LUXAMA v. IRONBOUND EXPRESS, INC.

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VAUDRAL LUXAMA, CHANDLER

LUXEUS, JAVIER R. GARCIA, FREDO

BONHOMME, SANTOS MALDONADO, and

CHANEL FONTIN, each individually and as Civil Action No. 11-2224

class representatives,

OPINION

Plaintiffs,

v.

IRONBOUND EXPRESS, INC.,

Defendant.

John Michael Vazquez, U.S.D.J.

The Court previously granted in part and denied in part Plaintiffs’ motion for class

certification. D.E. 227, 228. The Court also granted Plaintiffs leave to file an additional motion

as to the relief that was denied without prejudice. D.E. 228. Currently pending before the Court

is the additional motion. Plaintiffs Vaudral Luxama, Chandler Luxeus, Javier R. Garcia, Fredo

Bonhomme, Santos Maldonado, and Chanel Fontin are “owner-operator” tractor-trailer drivers

who lease their vehicles and driving services to Defendant Ironbound Express, Inc. (“Ironbound”).

Plaintiffs allege claims for breach of contract and violations of the federal Truth-in-Leasing

regulations, 49 C.F.R. § 376.1 et seq. Currently pending before the Court is Plaintiffs’ third motion

for class certification. D.E. 245. The Court reviewed the parties’ submissions1 and considered the

1 Plaintiffs’ brief in support of their motion is referred to as “Pl. Br.” (D.E. 245); Defendant’s

opposition is referred to as “Def. Opp.” (D.E. 271); and Plaintiffs’ reply is referred to as “Pl.

Reply” (D.E. 278).

motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil

Rule 78.1(b). For the following reasons, Plaintiffs’ motion for class certification is GRANTED

in part and DENIED in part.

I. BACKGROUND2

The Court included an extensive factual background in its prior Class Certification Opinion

(the “prior Opinion”), D.E. 227, which the Court incorporates by reference here. The Court writes

primarily for the parties, who are otherwise familiar with this matter.

Defendant is a company involved in intermodal freight transportation. TAC ¶ 12.

Plaintiffs are “owner-operators” who own their tractors and lease, or have leased, their tractor and

driving services to Defendant. Id. ¶ 6. From at least January 20, 2003 to September 22, 2009,

Defendant entered into the same standard lease agreement (the “Lease”) with each Plaintiff.3 See

generally D.E. 245-1, Ex. 1. Pursuant to the Lease, Defendant agreed to compensate Plaintiffs on

a “per-trip basis according to the terms of Schedule B,” but a “Schedule B” was never attached to

any of the Leases. See, e.g., TAC ¶ 67. Plaintiffs allege that in lieu of the missing “Schedule B,”

Defendant orally promised Plaintiffs that Defendant would compensate Plaintiffs in an amount

equal to seventy percent of Defendant’s payment for each job, as well as for any amount Defendant

collected from its customers for fuel surcharges and detention time in excess of two hours (the

“Oral Agreement”). See, e.g., Pl. Br. at 2. The terms of the Lease and accompanying Oral

Agreement serve as the basis for this lawsuit.

2 The facts are derived from Plaintiffs’ Third Amended Complaint (“TAC”), D.E. 118;

Defendant’s Answer (“Ans.”), D.E. 120; and the exhibits attached to the parties’ briefs. D.E. 245,

271, 278.

3 The Court cites to Luxama’s March 23, 2009 Lease only, but the relevant portions of all Leases

are identical.

II. PROCEDURAL HISTORY

Plaintiffs filed their initial Complaint on April 19, 2011, alleging claims under the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; and New Jersey’s Wage and Hour Law

(“NJWHL”), N.J.S.A. 34:11-4.4 et seq. D.E. 1. One hundred and eighty-eight (188) drivers opted

into the case with respect to the FLSA claim. D.E. 3-8, 17, 21-22, 26, 29, 36, 40, 42, 45, 50, 51,

53, 55-61, 76, 78. Defendant moved to dismiss Plaintiffs’ Complaint on June 30, 2011. D.E. 19.

On October 20, 2011, Plaintiffs filed their first motion for class certification on the FLSA claim.

D.E. 46. On June 28, 2012, Judge Salas granted Defendant’s motion to dismiss Plaintiffs’

Complaint without prejudice, finding that Plaintiffs failed to allege sufficient facts supporting the

assertion that they were “employees” of Defendant, which was required for their FLSA claim.

D.E. 77, 78. That determination mooted Plaintiffs’ first motion for class certification. Id.

Plaintiffs filed their First Amended Complaint (“FAC”) on July 30, 2012, again alleging

that they were “employees” of Defendant for purposes of the FLSA, and this time adding a claim

for violations of the federal Truth-in-Leasing regulations, 49 C.F.R. § 376.1 et seq. D.E. 79.

Defendant again moved to dismiss. D.E. 81. On June 27, 2013, Judge Salas dismissed Plaintiffs’

FLSA claim without prejudice, finding that Plaintiffs again pled insufficient facts to demonstrate

they were “employees,” and dismissed without prejudice Plaintiffs’ Truth-in-Leasing claims,

finding that Plaintiffs had not sufficiently alleged an injury-in-fact stemming from the alleged

violations of these regulations. D.E. 97, 98.

Plaintiffs filed their Second Amended Complaint (“SAC”) on July 26, 2013, alleging the

same claims for relief. D.E. 100. Defendant again moved to dismiss based largely on the same

arguments in its previous motions. D.E. 106. On July 30, 2014, Judge Salas heard oral argument

on the motion. D.E. 112. The next day, the parties entered into a stipulation whereby Plaintiffs

withdrew all of their counts except two FLSA claims, a breach of contract claim, and several Truth-

in-Leasing claims. D.E. 113. Judge Salas then dismissed Plaintiffs’ FLSA claims with prejudice

and Plaintiffs’ breach of contract and Truth-in-Leasing claims without prejudice. D.E. 115.

On September 24, 2014, Plaintiffs filed their Third Amended Complaint (“TAC”), alleging

claims for (1) breach of contract; and (2) violations of the Truth-in-Leasing regulations, seeking

declaratory and injunctive relief under 49 U.S.C. § 14704(a)(1), monetary damages under

§ 14704(a)(2), and attorneys’ fees under § 14704(e). D.E. 118. On January 31, 2018, Plaintiffs

and Defendant filed motions for partial summary judgment, D.E. 177, 178, which were later

terminated, D.E. 196. On the same day, Plaintiffs also filed their second motion for class

certification, D.E. 179, later amending their brief in support thereof on February 14, 2018. D.E.

182. The Court granted Plaintiffs’ second motion for class certification under Rule 23(b)(2) as to

the Truth-in-Leasing claims; denied with prejudice Plaintiffs’ motion under Rule 23(b)(1); and

denied without prejudice Plaintiffs’ motion under Rule 23(b)(3). D.E. 227, 228. The Court noted

in its prior Opinion that the parties had not addressed the potential use of subclasses or certification

of particular issues under Rule 23(c)(4). The Court therefore provided Plaintiffs with leave to

submit a motion in support thereof.

