Tyson Fisher
When it comes to expanding truck parking, states have been telling the federal government, “Show me the money!” How does more than $1 billion sound?
Although that amount has not yet been allocated, nearly $1.2 billion is on the table. That money comes from three different bills, all of which use language similar to that of the Truck Parking Safety Improvement Act, including prohibitions on paid-parking projects.
One of those bills, a $1.2 trillion spending package, is a done deal. Signed into law in February, that bill set aside $200 million for truck parking expansion. Just a few months later, the Department of Transportation is already getting the ball rolling to dole out that money.
On Tuesday, June 9, Transportation Secretary Sean Duffy announced more than $600 million in infrastructure funding. That includes the $200 million for truck parking from the spending package. The remaining dollars come from previous bills, including the 2021 Infrastructure Investment and Jobs Act.
Now, the federal government is accepting applications due July 15 so it can disburse those funds. The relatively quick turnaround will get truck parking projects moving forward sooner rather than later.
“From our thriving commercial space industry to our hardworking truck drivers, the Trump Administration is delivering for the American people,” Duffy said in a statement. “We are moving at the Speed of Trump to prioritize critical infrastructure needs in grants, move federal dollars out the door, and start turning dirt.”
While states and other public entities try to get a piece of that pie, there may be a much bigger pie ahead.
Currently, a new highway bill awaits a full House vote. In that bill is a near carbon copy of the Truck Parking Safety Improvement Act, which would allocate $750 million to parking expansion projects over five years.
“If the next surface transportation reauthorization fails to provide dedicated funding for truck parking, but authorizes even a single penny of funding for new initiatives, OOIDA will use every tool it has to ensure the legislation is defeated,” the Association wrote in 2025. “Based on a history of strong bipartisan support for the Truck Parking Safety Improvement Act, we are confident the House will again agree this crisis requires federal leadership to solve. Together, we can deliver a key victory for hundreds of thousands of truckers across the country.”
The highway bill still needs to clear both the House and the Senate. During that process, the truck parking provision could be modified or eliminated.
Last week, the House Appropriations Committee advanced a funding bill for Transportation, Housing and Urban Development (THUD). That bill also includes $200 million for truck parking expansion projects.
If the highway and THUD bills both make it to the finish line as is, that would mean an additional $950 million in funding for truck parking. That’s on top of the $200 million already underway from the spending package in February.
Anything can happen between now and when those bills are signed into law, but 2026 could be a milestone year for publicly available truck parking.
Jenna Hume
Key takeaways
- Cargo theft losses in 2025 surged to $725M, with confirmed incidents rising and the true impact likely much higher.
- Thieves are using strategic scams, including “Trojan horse” drivers, email infiltration, and double-brokering scheme adjustments.
- Point of pickup remains the weakest link, where high turnover and limited training increase exposure to theft.
168387569 | Vitpho | Dreamstime.com
2025 was a good year for cargo thieves and, consequently, a bad year for the supply chain and the trucking industry. According to Verisk CargoNet, estimated losses rose by 60% to approximately $725 million, though the true figure is likely 10 to 15 times higher. Confirmed cargo thefts rose 18% year over year from 2,243 to 2,646.
CargoNet
The potential silver lining here is that cargo theft awareness is on the rise. According to Andrey Drotenko, president of strategic relations for Verified Carrier, awareness of strategic theft has increased in the industry as such incidents have become increasingly relevant. And this includes best practices to prevent strategic theft.
But cargo thieves are constantly evolving. So far in 2026, cargo theft experts have noted new scams, trends, weaknesses, and more.
Trojan horse scam exploits trucking vetting systems
In response to other cargo theft schemes, the trucking industry has cracked down on verifying the legitimacy of carriers. Unfortunately, in this chess match of cargo theft, the thieves have adjusted accordingly. Freight brokers and fleets are vetting carriers, but can they realistically vet every single truck driver?
