Opinion

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAM MALONE and DONALD BROWN,

individually and on behalf of others

similarly situated,

No. 22 CV 3572

Plaintiffs,

Judge Georgia N. Alexakis

v.

ASAP TRANS CORP. and KRISTINA

PETROSIUS,

Defendants.

MEMORANDUM OPINION AND ORDER

Sam Malone and Donald Brown, on behalf of themselves and others similarly

situated, are suing ASAP Trans Corp. and its president, Kristina Petrosius, for

alleged violations of the federal Truth in Leasing Act, 49 U.S.C. § 14704(a)(2), and

the Illinois Wage Payment and Collection Act, 820 ILCS 115/9. They have moved to

certify two classes. The Court grants their motion with modifications.

I. Legal Standards

Class certification is governed by Federal Rule of Civil Procedure 23. A party

seeking class certification under Rule 23 “bears the burden of demonstrating that

certification is proper by a preponderance of the evidence.” Bell v. PNC Bank, Nat’l

Ass’n, 800 F.3d 360, 373 (7th Cir. 2015). Failure to satisfy any of Rule 23’s

requirements precludes class certification. Harriston v. Chicago Tribune Co., 992

F.2d 697, 703 (7th Cir. 1993).

Before certifying a class, the Court must “make whatever factual … inquiries

as are necessary under Rule 23. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676

(7th Cir. 2001). Nevertheless, class-certification proceedings are not a “dress

rehearsal for the trial on the merits,” and the Court can only evaluate evidence to

decide whether certification is proper. Messner v. Northshore Univ. HealthSystem,

669 F.3d 802, 811 (7th Cir. 2012).

II. Background

These background facts come from the parties’ pleadings and the exhibits the

parties submitted with their class-certification briefs.

Defendant ASAP Trans Corp. is an Illinois corporation headquartered in

Lemont, Illinois. Its founder, owner, and president, defendant Kristina Petrosius, is

an Illinois resident. ASAP contracts with drivers and companies to haul freight across

the country. [229] at ¶ 9. It pays some drivers on a per-mile basis and pays others by

splitting the load revenue with drivers at an agreed-upon percentage. [326-1] at 31:3–

8.

Plaintiff Sam Malone performed work as a driver for ASAP from January 2022

until May 2022. [229] at ¶ 7. He contracted to haul loads for ASAP in exchange for

82% of the load’s “agreed … revenue rate.” [224-1] at 24. ASAP drivers signed eight

different types of contracts, see generally [237], and five of them had similar

percentage-based compensation arrangements, see [237] at 28, 73, 118, 163, 207.

The parties dispute what “revenue rate” means. See, e.g., [236] at 8. Plaintiffs

contend that it means the amount that the freight broker paid to ASAP for the load.

[229] at ¶ 20. Defendants believe that it means the amount to which the driver and

ASAP’s dispatcher agreed. [253] at 20–21. Plaintiffs allege that ASAP lied to owner-

operator drivers by under-reporting the amounts that brokers paid ASAP for each

load. [229] at ¶ 24. Based on plaintiffs’ proposed definition of “revenue rate,” drivers’

compensation was therefore less than it should have been because it was based on an

amount less than the broker price of each load. [236] at 9; [229] at ¶ 40.

According to plaintiffs, it was a company-wide practice to pay drivers based on

an amount that was different than the amount received from the broker. They

maintain that dispatchers were paid 25% of the difference between the amounts

ASAP was paid by freight brokers and the amounts on which drivers’ compensation

was based. [236-4] at 16:15–22; [236-5] at 44:10–45:19. Plaintiffs point to an ASAP

spreadsheet documenting the amounts ASAP received from brokers for each load and

the amount on which drivers’ compensation was based for those same loads. [236-4]

at 43:11–44:15; [236-5] at 36–46. Plaintiffs also allege that ASAP’s president,

defendant Petrosius, was aware of and encouraged the scheme. [229] at ¶ 72.

Plaintiff Donald Brown, an Illinois resident, worked as a truck driver for ASAP

from October 2019 to October 2022. [229] at ¶ 8. He was paid on a per-mile basis

rather than on a percentage basis. [229] at ¶ 42. ASAP required Brown, like Malone

and all other drivers for ASAP, to follow several standard written rules. [224-9]; [224-

10]. ASAP also made a number of regular deductions from the paychecks of its drivers

to cover costs such as accident insurance, electronic logbooks, administration, repairs,

and cleaning. [236-6] at 43:15–22; [236-10] at 38:15–19; [236-5] at 19:16–23; [237] at

¶ 10. ASAP classified all of its drivers as “independent contractors.” [236-5] at

101:23–102:7.

Plaintiffs seek to certify a class, with Malone as class representative, to bring

Truth in Leasing Act claims against ASAP and Petrosius for allegedly breaching the

terms of percentage-based drivers’ contracts by paying them based on amounts less

than the amounts ASAP received from freight brokers for each load. They propose

the following class definition, with the relevant type of contract denoted in

parentheticals embedded within the class definition:

All individuals who drove a truck[] for ASAP from January 1, 2021 to

January 1, 2024 and signed an equipment lease in the form found at

Bates Numbers ASAP014600-644 (Type 1), ASAP014645-691 (Type 2),

ASAP014692-734 (Type 3), ASAP014735-780 (Type 4), or ASAP014796-

803 (Type 7).

[236] at 15.

Plaintiffs also seek to certify a class, with Malone and Brown as class

representatives, to bring Illinois Wage Payment Collection Act claims against ASAP

and Petrosius for allegedly making deductions from drivers’ paychecks without their

express written authorization. They propose the following class definition:

All individuals who worked for ASAP as a truck driver from January 1,

2018 to January 1, 2024 and had amounts deducted from their pay for

occupational accident insurance, escrow, electronic logbook monitoring,

admin fee, violations, citations, repairs, or truck cleaning.

Id.

III. Analysis

To certify a class under Rule 23, plaintiffs must satisfy each of Rule 23(a)’s

requirements and then show that they qualify for a particular type of class action

under Rule 23(b). Rule 23(a) provides four prerequisites for bringing a class action in

federal court: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of

representation. Plaintiffs have moved to certify classes under Rule 23(b)(3), [231] at

¶ 2, which provides two additional requirements: (1) predominance; and (2)

superiority. See Fed. R. Civ. P. 23(b)(3). The Court will address each requirement in

turn, but, because Rule 23(a)’s adequacy requirement frames the discussion, it will

begin its analysis there.

A. Adequacy

A class may only be certified under Rule 23 if “the representative parties will

fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The

“representative parties”—i.e., the named plaintiffs; here, Malone and Brown—are

charged with representing absent class members, see Fed. R. Civ. P. 23(a), and the

adequacy requirement considers “the adequacy of representation” they can provide

“in protecting [class members’] different, separate, and distinct interest[s].” Retired

Chi. Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). So “a class is not

adequately represented if class members have antagonistic or conflicting claims.”