Plaintiffs in turn filed the current motion for class certification, D.E. 245. Defendant filed

opposition, D.E. 271, to which Plaintiffs replied, D.E. 278.

III. STANDARD OF REVIEW

Plaintiffs assert counts for violations of various Truth-in-Leasing regulations and breach

of contract. The Truth-in-Leasing counts involve alleged violations of § 376.12(d) (Count Two);

§ 376.12(g) (Count Three); § 376.12(h) (Count Four); § 376.12(i) (Count Five); and § 376.12(j)(3)

(Count Six). TAC ¶¶ 56-99. Plaintiffs also appear to allege violations of § 376.12(k) insofar as

they claim that Defendant takes improper deductions from their escrow accounts.4 Id. ¶ 85.

A. Truth-in-Leasing Regulations5

The federal Truth-in-Leasing regulations, 49 C.F.R. § 376.1 et seq., were promulgated

under the Motor Carrier Act, 49 U.S.C. § 1401 et seq. Under the Act, “Congress regulates leases

between independent truckers and federally regulated motor carriers.” Fox v. Transam Leasing,

Inc., 839 F.3d 1209, 1211 (10th Cir. 2016). “Congress has tasked the Department of

Transportation (DOT) with further regulating these leases” and “the DOT does so through its

Federal Motor Carrier Safety Administration and its [T]ruth-in-[L]easing regulations, 49 C.F.R.

[§] 376.” Id. (citing Owner-Operator Indep. Drivers Ass’n, Inc. v. Swift Transp. Co., 632 F.3d

4 The Court notes that § 376.12(k) is not a stand-alone claim alleged in the TAC. Rather, Plaintiffs’

allegation regarding improper deductions from their escrow accounts is brought under Count Four

for violation of § 376.12(h). TAC ¶ 85.

5 The Court notes that for Truth-in-Leasing damages claims brought under 49 U.S.C. §

14704(a)(2), the applicable statute of limitations appears to be four years (premised on the default

four-year limitation provided by 28 U.S.C. § 1658(a)). See Owner-Operator Indep. Drivers Ass’n,

Inc. v. Landstar System, Inc., 622 F.3d 1307, 1327 (11th Cir. 2010) (“Thus, for [49 U.S.C.] §

14704(a)(2), the default four-year statute of limitations under 28 U.S.C. § 1658(a) applies.”);

Owner-Operator Indep. Drivers Ass’n, v. United Van Lines, LLC, 556 F.3d 690, 692 (8th Cir.

2009) (“[D]amage actions under 49 U.S.C. § 14704(a)(2) are subject to the general four-year

statute of limitations found in 28 U.S.C. § 1658 for civil actions arising under federal statutes.”);

Owner-Operator Indep. Drivers Ass’n, Inc. v. Mayflower Transit, LLC, 615 F.3d 790, 792-93 (7th

Cir. 2010) (“Two other courts of appeals have addressed this subject. Both have held that

§ 14705(b) must be enforced as written, and that the period of limitations for suits under

§ 14704(a)(2) therefore is four years. We agree with those decisions.”); Elmy v. W. Express, Inc.,

No. 17-1199, 2020 WL 1820100, at *8 (M.D. Tenn. Apr. 10, 2020) (“[A]ll three U.S. Circuit

Courts of Appeal that have addressed the issue have held that the four-year statute of limitations

pursuant to 28 U.S.C. § 1658 applies. . . . Accordingly, the Court will enforce 49 U.S.C. §

14704(a)(2) and 49 U.S.C. § 14705(c) as written and apply the default four-year statute of

limitations under 28 U.S.C. § 1658(a) to Plaintiff’s claims brought pursuant to 49 U.S.C. §

14704(a)(2).”). The parties, however, do not raise this issue – much less discuss related issues

such as relation back under Federal Rule of Civil Procedure 15 – so the Court likewise does not

reach the issue here.

1111, 1113 (9th Cir. 2011)). The purpose of the Truth-in-Leasing regulations is to “protect

independent truckers from motor carriers’ abusive leasing practices.” Id. (citing Owner-Operator

Indep. Drivers Ass’n, Inc. v. Comerica Bank, 636 F.3d 781, 795 (6th Cir. 2011)). Thus, the

regulations seek

to promote truth-in-leasing – a full disclosure between the carrier

and the owner-operator of the elements, obligations, and benefits of

leasing contracts signed by both parties; . . . to eliminate or reduce

opportunities for skimming and other illegal or inequitable practices

by motor carriers; and . . . to promote the stability and economic

welfare of the independent trucker segment of the motor carrier

industry.

Id. (citing Comerica Bank, 636 F.3d at 795). The regulations achieve this goal by “requiring,

among other things, that the leases be in writing and specify their duration and the compensation

that the carrier will pay the trucker.” Id. The Motor Carrier Act provides a private right of action

for enforcement of the regulations, including for declaratory and injunctive relief under 49 U.S.C.

§ 14704(a)(1), monetary damages under § 14704(a)(2), and attorneys’ fees under § 14704(e).

Owner-Operator Indep. Drivers Assoc., Inc. v. C.R. England, Inc., 508 F. Supp. 2d 972, 983-84

(D. Utah 2007).

Turning to the regulations themselves, § 376.12(d) requires the authorized carrier to specify

in the lease the amount it will compensate the owner, providing as follows:

Compensation to be specified. The amount to be paid by the

authorized carrier for equipment and driver’s services shall be

clearly stated on the face of the lease or in an addendum which is

attached to the lease. Such lease or addendum shall be delivered to

the lessor prior to the commencement of any trip in the service of

the authorized carrier. An authorized representative of the lessor

may accept these documents. The amount to be paid may be

expressed as a percentage of gross revenue, a flat rate per mile, a

variable rate depending on the direction traveled or the type of

commodity transported, or by any other method of compensation

mutually agreed upon by the parties to the lease. The compensation

stated on the lease or in the attached addendum may apply to

equipment and driver’s services either separately or as a combined

amount.

49 C.F.R. § 376.12(d). Plaintiffs allege that Defendant violated § 376.12(d) because the Lease

refers to a “Schedule B” as governing compensation, but Defendant did not attach a “Schedule B”

to the Lease. As such, Plaintiffs maintain that drivers’ compensation is not clearly stated on the

face of the Lease or in an attached addendum. TAC ¶ 67.

Section 376.12(g) requires the authorized carrier to provide sufficient documentation to

support this compensation, stating:

Copies of freight bill or other form of freight documentation. When

a lessor’s revenue is based on a percentage of the gross revenue for

a shipment, the lease must specify that the authorized carrier will

give the lessor, before or at the time of settlement, a copy of the rated

freight bill, or, in the case of contract carriers, any other form of

documentation actually used for a shipment containing the same

information that would appear on a rated freight bill. Regardless of

the method of compensation, the lease must permit lessor to

examine copies of the carrier’s tariff or, in the case of contract

carriers, other documents from which rates and charges are

computed, provided that where rates and charges are computed from

a contract of a contract carrier, only those portions of the contract

containing the same information that would appear on a rated freight

bill need be disclosed. The authorized carrier may delete the names

of shippers and consignees shown on the freight bill or other form

of documentation.

