          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
                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."


                                          - 3 -
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).


                                     - 4 -
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:




                               - 5 -
          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."


                              - 6 -
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



                                       - 7 -
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, earlier-

filed 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).


                                    - 8 -
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.


                                   - 9 -
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


                                     - 10 -
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



                                  - 11 -
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)).


                                  - 12 -
           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.


                               - 13 -
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




                                        - 14 -
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


                                   - 15 -
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.


                                     - 16 -
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


                              - 17 -
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



      8Although 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").


                                  - 18 -
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.


                                 - 19 -
-- 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.




                                  - 20 -
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"


                                   - 21 -
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 &


                                      - 22 -
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




                                    - 23 -
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"


     10Again, 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.


                              - 24 -
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


                                - 25 -
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


                                          - 26 -
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


                                         - 27 -
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


                                     - 28 -
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 pro-

arbitration 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


                                         - 29 -
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


                                   - 30 -
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


                                    - 31 -
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


                                         - 32 -
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.


                                        - 33 -
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


                                    - 34 -
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.


                                   - 35 -
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,



                                - 36 -
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.


                                   - 37 -
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.


                                     - 38 -
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-of-

law 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 class-
action arbitration" are "fundamental." See Stolt-Nielsen S.A. v.
AnimalFeeds Int'l Corp., 559 U.S. 662, 686 (2010).


                                        - 39 -
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.


                                        - 40 -
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.




                                       - 41 -
              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


                                      - 42 -
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.


                                        - 43 -
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"


                              - 44 -
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 fee-

shifting 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.


                                - 45 -
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."




                               - 46 -
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.


                                           - 47 -
            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


                                     - 48 -
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.


                                         - 49 -
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.


                                       - 50 -
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



                                   - 51 -
     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.
     23Federal courts sitting in diversity look to the conflict-
of-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



                                   - 52 -
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 "first-
to-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).


                                 - 53 -
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


                                        - 54 -
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.


                                       - 55 -
