In re Fedex Ground Package System, Inc., Employment Practices Litigation

*435

OPINION AND ORDER

ROBERT L. MILLER, JR., Chief Judge.

This multi-district litigation docket involving the classification of FedEx Ground pickup and delivery drivers is before the court on the motions for class certifications filed by plaintiffs in the actions categorized in this docket as “Wave 1,” ‘Wave 2,” and “Wave 3.”

These plaintiffs challenge the practice of FedEx Ground Package System, Inc. labeling its Ground and Home Delivery division drivers as independent contractors. The plaintiffs assert that although FedEx Ground represents to its drivers that they are only partnering with FedEx Ground and will essentially own their own business, all FedEx Ground drivers sign the FedEx Ground Operating Agreement, which actually reserves to FedEx Ground the right to exercise pervasive control over the method, manner, and means of the drivers’ work, rendering improper the drivers’ classification as independent contractors rather than employees.

As examples of the actual control FedEx Ground asserts over its drivers, the plaintiffs point to FedEx Ground’s right to control the drivers’ appearance and behavior, their pay and rates charged to customers, the vehicle they use and its appearance, their route and the number of packages they deliver each day, their delivery methods and mode of customer service, their hours of work, and their opportunity to increase their earnings. The plaintiffs say litigation of this case as a class action is appropriate and desirable since common evidence can resolve all plaintiffs’ claims. The plaintiffs contend that FedEx Ground has a categorical policy of classifying its drivers as independent contractors. All class members share the same job title, have signed the same non-negotiable Operating Agreement, are paid under the same compensation formula, wear the same uniform, drive FedEx Ground-approved trucks bearing the FedEx Ground logo, work exclusively for FedEx Ground, and are all similarly integrated into FedEx Ground’s operations.

FedEx Ground generally responds that the proposed classes should not be certified because the plaintiffs’ claims turn on individualized issues, including whether contractors should be classified as employees under the states’ statutory tests, and whether any individual contractor can meet the high bar for rescission of his individual contract. FedEx Ground says the named plaintiffs themselves show how diverse this class would be because each contractor’s experience is different: some named plaintiffs reviewed the Operating Agreement before signing; some had others drive their routes; some bought their routes from contractors; and one even developed his own alternating day schedule.

For the reasons that follow, the court grants motions for class certifications in eases involving drivers from Tennessee (see page 438 of this opinion), Arkansas (pages 443-44), Kentucky (page 446), Texas (pages 449-50), Wisconsin (pages 451-52), Alabama (page 453), New York (page 455), New Jersey (with a modification of the class definition (page 461)), Maryland (page 464), Minnesota (page 468), Pennsylvania (page 471), New Hampshire (page 472), South Carolina (page *436 474), Oregon (pages 477-78), Indiana (page 481), West Virginia (page 485), Florida (page 493), and Rhode Island (pages 495-96). The court grants the motion for class certification involving drivers from California to the extent the motion seeks a class and sub-class for state law claims, but denies the motion with respect to the Family and Medical Leave Act claims (page 459). The court denies motions for class certifications in cases involved drivers from Montana (page 441), Mississippi (page 442), Massachusetts (pages 456-57), Michigan (page 467), Missouri (page 476), South Dakota (pages 479-80), Iowa (pages 483-84), Virginia (page 488), and Illinois (page 490).

A.

To maintain a class action, the named representatives and each class they seek to represent must meet the requirements under Federal Rule of Civil Procedure 23. First, the proposed class action must satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. A district court has broad discretion in determining whether the plaintiffs have satisfied the prerequisites of Rule 23, Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993), but the court must conduct a rigorous inquiry into the propriety of proceeding as a class before certifying. Livingston v. Associates Fin., Inc., 339 F.3d 553, 558 (7th Cir.2003). The plaintiffs have the burden of demonstrating they satisfy the class certification prerequisites. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d at 596 .

Numerosity means the proposed class is “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). No magic number establishes the numerosity requirement, and some courts have found this element satisfied when the putative class consists of fewer than forty members. Lucas v. GC Servs. L.P., 226 F.R.D. 337, 340 (N.D.Ind.2005) (collecting cases). “The exact number of class members need not be known ... [ijnstead, the plaintiff can offer ‘good faith estimates of class size ... and the court may use ‘common sense assumptions’ to determine the validity of those estimates’.” Id. (internal citations and quotations omitted).

The commonality requirement requires only that there exist “questions of law or fact common to the class.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998). “A common nucleus of operative fact usually is enough to satisfy the commonality requirement of Rule 23(a)(2).” Id. That there is some factual variation among the class grievances will not defeat a class action. Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir.1992). Claims arising from a defendant’s standardized conduct towards members of the proposed class or from the interpretation of a standard contract often present a case for treatment as a class action. Keele v. Wexler, 149 F.3d at 594 (citing Kleiner v. First Nat’l Bank of Atlanta, 97 F.R.D. 683, 691 (N.D.Ga.1983) (“When viewed in light of Rule 23, claims arising from interpretations of a form contract appear to present the classic case for treatment as a class action.”); and Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111, 116 (D.Kan.1995) (certifying class where contracts signed by all class members contained virtually the same provision as that challenged by class representative)).

“The question of typicality in Rule 23(a)(3) is closely related to the preceding question of commonality,” Rosario v. Livaditis, 963 F.2d at 1018 , but this requirement “primarily directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d at 596-597 . “A plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983).

Rule 23 (a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This means that (a) the chosen class representative cannot have antagonistic or conflicting claims with other members of the class, Rosario v. Livaditis, 963 F.2d at 1018 , and (b) the class representatives must *437 be willing and able to “vigorously pursue the litigation on behalf of the class,” and the attorneys they have chosen to represent the class must be “qualified, experienced and able to conduct the litigation.” Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 186 (N.D.Ill.1992) (citing Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir.1986)).

In addition to these four prerequisites, an action must also be maintainable under at least one of the three provisions of Rule 23(b). The court must decide which form of class action, if any, is the most appropriate under Rule 23(b). Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974); Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894 , 898 (7th Cir.1999) (the court should “endeavor to select the most appropriate subsection, not just the first linguistically applicable one in the list”).

A court may certify a class under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). When a request is made for both declaratory and monetary relief, the class is properly certified under Rule 23(b)(2) only if the request for declaratory relief predominates over the request for monetary relief. Lemon v. International Union of Operating Eng’rs, Local No. 139, 216 F.3d 577 , 580-581 (7th Cir.2000). That is, the court must decide whether the requested monetary damages are “incidental” to the requested declaratory relief. Jefferson v. Ingersoll Int’l, 195 F.3d at 899. Incidental damages are those “that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Lemon v. Operating Eng’rs, Local 139, 216 F.3d at 581 (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998)). Incidental damages, therefore, don’t depend “in any significant way on the intangible, subjective differences of each class member’s circumstances” and don’t “require additional hearings to resolve the disparate merits of each individual’s case.” Allison v. Citgo Petroleum, 151 F.3d at 415 .

Rule 23(b)(3) allows class certification when questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir.2001). The court looks beyond the pleadings to analyze the claims, defenses, relevant facts, and applicable substantive law that may be necessary to determine whether certification is appropriate. Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996). While individual issues may exist in determining the damages suffered, “it has been commonly recognized that the necessity for calculation of damages on an individual basis should not preclude class determination when the common issues which determine liability predominate.” Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 137 (3rd Cir.2000) (quoting Bogosian v. Gulf Oil Corp., 561 F.2d 434, 456 (3rd Cir.1977)); see also In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir.2001) (“Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.”); Bertulli v. Independent Ass’n of Cont’l Pilots, 242 F.3d 290, 298 (5th Cir.2001) (affirming district court’s determination that common issues predominated, stating that “[although calculating damages will require some individualized determinations, it appears that virtually every issue prior to damages is a common issue”); Fed.R.Civ.P. Rule 23(b)(3) advisory committee’s notes (“[A] fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of damages suffered by the individuals within the class.”).

“To determine whether damages predominate, a court should certify a class on a claim-by-claim basis, treating each claim individually and certifying the class with respect to only those claims for which certifica *438 tion is appropriate.” Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir.2000); see also Fed. R. Civ. P. 23(c)(4); Gunnells v. Healthplan Servs., Inc., 348 F.3d 417 , 441 (4th Cir.2003) (“courts should take full advantage of the provision in subsection (c)(4) permitting class treatment of separate issues in the case ... if [an] action includes multiple claims, one or more of which might qualify as a certifiable class claim”); Carnegie v. Household Int'l Inc., 376 F.3d 656, 661 (7th Cir.2004) (“Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation of individual damages issues.”). The plaintiffs must also show a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Fed. R. Civ. P. 23(b)(3); Wahl v. Midland Credit Mgmt., Inc., 243 F.R.D. 291, 299 (N.D.Ill.2007). One factor often disputed in the superiority analysis (as it is in each of these cases) is “the difficulties likely to be encountered in the management of a class action.” Fed. R. Civ. P. 23(b)(3)(D). Class actions have been found superior when potential damages might be too insignificant to provide class members with incentive to pursue a claim individually, and where potential plaintiffs may not be aware of their rights or be able to hire competent counsel to protect these rights. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997).

B.

On October 15, this court issued its order granting the Kansas and ERISA plaintiffs’ motion for class certification. Because of the similarities amongst states, in the conclusion of that order the court instructed all parties that had filed class certification briefs to file a five-page supplemental stating how then-position on class certification differs from the positions addressed in that order. In this order, the court uses the Kansas opinion as its basis and will analyze whether each of the states addressed raise substantial enough differences to make class certification inappropriate.

Tennessee

The Tennessee plaintiffs allege violations of Tennessee’s Consumer Protection Act of 1977 and seek an accounting, rescission, and declaratory and injunctive relief. The Tennessee plaintiffs contend that through “misclassification” of its drivers, FedEx Ground has acted on grounds generally applicable to all of the proposed members of the Tennessee class of FedEx Ground pickup and delivery drivers and, therefore, this class is suitable for class certification under 23(b)(2). Additionally, the common “overarching issue” of whether FedEx Ground treated its drivers as employees predominates and makes certification of the Tennessee claims suitable under 23(b)(3). The Tennessee plaintiffs assert that these claims are legally and factually common and typical to the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 22, 1999 to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Tennessee.

In its supplemental briefing, FedEx Ground raises two issues, which it asserts make the Tennessee scenario different from the one presented in Kansas and weigh against class certification. The first is that, unlike Kansas where the named class representatives included current and former drivers, the Tennessee named plaintiffs all are former contractors. FedEx Ground argues that this presents two separate problems for adequacy of representation. First, as former contractors, the Tennessee plaintiffs can only argue that they were improperly classified as independent contractors in the past. A named plaintiff must have standing at the time of certification for the class to be properly certified. Second, former drivers have significantly different interests than do the current contractors they purport to represent. Current contractors have a long-term interest in whether they are classified as *439 contractors or employees, and whether they can obtain what they believe is a more favorable relationship with FedEx Ground, whereas former contractors have no such interest.

The two cases FedEx Ground cites to support its standing argument deal with plaintiffs seeking injunctive relief for allegedly improper practices in the criminal justice system. O’Shea v. Littleton, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974), addressed whether plaintiffs had standing to bring a class action alleging that the country magistrate and associate judge of the county circuit court were depriving members of their class of their Constitutional rights by engaging, under color of state law, in a continuing pattern and practice of conduct consisting of illegal bond setting, sentencing, and jury fee practices in criminal cases. The plaintiffs in Robinson v. City of Chicago, 868 F.2d 959 (7th Cir.1989), challenged the city police department’s investigatory detention policy.

In the employment context, courts have held that former employees have standing to represent a class consisting of both current and past employees. As stated in Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1030-1031 (6th Cir.1977), “[tjhat plaintiffs are no longer employees of the defendant does not deprive them of standing to represent a class consisting of current and prospective employees.” See also Walker v. Bankers Life & Cas. Co., No. 06 C 6906, 2007 WL 2903180 , at *7 (N.D.Ill. Oct. 1, 2007) (“Bankers Life’s additional argument that Paradise lacks standing (and adequacy) to pursue any form of injunctive relief because she is a former agent is also unpersuasive. Former employees are adequate representatives of current employees in class actions seeking, at least in part, declaratory and/or injunctive relief.”); Resnick v. American Dental Ass’n, 90 F.R.D. 530, 540 (D.C.Ill. 1981) (“We believe that a former employee, who is not entitled to reinstatement, may still be an adequate representative of a class of past and present employees.”). The named Tennessee plaintiffs’ lack of current drivers does not defeat the petition for class certification.

“In making the determination of adequacy of representation the district court should consider the experience and ability of counsel for the plaintiffs and whether there is any antagonism between the interests of the plaintiffs and other members of the class they seek to represent.” Cross v. National Trust, 553 F.2d at 1031 . FedEx Ground hasn’t questioned the ability of plaintiffs’ counsel to represent the class, and the court sees no basis for any antagonistic interests between the named Tennessee plaintiffs and the rest of the class. All Tennessee plaintiffs signed the same standard Operating Agreement and were classified as independent contractors. The Tennessee plaintiffs were subject to the same regulations regarding their appearance, trucks, delivery methods, and working hours. Whether they were improperly classified as independent contractors affects all of them equally, as it entitles both former and current drivers to additional benefits and compensation as well as entitling the current drivers to proper classification in the future. FedEx Ground asserts that current contractors, unlike former contractors, have a long-term interest in their classification, and whether they can obtain what they believe is a more favorable relationship with FedEx Ground. If the Tennessee plaintiffs are being treated as FedEx Ground employees, however, the law requires them to be classified as such. Current contractors don’t have the option to be classified as one type and treated as another.

Many courts have noted the benefits of having former employees named as class representatives. “[W]ith respect to plaintiffs who were former employees of the company ‘being familiar with (the company’s) employment practices and being free from any possible coercive influence of (the company’s) management, (the plaintiffs) are better situated than either job applicants or present employees to present an intelligent and strongly adverse case against (the company’s) alleged discriminatory practices.’ ” Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir.1975) (quoting Mack v. General Elec. Co., 329 F.Supp. 72, 76 (E.D.Pa.1971)). Additionally, deeming former employees inadequate to represent a class that included current employees might give hiring companies a perverse incentive: “employers would *440 be encouraged to discharge those employees suspected as most likely to initiate a Title VII suit in the expectation that such employees would thereby be rendered incapable of bringing the suit as a class action.” Wetzel v. Liberty Mut. Ins., 508 F.2d at 247 . For these reasons, the court deems the named Tennessee plaintiffs adequate representatives.