49 C.F.R. § 376.12(g). Plaintiffs allege that Defendant violated § 376.12(g) because Defendant

either refused to allow them to examine documents setting forth rates and charges paid by

Defendant’s customers, or even when Defendant allowed Plaintiffs to view such documents, the

rates and charges were redacted. TAC ¶ 75.

Section 376.12(h) specifies requirements for charge-back items, stating:

Charge-back items. The lease shall clearly specify all items that may

be initially paid for by the authorized carrier, but ultimately

deducted from the lessor’s compensation at the time of payment or

settlement, together with a recitation as to how the amount of each

item is to be computed. The lessor shall be afforded copies of those

documents which are necessary to determine the validity of the

charge.

49 C.F.R. § 376.12(h). In a similar vein, § 376.12(j)(3) sets forth requirements regarding

deductions for cargo or property damage, stating:

The lease shall clearly specify the conditions under which

deductions for cargo or property damage may be made from the

lessor’s settlements. The lease shall further specify that the

authorized carrier must provide the lessor with a written explanation

and itemization of any deductions for cargo or property damage

made from any compensation of money owed to the lessor. The

written explanation and itemization must be delivered to the lessor

before any deductions are made.

49 C.F.R. § 376.12(j)(3). Plaintiffs contend that although the Lease lists a number of permissible

charge-back items, the Lease fails to recite any manner in which these amounts are to be computed.

TAC ¶ 82. Plaintiffs also allege that Defendant does not provide supporting documentation or

written explanation for charges it deducts from Plaintiffs’ paychecks and escrow accounts for

property damage. Id. ¶¶ 85, 95. It also appears that the workers’ compensation paid for by

Defendant and charged to Plaintiffs falls under § 376.12(h), which requires Defendant to provide

Plaintiffs with the relevant documents so that Plaintiffs can confirm the validity of the charge.6

Plaintiffs allege that Defendant does not provide the required information. TAC ¶ 84. Plaintiffs

add that Defendant apparently overcharges them for the insurance. Id.

Section 376.12(i) provides that the “lease shall specify that the lessor is not required to

purchase or rent any products, equipment, or services from the authorized carrier as a condition of

entering into the lease arrangement.” 49 C.F.R. § 376.12(i). The Lease does contain the required

6 As noted in the Court’s prior Opinion, § 376.12(j) also addresses insurance but does not appear

to apply to workers’ compensation insurance. Instead, the provision addresses insurance coverage

related to the protection of the public as to the operation of the leased equipment. 49 C.F.R. §

376.12(j).

language,7 but Plaintiffs claim that they were nonetheless required to rent parking spaces from

Defendant. TAC ¶¶ 90, 91.

Section 376.12(k)8 sets forth requirements regarding escrow funds, whereby if escrow

funds are required under a lease, the lease shall specify, among other things: “[t]he amount of any

escrow fund or performance bond required to be paid by the lessor to the authorized carrier or to

a third party,” “[t]he specific items to which the escrow fund can be applied,” and “[t]hat while

the escrow fund is under the control of the authorized carrier, the authorized carrier shall provide

an accounting to the lessor of any transactions involving such fund.” § 376.12(k)(1)-(3). Section

376.12(k) also states that the authorized carrier should perform the accounting by “clearly

indicating in individual settlement sheets the amount and description of any deduction or addition

made to the escrow fund,” or “providing a separate accounting to the lessor of any transactions

involving the escrow fund.” § 376.12(k)(3)(i)-(ii). Further, the separate accounting “shall be done

on a monthly basis.” § 376.12(k)(3)(ii). Plaintiffs argue that Defendant takes deductions from

their escrow accounts without any explanation or accounting. TAC ¶ 85.

7 Plaintiffs contend that this provision was not in the Lease, but the Lease clearly contains it. See

D.E. 245-1, Ex. 1, ¶ 15.

8 As noted, § 376.12(k) does not appear to be a stand-alone claim alleged in the TAC.

B. Breach of Contract9

Plaintiffs also assert a claim for breach of contract. To prevail on a breach of contract

claim under New Jersey law,10 a plaintiff must demonstrate (1) the existence of a valid contract;

(2) breach of the contract; (3) damages as a result of the breach; and (4) that the complaining party

performed its own duties under the contract. Pollack v. Quick Quality Rests., Inc., 172 A.3d 568,

576 (N.J. Super. App. Div. 2017) (citing Globe Motor Co. v. Igdalev, 139 A.3d 57, 64 (N.J. 2016)).

Pursuant to New Jersey law, “a party must prove the existence of a contract by showing that: (1)

there was a meeting of the minds; (2) there was an offer and acceptance; (3) there was

consideration; and, (4) there was certainty in the terms of the agreement.” Allen v. Bloomingdale’s,

Inc., 225 F. Supp. 3d 254, 258 (D.N.J. 2016) (internal quotations omitted). Acceptance of a

contract must be absolute and unequivocal. Kristensons Petroleum, Inc. v. Explorer Maritime

Cruises, LLC, No. 14-5683, 2018 WL 497070, at *6 (D.N.J. Jan 22, 2018) (citing Cumberland

Farms, Inc. v. N.J. Dept. of Envtl. Protec., 148 A.3d 767, 776 (N.J. Super. App. Div. 2016)). These

9 The Court notes that for breach of contract claims the applicable statute of limitations appears to

be six years. W.H.P.M., Inc. v. Immunostics, Inc., No. 18-16031, 2020 WL 359146, at *3 (D.N.J.

Jan. 22, 2020) (“Under New Jersey law, there is [] a four-year statute of limitations claims for

breach of contracts governed by the U.C.C., but a six-year statute of limitations for claims for

breach of other contracts.” (citing N.J. Stat. Ann. §§ 12A:2-725; 2A:14-1)) (emphasis added);

Hang Hing Loong Trading Co. Ltd. v. INCO L.L.C., No 15-3614, 2017 WL 4697069, at *6 (D.N.J.

Oct. 18, 2017) (“Generally a breach of contract claim in New Jersey is subject to a six year statute

of limitations pursuant to N.J.S.A. 2A:14-1.”); see N.J.S.A. 2A:14-1 (“Every action at law . . . for

recovery upon a contractual claim or liability, express or implied . . . shall be commenced within

6 years next after the cause of any such action shall have accrued.”). The parties, however, do not

raise this issue, so the Court does not reach it here.

10 The Lease states that “this Lease, and all of the terms and conditions contained herein, will be

interpreted according to the laws of the State in which the Lease is executed.” D.E. 245-1, Ex. 1,

¶ 27. Plaintiffs’ Leases were all executed in New Jersey. D.E. 179-5 at 9, 18, 29, 38, 48, 58.

