Swift 'short miles' lawsuit nears end of discovery phase, trial set for June 16

By Greg Grisolano, Land Line staff writer | 2/6/2015

Members of a class action lawsuit who claim Swift Transportation shorted them hundreds of millions of dollars on mileage-based pay may finally have their day in court.

The lawsuit, which was filed over a decade ago in Arizona, alleges the transportation giant may have underpaid more than 60,000 owner-operators and company drivers by as much as a half billion dollars, according to plaintiffs’ attorney Leonard Aragon.

The initial suit, filed back in 2004, claims that Swift used a software program to calculate estimated mileage based on the Household Goods Mileage Guide. The lawsuit alleges that the software failed to account for actual route miles, resulting in drivers’ pay shortened by 7 to 10 percent.

Aragon said the key argument of the case rests on proving Swift not only promised to pay drivers for actual route miles, but that they also had the capability to do so, via electronic control modules on each truck, as well as fuel tax data. He said receiving those data sets during discovery has been “a game-changer.”

“Despite what Swift has been saying for years, they have the means to properly pay their drivers if they want to,” he said. “If you’re going to promise people that you’re going to pay them per mile, and you have the means to figure out how many miles they drove, then the natural result would be that they would get paid per mile they drive.”

Aragon, who works for Hagens Berman law firm, said the pre-trial discovery phase of the case is nearing completion. If a settlement between the parties isn’t reached, it is expected to finally go to trial on June 16, more than 10 years after the suit was first filed.

The disclosure of that information is one of the reasons Aragon said it’s taken so long to conclude the discovery period. The data will help determine the exact amount of damages owed to drivers.

“We’re getting our damage reports from our experts very soon,” he said. “That will tell us exactly how much they were damaged. I imagine (the damages) will be about a half a billion dollars over the entire class period.”

The second biggest discovery item has been what Aragon describes as the “lack of understanding” about how HHG works.

“(HHG) always underpays drivers, every single time,” he said. “I can tell you, people in the industry don’t understand how (HHG) works … I think that’s one of the problems here.”

Aragon said the HHG system, according to Swift’s guideline works by calculating distances from points chosen in cities by Rand McNally, such as intersections, post offices, or “other points of significance.” The system then takes the shortest distance between those two points on roads that a truck of a certain weight or size can traverse. The shortest distance between those points is used as the basis for Swift’s method of calculating HHG mileage amount.

“If I’m going from Phoenix to San Francisco, and I’m going through L.A., the most direct route is to go smack-dab through the middle of L.A., but no one will ever do that because it will take you an entire day to get through that city,” he said. “Instead they go around L.A., which is longer, but significantly faster. And that’s the route every person takes. But (Swift’s HHG calculation) would run straight through the city.”

On average, Aragon said the Swift system is 6 to 10 percent shorter than the actual miles traveled by drivers.
An Arizona Superior Court judge certified class action status in the case in August 2013. The matter has been making its way through the legal system since 2004, including making two trips to state’s Court of Appeals, and even one trip to the Arizona Supreme Court.

There are two certified classes of drivers, including employee drivers and owner-operators, who contracted with Swift. Those are defined as owner-operators who contracted with Swift after March 6, 2001, and as employee drivers, who worked for the company after April 9, 2009.

Class action notices were initially mailed out to more than 62,000 drivers.

At press time, phone calls to Swift Transportation corporate offices in Phoenix had not been returned.

Staff Writer Clarissa Hawes contributed to this report.

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