FedEx Ground’s second objection to class certification is that while the right to control is an important factor, Tennessee courts look beyond written contracts to the parties’ actual conduct. In support of this proposition, FedEx Ground cites the Tennessee Court of Appeals in Hendrix v. City of Maryville, which stated: “When the contract is in writing and its terms are indefinite and ambiguous, or if the evidence shows that more than one inference can be drawn from the relationship, or if there is evidence of circumstances and relations outside of the written agreement, the written contract alone cannot be determinative but a question of fact arises which must be determined by the jury.” 58 Tenn.App. 457 , 431 S.W.2d 292, 297 (1968). FedEx Ground claims that this reasoning applies to the Tennessee case since the plaintiffs have squarely put contract interpretation in issue. FedEx Ground sees the Tennessee plaintiffs as contending that the Operating Agreement is internally inconsistent because, on the one hand, it indicates that the contractor has sole discretion in determining the manner and means of the work, and, on the other hand, it reserves certain rights of control to FedEx Ground. The Tennessee plaintiffs also contend that there are “many terms in the contract that are open to many interpretations.” Given that parol evidence is admissible when contract language is in dispute, FedEx Ground says class certification is improper despite the existence of an allegedly standardized agreement.

FedEx Ground also contends that, unlike in Kansas where the right to terminate was dispositive, Tennessee courts consider it to be “just one factor to be considered” in the employee-independent contractor analysis. Wright v. Knox Vinyl & Aluminum Co., Inc., 779 S.W.2d 371, 374 (Tenn.1989). Tennessee courts apply a seven-factor test to determine employee-independent contractor status: “(1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self scheduling of working hours, and (7) being free to render services to other entities.” Bargery v. Obion Grain Co., 785 S.W.2d 118, 119-120 (Tenn.1990). FedEx Ground believes that these factors will take the court beyond the Operating Agreement’s terms and hence render class certification unsuitable.

FedEx Ground’s reliance on Hendrix v. Maryville for the proposition that parol evidence must be introduced in light of ambiguous contract terms and existence of circumstances and relations outside the contract does not persuade the court. The Tennessee plaintiffs aren’t arguing that the Operating Agreement is ambiguous. The Tennessee plaintiffs assert that although the agreement purports to establish an independent contractor relationship with its drivers the amount of control that FedEx Ground withholds throughout the contract makes the relationship one of an employer-employee. In support of their argument, the Tennessee plaintiffs continually point to contract terms that seem to dictate much of the driver’s work day. It doesn’t appear that the plaintiffs will need to introduce parol evidence for support.

Likewise, while Tennessee courts look to the factors listed in Bargery to determine whether an employee or independent contractor relationship exists, even the court in Bargery stressed that the employer’s “right to control” its workers is the primary factor. Bargery v. Obion Grain, 785 S.W.2d at 120 (“The Masiers court noted that while all factors are important the ‘right to control’ is the primary test.”); see also Wright v. Knox Vinyl & Aluminum, 779 S.W.2d at 373 . Just as this court stressed in its Kansas opinion, determining the extent of FedEx Ground’s control primarily will involve an analysis of the standard Operating Agreement. Kansas courts looked to similar factors when determining the extent of an em *441 ployer’s control and this court found that these factors could again be determined primarily by consulting the Operating Agreement. Neither of FedEx Ground’s objections persuade the court that certification of the Tennessee class is inappropriate.

Montana

In their amended complaint, the Montana plaintiffs assert claims for violations of Montana’s independent contractor and wage laws, rescission and quantum meruit, an accounting, and declaratory relief. The Montana plaintiffs challenge the validity of FedEx Ground’s practice of labeling its ground and home delivery division drivers as “independent contractors,” thereby shifting its ordinary operating expenses to its workforce while still retaining the control traditionally enjoyed by an employer. FedEx Ground’s standardized policies and procedures and the pickup and delivery contractor Operating Agreement, they say, make these claims suitable for class certification. The Montana plaintiffs move the court to certify a class under Rule 23(b)(2) for their claims for an accounting and for declaratory judgment. The Montana plaintiffs further move for class certification of their claims for violation of Montana’s independent contractor law, violation of Montana’s wage law, rescission, and declaratory judgment under Rule 23(b)(3). They assert that these claims are legally and factually common and typical to the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 26, 1997 to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Montana.

FedEx Ground’s supplemental brief raises four issues that FedEx Ground asserts make the Montana scenario different from the one presented in Kansas and weigh against class certification. One of these contentions is that the Montana plaintiffs who are former employees may only argue that in the past they were improperly classified as independent contractors. These former drivers lack standing, FedEx Ground says, because they have no stake in the future conduct at which claims for injunctive and declaratory relief are targeted. The court analyzed this objection as to the Tennessee plaintiffs, and for those same reasons the court finds that former Montana employees can adequately represent the interests of current employees in this action.

FedEx Ground’s next objection is that based on the Montana plaintiffs’ own theory of the case, it will be necessary to go beyond the Operating Agreement’s terms to resolve independent contractor status. FedEx Ground portrays the Montana plaintiffs as asserting that the Operating Agreement is inconsistent since, on the one hand, it indicates that the contractor has sole discretion in determining the manner and means of the work, and, on the other hand, it reserves certain rights of control to FedEx Ground. As already stated in the Tennessee analysis, the court doesn’t construe the Montana plaintiffs’ argument as being that the Operating Agreement is ambiguous, but rather that, although the agreement purports to establish an independent contractor relationship between FedEx Ground and its drivers, the amount of control FedEx Ground withholds throughout the contract makes the relationship one of an employer-employee. Therefore, the court doesn’t believe extrinsic evidence will be necessary to construe the contract.

FedEx Ground next argues that Montana courts look beyond the four corners of the contract and analyze the parties’ conduct. FedEx Ground is correct. Montana law places a burden of proof on the party claiming an independent contractor relationship to prove both prongs of what the Montana courts call the “AB test”: that the hired party “(a) has been and will continue to be free from control or direction over the performance of the services, both under a contract and in fact; and (b) is engaged in an independently established trade, occupation, profession, or business.” Mont.Code Ann. § 39-51-201(14); American Agrijusters Co. *442 v. Montana Dep’t of Labor and Indus., 296 Mont. 176 , 988 P.2d 782, 787 (1999). Under this “AB test,” the party claiming an independent contractor relationship must show not only that no contract vested the hiring party with the right to control the details of the contracted work, but also that the hiring party did not in fact control the details of the contracted work. See, e.g., Walling v. Hardy Constr., 247 Mont. 441 , 807 P.2d 1335 (1991). The hired party “must be free from the control of his employer, under his contract And in fact, in the performance of his services.” Sharp v. Hoerner Waldorf Corp., 178 Mont. 419 , 584 P.2d 1298, 1301 (1978).

If the Montana plaintiffs are correct about the import of the control reserved to FedEx Ground under the Operating Agreement, it will be unnecessary to look beyond the Operating Agreement. But if the Montana plaintiffs are incorrect, FedEx Ground is entitled to an opportunity to meet the rest of its burden under the “AB test” by proving that it didn’t control the details of the drivers’ work sufficiently.

Montana law places a burden of proof on FedEx Ground, and FedEx cannot meet that burden of proof without presenting evidence of the control it exercised over (or conversely, the freedom it allowed) its drivers. The parties’ submissions make clear that neither unanimity of perception nor uniformity are hallmarks of individual drivers’ experiences. Something very close to a driver-by-driver analysis will be needed.

Although the effect of the Operating Agreement is a question common to the entire proposed class, that question does not predominate over the remaining issues under Montana law. The court denies the Montana plaintiffs’ motion for class certification.

Mississippi

The Mississippi plaintiffs’ amended complaint asserts claims for fraud, rescission, constructive trust, injunctive relief, and declaratory judgment. They maintain the overarching issue in this litigation is the classification of certain package delivery drivers as independent contractors rather than employees. The Mississippi plaintiffs argue that through this classification, FedEx Ground has acted on grounds generally applicable to all of the proposed members of the Mississippi class of drivers. The Mississippi plaintiffs move to certify a class under Federal Rule of Civil Procedure 23(b)(3) for their claims for rescission of the Operating Agreement, constructive trust and other equitable relief, injunctive relief, and declaratory relief. The Mississippi plaintiffs also move to certify a class under Rule 23(b)(2) for their claims for injunctive and declaratory relief. They assert that these claims are legally and factually common and typical to the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 26, 2002, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Mississippi.

In its supplemental briefing, FedEx Ground raises five issues that FedEx Ground says make the Mississippi scenario different from that presented in Kansas and weigh against class certification. First, unlike Kansas, Mississippi courts start with the premise that it is the parties’ constitutionally protected right to contract as they please. Therefore, courts generally allow contracting parties to decide for themselves that they are creating an independent contractor relationship even if the facts traditionally would have been viewed as creating that of an employer/employee relationship. In support of this contention, FedEx Ground points to the Mississippi Supreme Court decision Richardson v. APAC-Mississippi, Inc., 631 So.2d 143 (Miss.1994).

In Richardson , the plaintiff was leaving a parking lot when a truck driven by McCandless struck her vehicle. The plaintiff filed suit against APAC for negligence based on the theory of respondeat superior. APAC countered that McCandless was not its employee, but rather was an independent contractor. The court stated that in Mississippi, the determination of whether a relationship *443 is that of an employer/employee or is an independent contractor relationship “depends upon the power of control which the employer is entitled to exercise over the person in question.” 631 So.2d at 147 . An independent contractor relationship is one “where it appears that a person employed to do such work is not, in the execution and performance of such work, subject to the control of the employer, but is free to execute the work without being subject to the orders of the employer with respect to the details thereof.” Id. To aid in determining whether one is an employee or a contractor, Mississippi courts look to a long list of factors. 1 The Richardson court added yet another factor, upon which FedEx Ground relies heavily, to that balancing test: “When a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties.” 631 So.2d at 150 . The Richardson court limited this freedom to contract by stating that when a third party is adversely affected, the “court will carefully scrutinize the contract to see if public policy should permit the transformation of an ordinarily employer/employee relationship into that of an independent contractor.” Id.

While no case cited by FedEx Ground has been decided based on the parties’ right to contract when third party rights are unaffected, the court’s language has been referenced in several other decisions and still appears to be a factor that courts consider. See McKee v. Brimmer, 39 F.3d 94, 98 (5th Cir.1994) (“The Mississippi Supreme Court in Richardson added an explicit factor which had previously been implicit to the balancing test used in determining the nature of a relationship.”); McCary v. Wade, 861 So.2d 358, 362 (Miss.Ct.App.2003) (“Looking further to Richardson , the appellants direct our attention to Richardson’s addition of a ‘public policy’ test to determine liability.”). Although, as the plaintiffs point out, this is just one factor in the balancing test, it is a significant one.

Deciding the parties’ intent when they signed the Operating Agreement will require individualized analysis that is not consistent with class certification. As FedEx Ground points out, the Mississippi plaintiffs might refute an intention to enter into an independent contractor relationship by asserting that the contract was so long and confusing they didn’t understand what they were agreeing to. Individual plaintiffs would have to testify as to their understanding and intent when they signed the Operating Agreement. This weighs heavily against certification of a class. Since the Mississippi plaintiffs’ claims all hinge on whether the relationship between FedEx Ground and its drivers is an employer/employee relationship or an independent contractor relationship, the court must deny the Mississippi plaintiffs’ motion for class certification.

Arkansas

The single named Arkansas plaintiff, David Harris, alleges violations of Arkansas’s overtime statute and asserts claims for fraud, rescission, unjust enrichment, and declaratory judgment. Mr. Harris claims that the common issue of whether FedEx Ground improperly labels its drivers as independent contractors is at the heart of each of the Arkansas claims. Mr. Harris asks this court to certify a class under Federal Rule of Civil Procedure 23(b)(3) for his declaratory judgment claim, his Arkansas Wage and Hour Law claim, his unjust enrichment claim, his *444 conversion claim, and for his quantum meruit claim. Mr. Harris seeks certification of a class under Rule 23(b)(2) for his claims for declaratory judgment and injunctive relief. Mr. Harris asserts that these claims are legally and factually common and typical to the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full time basis (meaning exclusive of time off for commonly excused employment absences) since Jan. 17, 2001, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Arkansas.

In its supplemental briefing, FedEx Ground says four issues make the Arkansas case different from the one presented in Kansas and weigh against class certification. FedEx Ground argues that, unlike in Kansas, the sole named Arkansas plaintiff is a former contractor who can only argue that he was improperly classified as an independent contractor in the past. As a former contractor, FedEx Ground says, Mr. Harris lacks standing because he has no stake in the future conduct at which claims for injunctive and declaratory relief are targeted. Additionally, as a former contractor, Mr. Harris only has an interest in financial gain and not in declaratory and injunctive relief. FedEx Ground argues that this conflicts with the interests of the putative class members who are current contractors. The court addressed FedEx Ground’s nearly identical objection to the Tennessee class certification and, for the reasons stated there, doesn’t find that it weighs against class certification.

FedEx Ground next argues that in Arkansas the “control test” is not dispositive. Instead, FedEx Ground asserts, the Arkansas Supreme Court has “consistently held that no rule of unvarying application can be formulated for ascertaining whether a workman is a servant or an independent contractor, and each case must be determined upon its own particular facts.” Massey v. Poteau Trucking Co., 221 Ark. 589 , 254 S.W.2d 959, 961 (1953). While FedEx Ground concedes that the “extent of control” is the principal factor to be considered, it isn’t the only factor. Arkansas courts also consider the factors borrowed from the Restatement (Second) of Agency § 220:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether the work is a part of the employer’s regular business; (i) whether the parties believe they are creating the relation of master and servant; and (j) whether the principal is in business.

Blankenship v. Overholt, 301 Ark. 476 , 786 S.W.2d 814, 815 (1990).

FedEx Ground believes the court will need to go outside of the contract to utilize the Restatement factors. For example, whether the driver has a “distinct business” may turn on whether the contractor is incorporated, which varies across drivers. The Operating Agreement doesn’t indicate how long the driver has contracted with FedEx Ground, which will vary from several months to many years. FedEx Ground also contends that the court won’t be able to determine from the Operating Agreement whether the driver supplied the instrumentalities. Lastly, FedEx Ground argues that weighing the parties’ intent will vary from driver to driver.

When deciding whether an independent contractor or employer/ employee relationship exists under Arkansas law, “[t]he right to control, not the actual control, is the principal factor in determining the worker’s status.” Draper v. ConAgra Foods, Inc., 92 Ark.App. 220 , 212 S.W.3d 61, 67 (2005); see also Dairy Farmers of America, Inc. v. Cok *445 er, 98 Ark. App. 400 , 255 S.W.3d 905, 911 (2007) (“The ultimate question in determining whether a person or entity is an independent contractor is not whether the employer actually exercises control over the doing of the work, but whether he has the right to control the work.”).