Therefore, the Court applies New Jersey law to Plaintiff’s claim for breach of contract.

required elements apply to both express and implied contracts. Gardiner v. V.I. Water & Power

Auth., 145 F.3d 635, 644 (3d Cir. 1988).

Plaintiffs base their breach of contract claim on Defendant’s alleged failures: (1) “to pay

[Plaintiffs] amounts equal to seventy percent (70%) of the monies paid to Ironbound by the

shipping companies,” (2) “to pay Plaintiffs for detention time in excess of two hours,” (3) “to pay

the drivers fuel surcharges that Ironbound has collected from shipping companies which it

promised to pass along to drivers,” (4) to properly “set off or take[] deductions from the

[Plaintiffs’] payments”; and (5) to honor the Lease’s provision indicating that Plaintiffs were not

required to rent parking spaces from Defendant. TAC ¶ 54.

C. Federal Rule of Civil Procedure 23

Federal Rule of Civil Procedure 23 governs class actions. Marcus v. BMW of N. Am., LLC,

687 F.3d 583, 590 (3d Cir. 2012). The decision to certify a class or classes is left to the discretion

of the court. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2008), as

amended (Jan. 16, 2009). “The requirements set out in Rule 23 are not mere pleading rules.”

Marcus, 687 F.3d at 591 (citing In re Hydrogen Peroxide, 552 F.3d at 316). “The party seeking

certification bears the burden of establishing each element of Rule 23 by a preponderance of the

evidence.” Id. (citing In re Hydrogen, 552 F.3d at 307). “A party’s assurance to the court that it

intends or plans to meet the requirements is insufficient.” In re Hydrogen, 552 F.3d at 318.

To this end, the Third Circuit has emphasized that “actual, not presumed, conformance

with Rule 23 requirements is essential.” Marcus, 687 F.3d at 591 (citing Gen. Tel. Co. of Sw. v.

Falcon, 457 U.S. 147, 160 (1982)) (internal quotations omitted). “To determine whether there is

actual conformance with Rule 23, a district court must conduct a ‘rigorous analysis’ of the evidence

and arguments put forth.” Id. (quoting Falcon, 457 U.S. at 161). This “rigorous analysis” requires

a district court to “resolve all factual or legal disputes relevant to class certification, even if they

overlap with the merits – including disputes touching on elements of the cause of action.” Id.

Therefore, a district court “may delve beyond the pleadings to determine whether the requirements

for class certification are satisfied.” In re Hydrogen, 552 F.3d at 320.

“[E]very putative class action must satisfy the four requirements of Rule 23(a) and the

requirements of either Rule 23(b)(1), (2), or (3).” Marcus, 687 F.3d at 590 (citing Fed. R. Civ. P.

23(a)-(b)). A plaintiff must first demonstrate that the proposed class satisfies the four requirements

of Rule 23(a):

(1) The class is so numerous that joinder of all members is

impracticable;

(2) There are questions of law or fact common to the class;

(3) The claims or defenses of the representative parties are typical

of the claims or defenses of the class; and

(4) The representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a); Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). These four prongs are

often referred to as numerosity, commonality, typicality, and adequacy. See, e.g., Erie Ins. Exch.

v. Erie Indem. Co., 722 F.3d 154, 165 (3d Cir. 2013). The Court previously determined that

Plaintiffs satisfied Rule 23(a)’s threshold requirements of numerosity, commonality, typicality,

and adequacy. D.E. 227, at 18-24. The Court further granted Plaintiffs’ motion for certification

under Rule 23(b)(2), and denied with prejudice Plaintiffs’ motion as to Rule 23(b)(1). As such,

Plaintiffs’ current motion solely concerns certification under Rule 23(b)(3) and/or Rule 23(c)(4).

See Pl. Br. at 8.

IV. ANALYSIS

As a threshold matter, Defendant argues that “Plaintiffs [] are seeking to relitigate this

Court’s judgment on Rule 23(b)(3), which is improper as the prior judgment (and the Third

Circuit’s affirmance) constitutes law of the case under well-settled precedent.” Def. Opp. at 3. In

sum, Defendant argues that Plaintiffs are merely relitigating the Court’s previous decision to deny

class certification under Rule 23(b)(3), interlocutory review of which was denied by the Third

Circuit under Rule 23(f). Defendant asserts that the Court denied certification under Rule 23(b)(3)

without prejudice “in the context of its discussion of Rule 23(c)(4), not within its Rule 23(b)(3)

discussion.” Id. at 3 n.1. Therefore, according to Defendant, “the Court’s directive was that Rule

23(b)(3) certification was dismissed only without prejudice as to presenting a (c)(4) sub-class.”

Id.

The Court finds Defendant’s argument unpersuasive. The Court previously (1) granted

Plaintiffs’ motion for class certification under Rule 23(b)(2); (2) denied with prejudice Plaintiffs’

motion under Rule 23(b)(1); (3) and denied without prejudice Plaintiffs’ motion under Rule

23(b)(3). D.E. 227, 228. The Court’s prior Order stated as follows:

As set forth in the accompanying Opinion, if Plaintiffs believe that

a Rule 23(b)(3) class as to a certain issue or issues is appropriate,

they are to submit their motion in support thereof within forty-five

(45) days.

D.E. 228. In sum, the Court denied Plaintiffs’ motion for class certification under Rule 23(b)(3)

without prejudice and expressly permitted Plaintiffs to submit further briefing on their position.

Specifically, in its prior Opinion, the Court observed that the voluminous individualized damage

calculations could defeat the predominance requirement of Rule 23(b)(3). D.E. 227 at 31-33.

However, the Court dismissed Plaintiffs’ motion for certification under Rule 23(b)(3) without

prejudice. Thus, to the extent Plaintiffs now raise issues that were not previously considered and

decided by the Court, the Court addresses them herein.

A. Class Certification under Rule 23(b)(3)

Plaintiffs argue that the Court should certify this matter pursuant to Rule 23(b)(3),

indicating that damages can be shown on an aggregate basis. Pl. Br. at 6. Plaintiffs also assert

that individualized damages issues cannot defeat predominance under Rule 23(b)(3). Id. Plaintiffs

request the following relief: (1) certification under Rule 23(b)(3) as to both liability and damages,

(2) alternately, certification under Rule 23(b)(3) as to liability and a deferral on the issue of

damages, or (3) alternately, certification of particular issues under Rule 23(c)(4).11 Id. at 8.

Rule 23(b)(3) provides as follows:

(b) Types of Class Actions. A class action may be maintained if

Rule 23(a) is satisfied and if:

. . .

(3) the court finds that the questions of law or fact common to

class members predominate over any questions affecting only

individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the

controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling

the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).

As for certification under Rule 23(b)(3), “[t]he party seeking certification bears the burden

of establishing each element of Rule 23 by a preponderance of the evidence.” Marcus, 687 F.3d

at 591 (citing In re Hydrogen, 552 F.3d at 307). In determining whether the requirements of Rule

23 are met, the Court “must conduct a ‘rigorous analysis’ of the evidence and arguments put forth.”

