Swift Transportation Co., Inc.
This lawsuit is brought as a nationwide class and collective action on behalf of truckers who lease trucks from Interstate Equipment Leasing Co., Inc. and are treated as “owner operators” by Swift Transportation Co. The suit seeks damages claiming that Swift and IEL’s form contracts shift the business risks of the economic downturn to truckers who must by law be treated as employees, makes these truckers cover SWIFT’s costs for fleet inventory, insurance, tolls, taxes, and equipment, and makes the truckers pay various fees to SWIFT that enable SWIFT to exact further profit from employees who cannot leave their contracts without crushing financial consequences. The arrangement helps SWIFT keep its workforce as virtual captives, undercuts the competition, avoids unions, evades unemployment and social security taxes, insurance, and permits SWIFT to charge its employees for expenses that must be borne by an employer.
The suit raises three broad groups of claims, first it claims that the truckers are really “employees” and not “independent contractors.” As a result, the suit claims, truckers are owed wages under federal minimum wage law (FLSA) and must be reimbursed for all the deductions from their pay they now face, including lease payments, tolls, gas, maintenance, equipment, taxes and insurance.
Second, the lease and Independent Contractor Operating Agreement (ICOA) are challenged as “unconscionable” since defendants can terminate the contract at will and treat defendants’ termination as the trucker’s “default” and then demand that the trucker make all remaining lease payments. Claims are brought under the contract law of all states in the US.
Third, the complaint claims that the truckers are held in “forced labor” in violation of federal labor. Since truckers can only drive for Swift, and cannot leave their work without the threat of crushing debt burden, Swift and IEL’s arrangement amounts to “forced labor” for Swift for periods extending up to four years.
The case is to be heard by U.S. District Court for the District of Arizona and will be tried to the Honorable U.S. District Judge John W. Sedwick of the District of Alaska, sitting in Arizona. Plaintiffs seek to recover the full panoply of expenses that Swift and IEL shift to its “owner operators” plus liquidated damages which may equal these deductions. The deductions for which plaintiffs seek recovery include truck lease payments, insurance, tolls, accounting fees, bond, equipment such as Qualcomm, etc. Plaintiffs seek unpaid wages, liquidated damages, interest, costs and attorneys’ fees as well as declaratory relief under the FLSA and state wage laws.
Truckers anywhere in the US who wish to participate should file a “Consent to Sue” form available on this website, if they wish to have their claims asserted under the Federal minimum wage law.
Swift’s Delays – Posted June 24, 2015
The law of truck driver misclassification as independent contractors continues to develop, with many courts finding drivers misclassified. Two important decisions were rendered by the Ninth Circuit court of appeals with respect to FedEx drivers. Another important decision was rendered by the trial judge in this case, U.S. District Judge Sedwick in Collinge.v.Intelliquick finding drivers very similar to Swift drivers to be employees as a matter of law. This case was also handled by Martin & Bonnett, co-counsel for the drivers in this case.
As this case moves toward its inevitable conclusion, Swift continues to make numerous efforts to delay the day of decision. After Swift filed its Petition for Mandamus asking the Ninth Circuit to find that Judge Sedwick acted in “clear” error by stating he will consider evidence beyond the contract to determine if the drivers are employees, the Ninth Circuit asked Plaintiffs to file an Opposition to Swift’s Petition For Mandamus which was filed on June 10, 2014. In addition to filing its petition for mandamus, Swift also filed a notice of appeal from the same decision. Plaintiffs moved to dismiss that appeal, but that motion was denied by the Circuit. We continue to believe that the appeal is entirely improper since appeals are only available from a final order (deciding a claim) or if a statute confers the right to an interlocutory appeal and the Court of Appeals stated this issue would be considered in our opposition brief. In that brief, the drivers will argue that Judge Sedwick’s decision allowing discovery is hardly a “final order” and no statute confers the right to an appeal from this order. Swift has now filed its appeal brief with the Ninth Circuit. The drivers’ brief will be due July 22nd. Swift had also asked the Ninth Circuit and the District Court to stay proceedings while the appeal is pending. Both courts denied Swift’s motion to delay the proceedings. Nevertheless, Swift has refused to meaningfully participate in discovery in the District Court, despite the denial of a stay. So, the drivers filed a motion in the District Court to compel Swift to answer discovery. Swift filed its response. Plaintiff drivers filed a Reply Brief. The motion is still pending in the District Court.
Swift’s Increasing Desperation – Posted February 26, 2015
Even after the Court’s denial of Swift’s motion to reconsider, Swift has done everything within its power to delay the day of reckoning – a day in the near future when District Judge Sedwick will determine whether by law, Swift treats the Named Plaintiffs as employees. Swift has repeatedly asked the Court to consider whether the drivers are employees based only on the contract and lease. The Drivers, and the Court have agreed that the determination requires considering Swift’s policies and practices in addition to the contract and lease. After the District Court rejected Swift’s motion to reconsider the discovery process for this determination, Swift filed a notice of appeal. The Drivers believe that this appeal is entirely frivolous, as there is no right to appeal an interim decision of a District Court regarding how employee misclassification is to be determined. Swift also filed a motion with the District Court asking the Judge to stay proceedings in the District Court while the appeal was pending. We opposed Swift’s application for a stay and asked the Court to sanction Swift for a frivolous motion. While the Court did not sanction Swift, Judge Sedwick also did not grant Swift the stay it had sought. Click here to review the Court’s Decision. Today, Swift has filed a petition for Mandamus asking the Ninth Circuit to rule that Judge Sedwick acted in “clear” error by stating he will consider evidence beyond the contract and that no other legal avenue is available to correct this error. We continue to believe that the Ninth Circuit will unequivocally deny Swift’s efforts to take the issue (which the Ninth Circuit directed Judge Sedwick to hear) away from Judge Sedwick at this point. Since Judge Sedwick has refused Swift’s motion for a stay, Swift’s filings in the Ninth Circuit should do nothing to derail the inevitable progress of this case toward discovery and dispositive motions by December 2015, and if necessary, a trial shortly thereafter.