“The bad guys, instead of trying to pass through some of these vetting platforms that are out there, send one of their crew members to go work as a driver at a legitimate trucking company,” Scott Cornell, chief risk officer for SPG Cargo & Logistics and chair of TAPA Americas, explained. “So now that the trucking company is a completely legitimate company, they would pass through the vetting process of any of these platforms, no issue-type scenario.”
The driver then hauls loads while communicating with their fellow thieves until a load they want comes up. The driver parks somewhere on their route, walks away, and the thieves swoop in to steal the cargo.
According to Cornell, the truck driver in these situations is often fired for leaving the cargo unsupervised in a breach of protocol. This is what the thieves want, so the driver can get hired somewhere else, and the cycle of theft can continue.
Unaware that they were being used to bypass vetting platforms, the trucking company believes it was a straight theft, when in fact it was a strategic theft. The Trojan horse scam doesn’t become clear until the driver and/or their equipment are connected to past thefts and firings. Experts have just begun to investigate and identify this particular scam.
To prevent this type of theft, Cornell says trucking companies should conduct thorough background checks on drivers. For freight brokers, Cornell recommends requesting drivers who have been employed for more than six months for high-value loads. There are also new and emerging technologies that can help verify drivers at the point of pickup as well as their equipment.
Verified Carrier
Emerging 2026 cargo theft trends reshape freight security risks
So far in 2026, there are a few other cargo theft trends emerging that the industry needs to be aware of.
Cargo thieves use hacking and email infiltration to intercept freight
Technology is not new to cargo thieves, but the sophistication of their technological theft attempts, especially via email, is increasing.
“The level of sophistication right now is increasing, whether [cargo thieves] are trying to have a domain name that looks exactly the same or going a step further and hacking into computers to where they can essentially have a team-viewer level access of what you’re doing,” Drotenko said. “And then they could go and do things from your computer, as if they’re you, and then delete any trace of emails or anything that they did … And I think that’s a new level of sophistication that in this industry hasn’t been a trend, and we’re seeing more of it.”
Cornell also emphasized increased email infiltration efforts from cargo thieves. Thieves are accessing a carrier’s email, intercepting communications, creating their own email address within the carrier’s email, and then bidding on loads. This method has also been used by thieves to commit double-brokering scams and circumvent traditional prevention methods.
Point of pickup remains top vulnerability
Cargo is at its most vulnerable at the point of pickup, a situation that hasn’t improved so far this year.
“The weakest link, though, is still going to be at the point of pickup,” Drotenko explained. “That’s where you have the highest turnover. Those people aren’t the ones who are going out to the conferences; they’re not the ones learning about the latest trends or what to look for.”
Drotenko emphasized the importance of training employees who are primarily at the point of pickup on current cargo theft trends and how to protect themselves from these scams.
Tight freight capacity challenges cargo theft prevention practices
Trucking has seen a tight freight market in 2026, as the U.S. economy has suffered and global unrest continues. For Drotenko, this raises concerns about the industry remembering and following through on cargo theft prevention best practices.
“At the end of the day, when you’re between a rock and a hard place in a tight market, you just don’t have the luxury of getting to say no to a lot of carriers to find a good one,” he explained.
Still, he encourages continuing strong vetting and verification practices, even as capacity tightens.
Overexposure of theft prevention tactics risks aiding cargo criminals
The trucking industry has made great strides in becoming more knowledgeable about cargo theft and sharing insights between fleets, brokers, and carriers, but how this information is shared has become increasingly important.
“The industry has a habit of posting its solutions on social media,” Cornell said. “The intent is good; the intent is ‘we want to help each other prevent theft.’ The problem is the bad guys keep an eye on us. They watch us, and they know what we do. And I think this is a perfect example of how they make adjustments.”
Truckers News Staff
Last week we asked, “During orientation, what single problem makes you question whether you should stay with this fleet?”
