DaSilva et al v. Border Transfer of MA, Inc.
Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. Plaintiffs motion for class certification (Docket No. 73 ) is ALLOWED. Pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3), the Court certifies the following class for liability:All individuals who 1) entered into a Contract Carrier Agreement (or similar agreement) directly or through a business entity; 2) personally provided delivery services for Border Transfer on a full-time basis in Massachusetts (at least 40 hours per week ); and 3) who were classified as independent contractors, at any time since June 23, 2013.The Court appoints Marcos DaSilva and Matteus Ferreira as class representatives, and Lichten & Liss-Riordan, P.C. as class counsel.(Geraldino-Karasek, Clarilde)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARCOS DaSILVA and MATTEUS
FERREIRA, on behalf of themselves )
and all others similarly situated, )
BORDER TRANSFER OF MA, INC.,
and PATRICK McCLUSKEY,
MEMORANDUM AND ORDER
November 9, 2017
Plaintiffs DaSilva and Ferreira used to work as delivery
drivers for Defendant Border Transfer. They claim that Border
Transfer improperly treated them as independent contractors when
they were, in fact, employees, and that, as a result, Border
Transfer unlawfully deducted certain business expenses from
their pay under the Massachusetts Wage Act. Plaintiffs now seek
certification of a class of similarly situated current and
former drivers under Fed. R. Civ. P. 23. For the reasons
discussed below, Plaintiffs have met the Rule 23 requirements.
Thus, after hearing, the Court ALLOWS the motion for class
certification (Docket No. 73).
Border Transfer is a broker registered with the Federal
Motor Carrier Safety Administration (“FMCSA”). Docket No. 9-2 at
1; see also 49 U.S.C. § 13102(2). As a broker, Border Transfer
arranges home delivery services for large retail stores such as
Border Transfer itself does not deliver goods. Instead,
Border Transfer contracts with FMCSA-authorized motor carriers
to perform the home deliveries. Border Transfer’s contracts with
each motor carrier, which Border Transfer calls Contract Carrier
Agreements (“CCAs”), are all substantially the same. Docket No.
74-3 at 11 (“Matos Dep.” at 33:17–18). Each of the CCAs states
that the motor carrier is considered to be an independent
contractor of Border Transfer. E.g., Docket No. 74-4 at 5
(“DaSilva CCA” ¶ 8).
Border Transfer only enters into CCAs with business
entities. Docket Nos. 74–7 at 7, 74-8 at 2 (Border Transfer’s
“Carrier File Requirements,” which require motor carriers
signing CCAs to provide Border Transfer with a “copy of LLC or
incorporation”). Drivers who wish to deliver for Border Transfer
but who do not already have a corporate entity must create one;
in at least one instance, Border Transfer helped a driver form a
corporate entity and complete the steps to comply with federal
regulations covering motor carriers. Docket No. 74-9 at 7–8.
In some cases, Border Transfer contracts with motor carrier
companies that consist solely of a single driver who personally
performs the delivery services. That was the case with named
plaintiff Marcos DaSilva, who entered into a CCA with Border
Transfer through Alpha Logistics Trucking, LLC (“Alpha
Logistics”). Docket No. 74-4 at 9. DaSilva applied for a job as
a delivery driver with Border Transfer. Docket No. 74-11 ¶ 4. A
Border Transfer manager told him that he needed to form a
company to sign a contract with Border Transfer, and the manager
helped him fill out the necessary forms to create Alpha
Logistics. Docket No. 74-11 ¶ 4. Alpha Logistics only ever
operated one truck, and DaSilva was the sole driver for that
truck. Docket No. 74-9 at 18.
In other cases, Border Transfer contracts with motor
carrier companies that employ multiple drivers. That was the
case with Matteus Ferreira, the other named plaintiff. Matteus
Ferreira was the joint owner of Father & Son Transporting LLC
with his father, Marcos Ferreira. Docket No. 74-10 at 9. Father
& Son Transporting LLC was formed before the father, Marcos
Ferreira, signed a CCA with Border Transfer. Docket No. 9-2 at
12; Docket No. 74-10 at 7. Father & Son Transporting LLC began
by operating one truck for Border Transfer but eventually
operated three trucks for Border Transfer. Docket No. 74-10 at
12–13. Those three trucks were operated by Matteus Ferreira,
Marcos Ferreira, and several other persons hired by Father & Son
Transporting LLC. Docket No. 74-10 at 13.
The motor carriers under contract with Border Transfer
perform their deliveries from Sears’ Westwood, Massachusetts
facility. The CCAs require that all drivers who have an assigned
route on a particular day attend a morning “stand-up” meeting at
the facility. Docket No. 9-2 at 13; Docket No. 74-3 at 13. At
the meeting, drivers might receive instructions on new
installation processes, be informed of recurrent customer
complaints, or receive training on how to communicate with
customers. Docket No. 74-3 at 13, 29. The CCAs require drivers
to wear a uniform each day, and drivers are not allowed to leave
the facility if they do not comply with that mandate. Docket No.
