Yata et al v. BDJ Trucking Co. et al
Filing
78
MEMORANDUM Opinion and Order: This Court grants Plaintiffs' motion for class certification 68 . Signed by the Honorable Sharon Johnson Coleman on 3/5/2020. Mailed notice. (ym, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HAMIMI YATA AND
JASMIN ZUKANCIC, individually and
on behalf of others similarly situated,
Plaintiffs,
v.
BDJ TRUCKING CO. and SENAD
MUJKIC,
Defendants.
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Case No. 17-cv-03503
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiffs Hamimi Yata and Jasmin Zukancic filed this suit against Defendants BDJ Trucking
Co. and Senad Mujkic for violating the Truth in Leasing Act (“TLA”) and the Illinois Wage Payment
and Collection Act. Plaintiffs move to certify the TLA claim as a class action pursuant to Federal
Rule of Civil Procedure 23(b)(3). For the reasons stated herein, Plaintiffs’ motion [68] is granted.
Background
BDJ Trucking Co., Inc. (“BDJ”) is a transportation carrier that employs and contracts with
drivers to transport its customers’ freight throughout the United States. It is an Illinois corporation
headquartered in Niles, Illinois. Senad Mujkic is the owner and CEO of BDJ.
During the relevant time period for this lawsuit, between 2013 and 2017, BDJ employed
over 50 owner-operator semi-truck drivers. All of the drivers signed an equipment lease that
governed various aspects of their employment, including terms of their compensation. BDJ
primarily used two versions of the equipment lease between 2013 and 2017. BDJ asked all drivers to
sign version one (the “Lease Agreement”), between April 2013 and April 2017. That document is
one page long and provides that Plaintiffs leased their semi-trucks to BDJ pursuant to the TLA.
(Dkt. 69-5.) The Lease Agreement does not set out terms of driver compensation nor does it
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authorize BDJ to make deductions from driver pay. BDJ also asked drivers to sign a second version
of the equipment lease (the “Service Agreement”), between October 2014 and April 2017. The
Service Agreement is more detailed than the Lease Agreement and includes provisions pertaining to
driver pay, insurance requirements, indemnification, termination, confidentiality, among other
matters. (Dkt 69-6.) The Service Agreement specified that if drivers chose to purchase occupational
insurance, they will be required to pay the monthly premium. No other deduction related to
occupational insurance is specified in the Service Agreement. (Id.) The Lease Agreement and
Service Agreement are the basis of Plaintiffs’ claims in this case.
Plaintiffs Yata and Zukancic worked for BDJ as owner operators at various points between
2013 and 2016, along with more than fifty other drivers. Plaintiffs allege that BDJ made several
deductions from their pay and did not always pay them the promised amount. They additionally
allege that BDJ paid $141 per month per driver for occupational insurance and charged each driver
more than $40 in upcharges. Plaintiffs allege BDJ charged drivers an unauthorized “escrow”
amount, which was not always paid back in full. Yata claims BDJ deducted $5100 in escrow from
his paychecks and only repaid him $3605. Zukanic claims BDJ deducted $1500 in escrow from his
paycheck and only repaid him $1478.16. Additionally, Plaintiffs allege BDJ deducted a $90 “onetime processing fee” from most drivers’ paychecks, which was not mentioned in the Service
Agreement nor the Lease Agreement. Plaintiffs allege that unauthorized deductions on escrow
deposits, DBJ’s failure to pay interest on escrow deposits, overcharges on occupational accident
insurance, and unauthorized deductions for a one-time processing fee are violations of the TLA.
Plaintiffs seek to certify their TLA claim on behalf of the following class under Rule
23(b)(3):
All individuals or entities that signed equipment leases with BDJ
between April 1, 2013 and April 1, 2017.
