Swift 'short miles' lawsuit hits 'road block' with decertification ruling

By Greg Grisolano, Land Line associate editor | 11/17/2015

A lawsuit more than a decade in the making that claims Swift Transportation shorted drivers hundreds of millions of dollars on mileage-based pay is on hold pending the outcome of a motion to appeal a judge’s ruling to decertify the case as a class-action.

The ruling to decertify the class was issued in July by Judge Richard Gama, the same judge who in 2013 certified the class and ruled that former Swift driver Leonel Garza would serve as the representative. In his ruling to decertify the class, Gama wrote that Swift presented “overwhelming evidence” that it did disclose and explain to both owner-operators and employee drivers “that miles determined by HHG were less than the actual miles driven” and that Garza’s claim “is not typical of the class claim.”

The decertification ruling means that Garza is free to pursue his own individual lawsuit for damages against the company, but he no longer acts as the legal stand-in for an estimated 60,000 to 80,000 employee drivers and owner-operators who were allegedly underpaid by the company’s Household Goods mileage formula. The initial lawsuit, filed back in 2004 in Maricopa County Superior Court in Arizona, alleges the drivers were underpaid by hundreds of millions of dollars.

Michella Kras, an attorney with Hagens Berman, a national law firm that had been representing the plaintiffs in the class-action, said the judge’s ruling is “a little bit of a roadblock.”

“He said in light of new evidence Swift had shown that it did explain HHG to drivers,” Kras said in a phone interview with Land Line on Monday. “We obviously disagree with that.

“When we’ve averaged it out, (the amount shorted) has been between 8 and 9 percent, which is pretty high,” she said. “The fact that (mileage) may vary doesn’t tell a driver that, across the board, you’re going to get shorted 8 percent. Eight percent of your time is essentially free for us.”

Two classes of drivers were certified in the class action ruling in 2013, 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.

“One of the things we found that was very interesting was that employee drivers who have to follow the route that Swift gives them were actually shorted a higher percentage than owner-operators, who could at least try to choose a route that was better,” Kras said.

The law firm was granted a stay on Garza’s case pending an appeal of the decertification. Kras said the plan is to file a special action for the appeal later this month. If the appeals court accepts the case, a ruling on whether to recertify the class or to uphold the decertification would most likely occur in 2016.

“There’s no automatic right to appeal on a decertification order for a case that’s as old as ours,” she said. “Newer cases there are, but our case is so old, the statute doesn’t apply.”

The case has made at least two previous trips to state’s Court of Appeals, and even one trip to the Arizona Supreme Court.

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