Van Dusen, et al. v. Swift Transportation Co. of Arizona, LLC, et al.

Case No. CV-10-899-PHX-JWS | Deadline to file Claims, Objections, Exclusions: December 14, 2019

Frequently Asked Questions

A: The Named Plaintiffs (the people who started the lawsuit) alleged that Swift, IEL, Chad Killebrew, and Jerry Moyes (known as “Defendants”) improperly classified them as independent contractors, failed to pay them at least the federal and applicable state minimum wage, violated their rights under the forced labor statute and were unjustly enriched by misclassifying drivers as independent contractors. Defendants dispute the claims and allegations, deny that they violated any of these laws, and vigorously defended the lawsuit. The Named Plaintiffs filed their claims as a class and collective action on behalf of themselves and other drivers who leased trucks from IEL and contracted to drive those trucks for Swift.

A: The class consists of people who leased one or more trucks from Interstate Equipment Leasing, LLC (IEL) and contracted to drive for Swift Transportation Co. of Arizona, LLC at any time between December 22, 1999 and January 1, 2019. You must have signed an IEL lease and signed an Independent Contractor Operating Agreement with Swift to be included in the class.

A: The following is a summary of the terms of the settlement. The full Settlement Agreement can be found here.

Settlement Fund: The settlement requires Defendants to create a settlement fund of $100,000,000.00. This settlement fund shall be used to pay the claims of the Named Plaintiffs and the approximately 20,000 Drivers who leased trucks from IEL and contracted to drive them for Swift between December 22, 1999 and January 1, 2019.

Deductions from the Settlement Funds: Before the settlement fund is divided among the Drivers, the Court may allow the following amounts to be deducted from the Fund: (1) up to 29% of the fund to pay the attorneys’ fees of the Lawyers for the Class for their work in litigating the case and obtaining the Settlement Agreement. These attorneys have pursued this case on behalf of the Named Plaintiffs and the other Swift drivers for over nine years including four appeals without receiving any compensation for their services.  They did so with the understanding that they would receive a portion of the settlement fund established through their efforts; (2) up to $750,000 to reimburse the attorneys for the substantial costs they have incurred litigating the case over the past nine years and for the costs of administering the Settlement Fund including the cost of sending notice and sending the money to participating drivers if the settlement is approved; (3) up to $50,000 as a Service Award to each of the five Named Plaintiffs to compensate them for the risks they took and the time they spent pursuing this case over the past nine years to generate the Settlement Fund. The service awards to these individuals are in addition to their regular share of the Settlement Fund. The total of all deductions from the Settlement Fund will not exceed 30%.

Individual Awards: After the above deductions from  the settlement fund, the remaining money, (no less than $70,000,000) will be allocated to all the Drivers based on a formula that takes into account a number of factors including miles driven, number of trips, expenses, weekly earnings, if and when the Driver filed a consent to join the lawsuit, and when during the period December 22, 1999 and January 1, 2019, the Driver worked for Swift. The same formula applies to all Drivers. The formula is set forth in detail in the Settlement Agreement.

Other Terms: The Court must approve the settlement as fair, reasonable, and adequate before it can go into effect. If approved, any Drivers who do not opt-out of the settlement will be deemed to have released any and all claims they may have against Defendants arising out of work performed pursuant to an independent contractor agreement entered into with Swift or any affiliated entity and utilizing equipment leased from IEL based on or relating to the allegations made in the lawsuit and which arose between December 22, 1999 and January 1, 2019.  The time period applicable to Drivers’ released claims may be limited to December 22, 1999 through September 8, 2017 if Defendants exercise certain rights under the settlement. In addition, Swift will release all claims it has against Drivers who do not exclude themselves from the settlement arising out of their leases with IEL or contracts with Swift which arose between December 22, 1999 and January 1, 2019. Defendants’ release does not apply to any claims arising after January 1, 2019. Defendants will, upon request, inform HireRight that any previously reported lease or contract defaults that are released by the settlement have been rescinded.