- 36.63% said, “Pay or bonuses explained differently than before.”
- 27.72% said, “Orientation is disorganized or changes last minute.”
- 23.76% said, “Hometime described differently than before.”
- 11.88% said, “I find out I won’t be getting my truck or getting on the road. when I expected.”
Last week we asked, “What improvement would make you most likely to complete more online applications?”
- 44.23% said, “Shorter first step with only basic information.”
- 40.38% said, “Being able to auto‑fill past job history/documents.”
- 15.38% said, “Having a recruiter finish the full app with me later.”
Last week we asked, “When you see a new trucking job ad, which one detail makes you believe it’s worth your time to look closer?”
- 44.44% said, “Clear weekly pay examples (not just CPM).”\
- 25.25% said, “Exact hometime schedule (days home, days out).”
- 20.2% sad, “Clear description of freight and routes.”
- 10.1% said, “Actual driver quotes.”
Last week we asked: “What is the main thing that turns a “maybe I’ll look around” feeling into “I am now applying for other driving jobs”?
- 48.99% said, “My paycheck drops and stays down.”
- 24.83% said, “My dispatcher/office changes how they treat me.”
- 19.46% said, “Company changes a policy that hurts drivers.”
- 6.71% said, “My home time gets cut back.”
Last week we asked, “If a job ad lists a pay range, where do you expect your weekly pay to fall?”
- 53.21% said, “At the top of the range.”
- 30.13% said, “Somewhere in the middle.”
- 8.97% said, “Below the range they advertised.”
- 7.69% said, “Near the bottom of the range.”
Last week we asked, “When a recruiter first calls you about a driving job, what is most likely to make you decide to end the call early?”
- 38.37% said: “They sound like they’re reading a script.”
- 30.31% said: “They won’t give a straight answer about pay.”
- 15.7% said: “They won’t give a straight answer about home time.”
- 15.12% said: “They talk over me and don’t let me ask questions.”
Employers could be unaware that a recent hire fraudulently ‘passed’ a previous drug or alcohol test to get back behind the wheel of a massive semitruck
Jacob Burg
A federal database built to flag and remove drunk and drugged truckers from U.S. highways used the equivalent of an “honor system” as its last line of defense between a family in a minivan and a substance addict steering an 80,000-pound mass of steel.
The Federal Motor Carrier Safety Administration (FMCSA) launched its Drug and Alcohol Clearinghouse in early 2020 to improve road safety by providing employers, law enforcement, and state agencies with real-time information on substance-use violations by commercial drivers.
Truckers caught driving while under the influence, or violating the Transportation Department’s alcohol and substance regulations, are flagged in the system with a “prohibited” status and must complete a return-to-duty process to reinstate their commercial driver’s licenses.
But what if a current alcoholic or drug addict could immediately get back behind the wheel by paying a third party to simply check off a box inside the database, rather than complete and pass follow-up drug or alcohol testing?
That’s how Brandon Blackburn, 34, was able to get back on the road, he told The Epoch Times. Blackburn was arrested last year on charges of driving while impaired in a construction zone with cocaine in his possession, according to the Prentiss County Sheriff’s Department.
Blackburn said his “prohibited” status was cleared by another man who simultaneously runs a trucking company and advertises his “substance abuse professional” services across a network of trucking-related Facebook groups.
According to Blackburn and evidence reviewed by The Epoch Times, Blackburn and others appear to operate within a network of actors who have been exploiting loopholes in federal rules to illegitimately clear “prohibited” commercial drivers in the federal Drug and Alcohol Clearinghouse.
This was revealed by evidence presented in a multiseries investigation by Rob Carpenter of FreightWaves, a news outlet focused on the global supply chain. The Epoch Times reviewed the evidence collected by FreightWaves, independently verified each facet of the story, and interviewed Blackburn, who confirmed that the scheme worked for him and others.
