Saturday, August 22, 2020

Ninth Circuit Decision on Amazon's Arbitration Provision and "Last Mile" Drivers

This week the Ninth Circuit issued a 2-1 decision in Rittmann v., addressing an arbitration issue similar to the one recently decided by the First Circuit last month (covered earlier here). The Ninth Circuit case involves drivers who participate in the “AmFlex program,” under which “Amazon contracts with individuals to make ‘last mile’ deliveries of products from Amazon warehouses to the products’ destinations using the AmFlex smart phone application.” Like the First Circuit, the Ninth Circuit concludes that Amazon’s arbitration provision is not covered by the Federal Arbitration Act (FAA) and is not enforceable.

Judge Milan Smith authors the majority opinion (joined by Judge Randy Smith, no relation), and Judge Bress dissents. The majority concludes that the AmFlex last-mile delivery providers are exempt from the FAA under 9 U.S.C. § 1 because they are “transportation workers ‘engaged in foreign or interstate commerce’” even though they do not cross state lines: “The plain meaning of the relevant statutory text, case law interpreting the exemption’s scope and application, and the construction of similar statutory language all support the conclusion that transportation workers need not cross state lines to be considered ‘engaged in foreign or interstate commerce’ pursuant to § 1.”

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