District Court Denies Swift’s Motion for Reconsideration – Posted January 22, 2015
In July of 2014, both sides submitted proposed schedules to the District Court for how the case should proceed to resolve the question of whether the drivers are employees as a matter of law – this being the question the Ninth Circuit directed the District Court to decide. If the drivers are employees, their claims cannot be sent to arbitration. The drivers called for discovery and a trial; Swift said the Court should make a decision based solely on the contract and lease. The Court adopted the drivers’ proposal. Shortly thereafter, Swift moved the Court to reconsider this order. On January 22nd, the Court denied Swift’s motion again deciding that a trial on the issue of whether the drivers are employees is required by the Ninth Circuit and that the trial would consider evidence of Swift’s practices outside those identified in the contract and lease themselves. During the period that the parties have been waiting for the Court’s decision, the Drivers have served discovery demands and held many meetings to discuss the scope of discovery. For the most part, Swift has refused to participate in discovery, though this may change in light of the Court’s ruling today. The Court also extended the discovery period by seven months, to give the parties time to complete discovery on the relevant issues.
Case Update – Posted October 21, 2014
The U.S. Court of Appeals for the Ninth Circuit ordered that the District Court must determine whether the Federal Arbitration Act applies to the drivers in this case before deciding whether it must send the case to arbitration. The FAA states that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Thus, according to the Ninth Circuit, the Court must determine whether the drivers are “employees” before deciding whether it must send the case to arbitration. U.S. District Judge Sedwick asked the parties to submit a joint proposal for the schedule of this case to determine whether the drivers are employees. The drivers asked for limited discovery on this issue, while Swift argued that the determination should only be made by considering the “Independent Contractor Operating Agreement.” Judge Sedwick ruled that the drivers were right. Despite this ruling, Swift has now asked the District Court to stay its motion or reconsider the scope of discovery and trial. The drivers’ attorneys have opposed this motion and filed an opposing brief arguing that the issue was already decided and that Swift failed to meet the requirements for a motion to reconsider. The parties expect Judge Sedwick to rule shortly on the issue of the scope of discovery and trial.
We expect Judge Sedwick to reaffirm his prior ruling that he will hear the evidence to determine if drivers were misclassified and are in fact employees and not make the decision solely on the basis of the contract. We have worked hard for the past four and a half years to get the Court to rule on this basic legal issue of our case, including two trips to the Ninth Circuit Court of Appeals and defending against Swift’s petition to reverse the Circuit in the U.S. Supreme Court. The issue of whether drivers were treated by Swift as employees is now moving closer to resolution. While this issue is pending, the drivers have served discovery demands on Swift for documents and data related to the employment/contractor misclassification question and are awaiting Swift’s response.
Scheduling Order Set By District Court – Posted October 7, 2014
The Ninth Circuit Court of Appeals directed the District Court to decide whether owner operators are employees or independent contractors prior to sending the case to arbitration. If the drivers are employees, the case cannot be sent to arbitration. The Court has now set a schedule for determining a critical issue in this case. The parties filed competing proposals for how the issue should be decided. Plaintiffs asked the Court to hold a trial on the issue, while Swift asked the Court to limit its consideration on the issue to the agreement it drafted and imposed. The Court adopted Plaintiffs’ proposal. The parties now have a short period of time to conduct discovery prior to a trial by the District Court on this critical issue. Plaintiffs also made a motion to add two additional named representatives. So far Swift opposes this motion. Additionally, Swift has now made a motion to ask the District Court to reverse its prior decision as to the scope of discovery and trial. Plaintiffs’ counsel will oppose this motion shortly.
Protecting Claims Here From Ellis v. Swift – Posted October 7, 2014
The Plaintiffs’ lawyers in this case were required to take steps to protect these claims from interference by a proposed class action settlement in the Ellis v Swift Transportation case. Ellis is a case challenging Swift’s failure to give notice of consumer background information. While the case
has nothing to do with this case, the proposed release language could have been viewed as prohibiting the forced labor and unconscionability claims involving Swift and Central’s misuse of the DAC Report. To protect the class, Getman Sweeney and Martin Bonnett have been trying to obtain an agreement from Swift’s attorneys to the effect that claims in this case would not be barred by that settlement, if approved by the District Court for the Eastern District of Virginia. Swift initially refused to sign a stipulation. The lawyers here were required to find counsel in Virginia and file a motion and
Objection to the proposed Ellis class settlement. Once the objection was filed, the Court called all the lawyers together and an acceptable stipulation was filed. The stipulation was so ordered by the Court. Click here to review the stipulation and Order. The claims in this case are now protected.
QUESTIONS ABOUT THE ELLIS V SWIFT SETTLEMENT RAISED – July 30, 2014
In Ellis v. Swift Transportation Co. of AZ, the plaintiffs claimed that Swift violated the federal Fair Credit Reporting Act by performing credit checks without advising applicants of certain things required by the law. A tentative settlement was reached between the parties which called for each owner operator to receive $50 in settlement of these claims. The settlement notice that was mailed did not advise owner operators of the full scope of claims that might be “released” by accepting the $50 or by failing to exclude themselves from the settlement. Because the release language in the settlement could be taken to mean that Owner Ops give up claims which are being raised in this case: such as whether Swift engaged in Forced Labor by using the DAC Report to force drivers to continue to work for Swift, Getman Sweeney is extremely concerned that settlement is not in any Owner-Operator’s interest. Plaintiffs’ lawyers in this case are reaching out to the Plaintiffs’ attorneys in Ellis v. Swift, to see if our concerns can be addressed in such a way that the drivers can participate in that settlement and avoid giving up claims that are asserted in this case. Until further notice, however, Getman Sweeney advises its clients to DO NOTHING with respect to making a claim in the Ellis case. We will be in touch with clients individually following our discussion with the lawyers for the drivers in the Ellis case. If you have not heard from us individually by mid-September, please contact the office for further advice concerning how to handle claims in the Ellis case.
Supreme Court Denies Swift’s Motion to Hear Case – June 16, 2014
The Supreme Court today denied Swift Transportation’s motion to hear Swift’s argument as to why the 9th Circuit Court of Appeals was wrong. This is a significant victory for the Drivers in this case. The Supreme Court’s ruling, leaves standing a ruling by the Ninth Circuit which was favorable to the drivers, holding that the District Court cannot send the case to arbitration to determine whether the Federal Arbitration Act applies. While the issue is fairly technical, it is an important one for truckers. Most importantly, it means that there will not be another year or more of delay before the case moves forward.