9-2 at 17–18; Docket No. 74-3 at 14.
Delivery procedures are spelled out in the CCAs as well.
Docket No. 9-2 at 14. Among the requirements is that the drivers
“must run all delivery routes exactly as specified in the
manifest.” Docket No. 9-2 at 14. Those manifests are provided to
drivers by Border Transfer and contain the order of deliveries
and time windows for each delivery. Docket No. 74-3 at 22;
Docket No. 74-14. Drivers must log deliveries as they happen by
recording them on a smartphone app. Docket No. 74-3 at 17.
The plaintiffs filed the proposed class action complaint in
this case on June 23, 2016. Docket No. 1. The original complaint
named Border Transfer as the sole defendant and contained two
counts: violation of the Massachusetts Wage Act and unjust
Border Transfer moved to dismiss, arguing that the Wage Act
claim was preempted by the Federal Administration Authorization
Act of 1994, 49 U.S.C. § 14501(c). Docket No. 8. On January 5,
2017, the Court denied the motion as to the Wage Act claim but
dismissed the unjust enrichment claim. Docket No. 49.
The operative complaint is the amended complaint, which was
filed on May 1, 2017. Docket No. 65. The amended complaint names
the President of Border Transfer, Patrick McCluskey, as an
additional defendant and contains a single count for violation
of the Wage Act.1 In substance, the plaintiffs allege that their
The defendants argue that a class should not be certified
against Defendant McCluskey because none of the plaintiffs’
arguments related to him. However, the Massachusetts Wage Act
creates liability for him as president of Border Transfer. Mass.
Gen. Laws ch. 149, § 148B(d) (“The president and treasurer of a
corporation and any officers or agents having the management of
such corporation shall be deemed to be the employers of the
employees of the corporation within the meaning of this
misclassification resulted in unlawful deductions from their
pay, including damage claims and uniforms, as well as unlawful
requirements that they pay for workers’ compensation coverage
and cargo insurance.
Now pending before the Court is the plaintiffs’ motion for
class certification, filed on June 19, 2017. Docket No. 73. The
proposed class is defined as follows:
All individuals who 1) entered into a
Contract Carrier Agreement (or similar
agreement) directly or through a business
entity; 2) personally provided delivery
services for Border Transfer on a full-time
basis in Massachusetts; and 3) who were
classified as independent contractors, at
any time since June 23, 2013.
Docket No. 73 at 1. This class definition excludes so-called
secondary drivers, who provided delivery services for Border
Transfer under contracts between Border Transfer and other
persons, and so-called absentee contractors, who held contracts
with Border Transfer but did not drive a truck themselves.
Docket No. 74 at 4 n.6, 23.
Massachusetts Wage Law
The Massachusetts Wage Act requires prompt and full payment
of wages due. It provides that “in no event shall wages remain
unpaid by an employer for more than six days from the
termination of the pay period in which such wages were earned by
the employee.” Mass. Gen. Laws ch. 149, § 148. The Massachusetts
Supreme Judicial Court has interpreted the statute as banning
improper wage deductions, even where the employee has given his
or her assent. Camara v. Attorney Gen., 941 N.E.2d 1118, 1121–22
The scope of covered employees for the Massachusetts Wage
Act is governed by the Massachusetts Independent Contractor
[A]n individual performing any service,
except as authorized under this chapter,
shall be considered to be an employee under
those chapters unless:
(1) the individual is free from control
and direction in connection with the
performance of the service, both under
his contract for the performance of
service and in fact; and
(2) the service is performed outside
the usual course of the business of the
(3) the individual is customarily
engaged in an independently established
trade, occupation, profession or
business of the same nature as that
involved in the service performed.
Mass. Gen. Laws ch. 149, § 148B(a). Under the statute, a worker
is an employee and not an independent contractor if any one of
the three prongs is not met. In other words, “to rebut the
presumption of employment, an employer must satisfy all three of
these prongs.” Chambers v. RDI Logistics, Inc., 65 N.E.3d 1, 8
(Mass. 2016). The three prongs are referred to as Prongs A, B,
and C (or, occasionally, Prongs 1, 2, and 3) in the case law.
The First Circuit held last year that Prong B is preempted
by federal law as applied to motor carriers such as Border
Transfer. Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d
429, 442 (1st Cir. 2016). As such, for the defendants to defeat
the presumption of employment, they must prevail on both Prongs
A and C. The plaintiffs can prevail by showing that either Prong
A or C is not satisfied.
Federal Rule of Civil Procedure 23(a) imposes four
“threshold requirements” applicable to all class actions:
(1) the class is so numerous that joinder of
all members is impracticable;
(2) there are questions of law or fact
common to the class;
(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly
and adequately protect the interests of the
Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 613 (1997).
