more than an insurance requirement to ignore the plain text of a clause that is designed to deal with the issue of preemption straight up.

Can I take you back, Mr. Clement, to Justice Kavanaugh's first set of questions.

Do you have a theory whether or not it makes any sense about how it came to be? I mean why?

“I think that, you know, it was a different, it was a different Congress a year later.”

Maybe the Interest Groups lobbied a little different, a year later. Maybe the same people weren't paying attention a year later.

And again, though, I think the critical thing, though, is the one thing we can't ignore

is the Congress made the deliberate judgment to treat Interstate and Interstate differently. Now, if you really think they should be the same, then maybe that's a reason to not read the preemption clause to reach safety-related towards altogether, as lower courts have read the ADA. I mean, if the anomalies really bothering you, that's the one way you can make the anomaly go away. Or I actually suppose, you know, the text of B is a little bit different.

And it's so focused on Interstate rates, Interstate routes, like Interstate services, that you could say that really unless you're talking specifically about Interstate services, the preemption clause doesn't apply.

But, you know, maybe it's best to leave all of that for a case that actually implicates B,

because this is a C case. And Congress clearly said, with respect to Interstate, at the moment, it's creating this new exception for Interstate, brokers and freight forwarders. At the same moment, it says, you know what we're going to do? We're going to not treat brokers and freight forwarders, the same way for Interstate and Interstate. And when it comes to Interstate, we're going to drop

“them into a preemption provision that has a safety exception. I think that's what you have to sort”

of try to interpret here. And then if you get to the safety exception, I think the question of whether these negligent hiring torts against a broker are with respect to motor vehicles is quite straightforward. And I think if you understand the nature of the 4/11 restatement toward, the whole reason that there is a negligent hiring torts in certain circumstances, but not others, is because you're hiring somebody to do something that has the possibility of

harm bodily harm to third people, third person's rather. And what creates the threat of bodily

harm to third persons in this context, it's the 80,000-pound motor vehicle that you're putting somebody behind the wheel of or you're entrusting the cargo to. And that's true whether it's a toward against the broker or against the carrier. And so if I hire somebody to just paint my house and they do a lousy job, like shame on me, but there's no negligent hiring of a contractor toward in that context, because just paint in the house isn't going to pose a risk of bodily harm

to third parties. So what really triggers this whole tort is a risk of bodily harm to third

“parties. And the only thing in this mix that poses that risk of bodily harm to third parties”

is the motor vehicle. So if you follow what tort we're talking about here, it really does make the connection to motor vehicles quite direct. Mr. Clement, could another way of thinking about this really be focusing on C as you've encouraged us to do and how it operates, what it's doing. It seems to me that one could conceive of this as C1, Congress coming in and making a change to the status quo. This is the deregulation point that you said. And they say in that section that

this deregulation is occurring with respect to the economic aspects of the system. And then the safety clause, this part that we're all focused on now, is really just clarifying to some extent that what they have done with respect to preemption is leaving the status quo regarding safety. And so just as Thomas's point was a good one, in other words, what was the status quo, states were regulating with respect to safety. So was the federal government to some extent. And if you think

of it from that kind of bird's eye view, I think it seems pretty odd for respondents to suggest that Congress was really focused on who would be able to bring a claim or how it's sort of that's all up to how the state was regulating. What is their tort? What is their system? Congress was just it's just me and the statute saying we're not touching any of that with respect to the preemption that we are now establishing. So I wouldn't resist one word of that. I would say that's exactly

how the lower courts have approached this in the context of the ADA, where you don't have a safety exception. So your eyes don't immediately go to the safety exception. But still courts have realized that in the battle days of federal economic regulation, you still had state tort suits for personal injury and the rest. And so when Congress in the ADA says, all right, we want to

economic regulation of their own. But they had no interest whatsoever in getting rid of all those

“tort actions. And as I say, as we say in the briefs, but I think it's quite true, actually from”

Congress's perspective, if you want economic deregulation, the last thing you want is a huge uptick in accidents and lots of safety benefits. I just interrupt there and just on the rhetoric, it's not getting rid of safety towards suits. The tort suits against the truck and companies,

the carriers, are still preserved. Everyone agrees on that. Sure, but the problem is once you

agree to that, there's really no coherent reason to stop there. Like you're looking at the state tort and the state tort is not responding to your point about safety regulation being gone. No, safety regulation through tort suits still exists. Everyone agrees against the primary people who are going to be sued, as I think you've acknowledged, which are the truckers, the carriers. Yeah, and I didn't mean to get carried away with my rhetoric. My point was just like, if you're a

rational deregulator, but all you're going to care about, Chicago School, you want economic freedom, the last thing you want at that same moment is for there to be new safety problems. And my point was, why would we think that given the background that you were talking about, that Congress would be focused on preserving only the tort claims with respect to the truckers as opposed to the brokers, as opposed to anybody else? In other words, why Congress's attention,

it would seem to me would not be at the level of who is actually going to ultimately be sued

under tort in these different states or whatnot. The point of its regulation was just to say, we are concerned with economic deregulation, those who are regulating safety carry on. And under whatever states law, if they have a particular tort, if they had it before, if it's operating, then Congress wasn't bothering that. If it applied to brokers as well as truckers, Congress wasn't bothering that. It just seems odd to me to think that we would read this

statute and all that it's doing to have Congress hearing about the particular defendants

“who are going to be sued at the end of the day. Again, I couldn't agree more, and I think if you”

look at that LB foster case, 1969, Ninth Circuit case, I mean, that's a case where the plaintiff sued the shipper, the broker, and the carrier. And under California law, they were all liable. Now, some other state might make a judgment that we want to stop liability at the broker, and not have it go to the shipper. Or another state might say, we want to stop liability at the carrier. Maybe a state, I think, would be crazy, but maybe a state wants to stop it at the driver.

All of those are judgments that the states get to make, and I don't think as you suggest it. So even if a shipper uses a broker who then hires a motor carrier, you think the shipper is included in this. I do, I think in a sense, that's a much more straightforward case. As long as the state tort reaches them, then the shippers aren't covered by the preemption clause. And I actually, so I don't think the shippers have much of an argument, you've got to start with

the argument that it's preempted, and then resist the safety exception. So the shippers can't get

off first base, get to first base, because they're not covered by the preemption clause.

And one of the anomalies that the other side's position creates, they like to talk about the brokers as just being middlemen or middlepersons. But their middlemen between shippers and carriers, who both at least in some states, are liable for this negligent hiring tort. So it's weird to have the middlemen between two people that are potentially liable immune, and if you allow that to happen, it creates a huge artificial incentive for shippers

to use brokers. Because that's the way they can try to download, or what, and the other thing they can do is they can actually reinvent themselves as brokers. As far as, I'm sorry, I know, I'm sorry.

“Yes, as far as federal law is concerned, how far does with respect to motor vehicles extend?”

I mean, this is the classic question of causation. Does it extend to anything that could contribute to an accident? So, I'm not sure that it, you know, sort of goes like to, you know, the butterfly effect and all of that kind of thing. What this court has said in lots of contexts is it doesn't have to be like super direct. There's no direct link requirement, but at the same time, things that are attenuated peripheral and remote. I think it's the phrase this court has used

on a couple of occasions are not covered. Now here, I think it's a pretty easy way to say that this is not wildly indirect. Yeah, no, I see that. Do you think there is some limitation in the phrase with respect to? Absolutely, but I would say like if I were sitting on Congress's shoulder and saying, all right, we want direct connections only, I would say don't use the with respect to language. And the limitation is approximate cause under state laws, that's the limitation.

unless it's satisfied to approximate cause requirement. You know, I understand this is pretty direct, but if something has to be some kind of directness requirement or a minimum link requirement has to be read into C2, then I come back to the question that Justice Cavanagh led up with, which is the real anomaly, which is very hard to accept that there's preemption for interest state activity, but not for interest state activity. And I came to the argument hoping you were going to give us

some brilliant way of reconciling these two provisions other than just live with it, but I guess there's no, there is no such theory. If there is, it is escaped me. But as I say, I do think it's telling that you are going to have a broader interest state interstate preemption clause no matter how you decide this case. The other thing is, I would say, I don't think, I mean, that would really

“be letting the tailwag, the dog, you know, I've looked through all these cases. I think there are two”

interest state cases that I've been able to find. Maybe my friends have found more, but there are, you know, dozens and dozens of interstate cases and the interest state cases I found have actually said there's no preemption on sort of the ADA that's not what this is all about. So I think it would be a mistake to let the absence of the safety exception in B, B, the tail that wigs the dog. What do you do with the fact that the brokers, I think the amicus brief of the transportation

intermediaries association, particularly pages 20 to 24, really go in detail of if tort liability extends to them. How are they going to assess and evaluate the safety of drivers in a particular trucking company? How are they going to figure out, do they have an alcohol drug issue?