Santangelo v. Comcast Corp., 15-cv-0293, 2017 WL 6039903, at *4 (N.D. Ill. Dec. 6,

2017) (cleaned up) (quoting id.). And “[t]he presence of even an arguable defense

peculiar to the named plaintiff or a small subset of the plaintiff class may … bring

into question the adequacy of the named plaintiff’s representation.” CE Design Ltd.

v. King Architectural Metals, Inc., 637 F.3d 731, 726 (7th Cir. 2011). The adequacy

inquiry applies to the adequacy of both the named plaintiffs and plaintiffs’ counsel.

See Retired Chi. Police Ass’n, 7 F.3d at 598 (citing Sec’y of Labor v. Fitzsimmons, 805

F.2d 682, 697 (7th Cir. 1986) (en banc)).

Defendants raise a number of issues related to the adequacy of the named

plaintiffs.

Arbitration and class-waiver issues

Defendants contend that Malone and Brown are not adequate class

representatives because, unlike many members of the putative classes, they are not

subject to contractual arbitration and class-waiver provisions. See [253] at 5, 7.

Plaintiffs counter that “[t]he adequacy threshold is a low one,” so the presence of those

provisions in some putative class members’ contracts needn’t disqualify Malone and

Brown as adequate representatives. [265] at 13 (quoting Wallace v. Chi. Hous. Auth.,

224 F.R.D. 420, 429 (N.D. Ill. 2004)).

The Court concludes that the arbitration and class-waiver provisions render

Malone and Brown inadequate to bring class claims against ASAP, but not against

Petrosius. Courts in this district and across the country have found named plaintiffs

to be inadequate class representatives when some, but not all, class members’

contracts contain arbitration or class-waiver provisions. See, e.g., Santangelo, 2017

WL 6039903, at *4–*6 (striking class allegations because plaintiff, who wasn’t subject

to an arbitration agreement while other class members were, was inadequate

representative); Avilez v. Pinkerton Gov. Servs., Inc., 596 Fed. App’x 579, 579 (9th

Cir. 2015) (holding that district court abused its discretion by certifying classes that

included employees who signed class action waivers because plaintiff, who hadn’t

signed a waiver, was an inadequate class representative); Jensen v. Cablevision Sys.

Corp., 372 F. Supp. 3d 95, 124–25, 131 (E.D.N.Y. 2019) (denying class certification

for the same reason); Eaton v. Ascent Resources-Utica, LLC, Case No. 2:19-cv-03412,

2024 WL 1458457, at *6–*8 (redefining class to exclude putative members subject to

arbitration agreements because named plaintiff, not subject to such an agreement,

could not adequately represent them); Johnson v. BLC Lexington, SNF, LLC, Civil

Action No. 5: 19-064-DCR, 2020 WL 3578342, at *7 (E.D. Ky. July 1, 2020) (“[Plaintiff]

is not an adequate representative because she is not subject to a binding arbitration

defense like other potential class members might be.”); cf., e.g., In re Titanium

Dioxide Antitrust Litig., 962 F. Supp. 2d 840, 861–63 (D. Md. 2013) (redefining class

to exclude members subject to arbitration agreements because the agreements

destroyed commonality, typicality, and predominance); Renton v. Kaiser Foundation

Health Plan, Inc., No. C00-5370RJB, 2001 WL 1218773, at *5–*6, *9 (W.D. Wash.

Sept. 24, 2001) (denying class certification because arbitration agreements affecting

some class members, but not named plaintiff, destroyed adequacy).

Here, the parties have identified eight different contract types signed by

putative class members. [237] at 2 ¶ 8. The putative IWPCA class includes

individuals who signed all eight, and the putative TILA class includes individuals

who signed five of the eight. [237] at 15. Types 1, 4, and 5 contain no arbitration or

class-waiver provisions. Type 2 contains an arbitration provision and a class waiver

that apply to actions “brought against ASAP Trans Corp or its officers, directors and

agents.” [237] at 71. Types 3, 6, 7, and 8 each contain arbitration and class-waiver

provisions that do not refer to ASAP’s officers, directors, or agents. See [237] at 115,

198, 206, 218.

The number of contracts of each type and the arbitration and class-waiver

provisions contained in each are summarized in the table below:

Arbitration

Arbitration

and class-

and class-

Number of waiver

Contract waiver IWPCA TILA

contracts of provisions

type provisions class class

this type1 applicable to

applicable to

ASAP and its

ASAP only

officers

1 7 X X

2 55 X X X

3 5 X X X

4 10 X X

5 10 X

6 202 X X

7 29 X X X

8 139 X X

The number of contracts from each putative class subject to arbitration

agreements is summarized in the table below:

Arbitration and Arbitration and

No arbitration or class-waiver class-waiver

Putative class class-waiver provisions provisions

provision applicable to ASAP applicable to ASAP

only and its officers

TILA 17 34 55

IWPCA 27 375 55

a. Adequacy as to claims against ASAP

Malone and Brown did not sign contracts with arbitration or class-waiver

provisions, so they cannot adequately represent the interests of class members who

did. See Santangelo, 2017 WL 6039903, *4 (quoting CE Design, 637 F.3d at 726). The

1 [237] at 2 ¶ 8.

arbitration and class-waiver provisions create higher barriers to recovery for the class

members subject to them, but a judicial determination as to the provisions’

enforceability will not affect recovery by Malone or Brown. They thus will have a

structural incentive to trade on the rights of absent class members to their own

advantage in any potential settlement with ASAP. See id. at *5 (quoting Amchem

Prod., Inc. v. Windsor, 521 U.S. 591, 595 (1997)).

Eighty-nine out of 106 members of the putative TILA class and 430 out of 457

members of the putative IWPCA class have signed contracts with ASAP containing

arbitration and class-waiver provisions. See supra p. 8. That means that Malone and

Brown cannot adequately represent 84% of the TILA class and 94% of the IWPCA

class in their claims against ASAP. As a result, the Court will not certify either class

with respect to those claims.2

Plaintiffs point out that two of the cases cited by defendants held that the

plaintiffs were atypical, not inadequate. [265] at 19 (discussing In re Titanium

Dioxide Antitrust Litig., 962 F. Supp. 2d at 862; Renton, 2001 WL 1218773, at *7).

This is a distinction without a difference. Numerous courts have found that

arbitration and class-waiver provisions precluded class certification; many of those

2 Defendants attempt to frame their argument in terms of Article III standing, asserting that

Malone and Brown will be unable to challenge the validity of class members’ agreements.

Article III standing is beside the point, and the case they cite, Rawat v. Navistar

International Corp., No. 08-cv-4305, 2011 WL 222131 (N.D. Ill. Jan. 20, 2011), is inapposite.

