United States Court of Appeals 

For the First Circuit 

No. 19-1848 

BERNARD WAITHAKA, on behalf of himself and 

all others similarly situated, 

Plaintiff, Appellee, 

v. 

AMAZON.COM, INC.; AMAZON LOGISTICS, INC., 

Defendants, Appellants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Timothy S. Hillman, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lipez, and Thompson, Circuit Judges. 

 David B. Salmons, with whom James P. Walsh, Jr., Noah J. 

Kaufman, Michael E. Kenneally, and Morgan, Lewis & Bockius LLP 

were on brief, for appellants. 

 Harold L. Lichten, with whom Shannon Liss-Riordan, Adelaide 

H. Pagano, and Lichten & Liss-Riordan, P.C. were on brief, for 

appellee. 

 Archis A. Parasharami and Mayer Brown LLP on brief for the 

Chamber of Commerce of the United States of America and the 

National Association of Manufacturers, amici curiae. 

 Corbin K. Barthold, Richard A. Samp, and Washington Legal 

Foundation on brief for Washington Legal Foundation, amicus 

curiae. 

Toby J. Marshall, Blythe H. Chandler, Elizabeth A. Adams, 

Terrell Marshall Law Group PLLC, Jennifer D. Bennett, and Public 
Justice on brief for Public Justice, amicus curiae. 

July 17, 2020 
- 3 - 

LIPEZ, Circuit Judge. This putative class action 

requires us to decide whether employment contracts of certain 

delivery workers -- those locally transporting goods on the last 

legs of interstate journeys -- are covered by the Federal 

Arbitration Act ("FAA" or the "Act"), given its exemption for 

"contracts of employment of seamen, railroad employees, or any 

other class of workers engaged in foreign or interstate commerce." 

9 U.S.C. § 1. We have not considered the scope of the exemption 

since the Supreme Court held in Circuit City Stores, Inc. v. Adams, 

532 U.S. 105 (2001), that this provision is limited to employment 

contracts of "transportation workers." After close examination of 

the text and purpose of the statute and the relevant precedent, we 

now hold that the exemption encompasses the contracts of 

transportation workers who transport goods or people within the 

flow of interstate commerce, not simply those who physically cross 

state lines in the course of their work. 

Plaintiff-appellee Bernard Waithaka, a so-called "last 

mile" delivery driver for defendants-appellants Amazon.com, Inc. 

("Amazon.com") and its subsidiary, Amazon Logistics, Inc. ("Amazon 

Logistics"),1 falls within this category of transportation workers 

whose contracts are exempt from the FAA. Hence, we conclude that 

the FAA does not govern the enforceability of the mandatory 

1 We refer collectively to appellants as "Amazon."
- 4 - 

arbitration provision of his employment agreement with appellants. 

Because that provision prohibits proceeding on a class basis, 

either in the arbitral or judicial forum, we also agree with the 

district court that the arbitration provision is unenforceable 

under state law. Therefore, we affirm the district court's denial 

of appellants' motion to compel arbitration. 

I. 

A. Factual Background2

 Amazon.com and Amazon Logistics are based in Seattle, 

Washington. Amazon sells retail products online to customers 

throughout the United States. To "ensure that millions of packages 

reach their final destination as efficiently as possible," Amazon 

Logistics provides package delivery services "through the last 

mile of the order." Amazon attributes its success as "one of the 

world's largest online retailers," in part, to its "accurate and 

timely package delivery." 

Historically, Amazon has used third-party delivery 

providers, such as FedEx, UPS, and the United States Postal 

Service, to deliver its products. In recent years, however, Amazon 

has also begun to contract with independent contractors for 

2 "Because [Amazon's] motion to compel arbitration was made 

in connection with a motion to dismiss or stay, we draw the 

relevant facts from the operative complaint and the documents 

submitted to the district court in support of the motion to compel 

arbitration." Cullinane v. Uber Techs., Inc., 893 F.3d 53, 55 

(1st Cir. 2018). 
- 5 - 

delivery services through its Amazon Flex ("AmFlex") smartphone 

application. These contractors, like Waithaka, sign up for 

delivery shifts and then use their own methods of transportation 

-- typically, a private vehicle -- to deliver products ordered 

through Amazon within a specified timeframe and in compliance with 

other Amazon service standards. AmFlex contractors are paid an 

hourly rate for their delivery shifts. But if contractors require 

more time than a normal shift to complete all of their deliveries, 

they are not compensated for the additional time. Nor do they 

receive any reimbursement for their gas, car maintenance, or 

cellphone data expenses. 

 To begin work with AmFlex, a prospective contractor must 

download the AmFlex app, create an account, login, and agree to 

the AmFlex Independent Contractor Terms of Service (the 

"Agreement" or the "TOS"). The second paragraph of the TOS states: 

YOU AND AMAZON AGREE TO RESOLVE DISPUTES 

BETWEEN YOU AND AMAZON ON AN INDIVIDUAL BASIS 

THROUGH FINAL AND BINDING ARBITRATION, UNLESS 

YOU OPT OUT OF ARBITRATION WITHIN 14 CALENDAR 

DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT, 

AS DESCRIBED BELOW IN SECTION 11. 

Section 11 of the Agreement (the "dispute resolution 

section") further explains the arbitration requirement and also 

states that the parties waive their rights to bring class actions: 
- 6 - 

11. Dispute Resolution, Submission to 

Arbitration. 

a) SUBJECT TO YOUR RIGHT TO OPT OUT OF 

ARBITRATION, THE PARTIES WILL RESOLVE BY FINAL 

AND BINDING ARBITRATION, RATHER THAN IN COURT, 

ANY DISPUTE OR CLAIM, WHETHER BASED ON 

CONTRACT, COMMON LAW, OR STATUTE, ARISING OUT 

OF OR RELATING IN ANY WAY TO THIS AGREEMENT, 

INCLUDING TERMINATION OF THIS AGREEMENT, TO 

YOUR PARTICIPATION IN THE PROGRAM OR TO YOUR 

PERFORMANCE OF SERVICES. TO THE EXTENT 

PERMITTED BY LAW, THE PRECEDING SENTENCE 

APPLIES TO ANY DISPUTE OR CLAIM THAT COULD 

OTHERWISE BE ASSERTED BEFORE A GOVERNMENT 

ADMINISTRATIVE AGENCY. 

b) TO THE EXTENT PERMITTED BY LAW, THE PARTIES 

AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS 

WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS 

AND NOT ON A CLASS OR COLLECTIVE BASIS. 

. . . 

g) THIS AGREEMENT SHALL NOT BE INTERPRETED AS 

REQUIRING EITHER PARTY TO ARBITRATE DISPUTES 

ON A CLASS, COLLECTIVE OR REPRESENTATIVE 

BASIS, EVEN IF A COURT OR ARBITRATOR 

INVALIDATES OR MODIFIES OR DECLINES TO ENFORCE 

THIS AGREEMENT IN WHOLE OR IN PART.3

 Two parts of the Agreement pertain to the parties' choice 

of law. The dispute resolution section includes a provision 

stating that "the Federal Arbitration Act and applicable federal 

law will govern any dispute that may arise between the parties." 

3 For clarity, we refer to the provision of the dispute 

resolution section that relates to the arbitration requirement 

(subsection a) as the "arbitration provision" and those provisions 

that relate to class claims (subsections b and g, as well as 

several other provisions of Section 11 that reiterate that the 

Agreement does not permit the parties to pursue claims or receive 

relief on a class basis) as the "class waiver provisions." 
- 7 - 

In a separate section (the "governing law section"), the TOS 

indicates the law that governs the interpretation of the Agreement: 

12. Governing Law. 

The interpretation of this Agreement is 

governed by the law of the state of Washington 

without regard to its conflict of laws 

principles, except for Section 11 of this 

Agreement, which is governed by the Federal 

Arbitration Act and applicable federal law. 

 Finally, the Agreement includes a severability 

provision, which states that "[i]f any provision of this Agreement 

is determined to be unenforceable, the parties intend that this 

Agreement be enforced as if the unenforceable provisions were not 

present and that any partially valid and enforceable provisions be 

enforced to the fullest extent permissible under applicable law."

 Waithaka, a resident of Massachusetts, "on-boarded" into 

the AmFlex program on January 13, 2017, and accepted the TOS on 

that same date. He did not opt out of the arbitration agreement. 

Since 2017, Waithaka has collected packages for delivery in 

Massachusetts and has not crossed state lines in the course of his 

deliveries. 

B. Procedural Background

 Waithaka filed this action in Massachusetts state court 

in August 2017, asserting three claims against Amazon: (1) 

misclassification of AmFlex drivers as independent contractors, 

rather than employees; (2) violation of the Massachusetts Wage Act 
- 8 - 

by requiring AmFlex drivers to "bear business expenses necessary 

to perform their work"; and (3) violation of the Massachusetts 

Minimum Wage Law. He seeks to bring these claims on behalf of 

himself and "individuals who have worked as delivery drivers for 

[appellants] in the Commonwealth of Massachusetts and have been 

classified as independent contractors." 

Although Amazon timely removed the case to federal 

court, the district court remanded the case after concluding that 

the putative class did not meet the requisite amount in controversy 

for jurisdiction pursuant to the Class Action Fairness Act 

("CAFA"). Waithaka v. Amazon.com, Inc., No. 17-40141-TSH, 2018 WL 

4092074, at *3 (D. Mass. Aug. 28, 2018). However, Amazon was 

successful when it again removed the case in September 2018. 

