The Driver Provider Lawsuit
September 24, 2024
Dear Class Members:
Good news! The Court granted Final Approval of the Settlement Agreement on September 23, 2024. We expect Individual Settlement Amounts to be paid by the Settlement Administrator on or shortly after October 25, 2024.
It is important to update the Settlement Administrator with any changes to your contact information. The Settlement Administrator (Atticus) may be reached at DriverProviderSettlement@atticusadmin.com or 1-800-305-9833.
Please remember that this this is only a settlement for unpaid overtime and minimum wages for FLSA Collective Members under the Fair Labor Standards Act and unpaid minimum wages under the Arizona Minimum Wage Act for Rule 23 Class Members. Plaintiffs intend to appeal the dismissal of unpaid overtime claims under Arizona law for Rule 23 Class Members, the dismissal of civil penalty claims under Arizona law for Rule 23 Class Members, and the denial of class certification for unpaid straight time wages (for pre- and post-trip work) for Rule 23 Class Members. The appeal process typically, on average, takes around 18 months but can vary depending on the case load at the Court of Appeals.
Any updates will continue to be posted on this website.
We have worked very hard for nearly five years and are pleased that recoveries of unpaid overtime and unpaid minimum wages are finally on the way!
July 24, 2024
NOTICE OF THE SETTLEMENT AND CLAIM FORMS HAVE BEEN ISSUED
Notice of the Settlement was issued to all FLSA and Rule 23 Class Members on July 24, 2024 via U.S. Mail and e-mail.
If you are a Rule 23 Class Member or both an FLSA Collective Member and a Rule 23 Class Member, you MUST complete and return a Claim Form to the Settlement Administrator to obtain your full Individual Settlement Award by August 23, 2024.
To submit your Claim Form, you can do any of the following:
1. You can submit the Claim Form online on or before August 23, 2024 via the Settlement Administrator’s website at: www.DriverProviderSettlement.com. You will need your Claimant ID Number, which is listed on your Settlement Notice.
2. You can email a completed Claim Form to the Settlement Administrator at DriverProviderSettlement@atticusadmin.com on or before August 23, 2024.
3. You can mail your Claim Form to the Settlement Administrator at the following address:
Driver Provider Settlement, c/o Atticus Administration
PO Box 64053
St. Paul, MN 55164
If you mail your Claim Form, it must be postmarked on or before August 23, 2024.
4. You can also fax your claim form on or before August 23, 2024 to 1.888.326.6411.
A copy of the Settlement Notice is available here.
Claim Forms may be downloaded and submitted via the Settlement Administrator’s website at www.DriverProviderSettlement.com. You will need your Claimant ID Number, which is listed on your Settlement Notice.
If any of your contact information has changed, please make sure that the Settlement Administrator has your updated address, email address, and/or phone number by submitting a Change of Information Form at www.DriverProviderSettlement.com.
If you have any questions regarding the Settlement Notice or how to submit a claim form, please contact the Settlement Administrator at 1-800-305-9833 or our office at 602-240-6900.
June 23, 2024
In the process of allocating each class member’s settlement amount, the parties determined that the settlement class may include additional Drivers whose trip and pay records had not been previously produced. The parties are now working through those records to determine whether any of these additional Drivers are entitled to participate in the settlement and to determine those damage amounts. Accordingly, the notice of settlement has been temporarily deferred. The parties believe the notice of settlement is likely to be issued within the next 30 days. Please check back for further updates.
June 11, 2024
The Court granted preliminary approval of the Settlement Agreement on June 10, 2024.
Notice to class members is scheduled to be issued by the Settlement Administrator on June 24th via email, U.S. Mail, and text message. Each Driver’s settlement amount will be listed on the notice.
For Drivers to receive their Individual Settlement Amount, they must submit a signed claim form to the Settlement Administrator by July 24th. The claim form will be included in the Notice packet to be sent by the Settlement Administrator.
A final fairness hearing is scheduled for August 27, 2024 at 10:00 a.m. at the U.S. District Courthouse located at 401 W. Washington St., Phoenix, AZ 85003 before the Honorable Susan M. Brnovich. The hearing date may change, so if you are planning to attend, please check this website to confirm the date and time.
A copy of the Settlement Agreement is available here.
A copy of the Court’s Order granting preliminary approval of the Settlement Agreement is available here.
APRIL 5, 2024
A PARTIAL SETTLEMENT HAS BEEN REACHED
We have good news! We are pleased to report that a settlement has been reached for the claims that were scheduled to go to trial. The parties are working on a formal settlement agreement but have agreed to the principal terms of the settlement.
We have provided notice of the settlement to the Court, which has vacated the trial that was scheduled to begin April 16, 2024.