In Rawat, the court held that plaintiff lacked Article III standing to sue for a declaratory

judgment on the validity of potential class members’ contracts before the court brought those

members into the action by certifying a class. Id. at *1. Here, the Court is considering the

implications of arbitration and class-waiver provisions on the class-certification question, but

is not issuing a declaratory judgment on their validity or enforceability.

decisions were based on adequacy; some were based on other Rule 23 requirements;

others held that such provisions undermined several of Rule 23’s requirements. See,

e.g., Santangelo, 2017 WL 6039903, at *4–*6; Avilez, 596 Fed. App’x at 579; Jensen,

372 F. Supp. 3d at 124–25; Eaton, 2024 WL 1458457, at *6–*8; Johnson, 2020 WL

3578342, at *7; In re Titanium Dioxide Antitrust Litig., 962 F. Supp. 2d at 861–63;

Renton, 2001 WL 1218773, at *5–*6, *9; see also Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338, 350 n.5 (2011) (observing that “[t]he commonality and typicality

requirements of Rule 23(a) tend to merge” and that “[t]hose requirements … also tend

to merge with the adequacy-of-representation requirement”). The point is that

arbitration and class-waiver provisions may make class certification impossible, and

one way they may do that is by making a named plaintiff an inadequate class

representative.

Plaintiffs attempt to distinguish another case cited by defendants by pointing

out that, there, unlike here, the named plaintiff was the only person in the putative

class not subject to an arbitration clause. [265] at 20 (discussing Forby v. One Techs.,

LP, No. 3:16-CV-856-L, 2020 WL 4201604, at *9 (N.D. Tex. July 22, 2020)). This does

not affect the Court’s conclusion, as there are many other cases in which arbitration

and class-waiver provisions precluded adequacy, even when the named plaintiff was

one of several putative class members not subject to such a provision. See, e.g., Jensen,

372 F. Supp. 3d at 122 (denying class certification when plaintiff was one of

approximately 200 customers who had opted out of an arbitration provision).

Plaintiffs also attempt to undermine the persuasive force of Eaton, 2024 WL

1458457, by pointing out that, there, the court originally granted class certification

in spite of the presence of arbitration clauses in some putative class members’

contracts. Only later did it modify the class when evidence showed that a majority of

the leases at issue included arbitration clauses. [265] at 20 (discussing id. at *2, *6).

This point also has no effect on the Court’s analysis. Here, the evidence already shows

that most of the contracts between putative class members and ASAP contain

arbitration and class-waiver provisions, just as in Eaton, where the court modified

the class based on later-available evidence that the majority of class members were

subject to such provisions.

Plaintiffs also argue that Jensen, 372 F. Supp. 3d 95, Santangelo, 2017 WL

6039903, and another case3 are not persuasive. [265] at 20–21. In those cases, they

point out, plaintiffs had affirmatively opted out of arbitration agreements, which

undermined their ability to credibly contest the enforceability of the provisions by

arguing that class members felt compelled to agree or lacked notice of the provision.

Id.; see also Santangelo, 2017 WL 6039903, at *5. Here, in contrast, Malone and

Brown did not affirmatively opt out of arbitration or class-waiver provisions. But that

does not change the fact that those provisions still create an incentive structure that

makes Malone and Brown inadequate representatives. They have no reason to

challenge the enforceability of provisions that do not bind them.

3 Tan v. Grubhub, Inc., No. 15-cv-05128-JSC, 2016 WL 4721439, at *3 (N.D. Cal. July 19,

2016).

Plaintiffs further argue that plaintiffs’ inadequacy is “speculative,” so the class

should be certified until “the unlikely event that ‘the conflicts prove real.’” [265] at

20–21 (quoting Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 372

(7th Cir. 2012)). Although there are cases—and plaintiffs cite two4—in which courts

characterize likely future defenses as “speculative,” courts may look ahead to future

circumstances when determining whether class certification is appropriate. Cf. CE

Design Ltd., 637 F.3d at 726 (“The presence of even an arguable defense … may …

bring into question the adequacy of the named plaintiff’s representation.”) (emphasis

added); In re Marriott International, Inc., 78 F.4th 677, 686 (4th Cir. 2023) (“[T]he

time to address a contractual class waiver is before, not after, a class is certified. …

Courts consistently resolve the import of class waivers at the certification stage—

before they certify a class, and usually as the first order of business.”) (collecting

cases).

And, here, plaintiffs’ inadequacy is not speculative, as is made clear by

comparison with another case cited by plaintiffs, Johnson v. Meriter Health Services

Employees Retirement Plan, 702 F.3d at 364. There, the court held that conflicts of

interest based on class members’ possible preferences were “too hypothetical to bar

class certification” because the only evidence supporting the existence of the conflict

was an expert witness’s assertion that some class members “might” have had certain

preferences. Id. at 372. Here, the conflict is not based on a mere assertion that some

4 [265] at 21 (citing Svoboda v. Amazon.com, Inc., No. 21 C 5336, 2024 WL 1363718, at *7

(N.D. Ill. Mar. 30, 2024); Kessler v. Samsung Elecs. Am. Inc., No. 17-C-0082, 2019 WL

13165457, at *3 (E.D. Wis. Feb. 13, 2019)).

class members “might” have signed arbitration and class-waiver provisions; the

evidence indicates that precisely 89 members of the putative TILA class and 430

members of the putative IWPCA class did sign those agreements. See supra p. 8, 9.

This case, then, is less like Johnson, where inadequacy was held to be speculative,

and more like Santangelo, 2017 WL 6039903, at *4–*6, Avilez, 596 Fed. App’x at 579,

Jensen, 372 F. Supp. 3d at 124–25, and the many other cases in which courts have

found that the existence of arbitration or class-waiver provisions precluded class

certification.

Plaintiffs also propose an alternative course of action: modifying the class

definition by excluding type 2 contracts, which “should sufficiently address any Rule

23 concerns,” because only type 2 contracts have arbitration and class-waiver

provisions that apply to both ASAP and its “officers, directors, or agents.” [265] at 22;

[237] at 71. And, they argue, since the claims against ASAP and Petrosius “would

have the same relative value,” [265] at 22–23, there is no structural conflict between

class members with no arbitration and class-waiver provisions and those with

arbitration and class-waiver provisions against ASAP but not Petrosius. This

argument falls apart, however, because claims against Petrosius do not necessarily

have the same value as claims against ASAP. To prevail in their TILA claims against

Petrosius, plaintiffs must prove not only that ASAP violated the TILA, but also that

Petrosius aided and abetted ASAP in so doing. See [236] at 12. Similarly, to prevail

on their IWPCA claims against Petrosius, they must prove not only that ASAP

violated the IWPCA, but also that Petrosius “knowingly permit[ted]” ASAP to violate

the IWPCA. See id. at 14. And there may be practical considerations, such as

collectability or insurance issues, that affect the value of the claims.

