Jennifer D. Bennett

Two records reach Washington

Jennifer D. Bennett stood for respondents in two Supreme Court arguments during the 2025 Term. The first came from a decade-old forced-labor class action at a private immigration detention facility in Colorado; the second from a delivery driver’s wage suit against a national bakery. On February 25, 2026, all nine justices voted to affirm in The GEO Group, Inc. v. Menocal. On May 28, a unanimous Court affirmed again in Flowers Foods, Inc. v. Brock. Both judgments returned the underlying labor claims to the lower courts.

Bennett is a principal at Gupta Wessler and heads its San Francisco office. Her current biography places workers’ rights alongside consumer protection, civil rights, constitutional law, and government transparency. In 2023 testimony before a Senate Judiciary subcommittee, she described her practice as state and federal appellate work for workers, consumers, and civil-rights plaintiffs. The two 2026 dockets identify her as the respondents’ Supreme Court advocate and show which issues remained for the lower courts.

Menocal began in 2014 after Alejandro Menocal’s detention at the Aurora Immigration Processing Center, which GEO operates under contract with Immigration and Customs Enforcement. The plaintiffs challenged two labor practices. They alleged that detainees had to clean common areas without pay under threat of sanctions that could include solitary confinement for as long as seventy-two hours. A separate voluntary work program paid one dollar a day for work that included food service and laundry. The claims invoked the federal Trafficking Victims Protection Act and Colorado unjust-enrichment law.

Brock arose from a different workplace and a shorter route. Angelo Brock’s company held distribution rights for Flowers products around Denver. He picked up baked goods at a Colorado warehouse and delivered them to local stores without crossing a state line, although most of the goods were made out of state for the distributors’ orders. In 2022, he filed a putative class and collective action alleging that Flowers had misclassified distributors and underpaid them under federal and Colorado labor law. Flowers invoked an arbitration agreement in response.

The cases already had extensive lower-court records when Bennett entered at the Supreme Court. Menocal had produced class-certification litigation, discovery, summary-judgment rulings, and two trips to the Tenth Circuit. In Brock, Shaun Markley argued for the driver in the Tenth Circuit; the Supreme Court brief listed Bennett as counsel of record with colleagues from Gupta Wessler and Nicholas & Tomasevic. The Menocal brief likewise identified lawyers from Gupta Wessler, Towards Justice, Meyer Law Office, Milstein Turner, and Outten & Golden. Bennett led the respondents’ Supreme Court presentations.

In Bissonnette v. LePage Bakeries, Bennett first appeared at the certiorari stage. A May 2023 extension request stated that she had not previously participated in the litigation; she later argued the case. The Court held in 2024 that transportation workers need not be employed in the transportation industry, then remanded without deciding whether those particular drivers qualified. Brock presented the next disputed line in that statutory sequence.

Menocal and the ordinary timing of appeal

After discovery in Menocal, the district court examined GEO’s contracts with ICE. It concluded that ICE had not directed GEO to require common-area cleaning or to limit voluntary-program pay to one dollar a day. The court therefore rejected GEO’s request for summary judgment under Yearsley v. W. A. Ross Construction Co., the doctrine that protects a federal contractor from liability when the government lawfully authorized and directed the challenged conduct. A trial would be necessary, the court said. GEO appealed before trial, and the Tenth Circuit dismissed for lack of appellate jurisdiction.

GEO argued that waiting until final judgment would deprive federal contractors of the protection it claimed Yearsley supplied. It characterized Yearsley as derivative sovereign immunity and contended that contractors carrying out federal functions should receive the same protection from trial as officials who can immediately appeal denials of immunity. Justice Samuel Alito later questioned the majority’s sharp division between immunity and merits defenses, although he agreed that GEO’s appeal could not proceed.

In their brief, the respondents argued that Yearsley protected a contractor from liability for work performed within lawful federal authorization but did not create a freestanding right to avoid litigation. Under the final-judgment rule, an erroneous liability ruling could be corrected after judgment, with the defense still available on appeal. The United States joined the respondents as an amicus and shared argument time, while Bennett argued for Menocal and the certified classes.

The justices pressed Bennett on why a private contractor performing a government function should wait when officials often need not, and on whether old cases used the language of immunity loosely. Her answers returned to the legal interest Yearsley protects: nonliability for acts the government validly directed, an interest that can still be honored on appeal from a final judgment. The question for this case was whether trial could happen before another appellate court reviewed the defense.