In addition to the requirements of Rule 23(a), the moving
party must establish the elements of Rule 23(b)(1), (2), or (3).
Amchem, 521 U.S. at 614. Plaintiffs seek certification under
Rule 23(b)(3). Rule 23(b)(3) permits a class action when common
questions “predominate over any questions affecting only
individual members,” and class resolution is “superior to other
available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). Matters “pertinent” to
evaluating predominance and superiority include:
(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
Fed. R. Civ. P. 23(b)(3).
The plaintiffs have the burden of an initial showing that
the proposed class satisfies the Rule 23 requirements. In re
Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015). If
factual premises are disputed at the class certification stage,
the Court may “‘probe behind the pleadings’ to ‘formulate some
prediction as to how specific issues will play out’ in order to
assess whether the proposed class meets the legal requirements
for certification.” In re New Motor Vehicles Canadian Exp.
Antitrust Litig., 522 F.3d 6, 17 (1st Cir. 2008) (quoting Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982); Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)). A
class should be certified only if “the trial court is satisfied,
after a rigorous analysis,” that the Rule 23 requirements have
been met. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
Numerosity is a “low threshold.” Garcia-Rubiera v.
Calderon, 570 F.3d 443, 460 (1st Cir. 2009). “No minimum number
of plaintiffs is required to maintain a suit as a class action,
but generally if the named plaintiff demonstrates that the
potential number of plaintiffs exceeds 40, the first prong of
Rule 23(a) has been met.” Id. (quoting Stewart v. Abraham, 275
F.3d 220, 226–27 (3d Cir. 2001)).
The plaintiffs claim that the numerosity requirement is met
because the defendants utilized fifty-nine contractors from June
1, 2013 to April 8, 2017. Docket No. 74-6 at 2. The defendants
do not appear to contest that the plaintiffs meet the numerosity
requirement. However, it bears mentioning that not all fiftynine of Border Transfer’s contractors during the time period
fall within the plaintiffs’ class definition. The plaintiffs’
class definition is narrow: drivers who, in the relevant time
period, “personally provided delivery services for Border
Transfer on a full-time basis in Massachusetts.” The record does
not make it clear how many of the fifty-nine contractors
utilized by Border Transfer during that time period personally
delivered for Border Transfer on a full-time basis -- but it is
certainly not all fifty-nine. The defendants have put evidence
in the record that at least three contractors, Humberto Chantre,
Jose Pinto, and Naila Brito, did not personally drive full-time
for Border Transfer and would be excluded from the class
definition. Docket Nos. 81-3 at 2; 81-6 at 2, 4; 81-7 at 1.
Rogerio Matos, a Border Transfer assistant manager, remembered
two additional contractors who did not drive their own trucks.
Docket No. 74-3 at 4–5, 9. Thus, at least five of the fifty-nine
contractors would be excluded from the proposed class
definition. Regardless, it is likely that more than forty of
Border Transfer’s contractors fall within the class definition.
Commonality requires the identification of an issue that is
by its nature “capable of classwide resolution -- which means
that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one
stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). Plaintiffs must raise not only common questions, but
also common answers that help resolve the litigation. Id. Even a
single common issue may suffice. Id. at 359; see also Parsons v.
Ryan, 754 F.3d 657, 675 (9th Cir. 2014); Crowe v. Examworks,
Inc., 136 F. Supp. 3d 16, 47 (D. Mass. 2015).
Choice of Law
Defendants argue that individualized evidence is required
to determine whether Massachusetts law applies to all putative
class members’ claims.
If different state laws apply to different members of a
putative class and there are relevant differences between those
state laws, commonality may be defeated.2 See Gariety v. Grant
Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004) (“The
plaintiffs have the burden of showing that common questions of
law predominate, and they cannot meet this burden when the
various laws have not been identified and compared.”);
Grandalski v. Quest Diagnostics Inc., 767 F.3d 175, 180 (3d Cir.
The first step is to determine whether there is an actual
conflict between the laws of the possibly governing
jurisdictions. “It is a well-established -- and prudential -principle that when the result in a case will not be affected by
The choice-of-law issue is potentially also relevant to
other Rule 23(a) and 23(b)(3) requirements. That different
putative class members’ claims are governed by different state
laws may be a mere manageability problem, considered as just one
factor of the predominance and superiority inquiries. Fed. R.
Civ. P. 23(b)(3)(D). If varying state laws can be grouped
according to common elements, division of the class into
subclasses may alleviate manageability concerns. In re Warfarin
Sodium Antitrust Litig., 391 F.3d 516, 529–30 (3d Cir. 2004).
However, “there may be situations where variations in state laws
are so significant so as to defeat commonality.” Id. at 529.
the choice of law, an inquiring court, in its discretion, may
simply bypass the choice.” Lexington Ins. Co. v. Gen. Acc. Ins.
