Appeals court recertifies class status for Swift drivers in 'short miles' suit

By Greg Grisolano, Land Line associate editor | 7/12/2016

An Arizona appeals court has unanimously reversed a lower court’s decision and recertified a class of up to 80,000 drivers for Swift Transportation who allege the company shorted them hundreds of millions of dollars in mileage-based pay.

The Arizona Court of Appeals decision on Tuesday is just the latest legal ruling in a lawsuit that has dragged on for more than a decade between one of the nation’s largest trucking fleets and its employee drivers and owner-operators.

The initial lawsuit, which was filed back in 2004 in Maricopa County Superior Court in Arizona, alleges the drivers were underpaid by hundreds of millions of dollars by the company’s Household Goods mileage formula. The case has made at least two previous trips to state’s court of appeals, and even one trip to the Arizona Supreme Court so far.

Leonard Aragon, one of the attorneys representing the plaintiffs, said the ruling means the case can finally move forward.

“The Court of Appeals’ decision soundly rejected Swift’s attempt to avoid trial, and allows this case to proceed as a class action consisting of 80,000 employees and owner-operators,” Aragon wrote in an email to Land Line on Tuesday. “We look forward to showing a jury how Swift failed to properly pay drivers for their hard work.” 

As for next steps, Aragon said his law firm will seek to schedule trial “as soon as possible.” He also said Swift may seek relief from the Arizona Supreme Court, but “we are confident the Court of Appeal’s well-reasoned decision will stand.” 

Attorneys for Swift did not immediately respond to a request for comment Tuesday afternoon.

The overturned 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. The decertification ruling meant that Garza was 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.

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.

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. The plaintiffs allege Swift violated Arizona’s good faith and fair dealing statutes.

In its ruling to recertify the class, the appeals court noted that the question of whether or not Swift breached the duty of good faith and fair dealings statute is “an issue common to all the members of the class.”

“Given that class members agreed to be paid based not on actual miles but on HHG-derived miles, did Swift have a duty implied by law to select a program within HHG that would derive mileages that most closely approximated actual miles?” Presiding Judge Diane M. Johnsen wrote in the court opinion. “Put differently, assuming petitioners agreed that they would be paid based on whatever HHG calculated, if Swift could choose between two (or three) options within HHG, did Swift have a duty to the drivers to select the option that was most advantageous to them?”

While the Owner-Operator Independent Drivers Association is not party to the lawsuit, OOIDA President Jim Johnston said the appeals court decision is a good thing for drivers and class action suits.

“This case could end up being a really big decision, but it’s still a long way from being over,” Johnston said. “This case has been going on for a long time, and the attorneys handling it have fought really hard for those drivers. They should be commended for their stick-to-itiveness.”

The fact that truckers who believe they have been wronged by their carrier even have a right to sue is something that Johnston and OOIDA fought hard for in the 1990s.

Johnston said prior to the Association fighting for – and winning on behalf of – drivers, they had no private right of action.

“If you had an issue with a motor carrier, you had to go to (Interstate Commerce Commission) at that time, and then Department of Transportation (after it replaced the ICC),” he said. “If that agency didn’t have the funding or the inclination to go after that company, it just went away. With private right of action, it allowed individuals to leapfrog the agencies and take them on individually.”

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