Swift Files Petition for Certiorari in the Supreme Court – February 4, 2014
Swift has filed a “petition for certiorari” with the Supreme Court asking the high court to hear Swift’s challenge to the Ninth Circuit’s decision that the District Court must decide whether the Federal Arbitration Act applies to this case before sending the case to arbitration. The Ninth Circuit’s ruling was a critical decision in favor of the drivers, since it meant that the District Court must decide whether the ICOA/Lease constitute a contract of employment, and if the Court found the contract to be one of “employment” then the case would never go to arbitration. In fact, in a similar case against Central Refrigerated, the Court found the ICOA/Lease to be a contract of employment that could not be sent to arbitration under the Federal Arbitration Act. Swift wants the drivers to have to ask that question individually in arbitration – where it knows that few, if any, drivers will be able to afford litigating the case individually. The Ninth Circuit had agreed to stay its decision, giving Swift 90 days in which to make another stay motion to the Supreme Court, which it has not done. If the Supreme Court does not stay the case while it considers whether or not to take the case, the current stay will expire. Click here to read Swift’s petition for certiorari. The Supreme Court gets approximately 7,000 requests to hear cases each year, but hears only one to two percent.
Swift Vows to Take Case to Supreme Court – December 10, 2013
Swift asked the Ninth Circuit to stay its decision requiring the District Judge to determine if the drivers are employees or contractors. Swift claims it will be filing a “petition for certiorari” with the Supreme Court asking it to reverse the Ninth Circuit. The Ninth Circuit agreed to stay its decision – but only for 90 days, giving Swift time to make another stay motion to the Supreme Court. If the Supreme Court does not stay the case while it considers whether or not to take the case, the current stay will expire and the case will proceed. This stay application is not surprising, since Swift has shown it will do anything it can to avoid or delay having the Court hear the drivers case. We will know soon whether the Supreme Court will decide to stay the decision while it decides whether to hear the case.
Major Preliminary Victory! – November 12, 2013
On November 6, the 9th Circuit Court of Appeals ruled that the District Court erred by sending the case to arbitration. Because the Federal Arbitration Act (under which the Court sent the case to arbitration), does not apply to “contracts of employment” of workers in interstate transportation (such as truck drivers), the Circuit Court held that the District Court cannot send our case to arbitration until it has determined whether the drivers are employees. If the District Court determines that drivers are employees, the case cannot be sent to arbitration and will remain in federal court. Click here to read the Court of Appeals’ ruling. The process for deciding whether the drivers are employees has not been settled by the Court.
The Ninth Circuit Decides Oral Argument Not Needed
The Ninth Circuit has now decided that it does not need oral argument to decide the issue the Drivers presented on appeal, whether the District Court must decide whether Drivers are employees or contractors before it can send the class action filed against Swift to arbitration. If the Court finds the Drivers to be employees, it could not send the case to arbitration at all. The Drivers consider it a hopeful sign that the Circuit decided not to hear argument, as the Ninth Circuit previously decided that the drivers’ claims cannot be sent to arbitration without the District Court first deciding whether they are employees or contractors, when the Drivers filed a “mandamus petition” in that Court. While the lawyers believe the Court’s decision is a good sign, we cannot be sure when the Circuit will make a decision on the case. It has taken over a year for the Circuit to set a date for argument. While the appeal moves slowly, we have every reason to be optimistic about a favorable outcome.
Oral Argument Scheduled
On Wednesday, August 28, 2013, the Ninth Circuit notified us that we are on the Court’s schedule for oral argument on November 4, 2013. The oral argument will take place at 9:00 a.m. at the U.S. Court of Appeals for the Ninth Circuit, James R. Browning U.S. Courthouse, 95 Seventh Street, Courtroom 4, San Francisco, CA 94103. Oral argument is open to the public. An audio recording of the argument will be available to the public the day after the argument at http://www.ca9.uscourts.gov/media/
Swift Transportation Acquires Central Refrigerated
On August 6, 2013, Swift Transportation Company acquired Central Refrigerated Transportation, Inc. in a transaction valued at $225 million. We do not anticipate that the acquisition will affect either our litigation against Swift Transportation or our litigation against Central Refrigerated. We will update our website if the acquisition affects our litigation in any way.
The parties continue to wait for the Ninth Circuit Court of Appeals to determine whether District Judge Sedwick erred by sending this case to arbitration without deciding first whether the Plaintiffs are exempt from the Federal Arbitration Act. The appeal was fully briefed 15 months ago on May 1st, 2012. While the Ninth Circuit may take as long as it wishes, either to schedule oral argument or to decide the appeal without argument, we believe there is a good chance we will be scheduled for oral argument during the Court’s November calendar. Getman Sweeney is hopeful that the Court will affirm our position and reverse the District Court, since the Ninth Circuit already ruled that Plaintiffs were correct on this precise question in its prior ruling on the mandamus petition.
352 Drivers Join Lawsuit Against Swift – August 8, 2013
As of this date, 352 drivers have joined the lawsuit against Swift Transportation. If you would like to join, please complete a Consent to Sue Form and return it to Getman & Sweeney by mail, fax, or email.
Waiting On the Ninth Circuit Court of Appeals – Posted on January 4, 2013
The case cannot move forward until the Ninth Circuit Court of Appeals determines whether District Judge Sedwick erred by sending this case to arbitration without deciding first whether the Plaintiffs are exempt from the Federal Arbitration Act. The appeal was fully briefed seven months ago on May 1st, 2012. The Ninth Circuit may take as long as it wishes, either to schedule argument or to decide the appeal without argument. Until then, we wait. Click here to read Plaintiffs’ opening Appeal Brief. Click here to read Defendants’ Response Brief. Click here to read Plaintiffs’ Reply brief. Getman Sweeney is hopeful that the Court will affirm our position and reverse the District Court, since the Circuit already ruled that Plaintiffs were correct on this precise question in its prior ruling on the mandamus petition. We now await the decision of the Ninth Circuit. The Court has not set a date for oral argument.
Appeal Briefing Completed – Posted on May 16, 2012
All briefing has been completed in the Ninth Circuit Court of Appeals on the question of whether the District Court erred by sending this case to arbitration without deciding first whether the Plaintiffs are exempt from the Federal Arbitration Act. Click here to read Plaintiffs’ opening Appeal Brief. Click here to read Defendants” Response. Click here to read Plaintiffs’ Reply Brief. We are hopeful that the Court will affirm our position and reverse the District Court, since the Circuit already ruled that Plaintiffs were correct on this precise question in its prior ruling on the mandamus petition. We now await the decision of the Ninth Circuit. The Court has not set a date for oral argument.
