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9/5/2006
SPECIAL REPORT: Jury rules in favor of DAC Services

Sept. 5, 2006 - DENVER - After about four hours of deliberation, a federal jury ruled against truckers who sued DAC Services Inc. for allegedly willfully breaking federal law by failing to take measures to ensure its work history reports are accurate.

U.S. District Court Judge Robert E. Blackburn received and read the verdict at about 3:45 p.m. Tuesday. The jury had begun deliberations about 11:40 a.m.

The ruling came after eight days of testimony and evidence that began Aug. 21.

Attorneys for the truckers did not wish to comment Tuesday afternoon, except to say that they would begin reviewing the case almost immediately.

Filed in 2004 by seven truckers and the Owner-Operator Independent Drivers Association, the case was originally intended to be a class action against USIS Commercial Services, which does business as DAC.

Earlier this year Blackburn denied the truckers' request for class-action status, but he allowed the case to proceed with the individual drivers. In the course of preparations and the first week of trial, Blackburn removed three of the truckers, leaving Jeff Mathews, William Meck, Shane Paul and Richard Lee Sisemore as the only plaintiffs.

Before the case was given to the jury, attorneys for both sides gave closing statements.

Closing statements
With arguments that included references to ammo, pot shots and elephants, the federal courtroom in Denver took on the feel of the African veldt Tuesday morning when the attorneys for the truckers and DAC Services summed up their cases for the jury.

Blackburn limited the closing statements to 45 minutes for each side. Randall S. Herrick-Stare, lead attorney for the truckers, used 30 minutes and reserved 15 for rebuttal of DAC's closing argument.

Before allowing the attorneys to begin, the judge reminded the jury that the closing statements were not to be considered as evidence in the trial, only as the attorneys' persuasive opinions of their clients' claims.

Here are a few choice comments from the closings and rebuttal.

From the truckers' side
Herrick-Stare repeated some phrases he had used three weeks ago when the trial began with his opening statement to the jury. He called DAC a "peddler of private information" and a "middleman" in the business of misinformation.

But Tuesday Herrick-Stare went even further. He told the jury that DAC is:

  • a merchant of mendacity;
  • a seller of subtly insulting insinuations;
  • an enabler of evil; and
  • "the cop who stands by while local thugs beat up civil rights demonstrators."

And though the case is technically about four truckers, Herrick-Stare told the jury that each of the 3.5 million or more truckers in DAC's database - along with every consumer in the country - could be affected by the outcome of the case.

"... these truck drivers do not advocate only on their own behalf," he said. "They advocate on behalf of both all other consumers and all businesses that rely upon meaningful, concrete, precise and complete information.

"They advocate on behalf of all those ill-served by DAC-like businesses that profit well from the sale of consumers' reputations."

Herrick-Stare also provided motive for the jury, even though this case against DAC is not technically a "criminal" matter. First he explained a bit of background on the Fair Credit Reporting Act to put DAC's business in context for the eight-member panel.

He talked about how the federal law came from the high value that Americans - and Congress - put on accuracy when it comes to personal data compared to the relatively low priority that big business data merchants, such as DAC, have for that same accuracy.

Then he got to DAC's bottom line.

"When they cannot charge more for the more accurate report, the data merchants care not about what level of accuracy they achieve," Herrick-Stare said.

In case the profiteering angle didn't hit home with the jury, the truckers' attorney offered an additional perspective.

"A wise man said that world peace starts with good manners. The plaintiffs here submit that a truly useful, efficient and fair commerce in consumer transactions (i.e. DAC reports) starts with respect for consumers," he said.

Repeatedly hitting the point that DAC willfully did nothing to ensure "maximum accuracy" in its reports - which is specifically required by federal law - Herrick-Stare reminded the jury that testimony had shown that DAC actually set the system up to intentionally serve its motor carrier members and designed forms and a glossary of terms that made it impossible for accurate reports to be created.

"... a role more insidious than that of mere middleman emerges," he said. "DAC did not simply pass on what previous employers submitted to it. It determined they would submit inaccurate statements."

Herrick-Stare attacked DAC's case with a series of pointed examples. One series was reminiscent of a fast food advertising campaign, but instead of asking "Where's the beef?" the question he asked the jury was "Where is the rebuttal?"

The truckers' attorney was referring to DAC's failure to address testimony from expert witnesses who said that DAC reports were ambiguous, without meaning and inaccurate by their nature.

"Where's the rebuttal for Mr. Pearch? ... Where's the rebuttal to Dr. Dulebohn? ... Where's the rebuttal to Dr. Beamer?" Herrick-Stare asked the jury rhetorically.

Then he answered.

There is no quality control program to rebut Pearch, he reminded the jury.

And as for the DAC experts who tried to challenge the truckers' experts?

One was "a man who does not distinguish between good and bad employee selection procedures" and who says there are no standards in the field of human resources.

The other was a man who said that "false statements can be information" and "imprecise statement can be accurate."

Referring to those two statements, the truckers' attorney said "they are probably the best five- and six-word summaries of all that is wrong with the DAC system and DAC's attitude about its own duties to serve consumers."