Trucks drive away from the Port of Long Beach, Calif., on May 15, 2026. Under the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse, truckers flagged as “prohibited” after impaired driving must complete a return-to-duty process to regain their commercial licenses, but some can reportedly get back behind the wheel by paying a third party to check a box in the database. John Fredricks/The Epoch Times
Blackburn admitted to The Epoch Times that he cleared drivers who had been flagged with drug or alcohol violations even though he didn’t have the necessary certification to do so. He claimed some of the people he helped had their licenses incorrectly flagged in the system, and said he was trying to help truckers and veterans in need.
Blackburn describes himself as a small player across a network of actors that operates like a multilevel marketing scheme. He claimed that several others are much more prolific and are still operating.
“We’ve never seen anything like this before. It sent shockwaves through our industry,” Jo McGuire, executive director of the National Drug and Alcohol Screening Association, told The Epoch Times.
The implications are not just grave for road safety, but also for employers who rely on the clearinghouse to avoid hiring drivers who may be at a higher risk of bringing on a multimillion-dollar court settlement in the event of a serious highway accident.
This is how the scheme proliferated in plain sight, and why, despite new and upcoming rule changes to the certification process in the clearinghouse, employers may be unaware they’re hiring a potentially dangerous driver.
A sign in front of a business advertises driver job openings in Elk Grove Village, Ill., on April 3, 2026. Scott Olson/Getty Images
The Scheme Explained
Once a driver is caught driving under the influence, or is flagged after testing positive for drugs or alcohol, his or her license receives a “prohibited” status from the clearinghouse.
Examples of drug and alcohol violations include having a blood alcohol level of 0.04 or greater while on duty for “safety-sensitive” operations and using any prohibited drugs.
Even driving with sealed alcohol containers in the cab, as long as they are not part of the driver’s shipment, counts as an alcohol violation.
In late 2024, the FMCSA updated the clearinghouse to immediately downgrade a commercial driver’s license once the driver received a “prohibited” flag, forcing him to start the return-to-duty process to get back on the road.
As part of the return-to-duty process, a driver typically works with his employer to select a substance abuse professional who provides an initial assessment and offers education and treatment recommendations. The process involves six steps, with the driver needing to pass a drug or alcohol test on step five before completing a follow-up testing plan in step six.
The way the federal agency designed the database was critical for how the scheme unfolded. Step five only requires a testing date, rather than a copy of a negative drug or alcohol test. The driver’s employer is responsible for verifying the results and entering the date of the negative test.
However, drivers without current or prospective employers may register accounts in the clearinghouse as owner-operators and can designate third-party administrators to complete that part of the process.
A student truck driver makes flash cards for his commercial driver’s license exam while taking a class in California on Nov. 15, 2021. Jae C. Hong/File/AP Photo
This is how the scheme proliferated, based on the evidence reviewed by The Epoch Times. Employers, substance abuse professionals, and third-party administrators were only required to self-certify in the clearinghouse database. No identity verification was involved in the process.
By law, a substance abuse professional must be a licensed physician, social worker, psychologist, certified employee assistance professional, certified drug and alcohol counselor, or state-licensed or certified marriage and family therapist.
But since the clearinghouse allowed users to self-certify, anyone could check the box without having the credentials. The same was true for third-party administrators.
Based on evidence reviewed by The Epoch Times, Blackburn and others appear to have been operating in the clearinghouse with multirole accounts, including as substance abuse professionals, third-party administrators, and employers.
Some Facebook users who publicly advertised Blackburn’s services mentioned being out of work when they began the return-to-duty process, meaning they would have had to use a third-party administrator to verify and submit the date for a negative test result.
Several online databases exist for legitimate substance abuse professionals who work with the Transportation Department, including NAADAC’s directory and SAPList.com. Blackburn could not be found on either database.