Id. (quoting Falcon, 457 U.S. at 161). To this end, and as noted, the Court must “resolve all factual

11 In light of the Court’s rulings herein, the Court does not reach the Rule 23(c)(4) analysis.

or legal disputes relevant to class certification, even if they overlap with the merits – including

disputes touching on elements of the cause of action.” Id.

Rule 23(b)(3) class certification requires that “questions of law or fact common to class

members predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011) (emphases added) (citing

Fed. R. Civ. P. 23(b)(3)). These are commonly referred to as the “predominance” and “superiority”

requirements. Id.

As to the “predominance” requirement, the inquiry “focuses on whether essential elements

of the class’s claims can be proven at trial with common, as opposed to individualized, evidence.”

Byrd v. Aaron’s Inc., 784 F.3d 154, 164 (3d Cir. 2015), as amended (Apr. 28, 2015). In other

words, “the predominance requirement is met only if the district court is convinced that the

essential elements of the claims brought by a putative class are capable of proof at trial through

evidence that is common to the class rather than individual to its members.” Reinig v. RBS

Citizens, N.A., 912 F.3d 115, 127 (3d Cir. 2018) (internal quotations omitted). “[A]n individual

question is one where members of a proposed class will need to present evidence that varies from

member to member[.]” In re Modafinil Antitrust Litig., 837 F.3d 238, 260 (3d Cir. 2016) (citing

Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)), as amended (Sept. 29, 2016). In

comparison, “a common question is one where the same evidence will suffice for each member to

make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.”

Id. The Third Circuit has described a district judge’s task as follows:

In practice, this means that a district court must look first to the

elements of the plaintiffs’ underlying claims and then, “through the

prism” of Rule 23, undertake a “rigorous assessment of the available

evidence and the method or methods by which [the] plaintiffs

propose to use the evidence to prove” those elements.

Reinig, 912 F.3d at 128 (quoting Marcus, 687 F.3d at 600). If, after doing so, a district court

determines that “proof of the essential elements of the [claim] requires individual treatment, then

class certification is unsuitable.” Id. (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith

Inc., 259 F.3d 154, 172 (3d Cir. 2001)).

With respect to the “superiority” requirement, a district court must “balance, in terms of

fairness and efficiency, the merits of a class action against those of alternative available methods

of adjudication.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 149 (3d Cir. 2008).

This balancing requires a court to consider the following, non-exclusive factors:

(1) the interest of individual members of the class in controlling the

prosecution of the action, (2) the extent of litigation commenced

elsewhere by class members, (3) the desirability of concentrating

claims in a given forum, and (4) the management difficulties likely

to be encountered in pursuing the class action.

Id. Lastly, the Third Circuit has also recognized that “[a] plaintiff seeking certification of a Rule

23(b)(3) class must prove by a preponderance of the evidence that the class is ascertainable.”12

Byrd, 784 F.3d at 163. “The ascertainability inquiry is two-fold, requiring a plaintiff to show that

(1) the class is ‘defined with reference to objective criteria’; and (2) there is ‘a reliable and

administratively feasible mechanism for determining whether putative class members fall within

the class definition.’” Id. (quoting Marcus, 687 F.3d at 593-94).

12 The Court notes that, unlike a Rule 23(b)(3) class, “ascertainability is not a requisite of a Rule

23(b)(2) class” under Third Circuit law. Byrd, 784 F.3d at 163 n.7 (citing Shelton v. Bledsoe, 775

F.3d 554, 559-63 (3d Cir. 2015)); see Shelton, 775 F.3d at 563 (“The nature of Rule 23(b)(2)

actions, the Advisory Committee’s note on (b)(2) actions, and the practice of many of other federal

courts all lead us to conclude that ascertainability is not a requirement for certification of a (b)(2)

class seeking only injunctive and declaratory relief.”).

B. Predominance Analysis

As noted, Plaintiffs claim that their breach of contract claim is based on the following:

breach of an Oral Agreement which promised Plaintiffs a 70/30 split on the fee paid by Defendant’s

customers, payments for detention time over two hours, and reimbursements for fuel surcharges

that Defendant collected. Plaintiffs add that Defendant breached the Lease when it required certain

drivers to rent parking spaces. In addition, Plaintiffs assert that numerous provisions of the Lease

violate the Truth-in-Leasing regulations.

Defendant acknowledges that the Lease “unambiguously controls the entire independent

contractor relationship between Plaintiffs and Ironbound.” Def. Opp. at 11. Defendant claims that

Schedule B of the Lease was actually the trip sheet that drivers would receive on each individual

haul. Id. at 12. Defendant denies that there was an Oral Agreement for a 70/30 split and adds that,

in any case, the Oral Agreement would not be enforceable because the Lease makes clear that it

can only be modified in a writing signed by the parties. Id.

As to the trip sheets, Defendant explains that each sheet provided an “initial offer” which

each driver could accept, decline, or negotiate. Id. Defendant continues that the amount offered

was based on a variety of factors considered by Defendant’s dispatchers, including travel distance,

amount of work, deadlines, pick-up and drop-off locations, the type of load and how it was to be

transported, fuel surcharges, and several other factors. Id. at 13-14. Defendant notes that when it

cannot find a driver in a timely manner, it may increase its pay rates. Id. at 14. Defendant asserts

that due to the individual nature of the negotiations, class treatment is not appropriate. Id. at 15-

23.

Turning to detention time, Defendant does not deny that detention time was paid but

indicates that such payments depended “on circumstances unique to each trip.” Id. at 13. As to

fuel surcharges, Defendant also acknowledges that it reimbursed such charges but that such

reimbursement varied among the drivers. Id. at 20.

In short, Defendant appears to take the bold position that because it violated the Truth-in-

Leasing regulations, Plaintiffs should be precluded from bringing a class action. As noted, the

purpose of the regulations is to “protect independent truckers from motor carriers’ abusive leasing

practices[,]” which is achieved by “requiring, among other things, that the leases be in writing and

specify their duration and the compensation that the carrier will pay the trucker.” Fox, 839 F.3d

at 1211 (citation omitted). Yet, Defendants freely concede that there was no Schedule B to the

Lease. Defendant’s failure to clearly set forth the specific compensation (as either a percentage of

gross revenue, a flat rate, or a variable rate) that Plaintiffs were to receive per trip flies directly in

the face of 49 C.F.R. § 376.12(d). Defendant’s ad hoc determination as to what it would offer

drivers per trip (or for detention time or for fuel surcharge reimbursement), based on a variety of

factors that Defendant considered but which were not specified in writing, is precisely what the

Truth-in-Leasing regulations were designed to avoid. It is also not lost on the Court that

Defendant’s argue that the Oral Agreement is unenforceable because it is not in writing and signed

by the parties while at the same time assert that the trip tickets are enforceable – even though the

tickets are not mentioned in the Lease and are not signed by both parties. If accepted, Defendant’s

position would result in perverse incentives for carriers to flagrantly flout the regulations. The

Court rejects this argument.

