Elmy v. Western Express, Inc. et al

Filing 481

MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 7/27/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOHN ELMY, individually and on
behalf of all other similarly situated
persons,
Plaintiffs,
v.
WESTERN EXPRESS, INC., et al.,
Defendants.

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NO. 3:17-cv-01199
JUDGE CAMPBELL
MAGISTRATE JUDGE FRENSLEY

MEMORANDUM
Pending before the Court is Plaintiffs’ Motion to Certify Counts 2, 3, 4, 5, 6, 7, and 8 as
Rule 23(b)(3) Class Actions. (Doc. No. 425). Defendants filed a response in opposition (Doc. No.
439), Plaintiffs filed a reply (Doc. No. 454), and Defendants filed a Sur-Reply (Doc. No. 462).
Plaintiffs also filed a Motion to Strike Defendants’ Expert Report in Support of Defendants’
Opposition to Plaintiffs’ Motion for Class Certification. (Doc. No. 466). Defendants filed a
response in opposition (Doc. No. 464), and Plaintiffs filed a reply. (Doc. No. 468). For the reasons
discussed below, Plaintiffs’ Motion to Certify will be GRANTED.
I.

MOTION TO STRIKE

Plaintiffs move to strike the expert report of Robert Crandall in support of Defendants’
opposition to Plaintiffs’ motion for class certification on the grounds that Defendants failed to
disclose Mr. Crandall as a witness or his report in violation of Federal Rule of Civil Procedure 26
and that Mr. Crandall’s report does not meet the requirements of Federal Rule of Evidence 702.

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Neither the Supreme Court nor the Sixth Circuit have decided whether a district court must
undertake a Daubert analysis at the class-certification stage when an expert's report is critical to
the class certification analysis. See Hicks v. State Farm Fire & Cas. Co., 965 F.3d 452, 465-66
(6th Cir. 2020) (citing Comcast v. Behrend, 569 U.S. 27, 39-40 (2013) and In re Carpenter Co.,
No. 14-0302, 2014 WL 12809636, at *3 (6th Cir. Sept. 29, 2014)). Here, the Court does not find
Mr. Crandall’s report critical to its class certification analysis. As such, the Court declines to
consider Plaintiffs’ motion to strike before ruling on the pending motion for class certification.
II.

BACKGROUND

The alleged facts underlying this litigation are set forth in detail in this Court's
Memorandum Opinion denying the motions to dismiss filed by Defendants Western Express, Inc.
(“Western” or “Western Express”) and New Horizons Leasing, Inc. (“New Horizons”). See Elmy
v. W. Express, Inc., No. 3:17-CV-01199, 2020 WL 1820100 (M.D. Tenn. Apr. 10, 2020). Because
the factual allegations are well-known to the parties or otherwise readily accessible, the Court
assumes familiarity with them and turns to the standards governing requests for class certification.
III.

APPLICABLE LAW ON CLASS CERTIFICATION

To certify a class, the Court must be satisfied that the requirements of Federal Rule of Civil
Procedure 23(a) and at least one of Rule 23(b)'s provisions are met. See Comcast v. Behrend, 569
U.S. 27, 33-34 (2013). The party seeking class certification bears the burden of showing that the
requirements for class certification are met. Bridging Communities Inc. v. Top Flite Fin. Inc., 843
F.3d 1119, 1124 (6th Cir. 2016). In the present case, Plaintiffs rely on Rule 23(b)(3), which allows
for certification of a Rule 23(a)-compliant class if:
the court finds that the 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

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methods for fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings 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 class action.
Fed. R. Civ. P. 23(b)(3).
A. Rule 23(a)
To be certified, a class must satisfy the prerequisites set forth in Rule 23(a) of the Federal
Rules of Civil Procedure: that “(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 class.” Fed. R. Civ. P.
23(a); Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012).
1. Numerosity
Rule 23(a)(1) requires that the class be so numerous that joinder of all members is
impracticable. “Generally, the number of members of the proposed class, if more than several
hundred, easily satisfies the requirements of Rule 23(a)(1).” Hosp. Auth. of Metro. Gov't of
Nashville & Davidson Cty., Tennessee v. Momenta Pharms., Inc., 333 F.R.D. 390, 403 (M.D.
Tenn. 2019) (citing Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004); Bittinger
v. Tecumseh Prods. Co., 123 F.3d 877, 884 n. 1 (6th Cir. 1997) (joinder of parties impracticable
for class with over 1100 members and “[t]o reach this conclusion is to state the obvious”)). 