Co. of Am., 338 F.3d 42, 46 (1st Cir. 2003). Beyond
Massachusetts, the other potentially relevant jurisdictions are
Rhode Island and Connecticut. Docket No. 80 at 15; see also
Docket No. 81-16 at 13. The defendants point out, correctly,
that there are potentially material differences in the wage laws
of Massachusetts, Rhode Island, and Connecticut.3 For example,
while each state considers the level of control as a part of its
independent contractor test, the control test in Massachusetts
is different from that of Rhode Island and Connecticut. As
described in the following section on commonality and Prong A,
the control test in the Massachusetts Wage Act is conjunctive
and requires a company using an independent contractor to show
that the contractor was free from its control both as a matter
of contract and as a matter of fact. Both the Rhode Island and
Connecticut independent contractor tests focus solely on the
existence of a contractual right to control rather than the
exercise of actual control. Absi v. State Dep’t of Admin., 785
At the hearing, the defendants raised for the first time
that the CCAs contain a choice-of-law clause pointing to
Tennessee law. Because the defendants failed to raise that issue
prior to the hearing, that argument is waived, The Court need
not determine whether a Massachusetts court would refuse, as
against public policy, to apply Tennessee law to the plaintiffs’
A.2d 554, 556 (R.I. 2001); Tianti, ex rel. Gluck v. William
Raveis Real Estate, Inc., 651 A.2d 1286, 1290 (Conn. 1995).
Having found at least one potentially relevant difference
among the state laws, the Court must undertake a choice-of-law
analysis. A federal court sitting in diversity, as in this case,
must look to the forum state’s choice-of-law rules to determine
the controlling substantive law. See Klaxon Co. v. Stentor Elec.
Mfg. Co. Inc., 313 U.S. 487, 496 (1941). The relevant inquiry is
whether, when Massachusetts choice-of-law rules are applied to
each of the members of the putative class, the result would be
the application of the Massachusetts Wage Act.
“Massachusetts state courts apply ‘a functional choice of
law approach that responds to the interests of the parties, the
States involved, and the interstate system as a whole.’” Reicher
v. Berkshire Life Ins. Co. of Am., 360 F.3d 1, 5 (1st Cir. 2004)
(quoting Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662,
668 (Mass. 1985)). The approach, which is guided by the
Restatement (Second) of Conflict of Laws, is a multifactor
analysis that chooses the “State with the greatest ‘interest’ in
the particular issue.” Bushkin, 473 N.E.2d at 668–69.
The defendants point out that at least seventeen of the persons
that fall within the proposed class definition listed a state
other than Massachusetts as the location of their business.
Docket No. 81-18 at 1–2. DaSilva delivered to Rhode Island and
Connecticut “frequently,” and he averaged nine to ten hours a
day delivering to Rhode Island and Connecticut. Docket No. 81-16
at 13. Ferreira estimated that he delivered half of his loads
outside of Massachusetts. Docket No. 81-15 at 25.
The plaintiffs respond by pointing out that all delivery
drivers report to Border Transfer’s Westwood facility every
morning to receive the products to be delivered and the routes
that they would take. Docket No. 81-16 at 12.
The choice-of-law question can be distilled to: whether the
Massachusetts Wage Act would apply to a driver who signed a
contract with Border Transfer (a Michigan corporation
headquartered in Tennessee that operates in Massachusetts)
through a Rhode Island corporate entity to deliver goods from a
Massachusetts facility to a mix of Massachusetts and out-ofMassachusetts customers. The plaintiffs rely on Dow v. Casale,
989 N.E.2d 909 (Mass. App. Ct. 2013), in which Massachusetts
wage law was applied to a Florida resident who worked as a
mobile salesperson that traveled throughout the country on
behalf of a Massachusetts-based company but intermittently
worked in the company’s Massachusetts office. Id. at 914. The
Massachusetts Appeals Court’s reasoning was that “given the
particular nature of [his] work, his employment with [the
company] had no substantial relationship to any place but
Massachusetts.” Id. Similarly, the Court finds that because the
proposed class members’ relationship with Border Transfer
centered on the Westwood facility, where they met every morning
to get instructions, Massachusetts wage law applies even to
drivers from out of state who spent much of their time
delivering out of state. Thus, the Massachusetts Wage Act would
apply to all of the members of the putative class, and there is
no choice-of-law obstacle to certification.
Prong A: Control
As described above in the subsection on the statutory
framework, the plaintiffs need only prevail on either Prong A or
Prong C of the Massachusetts Wage Act. Prong A itself contains a
conjunctive test under which the plaintiffs need only prevail on
one branch. Under Prong A, an individual is an independent
contractor only if “the individual is free from control and
direction in connection with the performance of the service,
both under his contract for the performance of service and in
fact.” Mass. Gen. Laws ch. 149, § 148B(a)(1). Due to the
conjunctive nature of this test, a company asserting that a
worker is an independent contractor must show that the
individual was free from its control both as a matter of
contract and as a matter of fact.