As FedEx Ground indicated, the Draper court used the Restatement factors to guide its analysis and noted that “there is no fixed formula for determining whether an entity is an employee or an independent contractor, the determination must be made based on the particular facts of each ease.” 212 S.W.3d at 67 . That language doesn’t convince the court that the Arkansas analysis would vary substantially from that used in Kansas. Arkansas courts use the Restatement factors as tools to help weigh the evidence. None but the right to control is determinative. As in the court’s Kansas analysis, these Restatement factors will guide the determination of whether an employer/employee or independent contractor relationship exists between the drivers and FedEx Ground based primarily on the terms of the Operating Agreement. As for whether the drivers have a “distinct business”, statistics of the incorporated drivers can be provided without requiring analysis of each driver’s individual circumstances. The same holds true for the length of time each of the drivers has contracted with FedEx Ground (assuming the overall period, rather than the duration of the standard Operating Agreement, is the pertinent inquiry). The court held with respect to the Kansas certification motion that whether the drivers supply their own instrumentalities could be determined primarily from the agreement’s terms.

Lastly, although intent is one of the Restatement factors it was rarely used in the cases the parties cite. The Draper court factored the parties’ intent into its analysis, but also found that the parties’ intent “is not determinative ... except insofar as such belief indicates an assumption of control by the one and submission to control by the other.” 212 S.W.3d at 69 . Inquisition into the parties’ intent at the time of signing would not, after years of litigation preparation, provide much guidance in the Arkansas case.

FedEx Ground’s third objection is that in determining the extent of control, Arkansas courts look at the actual control exercised over the worker to discern the level of control to which the worker was subjected. In support of this contention, FedEx Ground cites to Draper v. ConAgra Foods, 212 S.W.3d at 67-69 , in which, according to FedEx Ground, the court examined numerous extra-contractual aspects of the actual relationship between the parties, such as control over the route driven, drivers time and date requirements, and precautions for protecting deliveries, to determine whether summary judgment was appropriate.

The Draper court explicitly stated that the right to control, not the actual control, is the principal factor in the independent contractor/employee analysis: “The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of performance, then the relation of master and servant necessarily follows.” 212 S.W.3d at 67 . Control over the route and any time or date requirements could be determined by referring mainly to the Operating Agreement in this case.

Lastly, FedEx Ground alleges that by contending that there are “many terms in the contract that are open to many interpretations,” plaintiff has placed contract interpretation squarely at issue in this case. 2 When contract interpretation is in issue, Fed Ex contends, class certification is improper. As stated in its Tennessee analysis, the court does not interpret the Arkansas plaintiffs argument as being that the contract is ambiguous. Instead the Arkansas plaintiff asserts that although the agreement purports to establish an independent contractor rela *446 tionship with its drivers the amount of control that FedEx Ground withholds throughout the contract makes the relationship one of an employer-employee. Neither this nor any of FedEx Ground’s previous three objections weighs against class certification.

Kentucky

Kentucky plaintiffs John Coleman, William Cress, Barry Hindman, and George Sanders seek class certification of their claims for violations of Kentucky’s wage deduction statute, rescission and unjust enrichment, and declaratory and injunctive relief. The Kentucky plaintiffs argue that these claims all depend on the predominant common question of whether FedEx Ground has improperly labeled these drivers as independent contractors, which will require the court to assess common evidence of FedEx Ground’s programmatic retention and exercise of the right to direct and control its drivers. The Kentucky plaintiffs move for certification of a damages and unjust enrichment class under Federal Rule of Civil Procedure 23(b)(3) for their claims for violation of Kentucky Revised Statutes §§ 337.060 and 337.070, rescission, and declaratory relief. They also move the court to certify a class under Rule 23(b)(2) for their claims for declaratory relief and injunctive relief. The Kentucky plaintiffs contend that these claims are legally and factually common and typical among the following similarly situated class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 13, 2000, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal located in Kentucky or provide(d) pick-up and delivery services within Kentucky.

In its supplemental briefing, FedEx Ground raises six issues, which it asserts make the Kentucky ease different from the one presented in Kansas and weigh against class certification. One of those issues is that, in contrast to the Kansas class representatives who include current drivers, the Kentucky plaintiffs are all former drivers who can only argue that they were improperly classified as independent contractors in the past. FedEx Ground argues that as former drivers, these plaintiffs lack standing and their claims are not typical and conflict with the putative class, making them inadequate representatives. For the reasons stated in the Tennessee analysis, the court disagrees with FedEx Ground’s position on the Kentucky plaintiffs’ standing.

FedEx Ground also asserts that the named plaintiffs are inadequate representatives because they, unlike the vast majority of the putative class, drive out of an Indiana terminal. FedEx Ground argues that while Kentucky law will govern most of the putative class, Indiana law applies to the named Kentucky plaintiffs, who executed their Operating Agreements in Indiana and allegedly were controlled by terminal management in Indiana.

The Kentucky plaintiffs claim that all four named plaintiffs drove out of FedEx Ground’s Louisville terminal, which relocated across the Ohio River to Jeffersonville, Indiana in 2000, but continues to be referred to as the “Louisville terminal.” The Louisville terminal is subdivided between drivers who drive routes in Kentucky and drivers who drive routes in Indiana; all trucks and packages destined for Kentucky are on one side of the terminal and the Indiana trucks and packages are on the other side. The four named plaintiffs all were Kentucky residents while they worked for FedEx Ground, worked on the Kentucky side of the Louisville terminal, and drove routes located exclusively in Kentucky.

This case came from, and would return to, a federal court sitting in Kentucky, so Kentucky choice of laws rules apply. See Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir.2006) (“When a district court sits in diversity, it must apply the choice of law principles of the forum state to determine which state’s substantive law governs the proceeding.”). When determining the appropriate state law to apply, Kentucky courts have “applied Kentucky substantive *447 law whenever possible. ” Harris Corp. v. Contain, Inc., 712 F.2d 1069 , 1071 (6th Cir. 1983). The Harris court when on to state that the Kentucky Supreme Court will apply Kentucky law “to a contract issue if there are sufficient contacts and no overwhelming interests to the contrary, even if the parties have voluntarily agreed to apply the law of a different state.” Id.; see also Foster v. Leggett, 484 S.W.2d 827, 829 (Ky.1972) (“We are now reaffirming our position taken in Wessling v. Paris, [ 417 S.W.2d 259 (Ky.1967)], that if there are significant contacts—not necessarily the most significant contacts— with Kentucky, the Kentucky law should be applied.”).

In a case analogous to this case, Davis v. Siemens Med. Solutions USA, Inc., 399 F.Supp.2d 785 (W.D.Ky.2005), Kentucky’s inclination to apply forum law was again displayed. Mr. Davis, a product sales executive, brought suit against Siemens for additional commissions and benefits he thought were due to him under their compensation agreement, which contained a New Jersey choice of law provision. The court found that Mr. Davis was a Kentucky resident whose employment was focused there. 399 F.Supp.2d at 791 . The only facts connecting New Jersey to Mr. Davis’s case was that the contract was negotiated in a New Jersey hotel and that the Siemens employee who sent Mr. Davis the contract to sign worked in New Jersey. Based on these facts, the Davis court rejected the choice of law provision and found that Kentucky had the most significant relationship to the dispute. Id.

In today’s case, the Kentucky plaintiffs have significant contacts with both Kentucky and Indiana. The named Kentucky plaintiffs were all Kentucky residents who drove routes and delivered packages exclusively in Kentucky. The Kentucky plaintiffs’ terminal is located in Indiana, so they loaded and unloaded packages, interacted with their supervisors, and some even signed their Operating Agreement in Indiana. These facts give both Kentucky and Indiana significant interest in the employment conditions of the plaintiffs. Based on the cases just discussed, however, there are sufficient contacts for Kentucky courts to apply Kentucky law to the named plaintiffs.

Further, while FedEx Ground raised this choice of law objection by way of questioning the adequacy of the named plaintiffs, FedEx Ground hasn’t stated how the substantive law of Indiana would differ from the law of Kentucky. As the court of appeals explained in Massachusetts Bay Ins. Co. v. Vic Koenig Leasing, Inc., 136 F.3d 1116, 1120 (7th Cir.1998), “a federal court should apply the law of the forum state where the parties have not identified a conflict between two bodies of state law which might apply to their case.” Accord Kochert v. Adagen Med. Int’l, Inc., 491 F.3d 674, 677 (7th Cir.2007) (“Where the parties have not identified a conflict in state law, we will generally apply the law of the forum state.”). Since Kentucky law will apply to both the named plaintiffs and the putative class, the court sees no problem with the adequacy of the named Kentucky plaintiffs’ representation.

The Kentucky Administrative Regulations sets out a multi-factor test to determine whether an employment relationship exists. 803 Ky. Admin. Regs. 1 :005, § 4. FedEx Ground argues that many of the factors in this test are highly individualized. For example, the regulation lists four “significant” factors relevant to an individuals status, all of which, FedEx Ground contends, will require individualized proof. These factors include investment in facilities and equipment, opportunity for profit and loss, the extent to which the services in question are an integral part of the employer’s business, and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise. FedEx Ground further argues that many of the remaining factors also turn on individualized evidence, such as length of contract, whether the possible employer may discharge employees of the contractor, and the similarity of work done by contractor to work done by admitted employees.

FedEx Ground omits the first paragraph of the section, which states: “The principal test for determining whether an employment relation exists is whether the possible em *448 ployer controls or has the right to control the work to be done by the possible employee to the extent of prescribing how the work shall be performed.” 803 Ky. Admin. Regs. 1 :005, § 4(1). As for the other factors listed, many are similar to ones already discussed in this memorandum; none require such individualized analysis to make class certification inappropriate.

FedEx Ground posited a similar objection to the plaintiffs’ claims that would be subject to Kentucky’s common law test. FedEx Ground argues that Kentucky law presents a different scenario from the one presented in Kansas since the Kentucky Supreme Court expressly held that the control factor is of no greater importance than the others. Kentucky Unemployment Ins. Comm’n v. Landmark Cmty. Newspapers of Ky., Inc., 91 S.W.3d 575, 580 (Ky.2002). Instead, the Landmark case held that not one of the factors is determinative and each case must be decided on its own particular facts. Id. FedEx Ground asserts that many of these factors will require individualized proof such as: the intent of the parties; whether the instrumentalities, tools, and places of work are supplied by the driver; and the length of time the driver is employed.

Lastly, FedEx Ground argues that the “right to control” factor itself often is determined by reference to the parties’ actual conduct. For support, FedEx Ground cites Sturgill v. Barnes, 300 S.W.2d 574 (Ky.1957), in which the court focused exclusively on the actual working conditions of the coal miners to determine whether a “right to control” existed and concluded it did not because of the actual conduct of the miners. In reaching this conclusion, the court noted that the miners “were free to work at their convenience and on occasions did not work even though the loading bin was not full.” 300 S.W.2d at 576 . FedEx Ground also asserts that the Landmark court ignored the contract and instead relied on the parties’ actual relationship. 91 S.W.3d at 581 .

The court agrees that the Landmark decision, which abrogated Sturgill , changed the right to control from “the chief criterion” to a factor of no greater importance than the others, 91 S.W.3d at 580 , but disagrees that this makes class certification inappropriate. The factors Kentucky courts consider when analyzing an employment relationship are those listed in the Restatement (Second) of Agency § 220(2). These same factors are used by the Arkansas courts, and were found by this court to not require highly individualized analysis. That the right to control isn’t the determinative factor doesn’t change that analysis.

Nor does the court agree with FedEx Ground that the Landmark decision requires analysis beyond the contract’s terms. In Landmark, the Kentucky Supreme Court looked mainly to the contract between Landmark and its carriers to decide whether the newspaper carriers Landmark hired were independent contractors or employees. 91 S.W.3d at 581 . The Landmark court’s statement that “every case ... needs to be resolved on its own facts” doesn’t demand individualized analysis; a court can look to the employment relationship as set out in the contract between the parties to decide whether a worker is an independent contractor or employee.

FedEx Ground next raises the objection that plaintiffs’ claims under Kentucky’s wage deduction statute will require proof that each plaintiff did not agree to each deduction. The wage deduction statute makes it unlawful for an employer to withhold from any employee any part of the wage upon which the parties agreed. Ky.Rev.Stat. § 337.060. Statutory exceptions to this provision include when the employer is authorized to withhold wages “by local, state, or federal law, or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital and medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute” or “for union dues where such deductions are authorized by joint wage agreements or collective bargaining contracts.” Ky.Rev.Stat. § 337.060(1). This claim will require FedEx Ground to either point to a statute allowing the deduction in question or produce a written agreement between itself and the driver allowing the deduction that falls into one of *449 the statute’s stated exceptions. The court doesn’t read this statute to require each driver to testify as to what he or she agreed to in terms of deductions. This argument doesn’t persuade the court that class certification is inappropriate.

Lastly, FedEx Ground again argues that since the plaintiffs take the position that there are “many terms in the contract that are open to many interpretations,” the court will have to consider parol or extrinsic evidence. As already explained with respect to certification motions from other states, the court doesn’t read the plaintiffs’ position as FedEx Ground does. For all of these reasons, and the reasons stated in the Kansas ruling, the court will grant the Kentucky plaintiffs’ motion for class certification.

Texas

Texas plaintiffs John Humphreys, David Meredith, Jeffrey Quebe, Tim Mershon, and Charles Campbell seek class certification of their claims for rescission and declaratory relief. They argue that common class-wide evidence will establish that FedEx Ground treated its package and delivery drivers as employees, systematically retaining and exercising far-reaching rights to direct and control the drivers in the performance of their work. Texas plaintiffs move for certification of a class under Federal Rule of Civil Procedure 23(b)(3) for their rescission and declaratory relief claim and under Rule 23(b)(2) for their declaratory relief claim. The Texas plaintiffs contend that these claims are legally and factually common and typical among the following similarly situated class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since March 6, 2001, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Texas.

In its supplemental briefing, FedEx Ground raises three issues it asserts make the Texas case different from the one presented in Kansas and weigh against class certification. FedEx Ground contends that based on the Texas plaintiffs’ own theory of the case, it will be necessary for the court to go beyond the terms of the Operating Agreement. For support, FedEx Ground quotes the Texas plaintiffs as stating that there are “many terms in the contract that are open to many interpretations” and that the Operating Agreement is contradictory. FedEx Ground argues that interpretation of these ambiguous or conflicting terms of the contract would have to be resolved through the use of individualized evidence regarding the parties’ course of dealings. As the court has stated already in this opinion with respect to the Arkansas and Tennessee motions, it doesn’t interpret the plaintiffs’ argument to be that the Operating Agreement is ambiguous. Instead, the Texas plaintiffs are asserting that although the Operating Agreement purports to establish an independent contractor relationship with its drivers the amount of control that FedEx Ground withholds throughout the contract makes the relationship one of an employer-employee. Therefore, it doesn’t appear the Texas plaintiffs will need to introduce parol evidence for support.

FedEx Ground’s next objection to class certification is that unlike the Kansas named plaintiffs, the Texas named plaintiffs are all former contractors who can only argue that in the past, they were improperly classified as independent contractors. As former contractors, FedEx Ground says, the Texas plaintiffs all lack standing because they have no stake in the future conduct at which claims for injunctive and declaratory relief are targeted. FedEx Ground also argues that former contractors only have an interest in the financial gain and not in declaratory and injunctive relief. This conflicts with the interest of the putative class members who are current contractors. For the reasons stated in the Tennessee analysis, the court disagrees with FedEx Ground’s position.