The settlement covers the FLSA Claims for overtime and minimum wages and the class action claims for unpaid minimum wages under the Arizona Minimum Wage Act. The settlement also covers the claims of certain Drivers whose FLSA claims had been excluded as untimely by the Court. As part of the settlement, Plaintiffs’ attorneys’ fees and costs will be paid directly by the Defendants—no portion of the employees’ settlement recoveries will be used to pay the attorneys’ fees.
The settlement does not resolve the claims that were previously dismissed, including claims for unpaid overtime and unpaid straight time under the Arizona Wage Act, or for civil penalties under the Arizona Minimum Wage Act for failure to maintain required records of hours worked. Plaintiffs intend to appeal those rulings at the Ninth Circuit Court of Appeals.
There are several steps in the settlement approval process. Once a formal settlement agreement is entered into by the parties, the next step is a requirement that Plaintiffs seek preliminary settlement approval by the Court. If the Court grants preliminary approval, then a notice will be issued to all class members explaining the terms of the settlement. After conclusion of a notice period, typically 45 days, Plaintiffs will seek final settlement approval. Upon granting of final settlement approval by the Court, the settlement amount will be paid by the Defendants. Thereafter, settlement amounts will be distributed to each class member through a Settlement Administrator. The required steps in the settlement approval and distribution process will take several months. We estimate that settlement distribution will likely not take place before September 2024.
It is imperative that you notify us of any change in address that you may have in the interim so we have your current address for purposes of the notice you will receive.
All settlement amounts will be determined using the same formula based on each employee’s estimated hours worked. We do not have each class member’s individual settlement allocation at this point, but that information will be provided in relation to the notice of the settlement terms.
THANK YOU FOR YOUR PATIENCE AND CONTINUED TRUST. WE HAVE WORKED HARD TO BRING YOU THE BEST RESULTS POSSIBLE!
December 7, 2023
On December 7, 2023, Plaintiffs mailed and emailed a second round of FLSA notice and “Consent to Sue Forms” to 500 Drivers who did not receive the FLSA notice in 2021. Notice has now been issued to all current and former employees of The Driver Provider who performed chauffeur services at any time from December 6, 2016 to the present.
If you performed chauffeur services for The Driver Provider at any time from December 6, 2016 to the present, you may qualify to participate in the collective action and recover unpaid overtime and minimum wages. To join the collective action, YOU MUST SIGN and SUBMIT a “Consent to Sue Form” to Plaintiffs’ Counsel, which is available HERE. The form must be postmarked or returned via email by February 5, 2024.
You may mail a completed form to the address listed at the bottom of the “Consent to Sue Form” or email a signed, scanned copy to Plaintiffs’ Counsel at: driverproviderlawsuit@martinbonnett.com
If you have any questions, please contact Plaintiffs’ Counsel at 602-240-6900 or via email at driverproviderlawsuit@martinbonnett.com
Download the Consent to Sue Form
Update November 21, 2023
Court Finds The Driver Provider is Required to Pay Drivers Overtime and Minimum Wage Damages, Reinstates the FLSA Collective, Orders Additional Drivers May Join the Case, and Finds Jason & Kendra Kaplan, and Barry Gross Personally Liable
On November 9, 2023, the Court issued its Summary Judgment Order (available here). The Court found that the overtime exemptions under the Fair Labor Standards Act (“FLSA”) that The Driver Provider has been asserting as a basis to deny Drivers overtime do not apply and, therefore, Defendants are required to pay Drivers overtime premiums for all hours worked over 40 in a workweek. The Court also found Defendants in violation of the FLSA and Arizona state laws for failure to meet minimum wages and for failure to maintain required records of hours worked.
While certain matters have been resolved through the Court’s order, there are still unresolved issues that will proceed to trial. The Court found that questions of fact remain (which must be decided by the jury) with respect to the amount of damages owed to Drivers, whether Defendants’ violations were willful, whether Plaintiffs are entitled to double damages under the FLSA, the periods during which Jason and Kendra Kaplan, along with Barry Gross, were personally liable as employers to Plaintiffs (in addition to The Driver Provider’s liability, which has been established). The Court also found that Plaintiffs may not recover treble damages for the Arizona Wage Act claim.
We are actively preparing for trial on these issues.
In addition, in light of the Court’s finding that Defendants’ claimed FLSA exemptions do not apply, the Court granted Plaintiffs’ Motion for Reconsideration and reinstated the FLSA Collective. The Court has ordered a new round of FLSA Notice to be issued since there are hundreds of Drivers who started employment at the Driver Provider after the first FLSA notice was issued in 2021.