U.S. Department of Transportation in Washington on July 31, 2023. In late 2024, the Motor Carrier Safety Administration updated the Clearinghouse to immediately downgrade a commercial driver’s license once the driver received a “prohibited” flag, forcing them to start the return-to-duty process to get back on the road. Madalina Vasiliu/The Epoch Times
Blackburn said it’s easy to circumvent the prescribed clearinghouse process from a basic Google search. He told The Epoch Times that he got involved after seeing the scheme persist from the moment the clearinghouse was launched.
It operates like a multilevel marketing, or “pyramid,” scheme, Blackburn said. If you see a user in one of several related Facebook groups advertise helping drivers with the return-to-duty process, and they mention a particular person they worked with, that person is taking a cut.
Multiple users advertising return-to-duty services mentioned Blackburn and others based on hundreds of public Facebook comments that were reviewed for this story.
Blackburn insists he has stopped, but claims the others have not. He said he was struggling with a drug problem, relapsed last year, and that was the reason for his arrest.
Blackburn said he charged around $100 for his services and never more than $150. The entire return-to-duty program with a legitimate substance abuse professional can cost between $1,000 and $3,000 when evaluations, education, treatment, and tests are included.
A total of 368,984 violations have been reported to the Drug and Alcohol Clearinghouse since its launch, according to its most recent monthly summary report.
That tally includes 360,107 drug violations and 8,877 alcohol violations. The drug violations include the use of marijuana (206,394), cocaine (57,075), methamphetamine (29,017), and a long list of synthetic opioids.
As of Jan. 2, 328,431 drivers had been reported to the database with at least one drug or alcohol violation. Of those, 202,345 remain in “prohibited” status with their licenses still downgraded.
The report said 85,136 have completed the full return-to-duty process. Based on evidence reviewed by The Epoch Times and FreightWaves, Blackburn may have cleared hundreds of drivers, though he now insists it was less than 100.
Drivers undergo a sobriety test at a Los Angeles Police Department police DUI checkpoint in Reseda, Calif., on April 13, 2018. As part of the return-to-duty process, a driver typically works with their employer to select a substance abuse professional who provides an initial assessment and offers education and treatment recommendations. Mark Ralston/AFP via Getty Images
Based on the evidence reviewed for this story, including public Facebook advertisements, there may be dozens of people who improperly cleared drivers through the return-to-duty process. If others were operating at a similar scale, the number of improperly cleared drivers could be significant relative to those who completed the process legitimately.
Blackburn told The Epoch Times that there are at least 100.
“As consumers, we all want to make sure that doctors and pilots and anybody we depend on as a society has attained and maintained that credential through legitimate means,” Jeff Burkhardt, senior director of operations at trucker training provider Ancora Education, told The Epoch Times.
“There needs to be the commensurate level of oversight and accountability for each one of those components [of return-to-duty] in order for the whole apparatus to work.”
The FMCSA did not respond to a request for comment
.
Emergency officials stand over a crash scene, including a wrecked police motorcycle, after a suspected drunk driver struck spectators during the Oklahoma State University homecoming parade in Stillwater, Okla., on Oct. 24, 2015. The vehicle killed three people and injured at least 22 before the Oklahoma State–Kansas football game. J Pat Carter/Getty Images
Legal Nightmare
As FreightWaves pointed out in its three-part investigation into clearinghouse fraud, the legal implications for employers are grave.
If an employer hires a driver who worked with an illegitimate substance abuse professional or third-party administrator, that could create liability for both the driver and employer, personal injury attorney Doug Burnetti told The Epoch Times.
That liability exposure remains for employers even if the driver was inaccurately or fraudulently cleared, according to Daniel Setareh of Setareh Law APLC.
“The risk isn’t theoretical. It shows up as catastrophic crashes,” Setareh told The Epoch Times.
“From a civil liability standpoint, if a carrier’s driver was cleared through one of those facilities and later causes a crash, that fraudulent documentation doesn’t protect the carrier—it may actually deepen their exposure.”
These litigation risks persist despite the FMCSA making a critical change last month to the clearinghouse certification process.
