Updated: 11/25/2011
Posted 11-25-2011 (update)

Court Certifies Lawsuit Against Swift Transportation as Class Action
PHOENIX – A Maricopa County Superior Court judge ruled Thursday that a lawsuit accusing Swift Transportation Corp. of routinely shorting its drivers in pay will move forward as a class action after a long and circuitous route through the Arizona court system.

The lawsuit was first filed against Swift Transportation in early 2004, but the motion to certify it as a class action was initially denied by a Maricopa County Superior Court judge. The judge’s decision was appealed by plaintiffs’ attorneys at Hagens Berman Sobol Shapiro LLP, and the Arizona Court of Appeals reversed the lower court’s decision.

The appellate court’s decision to certify the suit against Swift Transportation as a class action, however, was then overturned by the Arizona Supreme Court on procedural grounds. The Arizona Supreme Court held that the appellate court lacked the jurisdiction to review the decision by the trial court not to certify the suit as a class action.

The case was sent back to the Maricopa County Superior Court where attorneys for lead plaintiff Leonel Garza and the class filed a renewed motion to have it certified as a class action. The court granted that motion Thursday.

“It’s been a long and difficult road to get to this moment, but we’re happy that the court ruled in our favor,” said Hagens Berman attorney Rob Carey. “We’ve heard from numerous Swift drivers that the company’s mileage calculation method cheats them out of honest and hard-earned compensation. These drivers deserve their day in court, and now they’ll get it.”

The case claims that rather than paying drivers on actual miles driven, the company calculates mileage using a software program. The suit claims that in doing so, the program, on average, underpays drivers by 7 percent to 10 percent. According to court documents, Swift Transportation’s manager of contract finance from 1998 until 2002 admitted the software consistently underreported the mileage that drivers actually log by an average of 6 percent.

The lawsuit alleges breach of contract for not paying the correct amount and breach of the implied covenant of good faith and fair dealing based on Swift Transportation’s adoption of a system that underpays drivers.

Maricopa County Superior Court Judge J. Richard Gama ruled Thursday that the class for the case against Swift Transportation encompasses “all persons in the United States, including those who were employed by Swift as employee drivers on or after Jan. 30, 1998 or contracted with Swift as owner-operator drivers on or after Jan. 30, 1998, who were compensated by Swift by reference to miles driven.”

The court also certified a subclass, defined as “all persons who contracted with Swift Transportation with a Contractor Agreement East Coast” as of Dec. 14, 2001. In addition, the court certified Garza as the lead plaintiff to represent the class. 
About Hagens Berman
Former Swift Transportation drivers can contact the firm by emailing Swift@hbsslaw.com or by calling (206)-623-7292. More information is available at http://www.hbsslaw.com/swift_transportation_lawsuit



Posted: 9/24/11  www.drivers1st.com

Drivers say they were underpaid for mileage while working for Swift Transportation

This lawsuit covers drivers working for Swift Transportation dating back to 1998

Below is the substance of the “Short Miles” lawsuit that was filed in 2004.  Through many appeals it has taken eight  plus years to get the case classified as a “Class Action” lawsuit.  The Arizona Supreme Court on September 6, 2011 settled a key part of the lawsuit by declaring that the case can have “Class Action” status.  The law firm that is handling the case for the plaintiffs (truck drivers) Hagens Berman Sobol Shapiro LLP issued the following statement:

Sep 6, 2011
Arizona Supreme Court Rules Swift Corporation Must Face Employee Claims in Court

Phoenix – Sept. 6, 2011: After eight years of legal proceedings, an Arizona Supreme Court ruling has concluded that truckers working for Swift (NYSE: SWFT) who claim the company routinely shorts drivers for mileage may take their case to trial.

The truckers, represented by Hagens Berman, claim that Swift uses an artificial calculation that results in drivers being paid for significantly fewer miles than they actually drive.

The Arizona Supreme Court has declined to review a trial court’s decision to certify a broad class action based on a 2008 appellate court decision that was vacated, which means the case will now proceed to trial.