Defendants may have the right to cancel the settlement under certain conditions.

A: Your options depend on whether you have previously opted-in to this case or not. If you have not previously opted-in to this case, you have three options: (1)  you can choose to receive your share of the settlement money in exchange for giving up your claims; (2) you can choose to affirmatively exclude yourself from the settlement, receive no money, and not give up your claims; or (3) you can choose to do nothing. The effects of your choice are described in more detail below.

  1. To Receive Your Settlement Award: If you want to receive your share of the Settlement Fund you must fill out, sign, and mail or email the “Claim Form and Consent to Sue” and W-4 Form to the Claims Administrator at the address below, or complete the forms on this settlement website, no later than the 14th day of December, 2019. Any Claim Form electronically submitted or post-marked after the 14th day of December, 2019 will be considered late. Late claim forms may be considered invalid. If you file a timely claim form and the court approves the settlement, you will be sent a check for your share of the Settlement Fund. In exchange for the money you receive, you agree to give up (release) all claims or potential claims you may have against Defendants and related entities arising prior to January 1, 2019 relating to your lease(s) with IEL and your contractor agreement(s) with Swift, as described more fully in the Settlement Agreement. The complete language describing the claims you will be giving up and the parties covered by the release is available on this website.
  2. To Exclude Yourself From the Settlement: If you do not want to participate in the settlement and do not want to give up (release) any claims you have against Defendants, you must affirmatively ask to be excluded from the Settlement by writing to the Claims Administrator and stating: “I wish to be excluded from the settlement in the Van Dusen, et al. v. Swift Transportation Co., Inc., et al. matter,” or words substantially to this effect. You must sign the request for exclusion for it to be effective. Your request to be excluded must be mailed or emailed to the Claims Administrator at the address below no later than the 14th day of December, 2019. Any request to be excluded that is post-marked or emailed after that date will not be valid. If you ask to be excluded, you will not be bound by the settlement and you will remain free to pursue whatever claims you may have against Defendants.
  3. If You Do Nothing: If you chose to do nothing, neither file a claim form nor request to be excluded, then you will be covered by the settlement and will be deemed to have given up (released) all of your claims against Defendants and related entities arising out of your lease(s) with IEL and your contractor agreement(s) with Swift as described in the Settlement Agreement but you will receive no monies from the Settlement Fund.

If you do not elect to exclude yourself from the settlement, you also have the right to (a) object to the terms of the settlement if you do not believe they are fair and/or (b) contest the calculation of your individual award if you believe it is incorrect, if you chose to submit a claim form.

A: Your options depend on whether you have previously opted-in to this case or not. If you previously opted-in to this case, you have two options: (1) you can choose to receive your share of the settlement money ; or (2) you can choose to affirmatively exclude yourself from the settlement. The effects of your choice are described below.

  1. Receive Your Settlement Award:  Because you have already opted into the case, you do not need to do anything to receive your share of the settlement fund but you should fill out and mail or email the W-4 form to the Claims Administrator.  If the court approves the settlement, you will be sent a check for your share of the settlement fund. In exchange for that money you agree to give up (release) all claims or potential claims you may have against Defendants and related entities arising prior to January 1, 2019 relating to your lease(s) with IEL and your contractor agreement(s) with Swift as described in the Settlement Agreement.  The complete language describing the claims you are giving up and the parties covered by the release is available on this website. If you want to receive your money, it is extremely important that you keep the Claims Administrator informed of any changes in your address so the Claims Administrator can mail your check to you. If you have a new address, fill out and send in the Change of Information form that was mailed to you or download it from the Documents tab from the website
  2. Exclude Yourself From the Settlement:  If you do not want to participate in the settlement and do not want to give up any claims you have against Defendants, you must affirmatively ask to be excluded from the Settlement by writing or emailing the Claims Administrator and stating: “I wish to be excluded from the settlement in the Van Dusen, et al. v. Swift Transportation Co., Inc., et al. matter,” or words substantially to this effect.  You should provide your name, address, telephone number and the last four numbers of your social security number on the letter and you must sign the request for exclusion for it to be effective.  Your request to be excluded must be mailed or emailed to the Claims Administrator at the address below no later than the 14th day of December, 2019. Any request to be excluded that is post-marked or emailed after that date will not be valid. If you ask to be excluded, you will not be bound by the settlement and you will remain free to pursue whatever claims you may have against Defendants.  If you do not ask to be excluded, then you will be covered by the settlement and will be deemed to have given up (released) all of your claims against Defendants and related entities arising out of your lease(s) with IEL and your contractor agreement(s) with Swift as described in the Settlement Agreement.

