njdriver
FedEx Browned
The following article is from the New Jersey Law Journal from November 17, 2016
"In a multidistrict litigation accusing FedEx Ground of misclassifying its drivers as independent contractors, all seven New Jersey class representatives in the case have expressed their opposition to a proposed $25 million settlement. The proposed settlement, on behalf of roughly 900 members of a New Jersey class, short-changes class members by $50 million because it fails to account for their claim under the New Jersey Consumer Fraud Act, according to the objectors. What's more, the settlement fails to consider plaintiffs' increased likelihood of success in the case under a 2015 New Jersey Supreme Court ruling in Hargrove v. Sleepy's, in which the court confirms that the "ABC" test applies to such situations, according to the objectors.
The suit, Tofaute v. FedEx Ground Package System, claims that the company fraudulently induced the plaintiffs to purchase their routes and delivery trucks in an illegal shift of the cost of doing business. The plaintiffs also claim they are "micromanaged" by FedEx to the point that they become defacto employees. The U.S. Judicial Panel on Multidistrict Litigation consolidated more than 70 similar cases before U.S. District Judge Robert Miller Jr. of the Northern District of Indiana in 2005. In 2015, the U.S. Court of Appeals for the Seventh Circuit ruled that FedEx drivers are employees and not contractors. That decision followed a 2014 ruling from the U.S. Court of Appeals for the Ninth Circuit that made a similar ruling in cases concerning workers in California and Oregon.
In early 2016, FedEx Ground began to make settlement offers for the 20 state plaintiff groups that remained in the MDL, said David DiSabato of DiSabato & Bouckenooghe in Mendham, who represents the class representatives along with Greg Kohn of Nagel Rice in Roseland. The offers were made from a $240 million settlement fund, he said. A handful of individual class members have objected to their settlement offers, said DiSabato, but he knows of no other case where an entire state delegation of class representatives have opposed the settlement.
The judge granted preliminary approval to the settlement in August, and the seven New Jersey class representatives filed their objection to final approval of the settlement in the New Jersey action on Wednesday. The judge in the case is expected to hold a fairness hearing on the settlement on Jan. 23, 2017. In their objection, the New Jersey class representatives note that the settlement offer to the North Carolina class does include treble damages and attorney fee-shifting, which are elements of the New Jersey Consumer Fraud Act but are excluded from the New Jersey settlement.
The Consumer Fraud Act applies in the present case because "defendants market the opportunity to become an 'independent contractor' to members of the public under what has been held to be a sophisticated nationwide ruse to avoid basic worker protection laws," the objectors said in court papers. DiSabato said the class representatives in the case, "if they believe they are acting in and putting forth the best interests of the class, do not have to represent the class representatives if the class representatives are urging a better settlement."
Robert Harwood of Harwood Feffer in New York and Susan Ellingstad of Lockridge Grindal Nauen in Minneapolis, who are plaintiffs' co-lead counsel, and Anthony Marchetti Jr. of Marchetti Law in Cherry Hill, who is plaintiffs' co-counsel, did not return calls seeking comment.
Alison Fox of Faegre Baker Daniels in South Bend, Indiana, represented FedEx Ground, and she did not return calls seeking comment."
From The National Law Review
"In a recent decision with significant implications for New Jersey employers, the New Jersey Supreme Court held in Hargrove v. Sleepy’s that the so-called “ABC” test governs the classification of employees and independent contractors under two key New Jersey employment statutes: the Wage Payment Law (“WPL”), which governs the timing and mode of payment of employee wages, and Wage and Hour Law (“WHL”), which obligates employers to pay minimum wages and overtime.
In its decision, which it issued on January 14, 2015, the Court declined to adopt the test used to determine employee-independent contractor classifications under the Fair Labor Standards Act (“FLSA”) – the arguably more nebulous “economic realities” test – on the basis that the ABC test provides greater predictability and income security for workers. As a result, employers must separately analyze whether to classify workers as employees or independent contractors under the WPL and WHL, on the one hand, and under the FLSA, on the other.
The ABC test begins with the presumption that a worker is an employee, thereby placing on the employer the burden of proving otherwise. In order to do so – i.e., in order to demonstrate that the worker is actually an independent contractor – the employer must satisfy all three prongs of the ABC test. Specifically, it must show that:
The worker “has been and will continue to be free from control or direction over the
performance” of the work he or she is responsible for;
Such work “is either outside the usual course of business for which [it] is performed, or that [it] is performed outside of all the places of business of the enterprise for which [it] is performed”; and
The worker “is customarily engaged in an independently established trade, occupation, profession or business...”