FedEx Ground’s last objection is that in contrast to Kansas where the most important factor in determining independent contractor status was whether there existed a “right to *450 control,” Texas courts say that “the written contract is important, but the test remains right of control which may be shown by actual control exercised in derogation of a written contract.” Space City Oil Co. v. McGilvray, 519 S.W.2d 257, 259 (Tex.Civ. App.1975). In support of its contention that Texas courts determining the “right to control” look to the degree of actual control exercised over the individual, FedEx Ground cites to Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308 (Tex.2002). In determining a delivery driver’s status, the Limestone court analyzed evidence of actual control relating to assignment of work, paperwork, route driven, hours, and interactions with the putative employer. 71 S.W.3d at 312-313 .

FedEx Ground asserts that it is particularly true that in this case the court will need to look outside the Operating Agreement, since the contract on its face doesn’t resolve many of the factors to be addressed. For example, whether a driver has an “independent” business will turn on the nature of the business and whether the driver is incorporated, which varies across drivers. The court will also need to weigh whether the drivers supplied the tools, which might involve evidence of whether some drivers leased them trucks “at a reduced price” from an entity the Texas plaintiffs say is related to FedEx Ground. The Operating Agreement does not indicate how long the driver has contracted with FedEx Ground.

The test in Texas for determining whether one is acting as an independent contractor is to “measure the amount of control that the employer exerts or has a right to exert over the details of the work.” Durbin v. Culberson County, 132 S.W.3d 650, 658 (Tex.App.2004). Texas courts look to a number of factors to aid in this analysis, including: “(1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker’s right to control the progress of the work except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by the job.” Limestone Prods, v. McNamara, 71 S.W.3d at 312 . The fundamental factor is the right to control. Durbin v. Culberson County, 132 S.W.3d at 659 .

When an employment contract exists and provides for an independent contractor relationship, it generally is controlling. See Durbin v. Culberson County, 132 S.W.3d at 659 (“Generally, an agreement providing that a person shall be an independent contractor and providing for no right of control is controlling in determining the relationship between the parties.”). The contract can be overcome, however, if extrinsic evidence is produced “indicating that the contract was a subterfuge or that the hiring party exercised control in a manner inconsistent with the contractual provisions.” Ross v. Texas One Partnership, 796 S.W.2d 206, 210 (Tex.App. 1990); see also Space City Oil v. McGilvray, 519 S.W.2d at 258-259 (“When, however, the parties, as in this case, have entered into a definite contract that expressly provides for an independent contract relationship and does not vest in the principal or the employer the right to control the details of the work, evidence outside the contract must be produced to show that despite the terms of the primary contract the true operating agreement was one which vested the right of control in the alleged master. Under such circumstances, the exercise of control is evidentiary only. The true test remains the right of control”).

Class certification would be inappropriate if the Texas plaintiffs’ position was that though the Operating Agreement purported to establish an independent contractor relationship, the actual relationship between FedEx Ground and its drivers is one of employer/employee. To prove that the agreement was a sham or that the actual relationship was inconsistent with the agreement, the court would be required to conduct individual analysis of the actual relationship between the parties. But the court understands the Texas plaintiffs’ argument to be that though the Operating Agreement labels the drivers as independent contractors, the Operating Agreement itself reserves to FedEx Ground the right to control, making the drivers employees of FedEx Ground. This determination will only require analysis of *451 the Operating Agreement and generally applicable corporate policies, and so is suitable for class certification. Nor does the court find that the factors utilized by Texas courts to determine the right to control will require individualized analysis. These factors are similar to many of the states already discussed, where the court found class certification to be appropriate. For all of these reasons, and the reasons stated in the Kansas ruling, the court will grant the Texas plaintiffs’ motion for class certification.

Wisconsin

Like the Kansas plaintiffs, the Wisconsin plaintiffs assert claims under their state’s wage payment statute, as well as claims for rescission and declaratory relief. The Wisconsin plaintiffs contend FedEx Ground uniformly miselassified all Wisconsin pickup and delivery drivers as independent contractors, and common factual and legal questions regarding their employment miselassification predominate as required for class certification under Rule 23(b)(3). Plaintiffs seek to certify the following class:

All persons who: 1) entered or will enter into an FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since August 18, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Wisconsin.

FedEx Ground argues that the court must look outside the parties’ standard Operating Agreement to determine whether FedEx Ground is liable as an employer under Wisconsin’s wage withholding statute. Wis. Stat. § 103.455 . FedEx Ground maintains that class certification is inappropriate because the court must engage in an individualized examination of each plaintiffs employment relationship.

To succeed on their claim under the Wisconsin wage withholding statute, the Wisconsin plaintiffs must show that they are (or were) employees as defined by Wisconsin law. The Wisconsin statute defines an “employee” as “any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go to work or be at any time in any place of employment.” Wis. Stat. § 103.001 (5). Although Wisconsin courts have yet to specifically address how to determine employee status for purposes of § 103.455, they have noted that the “dominant test in determining whether a person is an independent contractor or employee is who has the right to control the details of the work.” Madison Newspapers, Inc. v. Wisconsin Dep’t of Revenue, 228 Wis.2d 745 , 599 N.W.2d 51, 60 (App.1999); see also Pamperin v. Trinity Mem. Hosp., 144 Wis.2d 188 , 423 N.W.2d 848, 852 (1988) (noting that the “right to control is the dominant test in determining whether an individual is a servant” under the doctrine of respondeat superior); Snider v. Northern States Power Co., 81 Wis.2d 224 , 260 N.W.2d 260, 263 (1977) (“The most important single criterion in determining whether a person is an independent contractor is the degree to which the owner, rather than the independent contractor, retains the right to control the details of the work.”).

FedEx Ground argues that instead of focusing solely on its “right to control” the Wisconsin drivers, the court will utilize the “economic realties” test found in decisions interpreting Title VII. While the economic realties test considers a number of factors, the most important factor is the right to control the means and manner of performance. Moore v. Labor & Indus. Rev. Comm’n, 175 Wis.2d 561 , 499 N.W.2d 288 , 291 (App.1993). FedEx Ground maintains that the court will need to look beyond the face of the Operating Agreement and focus on the degree of control that FedEx Ground actually exercised rather than the authority derived from the terms of the Operating Agreement.

The court reads Wisconsin law differently. The court need only determine the existence of control, rather than examining FedEx Ground’s actual exercise of control over each individual driver. See Stafford Trucking, *452 Inc. v. Wisconsin Dep’t of Indus., Labor & Human Relations, 102 Wis.2d 256 , 306 N.W.2d 79, 83 (App.1981) (“It is immaterial whether the right or power to control is in fact exercised as long as the right to exercise such control exists.”); Goldberg v. Department of Indus., Labor, and Human Relations, 168 Wis.2d 621 , 484 N.W.2d 568, 573 (App.1992) (holding that therapists associated with psychiatric clinic were “employees” within the meaning of Wisconsin’s unemployment statute because the clinic retained the right to control or direct the therapists in fulfilling their responsibilities, even if the clinic never exercised that right). This determination depends on an analysis of the Operating Agreement’s terms as well as FedEx Ground’s centralized practices and procedures that are systematically applicable to all of the Wisconsin plaintiffs. Any nuanced distinctions between the Wisconsin plaintiffs do not predominate over the many common questions that arise from FedEx Ground’s efforts to standardize its relationship with the plaintiffs. See Walker v. Bankers Life & Cas. Co., No. 06 C 6906, 2007 WL 2903180 , at *8-9 (N.D.Ill. Oct. 1, 2007) (certifying class of insurance agents who contended that they were misclassified as independent contractors rather than employees based on the defendant’s standardization of the agent position through a non-negotiable, form contract). Similar to the Kansas class, this evidence doesn’t require the sort of individualized analysis that would make class certification inappropriate.

FedEx Ground also argues that even if the court decides to focus on the Operating Agreement to determine employee status, individualized extrinsic evidence is needed to interpret the provisions related to control. FedEx Ground relies heavily on two eases in which class treatment was inappropriate despite the existence of a standardized contract, neither of which applied Wisconsin law. See Bowers v. Jefferson Pilot Fin. Ins. Co., 219 F.R.D. 578 (E.D.Mich.2004); Adams v. Kansas City Life Ins. Co., 192 F.R.D. 274 (W.D.Mo.2000). In Bowers v. Jefferson Pilot, the plaintiffs sought class certification based on breach of contract claims involving disputed contract language. Unlike the Wisconsin class, the Bowers plaintiffs were domiciled in different states, leading to a significant variation in the laws of the states with respect to the use of extrinsic evidence. See 219 F.R.D. at 583 . The claims in this case don’t invoke the type of choice of law considerations that rendered class certification inappropriate in Bowers .

Similarly, the court in Adams v. Kansas City Life Ins. rejected class certification of the plaintiffs’ contract claims because those claims involved ambiguous contract terms that could only be interpreted by considering varying types of extrinsic evidence. 192 F.R.D. at 282 . The Wisconsin plaintiffs don’t contend that the terms of the Operating Agreement are ambiguous. Rather than asking the court to interpret the contract’s meaning, the Wisconsin plaintiffs argue that FedEx Ground’s right to control its drivers does not comport with the Operating Agreement’s explicit term on employment status, so the use of individualized extrinsic evidence appears to be unnecessary. Accordingly, FedEx Ground’s arguments in opposition to class certification are not persuasive.

Alabama

Named Alabama plaintiff Tina Floyd seeks certification of a statewide class under Rules 23(b)(2) and 23(b)(3) for claims of rescission, unjust enrichment, and declaratory and injunctive relief under Alabama law. The Alabama plaintiffs assert these claims are legally and factually common and typical to the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 11, 2000, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Alabama.

FedEx Ground responds with two principal arguments against class certification. First, FedEx Ground disputes the named plaintiffs adequacy as a representative of the class members as required under Rule 23(a)(4). *453 Second, FedEx Ground argues that common issues of law and fact do not predominate over individual issues as required for certification under Rule 23(b)(3).

The named plaintiff must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). FedEx Ground argues that Ms. Floyd is an inadequate class representative for several reasons. FedEx Ground claims that because Ms. Floyd is a former driver she cannot show a real or immediate threat of any alleged harm and so lacks standing to pursue declaratory and injunctive relief for current drivers. The court addressed, and rejected, that argument in conjunction with the Tennessee plaintiffs. FedEx Ground also claims Ms. Floyd can’t represent the interests of all of the Alabama plaintiffs because she worked as a Home Delivery driver in a single work area and wasn’t interested in expanding her business. FedEx Ground maintains Ms. Floyd’s interests are divergent from Ground drivers and multiple work area drivers who have a long-term interest in being classified as either contractors or employees.

Ms. Floyd’s interests are not so divergent that she can’t adequately represent all of the drivers within the proposed Alabama class. While FedEx Ground focuses on the variances in control over Ms. Floyd versus other Alabama drivers, these differences do not render Ms. Floyd unable or unlikely to fully represent class interests. See Walker v. Bankers Life & Cas. Co., No. 06 C 6909, 2007 WL 2903180 , at *6 (N.D.Ill. Oct. 1, 2007) (finding that a former agent was an adequate class representative even though factual differences existed between the named agent and class members). The entire Alabama class asserts the same legal theories based on the same general nucleus of operative facts. See Duffin v. Exelon Corp., No. 06 C 1382, 2007 WL 845336 , at *6 (N.D.Ill. Mar. 19, 2007). Ms. Floyd’s claims are premised on that notion that she was misclassified under the same contract and subject to the same uniform employment policies as the other class members. Any distinctions between Ms. Floyd and Ground or multiple work area drivers are meaningless because each of the drivers signed nearly identical Operating Agreements. Ms. Floyd is not antagonistic to the class, see Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992), and there is no reason to believe she won’t vigorously pursue the claims on behalf of the Alabama class as required by Rule 23(a)(4).

FedEx Ground also argues that the named Alabama plaintiff can’t demonstrate that common questions of law and fact predominate over individual issues as required for class certification under Rule 23(b)(3). Like the Kansas plaintiffs, the named Alabama plaintiff asserts claims that hinge on whether the plaintiffs are deemed employees under Alabama law. While the plaintiff relies on the substance of the standard Operating Agreement, FedEx Ground contends the court must look outside the contract’s terms and conduct an individualized examination of each plaintiffs relationship with FedEx Ground. To this end, FedEx Ground offers testimony from a number of mid-level managers indicating their varied experience on issues such as the ability to control their schedule, routes, delivery methods, volume of packages, and income level.

The common question the named Alabama plaintiff presents is whether FedEx Ground misclassified its drivers as independent contractors instead of employees. Under Alabama law, the primary test in determining the existence of an employee-employer relationship is whether the employer maintains a right of control over the actions of the alleged employee. Hester v. Brown, 512 F.Supp.2d 1228, 1234 (M.D.Ala.2007); Butler v. Aetna Fin. Co., 587 So.2d 308, 310 (Ala.1991) (“[I]t is axiomatic that for an agency relationship to exist, there must be a right of control by the principal over the agent.”). The right of control test involves four factors: “(1) direct evidence of the right or exercise of control; (2) the method of payment used; (3) whether the alleged principal had the right to terminate employment; and (4) the right to control another’s time.” Dickinson v. City of Huntsville, 822 So.2d 411, 416 (Ala.2001).

FedEx Ground contends that the right of control test requires the court to examine the Alabama drivers’ varied experiences, focusing on the actual exercise of con *454 trol in determining contractor independence. As in Kansas, however, Alabama courts look to the reserved right of control rather than the actual exercise of control to establish employee status. Turnipseed v. McCafferty, 521 So.2d 31, 32 (Ala.Civ.App.1987) (citing Weeks v. C.L. Dickert Lumber Co., 270 Ala. 713 , 121 So.2d 894 (I960)). This analysis depends on the substance of the standard Operating Agreement and common practices and procedures standard to all of the Alabama plaintiffs. Even though individual differences may exist between the plaintiffs’ actual work experience, these issues don’t bar class certification. See Chun-Hoon v. McKee Foods Corp., No. C-05-620, 2006 WL 3093764 , at *5 (N.D.Cal. Oct. 31, 2006) (finding that individual issues did not prevent the court from certifying the claims of drivers allegedly treated as independent contractors rather than employees based on the defendant’s standard distribution agreement and uniform policies toward its drivers).

Moreover, FedEx Ground claims that even if the court relies on the standard Operating Agreement to determine employee status, individualized extrinsic evidence of each driver’s course of dealing with FedEx Ground is necessary to interpret the contract provisions related to control. The court disagrees. The named Alabama plaintiff doesn’t contend that the Operating Agreement’s terms are ambiguous. Instead, she argues that FedEx Ground’s treatment of its drivers is inconsistent with their purported definition as independent contractors. As such, common questions arising from FedEx Ground’s standard treatment of its drivers predominate and satisfy the requisites for class certification under Rule 23(b)(2) or 23(b)(3).