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Defendants do not appear to contest Plaintiffs' position on numerosity. Given that the class is
estimated to exceed 4,000 members (see Doc. No. 426 at 15), joinder is impracticable and the
requirements of Rule 23(a)(1) are met.
2. Commonality
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2).  Plaintiffs must show that the class members' claims depend upon a common
contention of such a nature that it is capable of class-wide resolution. In re Whirlpool Corp. Front–
Loading Washer Prods. Liab. Litig., 722 F.3d 838, 852 (6th Cir. 2013). “Variation in the ancillary
details of the class members' cases is insufficient to defeat certification, as long as ‘[i]t is unlikely
that differences in the factual background of each claim will affect the outcome of the legal issue.’”
Grae v. Corr. Corp. of Am., 330 F.R.D. 481, 501 (M.D. Tenn. 2019) (quoting Bacon, 370 F.3d at
570). For the reasons discussed below in the Court’s analysis of Rule 23(b)(3)’s predominance
requirement, see Part III(B)(1), the Court concludes Plaintiffs have met the commonality
prerequisite of Rule 23(a)(2). See Cahoo v. Fast Enterprises LLC, 508 F. Supp. 3d 138, 160 (E.D.
Mich. 2020) (noting that the predominance test is “more demanding” than the commonality
determination).
3. Typicality
“Typicality is met if the class members' claims are fairly encompassed by the named
plaintiffs' claims.” Grae, 330 F.R.D. at 501. “This requirement ensures that the class
representative's interests are aligned with the interests of the represented class members so that, by
pursuing its own interests, the class representative also advocates the interests of the class
members.” Id. (citing In re Whirlpool Corp., 722 F.3d at 852–53). “Thus, a plaintiff's claim is
typical if it arises from the same event or practice or course of conduct that gives rise to the claims

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of other class members and if his claims are based on the same legal theory.” Id. (citing In re Am.
Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)). However, “a representative's claim need not
always involve the same facts or law, provided there is a common element of fact or law.” Beattie
v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quoting Senter v. Gen. Motors Corp., 532
F.2d 511, 525 n. 31 (6th Cir. 1976)).
Plaintiffs assert that the claims of the Named Plaintiffs are typical of the proposed class
because they arise from the same factual circumstances – that Defendants induced them to sign
substantively identical contracts and leases for the Owner Operator program through the same
misrepresentations regarding the amounts they would be compensated. (Doc. No. 426 at 16).
Defendants argue that the Named Plaintiffs’ claims are not typical of the purported class members
because of factual differences; namely that some drivers were paid on a percentage of gross
revenue basis whereas the Named Plaintiffs were paid on a per-mile basis and some drivers did
not see Defendants’ ads. (Doc. No. 439 at 19-20).
“Rule 23's typicality requirement is not an ‘identicality’ requirement” and “[t]he threshold
for satisfying the typicality prong is a low one.” Salvagne v. Fairfield Ford, Inc., 264 F.R.D. 321,
328 (S.D. Ohio 2009). Here, while there may be factual discrepancies, Defendants do not challenge
that the Named Plaintiffs and the putative class members raise the same claims arising out of their
work under substantially identical leases and contract hauling agreements. The Court concludes
Plaintiffs have met the typicality prerequisite of Rule 23(a)(3).
4. Adequacy of Representation
The adequacy requirement of Rule 23(a)(4) requires that the “representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The two criteria
for determining whether class representatives are adequate, as required for class certification, are

