I just read the Amazon complaint against OAG, and have some hot takes about what’s going on here. They are based on my previous experience defending OAG investigations from similar litigation and my current scholarship about what I call labor localism.

Big caveat though, I have no relationship to this case or anyone in it. So I’m indulging in some speculation. There’s likely more going on that will emerge over time.

The gist of the complaint is that the safety and whistleblower allegations referenced in correspondence by OAG cannot be investigated by OAG because they are preempted by OSHA and NLRA. This preemption defense is theoretically plausible.

But there are two big problems in asserting this defense in federal court right now. The first is ripeness. The purported OAG claims cited by Amazon come from correspondence. There’s no litigation to preempt and the complaint doesn’t even refer to a subpoena.

The correspondence probably asserted theoretical grounds of liability in an effort to informally resolve the issues. I’m not sure how a federal court can find this justiciable until there’s been a formal administrative decision.

Second is federal jurisdiction. Preemption is generally a defense, not a claim. If OAG responds by suing in state court with state workers compensation and labor law claims, Amazon’s claim would likely be remanded to state court. Younger abstention should control.

So, if the federal litigation is likely to be dismissed, what is Amazon’s strategy? Why not refuse to comply with informal requests and then seek to quash any subpoena that OAG issues in the future on the same preemption grounds?

To affirm what others have said, this is a hyper-aggressive move. It is very rare it is for a company to seek preemption of agency action based on an informal request for information or for resolution. It could have waited for OAG to sue, or at least to issue subpoenas.

My best guess is that Amazon was hoping that by hiring Gibson Dunn (and a former Cuomo AG executive) it was hoping OAG would back off. But it has apparently concluded that this is unlikely, at least in the timeline it was hoping for.

But, given the litigation risk, why a federal complaint? My best guess is that Amazon thinks that Amazon workers in Staten Island are going to seek to unionize, and wants OAG, which has expressed support for the workers, out of the picture before an election.

If OAG is investigating state law issues, that will provide those workers with additional, state anti-retaliation protections. NLRA remedies are notoriously weak and slow. OAG’s enforcement powers are broad, and OAG can more easily seek injunctive relief.

While getting OAG entirely out of the picture seems unlikely, this suit seems calculated to force OAG’s hand, in ways that can tie it up in litigation for years. That may make it harder for OAG to continue to play its current role.

I’ll conclude with a big-picture point: Amazon’s suit, similar to the platform company response to AB 5 with Proposition 22 in CA, seems aimed at disabling state agencies and legislatures so they cannot support worker-led mobilization to lift work standards.

This is a new kind of labor law, carried out through state voter initiatives and preemption litigation, to defeat unions by disabling state actors.

Observers should understand the important state interests advanced by state agencies like OAG (and the CA legislature) in protecting vulnerable workers from heavy-handed tactics like this.