New York

The New York plaintiffs allege violations of New York’s wage statutes and unlawfulness of their Operating Agreement with FedEx Ground. The New York plaintiffs seek to certify a class of:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 27, 1998, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New York.

The New York plaintiffs claim they meet the requirements of Rule 23(a). First, they claim the class is sufficiently numerous to make joinder impractical: there were 695 pickup and delivery drivers in New York at the time of briefing, and even more signed Operating Agreements during the proposed class period.

Second, the New York plaintiffs contend the class members share common questions of law or fact because FedEx Ground has engaged in standardized conduct towards each proposed class member. The New York plaintiffs say the class members’ claims arise out of FedEx Ground’s alleged nationwide policy of classifying its pickup and delivery drivers as independent contractors while treating them as employees. Accordingly, the New York plaintiffs say FedEx Ground violated New York Labor Law §§ 193(1) and 193(2) by deducting and withholding such things as vehicle expenses, cargo claims, and insurance claims not ordinarily chargeable to employees. The New York plaintiffs say their common law claims of unjust enrichment and quantum meruit also turn on whether the independent contractor classification was invalid. With respect to the declaratory judgment claim, the New York plaintiffs say, the Operating Agreement’s terms and FedEx Ground’s procedures will require identical analysis for each class member.

Third, the named New York plaintiffs contend their claims arise from the same practice or course of conduct that gives rise to, and are based on the same legal theory as, other class members’ claims. Each named plaintiff signed the standard Operating Agreement and underwent the same systematic control over the methods and means by which they accomplish their tasks.

Finally, as to the requirements of Rule 23(a), the named New York plaintiffs say they fairly and adequately protect the class’s *455 interests. They include current and former drivers from the Home Delivery and Ground divisions of FedEx Ground. Their attorneys have extensive experience in the prosecution of class actions like this.

The New York plaintiffs argue their damage claims should be certified under Rule 23(b)(3) because each claim is based upon the common question of whether they have been improperly classified as independent contractors. That drivers differed in hours worked, packages delivered, and earnings, the plaintiffs reason, doesn’t affect whether FedEx Ground’s right to control them in the course of their work makes them employees or independent contractors.

The New York plaintiffs say a single class action is superior to individual actions because efficiencies of a class action will reduce litigation expenses and court resources. Fear of economic retaliation by an employer, the plaintiffs argue, weighs in favor of certification in an employment context.

The New York plaintiffs seek certification of their declaratory and equitable claims under Rule 23(b)(2) because the ease seeks to define the relationship between FedEx Ground and the plaintiffs and the relief sought will benefit the entire class. FedEx Ground’s use of standard Operating Agreements and standardized policies constitutes action on grounds generally applicable to the class, they say.

FedEx Ground opposes class certification. First, FedEx Ground argues that New York drivers vary substantially in the freedom they have had to operate their businesses, so several of the New York plaintiffs’ claims, such as those for unjust enrichment, rescission, and reimbursement of wage deductions will turn on individualized inquiries. Second, FedEx Ground claims most New York drivers want to be independent contractors, so the named plaintiffs are out of step with the class they seek to represent. Third, FedEx Ground argues the class action device isn’t the way to handle this case, since the plaintiffs haven’t articulated a trial plan but have proffered a class definition that guarantees individual trials.

The second and third arguments mirror arguments the court rejected in the Kansas case, and FedEx Ground doesn’t argue to the contrary. Instead, in the aftermath of the Kansas ruling, FedEx Ground points to differences in controlling state law as disfavoring class treatment. While the Kansas ruling stressed the putative employer’s right to control as the central (and common) factor in determining employment status under Kansas law, FedEx Ground claims that New York law looks primarily to the control and supervision actually exercised and indicia of control not memorialized in the agreement.

The court doesn’t see the same distinction FedEx Ground perceives between Kansas law and New York law. The purported employer’s right to control is “the critical inquiry” under New York law. Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193 , 770 N.Y.S.2d 692 , 802 N.E.2d 1090, 1092-1093 (2003). New York law looks specifically to the right to control the contracted results and the means by which the results are to be obtained, with the latter more important than the former. Noel v. Life Alert Emergency Response, Inc., 38 A.D.3d 1082, 1083 , 832 N.Y.S.2d 320 (N.Y.App.Div.2007); In re Claim of Cromer, 248 A.D.2d 773, 774 , 669 N.Y.S.2d 701 (N.Y.App.Div.1998).

None of the cases FedEx Ground cites suggests that the inquiry can’t be made through a common Operating Agreement, at least when the parties suggest few deviations from that agreement in the field. For example, in In re Claim of Tyner, 257 A.D.2d 922 , 685 N.Y.S.2d 813 (N.Y.App.Div.1999), the court took a class-wide view of the degree of control a telephone directory distributor exercised over its delivery persons. Similarly, the issue was resolved in In re Claim of Rukh, 208 A.D.2d 1105 , 617 N.Y.S.2d 547 (N.Y.App.Div.1994), through a class-wide discussion of the control a franchisor in radio-dispatched vehicles for hire exercised over its franchisees. The same approach was taken in In re Pepsi Cola Buffalo Bottling Corp., 144 A.D.2d 220 , 534 N.Y.S.2d 532 (N.Y.App. Div.1988), which addressed franchised beverage delivery drivers.

Controlling New York law is not identical to Kansas law, but it is sufficiently similar *456 that the court’s reasoning in the Kansas class certification opinion applies equally to the New York class certification motion.

In its post-Kansas brief, FedEx Ground also presented essentially the same argument the court addressed in the Alabama discussion concerning the need to go beyond the Operating Agreement’s terms based on the plaintiffs’ arguments. For the reasons set forth in the Alabama discussion, the court finds that argument unpersuasive.

The New York plaintiffs’ motion for class certification is granted.

Massachusetts

The Massachusetts plaintiffs seek injunctive and declaratory relief, claim damages because FedEx Ground is violating the state’s independent contractor law and the state’s wage law, and bring claims for unjust enrichment and quantum meruit. They seek certification of a class of all who (1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now called forms OP-149 and OP-149 RES); (2) drove or will drive a vehicle on a full-time basis since May 7, 1999 to provide package pick-up and delivery services pursuant to the Operating Agreement; and (3) were dispatched out of a terminal in the state of Massachusetts.

The Massachusetts plaintiffs contend the proposed class is so numerous that joinder is impractical. At the time of its original brief, there were 292 drivers for FedEx Ground, and there would be many others who entered into Operating Agreements during the class period. They also contend questions of law and fact are common to the class because FedEx Ground treats all class members the same way. They note that controlling Massachusetts law requires FedEx Ground—not the plaintiffs—to prove that the class members are independent contractors. Mass. Gen. Laws ch. 149, § 148B(a)(1-3). That law, they argue, creates a presumption (common to the class) against independent contractor status. See Coverall N. Am., Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852 , 857 N.E.2d 1083 (2006). The plaintiffs suggest that the statute itself creates a right to bring a representative action even if all elements of Federal Rule 23 are not met. Mass. Gen. Laws ch. 149, § 150 ; see also Moore v. Barnsider Mgmt. Corp., No. 04-1360, 2006 WL 2423328 , at *7 (Mass.Super.Ct. Aug. 15, 2006).

The alleged misclassification of employees also, the plaintiffs say, provides a common issue for their common law quantum meruit claim, which focuses on enrichment to FedEx Ground rather than upon any individual plaintiffs. See Schumacher v. Tyson Fresh Meats, Inc., 221 F.R.D. 605, 612-613 (D.S.D. 2004); In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 685-686 (S.D.Fla.2004). A single analysis, plaintiffs say, will govern their claims for injunctive and declaratory relief.

The Massachusetts plaintiffs argue that the named representatives’ claims have the same essential characteristics as the claims of the class at large, so the Rule 23(a) typicality requirement is satisfied even if some factual distinctions exist. The named plaintiffs, like the putative class members, are present and former drivers who were parties to the Operating Agreement. They and their counsel have zealously represented and advocated on behalf of the class as a whole.

The Massachusetts plaintiffs argue that the common questions predominate because they center on the meanings and functions of standardized forms or contracts. See Lucas v. GC Servs. L.P., 226 F.R.D. 337, 342 (N.D.Ind.2005). FedEx Ground’s similar treatment of the class will provide the basis for determining the class members’ employment status. See, e.g., Flanagan v. Allstate Ins. Co., 228 F.R.D. 617 (N.D.Ill.2005).

The Massachusetts plaintiffs argue that a class action is superior to other methods of adjudicating their controversy. They point to the efficiencies (and consequent reduced expenses) gained by use of a class action for common questions, and argue that most class members would be unable to pursue claims for relatively small awards. See Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 339 , 100 S.Ct. 1166 , 63 L.Ed.2d 427 (1980).

FedEx Ground argues the claims lack commonality because the putative class members have had varying experiences with FedEx *457 Ground. The drivers are associated either with FedEx Ground Home Delivery or FedEx Ground; some have multiple work areas, while others have single work areas. Massachusetts, FedEx Ground says, employs a nine-factor test taken from the Second Restatement of Agency, Yohn v. L.A. Ruiz Assocs., Inc., No. 97384, 2002 WL 31677206 , at *4 (Mass.Super.Ct. Oct. 2, 2002), and each factor must be considered for each driver. The Operating Agreement can’t provide a uniform answer, FedEx Ground contends, because the plaintiffs contend the Operating Agreement isn’t being followed. FedEx Ground contends that drivers vary in their abilities to determine their own schedules, to choose supplemental drivers and helpers, to control delivery methods, to select vehicles and control maintenance, to control volume of packages, and to control appearance. FedEx Ground also contends the legal issue isn’t quite as simple as the plaintiffs suggest. See American Zurich Ins. Co. v. Department of Indus. Accidents, No. 053469A, 2006 WL 2205085 , at *4 (Mass.Super.Ct. June 1, 2006). All in all, FedEx Ground argues, the Massachusetts plaintiffs’ claims will turn on careful examination of individualized evidence.

FedEx Ground asserts several conflicts exist within the purported class. Only about a quarter of the Massachusetts drivers agree with the remedy the plaintiffs propose; current and former drivers may have divergent interests; and multiple work area drivers have considerably less interest than single work area drivers in being deemed employees.

Finally, FedEx Ground argues that the class action device is not a superior method by which to litigate this case. The class definition refers to drivers who are full time, but doesn’t define the term. Since FedEx Ground doesn’t view the drivers as employees, its records won’t disclose who meets any definition that might be chosen. For much the same reasons, FedEx Ground argues, the plaintiffs’ equitable relief claims are unfit for class certification under Rule 23(b)(2).

The court rejected the second and third arguments in the Kansas ease, and the arguments are no stronger in the Massachusetts case. As to the third, FedEx Ground seems to have had no difficulty in identifying class members for purposes of quantifying the number of putative class members who disagree with the remedies the Massachusetts plaintiffs seek. The court concludes the challenge of class identification is considerably less daunting than FedEx Ground fears. The proposed class definition is “sufficiently definite enough to permit” class members to be ascertained. See Alliance to End Repression v. Rochford, 565 F.2d 975, 977-978 (7th Cir.1977).

In its supplemental brief, FedEx Ground argues that Massachusetts employs a multi-factor test to determine employments status, see Yohn v. L.A. Ruiz Assocs., Inc., No. 97384, 2002 WL 31677206 , at *4 (Mass.Super.Ct. Oct. 2, 2002), so individual inquiries will predominate. FedEx Ground is correct.

The Massachusetts plaintiffs are correct that their law places upon an alleged employer the burden of proving independent contractor status and requires the alleged employer to prove three things:

(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and

(2) the service is performed outside the usual course of business of the employer; and

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Mass. Gen. Laws ch. 149, § 148B(a)(l-3). Of necessity, then, FedEx Ground will be required to prove its drivers’ freedom from control, not only under the drivers’ contract, but also “in fact.” Unlike the evidence that will be needed to resolve the claims in most of the states discussed so far, FedEx Ground will need to prove freedom from control in practice, as well as freedom from control under the Operating Agreement. The Massachusetts plaintiffs may believe that freedom in fact need never be reached because FedEx Ground will be unable to carry its *458 burden of showing freedom from control under the Operating Agreement, making the plaintiffs employees. Perhaps so, but this is not the time for decision on the merits.

The Massachusetts plaintiffs also argue that Massachusetts law favors use of class actions both in this setting, Mass. Gen. Laws ch. 149, § 150 , and in other settings governed by Massachusetts class action laws. See, e.g., Aspinall v. Philip Morris Cos., Inc., 442 Mass. 381 , 813 N.E.2d 476 , 484-485 (2004); Baldassari v. Public Fin. Trust, 369 Mass. 33 , 337 N.E.2d 701, 706 (1975) (superceded by statute on another point of law). Massachusetts procedural law, though, is not a matter to be considered in deciding whether common issues of fact or law predominate.

Massachusetts law doesn’t look solely to the right to control in deciding employment status. It looks to the relationship between payor and payee in the field, regardless of what control might be given the payor in the contract. Because a class action would require examination of the actual relationship—not just the relationship created by the Operating Agreement—between FedEx Ground and 292 drivers who would be class members, common questions do not predominate. Whether the Operating Agreement vests too much control in FedEx Ground is a common question, but is just one of several.

The Massachusetts plaintiffs’ motion for class certification must be denied.

California

The California plaintiffs seek certification of three classes. First, as to their FMLA claims, they seek certification of the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the United States.

As to their claims under California law, they seek certification of the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of California.

Finally, they seek certification of a sub-class for their overtime claim:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; 3) were dispatched out of a terminal in the state of California; and 4) at any time during the class period operated a vehicle with a gross vehicle weight rating of less than 10,001 pounds.

The California plaintiffs argue that their proposed classes satisfy the numerosity requirement: the FMLA class would include some 12,000 active drivers across the nation, and the California class would include more than 1,000 active and former drivers, more than 100 of whom would be in the sub-class.

The California plaintiffs contend that the national FMLA claim raises several questions common to class members: whether class members are “eligible employees” under the FMLA, which turns on whether they are employees rather than independent contractors; whether FedEx Ground interfered with class members’ FMLA rights through the standard form Operating Agreement, uniform company policies, and standard practices requiring drivers to forego FMLA leave unless they can provide approved substitute drivers at their own expense. The California plaintiffs argue that FedEx Ground teaches *459 terminal managers to discourage drivers from taking time off and to insist that drivers make contingency plans to cover their routes in case of illness.