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(1) the representatives must have common interests with unnamed members of the class, and (2)
it must appear that the representatives will vigorously prosecute the interests of the class through
qualified counsel. See Momenta Pharms., Inc., 333 F.R.D. at 405 (citing Senter, 532 F.2d at 525). 
Plaintiffs assert that the interests of the Named Plaintiffs are not in conflict with the other
unnamed class members, and that the Named Plaintiffs possess the same interests and suffer the
same injuries as the unnamed class members. (Doc. No. 426 at 17). Plaintiffs also assert that the
Named Plaintiffs have demonstrated their willingness and ability to vigorously prosecute the
action on behalf of the class, noting that they have provided declarations in support of motions,
responded to written discovery, and expressed a willingness to be deposed as representatives of
the class. Additionally, Plaintiffs contend that class counsel has demonstrated their ability and
commitment to vigorously represent the interests of the class and have substantial experience
handling large employment class actions. (Doc. No. 426 at 17).
Defendants do not dispute that the Named Plaintiffs have interests aligned with, rather than
antagonistic to, the interests of the unnamed class members. Nor do Defendants challenge the
competency of class counsel. Rather, Defendants assert that the Named Plaintiffs are not adequate
representatives because they are not typical members of the putative class. (Doc. No. 439 at 21-22
(“Plaintiffs are not typical of the members of the putative class, and therefore, cannot adequately
represent the interests of the class.”)). Defendants are correct that “[t]ypicality merges somewhat
with the first part of the test for adequate representation because ‘in the absence of typical claims,
the class representative has no incentives to pursue the claims of the other class members.’” In re
Mut. Sav. Bank Sec. Litig., 166 F.R.D. 377, 382 (E.D. Mich. 1996) (quoting In re American
Medical Systems, Inc., 75 F.3d at 1083). However, having already found that the typicality prong

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is satisfied in the present case, the Court is not persuaded by Defendants’ argument and concludes
Plaintiffs have met the adequacy prerequisite of Rule 23(a)(4).
B. Rule 23(b)
“Rule 23(b)(3) classes ... must meet predominance and superiority requirements, that is,
‘questions of law or fact common to class members [must] predominate over any questions
affecting only individual members’ and class treatment must be ‘superior to other available
methods.’” Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 466
(6th Cir. 2017). “Moreover, although not explicitly stated in Rule 23 ‘the class definition must be
sufficiently definite so that it is administratively feasible for the court to determine whether a
particular individual is a member of the proposed class.’” Lyngaas v. Ag, 992 F.3d 412, 428 (6th
Cir. 2021) (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012)).
1. Predominance
“To meet the predominance requirement, a plaintiff must establish that issues subject to
generalized proof and applicable to the class as a whole predominate over those issues that are
subject to only individualized proof.” Hicks v. State Farm Fire & Cas. Co., 965 F.3d 452, 459–60
(6th Cir. 2020); see Young, 693 F.3d at 544 (“While the commonality element of Rule 23(a)(2)
requires showing one question of law or fact common to the class, a Rule 23(b)(3) class must show
that common questions will predominate over individual ones.”) (emphasis in original). “The
Supreme Court has emphasized that ‘Rule 23(b)(3) requires a showing that questions common to
the class predominate, not that those questions will be answered, on the merits, in favor of the
class.’” Bridging Communities Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016)
(quoting Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 459 (2013)) (emphasis