If you do not elect to exclude yourself from the settlement, you also have the right to (a) object to the terms of the settlement if you do not believe they are fair and/or (b) contest the calculation of your individual award if you believe it is incorrect.

A: The Parties agree that it is their intent that upon funding of the Qualified Settlement Fund Settlement, Class Members (other than those who opt-out of the settlement) will release any further attempt, by lawsuit, administrative claim or action, arbitration, demand, or other action of any kind by each and all of the Settlement Class Members (including participation to any extent in any further class or collective action), to obtain a recovery for work performed pursuant to both an independent contractor agreement entered into with Swift or any affiliated entity and utilizing equipment leased from IEL based on and related to, arising out of, or arising in connection with each and all of the allegations in the operative complaint in the Action, including without limitation any and all claims arising from alleged misclassification, whether factual or legal, for harms arising during the Settlement Class Period, (except in the event that Defendants exercise their option in ¶10(c) to rescind the Settlement with respect to Post Merger Claims, no claims arising during the post -merger time period shall be released). The release includes but is not limited to the Action.

  1. Identity of Released Parties. The Settlement Class Members, other than those who file Exclusion (“opt-out”) Forms, will fully and finally release, defend and hold harmless, Defendants and each of its/their former and present direct and/or indirect owners, dba’s, affiliates, parents, subsidiaries, brother and sister corporations, divisions, related companies, successors and predecessors, and current and former employees, attorneys, officers, directors, employees, shareholders, owners, trustees, attorneys, fiduciaries, beneficiaries, subrogees, executors, partners, privies, agents, servants, insurers, representatives, administrators, employee benefit plans, and assigns of said entities (collectively “Releasees”).
  2. Claims Released by Settlement Class Members. As of the Effective Date, and upon payment of the Total Settlement Fund Amount, and except as to such rights or claims as may be created by this Agreement, each and every Settlement Class Member, on behalf of himself or herself and his or her heirs and assigns, unless he or she has properly elected to opt out of the class, hereby releases Releasees from the following claims (“Released Claims”) for the entire Settlement Class Period:
    1. Any and all claims reasonably related to, arising out of, or arising in connection with the claims in the Action related to work pursuant to independent contractor agreements with Swift or any affiliated entity and leases with IEL, including without limitation state and federal wage and hour claims (including without limitation all such claims under the Fair Labor Standards Act, 29 U.S.C, § 201, et seq., federal common law, and New York, California and Arizona state law, including without limitation New York Labor Law Articles 6 and 19 and their implementing regulations, and California Labor Code sections 201-204, 210, 221, 226, 226.2, 226.7, 510, 512, 558, 1182.12, 1194, 1194.2, 1197, 1198, 1199, 2698, et seq., 2800, and 2802, and any applicable Wage Order(s)) for unpaid wages (including without limitation minimum, regular and overtime wages), unreimbursed business expenses and/or unlawful deductions, breach of contract claims under state or federal law, restitution and/or unjust enrichment claims or any claims involving alleged unconscionability; claims for unfair competition under California Business & Professions Code sections 17200, et seq., and any claim(s) for or involving allegations of “forced labor”; as well as any claims for interest, penalties, liquidated damages and/or attorneys’ fees and costs related thereto; and
    2. Any and all claims related to work performed pursuant to an independent contractor agreement with Swift or any affiliated entity and a lease with IEL that were or could have been asserted based on the facts pled in the operative complaint in the Action including without limitation for any purported violation of any local, state, or federal wage and hour laws, regulations, and/or ordinances, including such laws, regulations, and/or ordinances related to the non-payment of wages, minimum wages, overtime wages, or any other wage-related or recordkeeping-related claims; liquidated damages; attorneys’ fees, costs and expenses; pre- and post-judgment interest; or damages or relief of any kind, including without limitation any and all claims arising from, arising out of, or arising in connection with the allegation that the Settlement Class Members were misclassified and/or not properly compensated and/or reimbursed by Defendants under state or federal law, at any time during the Settlement Class Period.
    3. Nothing herein shall release claims against the Released Parties arising out of work performed in a capacity other than pursuant to both an independent contractor agreement with Swift Transportation or any affiliated entity and a lease with IEL. Nor shall anything herein release claims arising out of work performed as an employee or independent contractor for Knight Transportation, or Knight Transportation’s leasing arm. Nor shall this release operate to release any other claims being litigated.
    4. Upon the funding of the Qualified Settlement Fund, Defendants shall be deemed to have released all Settlement Class Members who do not opt-out of this settlement from any and all claims known or unknown, contingent or accrued, that are based on, arise out of, or relate in any way to an independent contractor agreement with Swift Transportation and/or an equipment lease with IEL or any services provided under such contractor agreement or lease during the Settlement Class Period, and provided that this release does not apply to any claims arising under active independent contractor agreement with Swift Transportation and/or an equipment lease with IEL after the end of the class period.

