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.
In late April 2026, FMCSA quietly released a new Frequently Asked Questions (FAQ) document focused on prohibited coercion of commercial motor vehicle (CMV) drivers. While the coercion rule itself is not new—it has been on the books since 2015—the timing and substance of this guidance are anything but routine.
At a moment when regulators are confronting ELD fraud and manipulation, hours-of-service pressure, chameleon carriers, and broker misconduct, FMCSA’s message is clear: if fraud is our enemy, then so too is coercion to commit fraud.
What Is the Prohibited Coercion Rule?
The coercion rule, codified at 49 CFR § 390.6, makes it illegal for motor carriers, shippers, receivers, and transportation intermediaries (including brokers) to pressure a driver to violate federal safety regulations.
FMCSA defines coercion as a three-step sequence:
- A party requests that a driver perform work that would violate a regulation.
- The driver objects in writing or verbally, explaining that doing so would require a violation.
- The party threatens or takes adverse action, such as withholding loads, pay, or future work, to force compliance.
Importantly, FMCSA also makes clear that a violation does not have to occur for coercion to exist. A mere threat is enough.
In short, the FAQs clearly signal that:
- Drivers are not required to violate safety rules to “get the load done.”
- Drivers may file a written coercion complaint within 90 days of the incident.
- Complaints can be supported through texts, emails, dispatch messages, or witness statements.
For the rest of the industry, this guidance raises the stakes.
FMCSA has the authority to bring enforcement actions directly against non-carriers, including freight brokers, shippers, receivers, transportation intermediaries, and their agents. This means a dispatcher threatening reduced miles, a broker implying “no future loads,” or a receiver penalizing a driver for refusing to violate HOS can all trigger exposure under § 390.6. Civil penalties, reputational risk, and downstream audit consequences are all on the table.
Why Did FMCSA Issue This FAQ Now?
FMCSA states that the purpose of the FAQ is to “help drivers understand how they might be coerced to violate safety regulations and what they can do if they believe they have been coerced.”
However, this guidance comes against a much larger backdrop of fraud enforcement:
- Rising enforcement attention on hours-of-service and ELD fraud and falsification
- High-profile cases involving coercion tied to fraudulent carriers and brokers.
- Chameleon carrier issues, registration fraud, and the launch of MOTUS
- Data showing that HOS- and ELD-related violations remain among the most common roadside violations.
FMCSA is signaling that coercion enforcement is not theoretical. It is active, expanding, and increasingly multi-party.
Why This Guidance Is Important
Although the FAQ is explicitly described as non-binding guidance, it matters for several reasons:
- It clarifies what evidence FMCSA expects in a coercion complaint.
- It confirms that brokers, shippers, and receivers, and not just carriers, can be held liable.
- It emphasizes that coercion can occur through texts, emails, dispatch systems, and implied threats, not just explicit orders.
In short, FMCSA is laying out a roadmap for enforcement, even while maintaining that the FAQ itself is not a new regulation.
The Bigger Picture
FMCSA’s coercion FAQ is less about restating the law and more about resetting expectations. The agency is reminding the industry that safety compliance is not negotiable, and pressure—subtle or overt—can carry real consequences. Perhaps less overtly, FMCSA may also be recruiting truck drivers to join forces with FMCSA in their fight against fraud by asking them to report carriers, brokers and shippers asking them to commit or ignore fraud. For an industry built on coordination, the message is simple: it takes a village.
he Level VIII Inspection Program represents a major, yet evolving, concept in trucking enforcement. Defined by CVSA in 2017 as a fully electronic inspection conducted while a vehicle is in motion, it is currently being tested by FMCSA and CVSA through a phased operational pilot to determine feasibility, usefulness, and scalability. The challenge, however, is not envisioning the concept but implementing it in a way that is fair, secure, standardized, and operationally credible. This is where the sausage is made.
At its core, Level VIII aims to transform roadside inspections from discrete events into a continuous, data-driven system. Its potential is to expand inspection coverage, reduce delays for compliant carriers, and improve enforcement targeting. CVSA’s Level VIII Guiding Principles reinforce this vision while emphasizing collaboration with industry.
Progress to Date
The program has moved beyond theory. The operational test began in March 2024 in Mississippi and Kentucky and expanded by October 2025 to four states and six motor carriers. This growth signals progress toward real-world application.
The test is collecting key compliance data, including USDOT number, registration, operating authority, UCR compliance, out-of-service orders, driver licensing, and medical certification, with limited hours-of-service (HOS) data. These elements align with what enforcement uses in traditional inspections. However, not all components of a full Level VIII inspection—such as verified driver identity and complete HOS compliance—are fully implemented. Data authenticity validation is also not yet active and is planned for a later phase.
Equally important is the program’s governance approach. FMCSA and CVSA are using a phased, stakeholder-driven process to test and refine the system before it affects safety scores or enforcement decisions, consistent with CVSA’s emphasis on thorough, technology-neutral evaluation.