Now, all new clearinghouse users must complete identity verification to register as substance abuse professionals, third-party administrators, employers, and medical review officers. They must provide proof of the required credentials with IDEMIA, a company used by the Department of Homeland Security for identity verification at U.S. airports.
The FMCSA said that existing users will be required to complete the same process at a later date.
“By strengthening identity verification, we are closing gaps that could be exploited by bad actors, protecting the integrity of the data, and reinforcing confidence across the entire commercial driver safety industry,” FMCSA Administrator Derek Barrs said in a statement on April 27.
The change closes the self-certification loophole that fueled the Drug and Alcohol Clearinghouse fraud. It does not, however, remove the liability risk of a trucker with an active license who may have been improperly cleared from “prohibited” status before the change went into effect.
“If you’re out there on the roadways with your child and you don’t know whether a truck driver driving next to you is under the influence of anything or not, that’s terrifying,” McGuire said.
Brad Klepper
Here’s an interesting question I recently received:
“I was parked at a rest area on I-65 finishing up my mandatory rest break. About an hour before I was set to go back on duty, a DOT officer knocked on my door and told me he was performing a Level II inspection. I told him I was off-duty. Can the DOT legally perform an inspection while I’m at a rest stop and technically off the clock? It feels like an invasion of privacy when I’m in my ‘home’ for the night.”
The short answer, unfortunately, is YES.
However, the legal nuances regarding when and how that inspection takes place, especially during a mandated rest period, are governed by a combination of federal regulations and operational policies.
While I personally value my rest and may be less than pleasant if interrupted, personal fatigue does not constitute a valid legal basis for refusing an inspection.
Why rest stops are ‘fair game’
Under 49 CFR ? 396.9, authorized federal, state and local officials are empowered to enter and perform inspections of commercial motor vehicles (CMVs) “in operation.”
The legal definition of “in operation” is broader than many drivers realize. It does not simply mean the wheels are turning on the highway. It also includes vehicles parked in public areas like rest stops, weigh stations and even on the shoulder of the road. Because rest areas are public property maintained by the state, law enforcement officers have full jurisdiction to conduct administrative inspections.
CVSA Operational Policy: The “Do Not Disturb” Rule
While the law grants officers the authority to inspect, the Commercial Vehicle Safety Alliance (CVSA) — the body that sets North American Standard Inspection criteria — has issued clear guidance to prevent the interruption of driver rest cycles. Generally, an officer who wakes a driver will have a compelling reason for doing so.
CVSA Operational Policy 15 (formerly Policy 14) states that certified inspectors should not disturb or interrupt a driver who’s in “Off-Duty” or “Sleeper Berth” status for a random inspection … provided the vehicle is legally parked.
The Intent:
This policy aims to prevent forced Hours of Service (HOS) violations. If an officer requires you to assist with an inspection (checking lights, applying brakes, providing paperwork, etc.), you are technically moving from “Off-Duty” to “On-Duty, Not Driving” status. This “breaks” your 10-hour break or 34-hour restart, potentially forcing you to start the clock over.
The Exception:
An officer can legally wake you and require an inspection if there is an immediate safety hazard (e.g., your truck is leaking fuel, a tire is visibly flat, or the vehicle is parked in a way that obstructs traffic).
The “On-Duty” Conflict
If you are required to assist in an inspection while on break, you are legally obligated under 49 CFR ? 395.2 to record that time as “On-Duty.” If an officer insists on the inspection despite being told you are on a mandatory break, follow these steps:
- State your status:Politely inform the officer that you are in the middle of a mandatory HOS rest period and that an inspection will interrupt that legal requirement.
- Document the interaction:If they proceed, change your status to “On-Duty” and add a remark in your ELD noting that the change was due to a mandatory DOT inspection.
- Request documentation:Make sure you receive a copy of the inspection report and the officer’s badge number. This documentation is vital for your carrier to explain HOS violations or load delays to the FMCSA or the customer.