How are they going to figure out English proficiency, which of course is a critical issue at the

current moment that's being discussed? How are they going to do this? Is the real concern that's

“raised in that brief and by response that I think, you know, is something you need to respond to?”

Sure, I'll try to respond to it and I think it may be much more straightforward than you think in many cases. I mean, ultimately the legal answer is it's the nowhere should have known standard. But usually when you say that, starting to rub, there's some way for the tort fees to protect themselves and what they're saying here is in the real world of how brokers operate, it's very difficult. So I think it's going to be pretty easy for them to protect themselves by hiring quality

carriers. And that's going to favor that, so this whole thing's going to really favor the largest established carriers over the smaller carriers because they're going to default to that to protect themselves, I think, which is fine, but I just want the implications of your position

to be understood. Look, you can be a safe, small carrier and here's the thing in the court.

They tend not to be as safe as the larger ones, correct? Well, some of them tend to be very unsafe and some of them tend to be these chameleon carriers where they're safety record is terrible and then they show back up. And the situations where there should be liability is when the broker knows like or should know that it's a chameleon carrier. If they've just been dealing with this carrier as Joe's trucking run by Joe Smith and then all of a sudden Joe Smith shows up and this time

it's Smith's trucking, the carrier's going to know that the broker's going to know that. And here's one of the things that sort of helped me understand all of this, which is you have a number of situations where there is a captive carrier where that carrier does only loads for CH Robinson. And so in that circumstance, CH Robinson is going to know every bit as much as the carrier's going to know in those circumstances. Now there can be other situations like say they can protect

themselves, but they can also protect themselves by asking some questions and having some screens. I mean this is a case where CH Robinson's own policy says that they don't hire carriers that have conditional safety ratings, but they did it here anyways. So you have cases like that where you can worry a little bit about how they're going to protect themselves, but they already take some efforts. And when they blow their own sort of standards or like they were lying on the federal

government standards, because the federal government regulates the trucking companies and kind of certifies them. You know, probably not good enough is what you're saying, which I don't just

“I'm not taking issue with that, but that's what they've been relying on in the past, right?”

But the federal government regulates a very minimal way and the federal statute specifically says it's a minimum, not a maximum, and states are free to go above that. And I mean you really can't get under estimate for the carriers that begs the question, but keep going. I mean, you know, the statistics at the Amika's briefs have shown is that roughly 94% of carriers have not had like a safety exam by the federal government. And the way this works is to get on the road

in the first instance, you do not have to go through some, I mean it's kind of less rigorous

than getting your state driver's license for a car. So, thank you, Council. Justice Thomas,

here that us subsection to regulate safety in interest state cases?

“So, the argument would be that, you know, if you, if this were a B case, and I was trying to argue”

that safety is not is not preempted, what I would do is I would make an argument, sort of like I would make in the airline deregulation context, which is to say there were these tort claims beforehand, they probably like the last thing anybody would have thought was going to be preempted beforehand was an interstate tort claim. And all Congress was trying to do with B is to make sure when they deregulate interstate that there aren't these sort of confusing interstate regulations of the same

economic things. So, that would basically be my argument, you know, I could, I could warm to it

and try to get a little more textual and try to say that, you know, it's written a little bit differently and it really does focus on interest state rates, interest state routes, interest state services of any freight forward or a broker and it's just a little hard to think of these like negligent hiring things as being sort of like distinctly interstate. But it's a harder case than see, I'll grant you that. Was there ever any federal involvement during the ICC era with

interest state shipping? No, that would, I mean, except in one or two areas where they felt like they had to do it to rationally regulate interstate. But the, under the old ICC the basic division

of labor was interstate federal interest state. So, why would this have any application that

all just structurally to interest state shipping? If the derregulatory effort is to deregulate

“covered areas and this area was not interest state, why would it have any application at all?”

Oh, I, I, I'm, I'm surmising now, but I think the idea was okay, like in a world where everything's regulated the federal level, it's pretty easy to sort of hand off like regulation to the states when it's interest state. But in a world where you really want the free markets to sort of prevail, having this little island of state economic regulation of interest state starts to seem like less wholesome and it's sort of interfering with the federal objection objectives. And in this regard,

it's probably worth recognizing, you know, the federal deregulation takes place in 1980. They don't

impose the preemption provision generally until 94 and then they don't address brokers and freight forwarders till 1995. So, for 15 years, the federal government was perfectly happy to deregulate at the federal level and let the states kind of do what they want. And then at a certain point, I'm surmising that they said some of the state regulation is getting in the way of our federal economic deregulatory objectives. But at the same time, you know, the one place, well,

in the two places, because they did it for passenger two, they, they really did try to preserve state regulatory authority with respect to safety and motor vehicles. Just as legal, just as so, Mayor. The briefs in this case is the interest state preemption subject to challenge because if it's been decoupled from interest state commerce under what congressional power could there, could the government preempt? I'm guessing, I mean, it's probably a pretty good

question for the federal government. If I had to make the argument for them, I would say that it's under the necessary and proper clause and it would be under the theory that they needed to regulate the interest state in order to rationally deregulate the interstate. But I guess I'll take the question as a friendly amendment is just one more reason to leave the interstate provision for a case where it's actually at issue because the one thing that's crystal clear here is they

have no B argument, this is interstate and so. Yes, and I do understand what you're saying to just this cabinet and Alito, which is the difference between interest state and interest state, is even wider than whether you cover brokers or not because interest state, they're preempting everything, not just whether it's in transport of property. Right. And, you know, like if I were going to warm to the topic of having to have a theory of how all this works,

I suppose if what they were really trying to do in 1995 is make sure that the state regulation sort of doesn't interfere, maybe they just address it a little bit. But I stop you to go back

“on the shipper question because one of my questions in my mind was, how far back can you go?”

Could you go to the shipper and you're saying in many states you can? Would that be for hiring a negligent

shipper? So under certain circumstances and I think the most circumstances it would be for hiring

“a negligent carrier, but I think it also could get to the driver level. I mean, I think in a”

case like this, like, you know, and this happens more frequently than you think. I mean, I think one of the other statistics in the amicus brief is some 50% of all carriers only have one driver. So particularly if you're a broker, you may very well know not just what carrier you're getting, but what driver you're getting, but your point is that the shipper would not be preempted under any circumstance. So this lawsuit doesn't have a defense under this act, if you're suing

the shipper. If you're suing the shipper, that's right. Now there isn't a meekest brief here, that's, you know, two actually, I think on behalf of shippers that are making what I think is

kind of an extravagant argument that they are covered by the preemption provision even though it

obviously doesn't address shippers, and it only addresses carriers, brokers, and freight. You happen to know if there are lawsuits against shippers that go on routinely? My understanding is that there are, and, but my understanding is that, you know, it's also caused some shippers to start using brokers because it's a way to, at least you have a colorable textual preemption argument to use broker. Thank you. That's okay.

