Case Information

Van Dusen, Doe, and Sheer v. Swift Transportation Co., Inc.

This lawsuit is brought as a nationwide class and collective action on behalf of truckers who lease trucks from Interstate Equipment Leasing Co., Inc. and are treated as "owner operators" by Swift Transportation Co. The suit seeks damages claiming that Swift and IEL's form contracts shift the business risks of the economic downturn to truckers who must by law be treated as employees, makes these truckers cover SWIFT’s costs for fleet inventory, insurance, tolls, taxes, and equipment, and makes the truckers pay various fees to SWIFT that enable SWIFT to exact further profit from employees who cannot leave their contracts without crushing financial consequences. The arrangement helps SWIFT keep its workforce as virtual captives, undercuts the competition, avoids unions, evades unemployment and social security taxes, insurance, and permits SWIFT to charge its employees for expenses that must be borne by an employer.

The suit raises three broad groups of claims, first it claims that the truckers are really "employees" and not "independent contractors." As a result, the suit claims, truckers are owed wages under federal minimum wage law (FLSA) and must be reimbursed for all the deductions from their pay they now face, including lease payments, tolls, gas, maintenance, equipment, taxes and insurance.

Second, the lease and Independent Contractor Operating Agreement (ICOA) are challenged as "unconscionable" since defendants can terminate the contract at will and treat defendants' termination as the trucker's "default" and then demand that the trucker make all remaining lease payments. Claims are brought under the contract law of all states in the US.

Third, the complaint claims that the truckers are held in "forced labor" in violation of federal labor. Since truckers can only drive for Swift, and cannot leave their work without the threat of crushing debt burden, Swift and IEL's arrangement amounts to "forced labor" for Swift for periods extending up to four years.

The case is to be heard by U.S. District Court for the District of Arizona and will be tried to the Honorable U.S. District Judge John W. Sedwick of the District of Alaska, sitting in Arizona. Plaintiffs seek to recover the full panoply of expenses that Swift and IEL shift to its "owner operators" plus liquidated damages which may equal these deductions. The deductions for which plaintiffs seek recovery include truck lease payments, insurance, tolls, accounting fees, bond, equipment such as Qualcomm, etc. Plaintiffs seek unpaid wages, liquidated damages, interest, costs and attorneys' fees as well as declaratory relief under the FLSA and state wage laws.

Truckers anywhere in the US who wish to participate should file a "Consent to Sue" form available on this website, if they wish to have their claims asserted under the Federal minimum wage law.

Status Reports

Posted on Wednesday, December 23 2009 at 9:52am: The document which starts a lawsuit is called a "complaint." Click here to review the complaint in this case. (ComplaintNY.pdf 76KB)
Posted on Thursday, December 24 2009 at 3:04pm: Answers to Common Questions:

What claims are covered in this lawsuit?
The lawsuit claims that Swift and IEL treated the truckers who leased trucks through IEL as "independent contractors" when they were really employees of Swift AS A MATTER OF LAW. As such, Swift and IEL failed to pay all the wages due, and made unlawful deductions from truckers' pay for truck lease payments, gas, equipment, maintenance, insurance, tolls, Qualcomm, and bonding, etc. The case raises class action claims under the law of contract, and under various state laws which also protect workers from unlawful deductions (so far, the state laws of New York and California, however additional state statutes will apply to workers in other states). The case also raises claims that the ICOA and lease are unconscionable in that Swift can terminate the lease for any reason at all, then continue to demand that all lease payments (including profit to Swift) continue to be made. Other grounds for unconscionability include the imposition of liquidated damages and the mischaracterization of employees as independent contractors.

What remedies are sought?
Under the federal minimum wage law, back pay and an equal amount of liquidated damages are claimed for each violation. Under the law of contract, plaintiffs seek to declare the contracts void or voidable for unconscionability. In addition, under wage protections statutes, plaintiffs seek to compel Swift to reimburse truckers for the various deductions from their pay, including truck lease, insurance, gas, tolls, maintenance, etc. In addition, plaintiffs seek to compel reimbursement for additional employer expenses borne by truckers.

How far back can claims be made?
Generally claims can be made at least for the three years preceding the date the complaint was filed. You are entitled to file FLSA claims (using the Consent to Sue form) for the period extending back three years from the date you file the form. State statutory and contract claims have different limitation periods (six in NY, four in CA). Other states have different limitation periods. Please call if your lease ended over three years ago and you wish to join the case.

Do I have to pay to join the case?
No. The attorneys are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment. When plaintiffs win a pay case, the defendant must pay the plaintiffs’ costs and attorneys fees.