OK, a lot of stuff to read, but what does it all mean for you if you are or were a FedEx driver in the State of NJ?
It means quite simply that the 7 named plaintiffs representing the class in NJ feel the current settlement offer from FedEx is woefully insufficient, as it does not include any damages for the alleged violation of New Jersey's Consumer Fraud Act by FedEx. They want the Consumer Fraud Act portion of our original claim to be litigated to seek damages for those alleged violations. If successful, total damage awards would increase by reason of the application of the treble damages standard.
Additionally, under the practice of attorney fee-shifting, the losing party is responsible to pay the legal costs of the winning side.
I happen to know each of the 7 named plaintiffs in the NJ Class Action. They are some of the most determined, involved, and vocal advocates you can find, ANYWHERE! They have been slogging it out since late 2004 and are totally committed to getting the class members every penny they are entitled to.
I know many of you may not have followed this lawsuit closely, or at all, and are just happy to get any amount as soon as possible. I can understand that to some extent, especially in light of the poor state of our economy the last number of years, but ponder this;
Each of these men lost their livelihoods over their convictions in this matter, and as they scrambled looking for other work to keep the lights on and the bills paid, they spent countless hours in attorney's offices, giving depositions, travelling to various legal venues, and keeping you up-to-date on the suit's progress on this site and elsewhere. Each one of them understood and fully accepted the responsibility of being the Class Representatives, and are intent on seeing this all the way through, wherever that may lead. Every FedEx driver in NJ owes them a great deal of thanks and appreciation.
So, they and I are asking for your patience. Heck, it's only been 13 years; what's a few months or a year more going to hurt. Some of you are still driving for FedEx, and the recovery amounts for you will be much greater than any recovery they will receive, seeing as they all were terminated early in this struggle. The clock stopped ticking for them a long time ago, yet they carry on with the knowledge that they serve as worthy and formidable ambassadors.
I ask that each NJ driver sign the objection letter and send it.
OBJECTION TO PROPOSED SETTLEMENT
MICHAEL TOFAUTE, ET AL. v. FEDEX GROUND PACKAGE SYSTEM, INC.,
CIVIL NO. 3:05-CV-00595-RLM-MGG
TO:
Clerk of the Court
United States District Court
For The Northern District of Indiana 204 South Main Street
South Bend, IN 46601
Robert I. Harwood HARWOOD FEFFER, LLP 488 Madison Ave., 8th Floor New York, NY 10022
Scott Voelz, Esq. O’MELVENY & MYERS LLP 400 South Hope Street
18th Floor
Los Angeles, CA 90071
My name is ___________________________. I am a member of the New Jersey Class in the above matter. I reside at __________________________________, and my phone number is ______________.
I object to the proposed settlement of the New Jersey action because the settlement does not provide enough value to the Class Members. The original notice said that the average recovery would be over $71,000 per driver. Now the notice says that was wrong and the average recovery is only $19,000. I now object to that lower amount. Also, the notice now says that all seven of the New Jersey Class Representatives do not agree to the settlement. Those seven drivers are responsible for protecting the best interests of the New Jersey Class. If they do not agree to the settlement, I don’t agree either, and the settlement should not be approved.
Dated: _________________________________
[Name / Signature]
Copy and paste this objection letter into your word processor and mail a copy to each of the three addresses at the top of the letter. If you don't have a computer or a way to print the letter out, Private Message me (njdriver) or Yogus at www.fedexaminer.com. We will make sure you get what you need. Letters must be received to the Court by March 1, 2017. There will be a Fairness Hearing conducted by Judge Miller on March 14, 2017. He must approve the objection for this to move forward. If you are a NJ FedEx driver, former or current, or you know a driver, please instruct them to this site or print out copies of this letter and give it to them, or again, Private Message us. The more letters received by the Court, the greater our chances the Judge will allow this objection to move forward.
Now is your opportunity to make your voice heard. Now is your opportunity to do something that will, in the long run, be more economically rewarding for you and your families. Your objection letters will not be shared with FedEx, so you don't have to fear retaliation if you are a current driver.
DO IT! DO IT NOW!
On behalf of the Class Representatives and myself,
THANK YOU!!!