“Mr. Clement, the government has an argument, I think it's the government, it might be the”

respondents too, that your theory makes this with respect to motor vehicles, phrase, superfluous. I was just wondering what you would say about that. I was hoping you would ask. So I think there's, there's a, there's a big problem with that argument because I think it, it sort of fails to appreciate how broad the definition of transportation is. And the statutory definition of transportation that's relevant for this part of the statute is

reproduced a pages 18 and 19 of the petition, if you have that. But it's incredibly broad

definition, and it's, it's 23A, and the first thing in the definition is a motor vehicle.

And then again, then goes on to list 10 other things. Vessel warehouse, warfare, dock yard, property, facility, instrumentality, or equipment of any kind. And then there's a B clause that goes on and talks about services related to movement, including receipt, delivery, elevation. I had to look that one up and figure out there actually talking about grain elevators. Transfer in transit, refrigeration, icing, ventilation, storage, handling, packaging,

unpackaging, and interchange of passengers. So there is an enormous amount of things that come within the broad definition of transportation that do not involve motor vehicles. So there is no superfluity problem here at all. And I would say the breadth of that definition

“of transportation is maybe one more reason to think that maybe you should decide this case”

either just on the safety exception, or maybe you should say the preemption clause doesn't apply here at all the safety torts, allow the lower court handling of the ADA cases, because somebody gets injured on a war for a pure dock. There's no way that's with respect to a motor vehicle, or it could certainly not be. And it would be pretty weird if that were preempted. But of course, the old ICC had a pretty broad sense of what it got to regulate, including the routes and

charges and services for like a grain elevator. So I do think there are real reasons for caution here, but I'm glad you asked the question because I do think the more you appreciate the breadth of the statutory definition of transportation, the less persuaded you would be by that superfluity argument. Thank you. This was Camino. If you prevail here, I just want to pick up on what brokers will need to do. So you prevail here than you're counsel to a broker, and the broker

is worried about the issue, the Wall Street Journal focused on yesterday, the English language proficiency of drivers who can't read signs. And so the broker says, "I don't want to select a carrier that hires drivers that are not proficient in English language. How do they do that?" And do they need to do that and how do they do that? Because that's a lot of the current discussion is there are a lot of different issues, but that's one that's currently in the current events.

So complicated question, I probably give them a pretty long memo. And you know, I'd start by saying, "I'm not sure these like English language requirements are really sort of safety regulations with respect to motor vehicles." And maybe they are. I mean, but like I think that's a debatable question sort of at the threshold. Well, one not. If you can't read, if you're hiring drivers who can't read the signs, that seems like a safety issue. If you say so, I mean, you know,

I'd assume that's true. Okay, so that's true. Then I got to like, you know, I want to address whether like I'm violating some other federal law by discriminating on the basis of English language proficiency. And I haven't sort of thought all that through, but it's not obvious to me that you can do that. But assuming you can. Federal government now tests for that for the drivers. Yeah, bet that's being challenged somewhere. But let's assume that, you know,

okay, like you can use large carriers, but if you do make sure that they have an adequate testing

program. And if you do, you're done. And the carriers will have every incentive to have that themselves because everybody thinks the carriers are liable. So if we don't have problems with the two threshold questions and the carriers are going to have to do it. So the brokers should be in a pretty good position. They just have to hire carriers that actually have a reasonable policy for dealing with that. And if they want to have smaller carriers, that's great. But they just need

to. Same for, let's say, drug use. Yeah. We're asking the carriers, what do you, they got to get something from the carriers that say we're checking our drivers for drug use, alcohol background, safety checks, prior accidents, all that. Right. But what you don't want them to do is not even

ask that question. Right. And then hire somebody who's cheaper. And then because, you know, one of the

reasons I think that you do want them to have to have some duty of care in these circumstances, is this is a margin business. Yeah. So if, you know, if they don't have the any sort of incentive to internalize any of the costs of not asking the question, they really have no good reason to ask the question. They want to hire the cheapest carrier. So the real world effect again, and I think this may help your positions. This is not a hostile question. The brokers are going to be really

digging into the carriers, safety, background checks of drivers if you prevail in this case.

“And that, I don't think you should try away from that. I just want to make sure that's what's,”

you think is going to happen. Yeah. But I, you know, I think it's, it, I worry a little bit about

digging into, because, you know, they want to get sued for millions of dollars. So they should

dig in. Shouldn't they, if you're either their counsel? I tell them, as their counsel, I'd probably say I had an abundance of caution dig in, but I would also say, you know, I wouldn't, like, be alarmist about this because the carriers, everybody agrees the carriers are going to have to do this. And so, as long as you're not hiring fly-by-night carriers who aren't doing it, and are have the minimum 750,000 dollars of insurance. Like, and you can hire a small, you can hire, you know, small is

beautiful if they do it right. But you do have to sort of ask those questions and make sure that, you know, they're in a position where they're doing everything they can. And then if you do that, I would think the broker is not going to have a problem if it's asked in the hard questions of the carrier. Thank you. Does this bear? Mr. Clement, assume that I, this is just an assumption,

“assume that I think C1 doesn't apply and it's not preempted. What would be the advantage of”

deciding this case based on the safety exception rather than the preemption provision? So the principal advantage of deciding this case on C2 on the exit C2 B or whatever it is, like, that might not really move you if you actually don't think it's preempted under the principal preemption provision. But the principal -- I said that backwards. I mean, say that I think you might win under C1 because I don't think it's preempted. Why would I decide it? Or is there any reason to

decide it? Under those circumstances, there's not much. But I will say this. Like, you know, I think the question about whether the ADA preemption provision applies to safety-related towards is a hard one. And I think if anything you say about the principal preemption provision here, is I think going to have some carryover effects in the ADA context. That's after all why the airlines for America filed an amicus brief urging you to sort of decide it that way. And I think you

might want to hold that issue, which is a tricky one, harmless. And the way you hold that issue completely harmless is, say it for another day when it actually matters. And you just decide this case on the base of text that's not in the ADA. Okay, let me flip it. Let me say that I am very -- I do think it's a hard question. I'm very skeptical about whether the preemption provision applies

“or not. Is there anything that -- and let's say that I think that you win under the safety”

exception? Is there anything that an opinion might say about the safety exception that might prejudice that question when we confront it later, the preemption provision? I don't really see how it could because it's text that's not in the ADA. And I suppose everything I'm saying about the ADA would also be if you ever do get one of these B cases, and you know, with interest state, that would be another thing that you're not prejudging if you decide this case just based

on the text of the safety exception. Same on C1 because the text is the same in the ADA. Yeah, yeah, exactly. Exactly. Just a distraction? So I guess I'm still struggling to see how the policy concerns that you explored with just this cardinal really are being addressed in this statute. I mean, this is not a liability statute. As I see it, it's not setting up a cause of action for any kind of trucking accident.

It's leaving it to the state. So the concerns about the extent to which the brokers are involved in this or will, you know, other kinds of defendants or how much liability don't those come out state by state depending upon what claims are being made as you read this statute. No, I mean, that's absolutely true. And, you know, you have an amicus brief from 28 states,

And, you know, that shows there is a lot of variety in the state tort laws. And I think, you know, there are a couple of states that don't have this tort. But it does go all the way back to the

first restatement and most states that overwhelming majority of states have this tort.

But, and if the ones that don't in the brokers in that state wouldn't be held liable for them, or all the arguments about like, how do we do this seem like they'd be made to the state legislature

“who's trying to hold them liable. It's not in this statute, I think, because it doesn't”

suggest to me looking at this text that Congress was focused on the result of this other than to say, we are preempting with respect to rates, et cetera, et cetera. Can I just ask you one more thing that the government is focused a lot on the definition of motor carriers that is in this statute. And I guess I'm wondering whether that really matters from the standpoint of how we understand your arguments related to see. Is this turning at all on us focused on the definition? I thought this

was about in your view with relate, what is it with respect to as opposed to the definition of motor vehicles? Right, there's a couple of things there. I mean, which is to say, there's some focus on motor, the definition of motor carrier or motor vehicle. But like, I don't think any of that matters here

“for the reason that you said both that we're really thinking about like the state judgment,”

whether it's a state judgment about safety. And then at the same time, like nobody doubts there's a motor vehicle here. So it doesn't matter. We don't have to focus in resolving this case on the definition of motor vehicle in your view. I don't think so. Nobody really disputes that there's like a motor vehicle at the center of this case that caused great injuries to my client. So the only question is is sort of the state safety regulation sufficiently closely related to that motor vehicle.

