Montgomery v. Caribe Transport II, LLC

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. It thus enacted a preemption clause modeled on the Airline Deregulation Act that preempts state laws related to prices, routes, or services of motor carriers, of brokers, with respect to the transportation of property. But, while Congress favored economic deregulation, the last thing it wanted was safety deregulation. To that end, it preserved federal safety regulatory authority, and it accepted state fed -- state reg -- safety regulatory authority with respect to motor 1 vehicles. My friends concede 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 concede 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 a 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 underinsured or not registered with the federal government at all. The -- 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 link" or "direct connection" that are absent 1 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.

So it was both the federal Transportation Department or subparts of the federal Transportation Department at the federal level and the states at the -- 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 --

So, before the ICC was deregulated --

Yeah, eliminated. Right. You did have some federal safety regulation from the federal government but -- 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. They 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 L.B. Foster case, for example, from the Ninth Circuit in 1969 in our brief, and that's a state negligent hiring 1 claim that was brought against both brokers and against carriers, and the Ninth Circuit upheld it. And, of course, there would have been no basis before 1995 to even argue that that claim against a broker was preempted and no argument before 1994 that that argument -- that that claim was preempted against a carrier.

I would love to because I think there is a counter-intuitiveness to the fact that Congress seems to have provided a broader preemption provision for intrastate 1 routes, prices, and services for brokers and freight forwarders and a, you know, smaller preemptive scope for interstate. 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, you know, it -- and -- and so, like, a case like Dan's City, you know, would -- 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 intrastate. I mean, it would have been the easiest thing in the world in 1995, because, remember, brokers are added to both a year after --

-- the principal statute. It would have been the easiest thing in the world to create, like, a subsection that was about brokers and freight forwarders for interstate and intrastate. But Congress didn't do that. They consciously had a separate sub (b) clause for intrastate, and then they consciously dropped the brokers and the freight forwarders into (c), which already had the safety exception.

Under our theory of the safety exception. Now, you know --

-- you might be able --

Right.

But -- but --

Sure. But let me respond to them in turn. So starting just to -- to reiterate what I said with (b), I mean, look, I'm -- 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 intrastate provision 1 that is -- has broader preemptive force than the interstate provision because (b) doesn't have that with respect to transportation across --

So --

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 -- so you can't make some idea that everybody in the sub (b) is different from 1 everybody in the sub (c) if you're following me on that. But more to the point --

Because I -- 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. 1 And what I would also say is there's also sort of an asymmetry in the -- 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 Deregulatory Act context. But that sort of makes sense because it would be very weird for Congress to force a carrier to insure against a risk that is actually zero because the risk is preempted. So, when -- when Congress says you must insure 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 insure against it. So I just don't think, you know -- like, you know, I -- I -- like, I don't think there is a presumption against preemption in the express preemption context, but, boy, you need something more than an insurance requirement to ignore the plain text of a 1 clause that is designed to deal with the issue of preemption straight up.

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 -- I think the critical thing, though, is the one thing we can't ignore is that Congress made the deliberate judgment to treat interstate and intrastate differently. Now, if -- 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 torts altogether, as -- as lower 1 courts have read the ADA. I mean, if the anomaly's really bothering you, that's the one way you can make the anomaly go away. Or, actually, suppose, you know, like, the text of (b) is a little bit different and it's so focused on intrastate rates, intrastate routes, in -- like, intrastate services that you could say that really, unless you're talking specifically about intrastate 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 -- at the moment it's creating this new exception for intrastate, 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 intrastate and when it comes to interstate, we're going to drop them into a -- 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 1 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 411 Restatement tort, the whole reason that there is a negligent hiring tort 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 persons, 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 -- the cargo to. And so -- and that's true whether it's a -- a tort against the -- the -- the broker or against the carrier. And so, if I hire somebody to just, like, paint my house and they do a lousy job, like, shame on me, but there's no negligent hiring of a contractor tort in that context because just painting the house isn't going to pose a risk of bodily harm to third parties. 1 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.

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 long before -- like in the bad old days of federal reg -- 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 get rid of the federal 1 economic regulation and we don't want the states replacing it with new 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, like, safety mishaps.

