Fox et al v. Transam Leasing, Inc. et al

Filing 80

MEMORANDUM AND ORDER granting in part and denying in part 68 Motion to Certify Class. IT IS THEREFORE ORDERED that plaintiffs' Motion for Class Certification (Doc. 68) is granted as to Count III and denied as to Counts I and II. IT IS FURTH ER ORDERED that the court certifies a class under Federal Rule of Civil Procedure 23(b)(3) of the following: All persons, including entities, who operated under an Independent Contractor Agreement that included a satellite communications system usage fee with TransAm Trucking, Inc. between November 2, 2009, through the present. IT IS FURTHER ORDERED that plaintiffs Candace Fox, Anthony Gillespie, and Charles Schreckenbach are designated as class representatives. Shaffer Lombardo Shurin, P.C., and Gregory Leyh, P.C. are designated as class counsel. Signed by District Judge Carlos Murguia on 6/11/14. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CANDACE FOX, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
TRANSAM LEASING, INC., et al.,
)
)
Defendants.
)
_______________________________________)

Case No. 12-2706-CM

MEMORANDUM AND ORDER
Named plaintiffs Candace Fox, Anthony Gillespie, and Charles Schreckenbach, individually
and on behalf of others similarly situated, have filed a Motion for Class Certification (Doc. 68).
Plaintiffs seek certification pursuant to Federal Rule of Civil Procedure 23 on Counts I, II, and III of
their fifteen-count Class Action Complaint (Doc. 1). For the reasons stated below, the court denies
class certification as to Counts I and II and grants class certification as to Count III.
I. Background
Plaintiffs and the putative class are independent truck drivers who own or lease motor vehicle
equipment, namely semi-trucks, to defendant TransAm Trucking, Inc. (referred to herein as “TransAm
Trucking”). TransAm Trucking is an interstate for-hire motor carrier engaged in the business of overthe-road transport of goods. TransAm Trucking has over 1,000 tractor-trailers and hauls interstate
loads with no set or regular routes for its drivers. TransAm Trucking has both company drivers who
are employees, and independent contractors, also known as “owner-operators,” who provide their
trucks and driving services to TransAm Trucking.
Defendant TransAm Leasing, Inc. (referred to herein as “TransAm Leasing”) is a separate entity.
TransAm Leasing’s sole business is leasing semi-trucks to independent contractors who, in turn, lease
-1-

those trucks and driving services to TransAm Trucking (or some other motor carrier). The court
sometimes refers to TransAm Trucking and TransAm Leasing collectively as “defendants.”
A. Operative Agreements
All owner-operators who wish to contract with TransAm Trucking sign a written Independent
Contractor Agreement (“ICA”). According to plaintiffs, more than 3,000 putative class members
signed substantially identical ICAs. (Doc. 69 at 4.) The ICAs set forth in a uniform way the
framework for compensation that applies to each owner-operator. Defendants do not dispute the ICAs
are identical in form but contend that the ICAs offer post-execution options (e.g., the option of
purchasing different products, equipment, insurance and other services) that make the contracts
different from each other. (Doc. 74 at 5.) The ICAs provide that the owner-operator determines the
means and manner of performing under the ICA and that TransAm Trucking has no control or
direction over the methods by which the owner-operator performs. The ICAs are considered leases
under federal truth-in-leasing regulations because the contractor is considered to be leasing the truck
and driving services to a motor carrier.
TransAm Leasing leases trucks to contractors under a written Equipment Lease Agreement
(“ELA”). Many owner-operators lease a truck from TransAm Leasing, then turn around and lease that
truck (and driving services) to TransAm Trucking. Like the ICAs, the ELAs are virtually identical in
form, except the ELAs differ with respect to the trucks and lease terms, which results in varying lease
payments among contractors.
B. Plaintiffs’ Allegations
Plaintiffs allege that defendants falsely marketed to owner-operators by claiming compensation
of “over $138,000 per year on average,” pay in the amount of “$40,000 more than company drivers
over a four-year period,” and “exceptional owner/operator benefits” including compensation “between

