WSTA Reaching-out to Members and Industry for Support to file Amicus Briefs to the Court of Appeals for the Ninth Circuit
We Must File by May 13th (Less than 4 weeks away)
By now, all of you in trucking should be aware of California’s aggressive attempt with AB 5 to eliminate independent contractors and those who utilize them…who will be forced to become their employers…it’s virtually unamerican in many people’s opinion! We need your help! We also know that there has never been a worse time to ask for help with the COVID-19 pandemic affecting every part of our lives. Understanding this terrible dilemma, we have no choice but to at least ask! We are reaching out to both member and nonmembers for financial support for arguably the most important issue to ever face this state and this country’s trucking industry! Please consider contributing to the WSTA Legal Defense Fund so that we can continue to fight to protect our industry.
The California Trucking Association recently reached-out to WSTA and asked if we would be willing to file a support Amicus Brief in the U.S. Court of Appeals for the Ninth Circuit supporting their federal preemption (F4A) claim which is virtually identical to our case last year in the Ninth Circuit, which we were forced to drop after the Legislature changed the law with AB 5. Frankly, this opportunity to sway the 9th Circuit panel will only come along once in our lives, we believe. The claim could be industry’s last opportunity to preempt the state’s agenda to eliminate independent contractors – at least those involved in trucking. If you are affected by this, we need your help to fight for you and your business whether you are an owner-operator, or you utilize this business model within your trucking business!
In late March, WSTA counsel reviewed a CTA sponsored memo from law firm Mayer Brown requesting amicus briefs from industry nationwide to support CTA’s effort to keep the AB 5 injunction in place, at least until the trial court hears the case. Per our conversation, we think it is critically important for WSTA to submit an amicus brief to the Court of Appeals for the Ninth. In fact, we think there may be an opportunity to impact the 9th Circuit’s decision by filing one if not multiple amicus briefs.
Our separate AB-5 lawsuit which these funds will help finance, will also be used to challenge the onerous construction exemption that has positioned the State into making an argument that construction trucking is essentially no different than any other industry impacted by AB 5, including general freight, Ag, and port trucking. This is potentially advantageous to us because it allows us to argue to the court that our construction trucking members are covered by CTA’s injunction. For that reason alone, it is imperative that WSTA file an amicus brief seeking to uphold the injunction and protect the construction trucking industry while CTA fights a broader agenda.
We are at a critical time for the industry. But if not for the injunction currently in place, many of our members would not be able to work, and many more would have to radically change the way they do business, likely increasing their costs by at least 30%. As we speak, there are three dozen bills pending in the Legislature to expand upon AB 5, and with the Democratic controlled Legislature in Sacramento, there is no likelihood of any relief for the trucking industry. Quite the opposite, the Legislature may give some relief to other industries, which will only serve to isolate trucking, which was after all one of the primary targets of the bill.
However, the amicus process allows us a unique opportunity to showcase various segments of WSTA’s membership and highlight the specific impacts that AB 5 will have upon different groups. Unlike the direct parties to an appeal, amicus briefs are not confined to the evidentiary record. Rather, they can be used as a vehicle to inform the court on how the legal issue on appeal can impact other groups not formally before the court. Thus, we envision WSTA’s amicus brief to focus on the impacts of AB 5 to construction trucking generally, and we would use the amicus process to educate the court about the way the industry has operated for decades, and why the flexibility of the independent contractor model is essential to all levels of the industry. This brief can focus on the important role that brokering plays in our industry, and how AB 5 will negatively impact small, medium and large companies.
In addition, we are trying to facilitate the formation of a new, ad-hoc group of owner-operators, which would file a separate amicus brief. We are thinking of something like Owner-Operators for the American Dream, or perhaps The Freedom Coalition, or something similar. This group would be comprised solely of owner-operators. This organization could file a brief articulating the dramatic impact AB 5 has on those who are trying to pursue the American dream by starting out with a one-truck operation and building their own business, working for themselves, and hopefully building a larger operation through old-fashioned hard work.
We would need to get input from member owner-operators to get their unique perspective. We think this organization could file a unique brief that will paint a compelling story of how entrepreneurial small businesses that are struggling to build a better life for themselves and their families. It would allow us to tell personal, and perhaps even emotional stories that the appellate court would not normally hear when reading a cold trial transcript.
We intend to fund this effort out of WSTA’s Legal Defense Fund, which unfortunately is almost depleted. We hope that this industry out-reach effort, will be an opportunity to raise awareness and the need for more financial resources for the WSTA Legal Defense Fund. So again, we need your help! Any contribution you make will be used to help defray the cost of the various amicus briefs we are trying to organize.
Also, if you are an owner-operator and want to speak with our legal team to share your unique perspective, please contact our office at 909-992-9898.
On March 30th the Ninth Circuit denied the Teamster’s motion to stay the preliminary injunction issued by the District Court in January which prevents the State from applying AB 5 to all motor carriers. In practical terms, this means the preliminary injunction will remain in effect for the duration of the proceedings on the appeal at the Ninth Circuit. The court order is attached on WSTA’s website.
The State of California and Teamsters have filed opening briefs and CTA’s reply brief is due on May 6th. CTA has been reaching out to transportation associations and trucking organization’s interested in filing amicus briefs which are due on May 13th less than 30 days from now!
We Need Everyone’s Help!
Please send any contributions, care of “WSTA Legal Defense Fund”, 334 N. Euclid Ave. Upland, CA 91786 or call in to WSTA at (909) 992-9898 and we can take a credit card payment.
Any amount would be appreciated!
WSTA Executive Committee & Staff