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 a --

Yeah. And I didn't mean to get carried away with my rhetoric. My -- my point was just like, if -- if you're a rational deregulator, but all -- you know, you care about, you -- you -- Chicago school, you want economic freedom, the last thing you want at that same moment is for there to be new safety problems because that --

Again, I couldn't agree more, and I think, if you look at that L.B. 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 -- the shipper. Or another state might say we want to stop liability at the -- at the carrier. Maybe a state -- I think it would be crazy, but maybe 1 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 suggested --

I -- I -- I do. I think, in a -- 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 -- I don't think the shippers have much of an argument. You know, you got to -- you 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, I mean, you know, they -- they like to talk about the brokers as just being middlemen or middle persons. But they're middlemen between 1 shippers and carriers, who both, at least in some states, are liable for this negligent hiring tort. So it's weird to have the middleman 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 a way they can try to download or --

-- and the other thing they can do is --

-- they can actually reinvent themselves as -- as -- as brokers --

-- like --

No, I'm sorry.

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 is 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 for purposes of --

Yeah. Absolutely. But it's -- but -- but I would say, like, if -- if I were, like, 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.

Well, that's one practical limitation in this context because you can't bring a tort against a broker under state law unless you satisfy the proximate cause requirement.

If there is, it has escaped me. But, as I say, I do think it's telling that you're going to have a broader intrastate -- intrastate preemption clause no matter how you decide this case. 1 The other thing is I would say I don't think -- I mean, that would really be letting the tail wag the dog. You know, I've looked through all these cases. I think there are two intrastate 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 intrastate cases I've 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) be the tail that wags the dog.

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, like, the legal answer is it's the "know or should have known" standard. But, in --

So I think it's going to be pretty easy for them to protect themselves by hiring quality carriers. And --

Look, you can be a safe small carrier. And here's the thing, and this is where --

Well, some of them tend to be very unsafe, and some of them tend to be --

-- these chameleon carriers where they -- their 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, you know, Joe's Trucking run by Joe Smith, and then all of a sudden Joe Smith shows up and this time it's Smith Trucking, like, the carrier is going to know that -- the broker's going to know that. 1 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 C.H. Robinson. And so, in that circumstance, C.H. Robinson is going to know every bit as much as the carrier is going to know in those circumstances. Now there are going to 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 C.H. Robinson's own policy says that they don't hire carriers that have conditional safety ratings, but they did it here anyways. So, you know -- so you have cases like that where, yeah, 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 --

In a -- in a very --

But the federal government regulates in 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 underestimate, like --

I mean, you know, the -- you know, the statistics that the amicus briefs have shown is that roughly 94 percent 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 -- it's kind of less rigorous than getting 1 your state driver's license for a car. So --

So -- oh, the argument would be that, you know, if you -- if -- if this were a (b) case, and I was trying to argue that safety is not -- is -- 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 intrastate 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 intrastate regulations of the same economic things. So that would basically 1 be my argument. I -- 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 intrastate rates, intrastate routes, intrastate services of any freight forwarder or broker. And it's just a little hard to think of these, like, negligent hiring things as being sort of, like, distinctly intrastate, but it's a harder case than (c), I'll -- I'll grant you that.

No, that was -- 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; intrastate, state.

Oh, I -- I -- my -- I'm surmising now, but I think the idea was, okay, like, in a world where everything's regulated at the federal level, it's pretty easy to sort of hand off, like, regulation to the states when it's intrastate, but in a world where you really want the free markets to sort of prevail, having this little island of state economic regulation of intrastate 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 until 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 1 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 too, they -- they really did try to preserve state regulatory authority with respect to safety in motor vehicles.

I'm -- 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 intrastate in order to rationally deregulate the -- the interstate, but I -- I guess I'll take the question as a friendly amendment as just one more reason to leave the 1 intrastate 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 --

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 differently.

So --

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, you know, 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 percent 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.

If you're suing the 1 shipper, that's right. Now there is an amicus brief here that's, you know, or 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 forwarders.

My -- 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 --

-- at least it gives you a colorable textual preemption argument to use a broker.

I was hoping you would ask. So I think 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 at pages 18 and 19 of the petition if you have that. But it's incredibly broad definition. And it's -- it's 23(a). And the first thing in the definition is a motor vehicle, and then it then goes on to list 10 other things: Vessel, warehouse, wharf, pier, 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 1 figured out they were actually talking about grain elevators -- transfer and 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's no superfluity problem here at all. And I'd -- I would say that 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 to safety torts a la the lower court handling of the ADA cases because, if somebody gets injured on a wharf or a pier or a 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 1 services for, like, a grain elevator. So -- 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.