-2-

$100,000-$200,000 per year.” (Doc. 69 at 6 (citing TransAm Trucking Marketing Materials).)
Plaintiffs further claim defendants represented to prospective drivers that drivers could earn such
compensation by averaging 2,500 to 3,000 miles per week. (Id.) These representations were made via
various marketing materials, including direct mailings and advertising on defendants’ website.
Plaintiffs contend these statements were deceptive and unconscionable in violation of the Kansas
Consumer Protection Act (“KCPA”), K.S.A. §§ 50–626, –627, because plaintiffs and class members
did not make the amount of money defendants promised.
Plaintiffs also allege that defendants violated 49 C.F.R. § 376.12(i), which prohibits lessors from
requiring lessees to purchase from them products or services as a condition of entering into a lease.
Under the ICA, each plaintiff and class member was required to pay a satellite communications system
usage fee of fifteen dollars per week. Defendants counter that the fee is not a forced purchase but is
instead a specifically authorized chargeback under 49 C.F.R. § 376.12(h).
II. Analysis
Plaintiffs seek to certify the following class:
All persons, including entities, who operated under an Equipment Lease Agreement and
an Independent Contractor Agreement with TransAm Trucking, Inc. and TransAm
Leasing, Inc. between November 2, 2009, through the present.
(Doc. 68 at 2.)
A. Legal Standards
The determination of class certification is committed to the broad discretion of the trial court.
See Shook v. El Paso County (“Shook I”), 386 F.3d 963, 967 (10th Cir. 2004). “The class action is an
exception to the usual rule that litigation is conducted by and on behalf of the individual named parties
only.” Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217 (10th
Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011)). The court is

-3-

required to perform a “rigorous analysis” before determining that the Rule 23 prerequisites have been
met. Id. This “rigorous analysis” will frequently “entail some overlap with the merits of the plaintiff’s
underlying claim.” Dukes, 131 S. Ct. at 2251. In performing its analysis under Rule 23, the court
“must accept the substantive allegations of the complaint as true, though it need not blindly rely on
conclusory allegations of the complaint which parrot Rule 23 and may consider the legal and factual
issues presented by [the] plaintiff’s complaint[ ].” Midland Pizza, LLC v. Sw. Bell Tel. Co., 277 F.R.D.
637, 639 (D. Kan. 2011) (quoting DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir.
2010)) (internal quotation marks omitted).
As the parties seeking class certification, plaintiffs have the burden to prove that the requirements
of Rule 23 are satisfied. See Shook I, 386 F.3d at 968; D. Kan. Rule 23.1(d). In doing so, plaintiffs
must first satisfy the prerequisites of Rule 23(a) by demonstrating that (1) the class is so numerous that
joinder of all members is impracticable, (2) questions of law or fact are common to the class, (3) the
claims of the representative parties are typical of the claims of the class, and (4) the representative
parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a). After
meeting these requirements, plaintiffs must demonstrate that the proposed class action fits within one
of the categories described in Rule 23(b).
B. Rule 23(a) Requirements
1. Numerosity
To satisfy the numerosity requirement of Rule 23(a)(1), plaintiffs must establish that the class
is so numerous so as to make joinder impracticable. Fed. R. Civ. P. 23(a); Trevizo v. Adams, 455 F.3d
1155, 1162 (10th Cir. 2006). Plaintiffs must produce some evidence or otherwise establish by
reasonable estimate the number of class members who may be involved. Rex v. Owens, 585 F.2d 432,
436 (10th Cir. 1978). Courts have found that a good faith estimate of at least fifty members is a