Video Update About Status Of The Case – Posted on January 25, 2012
Getman Sweeney has prepared a short video about the status of this case, particularly addressing the pending appeal of Judge Sedwick’s decision to send this case to arbitration.
Plaintiffs Granted the Right to Appeal – Posted on January 20, 2012
The 9th Circuit Court of Appeals has agreed to to permit an appeal of Judge Sedwick’s decision to send the case to arbitration. Plaintiffs are very happy that the Court has agreed to hear our appeal, as an earlier panel of the 9th Circuit has already ruled that the decision to send this case to arbitration to decide if the drivers were legally deemed independent contractors was in error. If the 9th Circuit reverses Judge Sedwick’s order sending the case to arbitration, a hearing will be held in the District Court to decide if the trucker plaintiffs in this case were treated as employees by Swift. Plaintiffs expect to argue that if Swift mis-treated the drivers as employees (while calling them independent contractors) drivers would be entitled to back pay for deductions, such as lease, insurance, tolls, gas, bonds, etc. and also be entitled to minimum wage for each week of work, as well as a variety of other damages.
Posted on October 19 2011
Plaintiffs have asked the 9th Circuit to permit an appeal of Judge Sedwick’s decision to send the case to arbitration. (Sending the case to arbitration would likely result in denial of class certification and would be prohibitively expensive to bring on an individual basis). The matter is fully briefed and we are awaiting the decision of the Court.
Posted on Friday, September 9 2011 at 2:33pm
Recognizing that the 9th Circuit’s opinion suggests that a District Judge and not an arbitrator must determine if the drivers in this case are employees, but disagreeing with that finding, Judge Sedwick has certified an appeal to the 9th Circuit on the question of whether the case can be sent to an arbitrator. Click here to review the District Court’s certification order. (321 ORDER that plaintiff’s motion at  is GRANTED i.pdf 38KB) Now the 9th Circuit must decide whether to hear the appeal. Because the case is not concluded, appeals are discretionary and must be approved by both the District Court and the Appeals Court. We expect that the 9th Circuit will agree to take the appeal.
Posted on Wednesday, July 27 2011 at 2:43pm
The Ninth Circuit Court of Appeals issued a ruling today holding that a Court must determine whether the Federal Arbitration Act’s exemption for employees in interstate commerce applies to truck drivers such as the Plaintiffs in this case. Nevertheless, the Ninth Circuit refused to grant the mandamus petition and order the District Court to reverse the prior decision sending the case to arbitration. Thus, the Ninth Circuit affirmed the Plaintiffs’ legal position that the law requires a Court to decide whether the owner operators are “employees” exempt from the Federal Arbitration Act, but did not order the District Court to comply with that ruling. Click here to review the 9th Circuit’s decision. (15 Opinion Denying Mandamus.pdf 73KB) It may take a short period for the parties and the District Court to work out the effect of the decision, however, Plaintiffs are optimistic however, given that the Ninth Circuit affirmed our legal position. Further updates will be posted as the effect of this ruling and how it affects the parties’ positions becomes clear.
Posted on Wednesday, July 27 2011 at 2:35pm
On July 25th, Plaintiffs filed a reply brief in support of their motion to lift the stay for arbitration. Click here to review Plaintiffs’ Reply Brief. (300 P. Reply to Response to Motion re  Motion.pdf 101KB) Defendants filed a motion requesting the opportunity to file a “sur-reply” and that motion was granted by the Court. After those papers are filed with the Court, the matter will await decision by the District Court.
last edited on Wednesday, July 27 2011 at 2:46pm
Posted on Thursday, June 30 2011 at 4:01pm
Defendants have filed their opposition to the Plaintiffs’ motion to vacate the stay for arbitration. Click here to review the defendant’s papers. (287 D Opp to Pl. Motion to Vacate Stay.pdf 1MB) Plaintiffs will file a reply brief shortly.
Posted on Tuesday, June 14 2011 at 2:45pm
Plaintiffs have filed a motion with the District Court to have the case returned to the District Court in light of the high expenses that would be required for individuals to arbitrate their claims. Over the last few months, numerous Plaintiffs have filed arbitration demands, seeking to have the American Arbitration Association declare that the arbitrations can proceed under a financial hardship waiver. Swift and IEL have refused to pay the AAA’s fees necessary to permit the arbitrations to go forward and under the AAA’s arbitration practices, these individual arbitrations can only occur once the Plaintiff pays substantial filing fees, or agrees to incur additional indebtedness to later pay such filing fees. Click here to read the brief filed with the Court. (277 Motion to Lift Stay, Motion to Vacate.pdf 317KB)
Posted on Tuesday, May 10 2011 at 4:20pm
Oral argument was held by the 9th Circuit on the Plaintiffs’ Mandamus Petition. Edward Tuddenham argued the motion for Plaintiffs. Paste this link into your browser to listen to the argument:
The question of whether the District Court had the authority under the FAA to send this case to arbitration is now before the 9th Circuit for decision.
Posted on Thursday, April 21 2011 at 11:53am
Plaintiffs have filed 57 separate arbitration demands with the American Arbitration Association for the issues presented in this case. The cases are in a legal limbo as the AAA recognizes that the arbitration clause drafted by Swift and IEL requires an arbitrator to determine whether the claimants are exempt from having to pay the filing fees. However the AAA will not administer the cases without the prepayment of filing fees. Plaintiffs continue to try to work this process out with the AAA.
Posted on Thursday, April 21 2011 at 11:50am
The Court of Appeals for the Ninth Circuit has set oral argument on the Plaintiffs’ mandamus petition for Monday May 9, 2011 at 9 am. The argument will be handled by Edward Tuddenham for the Plaintiffs. The mandamus petition seeks the intervention by the 9th Circuit to direct District Judge Sedwick to hear the question of whether Plaintiffs are actually employees (under Section 1 of the Federal Arbitration Act) before sending the case to Arbitration.
last edited on Thursday, April 21 2011 at 11:55am
Posted on Wednesday, March 9 2011 at 12:34pm
On March 3, 2011, Plaintiffs filed reply papers in the 9th Circuit Court of Appeals in support of our petition for mandamus directing the District Court to hear the question of employment status before sending the case to arbitration (8 Petitioners reply to answer to Writ of Mandamus petition.pdf 74KB).