2
Legal Standard
To be entitled to class certification, Plaintiffs must demonstrate that they satisfy all of the
requirements of Federal Rule of Civil Procedure 23(a) and one of the three alternatives set forth in
Rule 23(b). Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012). Rule 23(a)
requires that a proposed class meet requirements of numerosity, typicality, commonality, and
adequacy of representation. Id. When certification is sought under Rule 23(b)(3), as it is here, the
proponents of the class must also show that questions of law or fact common to the members of
the proposed class predominate over questions affecting only individual class members and,
relatedly, that a class action is superior to other available methods of resolving the controversy.
Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016) (citing Fed. R. Civ. P. 23(b)(3)).
Rule 23 “does not set forth a mere pleading standard.” Comcast Corp. v. Behrend, 569 U.S. 27,
33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (internal quotation marks and citation omitted). When
factual disputes bear on matters vital to certification, the Court must receive evidence and resolve
those disputes prior to certifying the class. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014).
Certification is proper only if, “after rigorous analysis,” the Court is satisfied that Rule 23’s
prerequisites have been met. Comcast Corp., 569 U.S. at 33. “Plaintiffs bear the burden of showing
that a proposed class satisfies the Rule 23 requirements but they need not make that showing to a
degree of absolute certainty. It is sufficient if each disputed requirement has been proven by a
preponderance of evidence.” Messner, 669 F.3d at 811 (7th Cir. 2012) (citations omitted). The
Seventh Circuit has repeatedly reiterated that the focus of class certification must be on Rule 23 and
that class certification proceedings cannot be allowed to turn into a preemptive determination of the
merits. See Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 375 (7th Cir. 2015).
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Analysis
At the outset, the Court notes that the Plaintiffs have properly defined their proposed class.
Defendants argue that the proposed class is too vague because Plaintiffs have not included a harm in
the definition. Implicit in Rule 23 is the requirement that a class cannot be defined too vaguely,
defined by subjective criteria, or defined in terms of success on the merits thereby creating a “failsafe class.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 659-60 (7th Cir. 2015). “To avoid
vagueness, class definitions generally need to identify a particular group, harmed during a particular
time frame, in a particular location, in a particular way.” Id. at 660. In Mullins, the court affirmed
certification of a class of consumers “who purchased Instaflex within the applicable statute of
limitations of the respective Class States for personal use until the date notice is disseminated.” Id.
at 659. Although the harm was not written into the class description, the court found that it could
objectively determine that the purported harm to class members was that they were defrauded by
labels and marketing materials. See id. at 660. Here, too the purported harm is readily discernable.
Plaintiffs have alleged that all class members were harmed when BDJ deducted funds from their
paychecks that were not authorized in equipment leases all class members signed, in violation of the
TLA. Plaintiffs have otherwise described a class that is objectively ascertainable and Defendants’
arguments to the contrary are rejected.
Additionally, Defendants argue that the affidavit and its attached chart summarizing
settlement statements and checks that BDJ produced for each owner-operator driver it employed
should not be considered by the Court. (Dkt. 69-1.) Defendants do not argue that the summary is
inaccurate, that the underlying documents are inadmissible, nor that the underlying documents were
not made available to it. Rather, they argue that this type of evidence is inadmissible generally and
that it is self-serving. Defendants are incorrect. A party may use a summary or chart to prove the
content of voluminous writings that cannot be conveniently examined in court as long as it provides
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the underlying documents to the opposing party at a reasonable time and place. Fed. R. Evid. 1006;
see also Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985) (holding that the trial court
properly considered an affidavit from a paralegal and summary of disciplinary records because the
underlying documents were available to Plaintiffs and the court found them reliable). The chart
Plaintiffs attached to their motion summarizes documents pertaining to more than fifty individuals,
all of which were produced by Defendants in discovery.
To the extent that Defendants argue the summary chart is inaccurate because the
methodology used to calculate the amount is incorrect, that argument is rejected. The affidavit
accompanying the summary chart indicated that checks labeled “escrow” were included in the
summary, but other methods were also utilized to capture that amount. Benjamin Goldberg, the
paralegal who summarized the documents notes that he compared settlement statements for workrelated pay with the last check provided to the driver and any amount on the check above the workrelated payment amount on the settlement statements was considered a repayment of escrow. (Dkt.