A: To File Objections To The Settlement:  If you think that any of the terms of the settlement are unfair, you may mail or email a written objection to the Claims Administrator identifying the specific term(s) that you think are unfair and why.  Your letter should include your name, address, telephone number and the last four digits of your social security number. To be considered, the objection must be mailed or emailed to the Claims Administrator no later than the 14th day of December, 2019. You may also appear personally or through an attorney at a hearing scheduled for January 22, 2020, at 10:00 a.m. in courtroom 401 at the Sandra Day O’Connor United States federal courthouse located at 401 W. Washington St., Phoenix, AZ 85003-2118 to object. If the Court rejects your objection, you will still be bound by the terms of the settlement.

A: Your award is based on Defendants’ records of the days you worked and the amounts you were paid. If you believe those records are in error, you may submit evidence to contest those records by mailing or e-mailing what you think is the correct information and any evidence you have to show Defendants’ records are in error to the Claims Administrator. You should submit your information as soon as possible, but no later than October 15th, 2019.

A: If the Driver is no longer alive, his or her court appointed estate representative, or, in the absence of a court appointed representative, the surviving spouse, or, in the absence of a surviving spouse, the surviving children, or in the absence of a surviving spouse or children, the surviving parents has/have the same rights with respect to the settlement that the Driver would have had if he or she were still alive. The estate representative, surviving spouse, surviving children, or surviving parents may choose to claim his or her Settlement Award by filling out the “Consent to Sue and Claim Form” and the “Change of Information Form” enclosed with this notice and may object to the settlement terms or contest the calculation. Alternatively, the estate representative, surviving spouse, surviving children, or surviving parents may request to be excluded from the Settlement by writing to the Claims Administrator and complying with the procedure for seeking exclusion set forth in the sections above. Whichever the estate representative, surviving spouse, surviving children, or surviving parents does/do, it must be done in the manner and within the time limits explained above. For more information, please contact the Claims Administrator.

A: The court granted final approval on January 22, 2020, and final judgment was entered on February 5, 2020.

A:  The court approved the settlement, and if there are no appeals, it is expected that the checks will be sent out in April 2020.

A: The lawyers for the Class are:

Getman, Sweeney & Dunn, PLLC
260 Fair St.
Kingston, NY 12410
(845) 943-6234
getmansweeney.com

These lawyers are assisted by Susan Martin of Martin & Bonnett, PLLC and Edward Tuddenham.

A: If you have more questions about the settlement, you can contact the Claims Administrator at (844) 330-6991.