In applying the “economic realities test” applicable to FMLA claims, courts consider the nature and degree of the employer’s control over the manner of performance; the alleged employee’s opportunity for profit or loss based on his managerial skill; the alleged employee’s investment in equipment or materials, or his employment of workers; the degree of special skill required for the services rendered; the duration and permanence of the working relationship; and the extent to which the services rendered are integral to the alleged employer’s business. Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1534-1535 (7th Cir.1987). The law applicable to the state law claims uses the same factors to determine whether the alleged employer “has the right to control the manner and means of accomplishing the result desired.” S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal.3d 341 , 256 Cal.Rptr. 543 , 769 P.2d 399, 404 (1989).

The California plaintiffs claim they satisfy the requirement of typicality because their claims arise from FedEx Ground’s practice of uniformly classifying drivers as independent contractors, thereby denying everyone rights under the FMLA, the California Labor Code, and the California unfair competition law. They contend their claims for injunctive and declaratory relief satisfy Rule 23(b)(2) because FedEx Ground has acted on grounds generally applicable to the class by classifying them as independent contractors. They contend the court should certify a hybrid class on the state law claims, with a Rule 23(b)(2) class for the declaratory and injunctive claims and a Rule 23(b)(3) class for the damages claims.

FedEx Ground contends individualized analysis is required with respect to the issues of the control FedEx Ground actually exercises over drivers, the parties’ intent in signing an Operating Agreement that purports to establish an independent contractor relationship, the extent of each driver’s investment in his or her business, the drivers’ opportunity to profit, whether a driver operates a distinct business, whether a driver has employees, the method of payment, whether the work ordinarily is performed under a supervisor or requires special skills, length of driver’s experience, and whether a given classification is a subterfuge.

Further, FedEx Ground argues, individualized analysis will be required for some of its defenses and some of the plaintiffs’ damages claims, such as whether expenses the plaintiffs say should have been reimbursed were reasonable, the amount of overtime a driver worked, what deductions should or could have been made from any employee paycheck, and whether certain purchases by drivers were coerced.

With respect to FMLA claims, FedEx Ground argues that the former drivers don’t have standing to assert a claim for wrongful interference with their FMLA rights, while current drivers must prove both their status as “eligible employees” under the FMLA, and that FedEx Ground interfered with their FMLA rights. Given its view that determining employment status requires individualized analysis, FedEx Ground further opines that the FMLA claim doesn’t involve common questions of fact or law. Finally, FedEx Ground says the proposed FMLA class members have impermissibly divergent interests because too few drivers want to be classified as employees.

FedEx Ground also argues that conflicts between the named plaintiffs and the purported class members preclude class certification. Most of the plaintiffs, they argue, are former drivers with no stake in injunctive relief, and the named plaintiffs alone present fraud claims. Further, FedEx Ground says single area contractors can’t represent multiple area contractors. FedEx Ground argues that the class action is not a superior method for resolution: the plaintiffs haven’t presented a trial plan or indicated how to decide which drivers were “full time.”

Previous analyses have addressed, and rejected, FedEx Ground’s arguments concerning standing of former drivers, the difficulty of identifying full time drivers, the superiority of the class action as a method for resolution, and the asserted conflict be *460 tween class members. The court renews those conclusions here. The court does not read California law as does FedEx Ground. As the court understands the law that will govern the California plaintiffs’ state law claims, whether a driver is an employee or an independent contractor will turn on FedEx Ground’s right to control that driver, not on whether FedEx Ground fully exercised that control. See S.G. Borello & Sons v. Department of Indus. Relations, 256 Cal.Rptr. 543 , 769 P.2d at 408-410 . Given the ubiquity of the Operating Agreement, FedEx Ground’s right to control its drivers is a common question that predominates over all other questions with respect to the California claims.

With respect to the FMLA claim, though, the court agrees with FedEx Ground. To establish a violation of the FMLA, a driver will have to establish that (1) the driver was eligible for the FMLA’s protections (in other words, an employee), (2) FedEx Ground was covered by the FMLA, (3) the driver was entitled to leave under the FMLA, (4) the driver provided sufficient notice of his or her intent to take leave, and (5) FedEx Ground denied the FMLA benefits to which the driver was entitled. Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir.2006). Whether the Operating Agreement creates an employment relationship and whether FedEx Ground is covered by the FMLA plainly constitute common issues of law and fact, but the remaining elements present individual questions. Those individual questions—Was a particular driver entitled to FMLA leave? Did that driver give notice of intent to take leave? Did FedEx Ground deny that driver FMLA leave?—will predominate.

The court grants the California plaintiffs’ motion for certification of a California class and sub-class, but denies the California plaintiffs’ motion for certification of a national FMLA class.

New Jersey

The New Jersey plaintiffs bring claims under New Jersey’s Wage Payment Law, N.J. Stat. Ann. § 34:11-4.1 , et seq., and Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 , et seq., breach of the covenant of good faith and fair dealing within the Operating Agreement, rescission of the Operating Agreement, quantum meruit damages for services performed, and declaratory and injunctive relief. They seek certification of a class under Federal Rule of Civil Procedure 23(b)(3) for their damages claims, and of a class Federal Rule of Civil Procedure 23(b)(2) for their claim for declaratory relief. Their proposed class definition under both rules is:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 19, 1999, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New Jersey.

The New Jersey plaintiffs say their proposed class meets the numerosity requirement; 388 drivers currently are under contract with FedEx Ground (FedEx Ground reports even more). As to commonality, the New Jersey courts look to § 220 of the Restatement (Second) of Agency (1958) to distinguish employees from independent contractors, MacDougall v. Weichert, 144 N.J. 380 , 677 A.2d 162, 190-191 (1996):

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

a. the extent of control which, by the agreement, the master may exercise over the details of the work;

b. whether or not the one employed is engaged in a distinct occupation or business;

e. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

*461 d. the skill required in the particular occupation;

e. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

f. the length of time for which the person is employed;

g. the method of payment, whether by the time or by the job;

h. whether or not the work is a part of the regular business of the employer;

i. whether or not the parties believe they are creating the relation of master and servant; and

j. whether the principal is or is not in business.

These constitute the common questions for purposes of Rule 23(a)(2), the New Jersey plaintiffs contend, because if they are employees, they are entitled to recovery under the New Jersey Wage Law of deductions that FedEx Ground took pursuant to the Operating Agreement, FedEx Ground’s treatment of the drivers as independent contractors would amount to both an unconscionable commercial practice under the New Jersey Commercial Fraud Act and a breach of the covenant of good faith and fair dealing, and the drivers might be entitled to rescission on grounds of New Jersey public policy of protecting employees (and if the Operating Agreement is rescinded, they will be entitled to recover in quantum meruit for the value of the services they provided). The New Jersey plaintiffs say the preclusive effect of various administrative agency rulings also would amount to a common question of law.

The New Jersey plaintiffs maintain they are members of the class they seek to represent and are adequate class representatives; their counsel is experienced and competent.

FedEx Ground first contends that the New Jersey plaintiffs are not adequate representatives of the class. They filed incorrect interrogatory responses; their interests differ from the proposed class, most of whom want to be independent contractors; the Teamsters are directing the litigation; the fee agreement between the New Jersey plaintiffs and their attorneys compromises the class; former drivers cannot represent current drivers; and the current driver, a single work area contractor, cannot represent multiple work area drivers.

Second, FedEx Ground contends that New Jersey law requires an individualized examination of each of the Restatement factors measured against each driver. These arguments are discussed below.

Third, FedEx Ground contends that individualized determinations will be needed for several of its defenses to the New Jersey plaintiffs’ state law claims. FedEx Ground says it will be entitled to set off losses caused by any driver’s negligence or conversion from any recovery under the Wage Payment Law. FedEx Ground says that any driver’s success on a rescission claim for a completed contract will require proof that a given driver was deprived of the full benefit of those contracts. FedEx Ground contends that any plaintiffs recovery under the New Jersey Consumer Fraud Act requires proof of a causal nexus between the allegedly fraudulent practice and the resulting loss. The claims for breach of the duty of good faith and fair dealing, FedEx Ground says, will require an inquiry into the understandings and intent of each individual driver. Further, FedEx Ground says, its statute of limitations defense will require individualized inquiry into when any particular driver became aware, or should have become aware, of the fraudulent activity.

Fourth, FedEx Ground argues, as it has in most other cases in this docket, that a class action isn’t the superior method for litigating each potential class member’s claims because the plaintiffs haven’t offered any trial plan and because putative class members have a strong interest in controlling the outcome of the litigation; these arguments are no more persuasive to the court than they have been in other cases. FedEx Ground also argues that the proposed class definition is unworkable because it doesn’t define “full time” (this is the same argument found unpersuasive when raised in other cases in this docket) and because it would include future drivers within the class.

*462 Fifth and finally, FedEx Ground argues that the New Jersey plaintiffs’ equitable relief claims are unfit for class certification under 23(b)(2) because (1) the amended complaint doesn’t identify the injunctive relief sought; (2) the proposed class isn’t cohesive and homogeneous because most drivers don’t want such relief; (3) the claims lack commonality under Rule 23(a)(2) because each class member’s status will, for the reasons already set forth, turn on their individual circumstances; and (4) the claims are unfit for certification as a Rule 23(b)(2) class because the New Jersey plaintiffs’ primary objective is money damages.

The court has addressed many of FedEx Ground’s objections to the New Jersey plaintiffs’ adequacy to represent the proposed class in conjunction with class certification rulings for other states, and those arguments concerning the New Jersey plaintiffs are no more persuasive. FedEx Ground’s arguments about incorrect interrogatory answers and what might be an unusual fee agreement are unique to New Jersey, but FedEx Ground doesn’t persuade the court that those matters impair the abilities of the named plaintiffs or their attorneys to represent the class.

FedEx Ground contends that each driver’s individual situation must be examined on its own merits under New Jersey law. FedEx Ground contends that its drivers differ with respect to their abilities to configure routes and take on routes they choose, their abilities to control income; their abilities to determine their own schedule; their abilities to choose supplemental drivers and helpers; their abilities to control the volume of packages; their abilities to select their own vehicle and control its maintenance; their abilities to control delivery methods; whether they are supervised or unsupervised; the degree of skill each driver must have; provision of equipment; length of time the driver worked for FedEx Ground; method of payment; manner of termination of the work relationship; whether a driver accrues annual leave; and the parties’ intent.

The court doesn’t read the cases FedEx Ground cites as providing support for its contention that these issues require driver-by-driver examination. Millard’s, Inc. v. United States, 146 F.Supp. 385, 388 (D.N.J. 1956), presented the issue of whether roofers were employees for purpose of the Federal Insurance Contributions Act; the case appears to have presented no issue of New Jersey law at all. DaBronzo v. Roche Vitamins, Inc., 232 F.Supp.2d 306, 316 (D.N.J. 2002), involved analysis of whether an asbestos contractor was an employee or an independent contractor, but the relationship in DaBronzo doesn’t appear to have involved a contract as detailed as the FedEx Ground Operating Agreement. Finally, Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 , 345 (4th Cir.1998), involved a class action by franchisees claiming the franchisor had misused funds the franchisees had paid for advertising. The court of appeals held the class should not have been certified because it allowed the franchisees to create a “perfect plaintiff.” The New Jersey plaintiffs, in contrast, contend that FedEx Ground has treated each driver the same: as an employee.

The New Jersey Supreme Court explained its test concisely: “The control test is satisfied whenever the employer retains the right of control, even if the employer may not exercise actual control over the worker.” Lowe v. Zarghami, 158 N.J. 606 , 731 A.2d 14, 20 (1999). Regardless of how FedEx Ground may have dealt with any given driver, its right to control the drivers may be determined by reference to the Operating Agreement and related company policies. Whether the class members are employees or independent contractors is a common issue of fact and law.

FedEx Ground also contends that individualized determinations will be necessary for several of its defenses to the New Jersey plaintiffs’ state law claims. Again, the court reads the law differently. Miller v. Director, Div. of Taxation, 6 N.J.Tax 118, 133 (N.J.Tax Ct.1983), provides no support at all for the proposition that FedEx Ground will be entitled to set off losses caused by any driver’s negligence or conversion from any recovery under the Wage Payment Law. The law is to the contrary. Male v. Acme Markets, Inc., 110 N.J.Super. 9 , 264 A.2d 245, 246 (App.Div. *463 1970). FedEx Ground is correct that causation is an element of recovery under the New Jersey Consumer Fraud Act, but the common issue needn’t be the only issue in a class action. Seidenberg v. Summit Bank, 348 N.J.Super. 243 , 791 A.2d 1068, 1077 (App. Div.2002), doesn’t support FedEx Ground’s proposition that an inquiry into each driver’s intent will be needed to resolve the claims for breach of the duty of good faith and fair dealing; Seidenberg addressed the methods of proof when an alleged breach of the implied covenant didn’t violate a pertinent express term of the contract.

Even when considering the defenses available to FedEx Ground, the matter of FedEx Ground’s right to control its drivers remains the predominant and common issue of fact and law.

Finally, FedEx Ground is factually correct that the New Jersey plaintiffs’ declaratory relief claim is simply a predicate to their damage claims, but that is no impediment to certification of a class under Rule 23(b)(2). Berger v. Xerox Corp. Ret. Income Guarantee Plan, 338 F.3d 755, 764 (7th Cir. 2003) (“No one wants an empty declaration. As long as the concrete follow-on relief that is envisaged will if ordered (that is, if negotiations for relief consistent with the declaration break down) be the direct, anticipated consequence of the declaration, rather than something unrelated to it, the suit can be maintained under Rule 23(b)(2).”).

The court agrees with FedEx Ground that as the class is proposed, its statute of limitations defense would require individualized inquiry into when any particular driver became aware, or should have become aware, of the fraudulent activity. Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 470, 479 (D.N.J.2002). The New Jersey plaintiffs recognize the potential merit in that argument, and suggested limiting class members to those who signed an Operating Agreement, for the first time, on or after May 19,1999. The court will so modify the class definition.

With that modification, the court grants the New Jersey plaintiffs’ motion for class certification.

Maryland

Thomas Westcott, a former driver for the Home Delivery section of FedEx Ground, is the sole named plaintiff in the Maryland case. He seeks certification of the following class for claims for violation of Maryland’s wage statutes, unjust enrichment, and declaratory and injunctive relief:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 5, 2003, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Maryland.

Mr. Westcott seeks certification of a damages and unjust enrichment class under Federal Rule of Civil Procedure 23(b)(3) for the claims under the Maryland Wage Payment and Collection Act, Md.Code Ann., Lab & Empl. § 3-501, et seq., and the unjust enrichment claims. He seeks certification under Federal Rule of Civil Procedure 23(b)(2) for the declaratory relief claim.

Mr. Westcott points to the 218 drivers in Maryland at the time of his motion in support of the numerosity requirement of Rule 23(a)(1). He contends that because he and the other Maryland drivers are employees rather than independent contractors under Maryland law, the deductions FedEx Ground made from the drivers’ earnings violate the wage payment act. Alternatively, he seeks rescission of the Operating Agreement because it contravenes Maryland public policy against depriving an employee of a portion of the wages he has earned. In distinguishing between employees and independent contractors, the Maryland courts emphasize whether the alleged employer has the right of control over the alleged employee in respect to the work to be performed. Baltimore Harbor Charters Ltd. v. Ayd, 365 Md. 366 , 780 A.2d 303, 315-316 (2001). The right to control, Mr. Westcott argues, provides a common and predominant question of fact and law.