-4-

sufficient size to maintain a class action. Olenhouse v. Commodity Credit Corp., 136 F.R.D. 672, 679
(D. Kan. 1991). Here, plaintiffs allege there are more than 3,000 independent contractors comprising
the class. For purposes of class certification, defendants do not dispute that plaintiffs satisfy the
numerosity requirement. The court finds that plaintiffs have established sufficient numerosity.
2. Commonality
Rule 23(a)(2) requires plaintiffs to show that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). This inquiry requires the court to find only whether common
questions of law or fact exist; unlike Rule 23(b)(3), such questions need not predominate under this
element. See Olenhouse, 136 F.R.D. at 679. Plaintiffs contend the following issues are common to the
class: (1) whether defendants made statements about compensation and mileage relating to owneroperators; (2) whether defendants’ statements about compensation were unfair, deceptive or unlawful;
(3) whether defendants’ statements were unconscionable under the KCPA; and (4) whether defendants’
contractual requirement that plaintiffs pay a satellite communications usage fee is lawful. (Doc. 69 at
18–19.) The court agrees that these are common issues, and defendants offer no argument to the
contrary. The court finds that questions of law and fact are common to the class.
3. Typicality
Rule 23(a)(3) requires plaintiffs to show that their claims are typical claims of the class which
they seek to represent. See Fed. R. Civ. P. 23(a)(3); Stricklin, 594 F.3d at 1198. The interests and
claims of the representative plaintiffs and class members need not be identical to satisfy typicality. See
id. (citing Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir. 1982)). A class
representative “must be a class member, must have no interest antagonistic to those of the class, and
must have suffered the same injury as the other class members.” Edgington v. R.G. Dickinson & Co.,
139 F.R.D. 183, 189 (D. Kan. 1991) (citation omitted).

-5-

Defendants argue that the named plaintiffs’ claims are not typical because plaintiffs’ claims are,
in part, based upon a recruiting video on defendants’ website that the named plaintiffs did not see
before they contracted with defendants. In fact, the video was not published until September 2011,
which was after the named plaintiffs became independent contractors. (Doc. 74 at 18.) Defendants
argue: “If someone has a KCPA claim based on those videos, it is not the named Plaintiffs.” (Id. at
27.) However, the court does not believe this fact precludes a finding of typicality in these
circumstances.
“[D]iffering fact situations do not defeat typicality so long as the claims of the representatives
and class members are based on the same legal or remedial theory.” In re Motor Fuel Temperature
Sales Practices Litig., 271 F.R.D. 221, 229 (D. Kan. 2010) (citing Stricklin, 594 F.3d at 1198–99).
Here, there are several different pieces of marketing materials on which plaintiffs rely to support their
claims, and those other marketing materials contain some of the same representations the website
video contains. That the named plaintiffs did not view the website video does not render their claims
atypical given that defendants also made the alleged website misrepresentations in other marketing
materials. The named plaintiffs’ legal and remedial theories are the same as the putative class
members, and the substance of the representations about which plaintiffs complain (income and
mileage) are the same, notwithstanding from where the representations came. The court believes that
plaintiffs’ KCPA claims are typical of the class.
With regard to plaintiffs’ claim that they were forced to pay an unlawful satellite
communications fee, defendants offer no argument that the named plaintiffs’ claim is atypical. Each
independent contractor executed the same form ICA, containing the same provision at issue, and there
is nothing to suggest that the named plaintiffs’ claim is not typical. The court finds that typicality is
satisfied.

-6-

4. Adequacy of Representation
A named plaintiff must show that he or she will fairly and adequately protect the interests of
the class. Fed. R. Civ. P. 23(a)(4). To satisfy this requirement, the named plaintiffs must be class
members and show that (1) their interests do not conflict with those of the class members and (2) that
they will be able to prosecute the action vigorously through qualified counsel. Rutter & Wilbanks
Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th Cir. 2002).
In this case, there is no evidence that the named plaintiffs have any potential conflict with other
members of the class, and defendants do not argue otherwise. Moreover, defendants do not dispute
that plaintiffs’ counsel is experienced and able to manage class action litigation. The court finds that
the named plaintiffs will adequately represent the class.
C. Rule 23(b)(3) Requirements
In addition to meeting the requirements of Rule 23(a), plaintiffs must satisfy the requirements
of one of three qualifying tests under Rule 23(b) to maintain a class action. Here, plaintiffs seek to
certify the class under Rule 23(b)(3),1 which provides that a class action may be maintained if
“questions of law or fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The Rule lists four factors
pertinent to finding predominance and superiority: (A) the class members’ interests in individually
controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely
difficulties in managing a class action. Id. at 23(b)(3)(A)–(D).