The plaintiffs argue that because only a single common
issue is necessary to meet the commonality requirement of Rule
23(a), they satisfy the requirement by showing that either
contractual control or actual control can be adjudicated on a
Control as a Matter of Contract
The plaintiffs argue that whether an individual is free
from control under the terms of his or her contract can be
resolved through common evidence such as the uniform provisions
of the CCAs. The plaintiffs are correct. The defendants do not
appear to contest the plaintiffs’ characterization that the CCAs
contain standard terms for all of Border Transfer’s drivers.
Docket No. 74-3 at 11. Examining the standard terms to determine
the extent of Border Transfer’s contractual control is an
exercise that appears to lead to common answers. As such, the
Third Circuit decided that the extent of a company’s right to
control its workers could be resolved by examination of the
franchise agreement, policies manual, and training manual that
were common to the class. Williams v. Jani–King of Phila. Inc.,
837 F.3d 314, 321–22 (3d Cir. 2016).
The defendants’ argument in response seems to be that, for
various reasons, the contract does not contain as much right of
control as the plaintiffs claim. Docket No. 80 at 19. But that
is a merits question. The only question at this point is whether
the extent of Border Transfer’s contractual right of control
over its delivery drivers is determinable on the basis of common
evidence. The answer is yes.
Control as a Matter of Fact
The defendants argue that determining the extent of Border
Transfer’s actual control over its delivery drivers requires an
individualized factual inquiry. The plaintiffs respond that
evidence of common practices can establish common answers as to
control as a matter of fact.
As common evidence of actual control, the plaintiffs argue
that Border Transfer had a policy that required all of its
drivers to attend morning meetings to receive delivery
instructions, that all of the drivers were subject to a customer
rating system that could influence route assignment, that all
drivers were required to wear uniforms, and that Border Transfer
issued manifests to each driver containing a mandated order of
delivery and delivery timeframes.
The defendants’ response wades too often into the merits.
The defendants expend significant effort arguing that, as a
practical matter, Border Transfer’s control over its drivers was
less than the plaintiffs make it seem: that drivers’ amount of
communication with Border Transfer throughout a delivery day was
not so significant; that the morning meeting requirement was not
strictly enforced; that the customer rating system had little
impact on drivers’ routes; that drivers did not have to make
deliveries in the order listed in the manifest; and that
contractors could work when they wanted and that there were no
limitations on the amount of time they could take off. But the
question at this stage is whether the level of actual control
can be determined by common evidence on how Border Transfer
dealt with its drivers, or whether different putative class
members were treated differently. The defendants have put
forward some “happy camper” affidavits presenting that some
drivers have some flexibility, but this does not defeat
commonality or predominance.
The defendants argue that even if Massachusetts law applies
to all of the members of the putative class, and even if there
is common evidence regarding control under Prong A, commonality
does not exist because individual adjudication is necessary to
determine whether the Massachusetts Wage Act even applies to
each proposed class member. Border Transfer did not contract
with drivers directly but instead contracted with drivers
through the corporate entities owned by the drivers. The
Massachusetts Wage Act does not “expressly exclude individuals
who provide services through a corporation.” Chambers, 65 N.E.3d
at 14 (citing Advisory 2008/1, Attorney General’s Fair Labor and
Business Division on Mass. Gen. Laws ch. 149 § 148B) (available
at Docket No. 84-7). The Attorney General articulated factors
relevant to a determination of whether the “worker’s use of the
corporate form was at the worker’s behest or forced upon the
worker by an employer in order to misclassify him.” Id. These
nonexclusive factors include:
[Whether] the services of the alleged
independent contractor are not actually
available to entities beyond the contracting
entity, even if they purport to be so;
whether the business of the contracting
entity is no different than the services
performed by the alleged independent
contractor; or the alleged independent
contractor is only a business requested or
required to be so by the contracting entity.
Id. (quoting Advisory 2008/1). The defendants argue that these
fact-specific inquiries must be conducted on an individual basis
to determine whether the Massachusetts Wage Act applies.
The defendants point to the named plaintiff DaSilva, who
testified at his deposition that he formed “Alpha Logistics
Trucking, LLC” at the request of Border Transfer in October 2014
and that the company remained in business for six months. Docket
No. 81-16 at 6. However, the defendants claim that Alpha
Logistics Trucking’s business records show otherwise: that Alpha
Logistics Trucking operated well past that date transporting
products brokered by companies other than Border Transfer.
Defendants argue that the other named plaintiff, Ferreira,
presents different potential issues regarding application of the
Wage Act. Ferreira’s corporate entity (Father & Son Trucking)
existed two to three months prior to the CCA with Border
Transfer, and it employed multiple drivers to complete Border
Transfer’s jobs in a third truck Father & Son Trucking owned.