And as I've tried to explain, it really is quite closely tethered because the whole reason you have a negligent hiring tort is because you're talking about something that poses a danger of harm

to third parties. And the thing that poses the danger of harm to third parties in this context isn't

“some brokerage form. It's the 80,000 pound truck. Thank you. Thank you, council. Mr. Bootross.”

Mr. Chief Justice and may please the court. Congress assigned freight brokers a defined role to arrange for transportation of property by connecting shippers with motor carriers. Petitioners tort claims target that core service so the claims are preempted. The only real question here is whether these claims are saved as the safety regulatory authority of a state with respect to motor vehicles. They are not. brokers lack sufficient connection to motor vehicles.

brokers don't own, operate, or control motor vehicles. Text, context, history, and precedent

confirm this. A few examples. First, the savings clause uses the phrase with respect to motor vehicles,

which in this court's words in Dan's city is massively limiting. And it implies specifically only two motor vehicles. The definitions do matter here, not transportation of property, which is much broader by statutory definition. Second, subsection B, expressly preempt state law claims related to interest state broker services and has no savings clause. It is unthinkable. It's observed that Congress would have saved states authority to regulate interstate but not within its own borders.

Third, Congress required only carriers to ensure against personal injury liability for motor vehicle accidents and only required brokers to have insurance for freight charges. And that mirrored what the ICC said just a few years earlier that brokers were not responsible for personal injury damages. And it was the expert agency. Finally, this isn't a deeply rooted tour. We challenged petitioner to find one single negligent selection case involving a federally licensed broker in

American history and at common law and they came up empty. It didn't start until 2004. Petitioner's asking this court to disrupt the uniform federal regime by green lighting new state law duties even more on onerous than the special checking system that the court said was preempted in row v. New Hampshire motor. I welcome the court's questions. If brokers are as it attenuated in the process as you say, wouldn't they fall out in a

tortax and from a causation standpoint, prox and the cost standpoint? Only after the great deal

look at the complaint, it's all information and belief. This notion that the company violated its own policies regarding the conditional rating information and belief. They do this in every

case. It's basically stricliability claims against the brokers for having connected the shipper

and the carrier. After a lot of litigation, the burdens are tremendous. CH Robinson is a big company, has many, many of these cases pending when it did nothing wrong and when the drivers and the carriers did nothing wrong. So, burdens in their state commerce and Mr. Clement was arguing for a patchwork, the very patchwork that Congress intended to end of states imposing their varied standards. But the you mentioned that you can't find cases from an earlier time. Isn't that a

part that brokers are playing a more pronounced row now than they did in the past? Well, my client's

been around for over 100 years. Brokers have been involved all along in the process. The cases that

I love the LB foster case that Mr. Clement banks this whole case on. It was a 1969 case involving a shipper. The broker was not even an issue on appeal who had hired an unlicensed broker. So, there was a broker involved and an unlicensed carrier. That's the best they could do. There wasn't a federally licensed broker or federally licensed carrier involved. His restatement example, you honor. He wants to ignore what the ICC said in 1987 that brokers are not responsible for personal

injury liability. In a soon Congress knew that in 1934 the restatement cited a case about a hotel

concierge whose omnibus was broken. So, he hired someone else to take people to the train people.

That's the history he's relying on. The reason there isn't a history on this Justice Thomas is that the ICC and the federal regime was viewed by the states and by this court in castle as being the entity that says whether carriers could traverse in interstate commerce. So, there were no states could not deem a carrier or a driver unfit. That would fort the federal licensing regime that existed then and that exists now. What was the treatment by the ICC of intrastate

shipping purely intrastate and they were certain products that were not covered by the ICC,

“how were those treated? I think with the ICC would have probably they would have captured those”

in its regulation to the extent they were within the chain of interstate commerce and this goes to some of the questions about section B. I do think the quote from Mr. Clement that he has no answer, no idea why Congress would have had preemption intrastate be complete with no saving laws, but to have saved these claims interstate. But I think that it's extended in the chain of interstate commerce and this goes to Justice Sotomayor's question about constitutionality. I think there is

a connection between purely interstate activities and interstate commerce in some instances. The other point I wanted to make is that the briefs and Mr. Clement today really hammer on this note from the Congress was looking at economic deregulation and safety of course it was not touching. It clearly cared about safety. The FMCSA, the expert agency that now exists, has enormous federal power over safety and right 700 pages of regulations and it's in a partnership with the states

“who endorse -- I think most of not all have endorsed the safety standards of federal government.”

Yes, it cared about it in the way that you're talking about, but really the relevant focus, I think, needs to be on what it was doing in this statute. What concerns me about the way you set this up is you are suggesting, I think, that the preemption part of this was also covering state regulations with respect to brokers as they relate to safety and that then when Congress came in and put in the savings clause as a part of this, it was leaving brokers preempted with respect

to what they do that might implicate safety. But that's not the way I think the statute reads. It seems like the preemption is smaller than you're giving it credit for it to begin with. The preemption is very broad as, again, Mr. Clement kindly outlined, transportation of property,

“is that's what's preempted. No, no, no, it was related to a price route or service of any”

motor carrier. Or broker with respect to transportation of property. But I think what's doing a

a foreign force law related to a price route or service. And if you read it that way,

then the savings clause is focused on what the state can do concerning safety. No, well, it is your honor, but it's safety with respect to motor vehicles and the preemption clause. Everyone, we're not disputing that a tort claim, that targets the services of the broker. And this goes to the essence. As the seven circuits said, as Aspen said in the 11 circuit, this is the essence. What brokers do is match the carrier. Council's depiction of what brokers

do is completely divorced from reality. They're not interviewing and investigating. They're matching up federally approved carriers with shippers. And they want them to be safe because they want their shipper clients to keep higher. There's no duty of the broker to check the safety records when it's doing that match. No, your honor. In fact, they can rely. They're supposed to

“rely on the federal government's licensing. That's what the court said in--”

As a matter of state law, the state could not impose a duty on them to make sure that they pick and match the best in terms of safety record. That's exactly the question in this case, your honor. And if you look at the complaint, J.A. 23 through 22 through 26, they're asking this court to greenlight the states to impose duty after-- What was the status quo? Was the state able to hold a broker liable before this action, before the preemption, for things like what is happening in this case?

No, your honor. We don't believe they were. We think this court's castle decision talks about how

the states could not second-guess the federal authorization of a carrier because it would

for it uniformity. It would for it commerce. This isn't a traditional area of state fraudulent. This is about interstate commerce and the removal of interstate commerce. Just a bit of this might be a good idea, this might be a bad idea. And maybe this is just a simple-minded way of looking at this, but I'm just looking at this provision. And it says, "Shanat restrict the safety regulatory authority of a state with respect to motor vehicles,

and you agree that these toward actions are part of the state's safety regulatory authority, so then the question is whether these suits are with respect to motor vehicles, and, you know, come on, how could they not be? They're all about getting good drivers

behind the wheel of a massive truck. That's with respect to motor vehicles."

“That year, I think, is actually a good way to look at it because first, the definitions matter here.”

The Congress, when it added brokers, and added subject can be, which has no saving laws, it didn't change the saving clause, the safety saving clause. It brought in it to transportation property. It kept it focused on motor vehicles. Motor vehicles are very narrowly described as the tractor trailer, the truck. Okay, but the motor vehicle is the truck, and these suits are all about the trucks. And who's driving the trucks? And I go back again. Partition did not mention

this two, this court's two leading cases, the Dan city case. This court said, with respect to transportation of property, which, as Mr. Coleman said, is really raw, that that massively limited the scope of preemptions. Could the states say you can't drive a truck unless you're 16, unless you're over 21? I think the states could have-- Oh, so that's not with respect to the motor vehicle. It's with respect to the driver who's going to

drive it. Can the states say truck drivers have to wear seatbelts? That would be compatible with federal law you're on, and they could do that. All right, so what's incompatible with federal law

“with respect to safety to say you shouldn't operate this if you're a careless negligent driver?”