Once Plaintiffs receive all contact information, another FLSA Notice will be issued via email and U.S. Mail to employees hired after the issuance of the May 2021 notice. The notice will include a consent to sue form that must be returned to Plaintiffs’ Counsel (within the timeframe stated) for any additional Driver to join the case and assert their claims for unpaid overtime and minimum wages under the FLSA.
Given the need for additional notice and for Drivers to return consent to sue forms, the January trial has been reset to April and May 2024.
Trial days are as follows: April 16 to 19, 23 to 25, and April 30 to May 2, 2024. Drivers are encouraged to attend.
The Court has not yet resolved Plaintiffs’ Motion for Class Certification of their claims under the Arizona Wage Act, which seeks damages for unpaid pre- and post-trip work for Arizona Drivers. We expect a decision on that motion soon.
We will continue to post updates on this website. If you have any questions, please contact our office via email at driverproviderlawsuit@martinbonnett.com or at 602-240-6900.
Update - August 17, 2023
Beginning in May, Plaintiffs moved for summary judgment (judgment as a matter of law without a trial over factual disputes) on a number of the central issues in the case. The Defendants filed motions for summary judgment as well. As of July 17, 2023, summary judgment motions were fully briefed and pending before the Court.
The current summary judgment motion asks the Court to in the Drivers’ favor on the following issues:
1. That Drivers are not exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”) (addressing Defendants’ asserted defenses that they are not required to pay Drivers overtime. Defendants claim that an emption from overtime applies because they are a “taxicab” business under the Taxicab Exemption and because they operate “retail or service establishments” that pay bona-fide commissions that meet certain pay requirements. Plaintiffs have asserted that they are not entitled to either overtime exemption.
2. That the Driver Provider violated the FLSA’s overtime and minimum wage requirements. These claims cover all Drivers in Arizona, Wyoming, and Utah who filed timely consent to sue forms in 2021. However, Plaintiffs have also asked the Court to allow a second round of FLSA notice and opportunity for additional Drivers to join these claims.
3. That the Driver Provider violated the Arizona Wage Act by not paying Drivers for their pre- and post-trip work. These claims cover all Arizona Drivers from December 6, 2016 to the present, which is approximately 500 Drivers.
4. That the Driver Provider violated the Arizona Minimum Wage Act by not paying Drivers at least the minimum wage for all hours worked. These claims cover all Arizona Drivers from December 6, 2016 to the present, which is approximately 500 Drivers.
5. That the individual Defendants Jason Kaplan, Kendra Kaplan, and Barry Gross are personally liable for Defendants’ federal and state law violations.
6. That time in between scheduled trips is compensable work time.
7. That Defendants’ violations were willful under federal and state law so that the statute of limitations should be three years, not two.
8. That Defendants do not have a good faith defense under federal or state law so that the court should award Drivers liquidated damages (i.e. double the damages).
Documents Filed with the Court:
Plaintiffs’ Motion for Partial Summary Judgment is available here.
Plaintiffs’ Statement of Facts is available here.
Plaintiffs’ Reply in Support of their Motion for Summary Judgment is available here.
Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment is available here.
Plaintiffs’ Controverting Statement of Facts is available here.
The Court previously ruled that Plaintiffs could not bring overtime claims under Arizona law – finding those claims preempted by the federal law. However, the overtime claims for all members of the FLSA class remain in the case. In addition, Rule 23 Class Members (Arizona Drivers) have claims for unpaid straight time (for unpaid pre- and post-trip work) as well as claims for unpaid minimum wages. Plaintiffs believe the Court was incorrect and asked for the right to take an immediate appeal but were turned down. Accordingly, any appeal has to come at the end of the case.
In addition, the Court has not yet resolved Plaintiffs’ motion seeking a supplemental FLSA notice and opt-in period for Drivers who began working at The Driver Provider after the issuance of the first FLSA Notice in April 2021. If that motion is granted, additional Drivers may be able to join the case and assert claims for unpaid overtime under the FLSA. The federal law allows us to compute overtime claims under the Arizona minimum wage laws – much higher than the federal minimum wage.
The Court has set dates for a 10-day jury trial to begin January 16, 2024, to resolve any of the issues that are not resolved at the summary judgment phase of the case.
We will continue to post updates on the case on this website, so please check back periodically.
UPDATE - February 15, 2023
On January 30, 2023 the Court certified Plaintiffs’ claims for violation of the Arizona Minimum Wage Act as a class action. The claims are for unpaid minimum wages and recordkeeping violations. The class includes the following:
All current and former employees of The Driver Provider who performed chauffeur services in Arizona at any time from December 6, 2016 to the present. Excluded from the class are all owners, managers, supervisors, dispatchers, or other employees whose primary job responsibilities were not the provision of chauffeur services.