1

Although plaintiffs requested injunctive relief in their Class Action Complaint, plaintiffs did not move to certify a class
pursuant to Rule 23(b)(2).

-7-

“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
623 (1997). Predominance requires more than a common claim; issues “common to the class must
predominate over individual issues.” Garcia v. Tyson Foods, Inc., 255 F.R.D. 678, 690 (D. Kan. 2009)
(quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008)). “The nature of
the evidence that will suffice to resolve a question determines whether the question is common or
individual.” In re Urethane Antitrust Litig., 251 F.R.D. 629, 633–34 (D. Kan. 2008) (quoting Blades v.
Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)). If the proposed class members will need to present
evidence that varies from member to member in order to make out a prima facie case, then it is an
individual question. Garcia, 255 F.R.D. at 690 (citing Blades, 400 F.3d at 566; Hydrogen Peroxide,
552 F.3d at 311). However, if the same evidence will suffice for each member to make out a prima
facie case, then it is a common question. See id.
1. Counts I and II: KCPA Claims
Plaintiffs have alleged that defendants violated the KCPA by making false representations about
the amount of compensation plaintiffs would make as independent contractors. The representations
plaintiffs contend are false are that defendants’ independent contractors earn an average of over
$138,000 per year, that owner-operators earn between $100,000 and $200,000 per year, and that
defendants’ drivers average between 2,500 and 3,000 miles per week.
To establish that plaintiffs and class members did not make the money they were promised,
plaintiffs point to the amount of money earned by named plaintiff Charles Schreckenbach during the
time he was an independent contractor. Plaintiffs contend that Schreckenbach repeatedly drove more
than 1,000 miles per pay period, but “aside from occasional modest advances, [he] not only received
no pay but was charged money for his effort.” (Doc. 69 at 7.) According to plaintiffs, Schreckenbach

-8-

ultimately “drove almost 45,000 miles for Defendants in four months but made less than $5,000.”
(Doc. 1 ¶ 67.)
As evidence, plaintiffs attach as exhibits to their motion Schreckenbach’s “settlement sheets,”
which are weekly statements TransAm Trucking sends to its contractors setting forth that contractor’s
revenue for the previous week, along with any advances and deductions. (Docs. 69–18 through 69–
23.) Deductions on a settlement sheet could include the cost of various insurance products,
reimbursement for cash advances to the contractor, or deposits by the contractor to an optional
maintenance savings account. The entries included in the settlement sheets are not uniform from
contractor to contractor because each drives a different number of miles and has different categories
and amounts of deductions. Regarding plaintiff Anthony Gillespie, plaintiffs do not provide any
settlement sheets but allege that he drove almost 31,000 miles in approximately three months but made
less than $4,200. (Id. ¶ 68.) Plaintiffs do not allege in their Class Action Complaint or the instant
motion the amount plaintiff Candace Fox earned, nor do they provide any settlement sheets for her.
Defendants respond, in part, by providing each of the named plaintiffs’ gross income for the time
period they contracted with defendants, and annualizing that gross income. According to defendants,
the named plaintiffs earned the following:

Plaintiff
Fox
Gillespie
Schreckenbach

Total
Days
113
269
163

Total Days
Off
32
60
22

Total
Miles
35,225
92,980
56,189

Gross Pay
$43,338.26
$121,581.93
$71,456.03

Annualized
Gross Income
$139,986
$164,972
$160,009

(Doc. 74–10 at 2–4.) Defendants argue that the representations they made were about gross income,
not net income, and that each of the named plaintiffs did in fact take home a gross pay that met, or
exceeded, the amount set forth in their representations. Plaintiffs, on the other hand, assert that

