Amicus Brief: Maplebear Inc. d/b/a Instacart v. City of New York

Maplebear runs Instacart, the grocery-delivery company. The service is built on flexibility. Shoppers decide when to log on and for how long, which orders to accept, and how to organize their work. Shoppers are paid market rates for each order, and they can choose to deliver as many or as few as they like. But New York City passed a series of laws that regulate the compensation, tipping, payment timing, disclosures, and recordkeeping for the thousands of Instacart shoppers in the city. 

The NYC laws require shoppers to be paid an hourly wage for the entire time they are logged into the app, including time when they are not even browsing for available orders, let alone completing deliveries. To avoid runaway costs, Instacart must abandon its open-marketplace model and restrict when shoppers can work and how many orders they must accept. As a result, there will be less flexibility for shoppers, higher prices, slower service for consumers, and less business for local merchants.

Instacart sued, arguing that the laws are preempted by both New York state law and the Federal Aviation Administration Authorization Act (FAAAA), an overtly deregulatory law that was passed to prevent a patchwork of local regulations from overriding competitive market forces in the ground-transportation sector. The Manhattan Institute has filed a brief in the Second Circuit in support. We argue that the FAAAA clearly preempts laws that regulate the "price, route, and service" of "motor carriers," and that absolutely includes Instacart shoppers. The Second Circuit should strike down NYC's laws and restore open competition to an emerging and important business model.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

Jarrett Dieterle is a legal policy fellow at Manhattan Institute.