Pink Cheetah's Legal Team Issues Statement after Oral Arguments in Court of Appeals
September 12, 2026
FOR IMMEDIATE RELEASE from @SocciLaw on the @Pink__Cheetah September 11, 2026 Oral Arguments before the @uscourts U.S. Court of Appeals for the D.C. Circuit...
Here is the text of the Pink Cheetah Legal Release in its entirety:
"The Legal Team for Pink Cheetah Express in the matter of Case 25-7141 in the US Court of Appeals for the DC Circuit entitled "Pink Cheetah Express, LLC v. Total Quality Logistics, LLC" issued this statement today in the aftermath of the September 11, 2026 oral arguments before the three-judge panel, the Hon. Judges Pillard, Garcia & Ginsburg, presiding.
The Appellant is confident that, combined with our briefs we have successfully argued that the November 30th, 2023 directive sent to Appellee TQL via email disallowing the waiver language in its contracts and requiring compliance with 371.3 with all carriers moving forward qualified as an "order" under the definition of the term as defined in the Administrative Procedure Act and should be deemed as final agency action under Bennett v. Spear | 520 U.S. 154 (1997) since Appellee made no attempt to challenge or appeal that directive within FMCSA and exhaust its administrative remedies. Rather, it simply ignored the directive.
As for the use of the word "may" in the context of the waiver clause may constitute a violation of the Evasion of Regulation statute such statement must be viewed separate from the issue of whether the waiver violated 49 CFR 371.3 as alleged by Appellant to the Secretary of Transportation through Appellant's letter of complaint of October 31, 2023. At the time the November 30th 2023 directive was issued, the FMCSA had already determined Appellee had failed to comply with 371.3 with respect to failure to release to Appellant the January 2023 load documents including shipper payment records because it had already compelled Appellee to furnish same to FMCSA, which had already released the records to Appellant in accordance with Appellant's 371.3 regulatory rights, using FMCSA's own statutory authority to compel production of same in response to an initial email order to do so, which Appellee complied with, albeit reluctantly and untimely after Amy Unger at TQL passed the order on to TQL’s Legal Department.
So, the use of the word "may" is inconsequential in the context of an already confirmed violation of 49 CFR 371.3. The November 30, 2023 order was actually a second order in a series of two distinctly separate orders. The November 30, 2023 order cannot be deemed a stand-alone document without viewing it in the context of the first order issued via email during the investigation, which Appellee apparently accepted as an order and duly complied with. The November 30th, 2023 order was a post investigation wrap up order that was forward-looking in nature and was predicated along the lines of...
'…now that we dealt with and confirmed your initial 371.3 violation in this complaint as alleged by the complainant, and you cured it by complying and producing the records to Appellant albeit through us, let's wrap this up by making it clear the FMCSA is directing you not to commit any further violations of 371.3 especially, by continuing to rely on this unlawful waiver clause that we are advising you we are disallowing and directing you to remove from all of your contracts.'
The agency's decision not to issue a formal notice of violation and assess civil penalties for that violation of 371.3 is clearly grounded in the agency's bureaucratic and administrative law dilemma caused by the ALJ's decision in the Riojas matter, which asserted FMCSA has no legal authority to issue civil penalties for violations of the commercial regulations found in 49 CFR (such as Part 371). Ergo, the agency did not issue a notice of proposed civil penalty for Appellee’s clear violation of 49 CFR 371.3 due to that ALJ restriction.
Rather than use civil penalties as a tool to drill the point of the Appellee's non-compliance determined during the agency's review of the Appellant's complaint as agent of the Secretary home, the agency simply disallowed the waiver language by virtue of the email directive to the Appellee to remove said language and it directed the Appellee to comply with future 49 CFR 371.3 requests from any carrier moving forward in the hopes that would achieve compliance. However, the fact that the agency did not issue a notice of violation and assess civil penalties does not make the email directive, which meets the APA criteria for an "order," any less of an order. A backward-looking notice of violation aimed at punishing past misconduct does not change the nature of a forward-looking "order" to comply moving forward.
The prevailing statutory framework on brokers’ contractual waivers is actually referenced by FMCSA one year later in the November of 2024 Transparency in Property Broker Transparency Transactions rulemaking:
"The Agency's exercise of authority to regulate broker recordkeeping, including its issuance of broker transparency regulations, is not in conflict with 49 U.S.C. 14101(b). That statute permits shippers and carriers to waive certain rights and remedies by contract, but for reasons discussed in section VI.B.8. of this NPRM, the Agency believes brokers are not shippers within the meaning set out by 49 U.S.C. 14101(b). Because the statute does not relate to brokers, it does not conflict with the Agency's broker transparency regulations. Congress has also expressed its clear intent in 49 U.S.C. 13904(e) for the Agency to issue regulations applicable to brokers that provide protection for shippers and motor carriers, consistent with the Agency's responsibility to carry out the objectives of the national transportation policy and its general authority to regulate brokers of property."
Also in that rulemaking, the agency reviewed relevant case law:
"Moreover, a regulated entity must adhere to the regulations and cannot “disguise its regulatory obligations as contractual ones.” Taylor Energy Co. LLC v. United States, 975 F.3d 1303, 1306 (Fed. Cir. 2020). These changes would also ensure that the language in § 371.3(c) is consistent with the other broker requirements in part 371."
And, the trial judge herself in this matter stated in footnote three of her September 12, 2025 dismissal order:
"It troubles the Court that regulated entities may attempt to evade regulatory obligations by embedding waivers in contractual agreements. Some courts have suggested that a regulation promulgated through a formal rulemaking process may serve as an “order” that gives rise to a cause of action under § 14704(a)(1). See Owner-Operator Indep. Drivers Ass’n v. Mayflower Transit, Inc., 161 F. Supp. 2d 948, 955 (S.D. Ind. 2001). But Pink Cheetah identifies only the November 2023 email as the applicable “order” it seeks to enforce under § 14704(a)(1). Compl. at 10–11. And its briefing seems to disclaim the theory that “rule making” may constitute an “order.” Opp’n at 16 (quoting 5 U.S.C. § 551). So that argument is not before the Court."
Finally, when viewed in the context of other brokers using similar and in some cases identical waiver clause language as admitted to during the hearing by Appellee’s counsel, under the Sherman Antitrust Act 15 U.S. Code § 1 , contracts that are found to be in furtherance of unreasonable restraint of trade, such as, we believe, TQL’s evasive contractual waivers of 371.3, are “declared to be illegal..”
Appellant rests on its argument that the trial court erred in prematurely dismissing the Appellant's Complaint as a matter of Rule 12(b)(6) of the Rules of Civil Procedure."