-9-

defendants’ statements about income regarded net income, not gross. In any event, it matters not for
these purposes, because whether defendants can be found liable under the KCPA requires
individualized inquiries, rendering class certification improper. 2
Defendants argue, correctly, that the issue of damages would require individualized inquiries.3
The court is mindful that “[t]he possibility that individual issues may predominate the issue of
damages ... does not defeat class certification by making [the liability] aspect of the case
unmanageable.” In re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D. 652, 674–75 (D.
Kan. 2013) (quoting In re Urethane Antitrust Litig., 251 F.R.D. at 633, 639). The court also is aware
that, to the extent ascertaining damages is unmanageable, the court could bifurcate liability and
damages, at least where injunctive relief also is sought. In re Motor Fuel Temperature Sales Practices
Litig., 271 F.R.D. at 238 (“Under these circumstances, the Court finds it appropriate to bifurcate the
damage portion of plaintiffs’ claims and certify a class under Rule 23(b)(2) with regard to the liability
and injunctive aspects of plaintiffs’ [KCPA] claims.”). However, before discussing damages, the court
must look to the issue of proving liability.
Plaintiffs’ claim under the KCPA is that defendants made representations that plaintiffs would
earn a certain income but that, during the time plaintiffs were independent contractors, they did not
earn that promised income. To prevail on their KCPA claims, plaintiffs must prove that defendants’
income- and mileage-related representations were false. Unruh v. Purina Mills, LLC, 221 P.3d 1130,
1144 (Kan. 2009). The only way to prove that the representations were false is to establish that each
plaintiff did not earn the promised income, and to do that, a court or jury would have to determine
what each independent contractor actually earned.

2

The court renders no opinion at this juncture as to whether defendants’ income-related statements regarded gross or net
income.
3
Defendants also argue that what advertising material each class member viewed, and how that may have impacted his or
her decision making, is an individual inquiry.

-10-

Whether plaintiffs made the expected $138,000 per year can only be established by looking to
each independent contractor’s earnings. If a contractor earned the promised amount, then defendants
did not violate the KCPA with respect to that contractor. In other words, for independent contractors
who earned less than the promised amount, defendants could be liable under the KCPA. However, for
those contractors who earned what they were promised, defendants cannot be liable under the KCPA.
Determining liability under the KCPA in these circumstances requires individual proof of what each
contractor actually made.
Indeed, not only would a finder of fact have to look to each class member’s individual income to
prove liability, that fact finder also would have to consider the wide array of factors that influence each
contractor’s net income. As defendants point out, contractors make a myriad of choices that impact
how many miles they drive and, as a result, how much money they make, including (1) increasing their
rate per mile through seniority, by becoming a driver coach (an increase of five cents per mile), or by
taking quarterly safety classes; (2) taking themselves out of service for extended periods; (3) declining
loads; (4) the use of speed governors; (5) efficient route planning; and (6) the number of trucks they
have in operation simultaneously. (Doc. 74 at 31.) Independent contractors also make many decisions
related to expenses, including (1) whether to utilize fuel optimization software; (2) what truck to lease
and for how long; (3) where to purchase maintenance and repair services; (4) whether to use the
maintenance savings account, and to what extent; (5) where to purchase insurance; and (6) whether to
hire employees to provide driving services and what to pay those employees. (Id.) If plaintiffs are
complaining about their net take-home pay, which they are, then these individual factors must be
considered.
Moreover, the court points out that plaintiffs and defendants provide differing information with
respect to how long the named plaintiffs contracted with defendants and how many miles they drove.