Before turning to the remainder of the analysis, the Court reviews three cases cited by the

parties: Neale v. Volvo Cars of North Am., LLC, 794 F.3d 353 (3d Cir. 2015), Reyes v. Netdeposit,

LLC, 802 F.3d 469 (3d Cir 2015), and In re Modafinil Antitrust Litigation, 837 F.3d 238, 358 (3d

Cir. 2016). Neale analyzed the scope of the Supreme Court’s decision in Comcast v. Behrend, 569

U.S. 27 (2013). Comcast was an antitrust class action in which the plaintiffs submitted four

theories of antitrust impact. Id. at 31. The district judge accepted one theory but rejected the rest.

Id. The district judge then certified the class although the plaintiffs’ expert’s damages model did

not isolate the sole theory that the court found viable. Id. The model instead assumed the viability

of all four theories. Id. The Comcast Court found that the class certification was improper because

the damages model, based on all four theories, did not reflect the particular antitrust injury, based

on the one theory. Id. at 34-38.

In Neale, a class action concerning defective sunroofs in motor vehicles, the defendants

argued that Comcast required that damages be capable of measurement across the entire class

under Rule 23(b)(3). Neale, 794 F.3d at 374. The Third Circuit began by reviewing Comcast’s

ruling: “Comcast held that an antitrust litigation class could not be certified because the plaintiffs’

damages model did not demonstrate the theory of antitrust impact that the district court accepted

for class-action treatment.” Id. (citing Comcast, 569 U.S. at 34-35). The Neale court noted that

its reading of Comcast was consistent with the decision of several other Courts of Appeal. Id. at

374 & n.10 (collecting cases that indicate, among other things, that Comcast requires a damages

calculation to reflect the theory of liability - not that damages be measurable on a class-wide basis).

In further support, the court in Neale cited to the dissent in Comcast for the proposition that it is

nearly universally accepted that individual damages calculations do not preclude certification

under Rule 23(b)(3). Id. at 374-75 (citing Comcast, 569 U.S. at 41 (Ginsburg, J. & Breyer, J.,

dissenting)).

Shortly after Neale was decided, the Third Circuit issued Reyes. Reyes concerned a class

action against a bank and its subsidiary, alleging violations of the Racketeer Influenced and

Corrupt Organizations Act. 802 F.3d at 474. Relying on Neale, the court in Reyes stated that the

inability to calculate damages on a class-wide basis does not preclude certification under Rule

23(b)(3). Id. at 485, 489 (citing Neale, 794 F.3d at 374-75 n.10).

Yet, the following year in In re Modafinil Antitrust Litigation, 837 F.3d 238, 358 (3d Cir.

2016), the Third Circuit ruled that “[t]he predominance requirement applies to damages as well,

because the efficiencies of the class action mechanism would be negated if ‘[q]uestions of

individual damage calculations . . . overwhelm questions common to the class.’” (quoting

Comcast, 569 U.S. at 34). At the same time, the Modafinil court acknowledged Neale for the

proposition that damages need not be “‘susceptible of measurement across the entire class for

purposes of Rule 23(b)(3).’” Id. at 358 (quoting Neale, 794 F.3d at 374).

Neale, Reyes, and Modafinil are all binding precedent that this Court must follow. As a

result, the Court determines, as per Neale and Reyes, that the fact that damages are not measurable

across an entire class does not defeat predominance. However, as per Modafinil, individual

damages issues are subject to a predominance analysis and individual damages issues that

overwhelm common issues will defeat predominance.13

1. Oral Agreement - Liability

In analyzing predominance, a court must first start with the elements of the underlying

cause of action. Neale, 794 F.3d at 370 (citing Erica P. John Fund, Inc. v. Halliburton Co., 563

U.S. 804, 809 (2011)). A court, however, must consider those elements in light of the relevant

evidence. Id. at 372. A court must also envision how a trial on the claim will play out, evaluating

13 There is another interpretation of Neale which is reasonable. That is, Neale stands for the

proposition that the inability to aggregate damages across the entire class does not automatically

defeat predominance. Instead, the issue would need to addressed on a case-by-case basis. This

alternative approach arguably finds some support in Neale because Neale was ruling on the scope

of Comcast (i.e., that a damages model must match the theory of liability) rather than the scope of

proving damages in the aggregate in a class action. However, because Reyes did not expressly

adopt this approach, the Court believes that it is without authority to do so.

the available evidence and the method by which the plaintiffs intend to prove the disputed element

at trial. Id. If a court is reviewing a proposed settlement class, however, then the court does not

have to consider how the evidence will be presented at trial. Id. at 372.

As to the Oral Agreement, the Court begins with the following observation by the Third

Circuit in Reyes:

The District Court relied on Johnston v. HBO Film Management,

Incorporated, 265 F.3d 178, 190 (3d Cir.2001), and In re LifeUSA

Holding, Incorporated, 242 F.3d 136, 146 (3d Cir.2001), . . .

In In re LifeUSA Holding, Incorporated, the fraud involved a

product that “was not sold according to standard, uniform, scripted

sales presentations.” 242 F.3d at 146. We concluded that simply

focusing on whether all potential class members were misled by the

same product was inappropriate. Id. We also stated that when “the

record is uncompromising in revealing non-standardized and

individualized sales ‘pitches’ presented by independent and

different sales agents, all subject to varying defenses and differing

state laws, . . . certification of individualized issues [is]

inappropriate.” Id. at 147; cf. Moore v. PaineWebber, Inc., 306

F.3d 1247, 1255 (2d Cir.2002) (“[M]aterial uniformity in the

misrepresentations may be established without the use of a

standardized sales script[, for example.]”).

In Johnston, we again held that oral misrepresentation must be

uniform in order to establish predominance under Rule 23(b)(3).

See 265 F.3d at 190. Thus, “it has become well-settled that, as a

general rule, an action based substantially on oral rather than written

communications is inappropriate for treatment as a class action.” Id.

(internal citations omitted).

Reyes, 802 F.3d at 489-90 (emphasis added). The issue here is not oral misrepresentations but oral

agreements. Nevertheless, the reasoning espoused in Reyes hold true – the oral agreements must

be uniform (or at least not materially different) to qualify for class treatment.

Turning first to the oral agreement to pay drivers the 70/30 split, Plaintiffs repeatedly allege

that “all” Plaintiffs were promised 70% of the fee that Defendant collected on each trip. See, e.g.,

Pl. Br. at 2, 23. Defendant, however, paints a different picture with citations to each named

Plaintiff’s deposition testimony. Def. Opp. at 21-23.14 Plaintiff Garcia believed that the Lease

contained the 70% amount, but the Lease clearly did not. Plaintiffs Luxama and Luxeus indicated

that the 70% was based on industry standard. Plaintiff Maldonado testified that he was told that

he would, in fact, receive 70% “of the move.” Plaintiff Fontin stated he was promised 70% and

noted that was what the law required and what he had been previously paid. Plaintiff Bonhomme

indicated that a person named “Chris,” who worked for Defendant said that Bonhomme would

receive 70% of the gross amount received by Defendant. In reply, Plaintiffs only address Fontin,

asserting that he was informed on three different occasions that he would receive 70%. Pl. Reply

at 22 n.12.