The states could say that, what they can't say is that a broker can be held viable. Why not? Because the broker's one putting the driver in the seat. That's not correct. I'll be motor vehicle that's causing the accident. That's not correct, you know, that's another real-- I would say not accurate depiction in the briefing here. What, wait a minute. Yes. The broker hires the company who's going to transport says the company

is negligent because it's been-- it's had, I think, two or three accidents in the space of the month. Drivers have, and it only has nine trucks. And it has a driver who just that month had another crash where he was found negligent. I don't see how someone hasn't failed in their duty. Yes, sure. That would be the carrier and the driver. The broker doesn't know all that. Well, then that's a defense council. It is a defense, and it's also why they're not--

But it doesn't answer the substantive question of whether it could be held liable if it had a way to check. If it was required to check, this special checking system, and I go back to

to see if the packages were going to be directed to a minor shipping tobacco, that that would have imposed this patchwork and would have imposed this extra duty on the services of the carriers.

And so-- Safety regulations always create a patchwork. No matter what the safety issue is,

there's going to be different state requirements, and so the patchwork exists just because of the exception. But can I address that in order because section 31, 31, 1, 4, 1, which both party side cease to eliminate that. It gives the secretary a pretty broad power to preempt after decision. So while the states can enact their own safety regulations, they must be compatible with federal law, consistent with federal law, even if they're stricter, and if they burden interstate commerce,

because they create a patchwork. And we're talking about driving through multiple states here,

“it was Ohio, Texas, and Arkansas, I think. And so you need to have certainty that you can”

traverse those jurisdictions in the clock. With respect to motor vehicles, phrase again,

going back to that. Obviously, motor vehicles are involved. I thought your argument was yet to figure out how broadly to read with respect to, like waiting to, it could go forever, or where do you cut it off. And I guess my question is, given the safety implications, why would Congress have wanted to cut it off at carriers and not include brokers? When, I think, although they haven't traditionally done it, brokers could do more to ensure that carriers

are hiring safe drivers who don't have issues with their history or whether they can read the signs or whatever it might be. And that will reduce the number of fatal trucking accidents, which is a huge problem. Why is that not a reasonable way to read it? I think that what Congress did was ensure that brokers could allow for a seamless interstate commerce. If it imposed those obligations, it would just completely box up the broker duty.

They would have to investigate whether the driver was fit. This is just right from the complaint. The carriers, if they'd have to investigate the driver history that and ask for that. And so how will that happen? Will they demand, I mean, the demand from the carriers,

“give us information about who you're hiring. I assume that's what will happen if you do not”

prevail in this case. Right, right, we have to demand that. It could be done, though, right? It could be done. But these things happen quickly. This is about matching carriers who are on the

road with ship, shipers, demands to get things there just in time. And it's become a crucial

part of interstate commerce. And I do want to go back here on, if I can't on the interpretation of language, we do believe it with respect to motor vehicles is the crucial question here. And one thing we haven't heard of, yes, I'm starting to rub it there. But so you you agree with respect to motor vehicles and safety regulations, it accounts for the safety belt regulation and accounts for age limits and things like that. You agree that it also permits a hiring

tort suit against the carrier. Do you agree that it also permits a tort suit against the shiper? We do not agree with that. So it stops with with the carrier and only the carrier. Exactly, you're on it. And that's not to say there isn't rigorous federal enforcement, their criminal provision. Why not the shiper? The shiper by imposing that duty on the ship and there are lots of claims against shipers. The shiper by imposing that duty, this is like

a row. If you oppose that duty on the shiper, then they're going to make different choices with respect to motor carriers. They're not going to allow new entrants. That will have an impact on the services of the motor carriers. And that's sort of how they cordanalyzed it in row.

“So I think it would burden them tremendously and it would basically, it's really a causation”

argument. You're saying it's just too far removed. It's a proximate causation argument. It's related to it. But I think it proves our point. We all know proximate. If it's a causation argument, I guess I'm back to where Justice Thomas is, I understand the burden of these lawsuits. I appreciate that. But if you're to the extent of your argument hinges on causation, that is built into the state toward system in these cases. I suppose if there were a proximate

cause elements required, that might be a matter of some consideration. But there is. The problem with that is it is baked into the state system. They want to be in the words of the Ohio brief laboratories of democracy. They're going to have varied standards. They're going to create a patchwork which would cause brokers and shippers. And right now we have a proximate cause standard before us, right? In this in this case. Well, that's because petitioners are asking the court

on asking about the claim in this case. There's a proximate cause. Yes, there is. And but the

problem is it's a nebulous concept. And I go back to the definitions and respect to motor vehicles. Motor vehicle safety is defined as the performance of a motor vehicle in a way that protects the public interest against unreasonable risk of accidents occurring because of the design, construction or performance of a motor vehicle. So when Congress used motor vehicle in with respect to motor vehicle, it was in this courts words massively limiting the scope of the saving clause.

And here the brokers are too far removed. They don't touch the vehicle. They don't control it.

They don't know what vehicles are going to be used. They don't know who the driver is,

but they're performing a function relying on the federal authorization and licensing which is what

“what Congress intended. And so I think it's really important. On the federalism point, I think”

the Nebraska brief points out that under this regime, the state with the most plaintiff generous tort principals and proximate cause principals, they'll rule the United States. Everyone will have to adhere to those standards or avoid that state entirely. And that's why Congress felt that preemption was important here. How difficult is it for a carrier to be authorized under federal

law? It's not nearly as easy as a petitioner suggesting. Again, I think the regulation

and the statute speak for themselves. They have to show that they're fit. They have to show that they meet the various standards that they will agree to hold drivers to certain standards. They do audit carriers. A lot of these complaints we disagree with them about the FMCSA, but if that's a complaint, well then they could do more or go back to Congress and going back to the insurance point. Yes, some carriers don't have significant interest. Do the federal authorities

insist that someone who's seeking authorization show that they've done background checks on drivers and that drivers can read signs, that drivers don't take drugs, don't have a history of alcohol abuse, any of the things that would contribute to a real safety threat. They're they're required to do that and accomplish those goals to get federal licensure that they don't do it. The FMCSA can take away their license. So there's a rigor system. Thank you, council.

“Justice Thomas? I think I alluded to this before, but has there been an increase in the role of brokers”

post a deregulation? There has been your honor and it's contributed greatly to our economy into commerce and the free flow. How significant? Significant? No, I mean how significant as the increase road has been. I think back before deregulation there were more or less than a hundred brokers and now there's thousands. Most of them are much smaller than CH Robinson, which is another reason not to impose these brand new duties.

That's a little anything further. Justice Sors, don't matter. There's a meky says somewhere between six to nine thousand motor carriers registered with the FMCSA every month. You're going to tell me that they have the resources to check every one of those new entrance

“and all the existing ones to see whether they're following the rules.”