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in original). “Common questions are those ‘that can be proved through evidence common to the
class.’” Id. (quoting In re Whirlpool Corp., 722 F.3d at 858).
“The predominance inquiry begins with the elements of the underlying cause of action.”
Momenta Pharms., Inc., 333 F.R.D. at 406 (citing Erica P. John Fund, Inc. v. Halliburton Co.,
563 U.S. 804, 809 (2011)). However, Plaintiffs seeking class certification based on predominance
do not need to prove that each element of a claim can be established by class-wide proof, rather
they need to prove that common questions predominate over questions affecting only individual
class members. See Weiner v. Tivity Health, Inc., 334 F.R.D. 123, 131 (M.D. Tenn. 2020) (citing
Bridging Communities Inc., 843 F.3d at 1124).
a. Count Two: Fraud About the Owner Operator Program
Plaintiffs’ fraud claim is based on Defendants’ allegedly fraudulent inducement of drivers
to enter into the Owner Operator program. This claim requires Plaintiffs to show “that the
defendant (1) made a false statement concerning a fact material to the transaction (2) with
knowledge of the statement’s falsity or utter disregard for its truth (3) with the intent of inducing
reliance on the statement, (4) the statement was reasonably relied upon, and (5) an injury resulted
from this reliance.” Baugh v. Novak, 340 S.W.3d 372, 388 (Tenn. 2011) (citation omitted).
Plaintiffs argue that common questions predominate with respect to this claim because (1)
whether Defendants’ statements were false, (2) with knowledge of the statement’s falsity or utter
disregard for its truth, (3) with the intent of inducing reliance on the statement, and (4) the
statement was reasonably relied upon are all issues that can be proved through common class-wide
proof. In support, Plaintiffs note that Defendants’ knowledge and intent are facts that are common
to the class. Plaintiffs contend that Defendants made essentially the same statements to all class
members over the class period through a “standardized sales pitch” and produce evidence that

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Defendants exposed the class members to generally uniform representations regarding the weekly
take home pay Lease Operators could anticipate, the number of miles a Lease Operator would
expect to be offered on a weekly basis, and the pay they would receive per mile. (Doc. No. 4261). They assert that the element of reliance may be presumed class-wide, and thereby obviating the
need for an individualized inquiry of each class member’s reliance, where, as here, there are
uniform presentations of allegedly misleading information through documents. See Bearden v.
Honeywell Int’l Inc., 720 F. Supp. 2d 932, 945 (M.D. Tenn. 2010); Stanich v. Travelers Indemnity
Co., 249 F.R.D. 506, 518 (N.D. Ohio 2008). Additionally, Plaintiffs argue that they can prove their
fraud damages on a class wide basis because Defendants’ pay records reflect the miles that drivers
drove each week and their weekly earnings such that a mathematical computation can be used to
determine the difference between what Defendants actually paid drivers and what drivers would
have earned at the rates promises by Defendants. (Doc. No. 426 at 24).
In their response, Defendants assert that the issues of (1) which ads were viewed/what
representation were made and when and (2) whether a driver acted reasonably in relying on the
ads are subject to individualized proof because the ads had substantively different content and
whether reliance was reasonable requires consideration of each driver’s specific circumstances and
experience in the industry. (Doc. No. 439 at 24-25).
The Court finds that common issues predominate for Plaintiffs’ fraud claim. The nature of
misrepresentations Defendants allegedly made to the class members in the present case are
fundamentally the same – that Defendants’  lease purchase program offered income and mileage
opportunities with an average of 2400-2700 miles per week or $1.45-$1.85 cents per mile, and
Plaintiffs have presented evidence that members of the class received materially uniform
misrepresentations from Defendants. See Lichoff v. CSX Transp., Inc., 218 F.R.D. 564, 571 (N.D.

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Ohio 2003) (“Fraud claims ‘based on uniform misrepresentations made to all members of the class’
are appropriate for class certification, but where there are ‘material variations in the nature of the
misrepresentations made to each member of the proposed class,’ certification is improper.”)
(quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1253 (2d Cir. 2002)).
b. Count Three: Misrepresentation About the Owner Operator Program
Plaintiffs assert that their negligent misrepresentation claim is certifiable for the same
reasons and to the same extent as the fraud claim because whether Defendants acted intentionally
or negligently turns on the evidence of Defendants’ knowledge and can be established on a classwide basis without testimony from the individual class members. (Doc. No. 426 at 25). Defendants
assert that class certification on Plaintiffs’ negligent misrepresentation claim should be denied for
the reasons they contend class certification on Plaintiffs’ fraud claim fails. (Doc. No. 439 at 27).
For the same reasons the Court found common issues predominate for Plaintiffs’ fraud claim, the
Court finds that common issues predominate for Plaintiffs’ negligent misrepresentation claim.
c. Count Four: Procedural and Substantive Unconscionability
Plaintiffs assert that the question of procedural unconscionability is common to the class
and appropriately decided on a class-wide basis because the circumstances at the time the parties
executed the Contract and Lease (together the “Agreement”) are the same for the class. (Doc. No.
426 at 27-28). In support, they produce evidence that Defendants set forth the Agreements on an
integrated series of pre-printed forms and did not allow for negotiation; that Defendants required
drivers to sign the Western Contract as a condition of signing the New Horizons Lease; that
Defendants did not give drivers the actual Agreements to review, but instead required them to
review the lengthy Agreements on their cell phones; and that Defendants only offered drivers oneway transportation to the place of signing giving drivers no practical way home if they refused to