Posted on Wednesday, March 9 2011 at 12:31pm
On February 23, 2011, Swift and IEL filed papers opposing Plaintiffs’ motion to the 9th Circuit Court of Appeals, in which Plaintiffs requested the Court to direct the District Court to consider whether the case is exempt from arbitration under Section 1 of the Federal Arbitration Act (FAA). Click here to review Swift’s opposition brief. (7-1 D Response to Writ of Mandamus of Real Parties In Interest.pdf 1MB) The Section 1 exemption to the FAA exempts “contracts of employment of … any other class of workers engaged in foreign or interstate commerce.” The question to be decided by the Court of Appeals is who must decide whether the ICOA is really a contract of employment, the District Court or the arbitrator.
Posted on Wednesday, February 9 2011 at 9:34am
The Ninth Circuit yesterday gave Plaintiffs good news when it ruled that the “petition for a writ of mandamus raises issues that warrant a response. (4 Order re Response to Mandamus.pdf 28KB)” A writ of mandamus is an “extraordinary remedy” and one that the Court does not generally grant. However, the Court’s ruling now indicates that the Court will seriously consider whether the District Judge erred in sending this case to arbitration. Under the terms of the Order, Swift and IEL, as well as the District Judge, are given 14 days to respond after which Plaintiffs will have 5 days to reply.
last edited on Wednesday, February 9 2011 at 9:36am
Posted on Friday, December 10 2010 at 12:49pm
After Judge Sedwick denied Plaintiffs’ request to reconsider his decision referring this case to an arbitrator, and after his denial of Plaintiff’s request that he certify the issue to the 9th Circuit Court of Appeals, Plaintiffs continue to believe that the District Court erred by referring to the arbitrator the question of whether the case is exempt from arbitration under Section 1 of the Federal Arbitration Act. Plaintiffs continue to believe that the issue was wrongly decided, contrary to every decision to have considered the issue, and thus are today presenting the issue to the 9th Circuit Court of Appeals on a petition for mandamus. Click here to read a copy of the petition for mandamus. (final mandamus petition _2_.pdf 128KB) A Writ of Mandamus is an extraordinary writ that seeks to have a Court of Appeals correct error by a district court, even though no appeal is presently available. Although such writs are sparingly granted, Plaintiffs believe there are strong grounds for the 9th Circuit to hear the issue at this time.
last edited on Friday, December 10 2010 at 12:53pm
Posted on Monday, December 6 2010 at 9:29am
Judge Sedwick denied Plaintiffs’ motion for reconsideration (229 ORDER FROM CHAMBERS denying Plaintiffs’ Motion for Reconsideration.pdf 13KB). After this order, Judge Sedwick denied Plaintiffs’ request that he certify the issue to the 9th Circuit Court of Appeals. Plaintiffs continue to believe that the District Court erred by referring to the arbitrator the question of whether the case is exempt from arbitration under Section 1 of the Federal Arbitration Act. Plaintiffs continue to believe that the issue was wrongly decided, contrary to every decision to have considered the issue, and are weighing and preparing their next actions in response.
last edited on Monday, December 6 2010 at 9:39am
Posted on Wednesday, October 20 2010 at 5:32pm
Many owner operator drivers who have turned in their trucks, or who have had their trucks repossessed, have received debt collection notice letters from IEL or collection agencies working on its behalf (for example Partners Financial or ACRS). The letters claim that these drivers owe money.
Many drivers do not know why they owe money or they dispute the debt claim. In this case, Swift and IEL claim that they do not attempt to collect the full amount of unpaid lease payments. See the post above dated Monday, August 2, 2010 for fuller information. If you are being billed for the full amount of remaining lease payments, download and attach the declaration of Ms. Parrish in that post which states that IEL does not actually collect full remaining lease payments.
If you receive a letter informing you that you owe a debt, and you dispute this debt, you should know that under the Fair Debt Collection Practices Act, you may send the bill collector a letter that you dispute the debt. If you are already a plaintiff in this case, you may call us if you wish us to send the letter on your behalf. If you dispute the debt, the debt collector must cease collection efforts until the debt is verified. Click here to download a sample letter form to a debt collector, Swift or IEL. (billing dispute form.pdf 6KB) If you wish to send your own letter or are not a plaintiff in this case, please make sure you send the letter by certified mail, return receipt requested. Please also send us a copy of your letter.
This letter should state that you dispute the debt claim and request verification of the claim. Click here for a sample letter to use. When you dispute the debt and request validation, by law, the debt collector must verify the debt claim and must cease debt collection activities during this time period.
last edited on Wednesday, October 20 2010 at 5:33pm
Posted on Tuesday, October 19 2010 at 6:08pm
Plaintiffs have asked Judge Sedwick to reconsider his decision to send this case to arbitration. Specifically, Plaintiffs argue that the Court may only send a case to arbitration if either the Federal Arbitration Act (FAA), or the Arizona Arbitration Act (AAA) applies. We argue that the FAA does not apply because the Plaintiffs are really employees as a matter of law, and FAA section 1 exempts interstate transportation employees such as the Plaintiffs (and the AAA does not apply to employees). The Order compelling arbitration, sent to the arbitrator the question of whether the FAA applies. However, Plaintiffs argue that the question of whether Plaintiffs are employees (and thus whether the exemptions to the FAA and AAA apply) is thus an issue the Court must address first. Click here to review the Plaintiffs’ motion for reconsideration. (226 Motion for Reconsideration re Order on Motion to Certify Class.pdf 45KB) Reconsideration is not commonly granted, but in this case, Plaintiffs believe the Court overlooked clear law. Alternatively, Plaintiffs requested that the Court grant an immediate appeal. Furthermore, in accordance with the Court’s order compelling arbitration, on October 8, 2010, Plaintiffs have filed a demand for arbitration with the AAA on behalf of all Plaintiffs, including those who have already joined the case.
Posted on Thursday, October 7 2010 at 9:38am
ROUND 1 GOES TO SWIFT
Judge Sedwick was considering three motions, Plaintiffs’ motion for permission to mail a collective action motion to all owner operators, Plaintiffs’ motion for a preliminary injunction, and Defendants’ motion to move the case to arbitration. Judge Sedwick did not rule on the Plaintiffs’ motions, but did rule that the case must go to arbitration.