*464 Mr. Westcott says he is a member of the class and his claims are essentially the same as those of other drivers, so his claims are typical of the class he seeks to represent. He points to his extensive participation in the ease thus far as indicative of his adequacy as a class representative and to his attorneys’ experience as indicative of their adequacy.

Mr. Westcott presents the same arguments as most other plaintiffs in the docket with regard to the requirements of Rule 23(b)(3) being satisfied by the damages claims because common issues of law and fact predominate and class adjudication is superi- or to other available methods of resolution, and with regard to his request for declaratory judgment supporting certification of a class under Rule 23(b)(2).

FedEx Ground contends Mr. Westcott is an inadequate class representative. FedEx Ground notes that Mr. Westcott periodically violated FedEx Ground rules concerning acquisition of recipient’s signatures, so his claims are subject to equitable defenses. Further, FedEx Ground contends that Mr. Westcott’s work ethic (he would, according to FedEx Ground, “rather stop working at noon than have his business succeed”) makes him an unacceptable representative of a class that contains hard-working drivers with entrepreneurial spirit. FedEx Ground also challenges Mr. Westcott’s standing to represent current drivers since (to the apparent surprise of his attorneys) he quit his position as a FedEx Ground driver, and his adequacy, as a former Home Division driver, to represent Ground drivers.

FedEx Ground also contends that individual questions predominate over common questions. In deciding whether one is an independent contractor, Maryland courts consider factors including the power of control, selection and engagement of employees, payment of wages, power of dismissal, and whether the work is part of the regular business of the employer. FedEx Ground contends that each potential class member’s situation must be evaluated on its own merits. Moreover, FedEx Ground argues, since quantum, meruit smacks of fraud, the court will have to decide what was said, to whom it was said, and who relied on which statements, which are individual questions.

Finally, FedEx Ground argues, as it has in several other cases in this docket, that Mr. Westcott offers no trial plan, the proposed class definition is unmanageable because it doesn’t define driving on “a full-time” basis, and putative class members have a strong interest in controlling the litigation’s outcome. FedEx Ground also raises the same objections as it raises in other cases to certification of a 23(b)(2) class on the declaratory judgment claim. These objections are no more persuasive with respect to Mr. Westcott’s class certification motion than in the other cases.

The court also disagrees with FedEx Ground that Mr. Westcott’s assertedly unclean hands will doom his claims and make him an unsuitable class representative; there is no nexus between Mr. Westcott’s allegedly improper conduct and the claims he brings. See Hicks v. Gilbert, 135 Md.App. 394 , 762 A.2d 986, 990 (2000). The court addressed the standing concerns in conjunction with the Tennessee case in this opinion.

The quantum meruit claim won’t require individual analysis. See Alternatives Unlimited, Inc. v. New Baltimore City Bd. of Sch. Comm’rs, 155 Md.App. 415 , 843 A.2d 252, 291 (2004); Mogavero v. Silverstein, 142 Md.App. 259 , 790 A.2d 43, 51-52 (2002). Whether Maryland law creates a common question of law and fact or individualized issues with respect to employment status is more challenging. FedEx Ground cites L.M.T. Steel Prods., Inc. v. Peirson, 47 Md.App. 633 , 425 A.2d 242, 244 (1981), for the proposition that Maryland courts look to the parties’ actual conduct in deciding whether the power of control exists. This may be so in some circumstances; L.M.T. Steel dealt with liability for a purported employee’s negligent use of the alleged employer’s personal automobile. The Court of Appeals of Maryland specifically addressed the test under the wage act in Baltimore Harbor Charters, Ltd. v. Ayd, 365 Md. 366 , 780 A.2d 303 (2001), while noting that different definitions may apply in different settings, see 780 A.2d at 314 n. 9, so the court needn’t ponder the meaning of L.M.T. Steel. For purposes of today’s issue, though, *465 Baltimore Harbor Charters leaves ample room for pondering.

After reviewing case law and statutes from California and several other jurisdictions, and considering the Restatement test, the Baltimore Harbor Charters court held:

The factors considered in this Court’s opinions regarding the doctrine of respondeat superior and construction of the term “employee” under the principles enumerated in Restatement (Second) of Agency, as well as the case law interpreting the term “employee” under the wage act statutes of other jurisdictions provide an appropriate framework for determining whether an individual is an employee covered by the Maryland Wage Payment and Collection Act. Such factors include:

1. Whether the employer actually exercised or had the right to exercise control over the performance of the individual’s work;

2. Whether the individual’s service is [ ] outside all the usual course of business of the enterprise for which such service is performed;

3. Whether the individual is customarily engaged in an independently established trade, occupation, profession, or business;

4. Whether it is the employer or the employee who supplies the instrumentalities, tools, and location for the work to be performed;

5. Whether the individual receives wages directly from the employer or from a third party for work performed on the employer’s behalf; and

6. Whether the individual held an ownership interest in the business such that the individual had the ability and discretion to affect the general policies and procedures of the business.

780 A.2d at 318-319 . The first factor— whether the alleged employer “actually exercised or had the right to exercise control”— seems to present a need for individual analysis: it appears to be pertinent whether the employer had a right to control that was not “actually exercised.”

The Baltimore Harbor Charters court went on, though, to offer guidance to the trial court on remand, explaining with respect to the first factor, “[t]he emphasis on the right to exercise control is whether Berman could have exercised control over Ayd, not whether he actually did.” 780 A.2d at 319 . Accordingly, as the court reads Maryland law, a plaintiff can prove himself an employee by showing a right to control or, in a different sort of case, actual control when no right to control actually exists.

The court understands Mr. Westcott to bring his claims based wholly on the right to control reserved to FedEx Ground under the Operating Agreement, not upon FedEx Ground’s actual exercise (or forbearance) of control. If the court’s understanding is correct, the Operating Agreement is all that will be needed to determine whether FedEx Ground has a right to control such as to support Mr. Westcott’s claim of employee status. The remaining factors in the Baltimore Harbor Charters test can be resolved, too, without reference to differential treatment of individual drivers.

The court grants Mr. Westcott’s motion to certify the Maryland classes.

Michigan

The Michigan plaintiffs seek certification of the following class under Federal Rule of Civil Procedure 23(b)(3) for their claims of breach of implied contract, unjust enrichment, and declaratory judgment, and under Rule 23(b)(2) for their declaratory judgment claim. The proposed class includes:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 25, 1998, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Michigan.

The Michigan plaintiffs’ arguments are nearly identical to those Mr. Westcott raised *466 on Maryland class’s behalf, with the necessary exception of the controlling state law. FedEx Ground responds with much the same arguments, augmented by a stronger assault on the role it perceives the Teamsters to be playing in Michigan—an argument no more persuasive with respect to the Michigan class than it was with respect to the New Jersey class certification motion. The propriety of class certification turns, then, on whether the issue of the class members’ classification as independent contractors presents a common question under Michigan law.

To decide whether one party is another’s employer, Michigan courts use an “economic reality test” that entails consideration of control, payment of wages, hiring and firing, and responsibility for the maintenance of discipline. Ashker v. Ford Motor Co., 245 Mich.App. 9 , 627 N.W.2d 1, 3 (2001). No single factor is controlling. Wells v. Firestone Tire & Rubber Co., 421 Mich. 641 , 364 N.W.2d 670, 673 (1984).

The parties’ disappointing citation choices slowed the court in resolving the Michigan motion. For example, FedEx Ground argues that by “control,” Michigan courts mean actual control, a proposition for which they cite Wells v. Firestone Tire, 364 N.W.2d at 673-674 . Whatever support Wells provides for FedEx Ground is not immediately apparent. The Wells court considered which of two corporations employed the plaintiff. The section cited by FedEx Ground doesn’t seem to consider control in the slightest, though it notes a distinction between the organizational chart and actual practice when it came to hiring and firing. Another of the cases FedEx Ground cites, Aero Taxi-Rockford v. General Motors Corp., No. 259565, 2006 WL 1479915 , at *2 (Mich.Ct.App. May 30, 2006), neither applied nor discussed the economic reality test.

Similarly, the Michigan plaintiffs cite Farrell v. Dearborn Mfg. Co., 416 Mich. 267 , 330 N.W.2d 397, 400 (1982), for the proposition that, “The ‘control’ element of the test subsumes the common law ‘control test,’ ” but the court’s several re-readings of that page (and the rest of the case) disclose nothing from which that principle appears to be drawn. The Michigan plaintiffs also cite Goodchild v. Erickson, 375 Mich. 289 , 134 N.W.2d 191, 193 (1965), for the proposition that courts are to look for the right to control, rather than actual control. The Good-child case contains such language, but the language is contained in a quotation from a 1918 case, Arnett v. Hayes Wheel Co., 201 Mich. 67 , 166 N.W. 957 (1918), explaining a test no longer used by the Michigan courts.

Mantei v. Michigan Pub. Sch. Employees Ret. Sys., 256 Mich.App. 64 , 663 N.W.2d 486, 495-497 (2003), is more instructive. Mantei considered whether a school principal was employed or retired for purposes of retirement benefits—a different sort of issue than in this ease, but the court applied the economic realities test. When analyzing the control factor, the Mantei court discussed the contract under which one entity was to provide the school district with a qualified person to fill the principal position, and identified the work requirements the person was to satisfy. The school superintendent, though, testified that he didn’t supervise or evaluate the plaintiff as he had when the school district employed him, and set forth specific areas in which that lesser supervision arose. The court went on to discuss only the right to control the principal, rather than actual control that was exercised, and concluded that the school district had some control over the principal because the contract with the other entity provided the right to control to some degree. Id. at 496-497.

Still more instructive is Kidder v. Miller-Davis Co., 455 Mich. 25 , 564 N.W.2d 872 (1997), 3 another case with a very different *467 sort of issue, but governed by Michigan’s economic realities test. At issue in Kidder was whether the worker compensation law barred an injured worker’s tort suit against the contractor on whose work site he was injured or the labor broker that sent him to that work site. The court applied the economic realities test and concluded that the worker was an employee of both. Most important to today’s case, a contract existed between the labor broker and the construction contractor, see 564 N.W.2d at 879 n. 8, but the court examined the control each potential employer actually exerted over the workers—not just the over plaintiff, but over all the workers at the site. Id. at 880.

Sliter v. Cobb, 388 Mich. 202 , 200 N.W.2d 67 (1972), involved a vehicular collision between the plaintiff and a newspaper deliverer. The newspaper sought summary judgment on the ground that the deliverer was an independent contractor rather than its employee. The supreme court looked only to the issue of control, but did so with respect to both contractual right to control and actual control. Id. at 207-208 , 200 N.W.2d 67 .

These cases persuade the court that while FedEx Ground’s right to control its drivers under the Operating Agreement is an issue common to all class members, that common issue does not predominate because individual issues will have to be considered—matters of actual control, not just the right to control—for each of more than 350 class members. Class treatment is inappropriate in light of governing Michigan law, so the court denies the Michigan plaintiffs’ motion for class certification.

Minnesota

The Minnesota plaintiffs allege violations of Minnesota’s Illegal Deductions from Wages Law, Minn.Stat. § 181.79, subd. 1, Failure to Keep Records Law, Minn.Stat. § 177.30, and Consumer Fraud Act, Minn. Stat. § 325F.69, subd. 1. They seek rescission of the Operating Agreement, quantum meruit damages for services performed, and declaratory and injunctive relief. They seek certification of the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 5, 1999, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Minnesota.

The Minnesota plaintiffs’ wage deduction claim seeks reimbursement of sums that FedEx Ground deducts or withholds from drivers’ earnings to cover FedEx Ground’s ordinary business expenses. The record-keeping claim asserts that the drivers are employees as to whom FedEx Ground has not kept records required by statute. The consumer fraud claim appears to be based on FedEx Ground’s representation to the drivers that they are independent contractors.

Apart from the controlling law, the Minnesota plaintiffs make essentially the same argument Mr. Westcott made for the Maryland class. The Minnesota plaintiffs report that there were 355 drivers in Minnesota when they filed their class certification motion. The Minnesota plaintiffs say they will rely on common proof, including the Operating Agreement, FedEx Ground standard policies, and training and programmatic treatment of its drivers, to establish that the drivers are employees rather than independent contractors.

FedEx Ground raises many of the same arguments already rejected in this order with respect to the Minnesota plaintiffs. FedEx Ground says the named plaintiffs are inadequate class representatives because (as former drivers) they have no stake in any claim for injunctive or declaratory relief, because the class disagrees on the proposed remedy, and because the named plaintiffs have shown little interest in growing their businesses, they can’t represent multiple work area drivers or even single work area drivers. FedEx Ground also argues that a *468 class action is not the superior method for litigating each potential class member’s claims because the plaintiffs offer no trial plan, don’t define “full time,” and putative class members have a strong interest in controlling the outcome of the litigation.

The Minnesota plaintiffs and FedEx Ground generally agree that Minnesota courts apply the following factors to decide whether a person is an employee or independent contractor: (1) the right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. Minn. R. 3315 .0555; Boily v. Commissioner of Econ. Sec., 544 N.W.2d 295, 296 (Minn.1996). The right to control the means and manner of performance “generally carries the greatest weight in a determination of the worker’s status.” Boily v. Commissioner, 544 N.W.2d at 296 . If the first five factors don’t produce an answer, Minnesota courts then consider (1) availability to public, (2) compensation on job basis, (3) realization of profit or loss, (4) obligation, (5) substantial investment, (6) simultaneous contracts, (7) responsibility, and (8) services in the course of the employing unit’s organization, trade, or business. Minn. R. 3315 .0555, subd. 2.

FedEx Ground contends that Minnesota law requires examination of each factor with respect to each driver. FedEx Ground notes that in Boily v. Commissioner, 544 N.W.2d at 296 , the court looked to the putative employer’s opportunity in addition to the right to control. As this court reads the opinion, though, the look to opportunity was merely an observation on the way to a holding, and formed no part of the Boily court’s reasoning or holding:

Inasmuch as Dr. Boily is a resident of California, it is apparent that his opportunity to control the manner and means of the three dentists whose status is in question would be extremely limited even if the right of control had been reserved. It appears, however, that Dr. Boily did not reserve to himself the right to control the manner in which the dentists practice their profession.

Id. FedEx Ground also cites Broussard v. Meineke Disc. Muffler Shops, 155 F.3d 331 , 345 (4th Cir.1998), for the proposition that each potential class member’s situation must be evaluated on its own merits; the inapplicability of Broussard was discussed with reference to the New Jersey class.

