Posted on August 31, 2026

This article was originally published in the October 2026 issue of The Transportation Lawyer (Vol. 28, No. 2), the journal of the Transportation Lawyers Association and the Canadian Transport Lawyers’ Association. It reflects developments through August 12, 2026.

By Edgar Davison

Every fight over broker transparency starts with a simple question: How much did the broker make on the load? The carrier wants to know what the shipper paid. The broker usually does not want to share its customer pricing or its margin. In the middle is a federal regulation, 49 C.F.R. § 371.3. The rule requires freight brokers to keep records about each transaction. It also gives each party to the transaction the right to review those records.

What began with a $1,500 load of ice cream eventually became a federal appellate case. Pink Cheetah Express, LLC v. Total Quality Logistics, LLC now raises much bigger questions. Can a carrier give up its rights under § 371.3 by contract? Can a carrier sue a broker for violating those rights? And can an email from an FMCSA employee count as an official order of the Secretary of Transportation? [1]

The last question sounds like something from a law-school exam. But Pink Cheetah matters to the transportation industry for a practical reason. The court may decide the case without answering the question that started the fight: whether a carrier can waive its right to review broker records. The court may instead decide only whether one FMCSA email was an enforceable order.

Load/Waiver/Email

Pink Cheetah hauled a load of ice cream for Total Quality Logistics (“TQL”) in January 2023. Pink Cheetah later asked TQL for the records required by § 371.3. The regulation says what those records must contain. Among other things, a broker must keep information about the parties, the freight bill or bill of lading, the amount the broker received, the date the carrier was paid, and the amount paid to the carrier. The broker must keep the record for three years. Each party to the transaction has a right to review it. [2]

TQL refused Pink Cheetah’s request. Its broker-carrier agreement said TQL did not have to disclose its customer charges, commissions, or brokerage revenue. The agreement also said the carrier gave up its right to review records under § 371.3.

Pink Cheetah then complained to the Department of Transportation. FMCSA became involved and obtained the records for the original load. According to Pink Cheetah’s pleadings, the records showed that the carrier received 56 percent of what the shipper paid. That number sounds dramatic, but it does not tell us much by itself. The difference between what a shipper pays and what a carrier receives is not the broker’s profit. A broker also has overhead, sales costs, credit risk, claims exposure, bad debt, and other expenses. And whether the waiver is legal does not depend on whether the broker made a large or small margin.

Then came the email that changed the case. On November 30, 2023, an FMCSA transportation specialist emailed TQL. The message went to TQL, not Pink Cheetah; Pink Cheetah later obtained a copy from FMCSA through a FOIA request. That is an unusual path for the complaining party to learn of what it later argued was the agency’s final disposition of its complaint. The email told TQL to remove the § 371.3 waiver from its broker-carrier agreements, ensure compliance with the regulation, and provide records when carriers requested them. Remove, ensure, provide—those are command verbs. But the email also called itself “guidance” and said only that the waiver “may” violate federal law. That tension became the center of the case.

Pink Cheetah later sued TQL under 49 U.S.C. § 14704(a)(1). That statute permits a private civil action when a carrier or broker fails to obey an order of the Secretary of Transportation or the Surface Transportation Board. Pink Cheetah’s theory was simple. FMCSA investigated the matter. It told TQL what to do. TQL did not do it. If the email was an official order, TQL had failed to obey one.

The district court rejected that argument and dismissed the case under Rule 12(b)(6). Judge Sparkle L. Sooknanan found that the FMCSA email was guidance, not an official order. The email used qualified language, called itself guidance, and mostly reminded TQL about duties that already existed under federal law. Pink Cheetah appealed. The D.C. Circuit is scheduled to hear oral argument on September 11, 2026. [3]

What the Appeal May Actually Decide

Pink Cheetah argues that the district court read “order” too narrowly. The Administrative Procedure Act defines an order as a final disposition of an agency in a matter other than rulemaking. Pink Cheetah also relies on the familiar finality test from Bennett v. Spear. Its argument is that FMCSA finished its investigation and then told TQL to remove the waiver, comply with § 371.3, and provide the records. In Pink Cheetah’s view, calling the email “guidance” should not control if the substance of the communication was final and directive. [4]

TQL sees it differently. It argues that the email was not a formal agency decision. There were no formal findings or adjudication. There was no penalty. And the email did not create any new legal duty. TQL also makes another argument. Section 14704(a)(1) refers to an order of the Secretary or the Board, while this email came from an FMCSA transportation specialist. Agencies act through employees, of course, but that still raises a delegation question: Did this employee have authority to issue an order that a private party could later enforce in federal court?