To fully address the adequacy concerns with respect to claims against ASAP,

then, the Court would have to exclude all contracts with arbitration and class-waiver

provisions—including those that are arguably invalid or unenforceable, see CE

Design Ltd., 637 F.3d at 726. That would not be an appropriate solution. It would

leave 17 members of the TILA class and 27 members of the IWPCA class; those

classes would fail the Rule 23(a) numerosity requirement. See Mulvania v. Sheriff of

Rock Island Cnty., 850 F.3d 849, 859 (7th Cir. 2017) (“[A] forty-member class is often

regarded as sufficient to meet the numerosity requirement.”). Even if those class

members were spread across the country, they wouldn’t—in light of recent

developments in electronic communication, see Value Drug Co. v. Takeda Pharm.,

U.S.A., Inc., Civil Action No. 21-3500, 2023 WL 2314911, at *14 (E.D. Pa. Feb. 28,

2023) (collecting cases)—be so numerous that joinder would be “impracticable.” Fed.

R. Civ. P. 23(a)(1); see also Thornton v. Kroger Co., No. CIV 20-1040 JB/LF, 2023 WL

6378417, at *21 (D.N.M. Sept. 29, 2023) (“In determining whether a proposed class

meets the numerosity requirement, … a court may make common sense assumptions

to support a finding that joinder would be impracticable.”) (cleaned up) (collecting

cases).

Because plaintiffs cannot adequately represent putative class members in

their claims against ASAP, and that adequacy problem cannot be appropriately cured

by modification of the class definition, the Court denies certification of the TILA and

IWPCA classes with respect to claims brought against ASAP.

b. Adequacy as to claims against Petrosius

Whether the arbitration and class-waiver provisions prevent plaintiffs from

adequately representing putative class members in their claims against Petrosius

depends on whether those provisions apply to claims against her in the first place.

Plaintiffs contend that the arbitration and class-waiver provisions in contract types

3, 6, 7, and 8—which do not refer to ASAP’s officers, directors, or agents—apply only

to disputes between the parties to the contract—the putative class member and

ASAP—and so do not apply to disputes between class members and Petrosius. [236]

at 20–21. Defendants disagree, arguing that Petrosius can enforce the arbitration and

class-waiver provisions because she is an “officer … of the signatory defendant

corporation” and “the claims against the corporation and [her] [are] substantively the

same.” [253] at 8–9.

Plaintiffs are correct. “Traditional principles of state law” govern whether a

contract, including an arbitration agreement or class waiver, is enforceable by a non-

party to the agreement. Arthur Andersen LLP v. Wayne Carlisle, 556 U.S. 624, 631

(2009). “[A] litigant who was not a party to the relevant arbitration agreement may

[compel arbitration] if the relevant state contract law allows him to enforce the

agreement.” Id. at 632. Here, Illinois law governs, since all four contract types contain

either choice-of-law provisions applying Illinois law or, at a minimum, language

stating that the contract “is drawn and executed in accordance with … the laws of …

the State of Illinois.” See [237] at 115, 198, 206, 218; Beach Forwarders, Inc. v. Serv.

by Air, Inc., 76 F.4th 610, 613 (7th Cir. 2023) (giving effect to contract’s choice-of-law

provision). Defendants also do not suggest that anything other than Illinois law

governs this analysis.

“Illinois courts recognize a ‘strong presumption against conferring contractual

benefits on noncontracting third parties.’” Sosa v. Onfido, Inc., 8 F.4th 631, 639 (7th

Cir. 2021) (citing Marque Medicos Farnsworth, LLC v. Liberty Mut. Ins. Co., 427 Ill.

Dec. 218, 117 N.E.3d 1155, 1159 (Ill. App. 1st 2018)). To overcome that presumption,

“the implication that the contract applies to third parties must be so strong as to be

practically an express declaration.” Id. (citing 155 Harbor Drive Condo. Ass’n v.

Harbor Point Inc., 209 Ill. App. 3d 631, 154 Ill. Dec. 365, 568 N.E.2d 365, 375 (Ill.

App. Ct. 1991)). It is not enough to show that the “parties know, expect, or even intend

that others will benefit from the agreement.” Id. (citing Marque, 427 Ill. Dec. 218, 117

N.E.3d at 1159). Instead, for a nonparty to qualify as a third-party beneficiary, the

language of the contract must show that “the contract was made for the direct, not

merely incidental, benefit of the third person.” Id. (citing Martis v. Grinnell Mut.

Reinsurance Co., 329 Ill. Dec. 82, 905 N.E.2d 920, 924 (Ill. App. 3d 2009)). This

intention “must be shown by an express provision in the contract identifying the

third-party beneficiary by name or by description of a class to which the third party

belongs.” Id. So, “under basic principles of contract law, only parties to the arbitration

contract may compel arbitration.” Guarantee Tr. Life Ins. Co. v. Platinum

Supplemental Ins., Inc., 2016 IL App (1st) 161612, ¶ 38 (quoting Carter v. SSC Odin

Operating Co., LLC, 2012 IL 113204, ¶ 55).

Here, the parties to each of the four contract types are the putative class

members and ASAP. [237] at 98, 194, 202, 209. None of the four contract types at

issue designate ASAP’s officers, directors, or agents as third-party beneficiaries who

would be entitled to enforce the arbitration or class-waiver provisions. That means

that Petrosius cannot enforce the provisions in contract types 3, 6, 7, and 8, and they

don’t apply to putative class members’ claims against her. Further, contract types 1,

4, and 5 contain no arbitration or class-waiver provisions at all. That means that only

type 2 contracts, which contain arbitration and class-waiver provisions that refer to

ASAP’s “officers, directors and agents,” [237] at 71, present the adequacy problems

discussed above when applied to claims against Petrosius. And their exclusion

presents no numerosity problem; there would still be 51 members of the TILA class

and 402 members of the IWPCA class with claims against Petrosius.

Defendants cite three cases—from 1986, 1996, and 2001—to support their

position that Petrosius should also benefit from the arbitration and class-waiver

provisions in class members’ agreements with ASAP. The Court needn’t consider

those cases, which are out of date. They predate Arthur Andersen, 556 U.S. at 624,

and the numerous Illinois cases stating that only parties to a contract can enforce

those contracts’ arbitration and class-waiver provisions, see, e.g., Guarantee Tr. Life

Ins. Co., 2016 IL App (1st) 161612.

Since Malone and Brown cannot adequately represent class members in their

claims against ASAP but can represent class members, except for those who signed

type 2 contracts, in their claims against Petrosius, the rest of the Court’s analysis will

assume that the classes exclude individuals who signed type 2 contracts and that the

class members are only bringing claims against Petrosius.5

Other adequacy issues

Defendants contend that Malone is an inadequate representative for the TILA

class because the TILA applies only when an owner of equipment leases the

equipment to a carrier, 49 C.F.R. § 376.1–.2, and Malone did not own any equipment

or lease any equipment back to ASAP. [253] at 9. But plaintiffs argue, and the Court

agrees, that this is a question for summary judgment or trial, not for class

certification. [265] at 15. Plaintiffs contend that whether Malone owned or leased his

equipment to ASAP for purposes of TILA depends on his lease agreement with ASAP,

which is the same basis on which all TILA class members’ owner and lessor statuses

will be evaluated. [265] at 14–15. So this issue creates no “antagonistic or conflicting

claims” that destroy adequacy. Retired Chi. Police Ass’n, 7 F.3d at 598; cf., e.g.,

Magpayo v. Advocate Health and Hosps. Corp., Case No. 16-cv-01176, 2018 WL

950093, at *15 (N.D. Ill. Feb. 20, 2018) (“The question is … whether, given [putative

class members’] varying agreements, a common answer to the question … would move

this case forward.”) (citing Wal-Mart, 564 U.S. at 359).