Concluding that the amount in controversy had increased since the 

first removal and that the second removal was not time-barred, the 

district court denied Waithaka's second motion to remand. Waithaka 

v. Amazon.com, Inc., 363 F. Supp. 3d 210, 212-14 (D. Mass. 2019). 

 In April 2019, Amazon moved to compel arbitration 

pursuant to the TOS, or, in the alternative, to transfer the case 

to the United States District Court for the Western District of 

Washington so that the case could proceed with similar, earlierfiled litigation that was pending. In August 2019, the district 

court denied in part and granted in part the motion. Waithaka v. 

Amazon.com, Inc., 404 F. Supp. 3d 335, 339 (D. Mass. 2019). 
- 9 - 

Specifically, the district court concluded that Waithaka's 

Agreement was exempt from the FAA, that Massachusetts law therefore 

governed the enforceability of the arbitration provision, and that 

the provision was unenforceable based on Massachusetts public 

policy. Id. at 343, 346, 348. However, the court granted 

appellants' alternative request to transfer the case, which has 

since occurred.4 Id. at 349-51. 

Amazon timely filed this appeal, challenging the 

district court's denial of the motion to compel arbitration. The 

parties agreed to stay the Washington proceedings pending the 

resolution of the appeal.

II. 

 The interpretation of arbitration agreements and the 

issuance of orders compelling arbitration, or declining to do so, 

are subject to de novo review. Gove v. Career Sys. Dev. Corp., 

689 F.3d 1, 4 (1st Cir. 2012). Similarly, we review de novo choice 

of law determinations. Robidoux v. Muholland, 642 F.3d 20, 22 

(1st Cir. 2011). 

A. Background of the FAA 

 Congress passed the FAA in 1925 "to overcome judicial 

hostility to arbitration agreements." Circuit City, 532 U.S. at 

118 (quoting Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 

4 The district court's decision to transfer the case is not 

challenged in this appeal. 
- 10 - 

265, 272-73 (1995)). The Act reflects a "liberal federal policy 

favoring arbitration agreements," Moses H. Cone Mem'l Hosp. v. 

Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and provides that 

"[a] written provision in . . . a contract evidencing a transaction 

involving commerce to settle by arbitration a controversy 

thereafter arising out of such contract . . . shall be valid, 

irrevocable, and enforceable," 9 U.S.C. § 2 (emphasis added). The 

Supreme Court has held that the phrase "involving commerce" in 

Section 2 -- referred to as the "coverage" provision of the FAA, 

Circuit City, 532 U.S. at 115 -- reflects Congress's "intent to 

exercise [its] commerce power to the full," Allied-Bruce, 513 U.S. 

at 277. 

Despite the broad scope of Section 2, the FAA does not 

apply to all contracts that include arbitration provisions. 

Section 1 of the Act exempts employment contracts of certain 

categories of workers from the Act's coverage. See 9 U.S.C. § 1. 

Specifically, the Act does not apply "to contracts of employment 

of seamen, railroad employees, or any other class of workers 

engaged in foreign or interstate commerce." Id. This case 

concerns the scope of the residual clause of that exemption: "or 

any other class of workers engaged in foreign or interstate 

commerce." 

In Circuit City the Supreme Court rejected the 

contention that Section 1 exempts from the FAA's coverage all 
- 11 - 

employment contracts. 532 U.S. at 119. Instead, it held that the 

provision exempts "only contracts of employment of transportation 

workers." Id. In reaching this conclusion, the Court articulated 

principles for interpreting the FAA, and Section 1 in particular. 

First, phrases similar to the language of Section 1 -- 

"in commerce" and "engaged in commerce" -- are terms of art that 

have not been interpreted as expansively as the phrase "involving 

commerce," the terminology used in Section 2. Id. at 115-16. To 

reach that conclusion, the Court examined how these respective 

phrases had been interpreted in other statutory contexts. Id. at 

116-17 (citing Jones v. United States, 529 U.S. 848, 855 (2000) 

(interpreting federal arson statute); United States v. Am. Bldg. 

Maint. Indus., 422 U.S. 271, 279-80 (1975) (interpreting Clayton 

Act); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 199-202 

(1974) (interpreting Robinson-Patman Act and Clayton Act); FTC v. 

Bunte Bros., Inc., 312 U.S. 349, 350-51 (1941) (interpreting 

Federal Trade Commission Act)). Second, the residual clause must 

be interpreted in light of the specifically enumerated categories 

of workers that directly precede it, consistent with the ejusdem 

generis canon of statutory construction.5 Id. at 114-15. Third, 

5 Pursuant to this canon of construction, "[w]here general 

words follow specific words in a statutory enumeration, the general 

words are construed to embrace only objects similar in nature to 

those objects enumerated by the preceding specific words." Circuit 

City, 532 U.S. at 114-15 (alteration in original) (quoting 2A 
- 12 - 

the Act's pro-arbitration purpose counseled in favor of narrowly 

construing the Section 1 exemption. Id. at 118-19. Finally, while 

there was "sparse" legislative history on the Section 1 exemption, 

id. at 119, excluding transportation workers from the FAA's 

coverage was consistent with "Congress'[s] demonstrated concern 

with transportation workers and their necessary role in the free 

flow of goods," id. at 121. 

B. Scope of the Transportation Worker Exemption 

 Using the principles articulated in Circuit City as a 

guide, we turn now to the interpretive question raised in this 

case: does Waithaka belong to a "class of workers engaged in 

foreign or interstate commerce," such that his contract with 

appellants is exempt from the FAA's coverage? 

In answering that question, we note that the Supreme 

Court recently held that the Section 1 exemption does not apply 

exclusively to contracts of "employees," but rather to "agreements 

to perform work," including those of independent contractors. New 

Prime Inc. v. Oliveira, 139 S. Ct. 532, 544 (2019). Accordingly, 

there is no dispute that the independent contractor agreement at 

issue here would fall within the Section 1 exemption if Waithaka 

qualifies as a transportation worker. 

Norman J. Singer, Sutherland on Statutes and Statutory 

Construction § 47.17 (1991)). 
- 13 - 

Importantly, in New Prime, the Court supplemented the 

interpretive guidance of Circuit City by instructing that we must 

interpret the Section 1 exemption according to the "fundamental 

canon of statutory construction that words generally should be 

interpreted as taking their ordinary . . . meaning . . . at the 

time Congress enacted the statute." 139 S. Ct. at 539 (alterations 

in original) (internal quotation marks omitted) (quoting Wisc. 

Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)). As a 

threshold matter, the parties disagree about which words within 

the exemption (the Act does not apply "to contracts of employment 

of seamen, railroad employees, or any other class of workers 

engaged in foreign or interstate commerce," 9 U.S.C. § 1 (emphasis 

added)) are important to our interpretive task. Amazon asserts 

that the key to understanding the scope of the residual clause is 

the meaning of the phrase "interstate commerce." Whether the 

contracts of a group of workers fall within the ambit of the 

clause, Amazon contends, turns on the activities the workers were 

hired to perform. Only if the workers' activities themselves

qualify as "interstate commerce"6 can they qualify as 

transportation workers whose employment contracts are exempt from 

the FAA. Because Waithaka and his fellow local delivery drivers 

6 Because the parties do not contend that Waithaka "engaged 

in foreign . . . commerce," we focus only on the meaning of "engaged 

in . . . interstate commerce." See 9 U.S.C. § 1. 
- 14 - 

do not personally carry goods across state lines and engage only 

in intrastate activities, Amazon maintains that they are not 

covered by the residual clause. 

Waithaka counters that "engaged in" is the crucial 

phrase for understanding the exemption. When the FAA was enacted 

in 1925, Waithaka insists, there was an understanding that workers 

could be "engaged in . . . interstate commerce" without crossing 

state lines; rather, this phrase included workers who 

"transport[ed] goods or passengers (or facilitat[ed] the 

transportation of goods and passengers) within a single state that 

[were] ultimately going to or coming from another state."

We agree with Waithaka that understanding the scope of 

the residual clause turns not only on the definition of "interstate 

commerce," but also on the words that precede that phrase: "engaged 

in." The Court in Circuit City did not look solely to the phrase 

"interstate commerce" to interpret the scope of the Section 1

exemption. Rather, it emphasized the significance of the words 

modifying that phrase. 532 U.S. at 115-17. Therefore, to 

determine what it meant to be "engaged in" interstate commerce in 

1925, and thus whether Waithaka and his fellow AmFlex workers fall 

within the scope of the transportation worker exemption, we 

consider the interpretation of statutes contemporaneous with the 

FAA, the sequence of the text of the exemption, the FAA's 
- 15 - 

structure, and the purpose of the exemption and the FAA itself. 

Cf. id. at 111-21. 

