Western Express

This lawsuit is brought as a nationwide class and collective action on behalf of truckers who lease a truck from New Horizons Leasing, Inc. and are treated as “owner operators” by Western Express, Inc. The lawsuit claims that Western Express 1) misclassifies drivers as “independent contractors,” exercising virtually the same control over lease operators as it does over its employees, and then makes unlawful deductions from their wages, resulting in minimum wage violations; 2) misrepresents the amount the amount drivers will make as “owner operators,” and; 3) engaged in a scheme of “forced labor” coercing drivers to drive for Western Express even though it was unprofitable, under threat of financial harm if they tried to leave. Plaintiffs seek unpaid wages as secured by the Fair Labor Standards Act (minimum wages), liquidated (double) damages, damages for unlawful deductions, costs and attorneys’ fees as well as declaratory relief under the Fair Labor Standard Act (FLSA) and state wage laws.The complaint was filed on August 25, 2017 in the United States District Court for the Middle District of Tennessee. You can see the complaint by clicking here.

Any truck driver who leased a truck from New Horizons Leasing, Inc. to drive for Western Express, Inc. at any time during the period three years prior to March 15, 2018 (i.e., March 15, 2015 to the present) is eligible to join the case. To join the case, fill out and sign a Consent to Sue form and return it to Getman, Sweeney & Dunn, PLLC. The Consent to Sue form is available here.

How to Join this Case

If you have also worked for this defendant you can join this case by downloading and filling out the Consent to Sue form and faxing, emailing, or mailing it to Getman Sweeney. You need the free Acrobat Reader installed to view the form.

Status Reports

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. Although the case is stayed, “owner operators” employed by Western Express who leased a truck from New Horizons can still join the action by filing a Consent to Sue form.

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. Class members can continue to join the case during the stay by filling out a Consent to Sue form.

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. (Class Members don’t have to wait to receive notice, they can join the case now by filing 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 (using the Consent to Sue form) 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.

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