5 Plaintiffs propose modifying the class definitions by excluding drivers who entered into Type

2 contracts. [265] at 22. The Court, however, is not limited to the modifications proposed by

the parties. See, e.g., Beaton v. SpeedyPC Software, 907 F.3d 1018, 1023 (7th Cir. 2018)

(“District courts may amend class definitions either on motion or on their own initiative.”);

Streeter v. Sheriff of Cook Cnty., 256 F.R.D. 609, 611 (N.D. Ill. 2009) (“A district court has

broad discretion to certify a class and may modify a proposed class definition if modification

will render the definition adequate.”); Walney v. SWEPI LP, Civil Action No. 13-102 Erie,

2015 WL 5333541, at *29–30, 32 (W.D. Pa. Sept. 14, 2015) (certifying classes with respect to

some claims but not others and collecting cases).

Defendants contend that Malone and Brown are also inadequate

representatives of the IWPCA class because plaintiffs’ proposed definition of that

class includes individuals who had money deducted from their paychecks for eight

different reasons, while Malone and Brown only had money deducted for four of those

reasons and only described those four reasons in the operative complaint. [253] at 12–

13. But defendants do not explain, nor does the Court see, how this creates the type

of intra-class conflict that would make Malone and Brown inadequate class

representatives. See Retired Chi. Police Ass’n, 7 F.3d at 598.

Defendants next argue that Malone and Brown cannot adequately represent

the IWPCA class because Malone claims that he and some class members are owner-

operators, while Brown and other class members are not. [253] at 14. The argument

is that the IWPCA protects employees, not independent contractors. Id. It uses a

three-part test to determine whether a party is an independent contractor and not an

employee, and, according to defendants, proving that owner-operators are

independent contractors requires different facts than proving that other drivers are.

Id. Again, the Court does not see how this creates an intra-class conflict leading to

adequacy problems, see Retired Chi. Police Ass’n, 7 F.3d at 598, especially in light of

plaintiffs’ assertion that they can use common evidence—defendants’ employment

policies—to prove that all class members are employees under IWPCA, [265] at 15.

Defendants’ last argument against adequacy is that Brown cannot adequately

represent the putative IWPCA class because he worked for some time as a recovery

driver6 for ASAP and for Forsage, another motor carrier. [253] at 15–16. Plaintiffs,

on the other hand, argue that Brown’s recovery work for ASAP and Forsage does not

change the fact that he worked as a driver hauling loads for ASAP for over a year

before starting his recovery work. The Court agrees with plaintiffs. Brown started

working as a delivery driver for ASAP in September 2020, [236-11] at 37, which he

did exclusively for over a year before performing any recoveries for ASAP, id. at 115.

The delivery work that Brown performed for ASAP and on which his IWPCA claim is

based is the same as the delivery work on which plaintiffs intend to base the claims

of other putative class members. See [265] at 16. Brown’s additional work as a

recovery driver does not somehow change the nature of his work as a delivery driver,

and it does not somehow make him an inadequate representative of the putative

IWPCA class. See Retired Chi. Police Ass’n, 7 F.3d at 598.

Besides the issues related to arbitration and class-waiver provisions discussed

above, named plaintiffs have demonstrated that they will be adequate class

representatives. They have responded to written discovery, prepared for and attended

their depositions, and regularly communicate with class counsel. [236-12] at ¶ 6.

Adequacy of counsel

Defendants do not challenge the adequacy of plaintiffs’ attorneys to represent

the putative classes, and the Court concludes that plaintiffs’ counsel is adequate. The

Court sees no apparent conflict between plaintiffs’ counsel and the class, and

6 A “recovery driver” is a driver who recovers new or abandoned ASAP trucks and drives them

back to ASAP’s truck yard, as opposed to delivering cargo from point A to point B. [236-11]

at 106–08.

plaintiffs’ counsel notes their significant experience in similar litigation. Id. at ¶¶ 4–

5.

Adequacy is therefore satisfied for both classes as modified by the exclusion of

claims against ASAP and the exclusion of individuals who signed type 2 contracts.

B. Typicality

Rule 23’s typicality requirement permits class certification only if “the claims

or defenses of the representative parties are typical of the claims or defenses of the

class.” Fed. R. Civ. P. 23(a)(3). To satisfy typicality, plaintiffs’ claims must “arise from

the same events or course of conduct that gives rise to the putative class members’

claims.” Beaton v. SpeedyPC Software, 907 F.3d 1018, 1026 (7th Cir. 2018). The

individual claims may feature some factual variations as long as they “have the same

essential characteristics.” Id. The purpose of the typicality requirement is to ensure

that class representatives’ claims will not fail or prevail for reasons inapplicable to

other class members. See CE Design Ltd., 637 F.3d at 724. Accordingly, “[t]ypicality

under Rule 23(a)(3) should be determined with reference to the company’s actions,

not with respect to particularized defenses it might have against certain class

members.” Id. (quoting Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996)).

A court’s determination in this regard is only preliminary. Beaton, 907 F.3d at 1026.

Malone argues that he is typical of the TILA class because he claims, like other

members of the TILA class, that he “worked for ASAP and signed one of the relevant

equipment lease agreements, and ASAP paid him less than the promised 82% of the

load.” [236] at 18. Likewise, Malone and Brown argue that they are typical of the

IWPCA class because their claims that “ASAP … made deductions from [their] pay

without complying with the IWPCA’s rules for obtaining employees’ written

authorization” are the same as those of other IWPCA class members. Id. The Court

agrees that Malone’s and Brown’s claims are typical of the proposed classes.

Defendants make three arguments against typicality, none of which are

persuasive. First, they argue that the putative TILA and IWPCA classes fail because

some putative class members have arbitration and class-waiver agreements with

ASAP. [253] at 5. But, now that the classes are to be modified as discussed in the

adequacy section above, this argument no longer applies.

Second, defendants believe that the putative IWPCA class fails because some

putative class members claim to be owner-operators, while others are company

drivers; this could create factual differences affecting the determination of class

members’ status as employees under the IWPCA. Id. at 15. For the same reason that

the distinction between owner-operators and company drivers does not affect the

adequacy of plaintiffs’ representation, it does not affect typicality: Plaintiffs intend to

use common evidence—defendants’ employment policies—to prove that all class

members are employees under IWPCA. [265] at 15. So any factual differences

stemming from the distinction do not affect the “essential characteristics” of class

members’ claims. Fed. R. Civ. P. 23(a)(3).