So a complicated question. I'd 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. Maybe they are, I mean, but, like, I think that's a debatable question sort of at the threshold. And then --

If -- if -- if you say so. I mean, you know, I -- I -- like --

Okay. Assume that's true. Then I've 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 1 haven't sort of thought all that through, but it's not obvious to me that you can do that. But assuming you can --

Yeah, I bet that's being challenged somewhere. But -- but -- but let's assume --

-- that, you know, we're on to the last part of my memo, we'll assume that that's also legal, then I would say, 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 -- 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, then 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 1 smaller carriers, that's great, but they just need to --

Yeah.

Right. But what you don't want them to do is not even ask that question --

-- 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.

So, if -- you know, if they don't have the -- any sort of incentive to internalize any of the costs of not asking the 1 question, they really have no good reason to ask the question. They want to hire the cheapest carrier.

Yeah, but, you know, I think it's -- it -- I -- I worry a little bit about digging into because -- because, you know, in fairness --

I'd tell them -- as their counsel, I'd probably say, out of an abundance of caution, dig in, but I would also say I wouldn't -- you know, I wouldn't, like, be alarmist about this because the carriers -- 1 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 of insurance, like -- and you can hire small, you can hire -- you know, small is beautiful if -- 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 are 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 asking the hard questions of the carrier.

So the principal advantage of deciding this case on (c)(2), on the -- (c)(2)(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 --

Right.

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 torts is a hard one.

And I think 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 1 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 save it for another day when it actually matters, and you just decide this case on the basis of text that's not in the ADA.

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 intrastate, that would be another thing that you're not prejudging if you decide this case 1 just based on the text of the safety exception.

Yeah.

Yeah. Exactly. Exactly.

No, I mean, that's 1 absolutely true. And, you know, you have an amicus brief from 28 states and they pulled off the incredible feat of having California and Texas on the same amicus brief. (Laughter.)

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, the overwhelming majority of states, have this tort. But, like --

Right. There's a -- there's a couple of things there, I mean --

-- which is to say, you know, that 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.

I -- I don't think so. Like, nobody really disputes that there's, like, a motor vehicle at the center of this case that caused, you know, grave 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 forum. It's the 80,000-pound truck.

Mr. Chief Justice, and may it please the Court: Congress assigned freight brokers a 1 defined role to arrange for transportation of property by connecting shippers with motor carriers. Petitioner's 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 applies specifically only to motor vehicles -- the definitions do matter here -- not transportation of property, which is much broader by statutory definition. Second, subsection (b) expressly preempts state law claims related to intrastate broker services and has no savings clause. It is unthinkable, it's absurd that Congress would have saved states' authority to regulate interstate but not within its own borders. 1 Third, Congress required only carriers to insure 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 tort. 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 onerous than the special checking system that the Court said was preempted in Rowe v. New Hampshire Motor. I welcome the Court's questions.

Only after a great deal of litigation, Your Honor. What happens in these cases is the brokers are now named automatically. And if you look at the complaint, it's all information and belief. This -- this notion that the company violated its own policies regarding a conditional rating, information and belief. They -- they do this in every case. It's basically strict liability claims against the brokers for having connected the shipper and the carrier. And so, after a lot of litigation, the burdens are tremendous. C.H. 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 it burdens interstate commerce. And Mr. Clement was arguing for a patchwork, the very patchwork that Congress intended to end, of states imposing their varied standards.

Well, my client's been around for over a hundred years. Brokers have been involved all along in the process. The cases -- I love the L.B. Foster case that Mr. Clement banks his whole case on. It was a 1969 case involving a shipper -- the broker was not even at 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, Your Honor, he -- he -- he wants to -- us to ignore what the ICC said in 1987, that brokers are not responsible for personal injury liability, and assume 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 depot. That's the history he's relying on. The reason there isn't a history on this, Justice Thomas, is that the -- the ICC and the federal regime was viewed by the states 1 and by the -- by this Court in Castle as being the -- the -- the -- 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 thwart the federal licensing regime that existed then and that exists now.

I -- I think what 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 -- 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 clause, but to have saved these claims interstate. But I think that to the extent in the chain of interstate commerce -- and this goes 1 to Justice Sotomayor's question about constitutionality -- I think there is a connection between purely intrastate activities and interstate commerce in some instances. The other point I wanted to -- to make is the -- the briefs and Mr. Clement today really hammer on this notion that Congress was looking at economic deregulation, and safety, of course, it -- it was not touching. It clearly cared about safety. The -- the FMCSA, the fed -- the expert agency that now exists, has enormous federal power over safety and wrote 700 pages of regulations, and it's in a partnership with the states who endorse -- I think most, if not all, have endorsed the safety standards of the federal government.

