18. In Cause No. 3:05-CV-668 [South Carolina], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 578] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’claims for unlawful wage deductions, S.C. CODE ANN. § 41-10-40, rescission and unjust enrichment, and declaratory 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 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 of South Carolina.


A previous post noted developments following the October 15 order in the FedEx employment litigation. That order granted the Kansas and ERISA plaintiffs’ motion for class certification. Because of the similarities among the claims, the court instructed all parties that had filed class certification briefs to file a five-page supplemental stating how their position on class certification differs from the positions addressed in that order.

In this March 25, 2008 order, the district court addressed the motions for the following states as indicated in this excerpt:

For the reasons that follow, the court grants motions for class certifications in cases involving drivers from Tennessee (see page 10 of this opinion), Arkansas (page 24), Kentucky (page 30), Texas (page 39), Wisconsin (page 44), Alabama (page 48), New York (page 53), New Jersey (with a modification of the class definition (page 69)), Maryland (page 77), Minnesota (page 87), Pennsylvania (page93), New Hampshire (page 97), South Carolina (page 102), Oregon (page 110), Indiana (page 119), West Virginia (page 129), Florida (page 149), and Rhode Island (page 156). 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 63).

The court denies motions for class certifications in cases involved drivers from Montana (page 17), Mississippi (page 20), Massachusetts (page 57), Michigan (page 83), Missouri (page 106), South Dakota (page 115), Iowa (page 125), Virginia (page 136), and Illinois (page 142).

More class certifications in this litigation are expected and will be noted as the rulings are handed down.

As noted in my prior post, employee status is of critical importance in evaluating ERISA and insurance obligations. The FedEx offers one of the more notorious examples, but by no means the only one. These issues are inherently factual and cannot be resolved by the stroke of an employment lawyer’s pen.

Thanks to Palmer Freeman, Esq., of Whetstone Myers Perkins & Young, Columbia, South Carolina for noting this decision and providing me with a copy of the order.