Third, defendants attempt to paint type 7 contracts, which are part of the TILA

class, as atypical of the other contract types—1, 3, and 4—in the TILA class. [253] at

23–24. They start by asserting that type 7 drivers are not “owner-operators” entitled

to TILA protection. [253] at 23. This argument fails for two reasons. First, the only

substantial evidence that defendants provide to support their assertion is the

deposition testimony of ASAP’s accountant in which she insists on using different

terminology to refer to type 7 drivers and types 1, 3, and 4 drivers.7 [253] at 23; [253-

10] at 28–31. But the terminology that the accountant uses to refer to those drivers

does not bear on whether type 7 drivers are “owner-operators” under the TILA.

Second, whether type 7 drivers are “owner-operators” does not change the fact that

type 7 drivers’ claims “rise from the same events or course of conduct that gives rise

to [other] putative class members’ claims.” Beaton, 907 F.3d at 1026. Plaintiffs allege

that all TILA class members, including type 7 drivers, had money skimmed from their

paychecks. [236] at 7–10.

Defendants also attempt to distinguish type 7 drivers from other members of

the putative TILA class by pointing out that type 7 drivers were paid 30%–33% of the

price of each load they transported, while other members of the TILA class were paid

82% of the price of each load. But the core allegation giving rise to the TILA claim is

that ASAP skimmed money from drivers’ paychecks by lying to them about the price

of each load. [236] at 9. That “course of conduct” operates the same way whether the

driver is to be paid 30% or 82% of the price of the load. Beaton, 907 F.3d at 1026.

What matters is that the driver’s compensation is a percentage of the load price—not

7 Defendants also cite the declaration of defendant Petrosius. [253] at 23. But, according to

that declaration, none of the drivers in the TILA class are owner-operators. See [181-1] at 3,

¶ 6. It is thus unclear how the declaration would undermine the typicality of the TILA class.

Another citation appears to be intended to identify specific lines of deposition transcripts but

points to a document that is not a deposition transcript and doesn’t include line numbers.

[253] at 23. The Court reminds defendants that “[j]udges are not like pigs, hunting for truffles

buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

what that percentage is. The difference in percentage, then, does not destroy the

typicality of the TILA class.

Finally, defendants point out that type 7 drivers have language in their

contracts that other putative TILA class members don’t have: “It is Contracotrs [sic]

duty to review the settlement to verify that there are no clerical errors, Contractor

has two weeks to challenge the amounts paid for each and every shipment.” [253] at

23; [237] at 207. They argue that this language provides a unique defense against

type 7 drivers’ claims that destroys the typicality of the TILA class. But “[t]ypicality

under Rule 23(a)(3) should be determined with reference to the company’s actions,

not with respect to particularized defenses it might have against certain class

members.” Wagner, 95 F.3d at 534. And, as discussed above, TILA class members’

claims all arise from the same alleged course of conduct. Beaton, 907 F.3d at 1026.

Further, the typicality (and adequacy) requirement is not intended “to derail

legitimate class actions by conjuring up … insubstantial defenses.” CE Design Ltd.,

637 F.3d at 728. Unlike the arbitration and class-waiver defenses discussed above,

this contractual provision does not clearly preclude type 7 drivers from participating

in this putative class action. The two-week challenge period provided for in the

contract is connected to the previous clause—“It is Contracotrs [sic] duty to review

that settlement to verify that there are no clerical errors”—with a comma. [237] at

207. The two-week challenge period thus appears to refer to the opportunity to object

to “clerical errors.” Id. Since plaintiffs allege that defendants intentionally lied to

them about the prices of their loads, [236] at 9, the claims here are outside the scope

of the “clerical errors” to which the challenge period applies, [237] at 207.

Defendants cite Mervyn v. Atlas Van Lines, Inc., 882 F.3d 680 (7th Cir. 2018),

to support the supposed gravity of the purported challenge-period defense. In that

case, the plaintiff had a contract that stated that “[f]inancial entries made by

[defendant] on payment documents shall be conclusively presumed correct if not

disputed by [plaintiff] within 30 days after distribution.” Id. at 684. The plaintiff

alleged that the amount he was paid violated the terms of his contract, even though

that amount—and the information upon which the amount was based—was

accurately stated on his payment documents. Id. at 684–85. The court dismissed his

claim because he didn’t dispute his payments within 30 days. Id.

Here, in contrast, the crux of plaintiffs’ TILA claims is that their payment

documents did not accurately state the load prices upon which their payment was

based. [236] at 9. And since the contractual two-week challenge period refers to

“clerical errors,” [237] at 207, it does not preclude type 7 drivers from suing for

intentionally falsified payment records, see [236] at 9. The challenge-period defense

is thus an “insubstantial defense” that needn’t “derail” this class action. CE Design

Ltd., 637 F.3d at 728.

Typicality is satisfied for both modified classes.

C. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all

members is impractical.” The Seventh Circuit has instructed that “[w]hile there is no

magic number that applies to every case, a forty-member class is often regarded as

sufficient to meet the numerosity requirement.” Mulvania, 850 F.3d at 859.

Here, the proposed TILA class, excluding drivers who signed type 2 contracts,

contains 51 drivers. See [236] at 20; [237] at 229. The proposed IWPCA class,

excluding type 2 drivers, contains 402 drivers. Id. Both classes have more than forty

members, satisfying the numerosity requirement. See Mulvania, 850 F.3d at 859.

Defendants argue that the proposed classes fail the numerosity requirement

because only 27 drivers are not subject to arbitration or class-waiver provisions. [253]

at 24. But after modifying the proposed classes as discussed above to exclude claims

against ASAP and exclude type 2 drivers, none of the putative class members are

even arguably subject to arbitration or class-waiver provisions. So there are 51

members in the TILA class, not 17, and 402 members in the IWPCA class, not 27.

Numerosity is satisfied for both modified classes.

D. Commonality and Predominance

Rule 23(a)(2) requires that “there are questions of law or fact common to the

class.” The key is “the capacity of a class-wide proceeding to generate common

answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (cleaned

up). Put another way, the Court must determine if the question is “capable of proof

at trial through evidence that is common to the class rather than individual

members.” Bell, 800 F.3d at 375 (quoting Messner, 669 F.3d at 818). A single common

question of law or fact is sufficient to establish commonality, id. at 374, and the Court

need not resolve that question at this point, id. at 376. Rather, plaintiffs must merely

demonstrate that a question susceptible to class-wide resolution exists. Id. at 375.

Further, under Rule 23(b)(3), the common questions of law or fact must

“predominate over any questions affecting only individual members. See Costello v.

BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016). A common question predominates

when “a failure of proof on the common question would end the case and the whole

class will prevail or fail in unison.” Bell, 800 F.3d at 378 (cleaned up).

The Court’s commonality analysis begins with an identification of the elements

of plaintiffs’ claims. See Eddlemon v. Bradley Univ., 65 F.4th 335, 339–40 (7th Cir.