In the motion, defendants Swift and IEL claimed that the arbitration clause which they inserted in the ICOA demands that the case go to arbitration before the American Arbitration Association (“AAA”). Plaintiffs objected, noting that the Lease agreement requires that claims be heard in Court. Plaintiffs pointed out that the claims arise primarily from the Lease or under both clauses, and since the clauses conflict, they must legally be considered against the party who drafted them. Plaintiffs also argued that the arbitration clause was unconscionable and the defendants had waived the argument through their litigation tactics.
Unfortunately, Judge Sedwick ruled that the Swift arbitration agreement compels all issues in this case to be heard by an arbitrator, rather than the Court. Click here to review the arbitration decision. (223 Order and Opinion Compelling Arbitration.pdf 60KB) Remarkably, Judge Sedwick entirely failed to address the primary argument advanced by the Plaintiffs, that is, that the arbitration clause in the ICOA was flatly contradicted by the clause in the Lease, strictly requiring the claims in this Case to be heard in Court. And to make matters worse, Judge Sedwick ruled in such a way that no appeal of his ruling is permitted, until after the arbitration occurs.
You should know that the conservative Supreme Court and previous conservative Congresses have, for the last two decades, increasingly made arbitration a priority for all employment and consumer cases, effectively allowing large and powerful companies the power to insulate themselves from lawsuits by cantankerous employees and consumers they have cheated. They and their teams of lawyers can simply remove the constitutional guarantee of a court or jury from those who would sue them. This secret removal of poor and middle income people’s legal rights has been accomplished far from the public limelight, as it is a technical issue that most people simply don’t understand and don’t pay attention to — that is until it happens to them. Along with this removal of the remedy of going to court, is the fact that “class action waivers” – clauses that companies write into the form agreements they have customers or employees sign which prohibit claims being brought as class actions, have frequently been held to be valid. Class actions allow employees to work together to gather evidence, and reduce costs by spreading the costs over a much larger group. The effect of these twin doctrines has been that employees and consumers are shunted into a forum favorable to the companies that support them and they are barred from taking action collectively. The net effect is that claims are far more difficult and expensive to bring, allowing the companies to avoid the normal legal consequences for their illegal behaviors. For more information on arbitration cases generally, see http://www.tlpj.org the website of a public interest law firm primarily working on arbitration issues.
This is a serious and negative ruling that makes many aspects of the case more difficult for us. As a general rule, the arbitration forum is considered more beneficial for large corporations for many reasons (indeed, that is why Swift demanded it in the ICOA). Among other things, it prevents employees from having access to much of the internal company documents that can be necessary to win their claims. Depositions of company officials may not be available, for example. But as with any procedural ruling at the start of the case, this ruling will be a two-edged sword that Plaintiffs can use as well. It is true that the ruling will create difficulties for Swift as well as the trucker Plaintiffs. There are significantly greater costs to arbitration for both the Plaintiffs and Swift. And all of these costs will ultimately be borne by Swift if the arbitrator rules for Plaintiffs.
Also, on the plus side for Plaintiffs, arbitration is a much more streamlined process and Swift is unlikely to be able to tie up the litigation for long periods of “discovery” in which they would be able to depose and question truckers for months or years before trial.
The Plaintiffs’ legal team will be carefully analyzing the ruling and our next steps this week as we prepare for the arbitration. We will post further updates shortly to let you know just how we intend to use this ruling to ultimately prevail and force Swift to comply with the law.
While we are very disappointed in this ruling, which we consider to be completely incorrect, this is a very preliminary ruling which may also turn out to help us further down the road.
Posted on Monday, August 2 2010 at 4:32pm
In order to argue against Plaintiffs’ motion for a preliminary injunction barring Swift and IEL’s collections for the full amount of the remaining lease payments following their putting a driver in “default” status, Swift has filed a remarkable affidavit, stating that Defendants will demand the full remaining lease payments in its demand from drivers, but will not, in fact, seek all remaining payments. Elizabeth Parrish has filed an affidavit stating that a “lessee [in default] is responsible only for costs incurred by IEL in preparing the truck for re-lease, and any lease payments missed prior to the re-lease or sale of the truck.” See Paragraph 9. Click here to review the Parrish affidavit. (175 Declaration of Elizabeth Parrish 172 Response to Motion.pdf 297KB) Thus Swift and IEL are admitting that they overbill drivers, but stating that they will not actually pursue such overbilled amounts. Drivers who received demands for all remaining Lease payments following a “default” should show this Parrish affidavit to any collections agency or credit reporting agency. Further, please let Getman Sweeney know if you have been overbilled by defendants, or threatened with the higher charges.
Posted on Friday, July 23 2010 at 3:14pm
Plaintiffs filed their Opposition to Defendants’ Motion to Compel Arbitration of the claims in this case. Plaintiffs argument is based on the fact that the Lease agreement demands that claims be litigated in Court, that the ICOA’s arbitration provision conflicts with the Lease and is superceded by it. Also, the Federal Arbitration Act and the Arizona Arbitration Act bar enforcement of arbitration for employees in interstate transportation. Finally, Plaintiffs claim that the arbitration clause is unconscionable for various reasons, including the provision of a shortened statute of limitation, imposition of the “Commercial Rules” instead of the “Employment Rules”, imposition of heightened costs on the Plaintiffs, and the ban on class action arbitration. While the arguments are highly technical, the issues are critical to the ability of Plaintiffs to efficiently secure full relief for all members of the various classes. Click here to read Plaintiffs’ Opposition to the Defendants’ Motion to Compel Arbitration. (188 P Response in Oppose Motion to Compel Arbitration and Dismiss P claims.pdf 152KB)
Posted on Friday, July 23 2010 at 3:09pm
Plaintiffs have filed their reply brief in support of certification of a collective action and the mailing of notice to all potential class members in the case. Click here to review Plaintiffs’ Reply Brief. (187 p Reply in Support MOTION to Certify Class.pdf 78KB)
Posted on Tuesday, July 20 2010 at 2:33pm
Swift has filed its opposition to Plaintiffs’ motion for a Preliminary Injunction. Our motion seeks to stop Lease collections efforts against truckers until the Court determines if the Lease is lawful. We also seek to stop any negative reporting to DAC or DriverFACTS. We also seek to stop Swift from making mid-term changes disadvantageous to drivers to the ICOA contract. Click here to review Swift and IEL’s response to our motion. (172 D Response to P Motion for PI.pdf 125KB) Drivers who have information contrary to the claims raised by Swift are urged to call Getman Sweeney and speak with Janice or Kathy. On July 21st, the Court extended Plaintiffs deadline to file reply papers on the motion to August 3, 2010.
last edited on Friday, July 23 2010 at 3:17pm
Posted on Friday, July 2 2010 at 11:23am
Getman Sweeney would like to speak with former Swift Owner Operators who have documents or other evidence (such as photographs, emails, QualComm messages) concerning:
1) collections efforts by Swift after turning in their truck or having it repossessed, or
2) a negative DAC report from Swift or IEL, or
3) a negative credit report from Swift or IEL, or
4) mid-contract changes demanded by Swift or IEL under threat of having the truck repossessed or the driver put on safety hold until a signature is given.
