Slack et al v. Swift Transportation Co. of Arizona, LLC
Filing
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ORDER by Judge Benjamin H. Settle vacating 278 Order Granting Motion for Preliminary Approval of Class Action Settlement; denying 282 Motion to Enforce; and denying 284 Motion to Enforce.(TG) Modified on 4/10/2018 (GMR).
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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TROY SLACK, et al.,
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CASE NO. C11-5843 BHS
Plaintiffs,
v.
SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC,
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Defendant.
ORDER DENYING MOTIONS TO
ENFORCE AND VACATING
ORDER GRANTING MOTION
FOR PRELIMINARY APPROVAL
OF CLASS ACTION
SETTLEMENT
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This matter comes before the Court regarding the Court’s order granting Plaintiffs
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Eric Dublinski, Richard Erickson, Sean Forney, Jacob Grismer, Timothy Helmick, Henry
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Ledesma, Scott Praye, Gary Roberts, Troy Slack, Dennis Stuber, and Robert Ulrich’s
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(“Plaintiffs”) motion for preliminary approval of class action settlement (Dkt. 278) and
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Defendant Swift Transportation Co. of Arizona, LLC (“Swift”) and Plaintiffs’ motions to
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enforce. Dkts. 282, 284.
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On October 10, 2017, the Court granted Plaintiffs’ motion for preliminary
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approval of class action settlement. Dkt. 278. On December 7, 2017, the Court entered
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an order establishing a briefing schedule to address an issue regarding the scope of the
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class settlement. Dkt. 281. On December 21, 2017, the parties filed opening briefs. Dkts.
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282, 284. On January 8, 2018, the parties filed responses. Dkts. 286, 288. On March 20,
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2018, the Court held a hearing on the motions. Dkt. 291.
ORDER - 1
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First, the Court must address the scope of the class. The Court certified the class
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as follows: “All current and former Swift employee designated drivers who were
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assigned by Swift to a Washington position and/or terminal after July 18, 2008 . . . who
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were paid by the mile and worked in excess of forty hours in a week . . . .” Dkt. 83 at 11.
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The Court subsequently substituted the word “dedicated” for “designated.” Dkt. 99 at 3.
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The Court approved class notice that provided as follows:
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For purposes of this class action, “dedicated driver” means any
current or former employee driver who, at any time after July 18, 2008, was
assigned by Swift to a terminal and/or customer facility physically located
in the state of Washington and, during that assignment, drove routes for a
single specified customer account.
Drivers who were exclusively over-the-road drivers are expressly
excluded from the Class.
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Dkt. 153-1 at 2. The Court also ordered Swift to “produce information to identify
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potential class members . . . .” Dkt. 168 at 2–3.
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Based on this information, Swift produced an initial class list of 2,764 potential
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class members. Swift’s attorney conceded that the list potentially included up to 1,200
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drivers who may have exclusively been over-the-road drivers. Dkt. 285-1 at 2. Swift’s
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expert, Angela Sabbe, performed a “walk down” of that list based on position codes
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provided by Swift. Ultimately, she determined that “1,482 drivers were paid during the
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class period in at least one of the mileage‐paid, dedicated driver position codes.” Dkt.
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218-1 at ¶ 16. Relevant to the instant issue, it is undisputed that within the drivers that
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Ms. Sabbe excluded could be drivers with overtime claims based on occasional or
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sporadic assignments. This possibility exists because the class was set up to exclude
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drivers that were exclusively over-the-road. If an over-the-road driver worked an
ORDER - 2
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occasional shift on a dedicated account and worked over 40 hours, then that driver may
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have a claim for unpaid overtime. It is unclear how many of these potential claims exist.
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Second, Plaintiffs’ attorneys negotiated the settlement on behalf of the 1,482
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drivers in Ms. Sabbe’s final list. The attorney conceded at the hearing that she did not
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negotiate on behalf of any occasional or sporadic driver that Ms. Sabbe excluded. The
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Federal Rules of Civil Procedure provide that class action claims may only be settled
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with the Court’s approval. Fed. R. Civ. P. 23(e). “The primary concern of this
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subsection is the protection of those class members, including the named plaintiffs,
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whose rights may not have been given due regard by the negotiating parties.” Officers
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for Justice v. Civil Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615, 624 (9th
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Cir. 1982).
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In this case, it is possible that some class members were not given due regard by
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the negotiating parties. The list of potential claimants was narrowed through specific pay
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codes used by Swift. In doing so, the parties may have excluded drivers with claims that
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worked only occasionally or sporadically. This error not only affects the rights of these
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drivers, but may also reduce the amount of other overtime class members’ claims. Thus,
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the proposed settlement contains an obvious deficiency that is fatal to preliminary
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approval. Zepeda v. Paypal, Inc., C10-1668 SBA, 2015 WL 6746913, at *4 (N.D. Cal.
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Nov. 5, 2015). Accordingly, the Court VACATES its order granting Plaintiffs’ motion
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for preliminary approval, Dkt. 278, and DENIES the parties’ motions as moot, Dkts. 282,
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284.
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ORDER - 3
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The parties shall submit a joint status report on how they intend to proceed no later
than April 20, 2018.
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IT IS SO ORDERED.
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Dated this 10th day of April, 2018.
A
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BENJAMIN H. SETTLE
United States District Judge
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ORDER - 4
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