69-1.) This methodology is consistent with clear evidence in the record, provided by BDJ’s own
accounting manager. Aldijana Miljkovic, a BDJ employee responsible for operations and accounting
during the proposed class period, testified in her deposition that the only reason a driver’s last check
would have more money than work-related pay is escrow reimbursement. (Dkt. 75-1 at 28).
Accordingly, Defendants’ argument is meritless.
Moreover, the chart being self-serving does not preclude its admission so long as it
accurately summarizes the underlying documents. See Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir.
2013) (Noting that various forms of testimony are self-serving, but “the term ‘selfserving’ must not
be used to denigrate perfectly admissible evidence” through which a party presents its side of the
story). The summary chart clearly is an admissible form of evidence and can be considered by the
Court.
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1. Rule 23(a)
a. Numerosity
Plaintiffs have demonstrated that their proposed classes are sufficiently numerous for class
treatment. Numerosity requires that a class be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). “[A] plaintiff does not need to demonstrate the exact
number of class members as long as a conclusion is apparent from good-faith estimates.” Barragan v.
Evanger’s Dog and Cat Food Co., 259 F.R.D. 330, 333 (N.D.Ill. 2009). Here, Plaintiffs have presented
evidence that the proposed classes contain at least fifty members. (Dkt. 68-1.) Joinder of more
than fifty plaintiffs would certainly be impracticable. See Swanson v. Am. Consumer Indus., Inc., 415 F.2d
1326, 1333 n. 9 (7th Cir. 1969) (holding that a proposed class of 40 was “a sufficiently large group to
satisfy Rule 23(a)”); Marquez v. Weinstein, Pinson & Riley, P.S., No. 14 C 739, 2017 WL 4164170, at *5
(N.D. Ill. Sept. 20, 2017) (Tharp, J.) (“Although there is no ‘magic number’ of class members for
numerosity purposes, when a class reaches forty, joinder is typically considered impracticable”).
Defendants argue a number of times throughout their brief that Plaintiffs have not
established that all proposed class members signed the Service Agreement and Lease Agreement in
addition to some unknown number who may have signed a third version of the agreement (the
“Third Agreement”). (Dkt. 75 at 10-11, 14.) Defendants claim that this is a reason that Plaintiffs
cannot meet the numerosity standard. BDJ’s document production showed that only three drivers
signed the Third Agreement. (Dkt. 69 at 2.) BDJ’s attorney confirmed that it had produced all
agreements signed by owner-operator drivers in its possession, yet Defendants now claim that other
unknown drivers may have signed the Third Agreement. Defendants base their argument on the
questionable deposition testimony of Aldijana Miljkovic, who testified that all owner-operator
drivers signed the Third Agreement and that BDJ stored all copies of agreements signed by drivers
in their driver file. (Dkt. 69-4 at 20.) Senad Mujkic also testified that BDJ’s practice was to keep the
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agreements signed by drivers in their driver file and it did not dispose of any files during the
proposed class period. (Dkt. 76-1 at 65, 69.) The claims of Miljkovic are contradicted by Berina
Babic, the BDJ employee responsible for maintaining driver files and ensuring every driver had an
equipment lease. Babic testified that she never saw a Third Agreement in the time she worked at
BDJ, from March 2014 until February 2016. (Dkt. 76-3 at 8, 11, 17-18.) Because the record shows
that BDJ produced all the leases, and the production does not show that all drivers signed the Third
Agreement, Miljkovic’s claim is contradicted. Plaintiffs have therefore shown by a preponderance of
the evidence that the Third Agreement does not apply to the overwhelming majority of class
members and the only two agreements at the heart of the claims are the Service Agreement and
Lease Agreement. Where, as here, a dispute concerns standard form documents signed by class
members and the class is sufficiently large, numerosity is satisfied. See Chandler v. Sw. Jeep-Eagle, Inc.,
162 F.R.D. 302, 307 (N.D. Ill. 1995) (Castillo, J.) (finding Plaintiffs satisfied numerosity where the
dispute concerned a standard form document and the proposed classes consisted of approximately
50 and 150 members).