1. Contemporaneous Statutes 

In considering the scope of the phrase "engaged in" 

interstate commerce, the Court in Circuit City first rejected an 

argument that it should give the phrase "a broader construction 

than justified by its evident language" simply because the FAA was 

enacted at a time when Congress's power to regulate pursuant to 

the Commerce Clause was circumscribed. 532 U.S. at 116-18. The 

petitioner in Circuit City asserted that, because the phrase 

"engaged in . . . interstate commerce," as it was understood in 

1925, "came close to expressing the outer limits of Congress['s 

Commerce Clause] power as then understood," the Court should 

interpret the Section 1 exemption to be co-extensive now with the 

more expansive modern understanding of the Commerce Clause. Id. 

at 116. According to the logic of the petitioner's argument, 

Congress likely thought in 1925 that it was excluding all 

employment contracts within the scope of its Commerce Clause 

authority, and, hence, the Court should interpret Section 1 as 

exempting the broader range of contracts that are now understood 

to be within Congress's Commerce Clause authority. See id. 

The Court rejected that argument, concluding that it 

would lead to a constantly shifting understanding of the meaning 

of the statutory language. Id. at 117. Rather, the Court affirmed 
- 16 - 

that its task in interpreting Section 1 was to assess the meaning 

of the words in the exemption when written. See id. at 117-19. 

Thus, it looked to the interpretation of similar phrases in 

statutes contemporaneous to the FAA. Id. at 117-18. Relying on 

its interpretation of the phrase "engaged in commerce" in the 

Clayton Act, enacted in 1914, the Court noted that this 

jurisdictional phrase "appears to denote only persons or 

activities within the flow of interstate commerce." Id. at 118 

(quoting Gulf Oil Corp., 419 U.S. at 195). That definition 

reflected "[t]he plain meaning of the words 'engaged in commerce,'" 

which "is narrower than the more open-ended formulations 

'affecting commerce' and 'involving commerce'" -- phrases that 

have been interpreted as expressing Congress's intent to exercise 

its Commerce Clause power to its fullest extent.7 Id. 

Consistent with the approach used in Circuit City, 

Waithaka urges us to consider the Court's interpretation of a 

similar jurisdictional phrase in the Federal Employers' Liability 

7 In Circuit City, the Court acknowledged that common 

jurisdictional phrases like "engaged in interstate commerce" do 

not "necessarily have a uniform meaning whenever used by Congress." 

532 U.S. at 118 (quoting Am. Bldg. Maint. Indus., 422 U.S. at 277). 

Although Amazon seizes on this language, asserting that this 

admonition means we would be remiss to rely on the meaning given 

to these jurisdictional phrases in contemporaneously passed 

statutes, Amazon overstates the Court's qualification. By using 

as one of our interpretive tools the Court's interpretation of 

statutes contemporaneous with the FAA, we simply follow the Court's 

lead.
- 17 - 

Act (the "FELA"), which he contends is particularly helpful for 

understanding what it meant for a transportation worker to be 

"engaged in interstate commerce" at the time of the FAA's enactment 

in 1925. Passed in 1908, the FELA contains language nearly 

identical to that of Section 1 of the FAA. 45 U.S.C. § 51 (1908); 

see Tenney Eng'g, Inc. v. United Elec. Radio & Mach. Workers of 

Am., (U.E.) Local 437, 207 F.2d 450, 453 (3d Cir. 1953) (noting 

that Congress "must have had [the FELA] in mind" when drafting the 

residual clause in Section 1 of the FAA, given that Congress 

"incorporat[ed] almost exactly the same phraseology" into the 

FAA). 

In relevant part, that statute provided that "[e]very 

common carrier by railroad while engaging in commerce between any 

of the several States . . . shall be liable in damages to any 

person suffering injury while he is employed by such carrier in 

such commerce." 45 U.S.C. § 51 (1908). Congress passed this 

version of the FELA after the Supreme Court held that an earlier 

version -- which had provided coverage to all employees of a 

carrier engaged in interstate commerce -- went beyond Congress's 

Commerce Clause power, as it was then understood, and was therefore 

unconstitutional. See The Employers' Liability Cases, 207 U.S. 

463, 498-99, 504 (1908). Unlike the earlier version, the amended 

statute provided coverage only when both the railroad and the 

employee were "engaged in interstate commerce" at the time of the 
- 18 - 

injury.8 Second Employers' Liability Cases, 223 U.S. 1, 51-52 

(1912). 

 In numerous cases, the Supreme Court considered when a 

railroad employee was "engaged in interstate commerce," such that 

the FELA provided coverage for injuries sustained on the job. 

Whether a worker had moved across state lines was not dispositive. 

Rather, the Court concluded that workers "engaged in interstate 

commerce" did not refer only to those workers who themselves 

carried goods across state lines, but also included at least two 

other categories of people: (1) those who transported goods or 

passengers that were moving interstate, see, e.g., Phila. & Reading 

Ry. Co. v. Hancock, 253 U.S. 284, 285-86 (1920), and (2) those who 

were not involved in transport themselves but were in positions 

"so closely related" to interstate transportation "as to be 

practically a part of it," see Shanks v. Del., Lackwanna, & W.R.R. 

Co., 239 U.S. 556, 558-59 (1916) (collecting cases). 

Although Waithaka contends that both categories supply 

helpful guidance for assessing whether workers with activities 

similar to his would have been "engaged in . . . interstate 

8 Although the text of the FELA refers to workers "employed" 

in interstate commerce, the cases interpreting the statute say 

that the words "employed" and "engaged" are interchangeable. See, 

e.g., Phila., B. & W.R.R. Co. v. Smith, 250 U.S. 101, 102, 104 

(1919) (considering whether employee was "engaged in interstate 

commerce within the meaning of the statute" and concluding that 

"he was employed . . . in interstate commerce"). 
- 19 - 

commerce" in 1925, we limit our focus to the first group -- those 

who transported goods themselves. Because there is no dispute 

that Waithaka and other AmFlex workers are involved in such

transport, the FELA precedents pertaining to the narrower category 

of workers who were themselves transporting goods that were moving 

between states are most relevant for our purpose. Accordingly, we 

do not determine whether the second category of workers considered 

to be "engaged in interstate commerce" for purposes of the FELA -- 

those who were "engaged in interstate commerce" by virtue of the 

close relationship between their work and interstate 

transportation -- are also transportation workers "engaged in 

. . . interstate commerce" for purposes of the FAA.9 

 We therefore focus on the FELA precedents pertaining to 

workers who were transporting goods that were moving interstate 

9 In declining to consider the applicability of this second 

line of cases from the FELA context to the FAA, we do not imply 

that the contracts of workers "practically a part" of interstate 

transportation -- such as workers sorting goods in warehouses 

during their interstate journeys or servicing cars or trucks used 

to make deliveries -- necessarily fall outside the scope of the 

Section 1 exemption. Some of our sister circuits have described 

Section 1 as covering workers "who are actually engaged in the 

movement of interstate or foreign commerce or in work so closely 

related thereto as to be in practical effect part of it." See, 

e.g., Tenney, 207 F.2d at 452. And in 1925 the preceding 

categories of "seamen" and "railroad employees" were understood to 

include workers who were not themselves engaged in transportation 

activities. See New Prime, 139 S. Ct. at 542-43 (noting that "[a]t 

the time of the [FAA]'s passage, shipboard surgeons who tended 

injured sailors were considered 'seamen'"). Nevertheless, we 

choose to decide this case narrowly, leaving for another day the 

resolution of the "closely related to" question. 
- 20 - 

-- consistent with Circuit City's own focus on "the flow of 

interstate commerce." Examining these cases reveals that the Court

consistently has held that a worker transporting goods that had 

come from out of state or that were destined for out-of-state 

locations was "engaged in interstate commerce," even if the 

worker's role in transporting the goods occurred entirely within 

a single state. In Seaboard Air Line Railway v. Moore, 228 U.S. 

433 (1913), the Court held that a railroad worker thrown from a 

train was "engaged in interstate commerce" at the time of his 

injury because the train was hauling two freight cars of lumber in 

Florida that were destined for New Jersey. Id. at 434-35. And, 

in Philadelphia & Reading Railway Co. v. Hancock, 253 U.S. 284 

(1920), the Court concluded that an injured railroad worker who 

was operating a train loaded with coal to be shipped out of state 

was engaged in interstate commerce, even though he was operating 

the train exclusively in Pennsylvania as it carried coal two miles 

from a coal mine to a railroad storage yard. Id. at 285-86. The 

Court noted that 

[t]he coal was in the course of transportation 

to another state when the cars left the mine. 

There was no interruption of the movement; it 

always continued towards points as originally 

intended. The determining circumstance is 

that the shipment was but a step in the 

transportation of the coal to real and 

ultimate destinations in another state. 
- 21 - 

Id. at 286. Ultimately, the Court concluded that a "trainman" was 

employed in interstate commerce "if any of the cars in his train 

contained interstate freight." Id. at 285. 

However, when a railroad worker was working on a railroad 

car that was not carrying goods destined for or coming from another 

state, the Court drew the line and concluded that the worker was 

not, at that point, "engaged in interstate commerce." See Ill. 

Cent. R.R. Co. v. Behrens, 233 U.S. 473, 477-78 (1914) (holding 

that a worker moving several freight cars "all loaded with 

intrastate freight" within the city of New Orleans when he was 

fatally injured was not engaged in interstate commerce). 

Amazon marshals several reasons why these FELA 

precedents do not shed light on the meaning of "engaged in . . . 

interstate commerce" within Section 1 of the FAA. First, Amazon

contends that Circuit City dismisses the FELA specifically as 

irrelevant to interpreting the FAA. This contention misconstrues 

Circuit City. There, the Court referenced two cases interpreting 

the FELA in recognizing that, in the early twentieth century, 

"engaged in interstate commerce" "came close to expressing the 

outer limits of Congress'[s] power as then understood." 532 U.S.

at 116 (citing The Employers' Liability Cases, 207 U.S. at 498, 

and Second Employers' Liability Cases, 223 U.S. at 48-49). 