-11-

As previously noted, plaintiffs did not provide this information for plaintiff Fox. However, while
plaintiffs allege Gillespie drove 31,000 in three months, defendants contend he was a contractor for
almost nine months (269 days) and drove 92,980 miles. Similarly, while plaintiffs allege
Schreckenbach drove 45,000 in four months, defendants contend he was a contractor for over five
months (163 days) and drove 56,189 miles. These factual differences of opinion further highlight the
individualized nature of determining each contractor’s income, which is required to find liability under
the KCPA,
In Knight v. Mill-Tel, Inc., the plaintiff employees claimed that the defendant wrongfully
withheld or deducted earned wages in violation of the Kansas Wage Payment Act (“KWPA”). No. 111143-EFM, 2013 WL 3895341, at *1 (D. Kan. July 29, 2013). The plaintiffs in Knight made no KCPA
claim. The Knight court found common questions predominated because “all class members will point
to deductions under a single compensation and deduction policy.” Id. at *7. Plaintiffs in this case
make a similar argument, that “plaintiffs’ ICAs and ELAs uniformly establish the compensation
framework necessary to measure damages.” (Doc. 69 at 25.) However, plaintiffs’ reasoning is
ultimately flawed, as Knight is distinguishable from this case.
Here, plaintiffs are not claiming in Counts I and II that defendants’ compensation and deduction
policy is inherently unlawful; rather, plaintiffs claim that, after they began contracting with defendants,
plaintiffs discovered that defendants had misrepresented the amount of income they would actually
take home. In Knight, the court could examine the defendant’s compensation policy and summarily
determine whether it violated the KWPA; here, the court cannot look to the ICAs and ELAs alone to
determine whether defendants violated the KCPA. Rather, whether defendants lied to plaintiffs about
net income depends on each plaintiff’s actual net income, which in turn is affected by the host of

-12-

factors detailed above. Individual inquiries are necessary to establish whether defendants
misrepresented how much money independent contractors would earn.
Furthermore, given the amounts of money to which plaintiffs claim they are entitled, it can be
reasonably anticipated that the individual claims will involve substantial amounts of money. As such,
these plaintiffs have incentive to bring these claims individually. Class treatment is not a superior
method to resolve these disputes. See In re Universal Serv. Fund Tel. Billing Practices Litig., 219
F.R.D. 661, 679 (D. Kan. 2004) (“It can reasonably be anticipated that many of the individual claims
will involve relatively insubstantial amounts of money such that a class action is perhaps the only
feasible way for plaintiffs to pursue those claims.”).
In light of the individual inquiries presented by plaintiffs’ KCPA claims, the court finds that class
certification of Counts I and II is not appropriate. Plaintiffs have failed to show that common
questions of law or fact predominate over individual questions.
2. Count III: Satellite Communications Fee
The Federal Motor Carrier Safety Administration’s truth-in-leasing law regulates truck leases.
Lease and Interchange of Vehicles, 49 C.F.R. § 376. In Count III, plaintiffs allege that defendants
violated 49 C.F.R. § 376.12(i) by requiring them to pay a satellite communications system usage fee in
the amount of fifteen dollars each week. See id. § 376.12(i) (“The lease shall specify that the lessor is
not required to purchase or rent any products, equipment, or services from the authorized carrier as a
condition of entering into the lease arrangement.”). Defendants explain that TransAm Trucking must
pay a service provider for its satellite communications system, and it charges back the cost of that to its
drivers. Defendants argue that this type of chargeback is specifically authorized by federal regulations,
which permit items to “be initially paid for by the authorized carrier, but ultimately deducted from the
lessor’s compensation at the time of payment or settlement.” 49 C.F.R. § 376.12(h).

