# Opinion

> District Court, N.D. Illinois · October 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11175836

## Case

- **Full name:** Sam Malone and Donald Brown, individually and on behalf of others similarly situated v. ASAP Trans Corp. and Kristina Petrosius
- **Court:** District Court, N.D. Illinois
- **Decided:** October 22, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11175836. Public record. Not legal advice.