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sign. (Id. at 27 (citing Doc. No. 426-2 ¶¶ 11-17; Doc. No. 426-3 ¶¶ 10-15; Doc. No. 426-6 ¶¶ 1117; Doc. No. 426-5 ¶¶ 10-17; Doc. No. 426-9 ¶¶ 10-16)). Plaintiffs argue that substantive
unconscionability is common to the class and appropriately decided on a class-wide basis because
the terms of the Agreement are the same for the class. (Id. at 27-28).
In their response, Defendants assert that individualized inquiries will predominate over
common questions for Plaintiffs’ procedural unconscionability claim because some drivers felt
like they had “ample time” to look at the Agreement before they signed. (Doc. No. 439 at 28-29;
Doc. No. 439-5 ¶ 9; Doc. No. 439-7 ¶ 9; Doc. No. 439-13 ¶ 9; Doc. No. 439-14 ¶ 9; Doc. No. 4399 ¶ 9; Doc. No. 439-11 ¶ 9; Doc. No. 439-4 ¶ 9; Doc. No. 439-6 ¶ 8; Doc. No. 439-12 ¶ 9; Doc.
No. 439-16 ¶ 10; Doc. No. 439-15 ¶ 10). Defendants also assert that substantive unconscionability
would need to be analyzed on an individualized basis because there are different versions of the
contract documents. (Doc. No. 439 at 28; Doc. No. 439-2 ¶ 15).
In their reply, Plaintiffs assert that the questions of how long drivers had to review the
agreements and the adequacy of that amount of time does not need to be resolved at the class
certification stage. Rather, Plaintiffs contend that they have met the requirement for class
certification by presenting sufficient evidence to show that a fact finder could decide the issue of
procedural unconscionability in favor of Plaintiffs based on common evidence. (Doc. No. 454 at
12). Plaintiffs argue that common questions also predominate their substantive unconscionability
claim, noting that Defendants fail to identify any differences between the different variations of
the contract. (See id. at 12-13). Plaintiffs argue that this is because there are no material differences
between the versions of the Agreements, asserting that the allegedly unconscionable provisions of
the Agreements exist in all of the Agreements Defendants produced in discovery. (Id. at 13
(“Therefore, if the Court finds the relevant terms substantively unconscionable, the similar terms

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in the Agreements of the class members are equally unconscionable.”). Based on the foregoing,
the Court finds that Plaintiffs have met their burden of showing that common questions
predominate for their unconscionability claims.
d. Count Five: Unjust Enrichment due to Employee Misclassification
Plaintiffs assert a claim for unjust enrichment if the Court finds the Agreement is
unconscionable and, therefore, unenforceable. A claim for unjust enrichment requires proof of:
(1) a benefit conferred upon the defendant by the plaintiff; (2)
appreciation by the defendant of such benefit; and (3) acceptance of
such benefit under such circumstances that it would be inequitable
for [defendant] to retain the benefit without payment of the value
thereof.
Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005). Plaintiffs argue
that the question of whether Defendants were unjustly enriched by their use of the Agreements can
be proved through generalized class-wide proof. (See Doc. No. 426 at 28). Specifically, Plaintiffs
assert that, because the Agreements were the same for all class members, the question of whether
the Agreements conferred a benefit upon Defendants is common to the class. Plaintiffs further
assert that the question of whether Defendants appreciated the benefits received by virtue of the
Agreements and accepted those benefits under the circumstances that make retention of the
benefits unconscionable turns on Defendants’ knowledge and the circumstances surrounding their
use of the Agreements, which are facts that are also common to the class. (Id. at 28-29).
In their response, Defendants assert the issues of whether the drivers were misclassified
and whether plaintiffs conferred a benefit on Defendants that would be inequitable for them to
retain would need to be analyzed on an individualized basis. (Doc. No. 439 at 30-31). In their
reply, Plaintiffs note that the Court already determined that the misclassification question is
common to the class when it certified the FLSA collective action in this case. (Doc. No. 454 at 13