There is also evidence in the record of at least four other
contractors who formed corporations before contracting with
Border Transfer and for reasons other than Border Transfer’s
alleged requirement of incorporation. Docket No. 81-1 at 2 (Rosa
declaration: “Prior to [Border Transfer], Antonio Rosa
Transportation LLC provided delivery services to Spirit
Delivery.”); Docket No. 81-2 at 1 (Martins declaration: “I own
Martins Trucking LLC, a company I formed for tax reasons.”);
Docket No. 81-6 at 2 (Pinto declaration: “I formed my company in
2009” and began contracting with Border Transfer in 2011);
Docket No. 81-5 at 1 (Medina declaration: “I formed Medina
Trucking LLC because I wanted increased protection for my
company.”). For these drivers, defendants make a colorable
argument that incorporation is not a sham to permit
However, incorporation cannot be a shield to prevent
liability under the Wage Act. The plaintiffs point to evidence
in the record that Border Transfer required all drivers to form
corporations as a prerequisite to signing a contract. Docket No.
74-3 at 10–11; Docket No. 74-11 at 2; Docket No. 74-13 at 2.
Thus, regardless of whether a full-time driver formed a
corporation prior to his engagement with Border Transfer, the
class only involves full-time drivers for Border Transfer. Thus,
the analysis for Wage Act purposes is whether the individual
driver was an employee with Border Transfer.
Other courts in this District have similarly found that
individual questions of incorporation did not defeat commonality
or predominance for a class of drivers. See Martins v. 3PD,
Inc., No. CIV.A. 11-11313-DPW, 2013 WL 1320454, at *7, *9 (D.
Mass. Mar. 28, 2013) (“Martins I”) (allowing class certification
on section 148B misclassification claim despite named
plaintiff’s incorporation because “an individual can bring a
claim under Section 148B even if he has incorporated his
business and his putative employer’s formal relationship is with
the corporate entity[;]” therefore he “stands in the same
position as” other class members)4; see also Vargas v. Spirit
Delivery & Distribution Servs., Inc., 245 F. Supp. 3d 268, 287
(D. Mass. 2017) (“[T]he issue of when/if the drivers created
corporate entities and whether those corporate entities
continued to exist after the relationship with Spirit ended is
ultimately of minimal relevance to the proposed classes’[Wage
Act] claim.”); De Giovanni v. Jani-King Int’l, Inc., 262 F.R.D.
Although Judge Woodlock denied class certification on the
Wage Act claims in Martins I citing predominance concerns, on
reconsideration he certified the class’s Wage Act claim after
excluding “secondary drivers” from the class. Martins v. 3PD
Inc., No. CIV.A. 11-11313-DPW, 2014 WL 1271761, at *11 (D. Mass.
Mar. 27, 2014) (“Martins II”). “Secondary drivers” are excluded
from the plaintiffs’ proposed class in this case.
71, 86 (D. Mass. 2009) (certifying class of franchisees). These
cases found that when it comes to the merits of the
Massachusetts Wage Act inquiry into employee classification, the
common issue of control would predominate.
The defendant relies on two cases from this District for
the proposition that the individualized Chambers inquiry cannot
be avoided. See Anderson v. Homedeliveryamerica.com, Inc., No.
CIV.A. 11-10313-GAO, 2013 WL 6860745, at *2 (D. Mass. Dec. 30,
2013) (stating that in determining whether the Massachusetts
Wage Act applies to an individual who has incorporated his
business and contracted with an alleged employer through that
business, “[t]here is no convenient bright line to be used, and
each case must be determined on its own facts”); see also
Chebotnikov v. LimoLink, Inc., No. 14-13475-FDS, 2017 WL 2888713
at *7–8 (D. Mass. July 6, 2017). These cases do not support the
defendants’ proposition. In Anderson, the court granted summary
judgment for the plaintiffs, finding that they were employees
under section 148, because “[t]hey worked as individual truck
drivers performing full-time personal services exclusively for
HDA.” 2013 WL 6860745, at *2–*3. So too with the proposed class
in this case. Chebotnikov is distinguishable on its facts. In
that case, the defendant operated a mobile application, similar
to Uber, for limousine drivers to pick up passengers.
Chebotnikov, 2017 WL 2888713, at *1. The drivers were not
obligated to pick up the passengers referred to them by LimoLink
(although they might stop receiving referrals if they did), nor
were they prohibited from driving non-LimoLink customers while
under contract, nor did LimoLink set drivers’ routes. Id. at *2,
Prong C: Independently Established Business
Under Prong C, a worker is not an independent contractor
unless “the individual is customarily engaged in an
independently established trade, occupation, profession or
business of the same nature as that involved in the service
performed.” Mass. Gen. Laws ch. 149, § 148B(a)(3).
The defendants suggest that this prong requires
individualized evidence about each putative class member’s
history and custom of work for other brokers. Indeed, that is
what the statutory text would seem to require. But there is
Massachusetts case law suggesting that the statutory inquiry is
not into whether putative employees actually engaged in an
independent business, but whether they had the opportunity to do
so. In Athol Daily News v. Bd. of Review of the Div. of Emp’t
and Training, 786 N.E.2d 365 (Mass. 2003), the Supreme Judicial
Court (“SJC”) considered identical language from the third prong
of the independent contractor definition under the unemployment
compensation benefits statute, Mass. Gen. Laws ch. 151A, § 2.