2023) (by identifying the elements of a plaintiff’s claims, a court can “better

understand the relationship between each claim’s common and individual

questions”).

TILA Class

TILA enables owner-operators to bring a private cause of action against

carriers to enforce their legal rights under TILA. 49 U.S.C. § 14704(a); Mervyn, 882

F.3d at 682. A successful TILA claim requires proof that the defendant violated one

or more regulations promulgated under TILA. See Brant v. Schneider Nat’l, 43 F.4th

656, 678 (7th Cir. 2022). TILA regulations require leases between owner-operator

drivers and motor carriers to specify the amount that the carrier will pay the driver

for the services provided. 49 C.F.R. § 376.12(d). They also require the carrier to

adhere to the compensation amount specified in the lease. 49 C.F.R. § 376.12

(introductory paragraph). And they provide that “[n]o person shall aid, abet,

encourage, or require a motor carrier or its employees to violate” the TILA or its

regulations.” 49 C.F.R. § 390.13.

Plaintiffs assert that commonality is satisfied as to the TILA class because

“[t]he fundamental question … is whether ASAP agreed to pay drivers a percentage

of the broker rate for each load, and the answer to that question will be the same for

each class member.” [265] at 10. The Court agrees. Commonality is satisfied when a

“common answer apt to drive the resolution of the litigation,” Dukes, 564 U.S. at 350,

is “capable of proof at trial that is common to the class,” Bell, 800 F.3d at 375. Here,

plaintiffs intend to show that the contracts of members of the TILA class should be

construed as agreements to “pay drivers a percentage of the broker rate for each load.”

[265] at 9–10. Because the relevant language of TILA class members’ contracts is

materially the same, that construction is susceptible to proof by common evidence.

See Foster v. CEVA Freight, LLC, 272 F.R.D. 171, 174 (W.D.N.C. 2011) (finding

commonality because class claims all arose under TILA and involved “uniform

provisions contained within their respective operating agreements”).

Defendants argue, however, that the relevant language in class members’

contracts is not materially the same. [253] at 16, 18. The putative TILA class (as

modified) includes drivers who signed type 1, 3, 4, and 7 contracts. The relevant

language is as follows.

Type 1 contracts:

For … performance of each Trip … Carrier agrees to pay the contractor

the compensation listed in this agreement in the form of specified

percentage [82%] based on the agreed (verbally or written) adjusted

revenue rate for a line haul between the Carrier and the Contractor.

[237] at 28.

Type 3 contracts:

For … performance of each Trip … Carrier agrees to pay Contractor the

compensation listed in the form of a specified percentage [82%] based on

the agreed exclusively between the Carrier and the Contractor line haul

rate.

[237] at 118.

Type 4 contracts:

For … performance of each Trip … Carrier agrees to pay the contractor

the compensation listed in this agreement in the form of specified

percentage [82%] adjusted gross revenue rate for a line haul between

the Carrier and the Contractor.

[237] at 163.

Type 7 contracts:

Carrier agrees to pay Contractor 33% of amount negotiated between

Carrier and Contractor. Carrier shall inform either verbally or through

a communication device about the amount each shipment will pay to

Contractor and Contractor will either agree or decline to transport each

and every shipment. After agreement is made Carrier shall pay the

Contracor [sic] agreed percentage of the agreed price.

[237] at 207.

The differences among the provisions are not material. The only specific

difference that defendants identify is that the type 3 contracts contain the word

“exclusively.” That is not significant enough to disturb commonality. In all four

contract types, the carrier is required to pay an “agreed” “price” or “rate” for a

“shipment” or “line haul,” and the crux of plaintiffs’ argument is that the “agreed

price” or “agreed rate” should be construed as the “broker rate,” i.e., the amount paid

to the carrier by the buyer of the shipment. [236] at 8–9. Plaintiffs assert that they

will support this construction using common authorities and proof, including industry

practice and evidence of common practice among ASAP dispatchers. [265] at 9; [235]

at 4–5; [236-5] at 44:10–45:19. After reviewing the evidence, the Court agrees that

this construction is susceptible to common proof. See, e.g., [236-5] at 44:10–45:19.

Defendants also spend several pages arguing that the evidence shows that the

contracts should not be construed in the way that plaintiffs propose. [253] at 18–22.

That is an argument for summary judgment or trial, not class certification. It gets to

the heart of plaintiffs’ TILA claims, and class-certification proceedings are not a

“dress rehearsal for the trial on the merits.” Messner, 669 F.3d at 811; see In re

Allstate Corp. Sec. Litig., 966 F.3d 595, 604 (7th Cir. 2020) (“At class certification, the

issue is not whether plaintiffs will be able to prove these elements on the merits, but

only whether their proof will be common for all plaintiffs, win or lose.”).

Turning to predominance, defendants identify one individualized question that

they say will predominate over the common questions. They assert that drivers’

compensation was to be based on the rate “agreed to by the driver and ASAP per load

hauled,” [253] at 22, so “what agreements were reached with each driver … will need

to be assessed on a member by member basis.” Id. This, they continue, would require

“an analysis of communications by and between different dispatchers and each

potential class member at different time periods.” Id. But this argument assumes

that each driver’s compensation was based on a rate agreed to by the driver and the

dispatcher. And that assumption is the opposite of what plaintiffs intend to prove,

which is that each driver’s compensation was to be based, under plaintiffs’ proposed

contractual construction, “on the rate the broker paid ASAP for each load.” [265] at

10. This individualized question, then, is based on a fundamental misunderstanding

of plaintiffs’ claims and will not predominate over common questions.

Plaintiffs, for their part, point out that they intend to prove a common pattern

of underpayment using centralized data. [265] at 10; [236] at 10. They identified a

spreadsheet that ASAP used to track, for each driver, how much the broker paid for

the load and how much ASAP told the driver the broker paid for the load. [236] at 10;

[236-9] at ¶ 6; [263-4] at 43:11–44:15; [263-5] at 36–46; [237] at 1 ¶ 2. This centralized

data can be used to determine whether there was a pattern of underpayment,

whether each driver was underpaid, and by how much, [265] at 10, thus minimizing

the time and effort needed to resolve individual questions. Defendants do not identify,

and the Court does not see, any other individualized questions that will predominate

over common questions.

Commonality and predominance are satisfied as to the TILA class.

IWPCA class

The IWPCA prohibits deductions from employees’ wages unless the deductions

are—

(1) required by law; (2) to the benefit of the employee; (3) in response to

a valid wage assignment or wage deduction order; or (4) made with the

express written consent of the employee, given freely at the time the

deduction is made.

820 ILCS 115/9.

It applies to “employees,” which it defines broadly as “any individual permitted

to work by an employer.” 820 ILCS 115/2. It does, however, exclude independent

contractors. It provides a three-part test for determining whether a worker is an

independent contractor; for the exclusion to apply, all three elements must be

satisfied. Under the test, an independent contractor is a person—

(A) who has been and will continue to be free from control and direction

over the performance of his work, both under his contract of service

with his employer and in fact; and

(B) who performs work which is either outside the usual course of

business or is performed outside all of the places of business of the

employer unless the employer is in the business of contracting with

third parties for the placement of employees; and

(C) who is in an independently established trade, occupation, profession

or business.