However, by discussing these cases and, as we have already noted, 

refusing to interpret the phrase "engaged in interstate commerce" 
- 22 - 

based on the modern understanding of the Commerce Clause power, 

the Court did not, as Amazon contends, dismiss the FELA as 

irrelevant for interpreting the meaning of those words in the FAA. 

Hence, by looking to these FELA precedents to understand the 

original meaning of the phrase in 1925, we are not engaging in a 

method of interpretation that Circuit City forbids.

Amazon also asserts that these FELA cases are inapt 

because the focuses of the FELA and the FAA differ. Whether a 

class of workers' employment contracts are exempt from the FAA 

turns on whether the workers are "engaged in . . . interstate 

commerce," whereas the FELA's coverage, according to Amazon, 

turned on whether a railroad carrier for whom an injured employee 

worked was engaged in interstate commerce. But this argument 

overlooks Congress's amendments to the FELA in 1908 and the holding 

of the Second Employers' Liability Cases described above: the FELA 

applied only when both the carrier and the injured employee had 

been engaged in interstate commerce. 223 U.S. at 51-52. That is, 

the FELA was concerned with the activities of employees, just as 

the FAA is. Indeed, in Moore, Hancock, and Behrens -- the FELA 

precedents that we have discussed, the question before the Court 

was the same as it is here: whether certain transportation workers 

engaged in interstate commerce. 

Amazon also contends that, because the FELA is a remedial 

statute that has been construed liberally, see Atchison, Topeka & 
- 23 - 

Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987), it is a 

poor guide for interpreting the FAA exemption, which must be given 

"a narrow construction" in light of the FAA's purpose, see Circuit 

City, 532 U.S. at 118-19. Specifically, Amazon emphasizes that 

the remedial purpose of the FELA may have, in certain 

circumstances, influenced the Court's interpretation of the scope 

of the FELA's coverage. See Shanks, 239 U.S. at 558 (noting that, 

given "the nature and usual course of the business to which the 

[FELA] relates and the evident purpose of Congress in adopting" 

it, the phrase "engaged in interstate commerce" should not be 

interpreted in a "technical legal sense" and thus should include 

those workers "so closely related" to interstate transportation 

"as to be practically a part of it"). However, there is no 

indication that the remedial purpose of the FELA affected the 

Supreme Court's conclusion that injured railroad workers who were 

transporting within one state goods destined for or coming from 

other states -- activities comparable to those performed by 

Waithaka -- were engaged in interstate commerce. See, e.g., 

Hancock, 253 U.S. at 285-86 (concluding, without reference to the 

purpose or liberal construction of the FELA, that a worker engaged 
- 24 - 

exclusively in local transport of goods destined for another state 

was "engaged in interstate commerce").10

Thus, contrary to Amazon's contentions, the FELA cases 

concerning workers directly involved in transport advance our 

understanding of the Section 1 exemption. Consistent with the 

Supreme Court's focus on "the flow of interstate commerce" in 

Circuit City, these cases show that workers moving goods or people 

destined for, or coming from, other states -- even if the workers 

were responsible only for an intrastate leg of that interstate 

journey -- were understood to be "engaged in interstate commerce" 

in 1925. 

To test this conclusion about the original meaning of 

the residual clause, based on the FELA precedents, we look to the 

other interpretive principles identified in Circuit City, which 

Amazon insists support its reading of Section 1. 

 2. Sequence of the Words in Section 1 

Amazon contends that a textual feature of the residual 

clause supports its position that the Section 1 exemption covers 

only workers who themselves cross state lines. Specifically, 

Amazon notes that the phrase "engaged in . . . interstate commerce" 

10 Again, we do not imply that the contracts of workers "so 

closely related" to interstate transportation "as to be 

practically a part of it" fall outside (or inside) the scope of 

the Section 1 exemption. See Shanks, 239 U.S. at 558. We are 

simply maintaining our focus on those workers who themselves 

transport goods. 
- 25 - 

follows "any class of workers" in the residual clause, without 

reference to the business of the engaging company. Because of 

this sequence, Amazon contends that the activities of the workers 

themselves are the crux of the exemption, without consideration of 

the geographic footprint and nature of the business for which they 

work. 

Although our ultimate inquiry is whether a class of 

workers is "engaged in . . . interstate commerce," the question 

remains how we make that determination. The nature of the business 

for which a class of workers perform their activities must inform 

that assessment. After all, workers' activities are not pursued 

for their own sake. Rather, they carry out the objectives of a 

business, which may or may not involve the movement of "persons or 

activities within the flow of interstate commerce," Circuit City, 

532 U.S. at 118 (quoting Gulf Oil Corp., 419 U.S. at 195) -- the 

crucial concept reflected in the FELA precedents. See Singh v. 

Uber Techs. Inc., 939 F.3d 210, 227-28 (3d Cir. 2019) (noting that, 

on remand, the district court might consider "information 

regarding the industry in which the class of workers is engaged" 

and "information regarding the work performed by those workers," 

among other factors, to determine whether a group of workers is 

"engaged in interstate commerce" and thus exempt from the FAA). 

Moreover, the language of the residual clause does not foreclose 

taking into account the company's business when considering how to 
- 26 - 

classify the nature and activities of the workers at issue. 

Accordingly, Amazon's contention about the textual focus of the 

exemption does not alter our conclusion that we may consider the 

nature of the business to assess whether workers' activities 

include the transportation of goods or people in the flow of 

interstate commerce.

This conclusion faithfully adheres to the ejusdem 

generis canon, invoked by the Court in Circuit City. Consideration 

of the nature of the hiring company's business carries out the 

Supreme Court's instruction that we must construe the residual 

clause of Section 1 consistently with the specific preceding 

categories of workers -- "seamen" and "railroad employees" -- whose 

employment contracts are exempt from the FAA. See Circuit City, 

532 U.S. at 114-15. Plainly, these groups, defined by the nature 

of the business for which they work, demonstrate that the 

activities of a company are relevant in determining the 

applicability of the FAA exemption to other classes of workers. 

By considering the nature of the business to help 

determine whether its workers are transporting goods or people 

moving in interstate commerce, we do not ignore the importance of 

the workers' own connection to interstate commerce as Amazon 

contends. And, to be clear, we do not hold that a class of workers 

must be employed by an interstate transportation business or a 

business of a certain geographic scope to fall within the Section 
- 27 - 

1 exemption. We simply point out, as is evident here, that the 

nature of the business for which the workers perform their 

activities is important in determining whether the contracts of a 

class of workers are covered by Section 1. 

3. Structure of the Residual Clause and the FAA 

 In another effort to bolster its limited interpretation 

of the exemption, Amazon points to the broader structure of the 

FAA. In Circuit City, the Supreme Court noted that "engaged in 

. . . interstate commerce" in Section 1 must be interpreted more 

narrowly than "involving commerce" in Section 2 of the FAA. Id. 

at 115-16. Amazon argues that interpreting the residual clause to 

encompass workers who are transporting goods within the flow of 

interstate commerce eliminates the distinction between Sections 1 

and 2 and conflates the phrase "engaged in . . . interstate 

commerce" with "involving commerce," contrary to the Supreme 

Court's directive in Circuit City.

 This argument plainly fails. In Circuit City, the 

Supreme Court rejected the view that Section 1 encompasses all 

employment contracts with a connection to interstate commerce -- 

a construction that would treat the words "engaged in . . . 

interstate commerce" as reflecting "congressional intent to

regulate to the full extent of [Congress's] commerce power," i.e., 

to have the same reach as the Court previously had given to the 

phrase "involving commerce" in Section 2. Id. at 114-15. In 
- 28 - 

dismissing that construction of Section 1, the Court stated that 

the operative jurisdictional words in Section 2 -- "involving 

commerce" -- connote a broader reach than the words "engaged in 

. . . interstate commerce," and similar terms of art, which refer 

only to "persons or activities within the flow of interstate 

commerce." Id. at 118 (quoting Gulf Oil Corp., 419 U.S. at 195); 

see also Allied-Bruce, 513 U.S. at 273 (noting that operative 

jurisdictional words in Section 2 of the FAA -- "involving 

commerce" -- were broader than the "often-found words of art 'in 

commerce,'" which referred only to "'persons or activities within 

the flow of interstate commerce'") (emphasis in original) (citing 

Am. Bldg. Maint. Indus., 422 U.S. at 276)). 

 Thus, Circuit City itself preserves a distinction 

between the different phrases in Sections 1 and 2. We are not 

negating that distinction, as Amazon contends, by reading Section 

1's exemption to cover certain transportation workers who do not 

personally cross state lines, based on their particular tasks and 

the nature of the business of their employers. To the contrary, 

our conclusion that the residual clause exempts the contracts of 

workers transporting goods or people within the flow of interstate 

commerce adopts the meaning of the phrase "engaged in . . . 

interstate commerce" that the Court itself said preserved the 

distinction between the two phrases used in Sections 1 and 2. 

Hence, nothing in the structure of the FAA alters our understanding 
- 29 - 

of the original meaning of the "engaged in . . . interstate 

commerce" language of the residual clause.