The SJC wrote:
“The better approach to the evaluation
required by part (c) is to consider whether
the service in question could be viewed as
an independent trade or business because the
worker is capable of performing the service
to anyone wishing to avail themselves of the
services or, conversely, whether the nature
of the business compels the worker to depend
on a single employer for the continuation of
786 N.E.2d at 373. The SJC held that newspaper carriers were
customarily engaged in an independently established trade
because they were “free to deliver newspapers (or other
publications, such as advertising flyers) for anyone who wishes
to contract with them” and that “several of the carriers in fact
act as carriers for other publishers.” Id. at 374 (emphasis
added). In other words, the SJC has treated an analogous test as
an inquiry into whether a worker has the opportunity to engage
in an independently established business, not whether they did
in fact. This makes sense on a practical level, as the
defendants point out: a contrary statutory meaning would
implausibly require a business that wanted to engage with an
independent contractor to ensure that the contractor was also in
fact contracting with another business.
Whether contractors with Border Transfer had the
opportunity to engage in an independently established business
is, as the plaintiffs argue, susceptible to common proof. The
plaintiffs argue that Border Transfer assigned its drivers full-
time work four to six days a week, see Docket No. 74-3 at 11,
leaving drivers with minimal time, if any, to perform deliveries
for any other business as a practical matter. Moreover, the
plaintiffs argue that drivers could not work concurrently for
Border Transfer and another business because they were required
to be in uniform for Border Transfer, Docket No. 74-3 at 14, and
because “co-loading” of other merchandise alongside Sears
merchandise was prohibited, Docket No. 74-1 (SLS-BTMI Contract
at 8). The defendants respond that there were many examples of
contractors who also delivered for companies other than Border
Transfer and that co-loading was not actually prohibited.
Whatever the resolution of this dispute on the merits, the key
point at this stage is that this question appears susceptible to
resolution by common evidence about Border Transfer’s general
customs and policies. The defendants have put forth no evidence
that different putative class members -- at the individual
worker level -- had different opportunities to engage in an
independently established business.
Establishing Violation of the Wage Act
Although the class definition avoids the individualized
Chambers inquiry into applicability of the Wage Act, Plaintiffs
still must show that Border Transfer took deductions that were
improper under the Wage Act. The plaintiffs argue that Border
Transfer took the same types of deductions from each of its
contractors and that those deductions are outlined in the CCAs
and other Border Transfer documents. The defendants do not seem
to contest this point. The propriety of deductions under the
Wage Act can be resolved on common evidence.
Summing up Commonality
Commonality is met for a class of drivers who personally
drove for Border Transfer on a full-time basis.
Typicality requires that the named plaintiffs’ claims
“arise from the same event or practice or course of conduct
that gives rise to the claims of other class members, and . . .
are based on the same legal theory.” Garcia-Rubiera, 570 F.3d at
460 (alterations in original) (quoting In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)). “Under the Rule’s
permissive standards, representative claims are ‘typical’ if
they are reasonably coextensive with those of absent class
members; they need not be substantially identical.” Torres v.
Mercer Canyons Inc., 835 F.3d 1125, 1141 (9th Cir. 2016)
(quoting Parsons, 754 F.3d at 685). “Even relatively pronounced
factual differences will generally not preclude a finding of
typicality where there is a strong similarity of legal theories
or where the claim arises from the same practice or course of
conduct.” In re Nat’l Football League Players Concussion Injury
Litig., 821 F.3d 410, 428 (3d Cir. 2016) (quoting In re
Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148
F.3d 283, 311 (3d Cir. 1998)).
The plaintiffs argue that typicality is met because their
claims and the putative class members’ claims arose from the
same CCAs and class-wide treatment, and the plaintiffs and the
class members assert the same legal theory of Wage Act
The defendants respond that typicality is defeated for
several reasons. They point out that Ferreira did not sign the
CCA himself (his father did); his testimony about his company’s
operations is contradicted by others; his company existed before
it signed the CCA with Border Transfer; and his business grew to
operate three trucks for Border Transfer. They also point out
that DaSilva’s business only operated one truck, that his
business was formed when he signed the CCA with Border Transfer,
and that some of his testimony is contradicted by testimony of
others (thus casting doubt on his credibility).
None of these problems defeats typicality. DaSilva and
Ferreira’s experiences, although different in some ways from
each other’s, are reasonably coextensive with those of other
motor carriers who contracted with Border Transfer. All of the
motor carriers are pursuing the same Wage Act theory.