The D.C. Circuit could answer the broad question of when an informal agency message becomes an enforceable order. But it does not have to. The court could decide that this particular email was not final enough. It could decide that the employee lacked the necessary authority. Or it could rely on the wording of the email itself. Any of those rulings could end the case without deciding the issue that started the dispute. That issue is the waiver.

The Waiver Is the Fight the Industry Cares About

The carrier’s argument is straightforward. Section 371.3 gives each party to a brokered transaction the right to review the broker’s record. If a broker can eliminate that right through standard contract language before a load is ever booked, what practical force does the regulation have?

Brokers have an answer. The records can reveal what their customers pay. That pricing is commercially sensitive. Brokers also object to treating the spread between the shipper’s rate and the carrier’s rate as profit; the spread is not net income. FMCSA’s own rulemaking record recognizes this concern. The Transportation Intermediaries Association has argued that mandatory disclosure could expose proprietary pricing and that § 371.3 comes from a very different era of freight brokerage. [5]

“Transparency” sounds simple. The harder questions are underneath it. What information should a carrier be allowed to see? When should the carrier be allowed to see it? Who else should have access to it? And should the parties be allowed to agree by contract that the carrier will not review the records? There is also an important distinction that sometimes gets lost in this debate. Giving a carrier access to the broker’s record for that carrier’s load is not the same as making the broker’s pricing public. The current regulation does the first. It does not do the second.

Pink Cheetah may not answer whether these waivers are legal. The district court did not hold that TQL’s waiver was valid. It did not decide that brokers may contract around § 371.3. Judge Sooknanan expressed concern about regulated companies using contracts to avoid regulatory duties. Instead, the case turned on how Pink Cheetah tried to enforce the law. Pink Cheetah sued on the theory that the FMCSA email was an official order. The court held that it was not.

That procedural issue matters. Federal transportation law contains many rules, but the way those rules can be enforced is not always clear. A regulation, a formal agency order, an employee’s email, an administrative complaint, and a lawsuit for damages may all involve the same conduct, but they are not interchangeable. Section 14704 itself shows the problem. Subsection (a)(2) separately permits a damages action for a broker’s violation of “this part,” and whether that language reaches a regulation such as § 371.3 is its own contested question. Pink Cheetah did not take that route, so the district court did not have to answer it. A client can have a strong argument about what the law requires and still lose because the claim was brought through the wrong door.

Now the Broker’s License Is Part of the Fight

On August 7, 2026, the dispute took another turn. The Small Business in Transportation Coalition (“SBTC”) asked FMCSA to suspend or revoke TQL’s broker authority. SBTC pointed to a 2022 licensing application obtained through a Freedom of Information Act request. In that application, TQL certified that it was willing and able to comply with federal regulations. SBTC argues that TQL’s continued use of § 371.3 waivers conflicts with that certification. There is an important qualification. This is SBTC’s argument, not a finding by FMCSA. As of August 12, 2026, FMCSA’s public SAFER records continued to show TQL’s property-broker authority as authorized. [6]

Still, the request raises another legal issue. A broker’s federal registration is not just paperwork. Under 49 U.S.C. § 13904, a property broker must be fit, willing, and able to comply with federal transportation laws and regulations. Section 13905 allows the government, under certain conditions and after notice and an opportunity for a proceeding, to suspend, amend, or revoke that registration for willful noncompliance. [7]

But the statute includes procedures FMCSA must follow. For some violations, § 13905(e) generally requires the Secretary to issue a compliance order under § 14701 first. The broker must then willfully fail to obey that order for 30 days before its registration can be revoked. That brings us right back to Pink Cheetah: What counts as an order of the Secretary? [8]

The SBTC also points to TQL’s 2022 application. That involves a different part of the statute. Section 13905(d)(2)(C) allows FMCSA to take action when a broker failed to disclose a material fact in its application about its willingness or ability to follow federal law. But there is a difference between later violating a regulation and making a false statement when an application was filed. A later violation does not automatically prove that an earlier certification was false when it was made. If FMCSA takes further action on the SBTC request, that distinction could become important. Either way, the licensing dispute shows that the questions in Pink Cheetah reach beyond one private lawsuit.

FMCSA May Answer the Bigger Question

While Pink Cheetah moves through the courts, FMCSA is also reconsidering § 371.3 itself. In November 2024, FMCSA proposed changes to the broker-record rule. The proposal would modernize the required records and make clear that brokers have a duty to provide transaction records when a party to the transaction asks for them. The groups that asked for the rulemaking wanted FMCSA to go further. They asked the agency to prohibit brokers from requiring carriers to waive their rights to see the records. FMCSA did not simply adopt that request. But the agency put the waiver issue directly into the regulatory debate. [9]

FMCSA later reopened the comment period and placed a supplemental proposed rule on its regulatory agenda. As of August 12, 2026, the government’s Unified Agenda still showed the matter in the proposed-rule stage. It listed July 2026 as the target date for a supplemental notice of proposed rulemaking, but that date passed without a supplemental proposal appearing on the timetable. [10]

In the long run, FMCSA’s rulemaking may matter more to the industry than the Pink Cheetah appeal. The D.C. Circuit is deciding a narrower legal question: Was this particular email an enforceable order? FMCSA can address the bigger questions directly. What records must brokers provide? When must they provide them? And can a carrier waive its right to see them?