If this happened to you and you have such proof, please contact paralegals Janice Pickering or Kathy Weiss (845)255-9370 to discuss.
Posted on Tuesday, June 29 2010 at 11:33am
Plaintiffs have renewed their motion for a preliminary injunction in this case. The motion asks the Court to rule that Plaintiffs are likely to win the case on the issue that the Lease/ICOA is “unconscionable.” Specifically, Plaintiffs claim that the ability of Swift to fire “owner operator” drivers for any reason or no reason, to then declare this firing as a “default” by the driver, to take repossession of the truck and still demand all payments that would have been due, even though the driver no longer has the truck, are so unfair as to be “unconscionable” under the law. The motion seeks to prevent Swift and IEL from 3 activities during the pendency of the case. First, Plaintiffs ask the Court to forbid Swift from taking collections measures (including negative DAC reports) on any driver deemed to be in “default.” Second, Plaintiffs ask the Court to forbid Swift from requiring drivers to agree to contract changes under threat of being put in “default.” Click here to read the brief in support of Plaintiffs’ PI motion. (FINAL PI BRIEF_AZ.pdf 207KB)
Posted on Friday, May 14 2010 at 10:00am
On May 11th, Plaintiffs made a motion to certify the Fair Labor Standards Act minimum wage claims in this case as a “collective action.” The motion seeks court approval to mail a notice of the case to all class members, advising them of their rights to join the case. Click here to read the Plaintiffs’ motion papers. (108 MOTION to Certify Class.pdf 124KB) Of course, individual truckers who leased a truck from IEL and drove for Swift are permitted to raise FLSA claims now by filing the Consent to Sue form which is
Posted at the top of this web page.
Defendants have already contacted the Court’s chambers to request information from the Court on how to delay all briefing on the plaintiffs’ motion while defendants get their motion to send the case to arbitration ready, which is due by May 25, 2010. Judge Sedwick’s chambers would not address that request unless defendants make it in motion form, which is expected shortly.
Posted on Monday, April 12 2010 at 4:22pm
The attorneys are interested in speaking with FORMER driver managers and other FORMER Swift and IEL management (including recruiters for IEL) to learn the details of how Swift and IEL’s operations worked from the perspective of those inside the companies. FORMER employees are encouraged to call Getman & Sweeney and ask to speak with Dan Getman or Carol Richman. ALSO, DRIVERS WHO HAVE CONTACT INFORMATION (SUCH AS NAME, TELEPHONE # OR ADDRESS) FOR FORMER MANAGEMENT EMPLOYEES OF SWIFT AND IEL ARE ENCOURAGED TO CALL JANICE PICKERING OR KATHY WEISS TO GIVE CONTACT INFORMATION.
Posted on Tuesday, April 6 2010 at 11:53am
On April 5th, Judge Berman transferred venue in the case to the U.S. District Court for the District of Arizona. Judge Berman found that most of the events involved in the suit emanate from Arizona and that therefor the suit should be transferred. The pending motion for a preliminary injunction will be refiled in Arizona. All individuals who filed consents to sue in the case remain in the case in Arizona. Although we hoped Judge Berman would keep the case, venue transfer motions are easy ones for defendants to win. Although the case is venued in Arizona, the case was assigned to a Judge from Alaska, the Honorable John W. Sedwick. A Magistrate Judge has not yet been assigned.
last edited on Wednesday, May 12 2010 at 6:11pm
Posted on Tuesday, April 6 2010 at 11:48am
On April 2nd, Plaintiffs moved for a “preliminary injunction” to stop Swift and IEL from instituting collections measures and to prevent them from furnishing negative credit reports on drivers they consider to be in default. Plaintiffs ask the Court to find that the lease and ICOA are “unconscionable” as a matter of law and that Swift misclassifies owner operators as independent contractors, instead of treating them as employees as the law requires. We argue that since the Lease and ICOA are likely to be found to violate the law, irreparable injury will occur to drivers if Swift is allowed to enforce its agreements in this way. Click here to read the brief in support of the motion. (69-2 Supplemental Memorandumn.pdf 133KB)
Posted on Wednesday, March 31 2010 at 4:21pm
Judge Berman has set a Court conference for April 5, 2010 at 9:30 a.m. in his Courtroom at the U.S. District Court in Manhattan to discuss the pending motions (transfer of venue, arbitration).
Posted on Wednesday, March 31 2010 at 4:20pm
Swift is routing certain owner operator drivers to select terminals to meet with its lawyers. No person who has joined this lawsuit by filing a consent to sue should participate in such a meeting without the presence of a lawyer from Getman Sweeney. And we believe that no driver should be forced to participate in this meeting. If a driver participates in such a meeting, he or she should request a copy of any papers that they are asked to sign. Getman Sweeney would like to speak with any participants in the meetings who would care to discuss what occurs.
Posted on Thursday, March 25 2010 at 9:43am
Plaintiffs have amended the complaint to raise claims under the federal “Forced Labor” statute, 18 U.S.C. §1589 and 1595, and to make various other claims in the case. Click here to review the Second Amended Complaint. (2nd amended stamped.pdf 946KB) Defendants have not yet answered the complaint, as their motion to transfer venue allows them to avoid this requirement for the time being.