4. Purpose of the FAA 

 In a further effort to convince us that the residual 

clause applies only when a worker transports goods across state 

lines, Amazon argues that the contracts of Waithaka and his fellow 

local delivery workers cannot be covered by the residual clause 

for two additional reasons: (1) exempting the employment 

agreements of such local workers would be inconsistent with the 

pro-arbitration purpose of the FAA and the Supreme Court's 

instruction, in light of the Act's purpose, that we narrowly 

construe Section 1; and (2) adopting Waithaka's view of the 

exemption would make it difficult to administer and, thus, 

frustrate the Act's goal of reducing litigation on the 

enforceability of arbitration agreements.

 We recognize that the FAA was enacted to counter 

hostility toward arbitration and that, accordingly, we must 

narrowly construe the statutory exemption from the Act. See 

Circuit City, 532 U.S. at 111, 118-19. However, the FAA's proarbitration purpose cannot override the original meaning of the 

statute's text. See New Prime, 139 S. Ct. at 543 (rejecting a 

narrower construction of the FAA's exemption provision, even 

though that construction advanced the Act's pro-arbitration 

policy). Moreover, construing the exemption to include workers 
- 30 - 

transporting goods within the flow of interstate commerce 

advances, rather than undermines, "Congress'[s] demonstrated 

concern with transportation workers and their necessary role in 

the free flow of goods." See Circuit City, 532 U.S. at 121.

 Amazon also offers a more tailored argument about the 

statute's purpose and legislative history. In Circuit City, the 

Supreme Court observed that Congress may have carved out the 

contracts of seamen and railroad employees from the FAA because of 

existing alternative dispute resolution schemes for those groups 

of workers. Id. at 120-21. By that logic, Amazon contends, 

Congress could not have intended to exempt local delivery drivers 

like Waithaka because no such alternative exists for them.

 Amazon's argument is unavailing for several reasons. 

First, the Supreme Court in Circuit City specifically disclaimed 

reliance on this legislative history as the basis for its holding. 

Id. at 119. Rather, the text of Section 1 determined the outcome 

of that case. Id. at 119-21. Indeed, the Court stated that the 

legislative history of Section 1 was "quite sparse." Id. at 119. 

Second, the Court addressed congressional intent only in 

response to an argument that construing the residual clause to 

exempt only transportation workers would "attribute[] an 

irrational intent to Congress." Id. at 121. The Court explained 

that "[i]t is reasonable to assume that Congress excluded 'seamen' 

and 'railroad employees' from the FAA for the simple reason that 
- 31 - 

it did not wish to unsettle established or developing statutory 

dispute resolution schemes covering specific workers," and that 

"[i]t would be rational for Congress to ensure that workers in 

general would be covered by the provisions of the FAA, while 

reserving for itself more specific legislation for those engaged 

in transportation." Id. However, in offering this explanation 

for Congress's exemption of certain transportation workers, the 

Court did not say that Section 1 applied exclusively to 

transportation workers for whom an alternative dispute resolution 

system existed. We see no basis for treating the Court's inference 

about Congress's rationale for excluding specific industries as a 

principle limiting the application of the transportation worker 

exemption going forward. See Singh, 939 F.3d at 224-26. Indeed, 

the residual clause means that Congress contemplated the future 

exclusion of workers other than railroad employees and seamen, and 

it did not limit that exclusion to those with available alternative 

dispute resolution systems. Purpose cannot override text. See 

New Prime, 139 S. Ct. at 543. If Congress had wished, it could 

have exempted only "seamen" and "railroad employees," but, as 

enacted, Section 1's exemption also includes a residual clause. 

 Amazon's argument about the Act's purpose to reduce 

litigation over arbitration agreements fares no better. Amazon 

contends that a decision in Waithaka's favor would introduce 

uncertainty about the FAA's coverage and spawn extensive 
- 32 - 

litigation about the scope of the residual clause. This scenario, 

Amazon maintains, would "undermin[e] the FAA's pro[-]arbitration 

purposes and 'breed[] litigation from a statute that seeks to avoid 

it.'" Circuit City, 532 U.S. at 123 (quoting Allied-Bruce, 513 

U.S. at 275). But, as Waithaka points out, the notion that 

Amazon's proposed standard would create an easily administrable, 

bright-line rule is illusory. If crossing state lines were the 

touchstone of the exemption's test, the parties would still engage 

in discovery to determine how often a class of workers moved 

interstate and would litigate what portion of a given group of 

workers must cross state lines and with what frequency to qualify 

as a class of workers "engaged in . . . interstate commerce."

Moreover, the line-drawing conundrum that Amazon 

identifies would not stem from our decision. Rather, it is a 

product of Circuit City itself. In concluding that the residual 

clause does not encompass all employment contracts, but only those 

of transportation workers, the Court left it to the lower courts 

to assess which workers fall within that category. Doing so 

unavoidably requires the line-drawing that courts often do. 

5. Conclusion 

 In sum, we reject Amazon's cramped construction of 

Section 1's exemption for transportation workers. The original 

meaning of the phrase "engaged in . . . interstate commerce," 

revealed by the FELA precedents, and the text, structure, and 
- 33 - 

purpose of the FAA, all point to the same conclusion: Waithaka and 

other last-mile delivery workers who haul goods on the final legs 

of interstate journeys are transportation workers "engaged in 

. . . interstate commerce," regardless of whether the workers 

themselves physically cross state lines.11 By virtue of their work 

transporting goods or people "within the flow of interstate 

commerce," see Circuit City, 532 U.S. at 118, Waithaka and other 

AmFlex workers are "a class of workers engaged in . . . interstate 

commerce." Accordingly, the FAA does not govern this dispute, 

and it provides no basis for compelling the individual arbitration 

required by the dispute resolution section of the Agreement at 

issue here.

III. 

 Having concluded that the FAA does not govern the 

enforceability of the dispute resolution section of the Agreement,

with its requirement of individual arbitration, we must now decide 

whether such arbitration may still be compelled pursuant to state 

law. Because the parties dispute which state's law -- that of 

Washington or Massachusetts -- governs that enforceability 

question, our analysis proceeds in two parts. First, we analyze 

11 Although Amazon has relied heavily on the fact that Waithaka 

has not crossed state lines in the course of performing his AmFlex 

work, Amazon has never contested that products he and other AmFlex 

workers deliver cross state lines to reach their final 

destinations.
- 34 - 

the contract's choice-of-law and severability language to 

determine the governing law. We conclude that the contract selects 

the law of Washington. Then, we consider whether conflict-of-law 

principles permit the enforceability of that contractual choice of 

Washington law. Because we conclude that Massachusetts would treat 

the class waiver provisions in the Agreement as contrary to the 

Commonwealth's fundamental public policy and that, based on 

conflict-of-laws principles, the contractual choice of Washington 

law would be unenforceable if it would permit such waivers, we 

decide that individual arbitration cannot be compelled pursuant to 

state law here. We proceed with an explanation of these 

conclusions. 

A. Contractual Governing Law 

To demonstrate that Washington law applies, Amazon 

points to two aspects of the Agreement: the governing law section 

and the severability provision. To reiterate, the governing law 

section states that "[t]he interpretation of this Agreement is 

governed by the law of the state of Washington without regard to 

its conflict of laws principles, except for [the dispute resolution 

section], which is governed by the [FAA] and applicable federal 

law." The severability provision states that "[i]f any provision 

of this Agreement is determined to be unenforceable, the parties 

intend that this Agreement be enforced as if the unenforceable 

provisions were not present and that any partially valid and 
- 35 - 

enforceable provisions be enforced to the fullest extent 

permissible under applicable law." 

Amazon asserts that, read in combination, these two 

aspects of the Agreement require that Washington law governs the 

enforceability of the class waiver and arbitration provisions in 

the Agreement. Anticipating the possibility that the FAA might 

not apply to Waithaka's claims, Amazon advocates striking the 

provision in the governing law section stating that the "FAA and 

applicable federal law" govern the dispute resolution section of 

the Agreement, which includes the class waiver and arbitration 

provisions.12 Likewise, the portion of the dispute resolution 

section stating that "the Federal Arbitration Act and applicable 

federal law [will] govern any dispute that may arise between the 

parties" must be severed. What remains is an express choice of 

Washington law to govern the "interpretation of the Agreement," 

regardless of Washington's conflict-of-laws principles. 

Waithaka asserts a different reading of the Agreement. 

Given that the governing law section states that Washington law 

will apply to the interpretation of the entire Agreement except 

12 Waithaka argues that Amazon forfeited this argument by 

failing to explain in its briefing to the district court how the 

severability provision affected the choice-of-law analysis. 

However, the severability argument was raised below and the 

district court addressed it in a footnote in its decision. See 

Waithaka, 404 F. Supp. 3d at 344 n.4. We conclude that Amazon 

sufficiently preserved this argument and developed it on appeal. 
- 36 - 

the dispute resolution section, Waithaka argues that Amazon cannot 

now claim that Washington law applies to that section in lieu of 

the FAA. Since Amazon did not specify in the Agreement what law 

applies to the dispute resolution section in the event a court 

concludes that the FAA is inapplicable, as we have here, Waithaka 

contends that there is no applicable contractual choice of law. 

