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California doesn’t want OOIDA allowed into next steps in CTA’s AB5 lawsuit

Intervenor status first requested in 2021, but attorney general says even that was too late

(Editor’s note: Comments Wednesday from OOIDA and the California Trucking Association have been added).

California is objecting to allowing the Owner-Operator Independent Drivers Association into the next round of the California Trucking Association’s lawsuit against the state over the AB5 independent contractor law.

The filing by the state’s attorney general office in the U.S. District Court for the Southern District of California late last week is the first action by any party since the lower court made official that AB5 was no longer blocked from enforcement in the state’s trucking sector. AB5 is expected to have significant impact or even upend the use of independent owner-operators by California trucking companies. 

OOIDA is seeking to intervene in the case brought in 2018 by CTA against the state attorney general, who is now Rob Bonta. In the original litigation, it was Xavier Becerra, who now serves as U.S. Secretary of the Department of Health and Human Services. 

The association first sought to intervene in April 2021, when it said in its filing that the CTA does “not adequately represent the distinct interstate commerce interstate of OOIDA and its members.”

In the OOIDA filing from last year, one of the primary arguments made by the organization was that the CTA was focusing on what it saw as a conflict between AB5 and the Federal Aviation Administration Authorization Act. The CTA’s arguments regarding the so-called F4A regulation prevailed at the district court level in a request for an injunction against AB5, with the lower court granting that block on New Year’s Eve of 2019. 

When the injunction was handed down, consideration of the Dormant Commerce Clause was dismissed as a reason for the court’s action because potential conflict with F4A was an adequate argument alone. 

But with the appellate court decision of April 2021 overturning the injunction then upheld through Supreme Court inaction at the end of the high court’s 2021-2022 term, AB5 now applies to trucking and the original CTA lawsuit has been kicked back to the district court level. It was never fully litigated the first time, so the only question the court ruled on was the injunction. 

With that action, the question of AB5’s potential conflict with the Dormant Commerce Clause, which affects state regulation of commerce that has interstate impact, is back before the court. An unresolved issue is whether OOIDA should be allowed to participate as an intervenor.

But the state thinks it’s too late to let OOIDA into the case and told the court in a filing late last week that it was even too late back in 2021, when the organization first made its request.

Given that the original CTA case dates back to a 2018 filing, the state ticked off the timeline. OOIDA’s motion to be an intervenor “came two-and-a-half years [state emphasis] after this action was first filed, 27 months after the state defendants’ initial motion to dismiss, 19 months after this court’s ruling on defendant’s motion to dismiss the first amendment complaint,” the state writes, and the countdown continues on after that. 

California’s filing says even by April 2021, when OOIDA made its request, there had been three separate versions of the CTA complaint, “extensive briefing on various substantive issues” and several court rulings. 

The state says in its filing there are several standards that must be met for a party to be allowed into a case as an intervenor. One is timeliness. Another is having a “significantly protectable interest” and that the resolution of the case could “impair or impede” the potential intervenor’s ability to protect that interest.

OOIDA’s filing in April 2021 is not timely, the state argues. And with that, its ability to “represent the unique interests of independent contractor truck drivers” is moot because the organization did not seek intervenor status in a timely manner, according to the attorney general’s office.

In its April 2021 filing, the organization said it had not sought to intervene earlier because “it has only been by reviewing (CTA) arguments … that OOIDA has been able to discern that its interest will not be adequately represented.”

Among its worries was the CTA’s “expansive interpretation of FAAAA preemption that OOIDA is concerned could stifle the ability of states to pass laws to address other truck driver concerns in the future.” OOIDA also noted that CTA’s arguments only had two pages about the Dormant Commerce Clause claim, which is a key OOIDA concern.

Allowing OOIDA in as an intervenor would set up an interesting dynamic. OOIDA, in its 2021 filing, makes clear it does not think the concerns of the CTA are at the top of the association’s list. 

But despite that, the two organizations released a joint statement Wednesday critical of the state’s opposition to OOIDA participation in the case.

“It makes no sense that the State would oppose the participation of the nation’s largest and oldest organization representing small-business truck drivers in a lawsuit that harms tens of thousands of OOIDA’s members,” the joint statement said. “We urge the State of California to drop their opposition to the voice of independent and owner-operator truckers being heard in this matter.  They are the very workers whose livelihoods are at risk under AB5. Too many questions have gone unanswered with regard to this legislation. No one benefits when bureaucrats or regulators arbitrarily favor one small business over another.”

The key area of difference is the emphasis appears to be the Dormant Commerce Clause, because of the fact that OOIDA represents a national organization and Commerce Clause issues deal with interstate commerce. 

But there is also the fact that their members are just different, according to OOIDA.

CTA’s members consist, in part, of large companies that hire drivers, OOIDA said in its 2021 filing. But OOIDA is made up of independent truck drivers, it added.

“The contrast in interests between these two groups is significant,” OOIDA said. “While CTA’s members are concerned that AB5 will increase costs and force them to reorganize their business models, OOIDA members are concerned they will lose their business altogether. There is no party to the current litigation that seeks to represent the interests of interstate truck drivers based throughout the nation.”

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John Kingston

John has an almost 40-year career covering commodities, most of the time at S&P Global Platts. He created the Dated Brent benchmark, now the world’s most important crude oil marker. He was Director of Oil, Director of News, the editor in chief of Platts Oilgram News and the “talking head” for Platts on numerous media outlets, including CNBC, Fox Business and Canada’s BNN. He covered metals before joining Platts and then spent a year running Platts’ metals business as well. He was awarded the International Association of Energy Economics Award for Excellence in Written Journalism in 2015. In 2010, he won two Corporate Achievement Awards from McGraw-Hill, an extremely rare accomplishment, one for steering coverage of the BP Deepwater Horizon disaster and the other for the launch of a public affairs television show, Platts Energy Week.