The final word:
In late 2025, we have seen an increase in “rest area enforcement” sweeps targeting unauthorized parking and cargo securement. An officer’s duty to ensure public safety will almost always override a driver’s desire for uninterrupted sleep in the eyes of the court.
Furthermore, if you’re parked on a ramp or an area not designated for truck parking, you surrender your protection under the “legally parked” clause of CVSA policy. In those cases, moving the vehicle for safety reasons automatically triggers an “In Operation” status.
In summary, the DOT has the authority to inspect at rest stops because they are public property. However, federal guidance strongly discourages interrupting a driver’s rest for random checks. If you are ordered to comply, do so and document everything. That documentation is your best legal defense against HOS citations.
Doug Marcello
Transport Topics published a piece last week with a headline that will spread through broker and shipper legal departments like a sedative: “Broker Liability Ruling May Be Less Harsh Than Feared.”
The article quotes industry analysts pointing to the concurring opinion in Montgomery v. Caribe Transport II. The argument goes like this: the ruling is grounded in the FAAAA’s safety carve-out, which means only safety-related claims proceed; plaintiffs still have to prove the broker failed to exercise ordinary care in selecting the carrier; brokers have a real defense; the sky is not falling.
The analysts are correct about the legal standard. They are incorrect about what that means in the real world where trucking cases actually live.
There is a gap between how litigation works in theory and how it works in the offices of plaintiff attorneys who specialize in trucking cases. That gap is not academic. It is measured in settlement dollars, and it will grow substantially in the post-Montgomery environment.
The Theory
The “less harsh” argument rests on a sound legal observation. The Supreme Court’s ruling in Montgomery does not create strict liability for freight brokers. It does not hold that every accident involving a carrier the broker selected is automatically the broker’s problem. The concurrence in particular emphasizes that plaintiffs bear the burden of demonstrating actual negligence in the carrier selection process — that the broker knew or should have known the carrier presented an unreasonable safety risk and selected it anyway.
That is a real legal standard. It has real evidentiary requirements. Some cases will fail to clear it. Some brokers will prevail on summary judgment. Some plaintiffs will be unable to connect a carrier’s safety record to broker knowledge at the time of selection.
The analysts are right about all of this. And none of it tells you what happens to broker exposure in practice.
The Reality
The reality of trucking litigation is that most cases never reach trial. In truth, very few do. They settle. Not because the plaintiff’s theory is bulletproof, but because the litigation economics — the cost, the risk, the exposure — make settlement rational (necessary?) for everyone involved before the standard is ever tested.
This is not a flaw in the system. It is the system. And it is the system that Montgomery has just fundamentally altered for freight brokers. And it is the real system with which we must deal.
The analysts are looking at the courtroom. The plaintiff’s bar is looking at the settlement table. Those are not the same place.
Before Montgomery, brokers had a powerful pre-litigation weapon: the FAAAA preemption wall. A broker named as a defendant could move quickly and effectively for dismissal on federal preemption grounds. That motion had a realistic chance of success. It gave brokers genuine leverage in early settlement negotiations.
That wall now has a door. Once a plaintiff can credibly survive a motion to dismiss — which becomes significantly easier when the federal preemption argument is unavailable — the litigation enters a different phase. Discovery. Depositions. Document production. And the economics of that phase bear no resemblance to the legal standard governing the ultimate verdict.
Three Arguments the “Less Harsh” Analysis Doesn’t Make
First: Plaintiffs Don’t Need to Win. They Need Leverage.
The “brokers can defend” argument assumes the relevant question is what happens when a case reaches a jury. But the relevant question in virtually all trucking litigation is what happens in the demand letter, at the mediation table, and in the adjuster’s office.
