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Law Alert: Solicitor General Recommends the Supreme Court Deny Review of Trucking Case Challenging California’s AB-5

by Shannon M. Cohen, Gregory M. Feary, Prasad Sharma

May 24, 2022

Today, the Solicitor General (SG) of the United States (the federal government’s representative before the Supreme Court) filed a brief recommending the Supreme Court deny review of California Trucking Association’s (CTA) case challenging the application of AB 5. Readers will recall that CTA sought an injunction against application of the California law imposing a restrictive ABC test for determining worker status as an independent contractor or employee, claiming the state legislation essentially makes all drivers employees and must give way under a federal provision that preempts state laws relating to prices, routes, and services of motor carriers. The trial court agreed and granted an injunction prohibiting enforcement of AB 5 with respect to the trucking industry. On appeal, a divided panel of the United States Court of Appeals for the Ninth Circuit reversed, utilizing a narrow test unique to the Ninth Circuit, but the injunction was permitted to remain in place pending CTA’s appeal to the Supreme Court. In response to CTA’s petition, the Supreme Court invited the SG’s views on whether it should hear the case.

The SG noted “Although the circuits have reached differing outcomes with respect to FAAAA preemption of the ABC test as codified under the laws of various States, those case-specific decisions do not create a conflict warranting this Court’s review. Moreover, the interlocutory posture of this case and the need to resolve a threshold issue of state law—namely, whether motor carriers and owner-operators may fall within the business-to-business exemption under California law—make this case a poor vehicle in which to address the question presented. Further review is unwarranted.”

Although the SG’s brief is very influential and often tracks the Court’s ultimate determination, the ultimate decision remains with the Court and takes four Justices to vote to hear the case. Nevertheless, this is not a positive development in the effort to reverse the Ninth Circuit opinion.

CTA and the State of California have fourteen days to file supplemental briefs responding to the SG’s brief. The petition will be considered by the Supreme Court at its next conference at least fourteen days from today. Given the timing, it is possible that the petition will not be considered before the Court recesses for the summer at the end of June, in which case the next currently scheduled conference is October 6.

For more information, contact Scopelitis Partners Greg Feary, Shannon Cohen, or Prasad Sharma.