In that absence, Massachusetts law applies to the enforceability 

of the arbitration provision in the dispute resolution section and 

its waiver of any class action proceedings. Waithaka urges that 

Amazon should bear the burden of failing to anticipate the present 

scenario and, like the district court, we should hold Amazon to 

its own "inartful drafting." Waithaka, 404 F. Supp. 3d at 344 

n.5.

We agree with Waithaka and the district court that Amazon 

could have specified more clearly what law applies to the dispute 

resolution section when the FAA is inapplicable.13 See, e.g., 

13 We note another puzzling aspect of the governing law 

section: its intended scope. While the section's directive that 

"[t]his agreement is governed by the law of the state of Washington 

without regard to its conflict of laws principles" makes abundantly 

clear Amazon's strong preference for that state's law, which might 

be ousted by the application of Washington's own conflict-of-law 

principles, we wonder why Amazon limited that choice of Washington 

law to the "interpretation of the Agreement." Ultimately, however, 

we disagree with Waithaka's position that this limitation means 

that Washington law does not apply to the dispute resolution 

section of the Agreement. As Amazon points out, the governing law 

section describes the FAA as, in effect, governing "[t]he 

interpretation of . . . [the dispute resolution section]." Thus, 
- 37 - 

Palcko v. Airborne Express, Inc., 372 F.3d 588, 590 (3d Cir. 2004) 

(interpreting a choice-of-law provision that stated explicitly 

that "[t]o the extent that the [FAA] is inapplicable, Washington 

law pertaining to agreements to arbitrate shall apply"). But 

Amazon's shortcomings in drafting the Agreement do not alter our 

ultimate conclusion: the severability argument put forward by 

Amazon -- to which Waithaka fails to provide any rebuttal -- 

prevails. Because the FAA is inapplicable, the portions of the 

governing law and dispute resolution sections selecting the FAA 

must be stricken from the Agreement, leaving Washington law as the 

default choice of law for assessing the enforceability of the 

arbitration and class waiver provisions of the parties' contract. 

B. Conflict-of-Law Analysis 

 Despite the contractual choice of Washington law, 

Waithaka contends that arbitration nevertheless cannot be 

compelled pursuant to state law. He offers two arguments to 

support that conclusion. First, relying on Scott v. Cingular 

Wireless, 161 P.3d 1000 (Wash. 2007) (en banc), he contends that 

arbitration cannot be compelled even under Washington law. But to 

the extent Washington law would permit the arbitration provision 

to be enforced, he asserts that the contractual choice of 

if the FAA is inapplicable and Washington law applies as a 

fallback, Washington law must apply to the interpretation of the 

dispute resolution section just as the FAA would. 
- 38 - 

Washington law is itself unenforceable under a conflict-of-law 

analysis. As he puts it, a contractual choice of law cannot 

deprive him of "unwaivable statutory rights under Massachusetts 

law," including the right to bring his claims as a class action. 

According to Waithaka's conflict-of-law argument, the dispute 

resolution section of the Agreement does not simply require an 

arbitral forum. It also includes the class waiver provisions that 

apply to both judicial and arbitral forums. Including such class 

waiver provisions in employment contracts, Waithaka contends, 

violates fundamental Massachusetts public policy. He therefore 

insists that, based on conflict-of-law principles, the contractual 

choice of Washington law is unenforceable if it would permit the 

class waiver provisions. We proceed to analyze Waithaka's second 

argument, assuming for purposes of deciding whether arbitration 

can be compelled here that Washington law would permit the class 

waiver provisions in the Agreement.14 

 Before we assess this conflict-of-law argument, we must 

pose a question. Even if the class waiver provisions are 

unenforceable, as Waithaka argues, could he still be forced to 

bring his claims in an arbitral forum, albeit as a class action? 

14 If Waithaka prevails on his conflict-of-law argument but 

our assumption about Washington law is incorrect, the outcome in 

this case would be the same. That is, if the class waiver 

provisions are in fact unenforceable under Washington law, 

arbitration could not be compelled pursuant to state law, albeit 

based on Washington rather than Massachusetts law. 
- 39 - 

The Agreement itself answers that question. It "does not provide 

for, and the parties do not consent to, arbitration on a class, 

collective or representative basis." The Agreement states 

explicitly that it "shall not be interpreted as requiring either 

party to arbitrate disputes on a class, collective or 

representative basis, even if a court or arbitrator invalidates or 

modifies or declines to enforce this Agreement in whole or in 

part." In other words, the class waiver provisions cannot be 

severed from the rest of the dispute resolution section. If they 

are unenforceable, the arbitration provision is also 

unenforceable.15 Thus, our assessment of Waithaka's conflict-oflaw argument -- that the class waiver provisions are unenforceable 

-- will be dispositive of the final question presented here: can 

arbitration be compelled at all pursuant to state law? 

We therefore turn to Waithaka's conflict-of-law 

argument. We begin by reviewing the statutory claims he asserts 

and Massachusetts's treatment of class waivers in the context of 

such claims. We then undertake a conflict-of-law analysis, 

15 Our conclusion that we cannot order class arbitration based 

on the terms of the Agreement is consistent with the Supreme 

Court's conclusion that class arbitration may not be compelled 

unless the arbitration agreement specifically contemplates that 

form of arbitration. As the Supreme Court put it, the "changes 

brought about by the shift from bilateral arbitration to classaction arbitration" are "fundamental." See Stolt-Nielsen S.A. v. 

AnimalFeeds Int'l Corp., 559 U.S. 662, 686 (2010).
- 40 - 

considering the contractual governing law and Massachusetts public 

policy. 

1. Statutory Claims and Massachusetts Public Policy 

Waithaka asserts three claims on behalf of himself and 

others similarly situated under the Massachusetts Wage Act, the 

Independent Contractor Misclassification Law, and the Minimum Wage 

Law. Mass. Gen. Laws ch. 149, §§ 148, 148B & ch. 151, § 1.16 For 

each of these statutory provisions, Massachusetts law creates a 

private right of action by which a person "may institute and 

prosecute in his own name and on his own behalf, or for himself 

and for others similarly situated, a civil action for injunctive 

relief, for any damages," and other relevant relief. Id. ch. 149, 

§ 150 & ch. 151, § 20 (emphasis added). The right to pursue 

classwide relief for Wage Act and Independent Contractor 

Misclassification Law claims is further protected by a provision 

that precludes the contractual waiver of certain rights under those 

statutes. Id. ch. 149, § 148. This anti-waiver provision states 

that "[n]o person shall by a special contract with an employee or 

by any other means exempt himself from" Section 150, which, in 

turn, provides the statutory right to pursue Wage Act and 

16 In his claim concerning the Minimum Wage Law, Waithaka also 

cites Mass. Gen. Laws ch. 151, § 7, which delineates the 

commissioner's duties in establishing minimum fair wages. 
- 41 - 

Independent Contractor Misclassification Law claims on a class 

basis. Id. ch. 149, §§ 148, 150. 

 Waithaka contends that these statutory provisions create 

a substantive right to bring class actions and that, in 

Massachusetts, the protection of that right reflects a fundamental 

public policy of the state. To support that claim, Waithaka relies 

on Feeney v. Dell, Inc., 908 N.E.2d 753 (Mass. 2009) ("Feeney I"), 

and Machado v. System4 LLC, 989 N.E.2d 464 (Mass. 2013). As we 

will explain, Feeney I considered a question similar to that raised 

by Waithaka's argument: whether the right to bring a consumer class 

action pursuant to another Massachusetts statute represented the 

fundamental public policy of the Commonwealth, and thereby 

precluded the contractual waiver of the right to bring such an 

action. 908 N.E.2d at 761-765. Although the Massachusetts Supreme 

Judicial Court ("SJC") concluded that the Commonwealth's public 

policy did preclude such a waiver, id., the Supreme Court, 

interpreting the FAA in AT&T Mobility LLC v. Concepcion, 563 U.S. 

333 (2001), forced a modification of that holding in a later 

Massachusetts case, see Feeney v. Dell, Inc., 989 N.E.2d 439, 440-

41 (Mass. 2013) ("Feeney II"). Both Feeney I and Feeney II, the 

intervening Supreme Court decision in Concepcion, and Machado are 

all essential precedent on the conflict-of-law question presented 

here, and we therefore describe the reasoning of each case. 
- 42 - 

In Feeney I, the SJC concluded that the statutory right 

to pursue claims as a class provided by the Massachusetts consumer 

protection act represented the fundamental public policy of 

Massachusetts. 908 N.E.2d at 762. The SJC cited several reasons 

for that conclusion. First, the Massachusetts legislature 

"expressly provided for such [class action] mechanisms" in Section 

9(2) of Chapter 93A. Id. The legislative history of that 

provision demonstrated a particular concern for the "aggregation 

of small consumer protection claims," which a consumer might 

otherwise be unwilling or unable to pursue as an individual claim. 

Id. at 762-63. Moreover, prohibiting class actions would 

"undermine[] the public interest in deterring wrongdoing" and 

would "negatively affect[] the rights of those unnamed class 

members on whose behalf the class action would proceed." Id. at 

764. 

Having concluded that Massachusetts public policy 

strongly favors class actions in the consumer context, the SJC 

considered whether it could invalidate a class waiver -- which was 

embedded within a mandatory arbitration clause governed by the FAA 

-- on those state public policy grounds without risking preemption 

by the FAA in this period prior to Concepcion. Id. at 768-69. 