Defendants’ claim that Plaintiffs have not shown which drivers elected to use the group
occupational insurance compared to other available options is also contradicted by the record.
Plaintiff’s summary chart included in their opening brief as Exhibit A identified which drivers had
funds deducted from their checks for occupational accident insurance. (Dkt. 76-1.)
Accordingly, Plaintiffs’ proposed class satisfies the numerosity requirement of Rule 23(a).
b. Commonality
Plaintiffs have also demonstrated commonality, which means the existence of “‘questions of
law or fact common to the class.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 346, 131 S.Ct. 2541,
180 L.Ed.2d 374 (2011) (quoting Fed. R. Civ. P. 23(a)(2)). “What matters to class certification …
[is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution
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of the litigation.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (quoting Wal-Mart,
564 U.S. at 350). “A common nucleus of operative fact is usually enough to satisfy” this
requirement. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
Plaintiffs’ proposed class meets this commonality requirement because the TLA claim
presents common questions that will generate a common answer. Plaintiffs contend that the
primary common questions for their TLA claim are: (1) whether the Lease Agreement and Service
Agreement authorized BDJ’s deductions for an escrow deposit; (2) whether BDJ paid interest on the
escrow deposit; (3) whether BDJ charged owner-operator drivers more for occupational accident
insurance than the Lease Agreement and Service Agreement allowed; and (4) whether the Lease
Agreement and Service Agreement authorized BDJ’s deductions for one-time processing fees. All
members of Plaintiffs’ proposed class are owner-operator drivers or entities who leased their
equipment to BDJ for the use in transportation of goods. In doing so, they all signed the Lease
Agreement, Service Agreement, or both. Thus, the answers to the above questions will determine
whether BDJ was authorized by these agreements to make relevant deductions and overcharges to
all drivers. If it was not, then the answers to these questions will also determine whether BDJ is
liable to all owner-operator drivers under the TLA. 49 C.F.R. § 376.12. Accordingly, Plaintiffs have
satisfied the commonality requirement for their TLA claim.
c. Typicality
Plaintiffs’ claims are typical if they arise from the same event, practice, or course of action
that gives rise to the claims of other class members; and the claims of the Plaintiffs and the class
members are based on the same legal theory. Keele, 149 F.3d at 595.
Here, Plaintiffs’ and the potential class members’ claims arise from the same course of action
of BDJ: the alleged improper deductions from their wages, failure to pay interest on escrow
deductions, and overcharges on occupational insurance. The claims of Plaintiffs and the potential
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class members also arise from the same legal theories: the alleged violations of the TLA.
Accordingly, Plaintiffs have satisfied the typicality requirement.
d. Adequacy
The final requirement under Rule 23(a) is that the representative party will “fairly and
adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “[A]dequacy of representation is
composed of two parts: the adequacy of the named Plaintiffs’ counsel, and the adequacy of
representation provided in protecting the different, separate, and distinct interest of the class
members.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (quotation
omitted).
Plaintiffs’ attorneys appear qualified, and no apparent conflicts exist between the named
Plaintiffs and the class. Additionally, Plaintiffs Yata and Zukancic have allegedly suffered the very
TLA harm they contend the whole class has suffered—unauthorized escrow deductions and onetime fee deductions, lack of escrow interest payment, and overcharge of occupational insurance
charges. Accordingly, Plaintiffs have satisfied the adequacy requirement.
2. Rule 23(b)(3)
Having determined that Plaintiffs meet Rule 23(a)’s threshold prerequisites, the Court turns
to the Rule 23(b)(3) requirements. Plaintiffs must demonstrate that “questions of law or fact
common to class members predominate over any questions affecting only individual members” and
“a class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3).
a. Predominance
“Rule 23(b)(3)’s predominance requirement is satisfied when common questions represent a
significant aspect of a case and can be resolved for all members of a class in a single adjudication.”
