At the spring Board meeting, OOIDA's President and CEO Jim Johnston reported on OOIDA's legal actions - including current cases, longstanding cases still seeing action, and new ones in the planning stages.
Supervalu: This case is an oldie but not a coldie. As the June issue of Land Line went to press, OOIDA and its attorneys from The Cullen Law Firm were preparing for trial in the case of OOIDA v. Supervalu Inc. By the time you read this, the trial will be over.
Background: The case of OOIDA, Joe Rajkovacz and Carl Shaefer Jr v. Supervalu Inc. was filed Dec. 6, 2005, in the U.S. District Court for the District of Minnesota.
Supervalu has imposed upon owners and operators, as a condition to their unloading their own trailers, requirements that they present certificates for insurance over and above what they are otherwise required by statute or regulation to have. If drivers don’t have the required insurance, they are referred by Supervalu to a lumping service, which charges the drivers high fees for unloading Supervalu’s cargo. OOIDA’s complaint alleged that Supervalu’s insurance requirement both coerced and forced drivers to pay for loading/unloading.
By imposing insurance requirements most, if not all, drivers can’t meet, Supervalu coerces drivers into using lumpers in violation of the unloading statute, 49 U.S.C. § 14103(b). This statute is violated regardless of whether or not the coercion is successful.
Supervalu’s failure to pay for the lumpers it requires drivers to use, by virtue of its unreasonable insurance requirements, is a violation of § 14103(a).
In 2007, the court dismissed the claim for an award of money. However, the court granted class treatment status for the claim seeking to enjoin Supervalu’s conduct.
The court issued an order requiring the plaintiffs to be “trial ready,” and Johnston told the Board our trial start date was set for May 18.
Joe Rajkovacz, a plaintiff in the lawsuit, said the Association is striving for an injunction from Supervalu in the use of insurance requirements as a precondition to loading/unloading yourself. OOIDA contends the requirements, which are grossly inflated and commercially unattainable, constitute a form of coercion. This violates the federal regulation that prohibits such behavior. A victory in this case would be precedent-setting for the rest of an industry that victimizes truckers by forcing them to pay to be loaded or unloaded.
Watch OOIDA Web sites for the update.
JOHNSTON ALSO REPORTED ON THESE CASES:
One of the current cases – and one that seems to be forever court-bound – is the latest HOS litigation. Johnston reported that on March 9, 2009, OOIDA filed a petition in the U.S. Court of Appeals for the District of Columbia Circuit in the case of Public Citizen v. FMCSA. This case involves hours of service. OOIDA moved to intervene on April 7, 2009.
Although no legal arguments have yet been filed with the court, it is fairly well known that Public Citizen, Advocates for Highway Safety and the Teamsters generally wish to challenge the 36-hour restart and the 11-hours of driving in the rule. As with these parties’ first legal challenge to the hours-of-service rules, they may raise other issues that affect OOIDA members.
Johnston said that OOIDA’s intervention puts it in a position to help FMCSA defend the 36-hour restart and the 11 hours of driving, and to respond to any other issues that affect its members. Other parties who have moved to intervene include the ATA, William B. Trescott, NASSTRAC, Health & Personal Care Logistics Conference, Inc., and the National Industrial Transportation League.
Mexican truck pilot program update. Another case that has been part of an all-out move to keep U.S. roads safe is the case of OOIDA v. Mary Peters, a legal challenge to FMCSA’s Mexican truck program. Johnston reported that the U.S. Court of Appeals for the 9th Circuit dismissed the Association’s lawsuit against the U.S. DOT. Johnston said the court ruled it moot because Congress recently ended the program. OOIDA wanted the court to rule on this anyway – should it erupt in the future. OOIDA VP Todd Spencer pointed out that while the court ruling was a disappointment, Congress is on the same side as OOIDA and apparently will remain so.
As Land Line went to press, OOIDA was preparing to file legal action regarding a controversial “fatigue checklist” used by the Minnesota State Police. For details on this outrage, see Senior Editor Jami Jones’ report on Page 24. LL