The Sixth Circuit recently became the latest Court of Appeals to weigh in on whether the Federal Aviation Administration Authorization Act (FAAAA) preempts claims of negligent carrier selection under state common law for brokers of transportation services. In Cox v. Total Quality Logistics, the Court held that FAAAA preemption does not apply and that brokers can be liable for negligent hiring.¹ 

In doing so, the Sixth Circuit adopted similar reasoning as the Ninth Circuit in conflict with both the Seventh and Eleventh Circuits. At the same time, this hardening circuit split has revived a long-simmering debate about the application of FAAAA preemption.

The Court's decision highlights the increasing risk in which brokers — a vital component of the United States transportation industry and interstate commerce — operate and a growing divide in FAAAA jurisprudence that can now only be resolved by the U.S. Supreme Court.

The Origin, Purpose, and Impact of the Federal Aviation Administration Authorization Act (FAAAA)

A wave of transportation industry deregulation swept through Washington, D.C. almost 50 years ago. In 1978, the Airline Deregulation Act (ADA) was signed into law deregulating the airline industry in order to achieve "maximum reliance on competitive market forces" by limiting the ability of states to impose their own patchwork of regulations.² Two years later, the Motor Carrier Act was enacted, extending ADA deregulation to the trucking industry.³ The deregulation wave crested several years later, in 1994, with the passage of the FAAAA, which, borrowing extensively from ADA's statutory language, preempted state laws "related to a price, route, or service of any motor carrier…broker, or freight forwarder with respect to the transportation of property."⁴

FAAAA preemption, however, was not without limit. In particular, FAAAA preemption "shall not restrict the safety regulatory authority of a State with respect to motor vehicles." The safety exception was to ensure that states could still exercise their "preexisting and traditional [ ] police power over safety."⁵

The Supreme Court followed suit. In a series of decisions, the Court made clear the breadth of FAAAA preemption and struck down state efforts to regulate the trucking industry that would interfere with interstate commerce.⁶

Circuit Court Conflict Emerges

Even though the Supreme Court made clear that state laws are preempted even when they have only an "indirect" effect, the Court's decision to not clarify the boundaries of preemption led circuit court's to adopt different approaches when evaluating the scope of FAAAA preemption.⁷ These diverging applications, which have prompted several petitions for certiorari over the past ten years, is best exemplified by the Ninth and First Circuits.

In Dilts v. Penske Logistics, the Ninth Circuit held that California's meal and rest break laws are not subject to FAAAA preemption.⁸ In upholding California's meal and rest break laws, the Ninth Circuit articulated a narrow scope of preemption defined by the following principles:

• Preemption analysis begins with a presumption against preemption with deference toward traditional state police power regulations.
• Congress did not intend to preempt generally applicable state transportation, safety, welfare or business rules not specific to prices, routes, or service.
• Laws are more likely to be preempted when they operate at the point where carriers provide services to customers at specific prices.
• Generally applicable regulations that nevertheless impact prices, routes, or services, or shift incentives and make it more costly to operate are not preempted.

With these principles in mind, the Ninth Circuit narrowly construed the FAAAA's "related to" statutory language to limit its preemptive scope.⁹

The First Circuit, however, applied a different analysis emphasizing that the "related to test" — at the heart of FAAAA preemption's scope — is purposefully expansive.¹⁰ Relying on that interpretation of the statutory language, the court rejected the Ninth Circuit's analysis in Dilts: generally applicable laws are equally subject to preemption consistent with Supreme Court precedent. Adopting the Ninth Circuit's preemption analysis would create an "utterly irrational loophole" that would enable states to impair a "federal scheme…so long as it is effected by the particularized application of a general statute."¹¹

Multiple petitions, stemming from the cases above and others, for Supreme Court review clarifying how courts should interpret the scope of FAAAA preemption have been denied.

New Circuit Court Conflict Emerges Over the Safety Exception

The ambiguity, and circuit court conflict, on the breadth of preemption created by FAAAA statutory language has engendered a new disagreement between the courts with significant implications for transportation brokers. The current split — between the Ninth and Sixth Circuits on one hand and the Seventh and Eleventh Circuits on the other — also stems from differing interpretations of FAAAA statutory language.

In Miller v. C.H. Robinson Worldwide, the Ninth Circuit, borrowing from its prior FAAAA jurisprudence in which it applied a presumption against preemption and deference toward traditional state regulatory police powers, held that negligent carrier selection claims fall within the FAAAA safety exception.¹² First, the court held that "while it is possible to construe 'the safety regulatory authority of a State' more narrowly," courts should adopt a reading that disfavors preemption.¹³ To adopt a narrower construction of the exception "would place a large body of state law beyond [its] reach" and thus expand the scope of FAAAA preemption.¹⁴ Second, consistent with its narrowing interpretation of FAAAA preemption, the court asserted that the phrase "with respect to" in the exception is necessarily broad so that the state can pursue indirect efforts to improve road safety.

Following the Miller decision, both the Eleventh and Seventh Circuits weighed in. Departing from the Ninth Circuit's analysis in Miller, the courts held that while the negligence claims are preempted by the FAAAA, they are not saved by the safety exception.¹⁵ Specifically, while common law negligence claims are within the "safety regulatory authority" contemplated by the exception, they are not "with respect to motor vehicles."