They require that the carriers swear they will. And if you do, you believe the agency has anywhere near the resources necessary to adequately vet all of those applicants and keep on top of the operation of the people who already are licensed. It's a significant task. And probably not, they couldn't do it with respect to everybody. But so Congress did one thing. It exempted motor vehicle safety. You still haven't given me a reason in this context

why with such a capacious word like with respect to that we should read it narrow instead. You're on our, in the spectrum, related is the gold standard for breadth and preemption. With respect to is used next to related in section C1. So Congress clearly was thinking of it differently. This court, in cases like Presley and Lamar, which the 11 circuit cited and the Chamber of Commerce briefsites, this court said with respect to means direct relationship to

or impact on. And here to hold someone liable for negligence with respect to a motor vehicle

the big group of carriers, now that would be imposed on these brokers who aren't safety experts,

who would they have to, we'd have to hire an army to do what they're asking the court to green light. Does this case? Two things. You said it started in 2004. Why? Because the creative plaintiff's bar decided to start bringing these cases to this brokers

“and to establish, bring them into the case to have additional targets. That's what's really”

ironic here. The notion that Congress wanted, when it preempted claims against the court. Because some of the carriers couldn't pay. I think they, if some of them couldn't pay, or they wanted to have additional potential defendants. And so they're not asking this court to restore

or protect longstanding state law. They're asking this court to authorize the states to become

laboratories of democracy to creatively adopt a patchwork of new duties that will really hamper interstate commerce and defy Congress's intent. And then you've had, I think, law against you in the ninth circuits since 2020. So, and you've talked about it, this would be difficult to impossible. What have brokers been doing in the ninth circuits since 2020? Because I assume they have adjusted their behavior in response to that. And they've been in search as well.

Yes, they've been litigating. Because they're getting sued still repeatedly. Are they changing their practices at the front end so they're not liable at the back end, given the ninth circuit in six circuit long, the possibility that that wall will stay the wall. They have not made the radical change waiting for a ruling from this court to clarify that these claims cannot be recognized. But in California, the effect has been mitigated a bit

because two state courts of appeal have rejected the Miller decision and gone with Judge Fernandez's descent in that case, which I think really just very in simple terms, Allen, this is a step too far. I think the 11 circuit said a bridge too far to hold someone who liable for who match the carrier in the umpuzzled that no one's, I mean, I'm not saying, you know, everything that's going on out there, but I'm puzzled that brokers haven't started doing more on the theory that they could

be held liable. And when they change their behavior with some bad law, well, the problem is they

they get you coming and going because if you do more, then the argument is like in this case,

“you're precariously liable because you had control. So if you don't do enough, they say you should”

have inspected like you're the federal agency. If you do too much, or you do anything, they say you're in control, which is just not true. The broker is a broker. They're a middle person, matchmaking, so commerce can flow. Does it bear it? Does this Jackson? Thank you, council. Thank you, Ron. This is Joshi. Mr. Chief Josephs and may it please the court. I think if you look at the phrase with respect to motor vehicles in isolation, I think the teacher has a pretty good point

about how to interpret just those words in isolation, but I don't think it works in this statute and I really focus on the contrast between paragraphs and one and two. Paragraph one uses the phrase with respect to the transportation of property, paragraph two with respect to motor vehicles. That seems like a conscious choice that Congress made to parallel the language but changed the noun to a much narrower noun. As Mr. Clement observe, transportation has like 24 or 25 different nouns.

“I think I counted one of which is motor vehicles. So that suggests that with respect to motor vehicles”

must not include things that are with respect to the other stuff in the definition of transportation. One of which is a ranging for the movement of property which is what a broker does. Put it this way. Suppose there were a rule that applied with respect to coffee, cream, and sugar, and then an exception that applied only with respect to coffee. You would naturally think that the exception does not apply with respect to cream and sugar even though that phrase in isolation

might cause you to adopt the opposite view. I think that's kind of what's going on here and that's why I think respondents reading of the statute is the better one. Welcome to court's questions. Is there any daylight between your argument and that of the respondent? I don't think so. I think we're aligned on the interpretation of the statement. With respect to the use or the role of brokers, how significantly has that increased?

I agree with what Mr. Bootro said it has increased markedly before the deregulation. There were only several hundred brokers as my understanding. Today, there are approximately 25,000 registered brokers operating from small sizes to as large as sea tropans. What role did the ICC play in regulating transportation in trust state before a deregulation?

thought that that intrust state regulation has a substantial effect on interstate commerce and so to the extent there would be inconsistent rules as both Mr. Coleman and Mr. Bootro's mentioned.

“The castle case is from the 1960s I think and that really exemplifies these things. Illinois there”

had certain regulations for trucks, but this court said that Illinois cannot use a violation of those in order to revoke the operating authority even for the intrastate trucks. I would count so both the council for respondent and for petitioner were asked. Fair number of questions about B1. I don't want to evaluate it, but I think they were

basically each saying they don't quite know why it's there and I wonder if the federal government

has an answer. I think my answer is that Congress did not view the safety exception as reaching these kinds of claims against brokers and freight forwarders and so I don't think there isn't anomaly and there certainly isn't if you adopt respondents view of the safety exception. Now what Mr. Coleman said first he said he has no idea but that's just how it is. He said regardless of this case I think he said there's going to be this difference between

interest state and interest state anyway but I don't think that's correct. The first thing he pointed to was that B does not include the limiting phrase with respect to

the transportation of property the way C1 does but you don't need that phrase and B because the

“only entities covered in B are freight forwarders and brokers and the only thing those guys do”

is act as middleman for the transportation of property that's what their statutory defined as B. So you don't need that limitation and B you do need it and C because it applies to motor carriers which can have their cars on the road not engaged in interstate transportation or property. So I don't think that works. So I really do think there's a huge anomaly here that Congress in '95 where you know we all acknowledge brokers claims against brokers were not preempted

before 1995 and then Congress decides in '95 we need to add brokers and the way they do it is they as Mr. comments said insert them in C and add this provision B and it just makes no sense what so ever that a Congress interested in preempting claims against brokers would leave greater state authority over interstate broker services than in trust state that is so weird I am unaware of any

“preemption regime express implied field conflict obstacle whatever in which that's how it works.”

- It is so bizarre that I think you really should look at the safety exception the way respondents do because that's the only way. - But let me ask the question Mr. Josie because I think we could also believe that Congress was really interested in making sure that safety was top of mind priority and the problem I think with the argument in the way that you've said it up is that you are assuming a way any responsibility that a broker might have for safety.

Your argument depends in a way on us accepting what you've said what Mr. Routre said that brokers are just operating as middlemen they really don't have anything to do with safety and I guess I don't understand why we have to believe that Congress shared that view as opposed to Congress thinking well to the extent that brokers are involved in safety that's going to come out in the towards suit as a causation issue and so we don't really have to take a

position on which individual defendants are actually responsible for safety what we want to do is make sure that safety regulations are preserved that safety is top of mind for everyone and if brokers

really are the kinds of middlemen that Mr. Brutre and you say they're ultimately not going to be held

liable because either the state's not going to allow this kind of towards suit on the front end or they're not going to be held liable because they're really not a big player in this from the standpoint of toward law. That to me is perfectly consistent with the view that petitioners have and make your view seem a little odd. So two responses to that. Well first I agree what you just said is consistent with what Mr. Clement says but obviously I disagree with it so the two stats a

couple of statutory points that I think show that Congress in fact was thinking that brokers wouldn't be responsible for safety so they did share the view that Mr. Brutre is an iron advancing today. Number one on the safety exception it would have been the easiest thing in the world for Congress

leave it out in time. Well when the easier thing to be to and say something about brokers

“in the safety exception I mean if you're right and they shared this view that there were certain”

individuals in the chain who are just not on a fit then I would think we would see that language

in the safety exception. Sure Congress could always be more clear but what I'm saying is that

Congress has choice there suggests that they did not necessarily view it this way but there's more there's much more. Congress has an entire several chapters of the US code entitled 49 that deal with safety addressing carriers safety of motor vehicles driver qualifications and they're all addressed at carriers not a single one is addressed at brokers and I'm going to now invoke you know they say the exception sometimes proves the rule in 2012 Congress passed a statute and they added

a provision and that provision makes transportation intermediaries which I think we all agree

“includes brokers and freight forwarders liable and it says you know you should not coerce”

a driver or a carrier to violate all these numerous safety rules that apply only the carriers and

drivers as a matter of federal law as a matter of federal law and it's a little bit of no but but but what I'm saying is this statute expressly preserves the scope of state safety regulations so it's no answer I think to point out that Congress under federal law would not have held these brokers liable. The question is what were they doing when they said here we are preserving states ability. Right no no I took your original question to be why do we think Congress shared the view

that brokers would not be responsible for safety and what I'm saying is the entire federal scheme is set up so that carriers and drivers who to use tort law terms are the lowest cost of

voider in terms of safety are responsible for safety and they have to pledge that their response

will for safety and obey all the safety rules as a condition of federal registration and then brokers select from the pool of registered carriers. That makes that makes perfect sense if in fact there is the federal authorization does require some does involve some inquiry into the safety of carriers and do you want to say something about that how it works as a practical matter. As a practical matter you're you're right and just as so to my over was right earlier