“We are pleased that the court agreed with us that Swift drivers deserve to take this case to trial,” said Rob Carey, a partner in the Phoenix office of Hagens Berman. “We believe that the company illegally took millions in unpaid wages from its drivers.”

According to the complaint, originally filed Jan. 30, 2004, in the Superior Court of the State of Arizona for the County of Maricopa, Swift short-changed drivers using a database that, on average, shorts drivers a significant percentage of their mileage — and hence their pay.

“We believe that the software program chosen by Swift is not compatible with the company’s obligations under the drivers’ employment agreements,” said Carey. “We look forward to pointing out this inconsistency in court and recovering drivers’ lost wages.”

Hagens Berman is interested in speaking with Swift drivers who worked for the company from 1998 to the present. Drivers or former drivers can contact the firm by emailing Swift@hbsslaw.com or by calling (206)-623-7292. More information is available at http://www.hbsslaw.com/swift_transportation_lawsuit

The lawsuit alleges that Swift is guilty of breach of contract and breach of the implied covenant of good faith and fair dealing based on its alleged failure to pay for all miles driven.  END

Truckers' lawsuit against Swift Transportation now expanded.
Drivers say they were underpaid for mileage

Betty Beard - November, 2010
The Arizona Republic

A lawsuit accusing Swift Transportation Co. Inc. of underpaying its drivers for mileage for more than a decade has been certified as a class action, paving the way for thousands of current and former drivers to possibly recover back pay.

Maricopa County Superior Court Judge Richard Gama last week certified the 2004 lawsuit as a class action on behalf of both Swift employee drivers and independents who had contracts with Swift going back to Jan. 30, 1998.

Robert Carey, a Phoenix-attorney who filed the suit on behalf of three out-of-state drivers, said the class action could include 20,000 to 30,000 drivers or more. Many drivers may have worked for Swift for a short time. The lead plaintiff is a Texas driver, Leonel Garza.

Kelly Flood, an attorney representing Swift, said the company has a policy of not commenting on lawsuits.

In a July (2010)  proposal filed with the U.S. Securities and Exchange Commission to become a public company, Swift mentioned the lawsuit and said its "management does not believe the outcome of this litigation is likely to have a material adverse effect on us. However, the final disposition of this case and the impact of such final disposition cannot be determined at this time."

Swift, a Phoenix-based trucking company owned by former Phoenix Coyotes owner Jerry Moyes, was a public company from 1990 to 2007 and is attempting to return to public status to raise money to pay part of its debts.

According to the lawsuit, Swift used a Rand McNally Household Goods Mileage Guide that is common in the industry to compute miles driven. But while the software enables a company or driver to accurately track miles driven, thanks to global positioning systems, the company chose to credit drivers for miles driven to cities, but not the miles incurred within them.

In a sprawling city, such as Los Angeles, for example, drivers wouldn't get reimbursed for the costs of driving from one side to the other, the suit said.

On average, drivers were shorted 7 to 10 percent of their mileage pay, Carey said.

He could not guess at the possible total amount of damages, should he win.

"It's a very pervasive problem. It covers all the drivers, 30,000 some," Carey said. "So it's a substantial exposure."

He also said he may investigate to see if drivers for other trucking companies faced similar problems.

Karen Rasmussen, president and CEO of the Arizona Trucking Association, said it's easier today for trucks to track their exact mileage because of satellites and GPS systems. And trucking companies tend to be strict about tracking mileage to comply with federal rules that restrict how much drivers can be on the road, she said.

"You don't want your truck drivers driving past their allotted hours from a legal perspective and from a fatigue perspective. You got the deep pockets. You got the liability if something happens," she said of trucking companies.
A motion to have the lawsuit certified as a class action originally was filed in July 2006.
A Superior Court judge denied it, but was overturned by the Arizona Court of Appeals. Then the case ended up at the Arizona Supreme Court, which ruled a year ago that the plaintiffs were not automatically entitled to an appeal. So the case ended up back in Superior Court, to essentially start the class certification over again. END

Please let any of your friends know that I will follow this case and that they can get the latest information at www.drivers1st.com.   Or  david@drivers1st.com

 Posted September 26, 2011

Lawsuit Over Trucker Pay Has Other Fleets Concerned

By Eric Miller, Staff Reporter

This story appears in the Sept. 26 print edition of Transport Topics.