Finding that the FAA presented no such barrier, see id. at 769, 

the SJC declined to enforce the class waiver, id. at 765. To rule 

otherwise, the SJC noted, "would in effect sanction a waiver of 
- 43 - 

the right" granted by Massachusetts consumer protection law to 

bring a class action in an arbitral or judicial forum. Id. 

Soon thereafter, however, the Supreme Court decided 

Concepcion. Reviewing California's treatment of class action 

waivers in consumer contracts, the Court explained that the FAA 

limits a state's ability to invalidate class waiver provisions in 

arbitration clauses based on the state's public policy. 563 U.S. 

at 344-52.17 Based on the reasoning and holding of Concepcion, the 

SJC concluded that it had misunderstood the FAA's preemptive effect 

on the Commonwealth's public policy. Accordingly, following 

Concepcion, the SJC revisited its Feeney I holding in Feeney II. 

See Feeney II, 989 N.E.2d at 441. 

There, the SJC explained that it now understood that the 

FAA, as interpreted by Concepcion, "precludes the invalidation of 

class waiver provisions in arbitration clauses in consumer 

contracts . . . where the reason for invalidation is that such 

waivers are contrary to the fundamental public policy of the 

17 Specifically, the Supreme Court decided in Concepcion 

whether the FAA "prohibits States from conditioning the 

enforceability of certain arbitration agreements on the 

availability of classwide arbitration procedures." 563 U.S. at 

336. It identified two scenarios in which state law would be 

preempted by the FAA: (1) where a state law "prohibits outright 

the arbitration of a particular type of claim," and (2) where a 

state law "doctrine normally thought to be generally 

applicable . . . is alleged to have been applied in a fashion that 

disfavors arbitration," and such an application "stand[s] as an 

obstacle to the accomplishment of the FAA's objectives." Id. at 

341-43. 
- 44 - 

Commonwealth." Id. Moreover, "[b]ecause that was [the SJC's] 

primary reason in Feeney I for invalidating the class waiver 

provision in the arbitration agreement, Concepcion undoes the 

principal rationale for [its] decision in Feeney I." Id. In other 

words, the fact that a class waiver in a consumer contract violated 

a consumer's statutory right to bring class claims under Chapter 

93A was no longer relevant in determining whether the waiver could 

be enforced if the waiver appeared in an arbitration clause 

governed by the FAA. 

Nevertheless, the SJC identified in Feeney II one ground 

for invalidating a class waiver that survived Concepcion's ruling 

on the preemptive scope of the FAA: when a consumer demonstrates 

that she "effectively cannot pursue a claim against the defendant 

in individual arbitration according to the terms of the agreement, 

thus rendering . . . her claim nonremediable." Id. The SJC 

reasoned that Congress's intent in enacting the FAA 

was to preserve the availability of an 

arbitral forum and remedy for the resolution 

of disputes between parties to a commercial 

contract, and that it would be contrary to 

Congressional intent to interpret the FAA to 

permit arbitration clauses that effectively 

deny consumers any remedy for wrongs committed 

in violation of other Federal and State laws 

intended to protect them. 

Id. 

Under this new standard, a Massachusetts court had to 

determine whether a plaintiff had proven "as a matter of fact" 
- 45 - 

that the particular class waiver, in combination with the other 

terms of an arbitration agreement, made her claim nonremediable, 

effectively allowing an arbitration agreement to "confer[ on a 

defendant] . . . de facto immunity from private civil liability 

for violations of State law." Id. at 462-63. To assess whether 

a particular class waiver rendered claims nonremediable, a court 

could consider, among other things, the complexity of the claims 

asserted, the amount of damages sought, and the presence of feeshifting provisions. See id.18 

 On the same day the SJC issued Feeney II, the SJC issued 

Machado, which considered whether the reasoning articulated in 

Feeney I, applicable to class waivers in consumer contracts, as 

now modified by Feeney II, also applied to class action waivers in 

18 This proposition had a brief life. Just eight days after 

the SJC issued Feeney II, the Supreme Court decided American 

Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013). 

Although the Court was not directly reviewing Feeney II, the 

Court's ruling made clear that the ground on which the SJC believed 

it could still invalidate a class waiver without risking preemption 

by the FAA did not, in fact, survive Concepcion. See Italian 

Colors, 570 U.S. at 238 (holding that a class waiver in an 

arbitration agreement is enforceable under the FAA even when a 

plaintiff shows that the waiver will prevent her from vindicating 

her statutory rights). Thus, the SJC issued Feeney v. Dell, Inc., 

993 N.E.2d 329 (Mass. 2013) ("Feeney III"), concluding that, 

"following [Italian Colors], our analysis in Feeney II no longer 

comports with the Supreme Court's interpretation of the FAA." Id. 

at 330. Nonetheless, both Feeney I and II remain important for 

understanding Machado. The FAA is inapplicable to Waithaka's 

claims; thus, the SJC's abrogation of its holding in Feeney II 

based on FAA preemption does not alter the relevance of Feeney II 

to our understanding of Machado. 
- 46 - 

arbitration clauses of employment contracts, like the one in the 

Agreement here. See Machado, 989 N.E.2d at 467. The SJC noted 

that "many of the same public policy arguments [applicable to 

consumer claims under Chapter 93A] apply equally well to claims by 

employees under the Wage Act." Id. at 470. However, for the same 

reasons described in Feeney II, the SJC concluded that the FAA 

precluded a court from invalidating a class waiver in an employment 

contract based on such state public policy grounds. Id. at 471. 

Despite the "legitimate policy rationales" that led the 

Massachusetts legislature to create a statutory right to bring a 

class proceeding, codified in Section 150 of the Wage Act, the SJC 

concluded that those public policy concerns were "of no avail" 

after Concepcion. Id. at 470. As in the consumer claims context, 

when the FAA applied, the SJC could invalidate a class waiver in 

an employment contract only when the plaintiff could demonstrate 

that 

she lacks the practical means to pursue a 

claim in individual arbitration or, put 

differently, that the class waiver, when 

combined with the other terms of the 

arbitration agreement, "effectively denies 

[the plaintiff] a remedy and insulates the 

defendant from private civil liability for

violations of State law." 

 
- 47 - 

Id. (alteration in original) (quoting Feeney II, 989 N.E.2d at 

440).19 

Ultimately, the SJC concluded that the plaintiffs in 

Machado were unable to make that factual showing. Because they 

were seeking damages of approximately $10,000, the SJC rejected 

their "contention that their claims were nonremediable in 

individual arbitration because the costs of arbitration would more 

than surpass any potential recovery that they might be entitled 

to." Id. at 472 (internal quotation marks omitted). In other 

words, the plaintiffs had not shown that their class waiver was 

invalid based on the narrow ground that the SJC thought survived 

Concepcion. Thus, the Machado plaintiffs were left to pursue their 

Massachusetts Wage Act claims in individual arbitration. Id.

 Despite this outcome, Waithaka urges that the reasoning 

of Machado and Feeney I demonstrates that class waivers in 

employment contracts, like those in consumer contracts, are 

contrary to Massachusetts's fundamental public policy, as

reflected in the three employment statutes under which Waithaka 

asserts his claims. Although that state policy cannot serve as a 

basis to invalidate a class waiver in an arbitration provision 

governed by the FAA, Waithaka asserts that the policy retains force 

when state law governs. 

19 Of course, after Feeney III, this exception recognized by 

the SJC was no longer available. 
- 48 - 

Amazon sees the Massachusetts precedent differently. It 

argues that Machado shows that "Massachusetts now confines 

workers' substantive right to class litigation to situations in 

which the plaintiff 'effectively cannot pursue [his or her] claim 

. . . in individual arbitration.'" Because Waithaka seeks damages 

greater than those at issue in Machado, Amazon argues, the class 

waiver provisions do not leave Waithaka without a viable means of 

pursuing relief and, therefore, even under Massachusetts law, 

these provisions are not unenforceable as contrary to the 

Commonwealth's public policy. 

Amazon's reading of Machado disregards the way that 

Concepcion impacted the SJC's treatment of the class waiver at 

issue there. Amazon's proposed test for determining the 

enforceability of a class waiver -- whether a plaintiff can 

effectively pursue her claim in individual arbitration based on 

the amount of damages sought -- comes directly from Feeney II, see 

989 N.E.2d at 441, in which the SJC identified an alternative basis 

for invalidating a class waiver in the context of a consumer claim 

after Concepcion held that state public policy cannot provide that 

basis when the FAA applies. 

The SJC did not say in Feeney II or Machado that it had 

changed its view, expressed in Feeney I, that public policy 

concerns can invalidate a class waiver. Moreover, there is 

significant evidence in Machado that the SJC would conclude that 
- 49 - 

the right to pursue class relief in the employment context 

represents the fundamental public policy of the Commonwealth, such 

that this right cannot be contractually waived in an agreement not 

covered by the FAA. In addition to the policy rationales 

articulated for consumer claims in Feeney I, such as "the deterrent 

effect of class action lawsuits," the SJC highlighted another 

significant rationale unique to the employment context that 

supports this non-waiver conclusion. Machado, 989 N.E.2d at 470 

n.12. As the SJC put it, the statutory right to pursue class 

relief reflects the Commonwealth's "desire to allow one or more 

courageous employees the ability to bring claims on behalf of other 

employees who are too intimidated by the threat of retaliation and 

termination to exercise their rights." See id. 