The moment a freight broker is a named defendant with a colorable theory of negligence, the settlement calculus changes for every party in the case. The broker’s own defense costs — attorney fees, expert fees, internal time — begin accruing. Its reputational exposure becomes a factor in its own risk calculation. And the tail risk of a nuclear verdict, however remote the legal standard makes it, is never zero.
All of those factors drive up the settlement number. None of them require the plaintiff to actually prove negligence at trial. They require only that the plaintiff’s claim survive long enough to generate discovery and make a legitimate demand.
Post-Montgomery, that threshold is materially markedly lower than it was before. The broker who previously could dispose of a claim on preemption grounds now has to litigate into discovery to have any realistic chance of dismissal. And given the standard for summary judgment, that will be highly unlikely. That’s a different exposure profile — and a different settlement calculus — regardless of what the legal standard ultimately requires.
Second: The Insurance Gap Is the Real Story.
This is the argument that does not appear anywhere in the Transport Topics piece, and it is the most important argument in the post-Montgomery landscape.
Consider a common fact pattern: a carrier with $1 million in liability coverage is involved in an accident that produces $7 million in damages. The carrier’s policy pays its limits. The plaintiff has $6 million in unsatisfied damages. The plaintiff’s lawyer looks around for additional sources of recovery.
Before Montgomery, the broker was difficult to reach. Post-Montgomery, the broker is a named defendant with a colorable negligence theory and its own insurance program. The plaintiff does not need to prove that the broker’s legal exposure is unlimited. The plaintiff needs only to demonstrate that the broker’s potential liability is large enough to justify its insurance carrier paying to make the case go away. Or overpaying based on potential exposure.
That calculation — broker insurance + fear of nuclear verdict + cost of defense — operates entirely independently of what the negligence standard requires at trial. It is a function of the broker’s presence in the case, the insurance gap between carrier limits and total damages, and the plaintiff attorney’s willingness to be patient.
Experienced plaintiff lawyers in trucking cases are very patient.
The insurance gap between carrier limits and actual damages is where broker exposure lives — regardless of what the negligence standard requires at trial.
Third: “Ordinary Care in Carrier Selection” Is a Discovery Invitation.
The legal standard the concurrence articulates — ordinary care in selecting a carrier — sounds manageable. It is not strict liability. It requires actual negligence. It imposes a real burden of proof on the plaintiff.
But the evidentiary inquiry required to test that standard is enormous. What did the broker know about the carrier’s safety record at the time of selection? What vetting process did the broker use? What databases did it query? What flags did it see — and what flags did it miss? Did any human being at the broker exercise judgment to override an automated system? If so, on what basis?
Every one of those questions is a deposition. Every deposition identifies documents. Every document production exposes internal processes that brokers have never expected to litigate in public. And every exposed internal process creates a new line of attack for plaintiff counsel who specializes in exactly this kind of case.
The legal standard may narrow what ultimately reaches a jury. It does not narrow what reaches discovery. And discovery, for most brokers, is the real exposure.
The Denuclearization Connection
The Denuclearization thesis holds that nuclear verdicts in trucking cases are not inevitable. They are the product of predictable strategies — Reptile Theory, third-party litigation funding, Judicial Hellholes, and the exploitation of subjective expert testimony over objective data — that can be disrupted with preparation and the right evidentiary framework.
Montgomery adds a new chapter. The “less harsh” narrative is dangerous not because it is legally wrong, but because it will breed complacency. Brokers and shippers who read that headline and conclude they don’t need to change their practices are misreading the litigation environment they now operate in.
The preparation that post-Montgomery demands is the same preparation that has always characterized good trucking defense: objective documentation, rigorous vetting, and an evidentiary record that holds up to discovery. The difference is that now the broker needs that record, not just the carrier.
Before Montgomery, the broker’s best defense was federal preemption. After Montgomery, the broker’s best defense is the same thing the carrier’s best defense has always been: a documented, data-driven selection process that demonstrates ordinary care before the accident, not a legal argument about jurisdiction after it.