The -- the preemption is very broad. As, again, Mr. Clement kindly outlined, transportation of property is -- that's what's preempted.

Yes.

Or broker with respect to transportation of property.

No. Well, it is, Your Honor, but it's safety with respect to motor vehicles. And the -- the preemption clause, everyone -- we're not disputing that a tort claim that -- that targets the services of the broker -- and this goes to the essence, as the Seventh Circuit said, as Aspen said in the Eleventh Circuit, this is the essence. What brokers do is match the carrier. Counsel'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 hiring.

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 -- in --

That's --

That -- that's exactly the question in this case, Your Honor. And -- and if you look at the complaint, JA 23 through -- 22 through 26, they're asking this Court to -- to green-light the states to impose duty after duty.

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 thwart uniformity, it would thwart commerce. This isn't a traditional area of 1 fed -- of state prerogative. This is about interstate commerce --

-- and the free flow of interstate commerce.

That -- that, Your Honor, I think, is actually a good way to look at it because, first, the definitions matter here. It -- the Congress, when it added brokers and added section -- subsection (b), 1 which has no saving clause, it didn't change the -- the saving clause, the safety saving clause, it didn't -- it broadened it to transportation of property. It kept it focused on motor vehicles. Motor vehicles are very narrowly described as the tractor trailer, the truck.

And -- and as this --

And -- and I go back to -- and, again, Petitioner did not mention this two -- this Court's two leading cases. The Dan's City case, this Court said with respect to transportation of property, which, as Mr. Clement said, is really broad, that that massively limited the scope of preemption.

I think the states could have.

That would be compatible with federal law, Your Honor, and they could do that.

The states can say that. What they can't say is that a broker can be held liable.

That's not correct, Your Honor.

That's not correct, Your Honor. That's another real, I would say, not accurate depiction in the briefing here. 1 The --

Yes.

Yes, Your Honor, that would be the carrier and -- and the driver. The broker doesn't know all that. That --

Yeah, it is a defense. And it's also why there needs to be --

It -- if it was 1 required to check the special checking system, and I go back to Rowe, where this Court said that the main statute there that would require the carriers to check 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 --

But can I address that, Your Honor? Because Section 31 -- 31141, which both parties cite, seeks to eliminate that. It gives the Secretary 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, because -- and we're talking about 1 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 lawfully.

Yes.

It -- it's -- I think that Congress -- what Congress did was ensure that brokers could allow for a seamless interstate commerce. If it imposed those obligations, it would -- it would just completely bollix up the broker duty. They would have to investigate whether the driver was fit. This is just right from the complaint. The carrier was -- they'd have to investigate the driver history that -- and ask for that. And so it --

Right. We have to demand that.

It could be done, but these things happen quickly. This is about matching carriers who are on the road with 1 ship -- shippers' demands to get things there just in time, and -- and it's become a crucial part of interstate commerce. And I do want to go back, Your Honor, if I can, on the interpretation of the language. We do believe that "with respect to motor vehicles" is the crucial question here. And one thing we haven't heard --

Yes.

We do not agree with that, Your Honor.

Exactly, Your Honor. And -- and that's not to say there isn't 1 rigorous federal enforcement. There are criminal provisions.

The shipper, by imposing that duty on the shipper -- and there are lots of claims against shippers. The shipper, by imposing that duty -- this is like Rowe. If you impose that duty on the shipper, then they're going to make different choices with respect to motor carriers. They're not going to allow new entrants. That will have -- that will have an impact on the services of the motor carriers. And that's sort of how the Court analyzed it in Rowe. So I think it would burden them tremendously, and it would basically --

It's --

It's -- it's -- it's related to it, but I think it proves our point. We all know proximate --

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 -- and --

In -- in this --

Well, that's because 1 Petitioners are asking the Court -- Petitioner's asking this Court to assume Congress was thinking about proximate cause. It was thinking about --

Yes, there -- there is. And -- but the problem is it's a nebulous concept. And I go back to the definitions in "with 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 Court's words, massively limiting the scope of the saving clause. And, here, the brokers are too far removed. They can't -- they don't touch the vehicle. They don't control it. They don't know what vehicle is going to be used. They 1 don't know who -- who the driver is. But they are performing a function relying on the federal authorization and licensing, is -- which is what -- what Congress in -- intended. And so I think it's real important -- and on -- on the federalism point, I think the Nebraska brief points out that under this regime, the state with the most plaintiff-generous tort principles and proximate cause principles, 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.