Some truckload carriers say they are concerned about potential industrywide implications of a class-action lawsuit challenging the way Swift Transportation, one of the nation’s largest truckload carriers, calculates the mileage basis for paying truck drivers.

“We’re concerned that the plaintiffs could get a favorable decision, especially be-cause it’s a class action,” Tommy Hodges, chairman of Titan Transfer Inc., Shelbyville, Tenn., told Transport Topics. “Their lawyer has commented that if they win, they’re going to go after every trucking company that they can.”

Although the courts have not yet addressed the merits of the claims the truck drivers raised in their 2004 lawsuit, the Arizona Supreme Court ruled this month that the lawsuit can progress as a class action.

The class of drivers includes all independent owner-operators and company truck drivers Swift em-ployed or had under contract since 1998, estimated at about 20,000, said the drivers’ attorney, Rob Carey, who is with the Phoenix law office of Hagens Berman.

The drivers have alleged that Swift used “shortest miles” software rather than “actual miles” software as a basis for payment — shortchanging drivers’ pay by an estimated 10%.

“Swift’s practice of paying for materially fewer miles than the miles actually traveled by the driver on the run is uniform and affects all drivers throughout the country,” the plaintiffs asserted in the lawsuit.

Swift has declined to comment on the litigation but has denied the drivers’ allegations in court documents.

Truckload Carriers Association President Christopher Burruss also declined comment on the Swift lawsuit.

However, Lana Batts, managing partner of Transport Capital Partners and a member of the TCA board of directors, said the mileage-basis issue is crucial for carriers’ bottom lines.

Although she declined to comment on the Swift lawsuit specifically, Batts said the way a carrier pays its drivers is very often subject to its negotiating position with its customers, rather than a conscious attempt to short drivers’ pay.

Batts said that when trucks are easy to find, a shipper might have the negotiating power to require that a carrier bill a shipper based on short miles, which guides a truck driver on the most direct route, including through the heart of large urban areas.

By contrast, when capacity is tight, a carrier might be able to turn the tables on the shippers, charging its customers based on practical miles, which typically routes the driver to an interstate loop to avoid city traffic and congestion, Batts said.

As a result, she said, many carriers prefer to bill based on practical miles that can shorten the number of hours it takes a driver to get to a destination and delivery.

Carey said the drivers are not attempting to tell carriers which system to use, but are seeking to make clear the method they use to calculate drivers’ pay.

“I don’t think this is a case of one contract, and I don’t know if it’s an attack on the industry either,” Carey told TT. “What Swift can’t do is say, ‘We’re going to pay you by miles,’ and then pay something that’s 10% less than miles on average. If you know that you’re going to pay 10% less, you need to disclose that.”

“If it’s disclosed and accurate, I don’t think you have a problem,” Carey added.

Hodges said that even when some carriers are pressured to bill a shipper using shortest miles, they may decide in fairness to pay a driver based on practical miles.

“There are some folks out there that still pay shortest miles,” Hodges said. “But the pressure to secure drivers and to keep drivers pretty much drove the market to pay practical miles, which is the closest thing to actual miles.”

Paying drivers based on actual miles can be tricky, Hodges said.

“Some could go out of route and other things,” said Hodges, a former chairman of American Trucking Associations. “So you have to have a benchmark out there, and that benchmark has been practical miles.”

Robert Molinaro, chairman and CEO of Warren Transport Inc., Waterloo, Iowa, agreed that the lawsuit’s outcome could have a significant effect on the industry.

“I think it’s an important issue for carriers,” Molinaro said. “I’m sure that each carrier wants to preserve their particular manner of calculating miles.”

Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association said the lawsuit could have a “pretty big impact” on the industry.

“It shouldn’t, simply because paying drivers on ‘practical’ shouldn’t be something that needs to be legislated,” Spencer told TT. “Drivers shouldn’t be directly negatively impacted by arrangements between carriers and shippers.”
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