Western Express

Case Update - Posted November 8, 2022

The Settlement Administrator began mailing award checks to the drivers on Friday, November 4 via USPS. Some checks will be mailed out later due to issues with acquiring correct Social Security numbers.  If you have questions, you can contact the Administrator at 833-594-1999. If you need to update your mailing address, you can do so on the Administrator’s website: elmyvwesternexp.com.

Case Update - Posted September 2, 2022

The settlement was approved by the court at the Final Fairness Hearing on August 29, 2022. This judgment begins a timeline for the rest of the settlement process. The court entered the settlement approval on August 29. The 30-day Appeal Period ends on September 28, 2022 (this is the settlement Effective Date). Settlement checks should be issued 14 business days after the Effective Date. According to this timeline, we expect checks will be mailed in late October to early November 2022. Please continue to check back here for further updates, and if any of your contact information changes please call the Settlement Administrator at 833-594-1999 to update it.

Case Update - Posted May 31, 2022

On May 19, 2022, Judge Campbell granted preliminary approval of the settlement and a Notice of Class Action Settlement was sent to the Settlement Class Members by mail on May 27, 2022. The period for responding to the Notice will end on June 27, 2022. A response is only necessary if a Class Member wishes to opt out of or challenge the settlement. The Court will hold a final approval hearing on August 29, 2022 in Courtroom A826 of the Estes Kefauver Federal Building and United States Courthouse, 801 Broadway, Nashville, TN 37203. If the Court approves the Settlement, and if there is no appeal, settlement checks will be mailed out approximately 60 days from the date the Court enters the final approval order. If your mailing address has recently changed, it is important to update it with the Claims Administrator. You can do so by calling them at 833-594-1999 or visiting their website: https://www.elmyvwesternexp.com/. You can also contact us at 845-943-6234 or ebates@getmansweeney.com.

Case Update - Posted May 18, 2022

The Parties negotiated an agreement in principle to settle all claims and issues in this matter. On February 28, 2022, Plaintiffs filed an unopposed motion asking the Court to preliminarily approve the settlement and are awaiting the Court’s ruling.  Once the Court preliminarily approves the settlement, a claims administrator will mail a Notice of Class Action Settlement to all the Settlement Class Members.  The Notice will include the details of the settlement and what options Settlement Class Members have regarding their claims.  The Court will hold a final approval hearing after the period for responding to the Notice has run. If the Court approves the Settlement, settlement checks will be mailed out approximately 60 days from the date the Court enters the final approval order. We will update this posting as soon as the Court rules on the preliminary approval motion.  We encourage you to check the website periodically.

It is very important that if your mailing address has recently changed or you are unsure whether we have your current contact information, please update it by emailing us at ebates@getmansweeney.com or calling us at 845-255-9370.

Case Update - Posted August 4, 2021

On July 27, 2021, Judge Campbell granted our motion for class certification on the claims of fraud, misrepresentation, unjust enrichment, federal forced labor, Truth in Leasing Act violations, and breach of contract. Click here to see the Court’s Order. While the Court did not decide if Western Express and New Horizons acted illegally, the decision means that all drivers who leased a truck from New Horizons Leasing, Inc. to drive for Western Express, Inc. and executed a Contract Hauling Agreement at any time from August 25, 2014 to the present are included in the action. We will send notice to class members soon. Anyone who wants to be remain part of the case to recover back wages and other damages does not need to take any further action.

Mediation Update - Posted December 8, 2020

We attended a mediation for the case on November 18. Unfortunately, after a full day of discussions with Defendants’ lawyers through the mediator, we were not able to come to an agreement to settle any of the claims. This means that there will be no settlement at this time and the case will be moving forward in litigation. On November 12, the Court issued a scheduling order which included details regarding discovery.  Based on the order, we will soon be randomly selecting discovery representatives for the case who will be expected to respond to written interrogatories and requests for production. This means that if you have opted into the case, we may be reaching out to you in the coming weeks for discovery responses. You should also retain any documentation related to your time working with Western Express that you have in your possession. As always, please let us know immediately if any of your contact information changes (address, telephone number, email) so that we can always communicate with you when we need to. We thank you in advance for your cooperation.

Court Denies Defendants’ Motions to Dismiss Claims – posted April 13, 2020

On April 10, 2020 Judge Campbell issued an Order denying the Defendants’ Partial Motions to Dismiss. Defendants Western Express and New Horizons each submitted a Partial Motion to Dismiss on May 6, 2019. Defendants moved to dismiss Plaintiffs’ Federal Forced Labor, Tennessee common law unenforceable contract, Tennessee common law unjust enrichment, Truth-in-Leasing Act, and breach of contract causes of action for failure to state a claim upon which relief can be granted. Defendant New Horizons also moved to dismiss Plaintiffs’ FLSA misclassification claims against it. Plaintiffs opposed these motions in a motion submitted to the Court on June 21, 2019, and Defendants filed replies on July 10, 2019.