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(citing Doc. No. 166)). Plaintiffs argue that determining the benefit conferred upon Defendants by
the alleged misclassification is susceptible to class-wide proof, asserting that evidence of the
operating expenses that Plaintiffs claim Defendants unlawfully shifted onto the drivers as a result
of the misclassification can be found in each driver’s weekly settlement, which will allow the
calculation of the profits to be disgorged. (Id. at 14). The Court finds that common issues
predominate for Plaintiffs’ unjust enrichment claim.
e. Count Six: Federal Forced Labor
To establish a claim under the federal Forced Labor statute, 18 U.S.C. § 1589, Plaintiffs
must show that Defendants knowingly provided or obtained their labor or services by means of
“serious harm or threats of serious harm,” “the abuse or threatened abuse of law or legal process,”
or “any scheme, plan, or pattern intended to cause [them] to believe that, if [they] did not perform
such labor or services, that [they] or another person would suffer serious harm or physical
restraint.” 18 U.S.C. § 1589(a). The statute defines serious harm as “any harm, whether physical
or nonphysical, including psychological, financial, or reputational harm, that is sufficiently
serious, under all the surrounding circumstances, to compel a reasonable person of the same
background and in the same circumstances to perform or to continue performing labor or services
in order to avoid incurring that harm.” 18 § 1589(c)(2).
Plaintiffs assert that if the jury finds that the threat of harm contained in Plaintiffs’
Agreements was sufficiently coercive to force workers to work for Defendants, that finding would
apply on a class-wide basis as class members signed substantially similar Contracts and Leases.
(Doc. No. 426 at 30). Plaintiffs also assert that the question of whether Defendants knowingly
benefitted from the threats can be answered on a class-wide basis because it turns on Defendants’
records, knowledge, and intent in drafting and utilizing the Contract and Lease. (Id. at 31).

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In their response, Defendants contend that “[w]hether a reasonable person would feel
coerced to continue based on the terms of the agreements, is undoubtedly an individualized
inquiry, which would again be required to determine whether any Driver continued working
against their will because they felt threatened with serious financial harm.” (Doc. No. 439 at 33).
The question of whether a threat of harm is sufficiently coercive is evaluated according to
an objective “reasonable person” standard. 18 § 1589(c)(2). As a result, contrary to Defendants’
position, there will be no need for individual inquiries to determine whether the threat of harm
contained in Plaintiffs’ Agreements was sufficiently coercive to force workers to work for
Defendants. See e.g., Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 459 (2013)
(“Because materiality is judged according to an objective standard, the materiality of Amgen's
alleged misrepresentations and omissions is a question common to all members of the class.”). The
Court finds that Plaintiffs have met the predominance requirement for their forced labor claim.
f. Count Seven: Truth in Leasing Act Violations
Plaintiffs assert that the issue of whether the Lease and Contract violate the Truth in
Leasing Act, 49 U.S.C. § 14704 (“TILA”), is subject to generalized proof and applicable to the
class as a whole because Defendants entered into substantively identical Contracts and Leases with
all Plaintiffs. (Doc. No. 426 at 32). Accordingly, Plaintiffs argue that the fact finder can look at
one Contract and Lease and decide for the entire class whether the Contract and Lease violated the
TILA. (Doc. No. 426 at 32 (citing Davis v. Colonial Freight Sys., Inc., No. 3:16-CV-674, 2018
WL 11225871, at *10 (E.D. Tenn. Mar. 2, 2018) (“[T]he issue of whether the [Agreements] violate
the [TILA] regulations is subject to generalized proof and applicable to the class as a whole. This
generalized issue of liability predominates over issues subject to individualized proof.”)).