-13-

The satellite fee provision at issue is contained in the ICE that every independent contractor
signs with TransAm Trucking, and the fifteen-dollar fee amount does not vary from contractor to
contractor. As such, there is no individualized inquiry required to determine whether TransAm
Trucking is liable under 49 C.F.R. § 376.12(i) for charging this weekly fee. Either the fee is legal, or it
is not. The circumstances are the same for all putative class members—each was charged the satellite
communications fee pursuant to the terms of the form ICE, and a determination of whether the fee in
fact violates truth-in-leasing regulations does not require individual inquiries. Similar to Knight, the
legal and factual questions related to whether this fee violates federal regulations require common
proof and predominate over questions affecting individual members. See Knight, 2013 WL 3895341 at
*7.
Plaintiffs also have satisfied the Rule 23(b) requirement of superiority with respect to this
claim. Where individual claims are similar, a class action may be superior to discrete actions that
could be “grossly inefficient, costly, and time consuming because the parties, witnesses, and courts
would be forced to endure unnecessarily duplicative litigation.” Bennett v. Sprint Nextel Corp., No.
09-CV-2122-EFM-KMH, 2014 WL 1260111, at *11 (D. Kan. Mar. 27, 2014) (quoting Universal Serv.
Fund Tel. Billing Practices Litig., 219 F.R.D. at 679). Because plaintiffs’ claims are substantially
similar and common issues will predominate, the most feasible way for these plaintiffs to pursue their
claims is by way of class action, thereby avoiding unnecessary and duplicative litigation. Accordingly,
the court finds that a single class action is a preferable and superior method to resolve plaintiffs’ claims
that they were unlawfully charged a weekly satellite communications fee.
D. Class Definition
An order certifying a class action must define the class. Fed. R. Civ. P. 23(c)(1)(B). The class
definition is critically important because it identifies the persons (1) entitled to relief, (2) bound by a

-14-

final judgment, and (3) entitled under Rule 23(c)(2) to the best notice practicable in a Rule 23(b)(3)
action. In re Motor Fuel Temperature Sales Practices Litig., 279 F.R.D. 598, 604 (D. Kan. 2012)
(citing Manual for Complex Litigation § 21.222 (4th ed. 2005); Fed. R. Civ. P. 23(c)(1)(B)). The
definition must be precise, objective and presently ascertainable. In re Urethane Antitrust Litig., 237
F.R.D. 440, 444–45 (D. Kan. 2006).
Given the court’s ruling to not certify plaintiffs’ KCPA claims (Counts I and II) and to certify
plaintiffs’ truth-in-leasing claim (Count III), the court redefines the class as follows:
All persons, including entities, who operated under an Independent Contractor
Agreement that included a satellite communications system usage fee with TransAm
Trucking, Inc. between November 2, 2009, through the present.
E. Appointment of Class Counsel
Pursuant to Rule 23(c)(1)(B), an order certifying a class must appoint class counsel under Rule
23(g). In appointing class counsel, the court must consider (1) the work counsel has done in
identifying or investigating potential claims in the action; (2) counsel’s experience in handling class
actions, other complex litigation, and the types of claims asserted in the action; (3) counsel’s
knowledge of the applicable law; and (4) the resources that counsel will commit to representing the
class. Fed. R. Civ. P. 23(g)(1)(A)(i)–(iv).
Plaintiffs are currently represented by Richard F. Lombardo, Gregory Forney, Anne Smith, and
Daniel Runion of the law firm of Shaffer Lombardo Shurin, P.C., and Gregory Leyh of Gregory Leyh,
P.C. Defendants raised no objection to the appointment of plaintiffs’ attorneys as class counsel. After
reviewing the record, the court is satisfied that plaintiffs’ attorneys meet the criteria of Rule 23(g) and
will adequately represent the interests of the class as counsel. Plaintiffs’ counsel has significant
experience in managing class and complex litigation. Accordingly, the court will appoint plaintiffs’
attorneys as co-lead counsel for this class action.

-15-

IT IS THEREFORE ORDERED that plaintiffs’ Motion for Class Certification (Doc. 68) is
granted as to Count III and denied as to Counts I and II.
IT IS FURTHER ORDERED that the court certifies a class under Federal Rule of Civil
Procedure 23(b)(3) of the following:
All persons, including entities, who operated under an Independent Contractor
Agreement that included a satellite communications system usage fee with TransAm
Trucking, Inc. between November 2, 2009, through the present.
IT IS FURTHER ORDERED that plaintiffs Candace Fox, Anthony Gillespie, and Charles
Schreckenbach are designated as class representatives. Shaffer Lombardo Shurin, P.C., and Gregory
Leyh, P.C. are designated as class counsel.
IT IS SO ORDERED.
Dated this 11th day of June 2014, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

-16-