It's not nearly as easy as Petitioner's suggesting. Again, I think the regulations and the statutes speak for themselves. They have to show that they're fit. They have to show that they meet the -- the various standards, that they will agree to hold drivers to certain standards. They do audit carriers. 1 A lot of these complaints, we disagree with them about the FMCSA, but if that -- 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 enough insurance.

They're -- they're required to do that and -- and -- and -- and -- and accomplish those goals to get federal licensure. And if they don't do it, the FMCSA can take -- take away their license. So there's a rigorous system.

There has been, Your Honor, and it's contributed greatly to our economy and to commerce and the free flow of commerce.

Significant, Your Honor. So it was --

I think back -- back before deregulation, there were more -- you know, less than a hundred brokers, and now there's thousands. Most of them are much smaller than C.H. Robinson, which is another reason not to impose these brand-new duties.

They -- they require that the carriers swear they will conform.

It's a significant task, Your Honor, and -- and probably not. They couldn't do it with respect to every one.

But --

Your Honor, in the spectrum, "related" is the gold standard for breadth in preemption. "With respect to" is used next to "related" in Section (c)(1). So 1 Congress clearly was thinking of it differently. This Court, in cases like Presley and Lamar, which the Eleventh Circuit cited and the -- the Chamber of Commerce brief cites, 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, where the -- they had no ability to control it or inspect it, and those duties that Your Honor -- or the -- the big group of carriers, now that would be imposed on these brokers, who aren't safety experts, who would -- they'd have to -- we'd have to hire an army to do what --

-- they're asking the Court to green-light.

Because the creative plaintiffs' bar decided to start bringing these cases against brokers and to establish bringing 1 them into the case to have additional targets. That's what's really ironic here. The notion that Congress, when it -- when it preempted claims against brokers --

I think they -- some of them couldn't pay or they -- 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 -- will really hamper interstate commerce and -- and defy Congress's intent.

They've been --

Yes. They've been litigating because they're getting sued still repeatedly. There has --

They -- 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 -- a bit because two state courts of appeal have rejected the Miller decision and gone with Judge -- Judge Fernandez's dissent in that case, which I think really just very in simple terms outlined that this is a step too far, I think the Eleventh Circuit said a bridge too far, to hold someone who -- liable for -- who matched the carrier in 1 the -- the --

Well, the problem is they -- they get you coming and going because, if you do more, then the -- the argument is like, in this case, you're vicariously liable because you had control. So, if you don't do enough --

-- they say you should have inspected like you were 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.

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court: I think, if you look at the phrase "with respect to motor vehicles" in isolation, Petitioner 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 1 and 2. Paragraph 1 uses the phrase "with respect to the transportation of property," paragraph 2 "with respect to motor vehicles." That seems like a conscious choice that Congress made to parallel the language but change the noun to a much narrower noun. As Mr. Clement observed, "transportation" has, like, 24 or 25 different nouns I think I 1 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 arranging 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. I welcome the Court's questions.

I don't think so. I -- I think we're aligned on the interpretation of the safety exception.

I agree with what Mr. Boutrous said. It has increased markedly. Before the deregulation, there were only several hundred brokers, is my understanding. Today, there are approximately 25,000 registered -- federally registered brokers operating, from small sizes to as large as C.H. Robinson.

I -- I don't know exactly the extent of the role. My understanding is that they generally would have thought that -- that intrastate regulation has a substantial effect on interstate commerce, and so, to the extent there would be inconsistent rules, as -- as both Mr. Clement and Mr. Boutrous mentioned, the Castle case is, you know, from the 1960s, I think, and -- and that really exemplifies these things. Illinois there, you know, had certain 1 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 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 is an anomaly. And there certainly isn't if you adopt Respondents' view of the -- of the safety exception. Now what Mr. Clement 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 intrastate and interstate anyway. But I don't think that's correct. The first thing he pointed to was that 1 (b) does not include the limiting phrase "with respect to the transportation of property" the way (c)(1) does. But you don't need that phrase in (b) because the only entities covered in (b) are freight forwarders and brokers, and the only thing those guys do is act as middlemen for the transportation of property. That's what they're statutorily defined as being. So you don't need that limitation in (b). You do need it in (c) because it applies to motor carriers, which can have their cars on the road not engaged in interstate transportation of property. So I don't think that works. So I -- I really do think there's a huge anomaly here that Congress in '95, where, you know, we all acknowledge broker -- 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. Clement said, insert them in (c) and add this provision (b). And it just makes no sense whatsoever that a Congress interested in 1 preempting claims against brokers would leave greater state authority over interstate broker services than intrastate. 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 to avoid --