In denying Defendants’ motions to dismiss, the Court found that all of Plaintiffs’ claims in issue had “facial plausibility” because “the plaintiff plead[ed] facts that allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” The Court’s decision means that all of Plaintiffs’ claims against Defendants will move forward into the “discovery” phase.

If you have opted into this case, it’s important to update us if any of your contact information changes so that we can keep in touch with you. You can update your information by sending an email to ebates@getmansweeney.com, or by calling our office at 845-255-9370.

Reminder Postcard Mailed; Deadline Approaching to Opt Into Case - posted March 27, 2020

On March 18, 2020, we sent out a reminder via postcard and email about the deadline to join the case. If you drove a truck for Western Express that you leased from New Horizons at any time since August 25, 2014, you have until April 8, 2020 to opt into this case. Once you have opted in, it’s important to update us if any of your contact information changes so that we can keep in touch with you. You can update your information by sending an email to ebates@getmansweeney.com, or by calling our office at 845-255-9370.

Court Approves Plaintiffs’ Proposed Notice and Consent Forms; Notice Mailed and Emailed Today - posted December 27, 2019

On December 10, 2019, Judge Campbell issued an Order that potential class members must receive a Notice explaining their right to join the case. Any individual who leased a truck from Defendant New Horizons to drive for Defendant Western Express, at any time from August 25, 2014 to the present is eligible to join the case and should receive a Notice. In order to join the case, eligible drivers must fill out and return a Consent to Sue form by April 8, 2020. In his ruling, Judge Campbell rejected a number of objections that Defendants made which would have minimized the number of drivers who would have joined the case. The ruling also directed Defendants Western Express and New Horizons to provide names and contact information of potential class members by December 17, 2019 to Getman, Sweeney & Dunn, who are sending out notice to drivers by mail and email today.

Supreme Court has Decided New Prime v. Oliveira Case- Posted January 17, 2019

The Western Express lawsuit was stayed pending the US Supreme Court’s decision on the New Prime v. Oliveira case. The Court issued its decision on January 15, 2019. We are pleased with the outcome. It clarifies two important issues that impact truck drivers, including current and potential plaintiffs in this case.

The Federal Arbitration Act (FAA) governs when courts enforce agreements to arbitrate. The FAA contains an exclusion from arbitration for disputes involving the “contracts of employment” of certain transportation workers. In its review of the New Prime case, the Supreme Court decided that a court, rather than an arbitrator, must first decide whether a claim falls under the FAA’s exclusion from arbitration. Secondly, the Court ruled that the phrase “contracts of employment” refers to any work contract, not just contracts which call a worker an employee as opposed to a contractor. This means that, in most cases, truckers cannot be forced into arbitration under the FAA even if they are classified as independent contractors.

Shortly after our Western Express case was filed in the US District Court for the Middle District of Tennessee, the Court granted Western Express’ request to put it on hold until New Prime was decided. Now that the Supreme Court has decided the New Prime case, we expect active litigation in our case to begin again.

Important Actions During the Stay– Posted August 3, 2018

The District Court stayed activity including discovery in this action (that is, put it on hold) until the U.S. Supreme Court decides certain issues in another case, New Prime v. Oliveira. The Supreme Court will hear oral argument in the New Prime case on October 3, 2018, and it is unlikely that the Court will issue a decision until the spring or summer of 2019.

During the wait, it is important that people who have joined or are considering joining the action in the future keep us updated on any changes to contact information and preserve any documents or electronic information related to their employment. (Although drivers are not required to have documentary or electronic evidence, if you do have it you must not discard or destroy it.) It is also important to preserve memories. We encourage anyone who is willing to provide information about Western Express and New Horizon’s “owner operator” practices to call our office.

Case is Stayed Pending Supreme Court Review of New Prime v. Oliveira – Posted April 6, 2018

The Court has granted Defendants’ Motion to Stay (put on hold) the case pending the Supreme Court’s decision in the New Prime case. You can read the full order here.

The Court in this case has ruled that the Supreme Court’s decision in the New Prime case will clarify the issue of whether this case should proceed in the court system or should be sent to private arbitration for resolution. The Supreme Court likely will hear the New Prime case during the October 2018 term, though a date has not yet been set. The Supreme Court’s final decision will be issued sometime after that.

Because of the stay, the Court also denied without prejudice Plaintiffs’ request to certify a class and send notice of the lawsuit to potential class members. This means that, while the Court will not certify a class or allow notice to be sent at this point, Plaintiffs may be able ask the Court again once the stay is lifted. However, the Court did grant Plaintiffs’ request to “toll” the statute of limitations as of March 15, 2018, so as not to harm potential opt-ins because they will not receive notice at this time. This means that when a new driver joins the case, their claim period will go back two to three years from March 15, 2018, rather than two to three years back from the date they join the case.