Justice Elena Kagan’s opinion adopted that account. Yearsley provides a potential merits defense, the Court held, rather than immunity from suit. A denial therefore is not immediately appealable under the collateral-order doctrine because appellate review after final judgment can still vindicate the right to a finding of nonliability. Kagan’s opinion had seven votes in full; Justice Clarence Thomas joined its first and third parts and wrote separately, and Justice Alito concurred in the judgment. Every justice agreed to affirm and remand.

GEO retained its merits defenses after remand. The Supreme Court did not decide whether the sanitation policy amounted to forced labor, whether the one-dollar program unjustly enriched the company, what damages or class relief might be available, or whether GEO can ultimately establish a Yearsley defense. The opinion expressly recognized that the company may seek review if it is held liable after final judgment. The ruling required the case to proceed before any appeal from a final judgment.

On March 30, 2026, the Court issued judgment. A Public Citizen report published in May, citing the district-court docket, listed a June 3 pretrial conference and an October 27 final trial-preparation conference. As of July 28, 2026, the district court had entered no final merits judgment. The interlocutory appeal had ended; the forced-labor and unjust-enrichment litigation continued below.

Brock’s intrastate route

Before the Tenth Circuit, the arbitration dispute came before the wage claims. The district court had denied Flowers’s motion to compel arbitration, and the court of appeals affirmed on the ground that Brock’s class of drivers was engaged in interstate commerce. It also declined to reach, or found no jurisdiction over, other issues involving the agreement. Markley argued for Brock there. At the Supreme Court, Bennett became counsel of record, worked with five Gupta Wessler colleagues and the Nicholas & Tomasevic team named on the brief, and presented the oral argument.

Flowers asked for a clear limit on the Federal Arbitration Act’s Section 1 exemption. In its view, a worker who neither crossed a state line nor handled a vehicle that did was not engaged in interstate commerce, even when the goods had traveled from another state. The company also pointed to features of Brock’s arrangement that could narrow the exemption: Flowers dealt with a separately operated company he owned, and title to the products passed before he resold them to local stores. Those facts, Flowers argued, separated his work from interstate transportation.

Brock’s brief treated the route as one segment of a continuous shipment. The statutory phrase was “engaged in interstate commerce.” Bennett’s team drew on its ordinary meaning when Congress enacted the FAA in 1925 and on decisions involving intrastate portions of longer journeys. Under that account, the driver completing delivery to the intended retailer could participate directly in interstate transportation even when another driver had handled the border crossing.

At argument, the Court tested both the proposed class and the case’s concessions. Asked how to describe the workers, Bennett offered drivers who perform the final leg of an interstate journey, then accepted the more general formulation of drivers handling an intrastate leg of such a journey. She also acknowledged that several matters had been conceded for the question presented. The Court later rejected Flowers’s categorical rule without defining every worker or business arrangement that falls within Section 1.

Justice Neil Gorsuch tested Flowers’s rule with a truckload of Butterscotch Krimpets. In the hypothetical, one driver brought the goods to a state border, a second carried them ten feet across it, and a third completed the delivery inside the destination state. Flowers’s rule would recognize only the middle driver. The Court reasoned that all three took a direct, active, and necessary part in the interstate shipment.

For historical support, the Court turned to The Daniel Ball, an 1871 decision involving a steamer that operated entirely within Michigan while carrying goods moving to or from other states. Separate carriers did not change the interstate character of the transportation. Drawing on that history and the FAA’s text, the Court held that a worker on an intrastate leg of an interstate journey can qualify for Section 1 without crossing a state line or touching a vehicle that does. The opinion for all nine justices affirmed the Tenth Circuit.

Gorsuch’s last pages preserved the questions Flowers had only mentioned. Lower courts have divided over agreements made between business entities, and they have treated ownership, passage of title, and the goods’ intended destination as potentially relevant. The Court did not decide the legal significance of those features because Flowers had staked the case on its border-or-vehicle rule. It also decided nothing about misclassification, underpayment, class certification, or damages. The judgment issued on June 29, returning Brock’s underlying allegations to a record in which liability had never been adjudicated.

The questions sent back

In Menocal, the Court held that denial of the Yearsley defense could be reviewed after final judgment. In Brock, it held that Section 1 can include a driver who completes an intrastate segment of an interstate shipment. Both rulings returned the underlying labor claims to the lower courts.

Bennett entered Bissonnette at the certiorari stage and handled Brock in the Supreme Court. Shaun Markley argued Brock in the Tenth Circuit, while the Menocal and Brock briefs identify the colleagues and organizations appearing with her. Bennett framed and argued the questions presented on records those teams had developed.

As of July 2026, the Menocal classes still had to prove their claims, and GEO retained its defenses. Brock still had to establish the wage-law allegations and whatever collective treatment the trial court permits, while Flowers could litigate issues the Supreme Court left untouched.