To date, Defendants have identified over 470 employees who meet the definition of the class. A notice regarding the certification of these claims will be issued to qualifying class members after the Court approves the form of notice.
In the meantime, Plaintiffs intend to seek class certification regarding their claims for unpaid straight time under the Arizona Wage Act for pre- and post-trip work time that Plaintiffs contend was not compensated. Plaintiffs are also asking the Court to reconsider its dismissal of the Plaintiffs’ overtime claims under Arizona law and will likewise seek class certification of those claims if the Court reinstates the state overtime claim.
For Drivers who were not able to join the federal overtime and minimum wage claims under the Fair Labor Standards Act because they were hired after the notice was issued in 2021, Plaintiffs requested that the Court approve a notice and permit those Drivers an opportunity to join the federal claims. The federal claims include Drivers who worked in Utah, Wyoming, and Arizona. The Court has not yet ruled on that request.
Fact discovery is complete. The case is now in the expert discovery phase, where each sides submits expert reports regarding issues in the case, including the calculation of damages.
The deadline for each side to submit motions asking the Court to resolve certain parts of the case based on the undisputed evidence is May 31, 2023.
Please make sure we have your updated contact information
If you worked for The Driver Provider during the relevant time period (December 6, 2016 to the present) and have relocated since your employment terminated, please provide us your updated contact information by sending an email to: driverproviderlawsuit@martinbonnett.com
Please include your name, telephone number, address, email address, approximate dates of employment, and employment location (Phoenix, Tucson, Utah, or Wyoming).
UPDATE - April 13, 2022
The case is currently in the discovery phase, where each side exchanges information and takes depositions. Plaintiffs have scheduled multiple depositions to take place over the next 90 days and are in the process of reviewing a substantial amount of evidence produced by Defendants. Plaintiffs intend to file motions seeking to certify the Arizona claims as a Class Action under Federal Rule of Civil Procedure 23. If Plaintiffs are successful on that motion, a notice will be issued to Drivers who would be members of that class. After the discovery phase of the case, Plaintiffs intend to seek summary judgment to resolve their claims as a matter of law. The deadline for summary judgment motions is in early 2023.
Additional case updates will be posted on this webpage.
ABOUT THE CASE
This class action and collective action lawsuit seeks to recover unpaid overtime and minimum wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) and Arizona wage statutes. Plaintiffs are chauffeur drivers who work or worked for The Driver Provider. Plaintiffs allege that throughout their employment, they regularly worked more than 40 hours per week but were not paid required overtime wages. Plaintiffs also allege they were not properly compensated for all work time that included, among other things, stocking vehicles with amenities, on call time, standby time, travel time, greeting passengers, pre- and post- trip inspections, and performing basic maintenance. The case is in early stages and these allegations have not been proven. The Driver Provider has denied all liability.
You can review the Complaint HERE
What remedies are sought?
Plaintiffs seek to recover unpaid overtime and minimum wages and equal amount of liquidated damages.
Who does the lawsuit cover?
The Complaint alleges that it covers any former or current employee of The Driver Provider who performed chauffeur services at any time from December 6, 2016 to the present.
Do I have to pay to join the case?
No. The attorneys are handling this case on a contingent basis and will only be paid if there is a settlement or final judgment against Defendants. If Plaintiffs succeed in obtaining a judgment, Plaintiffs will ask the court to order Defendants to pay the reasonable costs and attorneys’ fees.
Can An Employer like The Driver Provider take action against An Employee for joining A lawsuit?
The law prohibits retaliation for joining a lawsuit. If any employee suffers retaliation, the employer may be liable for double the injury caused by retaliation against an employee. Anyone electing to file a Consent to Sue who believes they have received threats or been retaliated against should notify the attorneys representing the Plaintiffs immediately.
What locations are covered by this lawsuit?
Past and present drivers who drove for The Driver Provider anywhere in the U.S., including Arizona, Utah, and Wyoming may be included in this lawsuit.
Who Are the Lawyers Representing the Plaintiffs in this Case?
Martin & Bonnett, PLLC is representing Plaintiffs.
Disclaimer. Plaintiffs’ allegations have not yet been proven and no liability of The Driver Provider has been established. Conditional certification of the FLSA Class has been granted, however the conditionally-certified FLSA class may exclude plaintiffs who have opted into the lawsuit by filing a Consent to Sue or who do not otherwise meet the definition of a class member. Plaintiffs have also sought class certification of state law wage claims for employees who worked in Arizona under Rule 23 of the Federal Rules of Civil Procedure. Class certification of the Arizona state claims has not yet been granted. Employees may be entitled to opt-out of any Rule 23 class if such certification is ultimately granted.