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. 1 So the -- the two stat -- 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. Boutrous and I are advancing today. Number one, on the safety exception, it would have been the easiest thing in the world for Congress to just repeat "with respect to transportation," just like it had half a sentence earlier, or just leave it out entirely.

Sure. Congress could always be more clear, but what I'm saying is that Congress's choice there suggests that they did not necessarily view it this way. But 1 there's more. There's much more. Congress has an entire chapter, several chapters, of the U.S. Code in Title 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 to carriers and drivers.

As a matter of federal law.

And so it's a little bit 1 odd --

Well -- well --

Right. No. No. I -- I -- 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-avoider in terms of safety are responsible for safety and they have to pledge that they're responsible for safety and obey all the safety rules as a condition of federal registration. And then brokers select from the pool of registered carriers. And --

As a practical matter, you're -- you're right. And Justice Sotomayor was right earlier. You know, 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 -- for two-thirds of those carriers in the last five years. So there is some oversight, not nearly enough. I will -- I will take -- 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 authority and 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 1 against a carrier for violating it. In fact, there's one against brokers too. Now, of course, I'm -- 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 cause -- you know, federal lawsuits based on it. But Congress did provide these as a means to ensure that carriers and brokers obey federal law.

Yes. Because a broker is defined as someone who -- you know, I'm looking at 13102(2), the back end of the definition, arranges -- arranging for transportation by a motor carrier. That is literally the service of a broker. And Petitioner's tort claim, if 1 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 C.H. Robinson erred in selecting Caribe on that occasion to transport those particular flower pots in December of 2017. Instead, it would say, Caribe, you should not -- you should not have hired -- or, C.H. Robinson, you should not have hired Caribe at all, and, in fact, no broker should ever have hired Caribe to do anything. So it's directly attacking a broker's 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 with Petitioner, have rejected this claim and have agreed that these sorts of torts fall within (c)(1).

No, we're on the opposite side from Mr. Montgomery.

Yeah, we're -- we're -- we're supporting Respondents' view.

No, no. That's one where we say --

We're -- we're -- we don't take a position. We're saying you don't need to.

I agree with everything 1 Mr. Boutrous said at the lectern today --

Brokers are required to pick from among the pool of federally registered carriers. That's what does the work here. And --

The -- the carriers would be liable for that, but, correct.

The broker -- as long as they still are --

Yeah.

That -- that is --

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. It should be registered --

We --

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 in so --

-- except insofar as through the Rowe against New Hampshire Motor Transport Association. There, that was a rule that actually regulated shippers, but it was 1 nonetheless preempted because it affected carrier services. So, under that way, perhaps it could, you know, preempt certain types of rules against shippers, but it's sort of hard to see. There may be other --

I don't know the answer to that --

-- frankly.

That's right.

Maybe, 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 -- I think maybe not. But more to the point, I think most of these claims against drivers are for 1 negligence, and those are obviously permitted. They're not preempted. And federal law, you know, by operation of federal law and 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 express in -- in the definition. And everyone understands the reason for that is so that motor carriers will always be vicariously liable for the torts of their drivers during the -- 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 sane plaintiff would bring that claim because you can just say the driver was negligent on this occasion, and therefore, you are vicariously liable. And that's typically why these claims against motor carriers aren't going to be preempted.

Yeah.

That is true, and --

Yeah.

So --

So I want to be clear. I -- I -- 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 intrastate, the other is the superfluity, potential superfluity, and the 100 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 Respondents' direction, and they suggest that "with respect to motor vehicles" has a narrower effect than it might seem. Dan's City supports that reading of "with respect to" as well. And given that every contextual clue, every oddity, every anomaly, Respondents' reading doesn't produce it, whereas Petitioner's does, I think, in the end, when you look at all of it, Respondents' is the better reading. That --

-- that's our point.

Yeah. So -- so, to be clear, the definition of "motor vehicle" is not just tractor trailer, et cetera.