FMCA is is understaffed overworked can't possibly review the 700,000 federally registered carriers but every year or I should say this of the 700,000 federally registered carriers the agency has been able to do at least one roadside inspection for two thirds of those carriers in the last five years so there is some oversight not nearly enough I will grant the point but carriers who violate their requirements under the statute or the regulations

not only can the agency revoke their operating thwarting go after them there is a federal private cause of action against a carrier who violates the federal requirements that an injured party can bring against a carrier for violating it. In fact there's one against brokers too now of course I'm not going to tell you it's frequently invoked because obviously the federal requirements for brokers don't involve safety so I don't think there's a lot of

federal, you know federal lawsuits based on it but Congress did provide these as a means to ensure that carriers and brokers obey federal law. Thank you council. Justice Thomas. Justice Elito. C2 wouldn't come into play unless C1 applies. Could you just say something briefly about why C1 applies? Yes because a broker is defined as someone who you know I'm looking at 13102 sub to the back end of the definition. A range in for transportation by motor carrier

that is literally the service of a broker and petitioner's tort claim if successful would allow enforcement of a common law rule and the common law rule would say not just that the driver was negligent on this particular occasion and it wouldn't just say that CH Robinson aired in selecting carry bay on that occasion to transport those particular flower pots in December

“of 2017. Instead it would say carry bay you should not see H Robinson you should not have hired”

carry bay at all and in fact no broker should ever have hired carry bay to do anything. So it's directly attacking a broker selection of a carrier which is the core service which means it's related to the service of a broker and that is why every court of appeals even ones that agree

C1. Thank you. Justice Elito. I think you told Justice Thomas that you agreed with everything

that Mr. Montgomery is arguing is accurate. No we're on the opposite side from him. I'm sorry not Mr. Montgomery what Mr. Corriebs. Yeah we're we're we're supporting you. You're agreeing that the safety they they've argued but I didn't see it in your brief that the safety exception preserves only states authority at the time of the action actment. No no that's one where we say and so I also didn't think that you were agreeing with his implied preemption argument or are you.

Where we don't take a position. So it's not everything. I agree with everything Mr. Bootro said at the lectern today. So right now you would have it that the federal government is not imposing any safety obligations on brokers and you're saying despite the exemption for safety with respect to motor vehicles neither can state. So nobody's checking what they're doing.

“Brokers are required to pick from among the pool of federally registered carriers. That's what”

does the work here. So even if someone has had a thousand accidents and it's well known. No no brokers that are liable. The the carriers would be liable for that but correct. The broker as long as they still are. I just want to know that the result of your argument. No one's checking that that is that is well carriers are liable but that is what we think the federal system is how it's supposed to work. Carriers are responsible for safety. How about drivers? Are you agreeing

with your adversary? We have not taken a position on shippers. I don't think, I mean just standing here at the lectern. It doesn't seem like this statute covers claims against shippers except to accept and so far as through the row against New Hampshire Motor Transport Association. There that was a rule that actually regulated shippers but it was nonetheless preempted because it affected carrier services. So under that way perhaps it could preempt certain types of rules

again shippers but it's sort of hard to see. Part to see that a safety one would. I don't know the answer to that. Thank you, frankly. Just kicking. You said, okay if you look at with respect to motor vehicles that seems pretty bad for you but we're going to look further and the place where you pointed was the definition of transportation. Is that right? And I'm doing this on the fly so forgive me. You can just tell me if I'm wrong.

But you said the key thing about the definition of transportation was that it specifically says

that transportation includes services related to arranging for blah, blah, blah, you know the

“transport of property. And you said that's what a broker does. So we should think about that as in the”

other with respect to clause, not in the with respect to motor vehicles clause. Do I have that right? That's right. Okay. So but that provision also in addition to saying services related to arranging for transport, it says services related to receipt delivery transfer in transit. You know it has all these other verbs in it too, which it seems to me would apply to the motor carriers themselves. So if we want to apply that same theory of the case, we would have to take out the motor carriers

from the with respect to motor vehicles phrase. Maybe not. I mean motor carriers are the ones who own and operate the vehicles. And so to the extent what you're challenging is they're performing those services. I think maybe not. But more to the point, I think most of these claims against drivers are for negligence. And those are obviously permitted. They're not preempted. And federal law, you know, by operation of federal law in the definition of employee

drivers of commercial motor vehicles are deemed to be employees of motor carriers, even if they're independent contractors. That's expressed in the definition. And everyone understands the reason

for that is so that motor carriers will always be by carously liable for the torts of their

“drivers during the scope of employment. That's why you don't see in this complaint which is in”

the joint appendix. You don't see a claim against the motor carrier here for negligently selecting the driver. That would be silly. No, no same plaintiff would bring that claim because you can just say the driver was negligent on this occasion and therefore you are very careously liable. And that's typically why these claims against motor carriers are going to be preempted. I mean I take that point. All I'm suggesting is that you pointed us to a phrase as being very relevant

where you say, oh look, you know, they meant brokers to be in this provision because this is a phrase about brokers. This is a definition that includes everybody under the sun. That is true. I guess I'm not seeing how relevant it is. So to the question of whether with respect to motor

“vehicles somehow excludes brokers. So I want to be clear. I think this particular point I'm making”

as well as the three other main contextual clues that we've made in the brief one of which is the

interest date. The other is a superfluity or potential superfluity and the third being the

financial services requirements, which Justice Kavanaugh was discussing earlier. I'm not making a claim that any of those four itself is dispositive and just answers the question. I do think this is a hard case, but I think all four of them tilt in response direction and they suggest that with respect to motor vehicles has a narrower effect than it might seem. Dan City supports that are reading of with respect to as well and given that every contextual clue, every oddity,

every anomaly, response reading doesn't produce it, whereas petitioners does. I think in the end when you look at all of it, respondents is the better reading. That's our point.

“Yes, of course. I just want to follow up on that a little bit. I take your point that with respect”

to transportation is a lot broader than with respect to motor vehicles. So good point.

But once you say that with respect to motor vehicles doesn't just mean with respect to the mechanics of that vehicle, but can include hiring, negligent hiring by the carrier, or some negligence by the carrier, then I wonder why that doesn't also hold for brokers. Yeah. So to be clear, the definition of motor vehicle is not just track or trailer, et cetera, but it also says it has to be and used on a highway and transportation. Sure. So claims about the use count. Okay, under the same

point. That's my point. Once that camel's nose is under the tent, and you can have a claim for negligent hiring against the carrier. Why not against the brokers? No, that's my point. As far

as I'm aware, there's no such thing as a negligent hiring claim against the carrier,

because the carrier is vicariously liable for the driver. So negligent by the driver. Once you've gotten to the driver, okay, and not just the motor vehicle itself, and a negligence and operation or use of the motor vehicle counts. Well, these counts because it's in the definition. I understand that. I'm not arguing with you about that. Once you can see that the use counts and that somebody can be held liable for negligence in the use, then it just seems to me we're talking

about causation at that point. I take the point, and obviously that is Mr. Clements point here today, but my, my point is I understand as well. I'm sorry to interrupt. I'll let you answer. I understand as well. It's a restrict liability regime or something like that, but once along as we have a proximate cause regime, and that's all that's before us. All right, now go ahead and answer. Yeah. I mean, I guess, I guess the way I look at it is transportation is really broad. And yes,

it says motor vehicles, one of them, and it's got other stuff that may be closer to motor vehicles,

