by Andrew Flake
Small confession: I’ve never been served, tasted, or even heard of a “Krimpet.” When I first came across the term this week, it was from, of all places, a May 28 opinion from the United States Supreme Court. The opinion dealt with whether a particular worker could be compelled to arbitrate, on top of which it involved Georgia-based bakery, so I was naturally interested.
Scanning the opinion, I first assumed a Krimpet was like a baked-goods cousin of the “widget”—a generic placeholder the Court had invented to spice up a hypothetical. It turns out, a Krimpet is a real thing.
Specifically, a Butterscotch Krimpet. I thought, like any good American consumer, I had over the decades sampled the full range of packaged, iced baked goods—Zingers, Ho Hos, crullers, and even regional variations like the Moon Pie. But not Krimpets. As it happens, the Krimpet hails from Pennsylvania, a creation of the Tasty Baking Company – now a subsidiary of Flowers Foods – introduced in 1927!
That is just two years after the Federal Arbitration Act took effect, and one year after the American Arbitration Association—which celebrates its centennial this year—was founded. So nearly a hundred years ago, another arbitrator might well have been working through a case while enjoying a Butterscotch Krimpet, much as this arbitrator now finds himself writing about one. If I ended this post right there, on that small bit of serendipity, I would call it mission accomplished.
But there is more, because Flowers Foods, Inc. v. Brock lands in a surprisingly active corner of Supreme Court law: what it means to be a worker “engaged in interstate commerce,” and therefore exempt from the Federal Arbitration Act.
The background facts and the opinion itself are compact: Angelo Brock owned a company that operated as a Flowers Foods franchisee, picking up baked goods and delivering them to locations across his territory—among them, one assumes, the occasional Butterscotch Krimpet and plenty of Wonder Bread, another Flowers product. (I am resisting, with some effort, a digression here into the grade-school tour I took of a Sunbeam bread factory in Atlanta.) Brock and other franchisees sued Flowers under state and federal wage theories, alleging that they had been underpaid.
Flowers then moved to compel arbitration—and lost twice. The district court denied the motion, holding that Brock was exempt as a worker engaged in interstate commerce, and the Tenth Circuit affirmed. The Supreme Court granted certiorari on the question: “whether someone can qualify as a worker ‘engaged in . . . interstate commerce’ under § 1 if he never crosses state lines and never interacts with vehicles that do.”
Writing for a unanimous Court, Justice Gorsuch affirmed as well, observing that this was the fourth time the Court has taken up the exemption. In the earlier cases—New Prime Inc. v. Oliveira, Southwest Airlines Co. v. Saxon, and Bissonnette v. LePage Bakeries—the Court worked out what it means to be a covered “worker.” A thread runs through all of them: “interstate commerce” in Section 1, though not used in precisely the same way as in the Commerce Clause, carries a comparable breadth—which is to say it invites an expansive reading: workers who play a “direct, active, and necessary” roles in moving goods from state to state, even if they do not move a foot or wheel across a boundary line.
Flowers’s argument was a simple one: because Brock made every delivery inside a single state and never crossed a state line, he was not engaged in interstate commerce. The Court found that position untenable, both textually and as a matter of common sense. It consulted period dictionaries—including a satisfyingly old one noting that a “continuous carriage” of goods may begin in one state and end in another even though much of the journey never leaves a single state.
Justice Gorsuch, probably hungry by this point, then imagined a distribution chain with three drivers: the first hauls Krimpets from the bakery to the state line; the second picks them up and noses them ten feet across the border; the third carries them the rest of the way to the store. On Flowers’s reading, only the second driver—the one who happened to cross the line—would be exempt, even though all three played a direct and necessary part in one continuous interstate journey.
For good measure, the Court then referred to a number of older decisions—among them one about a steamer that never left Michigan yet was “engaged in commerce between the States”—making the same practical point.
The decision is a sensible textual read, and its result is carving a substantial population of individual commercial actors out of the FAA’s reach.
The Court touches on, but declined to decide, several points that Flowers only hinted at and had not fully briefed—among them that Ninth Circuit has held that the Section 1 exemption does not reach business-to-business contracts, and the First Circuit has found that couriers making in-state food deliveries fall outside it.
Reading the Court’s short catalog of what the lower courts have been doing, it’s my impression that are not done with the Court’s discussion of the FAA Section 1 exemption. We live in—and have for a long time lived in—a deeply interconnected commercial economy. Online commerce depends upon a network of personal and mechanical movement across the country, and the build-out of so many distribution systems. They are over-the-road today, and we’ll surely see more ubiquitous drone and robot delivery soon.
The dough is still rising on these disputes. My guess is the next one, if it reaches the Supreme Court, will be framed around some version of what it means to play a “direct, active, and necessary” role, as opposed to a merely tangential one, in interstate commerce for another industry or transport actor. ABF
[The opinion is Flowers Foods, Inc. v. Brock, No. 24-935 (U.S. May 28, 2026).]