Can I wait to file my Consent To Sue Form?
You may be part of the class action if the Court later "certifies the case as a class action.' However, certain claims under the Fair Labor Standards Act are not covered in the case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue Form, part or all of your claim may be barred by the "statute of limitation."

Can SWIFT or IEL fire me or take action against me for joining the lawsuit?
The law prohibits retaliation for joining a pay lawsuit. If any employee suffered retaliation, Swift and IEL would be liable for double the injury caused by retaliation against an employee. Notify us immediately if you hear of any threats of retaliation or if you think any retaliation occurs. Retaliation is extremely rare in overtime cases, because an employer can suffer such serious penalties.

What locations are covered by this lawsuit?
Past and present truckers driving for Swift as "owner operators" anywhere in the U.S. may be included in this lawsuit.

last edited on Thursday, February 11 2010 at 10:18pm
Posted on Thursday, February 4 2010 at 5:11pm: Dan Getman, the attorney for the plaintiffs in this case will be speaking about the Swift case with Evan Lockridge on his show the Lockridge Report, Thursday, February 11, 2010, on Sirius XM Satellite Radio's Road Dog Trucking channel 147 (the Lockridge Report airs weekdays 2 pm eastern/1 pm central).

last edited on Wednesday, February 10 2010 at 4:49pm
Posted on Thursday, February 11 2010 at 4:26pm: Plaintiffs have amended the complaint to add an additional named plaintiff and to clarify the claims brought in this case. Click here to see the First Amended Complaint. (17 frist amended cplt.pdf 869KB) Defendants have not yet "answered" the complaint.
Posted on Friday, February 12 2010 at 2:05pm: The initial scheduling conference has been set by Judge Berman for February 17, 2010 at 9 am in courtroom 21B of the U.S. District Court, 500 Pearl Street, New York, New York 10007-1312. While scheduling conferences are not generally attended by clients and at times can be short and uninteresting, any truckers who are interested in this case are welcome to be present.
Posted on Friday, February 12 2010 at 2:09pm: Any truckers who are part of this case, or who are considering whether to join this case, are welcome to stop by Getman Sweeney to discuss the case and your individual facts. We are located immediately next to New York Thruway Exit 18, which has ample truck parking just at the toll plaza. Please let Janice Pickering know, in advance if possible, if you might be stopping by and we can pick you up at the toll plaza. Paradies Lane, where our office is located, is a spur and does not have room to turn around a trailer.
Posted on Friday, February 19 2010 at 1:06pm: A brief initial conference was held by U.S. District Judge Richard M. Berman in this case. Defendants also asked the Court to permit them to make a motion to transfer venue of the case to Arizona -- that is to seek home field advantage. Click here to review Defendants' Letter Brief requesting transfer of the case to Arizona. (Def. letter mot to dismiss.pdf 88KB) Judge Berman accepted defendants letter as the motion to transfer venue and asked plaintiffs to respond. This tactic was fully expected. Plaintiffs will serve their reply letter brief to the Court by Wednesday, February 24, 2010.
Posted on Friday, February 19 2010 at 1:08pm: Judge Berman also imposed the following case management plan directing that discovery begin in the case. Click here to review the Case Management Plan in the case. (20 CASE MANAGEMENT PLAN.pdf 46KB)
Posted on Thursday, March 11 2010 at 10:01am: On February 23rd, we filed an opposition to the transfer of venue. Click here to review our letter brief. (FINAL Letter Brief Opposing Transfer.pdf 70KB) Any truckers interested in seeing the 90 pages of exhibits that were attached to the Court filing should contact Getman Sweeney for a copy.