_________________
I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them - Thomas Jefferson
"In a multidistrict litigation accusing FedEx Ground of misclassifying its drivers as independent contractors, all seven New Jersey class representatives in the case have expressed their opposition to a proposed $25 million settlement. The proposed settlement, on behalf of roughly 900 members of a New Jersey class, short-changes class members by $50 million because it fails to account for their claim under the New Jersey Consumer Fraud Act, according to the objectors. What's more, the settlement fails to consider plaintiffs' increased likelihood of success in the case under a 2015 New Jersey Supreme Court ruling in Hargrove v. Sleepy's, in which the court confirms that the "ABC" test applies to such situations, according to the objectors.
The suit, Tofaute v. FedEx Ground Package System, claims that the company fraudulently induced the plaintiffs to purchase their routes and delivery trucks in an illegal shift of the cost of doing business. The plaintiffs also claim they are "micromanaged" by FedEx to the point that they become defacto employees. The U.S. Judicial Panel on Multidistrict Litigation consolidated more than 70 similar cases before U.S. District Judge Robert Miller Jr. of the Northern District of Indiana in 2005. In 2015, the U.S. Court of Appeals for the Seventh Circuit ruled that FedEx drivers are employees and not contractors. That decision followed a 2014 ruling from the U.S. Court of Appeals for the Ninth Circuit that made a similar ruling in cases concerning workers in California and Oregon.
In early 2016, FedEx Ground began to make settlement offers for the 20 state plaintiff groups that remained in the MDL, said David DiSabato of DiSabato & Bouckenooghe in Mendham, who represents the class representatives along with Greg Kohn of Nagel Rice in Roseland. The offers were made from a $240 million settlement fund, he said. A handful of individual class members have objected to their settlement offers, said DiSabato, but he knows of no other case where an entire state delegation of class representatives have opposed the settlement.
The judge granted preliminary approval to the settlement in August, and the seven New Jersey class representatives filed their objection to final approval of the settlement in the New Jersey action on Wednesday. The judge in the case is expected to hold a fairness hearing on the settlement on Jan. 23, 2017. In their objection, the New Jersey class representatives note that the settlement offer to the North Carolina class does include treble damages and attorney fee-shifting, which are elements of the New Jersey Consumer Fraud Act but are excluded from the New Jersey settlement.
The Consumer Fraud Act applies in the present case because "defendants market the opportunity to become an 'independent contractor' to members of the public under what has been held to be a sophisticated nationwide ruse to avoid basic worker protection laws," the objectors said in court papers. DiSabato said the class representatives in the case, "if they believe they are acting in and putting forth the best interests of the class, do not have to represent the class representatives if the class representatives are urging a better settlement."
Robert Harwood of Harwood Feffer in New York and Susan Ellingstad of Lockridge Grindal Nauen in Minneapolis, who are plaintiffs' co-lead counsel, and Anthony Marchetti Jr. of Marchetti Law in Cherry Hill, who is plaintiffs' co-counsel, did not return calls seeking comment.
Alison Fox of Faegre Baker Daniels in South Bend, Indiana, represented FedEx Ground, and she did not return calls seeking comment."
From The National Law Review
"In a recent decision with significant implications for New Jersey employers, the New Jersey Supreme Court held in Hargrove v. Sleepy’s that the so-called “ABC” test governs the classification of employees and independent contractors under two key New Jersey employment statutes: the Wage Payment Law (“WPL”), which governs the timing and mode of payment of employee wages, and Wage and Hour Law (“WHL”), which obligates employers to pay minimum wages and overtime.
In its decision, which it issued on January 14, 2015, the Court declined to adopt the test used to determine employee-independent contractor classifications under the Fair Labor Standards Act (“FLSA”) – the arguably more nebulous “economic realities” test – on the basis that the ABC test provides greater predictability and income security for workers. As a result, employers must separately analyze whether to classify workers as employees or independent contractors under the WPL and WHL, on the one hand, and under the FLSA, on the other.
The ABC test begins with the presumption that a worker is an employee, thereby placing on the employer the burden of proving otherwise. In order to do so – i.e., in order to demonstrate that the worker is actually an independent contractor – the employer must satisfy all three prongs of the ABC test. Specifically, it must show that:
The worker “has been and will continue to be free from control or direction over the
performance” of the work he or she is responsible for;
Such work “is either outside the usual course of business for which [it] is performed, or that [it] is performed outside of all the places of business of the enterprise for which [it] is performed”; and
The worker “is customarily engaged in an independently established trade, occupation, profession or business...”