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In their response, relying exclusively on out of circuit authority, Defendants argue that
certification of Plaintiffs’ TILA claim is not proper due to differences in individualized damages.
(See Doc. No. 439 at 34-35 (citing Owner-Operator Indep. Drivers Ass’n v. New Prime, Inc., 339
F.3d 1001, 1012 (8th Cir. 2003) and Owner Operator Indep. Drivers Ass’n v. FFE Transp. Servs.,
245 F.R.D. 253 (N.D. Tex. 2007)). However, “individual damages calculations do not preclude
class certification under Rule 23(b)(3)” in the Sixth Circuit. Hicks, 965 F.3d at 460. Accordingly,
the Court finds that common issues predominate for Plaintiffs’ TILA claim.
g. Count Eight: Breach of Contract with Respect to Compensation Schedule
To establish a claim for breach of contract under Tennessee law, Plaintiffs must establish:
(1) the existence of an enforceable contract, (2) nonperformance amounting to a breach of the
contract, and (3) damages caused by the breach. See Ingram v. Cendant Mobility Fin. Corp., 215
S.W.3d 367, 374 (Tenn. Ct. App. 2006). Plaintiffs assert that common questions predominate with
respect to this claim because all class members signed substantially the same Contract Hauling
Agreement with the same compensation terms and were all compensated by Defendants in the
same way. (Doc. No. 426 at 34).
Defendants argue that the issue of breach will be subject to only individualized proof
because not all drivers had the same versions of the contract or were paid under the same
compensation structure. (Doc. No. 439 at 36). In their reply, Plaintiffs reiterate that to determine
whether the contract was breached and how much a driver is due for that breach is simply a matter
of determining the number of miles driven each week as reported on driver’s weekly settlement
sheets and recalculating the amount that should have been paid for those miles under the wage
term in the Contract. (Doc. No. 454 at 19). The Court finds that Plaintiffs have met the
predominance requirement for their breach of contract claim.

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2. Superiority
To satisfy the superiority requirement, Plaintiffs must demonstrate that “a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.
R. Civ. P. 23(b)(3). In undertaking this analysis, the Court examines four factors:
(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.
The Court finds that these factors weigh in favor of class certification. First, the relatively small
amount of individual damages and the similarity of claims give class members little interest in
individually controlling separate actions. Second, concentration of these claims in this Court is
desirable, as it will streamline the resolution of the claims and conserve judicial and litigation
resources. Finally, the Court is aware of no particular difficulties associated with the management
of this class action, especially given the current stage of the litigation. Thus, for purposes of Rule
23(b)(3), a class action is superior to other methods of adjudication in the instant case.
3. Class Definition and Ascertainability of the Class
Under the ascertainability requirement, Plaintiffs must show “that the members of the class
[are] capable of specific enumeration.” In re Flint Water Cases, 499 F. Supp. 3d 399, 425–26
(E.D. Mich. 2021) (quoting Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016) (emphasis
in original). This requirement is satisfied with a class description that is sufficiently definite so that
it is administratively feasible for a court to determine whether a particular individual is a member
by reference to objective criteria. See Cole, 839 F.3d. at 541; Young, 693 F.3d at 538–39.
In the present action, Plaintiffs seeks to certify a class with the following description:

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All truck drivers who leased a truck from New Horizons Leasing,
Inc. to drive for Western Express, Inc. who executed a Contract
Hauling Agreement at any time during the period from the inception
of the Owner Operator Program in 2014 up through the date of final
judgment herein.
(Doc. No. 425). The Court agrees with Plaintiffs that the class definition is both definite and relies
upon objective criteria to determine membership. Specifically, membership in the class is
determinable through records maintained by Defendants. (See id. at 18). The Court notes that
Defendants do not raise any objection relating to the ascertainability requirement. (See Doc. Nos.
439, 462). As such, the Court finds that the definition the class is sufficiently definite. With that,
the Plaintiffs have carried their burden in establishing that their proposed class should be certified
under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure.
An appropriate order will enter.
________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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