Thus, even if FedEx Ground actually allowed variations between drivers with respect to such things as choosing supplemental drivers, delivery methods, determining schedule, controlling package volume, reconfiguring routes, taking on routes of the driver’s choice, controlling income, selecting vehicles and controlling maintenance, and controlling appearance, FedEx Ground cites no authority for the proposition that such variations matter if—as the drivers claim— FedEx Ground had the authority to control such things. FedEx Ground argues that there also are variations between drivers as to mode of payment, furnishing of materials or tools, control of the premises where the work is done, and the right to discharge cannot be evaluated on the basis of class-wide proof.

The differences as to payment appear to deal with calculation of payment, rather than mode of payment. Similarly, the differences FedEx Ground cites with respect to furnishing (or acquisition) of tools do not appear germane to whether the drivers are employees; it appears from FedEx Ground’s argument that FedEx Ground gives all drivers the same choices. FedEx Ground doesn’t appear to dispute that it has control over the terminals, though it posits that the terminals are not where the drivers do most of their work.

As to the specific state law claims, FedEx Ground argues that individual inquiry will be required as to some of its defenses, such as waiver and estoppel. FedEx Ground also says it might raise a laches defense to the rescission claim. The variety of individual defenses, though, doesn’t eliminate the presence of a predominant common question of fact. See LaFlamme v. Carpenters Local No. 370 Pension Plan, 212 F.R.D. 448, 455 (N.D.N.Y.2003); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 58 (N.D.Ill.1996). As to the *469 record-keeping claims, FedEx Ground says it kept the required information as to at least some drivers, but that millions of pages of weekly settlement statements and daily settlement records will need to be reviewed to identify those drivers. This seems more in the nature of an admission than a reason not to certify a class, since Minnesota law appears to require such records as to each employee—if the drivers are employees.

FedEx Ground says a showing of reliance is essential for Consumer Fraud Act cases seeking damages, for which FedEx Ground quotes Group Health Plan, Inc. v. Philip Morris, Inc., 621 N.W.2d 2, 14 (Minn.2001), as saying a “showing of reliance ... must be made.” (emphasis by FedEx Ground). FedEx Ground’s use of this case as authority for this proposition is nothing short of astonishing. The quoted words are taken from the following paragraph, which makes abundantly clear that no individual inquiry need be made into reliance under the Minnesota Consumer Fraud Act:

More to the point, in cases such as this, where the plaintiffs’ damages are alleged to be caused by a lengthy course of prohibited conduct that affected a large number of consumers, the showing of reliance that must be made to prove a causal nexus need not include direct evidence of reliance by individual consumers of defendants’ products. Rather, the causal nexus and its reliance component may be established by other direct or circumstantial evidence that the district court determines is relevant and probative as to the relationship between the claimed damages and the alleged prohibited conduct. Further, in the context of the certified question, we reject the view expressed in two federal court decisions that our misrepresentation in sales laws require proof of individual reliance in all actions seeking damages. To impose a requirement of proof of individual reliance in the guise of causation would reinstate the strict common law reliance standard that we have concluded the legislature meant to lower for these statutory actions. Moreover, we are confident that the legislature would not have authorized private damages actions such as this, where the alleged misrepresentations are claimed to have affected a large number of consumers, while retaining a strict burden of proof that depends on evidence of individual consumer reliance.

Group Health Plan v. Philip Morris, 621 N.W.2d at 14-15 (internal citations omitted).

Whether the Minnesota drivers were employees or independent contractors is a common question of fact that can be decided on a class-wide basis. The court grants the Minnesota plaintiffs’ motion for class certification.

Pennsylvania

Derek Willis asks the court to certify a class under Federal Rule of Civil Procedure 28(b)(3) for his claims for injunctive and declaratory relief, for damages for violation of the Pennsylvania Wage Payment and Collection Law, and for rescission of the Operating Agreement. Mr. Willis also seeks certification under Rule 23(b)(2) for his injunctive and declaratory relief claims. He seeks to certify the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 25, 2001, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the commonwealth of Pennsylvania.

The parties make essentially the same arguments as those presented in the other states. Mr. Willis says the proposed Pennsylvania class is so numerous (571 Pennsylvania drivers at the time of the motion) that joinder is impractical, that the question of employee or independent contractor is common to the proposed class and can be resolved without analysis of individual drivers, that his claim (he is a former FedEx Ground driver who worked under the standard Operating Agreement) is typical of absent class members, and that he is an adequate class representative. With respect to his request to certify a class under Rule 23(b)(3) for the *470 damages claims, Mr. Willis says the common issue (employee v. independent contractor) predominates, and a class action is superior to other methods of resolving the claims. With respect to his request to certify a class under Rule 23(b)(2) for the injunctive and declaratory claims, Mr. Willis argues that through its use of the Operating Agreement, FedEx Ground has treated the class as a whole in the same way.

FedEx Ground’s argument that Mr. Willis lacks standing because he no longer drives for FedEx Ground is no stronger than in other cases already discussed, though it is more interesting because FedEx Ground fired Mr. Willis after he filed this suit and gave his deposition. See Wetzel v. Liberty Mut Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975). FedEx Ground also argues, as it has with respect to named plaintiffs from other states, that Mr. Willis can’t adequately represent FedEx Ground HD drivers, multiple work area contractors, or single work area contractors who want to expand their businesses; the putative class doesn’t want the remedy Mr. Willis seeks and has a strong interest in controlling the litigation’s outcome; Mr. Willis offers no trial plan; the class definition is unmanageable because it doesn’t define “full time driver;” and the declaratory claim is unsuitable for Rule 23(b)(2) certification because Mr. Willis’s primary objective is money damages. The court has considered and rejected each of those arguments already in this opinion.

The remaining class certification issues turn on whether Pennsylvania law allows the central issue of employee vs. independent contractor to be resolved without examining each individual driver.

In determining whether a relationship is one of employer-employee or independent contractor, “... the basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged. The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.”

Urbano v. STAT Courier, Inc., 878 A.2d 58, 61 (Pa.Super.Ct.2005) (quoting Valles v. Albert Einstein Med. Ctr., 758 A.2d 1238, 1244 (Pa.Super.Ct.2000)). Pennsylvania courts consider (1) the control of the manner that work is to be done; (2) responsibility for result only; (3) terms of the parties’ agreement; (4) the nature of the work or occupation; (5) skill required; (6) whether engaged in a distinct occupation or business; (7) which party supplies the tools; (8) whether payment is by the time or by the job; (9) whether the work is part of the regular business of the employer; and (10) the right to terminate the employment at any time. Morin v. Brassington, 871 A.2d 844, 850 (Pa.Super.Ct.2005) (citing Lynch v. WCAB, 123 Pa.Cmwlth. 299 , 554 A.2d 159, 160 (1989)); Shay v. Flight C Helicopter Servs., Inc., 822 A.2d 1, 13-14 (Pa.Super.Ct.2003). The right to control the manner in which another’s work is to be accomplished is paramount. Morin v. Brassington, 871 A.2d at 850 .

With respect to these factors, whether and to what extent FedEx Ground has the right of control can be resolved by reference to the Operating Agreement and FedEx Ground policies. The extent to which FedEx Ground exercised its right to control with respect to a given employee or terminal won’t change the analysis: while one might become an employer by exercising more authority than is contractually granted, see, e.g., Urbano v. STAT Courier, 878 A.2d 58 , neither side has cited a Pennsylvania case in which forbearance of the exercise of contractually granted power to control affects the analysis. See JFC Temps, Inc. v. Workmen’s Comp. Appeal Bd. (Lindsay), 545 Pa.149, 680 A.2d 862, 864 (1996).

That common question—whether the Operating Agreement and FedEx Ground policies based on the Operating Agreement vest in FedEx Ground such right to control the manner of the drivers’ performance of their work that FedEx Ground is the drivers’ em *471 ployer—predominates over all other issues in the sense that it is the keystone to each of Mr. Willis’s claims. Whether the Wage Payment and Collection Law allowed the challenged deductions from the drivers’ pay turns on whether the drivers are employees. If the Operating Agreement properly classifies the drivers as independent contractors, the rescission claim must fail.

For these reasons, the court grants Mr. Willis’s motion to certify a class of drivers dispatched from Pennsylvania terminals.

New Hampshire

The New Hampshire plaintiffs assert claims under New Hampshire law for failure to pay overtime, N.H.Rev.Stat. Ann. § 279:21 VIII, and to provide meal breaks, N.H.RevStat. Ann. § 275:30-a, unauthorized deductions from compensation, N.H.Rev. Stat. Ann. § 275:48, failure to reimburse expenses, N.H.Rev.Stat. Ann. § 275:57, violation of the Unfair Business Practices Act, N.H.Rev.Stat. Ann. ch. 358-A, et seq., rescission, failure to reimburse employee expenses, and also seek declaratory relief. They seek certification of the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 27, 2002, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New Hampshire.

For the most part, the New Hampshire plaintiffs and FedEx Ground raise the same arguments that already have been address in the Kansas certification opinion and this opinion. The New Hampshire plaintiffs point to 80 drivers in New Hampshire as proof of numerosity. FedEx Ground raises arguments already considered concerning the putative class’s minority position within the workforce as far as remedy and the general unsuitability of these claims for class treatment. The parties disagree as to the controlling state law.

The New Hampshire plaintiffs contend the drivers are employees. If this is so, they argue, they are entitled to unpaid compensation, breaks, standard deductions, and unpaid business expenses, including business expenses such as truck payments, vehicle insurance, vehicle maintenance, deductions for workers’ compensation insurance, and any wages withheld other than what New Hampshire statutes allow.

FedEx Ground first argues that New Hampshire law effectively precludes class certification of these claims. N.H.Rev. Stat. Ann. § 275:53 provides that actions asserting claims such as the New Hampshire plaintiffs’ statutory claims may only be brought “by any one or more employees for and in behalf of himself or themselves, or such employee or employees may designate an agent or representative to maintain such action.” Given that provision, FedEx Ground reasons, only the person claiming employee status or someone that person has designated has standing to assert claims.

FedEx Ground cites Trezvant v. Fidelity Employer Servs. Corp., 434 F.Supp.2d 40 (D.Mass.2006), in support of its reading of N.H.RevStat. Ann. § 275:53, but that case contains no holding of help to FedEx Ground. The Trezvant court acknowledged the possible construction that FedEx Ground advances here—“The New Hampshire statute may contain such an express limitation. The wording of the statute and the lack of class action employee wage lawsuits in New Hampshire leaves a significant degree of doubt as to whether class actions are allowed,” 434 F.Supp.2d at 57—but went on to hold that the Trezvant plaintiffs’ Fair Labor Standards Act claim subsumed their state law claim. N.H.Rev.Stat. Ann. § 279:21 specifically excludes overtime claims covered by the FLSA. 434 F.Supp.2d at 57-58 .

This court doesn’t read N.H.Rev.Stat. Ann. § 275:53 to prohibit class actions. As this court reads the statute, § 275:53 broadens the class of persons who may bring specified suits to include designated agents or representatives. FedEx Ground hasn’t persuaded the court that the statute limits standing rather than broadening it.

*472 For purposes of the statutory claims, an “employee” is defined as:

... every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in Rev. Stat. Ann. 281-A:2, VI(b)(2), (3), or (4), or Rev. Stat. Ann. VII(b), ... or any person who meets all of the following criteria:

(a) The person possesses or has applied for a federal employer identification number ____

(b) The person has control and discretion over the means and manner of performance of the work in [achieving] the result of the work____

(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. ...

(e) The person holds himself or herself out to be in business for himself or herself. ...

(1) The person is not required to work exclusively for the employer.

N.H.Rev.Stat. Ann. § 275:42(II). With respect to their common law claims, the New Hampshire plaintiffs say their status turns on whether FedEx Ground controls or has the right to control the manner of the task they are to perform, citing Harper v. Healthsource New Hampshire, Inc., 140 N.H. 770 , 674 A.2d 962, 966 (1996), and Boissonnault v. Bristol Federated Church, 138 N.H. 476 , 642 A.2d 328, 329 (1994).

FedEx Ground reads New Hampshire law differently. FedEx Ground says New Hampshire courts look beyond control to the “totality of the circumstances” of the alleged employment in deciding whether a person is an independent contractor. FedEx Ground cites four cases for its position: Boissonnault v. Bristol Federated Church, 138 N.H. 476 , 642 A.2d 328, 329 (1994) (which the plaintiffs also cite); Royal Burnham v. Downing, 125 N.H. 293 , 480 A.2d 128, 130 (1984); Merchants Ins. Group v. Warchol, 132 N.H. 23 , 560 A.2d 1162, 1165 (1989); and Walker v. Charles DiPrizio & Sons, Inc., 115 N.H. 652 , 348 A.2d 355 (1975).

The court doesn’t read New Hampshire law as FedEx Ground does. Until 1970, New Hampshire looked only to the purported employer’s right to control, so one without a right to control the alleged employee could never be an employer. Boissonnault v. Bristol Federated Church, 642 A.2d at 329 . In 1970, the New Hampshire Supreme Court broadened its test to one examining the totality of the circumstances and held that a regular employee who was sent on a specific errand, was using his own car with the employer’s knowledge and permission, and was acting within the scope of his employment when he collided with the plaintiffs, was an “employee” for purposes of tort liability, even though the employer may not have had the “right to control the manner and means (the details, in other words) of operating the car.” Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243 , 265 A.2d 15, 17 (1970).

The court parts ways with FedEx Ground’s reading of the law at the point FedEx Ground implicitly concludes that one with right to control the manner and means of the task’s execution can shed its employer status under New Hampshire law if it can marshal enough of the factors from the Restatement (Second) of Agency § 220. None of the New Hampshire cases that FedEx Ground cites found an independent contractor relationship notwithstanding the hiring party’s right to control the method and means of the other’s work. This is consistent with the New Hampshire court’s understanding that the Hunter court adopted a “more expansive view of the relationship and its determination,” Boissonnault v. Bristol Federated Church, 642 A.2d at 329 .

Individual analysis of each driver might well be required if the New Hampshire plaintiffs claimed the other Restatement (Second) of Agency § 220 factors made them employees despite a lack of FedEx Ground control over the manner and means by which drivers are to complete their work. But that is not this case. The New Hampshire plaintiffs contend that the Operating Agreement vests such right to control in FedEx Ground as to make the drivers *473 employees. The individual Restatement factors that FedEx Ground analyzes in its response appear quite unlikely to affect that contention.

Both the statutory and common law claims may be resolved solely by reference to FedEx Ground policies and the Operating Agreement. The court will grant the New Hampshire plaintiffs’ motion for class certification.

South Carolina

The South Carolina plaintiffs seek certification of classes under Rule 23(b)(2) and 23(b)(3) for statutory claims for unlawful wage deductions under South Carolina Labor Law, S.C.Code Ann. § 41-10-40, common law claims for rescission and unjust enrichment, and a claim for declaratory relief. S.C.Code Ann. § 15-53-20. They seek certification of the following class:

All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 6, 2002, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state

This text is long and has been trimmed here. Open the source document for the complete record.