To meet the adequacy requirement, the “moving party must
show first that the interests of the representative party will
not conflict with the interests of any of the class members, and
second, that counsel chosen by the representative party is
qualified, experienced and able to vigorously conduct the
proposed litigation.” Lannan v. Levy & White, 186 F. Supp. 3d
77, 89 (D. Mass. 2016) (quoting Andrews v. Bechtel Power Corp.,
780 F.2d 124, 130 (1st Cir. 1985)).
Both prongs are met. There is no conflict because the named
plaintiffs and the putative class members share an interest in
recovering wages lost as a result of misclassification. There is
no conflict from the fact that some of the contractors are
content with the status quo, since any such contractor has the
right to opt out of the class. “The availability of this option
is an important factor in weighing the effect of a largely
hypothetical conflict on a class-certification decision.”
Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir. 2012);
see also Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 43
(1st Cir. 2003) (finding hypothetical conflict to not be a basis
for decertification where conflict could be solved by opt-out).
The plaintiffs’ attorneys are highly experienced in classaction employment litigation and specifically in Wage Act
misclassification claims. The defendants do not contest their
“The Rule 23(b)(3) predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant
adjudication by representation.” Amchem, 521 U.S. at 623. “While
‘the predominance criterion is far more demanding’ than the
commonality requirement, it presumes that individual issues will
exist.” Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 28 (D.
Mass. 2010) (quoting Amchem, 521 U.S. at 624). “The predominance
inquiry ‘asks whether the common, aggregation-enabling, issues
in the case are more prevalent or important than the non-common,
aggregation-defeating, individual issues.’ When ‘one or more of
the central issues in the action are common to the class and can
be said to predominate, the action may be considered proper
under Rule 23(b)(3) even though other important matters will
have to be tried separately, such as damages or some affirmative
defenses peculiar to some individual class members.’” Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting
2 W. Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2012);
7AA C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 1778 (3d ed. 2005)).
The plaintiffs must take the following steps to prevail:
(1) show that Massachusetts is the correct choice of law; (2)
show that while they signed CCAs with Border Transfer through
their corporate entities, they are still entitled to protection
as “individuals” under the Wage Act; (3) prove misclassification
by showing that one of the two control tests in Prong A is not
met or that the independently established business test in Prong
C is not met; (4) show that deductions were taken that were
unlawful for employees under the Wage Act; and (5) show a
measure of damages. Steps 1, 2, 3, and 4 in that chain appear to
be provable by common evidence which predominates over any
individualized issues identified by the defendants. Step 5 will
require individual inquiry into each class member’s alleged
deductions. The question is whether that inquiry defeats
The need for individual damage determinations in step 5
does not alone defeat predominance. See Vaquero v. Ashley
Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016)
(“Under Tyson Foods and our precedent, therefore, the rule is
clear: the need for individual damages calculations does not,
alone, defeat class certification.”); Garcia v. E.J. Amusements
of New Hampshire, Inc., 98 F. Supp. 3d 277, 291 (D. Mass. 2015)
(“Calculating the precise amount of damages owed to each class
member may also require some individualized inquiry. But this
task also does not stand in the way of class certification.”).
The plaintiffs argue that the class action vehicle is
superior to individual adjudication because it provides
efficiency by avoiding duplicative discovery and inconsistent
results; individual claims may only result in small damages; and
the fear of employer retaliation may have a chilling effect on
employees bringing claims on an individual basis, see Overka v.
American Airlines, Inc., 265 F.R.D. 14, 24 (D. Mass. 2010).
While the defendants quibble about the amount of recovery
that each putative class member might achieve in individual
litigation, they do not seriously contest the superiority prong.
The plaintiffs are correct that efficiency and the policy
considerations unique to the employment context make class
The defendants raise an argument that is best understood
under the label of ascertainability: that it is not clear how to
determine who worked on a “full-time basis” during the relevant
time period. The First Circuit (and most other circuits) adds an
ascertainability requirement to the class certification
analysis. “[T]he definition of the class must be ‘definite,’
that is, the standards must allow the class members to be
ascertainable.” In re Nexium, 777 F.3d at 19; see also
Matamoros, 699 F.3d at 139 (holding that a class was not
“unascertainable and overbroad” where it was defined in terms of
an “objective criterion”). The defendants fail to fully develop
this argument but Border Transfer’s driver records should allow
an objective determination of who qualifies under that class
requirement, which the certified class defines as “at least 40
hours per week.”
Plaintiffs’ motion for class certification (Docket No. 73)
is ALLOWED. Pursuant to Federal Rules of Civil Procedure 23(a)
and (b)(3), the Court certifies the following class for
All individuals who 1) entered into a
Contract Carrier Agreement (or similar
agreement) directly or through a business
entity; 2) personally provided delivery
services for Border Transfer on a full-time
basis in Massachusetts (at least 40 hours
per week); and 3) who were classified as
independent contractors, at any time since
June 23, 2013.
The Court appoints Marcos DaSilva and Matteus Ferreira as class
representatives, and Lichten & Liss-Riordan, P.C. as class
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge
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