“maybe farther away. I think, you know, 1, 3, 1, 0, 2, 23, A says motor vehicle,”

vessel warehouse, et cetera, and then in B, it services related to the movement, including a ranging floor. And I know how you could see that arranging for the transport of property is kind of related to motor vehicles, but given Congress's choice to use with respect to transportation in one in paragraph one, and with respect to motor vehicles, and two, that suggests it wants a subset. And the question is, what is in that subset, and what is out of the subset, and I think arranging

for transport. The ones you've gotten, is use of the motor vehicle into, right? You say that's, yeah, you spot them that. I'm not arguing with you about that. You've given that out fine, but now the use of the motor vehicle, not just the motor vehicle, it's up to the use of the motor vehicle, can be regulated by the state. Yes, but brokers don't use vehicles, right? brokers don't control the vehicles. The broker doesn't know, yeah, when somebody breaks for last inspected,

how thick the tire tried to his brokers don't even know the safety record of a driver. That's confident. If I carry a sliability, no, you spot that. No, for carriers, not for brew. No, I understand, but you spot by carry a sliability for carriers, I'm not arguing. Under federal law, it's expressed. I understand that. I'll stop. I mean, I take the point that this could be what you described could be

what we have today. Thank you, Council. Just this kind of one. A couple of things you at the beginning

said related to and with respect to or different in your view. Probably that's not very convincing to

“me. So I just want to get that out there. I mean, I think for the either term, you have to look at the”

context and common sense to see as Judge Fernandez said in his dissent in the 9th Circuit where draw the line, all's graph, et cetera. Yeah, I actually agree completely. I mean, I think this port in Lamar and Archer made the point that I'm going to move on to my next question if you agree completely. So you say the carriers are liable, so don't worry about it. One of the problems I think that's like this is the carriers sometimes can't pay. Yeah. So when we're thinking about context and

common sense and figuring out how broadly to read with respect to isn't that part of the context

and common sense? Well, it's the statutory context. So we have to look at it from Congress's perspective and from Congress's perspective, carriers could pay because they are required to have the financial security requirements of 750,000. Yes, that was enacted in 1980. I take the point, maybe it's willfully inadequate. But two more questions. You just said, brokers don't know the safety records of the drivers. Yeah. Aren't they going to have to, if the other side prevails in this case,

think you're out of how to get into that? I mean, those are confidential, the carriers. Five by virtue of what? By privacy laws and federal law when FMCSA reviews it. So right now, I don't think brokers have a practical way to get it. And what that means is that brokers will

“as some of the amicus briefs point out. And as I think, Mr. Clement, just candidly admitted,”

acknowledge that brokers are going to follow the, you know, no one ever got fired for buying IBM principle. And they're just going to go to the largest carriers. It's going to be FedEx, UPS, J.B. on Penske, you know, etc. That leads my last question, which is again, context and common sense. And their position is going to mean fewer truck accidents. They're going to be fewer trucks. They're going to be fewer carriers in the market. You're truck accidents where people are killed.

And they say because brokers are going to dig in and not hire a range with shaky truck drivers. That, that could well be true. But that would be a result of their being fewer trucks on the road, which means worse interstate commercial motor delivery services. I mean, if Petitioner's torque claim is successful, it's going to take the pool of registered carriers that federal law says brokers can pick between. And it's going to shrink the pool. That is contrary to Congress's

deregulatory purpose. Thank you. This is very, justice Jackson. I just want to give you a chance to explain as quickly as you can. What your sir plus, such argument is because the way you define this, you have motor vehicles as a subset, not as the whole thing in terms of the preemption. So why would there be sir plusage? There would be a sir plusage on Petitioner's reading of the statute. Petitioner seems to suggest that with respect to just means concern and it can be a

pretty lengthy chain, pretty indirect. I mean, I think Mr. Command today at the lectern said, indirect. He wants it to be interpreted the same as related to in Morales and, you know, the ADA cases, which includes indirect connections. If that's true, then every single thing is, I think Justice Cagan was pointing out in the definition of transportation, arguably is indirectly related to a motor vehicle, which means that the safety accepted. Although he says he says he says

with transportation a property is like green elevators. That is nothing to do with the car or with the motor vehicle. He's got transportation of property much better. I don't know how you get the green into the elevator out of the elevator without a motor vehicle. So I would think that on Petitioner's logic, that claims about that would also be in. So I think if you take Petitioner's interpretation

seriously, then the safety exception basically reads the same. If you blue pencil the phrase with

respect to motor vehicles out of the statute. Thank you. Thank you, Council. Rebuttal, Mr. Clement. Thank you, Mr. Chief Justice, just a few points in Rebuttal. First, a couple of times my friends and the other side have crept into this alternative theory that really this should be motor vehicles should be limited to owners and operators. Obviously those words aren't in the relevant statutory provisions and as we point out in the reply brief as a practical matter, something like 45% of

carriers don't actually own the vehicles. They lease them or they belong to the driver.

“If we're going to talk practicalities, I think one really important number that's practical”

is that 94% of the registered carriers out there on the roads haven't had any meaningful federal safety inspection, the kind of annual inspection you have. You get the registration

carriers out there haven't gotten this federal inspection. So it would be really nice if state

tort law provided a backstop to a federal system that's not really doing a lot. On the B point, my friend from the solicitor generals office said, "The freight forwarders are just middlemen."

“That's not actually true and that's why there is this requirement that they have some”

personal injury liability insurance. They do do more than the brokers. But the point is, brokers aren't just middlemen, at least in many of these cases. I talked about the cases where the carrier is actually captive. All they do is take CH Robinson loads. That's all they do. They don't serve any other broker or they don't serve shippers directly. In that situation, CH Robinson knows or should know, every bit as much as a carrier. The issue of the,

and one other point on this is the practicalities of this. There are services out there right now that tell brokers more safety information that's available based on the federal records.

“CH Robinson doesn't want to use those, but other brokers do. Maybe that's why CH Robinson”

has defended more of these cases than some of the other brokers. There's more that brokers can do. There was some discussion of the patchwork that really doesn't work here because they can see there's going to be a patchwork with respect to the carriers. And this whole regime on safety allows for a patchwork. It's the federal safety regulations are expressly designed as a minimum and states are allowed to go above and beyond the minimum. There was some discussion of this

LB foster case and my friend said, well that's not such a great case for Mr. Clement

because that was an unregistered broker and unregistered carrier. But the problem is they're theory

sweep so broadly that you can't hold a broker liable for negligently hiring a completely unregistered carrier. There are some cases like that and that just doesn't make any sense whatsoever. That's complete negligence and there's no reason there would be a immunity there. There was some brief discussion of the castle case, that old chestnut if you take a look at it. It basically says Illinois can find drivers for violating their state law. They just can't literally bar them from the state.

But this is a situation much more analogous to the fines that there would be liability. It's going to mean if it's a single company driver, like it might put the carrier out of business, this particular carrier here is dissolved itself as an Indiana corporation. But I think that's probably a good thing not a bad thing. Some discussion just about how to resolve this case, I would say if you are convinced that we win on C2, then I would urge you not to say anything

really definitive about C1. My friend is correct that all the courts that have looked at this particular issue with the safety exception staring them in the face have all said that C1 provides preemption. But the hard case is going to be in the ADA context. The hard case is going to be if there ever is a B case, they probably won't because they're so few that are purely interested. But the hard case is going to be when you're staring at that preemption clause and there is no

safety exception to sort of back it up. So I would urge you if you think C2 applies here, just leave C1 for another day. And then I'm sure I missed some of the subtlety of the solicitor generals officer point about the coffee and the cream and the sugar and all of that. But the thing is if you

have one of these look McDonald's torts where the problem is the piping hot coffee spilled in your

lap, I would say that's a tort with respect to coffee. And for the same reasons, this is a tort with respect to motor vehicles. This case doesn't have to be that hard. The thing that triggers

“state tort liability is an 80,000 pound motor vehicle that's what devastatingly injured my client.”

This is a case with respect to motor vehicles. We urge you to reverse. Thank you. Council, the case is submitted.