In light of the named Plaintiffs’ varying testimony as to the basis of the 70/30 split, the

Court finds that Plaintiffs have not shown by a preponderance of the evidence that they can prove

the existence of an oral agreement on this issue through common evidence. At a minimum, there

appear to be – among named Plaintiffs – three significant variations as the 70% agreement. As

noted, an element of a breach of contract claim is establishing a valid contract. Pollack, 172 A.3d

at 576. Here, some of the named Plaintiffs assert in some form that they were promised 70% of

Defendant’s revenue per trip. But another named Plaintiff claims that the amount was stated in

the Lease – in direct contradiction of one of Plaintiffs’ primary arguments. And two others state

that they thought they were due the amount based on “industry standard.” A trial on this critical

issue – the existence of an agreement to pay 70% – would be inappropriate at the class level given

the different accounts of the named Plaintiffs. Plaintiffs have not shown that the oral agreements

14 Defendant also argued in opposition to the last certification motion that Plaintiffs could not,

through common evidence, establish the 70/30 split through common evidence. While

acknowledging Defendant’s position, the Court did not rule on it at that time. Prior Opinion at 31.

as to the 70% payment were uniform. See Reyes, 802 F.3d at 489-90 These individual issues on

establishing the existence of a valid agreement predominate over common issues.15

A breach of contract based on reimbursement for fuel surcharges suffers the same fate.

Defendant does not contest that it did pay such reimbursement (at least on occasion), but it disputes

that it agreed always to pay the full reimbursement amount. Again, Defendant point to Plaintiffs’

own deposition testimony to show that Plaintiffs are inconsistent as to Defendant’s promise or

agreement to pay such reimbursement. Def. Opp. at 20. Plaintiff Fontin testified that the

reimbursement was promised in Schedule B to the Lease. Plaintiff Luxama asserted that he was

owed reimbursement pursuant to industry standard. Plaintiff Bonhomme did not expect

reimbursement when he first started with Defendant but later believed that he was entitled to

reimbursement. In other words, the named Plaintiffs’ testimony indicates that there was not a

uniform agreement as to reimbursement for fuel surcharges. These individual issues on

establishing the existence of a valid agreement as to the fuel surcharge also predominate over

common issues. Plaintiffs point to critical testimony by Defendant’s Vice President and General

Manager, Daniel Lastra. Pl. Br. at 2 n. 4. Defendant maintains that Lastra indicated that drivers

were entitled to reimbursement for fuel surcharges. However, a review of Lastra’s deposition

testimony reveals that Lastra did not testify that all drivers were entitled to full reimbursement of

fuel surcharges.

But Plaintiffs’ breach of contract claim based on detention time can be proven by common

evidence, and predominance favors Plaintiffs. As noted, Plaintiffs submit that Defendant promised

to pay drivers for detention time exceeding two hours. Defendant does not contest that it paid

15 In their reply brief, Plaintiffs also contend that they can recover based on theory of quantum

meruit, Pl. Reply at 11, but this theory was never asserted in the Third Amended Complaint.

detention time, but instead asserts (with deposition cites) that named Plaintiffs testified

inconsistently as to the amount of detention time that they were actually paid. Def. Opp. 20-21.

The portions of the record that Defendant relies on, however, do not refute Plaintiffs’ statements

that drivers were promised payment when detention time exceeded two hours. Instead,

Defendant’s information pertains to what Plaintiffs were actually paid. Defendant’s assertion

addresses damages rather than liability. Thus, Plaintiffs have sustained their burden of proof on

this issue.

Finally, Plaintiffs have also sustained their burden on the remaining breach of contract

issue – Defendant’s requirement that certain drivers rent parking spaces from Defendant. On this

issue, the Lease is consistent with the regulations. Section 376.12(i) provides that the “lease shall

specify that the lessor is not required to purchase or rent any products, equipment, or services from

the authorized carrier as a condition of entering into the lease arrangement.” 49 C.F.R. § 376.12(i).

The Lease does contain the required language, but Plaintiffs claim that they were nonetheless

required to rent parking spaces from Defendant. Plaintiffs’ evidence on this point is unrefuted,

and Plaintiffs have sustained their burden.

2. Truth-in-Leasing Regulations – Liability

Plaintiffs raise numerous points as to the Lease vis-à-vis the Truth-in-Leasing regulations.

Section 376.12(d) requires the authorized carrier to specify in the lease the amount it will

compensate the owner and the manner in which the compensation will be calculated. 49 C.F.R. §

376.12(d). Plaintiffs state that Defendant violated the section because the Lease refers to a

“Schedule B” as governing compensation but “Schedule B” was not attached. Section 376.12(g)

requires the carrier to provide sufficient documentation as to the compensation. 49 C.F.R. §

376.12(g). Plaintiffs indicate that Defendant violated this section because Defendant either refused

to allow them to examine documents setting forth rates and charges paid by Defendant’s customers

or, when Defendant allowed Plaintiffs to view such documents, the rates and charges were

redacted.

Section 376.12(h) specifies requirements for charge-back items, indicating that all items

must be specified in a lease and that the driver must be given copies of documents “necessary to

determine the validity of the charge.” 49 C.F.R. § 376.12(h). Similarly, Section 376.12(j)(3) sets

forth requirements regarding deductions for cargo or property damage, including that a lease must

specify the conditions for such deductions and that the carrier must provide a written explanation

or itemization to the driver before taking the deductions. 49 C.F.R. § 376.12(j)(3). Plaintiffs

contend that although the Lease lists a number of permissible charge-back items, Defendant did

not provide the supporting documentation for charge-back items or damage deductions. It also

appears that the workers’ compensation paid for by Defendant and charged to Plaintiffs falls under

Section 376.12(h), which requires Defendant to provide Plaintiffs with the relevant documents so

that Plaintiffs can confirm the validity of the charge.16 Plaintiffs allege that Defendant did not

provide the required information and apparently overcharged for the insurance. Section

376.12(k)17 sets forth requirements regarding escrow funds, including that a lease specify the items

to which the fund can be applied, that the carrier provide a driver with an accounting of any

transactions involving the fund, and that the accounting occur on a monthly basis. 49 C.F.R. §

16 As noted in the Court’s prior Opinion, § 376.12(j) also addresses insurance but does not appear

to apply to workers’ compensation insurance. Instead, the provision addresses insurance coverage

related to the protection of the public as to the operation of the leased equipment. 49 C.F.R. §

376.12(j). Despite this prior ruling, Plaintiffs continue to press the Section 376.12(j) argument,

see, e.g., Pl. Br. at 14, 16, but fail to provide any legal authority in support of their argument.

Again, the Court rejects this argument.

17 As noted, § 376.12(k) does not appear to be a stand-alone claim alleged in the TAC.

376.12(k)(1)-(3). Plaintiffs assert that Defendant took deductions from their escrow accounts

without any explanation or accounting.