Posted on Thursday, March 25 2010 at 9:38am
Plaintiffs have responded to Defendants’ request for permission to move to transfer the case to arbitration. Click here to review plaintiffs’ letter brief. (ltr to Berman stamped 3.24.10.pdf 2MB)
Posted on Wednesday, March 24 2010 at 4:14pm
Defendants have requested Judge Berman to give them permission to make a motion to dismiss the case in favor of arbitration. Click here to review defendants’ letter brief. (Def to J Berman re arbitration 3-19-10.pdf 143KB)
Posted on Thursday, March 11 2010 at 10:05am
On March 3, 2010, defendants filed their reply papers asking Judge Berman to transfer the case to Arizona. Click here to see Swift and IEL’s reply. (2.22 Def Letter Reply re Venue.pdf 354KB) The matter now sits with Judge Berman. We have filed discovery demands asking Swift and IEL to provide documents we believe will be primary evidence in the case. Plaintiffs have also served a subpoena on QualComm to obtain evidence of instructions (demonstrating control) that Swift or IEL sends drivers considered to be owner operators.
Posted on Thursday, March 11 2010 at 10:01am
On February 23rd, we filed an opposition to the transfer of venue. Click here to review our letter brief. (FINAL Letter Brief Opposing Transfer.pdf 70KB) Any truckers interested in seeing the 90 pages of exhibits that were attached to the Court filing should contact Getman Sweeney for a copy.
last edited on Thursday, March 11 2010 at 12:30pm
Posted on Friday, February 19 2010 at 1:08pm
Judge Berman also imposed the following case management plan directing that discovery begin in the case. Click here to review the Case Management Plan in the case. (20 CASE MANAGEMENT PLAN.pdf 46KB)
Posted on Friday, February 19 2010 at 1:06pm
A brief initial conference was held by U.S. District Judge Richard M. Berman in this case. Defendants also asked the Court to permit them to make a motion to transfer venue of the case to Arizona — that is to seek home field advantage. Click here to review Defendants’ Letter Brief requesting transfer of the case to Arizona. (Def. letter mot to dismiss.pdf 88KB) Judge Berman accepted defendants letter as the motion to transfer venue and asked plaintiffs to respond. This tactic was fully expected. Plaintiffs will serve their reply letter brief to the Court by Wednesday, February 24, 2010.
Posted on Friday, February 12 2010 at 2:09pm
Any truckers who are part of this case, or who are considering whether to join this case, are welcome to stop by Getman Sweeney to discuss the case and your individual facts. We are located immediately next to New York Thruway Exit 18, which has ample truck parking just at the toll plaza. Please let Janice Pickering know, in advance if possible, if you might be stopping by and we can pick you up at the toll plaza. Paradies Lane, where our office is located, is a spur and does not have room to turn around a trailer.
Posted on Friday, February 12 2010 at 2:05pm
The initial scheduling conference has been set by Judge Berman for February 17, 2010 at 9 am in courtroom 21B of the U.S. District Court, 500 Pearl Street, New York, New York 10007-1312. While scheduling conferences are not generally attended by clients and at times can be short and uninteresting, any truckers who are interested in this case are welcome to be present.
Posted on Thursday, February 11 2010 at 4:26pm
Plaintiffs have amended the complaint to add an additional named plaintiff and to clarify the claims brought in this case. Click here to see the First Amended Complaint. (17 frist amended cplt.pdf 869KB) Defendants have not yet “answered” the complaint.
Posted on Thursday, February 4 2010 at 5:11pm
Dan Getman, the attorney for the plaintiffs in this case will be speaking about the Swift case with Evan Lockridge on his show the Lockridge Report, Thursday, February 11, 2010, on Sirius XM Satellite Radio’s Road Dog Trucking channel 147 (the Lockridge Report airs weekdays 2 pm eastern/1 pm central).
last edited on Wednesday, February 10 2010 at 4:49pm
Posted on Thursday, December 24 2009 at 3:04pm
Answers to Common Questions:
What claims are covered in this lawsuit?
The lawsuit claims that Swift and IEL treated the truckers who leased trucks through IEL as “independent contractors” when they were really employees of Swift AS A MATTER OF LAW. As such, Swift and IEL failed to pay all the wages due, and made unlawful deductions from truckers’ pay for truck lease payments, gas, equipment, maintenance, insurance, tolls, Qualcomm, and bonding, etc. The case raises class action claims under the law of contract, and under various state laws which also protect workers from unlawful deductions (so far, the state laws of New York and California, however additional state statutes will apply to workers in other states). The case also raises claims that the ICOA and lease are unconscionable in that Swift can terminate the lease for any reason at all, then continue to demand that all lease payments (including profit to Swift) continue to be made. Other grounds for unconscionability include the imposition of liquidated damages and the mischaracterization of employees as independent contractors.
What remedies are sought?
Under the federal minimum wage law, back pay and an equal amount of liquidated damages are claimed for each violation. Under the law of contract, plaintiffs seek to declare the contracts void or voidable for unconscionability. In addition, under wage protections statutes, plaintiffs seek to compel Swift to reimburse truckers for the various deductions from their pay, including truck lease, insurance, gas, tolls, maintenance, etc. In addition, plaintiffs seek to compel reimbursement for additional employer expenses borne by truckers.
How far back can claims be made?
Generally claims can be made at least for the three years preceding the date the complaint was filed. You are entitled to file FLSA claims (using the Consent to Sue form) for the period extending back three years from the date you file the form. State statutory and contract claims have different limitation periods (six in NY, four in CA). Other states have different limitation periods. Please call if your lease ended over three years ago and you wish to join the case.
Do I have to pay to join the case?
No. The attorneys are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment. When plaintiffs win a pay case, the defendant must pay the plaintiffs’ costs and attorneys fees.
Can I wait to file my Consent To Sue Form?
You may be part of the class action if the Court later “certifies the case as a class action.’ However, certain claims under the Fair Labor Standards Act are not covered in the case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue Form, part or all of your claim may be barred by the “statute of limitation.”
Can SWIFT or IEL fire me or take action against me for joining the lawsuit?
The law prohibits retaliation for joining a pay lawsuit. If any employee suffered retaliation, Swift and IEL would be liable for double the injury caused by retaliation against an employee. Notify us immediately if you hear of any threats of retaliation or if you think any retaliation occurs. Retaliation is extremely rare in overtime cases, because an employer can suffer such serious penalties.
What locations are covered by this lawsuit?
Past and present truckers driving for Swift as “owner operators” anywhere in the U.S. may be included in this lawsuit.
last edited on Thursday, February 11 2010 at 10:18pm
Posted on Wednesday, December 23 2009 at 9:52am
The document which starts a lawsuit is called a “complaint.” Click here to review the complaint in this case. (ComplaintNY.pdf 76KB)