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Messner, 669 F.3d at 815 (quotation omitted). This requirement is met when “common nucleus of
operative facts and issues underlies the claims brought by the proposed class.” Id.
In this preliminary predominance inquiry, the Court looks “only so far as to determine
whether, given the factual setting of the case, if the [Plaintiffs’] general allegations are true, common
evidence could suffice to make out a prima facie case for the class.” Costello, 810 F.3d at 1060
(internal quotation marks and citation omitted). Predominance is a qualitative concept that
determines whether “there are more common issues or more individual issues, regardless of relative
importance.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). Defendants argue that
Plaintiffs cannot meet this requirement because individualized issues predominate.
Here, evidence common to the class will determine liability under the TLA. All the owneroperator drivers employed by BDJ signed the Lease Agreement, Service Agreement, or both. A
central inquiry to the TLA claim is whether the Lease Agreement and Service Agreement authorized
BDJ’s deductions for an escrow deposit and for one-time processing fees. Because all drivers signed
one or both of these agreements, this inquiry can be answered on a class-wide basis. Further, the
inquiry as to whether BDJ paid interest on escrow deposits to its drivers and whether it overcharged
drivers for occupational insurance above what the Lease Agreement and Service Agreement
authorized will also determine whether BDJ is liable under the TLA to the whole class. Thus,
questions that can be answered on a class-wide basis to determine liability predominate.
Defendants argue that Plaintiffs cannot satisfy predominance because the damages analysis
will be individualized. “It is well established that the presence of individualized questions regarding
damages does not prevent certification under Rule 23(b)(3).” Messner, 669 F.3d at 815 (citing Wal–
Mart v. Dukes, 131 S.Ct. at 2558). Accordingly, individualized damages calculations will not prevent
certification here, where common questions and factual issues regarding liability predominate.
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b. Superiority
Finally, Plaintiffs must show that proceeding as a class action is superior to alternative
methods of resolving the controversy. See Fed. R. Civ. P. 23(b)(3). This requirement is satisfied if
“a class action would achieve economies of time, effort, and expense, and promote ... uniformity of
decision as to persons similarly situated, without sacrificing procedural fairness or bringing about
other undesirable results.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138
L.Ed.2d 689 (1997) (internal citation and quotation marks omitted).
Defendants argue a class action is not superior to individual actions because the amount
each class member is allegedly owed is large enough to encourage them to bring cases on their own.
The average class member in this case stands to recover damages in the amount of a few thousand
dollars. (Dkt. 69-1.) A couple class members are potentially owed over ten thousand dollars. (Id.)
While the few drivers who have larger claims may be motivated to sue as individuals, many potential
plaintiffs may not bring their own claims because of the generally small individual recovery. See
Murray v. GMAC Mortg. Corp., 434 F.3d 948, 953 (7th Cir. 2006) (“Rule 23(b)(3) was designed for
situations ... in which the potential recovery is too slight to support individual suits, but injury is
substantial in the aggregate.”). As such, Plaintiffs’ claims are well-suited for class treatment.
Again, if Plaintiffs prove liability at the merits stage, the need for individualized damages
determinations does not require denial of Plaintiffs’ motion for class certification. See In re IKO
Roofing Shingle Prods. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014). When, as here, there are
substantial common issues as to liability that outweigh the single variable of damages, the Court can
devise solutions to address that problem when the time comes. See Arreola v. Godinez, 546 F.3d 788,
801 (7th Cir. 2008). Indeed, it is common in class actions to have a final phase when individualized
proofs are submitted. Suchanek, 764 F.3d at 756. The Court finds it would be inefficient and
unrealistic to adjudicate liability numerous times and that individualized damages claims do not
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preclude class certification. See Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013). The
proposed TLA class meets the superiority requirement for certification under Rule 23(b)(3).
Conclusion
For these reasons, this Court grants Plaintiffs’ motion for class certification [68].
IT IS SO ORDERED.
Date: 3/5/2020
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge
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