last edited on Thursday, March 11 2010 at 12:30pm
Posted on Thursday, March 11 2010 at 10:05am: On March 3, 2010, defendants filed their reply papers asking Judge Berman to transfer the case to Arizona. Click here to see Swift and IEL's reply. (2.22 Def Letter Reply re Venue.pdf 354KB) The matter now sits with Judge Berman. We have filed discovery demands asking Swift and IEL to provide documents we believe will be primary evidence in the case. Plaintiffs have also served a subpoena on QualComm to obtain evidence of instructions (demonstrating control) that Swift or IEL sends drivers considered to be owner operators.
Posted on Wednesday, March 24 2010 at 4:14pm: Defendants have requested Judge Berman to give them permission to make a motion to dismiss the case in favor of arbitration. Click here to review defendants' letter brief. (Def to J Berman re arbitration 3-19-10.pdf 143KB)
Posted on Thursday, March 25 2010 at 9:38am: Plaintiffs have responded to Defendants' request for permission to move to transfer the case to arbitration. Click here to review plaintiffs' letter brief. (ltr to Berman stamped 3.24.10.pdf 2MB)
Posted on Thursday, March 25 2010 at 9:43am: Plaintiffs have amended the complaint to raise claims under the federal "Forced Labor" statute, 18 U.S.C. §1589 and 1595, and to make various other claims in the case. Click here to review the Second Amended Complaint. (2nd amended stamped.pdf 946KB) Defendants have not yet answered the complaint, as their motion to transfer venue allows them to avoid this requirement for the time being.
Posted on Wednesday, March 31 2010 at 4:20pm: Swift is routing certain owner operator drivers to select terminals to meet with its lawyers. No person who has joined this lawsuit by filing a consent to sue should participate in such a meeting without the presence of a lawyer from Getman Sweeney. And we believe that no driver should be forced to participate in this meeting. If a driver participates in such a meeting, he or she should request a copy of any papers that they are asked to sign. Getman Sweeney would like to speak with any participants in the meetings who would care to discuss what occurs.
Posted on Wednesday, March 31 2010 at 4:21pm: Judge Berman has set a Court conference for April 5, 2010 at 9:30 a.m. in his Courtroom at the U.S. District Court in Manhattan to discuss the pending motions (transfer of venue, arbitration).
Posted on Tuesday, April 6 2010 at 11:48am: On April 2nd, Plaintiffs moved for a "preliminary injunction" to stop Swift and IEL from instituting collections measures and to prevent them from furnishing negative credit reports on drivers they consider to be in default. Plaintiffs ask the Court to find that the lease and ICOA are "unconscionable" as a matter of law and that Swift misclassifies owner operators as independent contractors, instead of treating them as employees as the law requires. We argue that since the Lease and ICOA are likely to be found to violate the law, irreparable injury will occur to drivers if Swift is allowed to enforce its agreements in this way. Click here to read the brief in support of the motion. (69-2 Supplemental Memorandumn.pdf 133KB)
Posted on Tuesday, April 6 2010 at 11:53am: On April 5th, Judge Berman transferred venue in the case to the U.S. District Court for the District of Arizona. Judge Berman found that most of the events involved in the suit emanate from Arizona and that therefor the suit should be transferred. The pending motion for a preliminary injunction will be refiled in Arizona. All individuals who filed consents to sue in the case remain in the case in Arizona. Although we hoped Judge Berman would keep the case, venue transfer motions are easy ones for defendants to win. Although the case is venued in Arizona, the case was assigned to a Judge from Alaska, the Honorable John W. Sedwick. A Magistrate Judge has not yet been assigned.

last edited on Wednesday, May 12 2010 at 6:11pm
Posted on Monday, April 12 2010 at 4:22pm: The attorneys are interested in speaking with FORMER driver managers and other FORMER Swift and IEL management (including recruiters for IEL) to learn the details of how Swift and IEL's operations worked from the perspective of those inside the companies. FORMER employees are encouraged to call Getman & Sweeney and ask to speak with Dan Getman or Carol Richman. ALSO, DRIVERS WHO HAVE CONTACT INFORMATION (SUCH AS NAME, TELEPHONE # OR ADDRESS) FOR FORMER MANAGEMENT EMPLOYEES OF SWIFT AND IEL ARE ENCOURAGED TO CALL JANICE PICKERING OR KATHY WEISS TO GIVE CONTACT INFORMATION.
Posted on Friday, May 14 2010 at 10:00am: On May 11th, Plaintiffs made a motion to certify the Fair Labor Standards Act minimum wage claims in this case as a "collective action." The motion seeks court approval to mail a notice of the case to all class members, advising them of their rights to join the case. Click here to read the Plaintiffs' motion papers. (108 MOTION to Certify Class.pdf 124KB) Of course, individual truckers who leased a truck from IEL and drove for Swift are permitted to raise FLSA claims now by filing the Consent to Sue form which is posted at the top of this web page.

Defendants have already contacted the Court's chambers to request information from the Court on how to delay all briefing on the plaintiffs' motion while defendants get their motion to send the case to arbitration ready, which is due by May 25, 2010. Judge Sedwick's chambers would not address that request unless defendants make it in motion form, which is expected shortly.
Posted on Tuesday, June 29 2010 at 11:33am: Plaintiffs have renewed their motion for a preliminary injunction in this case. The motion asks the Court to rule that Plaintiffs are likely to win the case on the issue that the Lease/ICOA is "unconscionable." Specifically, Plaintiffs claim that the ability of Swift to fire "owner operator" drivers for any reason or no reason, to then declare this firing as a "default" by the driver, to take repossession of the truck and still demand all payments that would have been due, even though the driver no longer has the truck, are so unfair as to be "unconscionable" under the law. The motion seeks to prevent Swift and IEL from 3 activities during the pendency of the case. First, Plaintiffs ask the Court to forbid Swift from taking collections measures (including negative DAC reports) on any driver deemed to be in "default." Second, Plaintiffs ask the Court to forbid Swift from requiring drivers to agree to contract changes under threat of being put in "default." Click here to read the brief in support of Plaintiffs' PI motion. (FINAL PI BRIEF_AZ.pdf 207KB)
Posted on Friday, July 2 2010 at 11:23am: Getman Sweeney would like to speak with former Swift Owner Operators who have documents or other evidence (such as photographs, emails, QualComm messages) concerning:

1) collections efforts by Swift after turning in their truck or having it repossessed, or

2) a negative DAC report from Swift or IEL, or

3) a negative credit report from Swift or IEL, or

4) mid-contract changes demanded by Swift or IEL under threat of having the truck repossessed or the driver put on safety hold until a signature is given.

If this happened to you and you have such proof, please contact paralegals Janice Pickering or Kathy Weiss (845)255-9370 to discuss.
Posted on Tuesday, July 20 2010 at 2:33pm: Swift has filed its opposition to Plaintiffs' motion for a Preliminary Injunction. Our motion seeks to stop Lease collections efforts against truckers until the Court determines if the Lease is lawful. We also seek to stop any negative reporting to DAC or DriverFACTS. We also seek to stop Swift from making mid-term changes disadvantageous to drivers to the ICOA contract. Click here to review Swift and IEL's response to our motion. (172 D Response to P Motion for PI.pdf 125KB) Drivers who have information contrary to the claims raised by Swift are urged to call Getman Sweeney and speak with Janice or Kathy. On July 21st, the Court extended Plaintiffs deadline to file reply papers on the motion to August 3, 2010.

last edited on Friday, July 23 2010 at 3:17pm
Posted on Friday, July 23 2010 at 3:09pm: Plaintiffs have filed their reply brief in support of certification of a collective action and the mailing of notice to all potential class members in the case. Click here to review Plaintiffs' Reply Brief. (187 p Reply in Support MOTION to Certify Class.pdf 78KB)
Posted on Friday, July 23 2010 at 3:14pm: Plaintiffs filed their Opposition to Defendants' Motion to Compel Arbitration of the claims in this case. Plaintiffs argument is based on the fact that the Lease agreement demands that claims be litigated in Court, that the ICOA's arbitration provision conflicts with the Lease and is superceded by it. Also, the Federal Arbitration Act and the Arizona Arbitration Act bar enforcement of arbitration for employees in interstate transportation. Finally, Plaintiffs claim that the arbitration clause is unconscionable for various reasons, including the provision of a shortened statute of limitation, imposition of the "Commercial Rules" instead of the "Employment Rules", imposition of heightened costs on the Plaintiffs, and the ban on class action arbitration. While the arguments are highly technical, the issues are critical to the ability of Plaintiffs to efficiently secure full relief for all members of the various classes. Click here to read Plaintiffs' Opposition to the Defendants' Motion to Compel Arbitration. (188 P Response in Oppose Motion to Compel Arbitration and Dismiss P claims.pdf 152KB)
Posted on Monday, August 2 2010 at 4:32pm: In order to argue against Plaintiffs' motion for a preliminary injunction barring Swift and IEL's collections for the full amount of the remaining lease payments following their putting a driver in "default" status, Swift has filed a remarkable affidavit, stating that Defendants will demand the full remaining lease payments in its demand from drivers, but will not, in fact, seek all remaining payments. Elizabeth Parrish has filed an affidavit stating that a "lessee [in default] is responsible only for costs incurred by IEL in preparing the truck for re-lease, and any lease payments missed prior to the re-lease or sale of the truck.” See Paragraph 9. Click here to review the Parrish affidavit. (175 Declaration of Elizabeth Parrish 172 Response to Motion.pdf 297KB) Thus Swift and IEL are admitting that they overbill drivers, but stating that they will not actually pursue such overbilled amounts. Drivers who received demands for all remaining Lease payments following a "default" should show this Parrish affidavit to any collections agency or credit reporting agency. Further, please let Getman Sweeney know if you have been overbilled by defendants, or threatened with the higher charges.

Information Request

Please send me more information about this case.

I worked for this defendant also. Tell me how I can join this case.

I understand that merely requesting this information does not create an attorney-client relationship, until and unless Getman Sweeney files my Consent to Sue form with the Court or sends me confirmation of representation.

I understand that to have Getman Sweeney bring my FLSA claims in this lawsuit, I must fill out a consent to sue form, send it to Getman Sweeney, and receive confirmation that I have been added to the case.

All inquiries for possible representation are treated as privileged information and will be used only to contact you for that purpose.

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Case Information

Van Dusen, Doe, and Sheer v. Swift Transportation Co., Inc.

Consent to Sue Form

Status Reports

Information Request