Additionally, the Court is still deciding whether any discovery can take place during the stay. Discovery is a stage in a lawsuit where both sides exchange information to gather the facts about the case. We will post a new update when the Court issues its decision about discovery.

Plaintiffs Oppose Delay and Ask the Court to Conditionally Certify a FLSA Class – Posted March 23, 2018

On March 15, 2018, Plaintiffs asked the Court to find that drivers who drove for Western Express and leased from New Horizons Leasing are “similarly situated” to the Named Plaintiff in this case (“the class”). Similarly situated means that the drivers were subject to the same illegal policies and practices as the named Plaintiff and therefore have the same claims against Defendants. If the Court agrees with Plaintiffs, it should approve sending notice to the class that explains the case and gives class members the opportunity to join by filling out a Consent to Sue form. You can view the Plaintiffs’ motion here: Plaintiffs’ Motion to Conditionally Certify a Fair Labor Standards Act Collective Action and Authorize Notice to be Issued to the Class

On March 16, 2018, Plaintiffs submitted argument against Defendants’ request to “stay” this case (put it on hold). The Defendants have asked the Court to stay this case until the Supreme Court decides a different case. Plaintiffs responded that the case should not be stayed because (1) the Supreme Court case does not involve the same issues in this case; and (2) delaying the case will be harmful to both Plaintiffs (drivers who have already joined the case) and drivers who are similarly situated but have not received notice of their rights and the opportunity to join this case. You can view the Plaintiffs’ argument here: Plaintiffs’ Response to Defendants’ Supplemental Motion to Stay Pending the Decision of the Supreme Court in New Prime, Inc. v. Oliveira.

We do not know when the Judge will rule on either of these motions. We will update our website once the decisions are made.

Plaintiffs Oppose Defendants’ Motion to Compel Arbitration – Posted January 8, 2018

Defendants, Western Express and New Horizons Leasing, have asked the Court to send the case to arbitration. Arbitration is a way of privately resolving disputes outside of the court system. Defendants assert that the Named Plaintiff signed a contract that contained an agreement to arbitrate disputes and a class action waiver. Defendants argue that as a result of this, the Court must order both sides to resolve the claims of the case in arbitration rather than in federal court, and individually instead of in a collective or class action.

Plaintiffs, the drivers who have joined this case, have opposed Defendants’ motion to compel arbitration on several grounds. Plaintiffs argue that the drivers in this case are exempt from the Federal Arbitration Act, the law that Defendants seek to compel arbitration under. Plaintiffs further argue that the arbitration agreement and the class action waiver violate several federal laws and are unreasonably unfair to Plaintiffs, and are therefore unenforceable.

We now await the Judge’s decision on this matter. We will post another update once it is decided.

Answers to Common Questions – Posted August 31, 2017

What claims are covered in this lawsuit?

The lawsuit claims that Western Express and New Horizons Leasing treated the truckers who leased trucks through New Horizons as “independent contractors” when they were really employees of Western Express AS A MATTER OF LAW. As such, Western Express and New Horizons 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 also raises class action claims under Tennessee laws for fraud and misrepresentation for Western misrepresenting the amount drivers would make as “owner operators”. The case also raises class action claims that Western Express and New Horizons operate an unlawful scheme to force drivers to work only for Western Express for long periods by threatening them with serious financial harm, exorbitant debt, and harm to their DAC Reports if they fail to drive for Western Express. The case also raises claims that the Contract Hauling Agreement (“Contract”) and Equipment Lease (“Lease”) are unconscionable in that Western Express can terminate the Lease for any reason at all, then continue to demand that all lease payments 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 Tennessee fraud and misrepresentation laws, plaintiffs seek the difference between what Western Express represented owner operators would be paid and what they were actually paid. Plaintiffs also seek compensatory damages and punitive damages for the forced labor violations. Under the law of contract, plaintiffs seek to declare the Contracts void or voidable for unconscionability.

How far back can claims be made?

Generally, claims can be made for at least the three years preceding the date the complaint was filed. You are entitled to file FLSA claims for the period extending back three years from the date you file the form. The Court has granted “tolling” in this case, allowing your FLSA claims to go back three years from March 15, 2018, if you have not already joined before that date. Tennessee fraud and misrepresentation also have a three-year limitation period. Tennessee contract claims have a four-year limitation period. Federal forced labor claims have a ten-year limitation period.

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 Western Express or New Horizons 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, Western Express and New Horizons 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 leasing trucks from New Horizons and driving for Western Express as “owner operators” anywhere in the U.S. may be included in this lawsuit.