But it also says it has to be "and used on a highway in transportation."

So claims about the use count --

-- under the safety exception.

No, that -- 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 it would be -- so to -- a negligent hiring --

Yeah.

Well, "use" counts because it's in the definition.

Yeah.

I take the point. And, obviously, that is Mr. Clement's point here today, but my -- my point is that --

Yeah. I mean, I guess -- I guess the way I look at it is transportation is really broad. And, yes, it says motor vehicle is one of them. And it's got other stuff that may be closer to motor vehicles, may be farther away. I think, you know, 20 -- 13102(23)(a) says motor vehicle, vessel, warehouse, et cetera, and then, in (b), it's services related to the movement, including arranging for. 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 104 to use "with respect to transportation" in 1, in paragraph 1, and "with respect to motor vehicles" in 2, 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 transportation is --

Yeah, but --

Right, yeah.

Yes, but -- but brokers don't use vehicles, right? Brokers don't control the vehicles. The broker doesn't know 105 how -- when the brakes --

-- were last inspected, how thick the tire tread is. Brokers don't even know the safety record of the driver. That's confidential.

No.

No, for carriers, not for brokers.

Under federal law, it's express.

Okay.

I -- I mean, I take the point that this could be a -- you know, what you described could be a sensible system, but I 106 think, given the federal statutes and regulations, I don't think it's what we have today.

Probably.

Yeah, agreed.

Yeah. Look --

I -- yeah, I -- I actually agree completely. I mean, I think --

-- this Court in -- in 107 Lamar and Archer made the point that --

Okay.

Yeah.

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 were -- they are required to have the financial security requirements of 750,000, 108 and, yes, that was enacted in 1980. I take the point. Maybe it's woefully inadequate.

But -- but --

Yeah.

I -- I mean, those are confidential. The carriers --

By privacy laws and federal law when -- when FMCSA reviews it. So -- 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, acknowledged, that brokers are going to follow the, you know, no 109 one ever got fired for buying IBM principal and they're just going to go to the largest carriers. It's going to be FedEx, UPS, J.B. Hunt, Penske, you know, et cetera, and --

There are going to be fewer trucks. There are going to be fewer carriers in the market.

That -- that could well be true, but that would be a result of there being fewer trucks on the road, which means worse interstate commercial motor delivery services. I mean, if Petitioner's tort 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 purposes.

There would be a surplusage 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 he -- Mr. Clement 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, as I think Justice Kagan was pointing out, in the definition of "transportation" arguably is indirectly related to a motor 111 vehicle, which means that the safety exception --

-- you could blue pencil --

I don't know how you get the grain into the elevator or 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 -- the safety exception basically reads the same if you blue pencil the phrase "with respect to motor vehicles" out of the statute.

Thank you, Mr. Chief Justice. Just a few points in rebuttal. First, a couple of times my friends on 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 percent of carriers don't actually own the -- 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 percent 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, and then, hopefully, within about a year or so, you get the fuller inspection. But 94 percent of the carriers out there haven't gotten this federal inspection. 113 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 -- my friend from the Solicitor General's office said, you know, the freight forwarders are just -- are -- 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 C.H. Robinson loads. That's all they do. They don't serve any other broker or they don't serve shippers directly. In that situation, C.H. Robinson knows or should know every bit as much as a carrier. The issue of the -- oh, and one other point on this, just 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. C.H. Robinson doesn't want to use 114 those, but other brokers do. Maybe that's why C.H. Robinson is a defendant in more of these cases than some of the other brokers. There's more that brokers can do. There was some discussion of a patchwork. That really doesn't work here because they're -- they concede there's going to be a patchwork with respect to the carriers. And this whole regime on safety allows for a patchwork. It's a -- the -- the federal safety regulations are expressly designed as a minimum, and states are allowed to go above and beyond the minimum. All right. There was some discussion of this L.B. 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 their theory sweeps 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 immunity there. 115 There was some brief discussion of the Castle case. That old chestnut, if you take a look at it, it basically says Illinois can fine drivers for violating their state law. They just can't literally bar them from the state. But, you know, 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 has 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 (c)(2), then I would urge you not to say anything really definitive about (c)(1). 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 (c)(1) 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 -- there probably 116 won't because they're so few that are purely intrastate -- 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 (c)(2) applies here, just leave (c)(1) for another day. And then I'm sure I missed some of the subtlety of the Solicitor General's 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, like, 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.