As to liability under the Truth-in-Leasing regulations, Plaintiffs sustain their burden of

demonstrating predominance. In fact, Defendant does little, if anything, by way of addressing

individual issues as to liability for violating the regulations. For example, Defendant argues that

its “charges for damage to equipment also reflect variations among drivers. Drivers with greater

skill at inspecting chassis before use would likely never pay for chassis repairs.” Def. Opp. at 19.

Putting aside issues with requiring drivers to prove that they did not damage a vehicle, Defendant’s

argument does not speak to the critical issue – providing drivers with required documentation to

support property damage deductions. To the extent that the Lease allegedly does not contain

information required by the regulations, a jury will be able examine the lease and determine

whether it complies with the regulations. To the extent that Defendant failed to provide Plaintiffs

with required documentation to support charge-backs, damage deductions, escrow deductions, or

workers compensation insurance, the named Plaintiffs’ testimony as to their same or substantially

similar experiences is sufficient to satisfy the predominance requirement.

3. Oral Agreement and Truth-in-Leasing Regulations – Damages

In its prior Opinion, the Court determined that Plaintiffs failed to show predominance

concerning damages and the 70/30 split. Prior Opinion at 31-32. However, in light of the Court’s

ruling as to liability and the 70/30 split, the damages issue is now moot. The Court is not certifying

a class based on the alleged 70/30 split.

Plaintiffs generally assert that “damages will, in the first instance, be established class-

wide in the aggregate, based on common proofs by reference to Ironbound’s own books and

records and simple mathematical formula.” Pl. Br. at 24; see also id. at 6. However, at the same

time, Plaintiffs assert that pursuant to the current scheduling order, they have not yet engaged in

class-wide discovery as to damages. Id. at 6 n.6.18 The Court does not necessarily agree that

“simple math,” id. at 6, will be sufficient to establish class-wide damages. However, given that

Plaintiff has not taken complete discovery on this issue, the Court will reserve on whether to certify

the class as to damages. After Plaintiffs have taken discovery, they may reassert their position.

And Defendant will be given ample opportunity to respond. At that point, the Court will evaluate

the evidence and determine whether some or all of the claimed damages are appropriate for class

treatment.

C. Superiority Analysis

To assess superiority, courts consider (1) class members’ interests in individually

controlling separate actions; (2) the extent and nature of litigation of any related litigation that is

already underway; (3) the desirability of concentrating litigation of the claims in the particular

forum; and (4) the manageability of a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). In considering

these factors, Plaintiffs argue that class actions are a superior method to adjudicate Defendant’s

violations of the Truth-in-Leasing regulations and the breach of contract claims because Plaintiffs’

claims are identical to all class members. Further, because the potential damages to be recovered

are not substantial “independent efforts to vindicate their rights in stand-alone suits is unlikely.”

Pf. Br. at 37. Plaintiffs further explain that they are unaware of any other pending litigation based

on Defendant’s violation of the regulations. Id. Finally, Plaintiffs contend that it is logical to

concentrate claims in New Jersey because Defendant is located in New Jersey and all drivers are

dispatched from New Jersey. Id.

18 Plaintiffs acknowledge that they have received “limited financial records” from Defendant. Id.

at 6.

The Court generally agrees with Plaintiffs’ arguments, and finds that Plaintiffs satisfy the

superiority requirement. The Court does not fully agree with Plaintiffs’ assertions as to damages.

As discussed, the Court is reserving on class treatment for damages. However, the Court does

agree that as to the issues certified for class treatment, establishing liability through a class action

outweighs class members’ interests in individually controlling separate actions.

Defendant’s primary argument as to superiority is the requirement is not met because “the

Court will be forced to conduct dozens of mini-trials on both damages and liability to properly

resolve this case[.]” The Court does not share the same concern in light of its rulings on liability

and its reservation on damages.

D. Ascertainability

“The ascertainability inquiry is two-fold, requiring a plaintiff to show that: (1) the class is

‘defined with reference to objective criteria’; and (2) there is ‘a reliable and administratively

feasible mechanism for determining whether putative class members fall within the class

definition.’” Byrd, 784 F.3d at 163 (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355

(3d Cir. 2013)). “If class members are impossible to identify without extensive and individualized

fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Marcus, 687 F.3d at 593.

“However, a plaintiff need not ‘be able to identify all class members at class certification – instead,

a plaintiff need only show that class members can be identified.’” Hargrove v. Sleepy’s LLC, 974

F.3d 467, 470 (3d Cir. 2020) (quoting Byrd, 784 F.3d at 163 (internal quotation omitted)). The

class here consists of all drivers that entered into the Lease as of April 20, 2007. Thus, Plaintiffs

contend that the mechanism for identifying class members consists only an examination of

Defendant’s business records during the class period. Pl. Br. at 38. The Court agrees; the proposed

class is ascertainable.

E. Class Definition

Rule 23(c)(1)(B) requires that the class-certification order or incorporated opinion indicate

“(1) a readily discernible, clear, and precise statement of the parameters defining the class or

classes to be certified, and (2) a readily discernible, clear, and complete list of the claims, issues

or defenses to be treated on a class basis.” Byrd, 784 F.3d at 163 (citing Wachtel ex rel. Jesse v.

Guardian Life Ins. Co. of Am., 453 F.3d 179, 187-88 (3d Cir. 2006)). Therefore, the Court certifies

the following:

a Rule 23(b)(3) liability class as to Plaintiffs’ breach of contract

claims regarding detention time and parking space rental, and as to

Defendant’s alleged violations of the Truth-In-Leasing regulations

consisting of all independent owner-operators who entered into a

regulated lease with Defendant, directly or indirectly through

Defendant’s agents, and whose regulated lease was in effect at any

time between April 20, 2007 through the pendency of this action.

Excluded from this class are Plaintiffs’ counsel, officers and

directors of Defendant, judicial officers assigned to this case, and

staff and immediate relatives of judicial officers assigned to this

case.

In addition, the Court has already certified the following class:

a Rule 23(b)(2) class for declaratory and injunctive relief regarding

Plaintiffs’ alleged Truth-in-Leasing violations:

All independent owner-operators who entered into a regulated lease

with Defendant, directly or indirectly through Defendant’s agents,

and whose regulated lease was in effect at any time between April

20, 2007 through the pendency of this action.

Excluded from this class are Plaintiffs’ counsel, officers and

directors of Defendant, judicial officers assigned to this case, and

staff and immediate relatives of judicial officers assigned to this

case.

V. CONLUSION

For the reasons stated above, and for good cause shown, Plaintiffs’ motion for class

certification (D.E. 245) is GRANTED in part and DENIED in part. The Court certifies the

above-described Rule 23(b)(3) liability class. Plaintiffs’ motion for class certification is otherwise

denied. However, after Plaintiffs have taken discovery as to damages, they may reassert their

position that some or all of the claimed damages are appropriate for class treatment. An

appropriate Order accompanies this Opinion.

Dated: January 27, 2021

Ae yO ©, Ni QD \ K

John Michael Vazquez, U. Ba.v

30