LAWSUIT UPDATE: OOIDA seeks rehearing of DAC appeal

| 9/5/2008

Friday, Sept. 5, 2008 – Citing almost a century of case law, OOIDA this week requested that decisions from a three-judge appeals panel in a case against DAC Services be reheard by a complete panel of judges in the U.S. Court of Appeals for the 10th Circuit in Denver.

“We were really disappointed in the lower court’s decisions, and we’re also disappointed in the appeal panel’s findings on it,” said Jim Johnston, president and CEO of the Owner-Operators Independent Drivers Association.

Johnston said he felt that the appeals panel “missed some very important points and in fact went against their own precedents” from other cases in the 10th Circuit. The OOIDA legal team addressed those concerns in a petition requesting that the entire court rehear the case.

“The panel’s decision ignores 90 years of unbroken jurisprudence by the U.S. Supreme Court and this circuit,” according to the petition written by Randall Herrick-Stare, the lead attorney on the case for OOIDA.

“... In doing so, the panel’s decision substituted a judge-made exclusion of unlimited breadth in place of the narrowly circumscribed exclusion” detailed in the Fair Credit Reporting Act.

To read OOIDA’s request for a rehearing on the case, click here.

At the heart of the 4-year-old lawsuit are the “termination record forms” that millions of truckers across the country know as “DAC reports.” OOIDA’s legal team argued that the reports fall under the regulations in the Fair Credit Reporting Act.

The reports, which are filled out by motor carriers who subscribe to services offered by DAC’s parent company, USIS Commercial Services Inc., are collected and then made available to other motor carriers who are DAC subscribers and who are considering hiring drivers.

In addition to citing 90 years of case law, OOIDA’s request for a rehearing cites a 2002 federal court case against DAC Services. That 2002 case related specifically to DAC’s reports and their accuracy.

“The panel’s decision (in OOIDA’s case) is of exceptional importance. USIS has over 3.5 million driver work histories that it sells to over 2,500 of the largest motor carriers in the country. The rights of ... drivers to compete fairly for jobs in the trucking industry are at stake,” the OOIDA petition states.

Johnston said that the issues at stake in the case against DAC Services are ones of fundamental importance.

“If you complain, if you stand up for your rights, if you insist on your rights, you could very well find yourself blackballed by a simple comment on those reports that you ‘failed to comply with company policies,’ ” said Johnston.

“Well hell, maybe their policy is to screw you every day and if you don’t agree to it you can end up getting blackballed. For many drivers it forces them to accept treatment and conditions that they would otherwise not stand for. That’s our primary reason for wanting to get it fixed.”

Johnston said often information on DAC reports falls short of the whole truth.

“It might be that they say you had late delivery, but what it doesn’t say is that to be on time you would have had to violate the hours-of-service regs,” he said. “The fact that they can use this tool that you can’t refute to blackball you and ruin your career, prevent you from getting on with many other carriers, that’s why we are pursuing this lawsuit.”

– By Coral Beach, staff editor