Why It Matters
Interest in Level VIII stems from a gap between the growing number of carriers and limited inspection capacity—roughly 3 million roadside inspections annually are insufficient for comprehensive oversight. Level VIII could significantly expand monitoring without increasing enforcement personnel.
For carriers, benefits include reduced delays and operating costs. Even simple bypass systems can save time and fuel, and Level VIII could extend these efficiencies. CVSA also highlights potential incentives such as CSA credit and access to real-time inspection data, positioning Level VIII as both an enforcement and compliance management tool.
Key Challenges
The program faces several major hurdles:
- Data completeness: The system is not yet capturing all required inspection elements, and some data—such as endorsements and Hours of Service—remains difficult to verify.
- Interoperability: Data must seamlessly flow between vehicles, third-party providers, state systems, and FMCSA platforms, which requires significant technical coordination.
- Privacy and security: Protecting sensitive and proprietary data is central to building industry trust, and current testing appropriately limits data use to secure, non-production environments.
- Policy design: Critical questions remain unresolved, including whether participation will be voluntary, how results will impact safety scores, inspection frequency, and dispute processes.
- Fairness: Uneven geographic deployment could lead to disproportionate inspection exposure for some carriers, though randomized and mobile inspection models may mitigate this issue.
The Road Ahead
Level VIII will likely evolve gradually through phased development, with expanded data validation, enforcement logic, and policy decisions following successful testing.
Success will depend on adherence to CVSA’s Guiding Principles: collaboration with industry, use of existing technologies, cost control, meaningful incentives, data protection, and a focus on safety outcomes. Traditional inspections will remain essential, with Level VIII serving as a complementary tool to better target enforcement resources.
Bottom Line
Level VIII is gaining momentum but remains in a proving stage. Its progress is evident in active testing and expanding participation, but significant challenges—technical, operational, and policy-related—must be resolved. If FMCSA and CVSA can balance innovation with trust, fairness, and practical value, Level VIII has the potential to modernize commercial vehicle safety oversight while delivering clear benefits to both enforcement and industry.
FMCSA’s overhaul of the DataQs system has generated considerable excitement across the trucking industry, with some portraying the changes as a long-overdue correction to a process carriers have criticized for years. But despite the headlines, motor carriers should be careful not to overstate what these reforms actually accomplish. The reality is that the revised DataQs framework is far more procedural than transformational.
In many ways, this is not the sweeping industry victory some hoped for.
The reforms do not create an independent appeals body outside of State motor carrier enforcement division. They do not fundamentally shift authority away from state enforcement agencies. And they do not suddenly make it substantially easier for carriers to overturn violations or crash determinations. At the end of the day, the same enforcement ecosystem that writes the violations still largely controls the process for reviewing and resolving challenges to those violations.
That point matters because many carriers’ frustrations with DataQs were never just about denied challenges. The deeper concern was that the process often felt circular. A carrier would challenge a violation only to have the review handled within the same agency structure responsible for issuing it in the first place. While FMCSA’s revisions introduce additional review layers, stricter procedural requirements, deadlines for review, state accountability, and transparency actions, they stop well short of creating true independence in the decision-making process.
What FMCSA has really done is attempt to standardize a system that historically varied widely from state to state.
Under the new requirements tied to MCSAP grant funding, states must now meet specific timelines, establish multi-level review procedures, document decisions, and manage backlogs more consistently. That should improve predictability and reduce some of the inconsistency carriers have long complained about.
But uniformity should not be confused with neutrality.
The revised framework still leaves final authority largely in the hands of state enforcement agencies. Even when reconsideration requests move to higher-level reviewers, the process remains internal to the same enforcement structure that produced the original violation. That reality can limit how dramatic the practical impact is likely to be for carriers.
Ironically, one of the most meaningful impacts of the reforms may fall on enforcement agencies themselves. Because FMCSA tied compliance to MCSAP funding eligibility and requires states to have their programs approved by FMCSA and their plans and adjudication results published on FMCSA’s website, states now have stronger incentives to ensure inspections, documentation, and review processes can withstand scrutiny. Agencies may become more disciplined in documenting violations and more methodical in explaining why challenges are denied.
That could still benefit carriers over time. Better documentation, clearer explanations, more transparency, and more structured reviews may reduce poorly supported enforcement actions at the margins. But this is probably best understood as an operational reform, not a philosophical one. The process may become cleaner, faster, and more standardized, but it is still largely the government reviewing the government’s own work.
At a roadside inspection, an MCSAP inspector (or any authorized safety official) can obtain an Electronic Logging Device (ELD) output file from the driver’s ELD if the driver is required to use one under the ELD rule.
- Driver must be ELD‑required
The ELD rule applies to most commercial motor vehicle drivers who must keep Records of Duty Status (RODS) under 49 CFR part 395.8(a). This includes most interstate drivers and certain intrastate drivers (with some short‑haul exceptions)
- ELD information packet must be onboard
Before an inspection, the driver’s ELD must have the FMCSA‑required ELD information packetin place. This includes:
- ELD user’s manual for the driver
- Instruction sheet for producing and transferring hours‑of‑service records
- Instruction sheet for ELD malfunction reporting and recordkeeping during malfunctions
- Blank RODS graph‑grids for at least 8 days
- Inspection process
- The inspector approaches the driver and requests the ELD output file.