Indeed, Massachusetts provides even greater statutory 

protection for the right to bring class claims in the employment 

context than in the consumer claims context. Massachusetts law 

specifically precludes the waiver of the right to bring class 

claims arising under the Wage Act and Independent Contractor 

Misclassification Law. Mass. Gen. Laws. Ch. 149, § 148.20 Such

"[a]nti[-]waiver provisions are characteristic of laws that 

20 The fact that this anti-waiver provision does not extend 

to the Minimum Wage Law is not significant to our analysis. For 

the other reasons stated, the Minimum Wage Law's own allowance for 

class claims reflects the fundamental public policy of the 

Commonwealth. 
- 50 - 

protect fundamental public policy." Melia v. Zenhire, Inc., 967 

N.E.2d 580, 588 (Mass. 2012). 

Several statements in Machado confirm that the SJC would 

conclude that the Commonwealth's fundamental public policy 

protects the right to bring class actions in the employment 

context, and, furthermore, that it would have reached a contrary 

conclusion in that case if the FAA had not preempted Massachusetts 

law. The SJC stated forthrightly that it was not "blind to the 

fact that the Legislature may find its purposes [in creating a 

statutory right to bring class claims] frustrated by [the] outcome" 

in Machado. 989 N.E.2d at 470-71. After invalidating and severing 

another portion of the employment contract that directly 

contradicted a different right provided by the Wage Act,21 the SJC 

stated that it likely would have done the same with the class 

waiver if the FAA did not preclude it from doing so. See id. at 

21 The contract included a waiver of multiple damages. 

Machado, 989 N.E.2d at 472. However, "because the award of treble 

damages is mandatory under [the Wage Act], and cannot be waived," 

the SJC invalidated and severed that portion of the contract. Id. 

at 472-73. The Court explained that it was able to enforce the 

Wage Act's mandatory award of treble damages and anti-waiver 

provision that protected that entitlement because doing so "does 

not impinge on any fundamental characteristic of arbitration, nor 

does it frustrate the purpose of the arbitral forum." Id. at 473. 

Therefore, the FAA did not preempt the SJC's decision to invalidate 

and sever that portion of the arbitration agreement as contrary to 

the Commonwealth's fundamental public policy. Id. However, 

because invalidating the class waiver provision would 

fundamentally alter the nature of the arbitration proceedings, the 

SJC could not similarly invalidate and sever the class waiver 

provision without running afoul of the FAA. Id. 
- 51 - 

472-73. Specifically, the SJC said that "[p]rior to Concepcion, 

the provision for class proceedings in § 150 [of the Wage Act] and 

the [provision that prevents contractual waiver of that right] 

likely would have compelled [the SJC] to invalidate and sever the 

class waiver." Id. at 473.

Thus, based on the SJC's reasoning in Machado, we are 

confident that the SJC would conclude that, like the statutory 

right to proceed as a class in the context of Massachusetts Chapter 

93A consumer claims, the statutory rights to proceed as a class 

articulated in the Massachusetts Wage Act, Independent Contractor 

Misclassification Law, and Minimum Wage Law -- as well as the 

statutory provision that precludes contractual waiver of these 

rights -- represent the fundamental public policy of 

Massachusetts, and that the SJC would therefore invalidate a class 

waiver in an employment contract, like that of Waithaka, not 

covered by the FAA. See Mass. Gen. Laws ch. 149, §§ 148, 150 & 

ch. 151, § 20. Notwithstanding the Supreme Court's view that such 

state policies must give way when the FAA governs a dispute, the 

policies remain intact where, as here, the FAA does not preempt 

state law. See Machado, 989 N.E.2d at 470-71, 473.22

22 Amazon argues that Massachusetts interprets its own 

Arbitration Act, Mass. Gen. Laws ch. 251, § 1, identically to the 

FAA, and so, in light of Concepcion and Italian Colors, even if 

Massachusetts law applied, any public policy against class waivers 

would give way to Massachusetts's own pro-arbitration policy. See 
- 52 - 

 2. The Competing Laws 

 Because the Agreement's class waiver provisions would be 

invalid under Massachusetts law, we must assess whether 

Massachusetts law would oust the contractual choice of Washington 

law, see supra Section III.A, -- based on our assumption for 

purposes of this case that Washington law would permit the class 

waiver provisions to be enforced -- and thereby preclude 

arbitration from being compelled pursuant to state law. See Feeney 

I, 908 N.E.2d at 766 (engaging in conflict-of-law analysis to 

determine whether consumer contract's choice of Texas law was 

unenforceable as contrary to Massachusetts's fundamental public 

policy). Massachusetts has embraced the conflict-of-law 

principles in the Restatement (Second) of Conflict of Laws.23 See 

Miller v. Cotter, 863 N.E.2d 537, 543 (Mass. 2007) (commenting 

that the FAA's "language is remarkably similar to" the 

Massachusetts Arbitration Act); Walker v. Collyer, 9 N.E.3d 854, 

859 (Mass. App. Ct. 2014) (explaining that, in deciphering the 

Massachusetts Arbitration Act, courts "give strong weight to . . . 

decisions applying the Federal Arbitration Act"). But even if 

Massachusetts follows the lead of the FAA in interpreting its own 

Arbitration Act, that does not help us determine how it balances 

competing policy rationales in the absence of federal preemption. 

Neither Miller nor Walker has anything to say on that balancing, 

and Amazon does not point us to any other cases that do. We 

therefore reject the argument that Massachusetts's public policy 

favoring the ability to bring classwide claims gives way to its 

own pro-arbitration policy.

23 Federal courts sitting in diversity look to the conflictof-law principles of the forum state to determine the applicable 

substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 

U.S. 487, 496 (1941). Neither party has contested that 

Massachusetts remains the "forum state" for purposes of the 
- 53 - 

Hodas v. Morin, 814 N.E.2d 320, 324 (Mass. 2004). The Restatement 

establishes a two-part inquiry: first, we must assess whether the 

state chosen by the parties in their contract has a "substantial 

relationship" to the contract and, second, whether applying the 

law of that state -- here, Washington -- "'would be contrary to a 

fundamental policy of a state which has a materially greater 

interest than the chosen state' and is the state whose law would 

apply . . . 'in the absence of an effective choice of law by the 

parties.'" Id. at 325 (quoting Restatement (Second) of Conflict 

of Laws § 187(2) (Am. Law Inst. 1971)). 

 Washington, where both Amazon.com and Amazon Logistics 

are headquartered, has a "substantial relationship" to the 

contract. See Restatement (Second) of Conflict of Laws § 187(2) 

cmt. f (Am. Law Inst. 1971) (noting that a state has a "substantial 

relationship" to the contract if it is "where performance by one 

of the parties is to take place or where one of the parties is 

domiciled or has his principal place of business"). Yet Amazon 

does not dispute that, in the absence of an effective contractual 

choice of law, the law of Massachusetts would apply. Nor does 

Amazon contest that Massachusetts, where Waithaka has indisputably 

conflict-of-law analysis despite the transfer under the "firstto-file" doctrine to the Western District of Washington. Cf. 

Ferens v. John Deere Co., 494 U.S. 516, 523-27 (1990) (explaining 

that, when the transfer of a diversity case occurs under 28 U.S.C. 

§ 1404(a), the state law of the transferor jurisdiction applies 

even after the transfer).
- 54 - 

performed all of his work pursuant to the contract, has "a 

materially greater interest" in the enforceability of the class 

waiver and arbitration provisions than Washington. Moreover, 

engaging in a conflict-of-law analysis in Feeney I, the SJC had 

little trouble finding that, in a dispute where the Commonwealth's 

fundamental interest in avoiding class waivers was at stake, the 

Commonwealth had a "materially greater interest" than the state 

whose law would otherwise apply. See Feeney I, 908 N.E.2d at 766-

67 & n.32 (noting that the question of whether Massachusetts has 

a "materially greater interest" in a contractual relationship "is 

subsumed with [the plaintiffs'] argument that the fundamental 

public policy favoring class actions" would result in the 

application of Massachusetts law) (internal quotation marks 

omitted). Ultimately, Amazon contests only whether the 

fundamental public policy of Massachusetts barring class waivers 

in employment contracts applies when a worker seeks damages of a 

sufficiently high dollar value. But we have already explained why 

Amazon's contention fails. 

 Hence, assuming that Washington law would permit the 

class waiver provisions, Massachusetts law would oust the 

contractual choice of Washington law as contrary to the 

Commonwealth's fundamental public policy and would govern the 

enforceability of the dispute resolution section of the Agreement. 

Under Massachusetts law, the class waiver provisions would be 
- 55 - 

invalid. Because, as noted, see supra Section III.B, the Agreement 

stipulates that the class waiver provisions cannot be severed from 

the rest of the dispute resolution section, the arbitration 

provision would be similarly unenforceable.24 

 Thus, the district court rightly refused to compel 

arbitration pursuant to state law. 

IV. 

 For the foregoing reasons, we affirm the district 

court's denial of Amazon's motion to compel arbitration. 

 So ordered. 

24 As we stated already, if our assumption for purposes of our 

conflict-of-law analysis that Washington would permit class action 

waivers in employment contracts is incorrect, and thus there is no 

actual conflict between the law of Washington and Massachusetts, 

Waithaka would simply prevail under the contractual choice of 

Washington law.