820 ILCS 115/2.

Plaintiffs have identified two questions that they believe are susceptible to

common proof, satisfying the commonality requirement: whether ASAP’s drivers

were “employees” under the IWPCA; and whether ASAP’s standard forms provided

adequate written authorization for the deductions for purposes of the IWPCA. [236]

at 16; [265] at 11–12. The Court agrees that the first question satisfies the

commonality requirement and that the second question, at the very least, is not an

individualized question that will predominate over common questions.

Plaintiffs intend to establish that class members were “employees” under the

IWPCA by showing that they do not satisfy parts A or B of the IWPCA’s independent-

contractor test. Id. They will use ASAP’s standard written work rules to establish

that class members were not “free from control and direction over the performance of

[their] work,” 820 ILCS 115/2(A), thus failing part A of the test. [236] at 11–12.

Whether the drivers were free from control, then, is susceptible to class-wide proof.

See Vera v. HomeDeliveryLink, Inc., No. 23 CV 14278, 2025 WL 20468, at *3 (N.D. Ill.

Jan. 2, 2025) (“Whether or not the policies reflected in [the drivers’ standard]

documents governed the class is capable of class-wide resolution. They either did or

they didn’t.”). They will also use common proof to demonstrate ASAP’s “usual course

of business” and its “places of business,” two key questions in determining whether

workers satisfy part B of the test. [236] at 12; see Vera, 2025 WL 20468, at *3 (finding

that drivers satisfied commonality for part B because defendant’s “usual course of

business” and “place of business” would not vary by driver).

They also intend to use common evidence—deductions listed on pay records

and standardized documents that purportedly authorize those deductions—to

determine whether ASAP obtained class members’ written consent to make certain

deductions from their paychecks. [236] at 12. Because these documents will either

show drivers’ consent or they won’t, their consent is a common question susceptible

to common proof. See, e.g., Torres v. Nation One Landscaping, Inc., No. 12 CV 9723,

2014 WL 5350440, at *3 (N.D. Ill. Oct. 21, 2014) (“It appears that an Employee Policy

Manual disclosed the deductions and employees signed the manual. The issue of

whether the deductions were lawful is amenable to resolution across employees.”).

Defendants contend that the evidence needed to prove that drivers consented

to deductions varies depending on which contract type each plaintiff signed. [253] at

22. But they do not identify any evidence supporting this assertion. And, even if

drivers’ consent were not a common question, drivers’ employee status would still be.

Commonality requires only one common question the answer to which “will resolve

an issue that is central to the validity of each claim.” Chi. Teachers Union v. Bd. Of

Educ., 797 F.3d 426, 434 (7th Cir. 2015).

Regardless of whether class members’ consent is susceptible to common proof

as argued by plaintiffs, it is not an individualized question that will predominate over

the common question of drivers’ employee status. That is true even if, as defendants

argue, the evidence needed to prove or disprove consent will depend on the contract

type. There are only seven contract types now at issue in this case (after the exclusion

of type 2 contracts). The analysis will differ only to the extent that contract language

regarding deductions varies across contracts. That means that there will be, at most,

seven different consent analyses. That is not an individualized issue, and it doesn’t

predominate over common questions. See Tsybikov v. Dovgal, Case No. 19 C 3334,

2022 WL 1238853, at *4 (N.D. Ill. 2022) (finding predominance despite differences in

drivers’ authorizations, some of which were made by email and no longer existed).

Defendants do not identify, and the Court does not see, any other individualized

questions that will predominate over common questions.

Commonality and predominance are satisfied as to the IWPCA class.

E. Superiority

Class certification is only permitted under Rule 23(b)(3) if “a class action is

superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). Plaintiffs meet that standard here. Individual

claims are relatively small in value, many of which are worth less than $5,000, [236]

at 25.8 See Hughes v. Kore of Ind. Enter. Inc., 731 F.3d 672, 675 (7th Cir. 2013) (“The

smaller the stakes to each victim of unlawful conduct, the greater the economies of

class action treatment and the likelier that the class members will receive some

money rather than (without a class action) probably nothing.”). Further, class

members reside all over the country, so litigating their suits individually would be a

drain on the judiciary. Resolving this matter on a class basis would therefore “achieve

economies of time, effort, and expense, and promote ... uniformity of decision as to

persons similarly situated.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615

(1997) (quoting Fed. R. Civ. P. 23(b)(3) advisory committee’s note to 1966

amendment).

The Court further finds no issues with class certification under the Rule

23(b)(3) factors: neither party has articulated a significant interest in individual

control of the prosecution or defense of separate actions; the Court is unaware of any

existing litigation involving these parties; the Northern District of Illinois is an

adequate forum for a class of drivers who contracted with an Illinois company; and

similar class actions are regularly handled by federal courts.

8 Defendants contest this figure by suggesting that the average value of each claim is in the

low five figures based on plaintiffs’ settlement demand. [253] at 25. This argument is

unpersuasive for three reasons. First, settlement demands may not be used as evidence under

Federal Rule of Evidence 408. Second, even figures in the low five figures may be insufficient

to incentivize litigation. Third, bringing hundreds of individual lawsuits that duplicate many

of the same facts and legal issues would be a waste of judicial resources regardless of the

claims’ value.

IV. Conclusion

The motion to certify two classes [231] is granted with modifications. The

classes are certified as follows:

TILA/Breach of Contract Class

All individuals who drove a truck for ASAP from January 1, 2021, to

January 1, 2024, and signed an equipment lease in the form found at

Bates Numbers ASAP014600–644 (Type 1); ASAP014692–734 (Type 3);

ASAP014735–780 (Type 4); or ASAP 014796–803 (Type 7), with respect

to claims against defendant Petrosius.

IWPCA Class

All individuals who worked for ASAP as a truck driver from January 1,

2018, to January 1, 2024, and had amounts deducted from their pay for

occupational accident insurance, escrow, electronic logbook monitoring,

admin fee, violations, citations, repairs, or truck cleaning, excluding

individuals who signed a contract in the form found at Bates Numbers

ASAP014645–691 (Type 2), and only with respect to claims against

defendant Petrosius.

The Court appoints Malone as class representative of the TILA/Breach of

Contract Class and Malone and Brown as class representatives of the IWPCA class.

It appoints Hughes Socol Piers Resnick & Dym, Ltd. as class counsel for both classes.

The parties are directed to appear for a status hearing on November 13, 2025

at 9:00 a.m. to discuss next steps in this litigation. By November 6, 2025, the parties

are directed to submit a joint status report proposing those next steps and addressing

the possibility of settlement.

(

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Georgia N. Alexakis

United States District Judge

Date: 10/22/25

37