Later, Herrick-Stare boiled it down further: "If one wanted to create a system for blackballing consumers, it is difficult to imagine a more effective one than DAC designed...

"DAC has essentially designed the gun and the ammo, put the cartridges into the chamber, and then paid motor carriers to take pot shots at drivers' reputations."

The truckers' attorney then told the jury that between the four trucker plaintiffs, there were 13 specific DAC reports in question and that the truckers wanted the full fine of $1,000 per violation for those 13 reports. If the jury finds DAC guilty, it could impose fines as low as $100 per violation.

But beyond the fines allowed by law, the jury could have imposed punitive damages - described by the judge in his instructions as a punishment tool with no dollar limit.

The truckers' attorney asked the jury to impose that punishment in a meaningful way.

"The jury is akin to a parent disciplining a misbehaving child ... A parent does not dock by 10 cents an allowance of $10 dollars ...

"While no one deserves to be DAC'd - not even DAC - it is time for DAC to receive the severe discipline only a jury can afford. It deserves a message as meaningful as can be accomplished through a verdict form.

"It is time to tell DAC and all peddlers of private information that they must honor that most American of values: straight talk," Herrick-Stare said.

DAC's defense
Lawyer Larry Henry opened his closing argument much the same way he began his initial statement to the jury last week, talking about his ability in the courtroom.

Tuesday he began by telling the jury that even though the entire case has been about the accurate communication of information, he "probably hasn't" communicated too well himself in the presentation of DAC's defense.

Then he tried to blame the whole case on OOIDA, although he just referred to it as the "trade association" that the trucker plaintiffs talked about in their testimony. Henry said that the association was gunning for DAC and went hunting for drivers who wanted to sue the company.

The truckers' attorney objected to the comments, but Blackburn overruled him.

However, the judge did remind the jury that closing statements are not evidence and cannot be considered as fact.

Henry then suggested that DAC reports are part of federally required employment checks, such as drug and alcohol testing.

Later, DAC's lawyer launched into a presentation using a color photograph of an elephant and a stuffed animal he said he had borrowed from his 7-year-old granddaughter.

Clutching the gray-and-pink stuffed elephant, and gesturing with it toward the photo of a real pachyderm projected on the screen in the courtroom, Henry discussed the differences between the two elephants. Then he told the fable about the group of blind men who are asked to describe an elephant.

Henry's point, eventually, was that the truckers don't understand that DAC reports are just one part of the hiring process - like one of the blind man who felt the side of the elephant and described it as a wall, Henry said the truckers are only "seeing" one part of the process.

As he told the story of the blind men feeling the beast's trunk, ear, tusk, tail, etc., he pulled on or pointed to that part of his granddaughter's stuffed toy. Some of the jurors were frowning, others were staring blankly.

Later, Henry tried to defend the quality of DAC's reports by saying that the company would not have had as many motor carrier "members" buying so many of its reports for the past 25 years if the reports weren't OK.

He said that the truckers' contention that DAC should have some kind of auditing process to ensure the accuracy of the information submitted by those motor carriers was a red herring.

A few minutes later he told the jury that DAC isn't perfect and that its reports "don't tell the whole story" because they are not supposed to - that's not what they were designed to do. He likened the truckers' work history descriptors to a report about the Titanic.

"If all I want to know is, did it complete its maiden voyage, then I don't need the complete plans for the design of the ship," Henry said, wrapping up his defense of DAC Services.

The truckers' final comments
In the final 15 minutes of the trial, the truckers' attorney finally addressed the performance of DAC's lawyer.

"I'm always surprised in closings ... when opposing council asks the jury to disregard your oath," Herrick-Stare began his rebuttal of the defense lawyer's closing argument.

The defense ignored the judge's definition of accuracy in the jury instructions, the truckers' attorney said, and then tried to distract the jury with concerns about whether truck drivers understand DAC reports.

Distraction was a key part of the entire defense case, he said.

" 'Don't look at us' they say," Herrick-Stare said, holding his hands up as a shield, then pointing into the air across the courtroom and waving toward the wall, "look at the motor carriers, look at the drivers, look over there, don't look at us."

That kind of misleading behavior is what got DAC sued, and the company's defense was just further proof that DAC founders, executives and employees have no respect for consumers or what the impact of a negative report could have on their lives, the truckers' attorney told the jury.

Herrick-Stare likened DAC reports to a hiking guide who takes you into a clearing with multiple trails but doesn't tell you which trail leads to where.

He also said that he, too, considered using the blind men and the elephant in his closing argument because the fable illustrates the inaccurate nature of DAC reports. He said DAC's termination record forms are like a description from a blind man - only, for example, instead of a trunk being mistaken for a snake and a tail being mistaken for a rope, a driver is labeled as having "cargo loss" when the cargo wasn't even on his truck at the time it was lost.

- By Coral Beach, staff editor
coral_beach@landlinemag.com

Editor's note: Before dismissing the jury, Judge Robert E. Blackburn invoked a local rule that prohibits any of the parties to this case - or their representatives - from ever talking to the jury members about the case.

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