The court case and the rulemaking therefore deal with different parts of the same problem. The appeal is mainly about how federal transportation rules can be enforced. The rulemaking is about what those rules will require in the future. Lawyers drafting broker-carrier agreements should watch both, especially when an agreement includes a § 371.3 waiver along with a forum-selection clause or other terms controlling where and how disputes must be brought.

Take away the legal procedure, and the questions are simple. After a carrier delivers a load, can it see the broker’s record of the transaction even if its contract says it cannot? If the broker refuses, what can the carrier do about it? Can FMCSA force compliance through an informal email, or does it need to issue a formal order? And if the dispute threatens the broker’s operating authority, what counts as an order may become the most important question of all.

The D.C. Circuit may answer one of those questions in Pink Cheetah. FMCSA may eventually answer the others through rulemaking or enforcement. That is a surprising amount of law to come out of one $1,500 load of ice cream.

Endnotes

1. Pink Cheetah Express, LLC v. Total Quality Logistics, LLC, No. 1:25-cv-00552-SLS (D.D.C.), appeal No. 25-7141 (D.C. Cir.); Matthew Leffler, “TQL faces federal lawsuit over broker transparency dispute,” FreightWaves (Mar. 6, 2025) (reporting that the rate confirmation paid Pink Cheetah $1,500, including a $300 layover fee).

2. 49 C.F.R. § 371.3 (records to be kept by brokers; three-year retention; right of each party to review the record).

3. Pink Cheetah Express, LLC v. Total Quality Logistics, LLC, 2025 WL 2634465 (D.D.C. Sept. 12, 2025); Pink Cheetah Express, LLC v. Total Quality Logistics, LLC, No. 25-7141 (D.C. Cir.) (appeal docket); Alex Lockie, “FMCSA pushed TQL to drop broker transparency contract waivers,” Overdrive (Feb. 19, 2025) (reporting FMCSA’s confirmation that the November 2023 correspondence was produced to Pink Cheetah in response to a FOIA request).

4. 5 U.S.C. § 551(6); Bennett v. Spear, 520 U.S. 154 (1997).

5. Transparency in Property Broker Transactions, 89 Fed. Reg. 91,648, 91,653 (Nov. 20, 2024) (discussing TIA’s petition and concerns regarding proprietary pricing).

6. James Lamb, Small Business in Transportation Coalition, Second Request for Suspension/Revocation of TQL’s Broker License (Aug. 7, 2026) (request to FMCSA Administrator Derek Barrs, based in part on TQL’s 2022 OP-1 application obtained through FOIA); FMCSA, Company Snapshot, Total Quality Logistics LLC, USDOT No. 2223295 (showing property-broker authority authorized, accessed Aug. 12, 2026).

7. 49 U.S.C. §§ 13904(a)(2), 13905(d)(2)(A), (C) (broker registration requirements; suspension, amendment, or revocation for willful noncompliance after notice and an opportunity for a proceeding; and separate application-disclosure authority).

8. 49 U.S.C. § 13905(e); see also 49 U.S.C. § 14701. Section 13905(e) generally requires a § 14701 compliance order and 30 days of willful noncompliance before revocation, except as otherwise provided in the statute.

9. Transparency in Property Broker Transactions, 89 Fed. Reg. 91,648 (Nov. 20, 2024); Docket No. FMCSA-2023-0257, RIN 2126-AC63.

10. Office of Information and Regulatory Affairs, Unified Agenda, RIN 2126-AC63, Transparency in Property Broker Transactions (2026 publication; current as of Aug. 12, 2026), listing the action at the proposed-rule stage and a July 2026 supplemental NPRM target.

About the Author

Edgar Davison is a Memphis-based attorney whose practice focuses on transportation law, commercial litigation, and creditors’ rights. He represents transportation and logistics companies, freight brokers, carriers, shippers, and other businesses in commercial disputes, contract matters, and litigation nationwide. He is licensed to practice law in Tennessee, Arkansas, and Mississippi and regularly handles matters involving freight charges, transportation contracts, broker-carrier relationships, and the collection and resolution of commercial claims. The views expressed in this article are his own.

Have a question about a broker-carrier agreement or a freight dispute? Call Davison Law Firm at (901) 230-7749.

This article is for general information only and is not legal advice.