OK, a lot of stuff to read, but what does it all mean for you if you are or were a FedEx driver in the State of NJ?
It means quite simply that the 7 named plaintiffs representing the class in NJ feel the current settlement offer from FedEx is woefully insufficient, as it does not include any damages for the alleged violation of New Jersey's Consumer Fraud Act by FedEx. They want the Consumer Fraud Act portion of our original claim to be litigated to seek damages for those alleged violations. If successful, total damage awards would increase by reason of the application of the treble damages standard.
Additionally, under the practice of attorney fee-shifting, the losing party is responsible to pay the legal costs of the winning side.
I happen to know each of the 7 named plaintiffs in the NJ Class Action. They are some of the most determined, involved, and vocal advocates you can find, ANYWHERE! They have been slogging it out since late 2004 and are totally committed to getting the class members every penny they are entitled to.
I know many of you may not have followed this lawsuit closely, or at all, and are just happy to get any amount as soon as possible. I can understand that to some extent, especially in light of the poor state of our economy the last number of years, but ponder this;
Each of these men lost their livelihoods over their convictions in this matter, and as they scrambled looking for other work to keep the lights on and the bills paid, they spent countless hours in attorney's offices, giving depositions, travelling to various legal venues, and keeping you up-to-date on the suit's progress on this site and elsewhere. Each one of them understood and fully accepted the responsibility of being the Class Representatives, and are intent on seeing this all the way through, wherever that may lead. Every FedEx driver in NJ owes them a great deal of thanks and appreciation.
So, they and I are asking for your patience. Heck, it's only been 13 years; what's a few months or a year more going to hurt. Some of you are still driving for FedEx, and the recovery amounts for you will be much greater than any recovery they will receive, seeing as they all were terminated early in this struggle. The clock stopped ticking for them a long time ago, yet they carry on with the knowledge that they serve as worthy and formidable ambassadors.
I ask that each NJ driver sign the objection letter and send it.
OBJECTION TO PROPOSED SETTLEMENT
MICHAEL TOFAUTE, ET AL. v. FEDEX GROUND PACKAGE SYSTEM, INC.,
CIVIL NO. 3:05-CV-00595-RLM-MGG
TO:
Clerk of the Court
United States District Court
For The Northern District of Indiana 204 South Main Street
South Bend, IN 46601
Robert I. Harwood HARWOOD FEFFER, LLP 488 Madison Ave., 8th Floor New York, NY 10022
Scott Voelz, Esq. O’MELVENY & MYERS LLP 400 South Hope Street
18th Floor
Los Angeles, CA 90071
My name is ___________________________. I am a member of the New Jersey Class in the above matter. I reside at __________________________________, and my phone number is ______________.
I object to the proposed settlement of the New Jersey action because the settlement does not provide enough value to the Class Members. The original notice said that the average recovery would be over $71,000 per driver. Now the notice says that was wrong and the average recovery is only $19,000. I now object to that lower amount. Also, the notice now says that all seven of the New Jersey Class Representatives do not agree to the settlement. Those seven drivers are responsible for protecting the best interests of the New Jersey Class. If they do not agree to the settlement, I don’t agree either, and the settlement should not be approved.
Dated: _________________________________
[Name / Signature]
Copy and paste this objection letter into your word processor and mail a copy to each of the three addresses at the top of the letter. If you don't have a computer or a way to print the letter out, Private Message me (njdriver) or Yogus at www.fedexaminer.com. We will make sure you get what you need. Letters must be received to the Court by March 1, 2017. There will be a Fairness Hearing conducted by Judge Miller on March 14, 2017. He must approve the objection for this to move forward. If you are a NJ FedEx driver, former or current, or you know a driver, please instruct them to this site or print out copies of this letter and give it to them, or again, Private Message us. The more letters received by the Court, the greater our chances the Judge will allow this objection to move forward.
Now is your opportunity to make your voice heard. Now is your opportunity to do something that will, in the long run, be more economically rewarding for you and your families. Your objection letters will not be shared with FedEx, so you don't have to fear retaliation if you are a current driver.
DO IT! DO IT NOW!
On behalf of the Class Representatives and myself,
THANK YOU!!!
_________________
I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them - Thomas Jefferson