Massachusetts High Court Agrees with New England Legal Foundation’s Brief Backing Grubhub Food Delivery Service in Dispute With Its Drivers

BOSTON —  The Bay State’s highest court agreed today (Wednesday, July 27) with a New England Legal Foundation (NELF – “amicus curiae” friend-of-the-court brief, ruling unanimously that food-service delivery workers for Grubhub are not engaged in interstate commerce and should therefore lawfully be required to arbitrate rather than sue Grubhub over employment disputes.

The NELF brief, written by the Foundation’s Senior Staff Attorney Ben Robbins, was filed in the Massachusetts Supreme Judicial Court (SJC) case of “Veronica Archer & Others v. Grubhub Holdings, Inc. and points out that the plaintiffs had all individually signed arbitration agreements with Grubhub, and that they “are not engaged in interstate commerce when they provide the local delivery of goods that have already completed their interstate journey.” In so doing, the brief argued that the drivers “do not belong to a class of workers engaged in . . . interstate commerce under … the terms of the FAA [Federal Arbitration Act]”  nor under a similar Massachusetts statute. The brief further argued, and the SJC agreed,  that the workers are therefore not exempt from the FAA’s [arbitration] mandate, and that they and Grubhub should “comply with the terms of their [individual] arbitration agreements.”

One of the precedents cited in the NELF brief was the First US Circuit Court of Appeals November 2021 decision in Cunningham v. Lyft, Inc. In that case, the Court agreed with another NELF amicus argument and ruled that the Massachusetts Lyft drivers, the plaintiffs, were not engaged in interstate commerce and were therefore bound by employee arbitration agreements.

NELF President Daniel B. Winslow noted that the Grubhub case “represented the fifth ‘amicus’ brief that NELF had filed in support of gig economy companies.  The gig economy is good for business,” he said, “good for workers, and good for New England. The New England Legal Foundation will continue to fight for a robust gig economy in New England.”

Winslow added, “These briefs were filed in accordance with the New England Legal Foundation’s ongoing mission to champion free market principles, individual economic liberties, traditional property rights, properly limited government, and balanced economic growth. NELF often challenges actions by governments and private litigants which would unreasonably intrude,” he said, “on the economic freedoms of individuals and business enterprises in New England and the nation. The case of Archer v. Grubhub was seen by us as potentially one of those actions.”


About the New England Legal Foundation (NELF)

For nearly 50 years, NELF has been the leading voice of the New England business community and entrepreneurs in advocating for the foundational values of free enterprise, property rights, good and limited government, and inclusive growth in the New England region.  The Foundation has an in-house staff of lawyers who file amicus briefs to help shape judicial decisions to favor these foundational values.  As a non-partisan, non-profit 501c3 organization, membership is open to all law firms, corporate legal departments, and individuals who support NELF’s mission.


About Ben Robbins

Ben Robbins has been an attorney at NELF since September of 2002. He has filed several amicus briefs in cases before the United States Supreme Court, the Massachusetts Supreme Judicial Court, and in other state and federal appellate courts, addressing a wide range of legal issues that determine the rights of businesses and property owners. Robbins’s diverse caseload has involved such disparate legal arenas as the Federal Arbitration Act, the Massachusetts Wage Act, the First Amendment, the limits of personal jurisdiction under the Due Process Clause, and the common law of corporate separateness.


About Dan Winslow

Daniel B. Winslow joined the New England Legal Foundation in October 2021 after serving as Chief Legal Officer of a publicly traded software support company, and at a senior level in all three branches of state government. Winslow served as Chief Legal Counsel to then-Massachusetts Governor Mitt Romney, as an elected member of the Massachusetts House of Representatives, and he served  as a judge in the Massachusetts Trial Court. Winslow is available to speak with law firms, corporate legal departments, digital and print media, businesses and business associations about NELF’s mission to champion free enterprise, protect individual property rights, advocate good and limited government, and promote inclusive economic growth.


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