- The driver must follow the ELD instruction sheet to produce the file.
- The file is typically generated via the ELD’s built‑in software or connected to a compatible computer.
- The inspector downloads or prints the file, ensuring it contains the required duty status records for the inspection period.
- Certification and authority
FMCSA requires MCSAP inspectors to be certifiedunder the Motor Carrier Safety Improvement Act (MSCIA) and the FAST Act, and to meet CVSA Operational Policy 4 standards for inspector training This certification ensures they are authorized to inspect, review, and obtain ELD data.
- Data use and privacy
The ELD output file is used to verify compliance with FMCSA hours‑of‑service regulations. FMCSA prohibits harassment of drivers based on ELD data, and inspectors must follow applicable privacy and data‑use rules
Summary:
At a roadside inspection, an MCSAP inspector obtains the ELD output file by ensuring the driver is ELD‑required, has the required information packet onboard, and follows the ELD instruction sheet to produce and transfer the file. The inspector must be certified to perform such inspections, and the file is used solely for compliance verification.
Brad Klepper
For truck drivers, there’s no such thing as a “minor” traffic ticket. Treating a ticket like a minor inconvenience is a gamble with your future.
In the trucking world, there is no such thing as a “minor” traffic ticket. As a CDL holder, you are held to a significantly higher legal standard than a non-commercial driver.
We live and breathe CDL law, so let’s take it back to basics. Whether you’re a rookie or have been on the road for decades, protecting your CDL requires careful attention. If you get a ticket — whether in your truck or your personal vehicle — it’s a big deal.
The Myth: “I’ll just pay the fine”
I wish every professional driver knew better, but many don’t. You must remember this: Paying a ticket is legally an admission of guilt. This is true even if you believe you were not actually at fault.
Because of this, the violation is considered a conviction, not just a fine. That conviction is then reported to your home state and added to your driving record. For CDL holders, this can have serious consequences, including impacts on employment, insurance and CDL status, depending on the type of violation.
You must defend every citation.
I cannot stress this enough: A citation is an allegation, not a conviction.
This means there is a specific window of time where you still have power over your career. As long as it’s just a citation (allegation), an attorney can fight to try to keep it off your record.
Why use an attorney? Because they are more qualified to navigate the legal system than you are. Additionally, you might be 500 miles away from home. An attorney can often handle the court appearance for you, ensuring you don’t risk your livelihood in an unfamiliar environment.
Going back to my opening point: There is no such thing as a minor ticket for a CDL holder. For example, a driver might get a citation for “Following Too Closely.” In some states, the fine could be considered relatively small. But the FMCSA classifies this as a Serious Traffic Violation. You don’t lose your license for the first one — but if you get a second “Serious” violation within three years, it triggers an automatic 60-day disqualification.
Furthermore, even if a violation doesn’t suspend your license, it will affect your insurance rates — as well as those of your company —and can potentially lead to your termination. When you apply to a new company, your record is your resume. You may be ineligible for the higher-paying job you want or be deemed “uninsurable” due to your history.
State laws differ
This is where it gets tricky. Some states, at the most basic level, are “moving vs. non-moving” violation states, while others use a point system. Each state has its own list of violations, and State A’s list may not directly match State B’s list.
If you’re a professional truck driver and you get a ticket in one state, it’s going to be reported back to your home state, where you hold your CDL. Because the lists don’t always match, your home state must “translate” that ticket into something that exists in its own system.
A low-point ticket in the state where you were driving could be “translated” into a high-point offense back home simply because the codes are different. You could pay a $150 fine for “Careless Driving” in New Jersey thinking you are safe, only to find out weeks later that your home state of Florida suspended your license because they coded it as “Reckless Driving.”
Who do I hire to handle my case?
The time to educate yourself on this is not when you’re holding a ticket on the side of the road. It is now. When looking for CDL ticket defense help, pay attention to these three things:
Since traffic laws and procedures vary by state, a defense that works in one jurisdiction may fail in another. A law firm that has experience in the courtroom where you received your ticket can help navigate these regional differences and increase the odds of a favorable outcome.
If you don’t have a fixed and predictable price (ideally a flat fee), you may be hit with billing surprises. Be careful with clauses that trigger additional fees if a case goes to trial, and have a clear understanding of how your attorney will charge you.
A law firm needs to know when to file a DataQ challenge, and it needs to have the ability to file one. DataQs is an FMCSA system which allows drivers and their representatives, motor carriers and the FMCSA and its state partners to improve the accuracy of FMCSA’s data-driven safety system. Users can request and track a review of federal and state data issued by FMCSA that is believed to be incomplete or incorrect.
The bottom line
Your CDL is the most valuable asset you own. It’s the house you live in and the food on your family’s table. Treating a ticket like a minor inconvenience is a gamble with your future.
