NELF’s Friend-of-the-Court Brief Backs Grubhub in Massachusetts Supreme Judicial Court Case

BOSTON —  The New England Legal Foundation (NELF) has filed an “amicus curiae” friend-of-the-court brief in a Massachusetts Supreme Judicial Court (SJC) case reasserting a claim by the food-service delivery company Grubhub that its workers are not engaged in interstate commerce and should therefore lawfully be required to arbitrate rather than sue Grubhub over employment disputes.

The brief was filed in the SJC case of “Veronica Archer & Others v. Grubhub Holdings, Inc. and was written and filed by NELF Senior Staff Attorney Ben Robbins. Citing a number of previous court rulings in federal and in other states’ courts, the brief points out that the plaintiffs had all individually signed arbitration agreements with Grubhub, that they “are not engaged in interstate commerce when they provide the local delivery of goods that have already completed their interstate journey,” and that they “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 argues 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 Attorney Robbins’s Grubhub case brief is the First US Circuit Court of Appeals November 2021 decision in Cunningham v. Lyft, Inc. In that case, the Court agreed with an 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 “represents the fifth ‘amicus’ brief that NELF has filed in support of the gig economy.  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, “The brief was 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 is 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.

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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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