The courts interpreted "with respect to" narrowly requiring a "direct relationship to motor vehicles." This interpretation was consistent with Supreme Court precedent, was consistent with the statute's intent (if the exception was too broad it would deprive the FAAAA of its preemptive objective), and "leaves a field of operation" for the other exception.¹⁶ The Seventh Circuit further added that the absence of any reference to brokers within the exception language, while brokers are explicitly identified under the initial preemption inquiry, demonstrates Congress's recognition that the connection "between brokers and motor vehicle safety will be indirect, at most."¹⁷

At this point, the controversy over the scope of FAAAA preemption could have begun to whither, with the Ninth Circuit increasingly isolated in allowing states to impose burdens on the trucking and logistics industry. But earlier this month, the Sixth Circuit reinforced the circuit split by joining the Ninth Circuit in adopting a broad interpretation of the FAAAA preemption safety exception. In reaching this holding, the Sixth Circuit acknowledged the preexisting circuit split and explicitly disagreed with both the Eleventh and Seventh Circuits' analyes.¹⁸ Unlike those courts, the Sixth Circuit adopted a more expansive interpretation of "with respect to motor vehicles" explaining that a direct relationship is not necessary so long as the conduct subject to the negligence claim "involve[s]" transportation and motor vehicles.¹⁹

Protecting Against Liability and the Prospect of Supreme Court Review

The unresolved question of whether the FAAAA safety exception protects brokers from negligence claims means that broker liability varies significantly from state-to-state and region-to-region. Where the safety exception has been established — as in Ninth and Sixth Circuits — brokers can anticipate significant litigation risk over negligent carrier selection. This litigation risk reinforces the importance of well-established standard operating procedures in evaluating, selecting, and managing carrier relationships. But even in jurisdictions, like the Eleventh and Seventh, where the courts have held that negligence claims are preempted, brokers can anticipate continued efforts by plaintiffs' attorneys to test the scope of FAAAA preemption.

The inconsistent application of FAAAA preemption, and specifically the safety exception, has set the stage for Supreme Court review. With the Ninth and Sixth Circuits in express disagreement with the Eleventh and Seventh Circuits, the conflict is ripe. C.H. Robinson, although prevailing on appeal before the Seventh Circuit, recently supported a petition for review hoping that the justices will take up the case to clarify the scope of the safety exception. Total Quality Logistics (TQL) unsuccessfully pursued a similar strategy at the end of 2024 in a case out of the Eleventh Circuit. Meanwhile, TQL is likely to appeal the Sixth Circuit Cox decision presenting the Supreme Court with a second opportunity to grant cert.

In the meantime, brokers and their attorneys must be vigilant in their efforts to limit liability arising from carrier selection and be prepared to exercise FAAAA preemption defense in the case of litigation.

Even if brokers are entitled to the benefits of broad FAAAA preemption of liability claims, here, an ounce of prevention is worth a pound of cure. Brokers should implement clear, consistent processes for contracting with and selecting carriers on behalf of their shipper clients. That process should include:

• Initial and periodic review of Safety and Fitness Electronic Records (SAFER) System data to assess carrier safety records, compare those safety records against industry averages, and benchmark performance over time.
• Understand the internal safety and driver training practices of carriers, particularly those used repeatedly to support shipper-client transportation needs.
• Incorporate unequivocal and explicit carrier safety and compliance expectations in broker-carrier agreements.
• Leverage third-party safety and compliance technology solutions to evaluate and track carrier risk.

Regardless of whether brokers are protected from carrier selection liability under FAAAA preemption, these steps will help make brokers less vulnerable to such claims and thus less attractive targets for plaintiffs' attorneys.

In the event of an incident implicating negligent carrier selection, brokers and their attorneys should argue early that they are protected from liability under FAAAA preemption and seek delay of litigation pending Supreme Court review. It is important that brokers do not assume that a judge is familiar with FAAAA preemption, the role brokers play in the transportation industry, how carriers are regulated by the FMCSA, or how brokers contract with carriers. Statutes providing private industry with blanket protection from liability are exceedingly rare (and often controversial). Plaintiffs' attorneys will seek to conflate the responsibilities of brokers and carriers, and overstate the ability of brokers to evaluate or control carrier safety and operations. Exerting FAAAA preemption claims early will help educate the court about the arms-length nature of broker-carrier relationships and Congress's recognition of the role brokers play in facilitating transportation services.

The Sixth Circuit's Cox decision is a practical reminder for brokers about the unsettled liability landscape and the need to remain vigilant pending resolution of FAAAA preemption. While the Supreme Court may take up the question in the near future, its review is far from guaranteed. And even if the Court ultimately establishes FAAAA preemption as a shield against negligent carrier selection claims, shipper clients will appreciate broker investments in quality carrier partnerships that ensure safe, reliable transportation of their goods.

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¹ Cox v. Total Quality Logistics, Inc., No. 24-3599, 2025 WL 1878770 (6th Cir. July 8, 2025).

² Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 255 (2013).

³ Id. at 256.

⁴ Id.

⁵ 49 U.S.C.A. § 14501(c)(2)(a).

⁶ See, e.g., Rowe v. New Hampshire Motor Transp. Ass'n, 552 U.S. 364 (2008); Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251 (2013); Am. Trucking Associations, Inc. v. City of Los Angeles, Cal., 569 U.S. 641 (2013).

⁷ See Rowe, 552 U.S. at 370, 375–76.

⁸ Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014).

⁹ Id. at 642–46.

¹⁰ Massachusetts Delivery Ass'n v. Coakley, 769 F.3d 11, 18 (1st Cir. 2014).

¹¹ Id. at 19–20.

¹² Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020).

¹³ Id. at 1027.

¹⁴ Id. at 1028.

¹⁵ Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261 (11th Cir. 2023); Ye v. Globaltranz Enterprises, Inc., 74 F.4th 453 (7th Cir. 2023).

¹⁶ See Aspen, 65 F.4th at 1271-72.

¹⁷ Ye, 74 F.4th at 461.

¹⁸ Cox, No. 24-3599, 2025 WL 1878770 at *8.

¹⁹ Id.