Solicitor General Recommends The U.S. Supreme Court Deny to Review of AB5 Case

We previously wrote about the California Trucking Association (“CTA”) petitioning the U.S. Supreme Court to review CTA’s AB5 lawsuit against the State of California. CTA’s petition requests that the Supreme Court overturn the 9th Circuit Court of Appeals ruling which would enforce AB5 against the transportation industry.  The injunction against AB5 remains in effect until the Supreme Court decides whether to review CTA’s case.  

In November 2021, the Supreme Court invited the U.S. Solicitor General to provide its opinion about whether review of CTA’s case should be granted.  On May 24, 2022, the Solicitor General issued an opinion which recommends the Supreme Court deny review of the case.

While the Solicitor General’s opinion is influential, the Supreme Court is not required to follow it. If the Supreme Court denies review of CTA’s case, AB5 will be in effect on the trucking sector immediately.  If review is granted, the injunction against AB5 will remain in effect until the Supreme Court makes a final decision. 

The Solicitor General’s opinion supports the 9th Circuit’s ruling that CTA is “unlikely to succeed on its claim” that the Federal Aviation Administration Authorization Act (“F4A”) preempts AB5.  The opinion also states the conflict between the 9th Circuit’s ruling and other court decisions is not enough to warrant the Supreme Court’s review. The Solicitor General further argues that the lower court should first decide whether motor carriers and owner-operators would be exempt from AB5 based on the law’s business-to-business (“B-to-B”) exemption.  Under the B-to-B exemption, AB5 would not apply to motor carriers that meet strict criteria demonstrating they are independent businesses.

CTA and the State of California have until June 7, 2022 to file supplemental briefs in response to the Solicitor General’s opinion. The Supreme Court may decide whether to grant review by late June 2022 before its summer recess or after it reconvenes in October 2022.   

Stay tuned for further news on this important case impacting the Transportation Industry. Contact our Transportation Attorneys if you have any questions about how AB5 and these rulings impact your business.

This material in this article, provided by Chauvel & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute legal advice.  For information on your particular circumstances, please contact  Chauvel & Glatt at 650-573-9500 for legal assistance near you. (Photo Credit depositphoto.com.)

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