SALT LAKE CITY (Legal Newsline) - The nation’s largest refrigerated trucking company, arguing that a federal court’s recent order certifying a nationwide class of more than 14,000 truck drivers has left “unresolved several issues,” now is turning to the Utah Supreme Court for direction.

C.R. England Inc., along with defendants Opportunity Leasing Inc. and Horizon Truck Sales and Leasing LLC, filed a motion to certify questions to the state’s high court March 27.

C.R. England, which is headquartered in Salt Lake City, argues in its motion -- filed in the U.S. District Court for the District of Utah, Central Division -- that there are issues relating to provisions in the Utah Consumer Sales Practice Act, or UCSPA, that impact not only the plaintiffs’ UCSPA claim but also their claims under the Utah Business Opportunity Disclosure Act, or UBODA, and the Utah Truth in Advertising Act, or UTIAA.

The company asks that the federal court request certification of the following four questions to the Utah Supreme Court:

- As a matter of state law, do Utah Code and the UCSPA mean that in a class action relating to a transaction governed by the UCSPA, class members cannot seek statutory or actual damages for violations of the UBODA or the UTIAA?

- As a matter of state law, do Utah Code and the UCSPA mean that in a class action relating to a transaction governed by the UCSPA, the class notice as to claims for violations of the UBODA and the UTIAA must advise class members that the court will exclude them from the class unless they request inclusion by a specific date?

- Under the UBODA, can information unrelated to selling or marketing services to third parties provided by a business to an independent contractor in order to help the independent contractor perform services for that same business qualify as “a sales program or marketing program” within the meaning of Utah Code?

- Under the UBODA, can payments from an independent contractor to a business for the purchase of goods or services pursuant to written agreements be considered “initial required consideration,” when the written agreements specifically state that the independent contractor need not purchase the goods or services as a condition for earning income in the alleged assisted marketing plan?

C.R. England argues in its motion that certification is required because the questions are “indisputably uncertain” in that no Utah court has ever addressed them and that the answers are “very significant” to its case and future cases turning on Utah state law.

The U.S. Court of Appeals for the Tenth Circuit recently denied the company’s Rule 23(f) petition for permission to appeal the District of Utah’s Jan. 31 class certification order.

A three-judge panel of the Tenth Circuit, in its March 27 order, noted that the decision whether to grant such a petition is “purely discretionary.”

“Defendants-Petitioners have not established that the district court’s class certification decision was based upon manifest error, nor have they established that permissive interlocutory review is necessary to address ‘an unresolved issue of law relating to class actions that is likely to evade end-of-case review’ or to avoid a ‘death knell’ situation,” the Tenth Circuit concluded.

The class action lawsuit, originally filed in the U.S. District Court for the Northern District of California in May 2011 but later transferred to the District of Utah in April 2012, alleges C.R. England and Horizon Truck engaged in a scheme to defraud class members out of money and labor via the lease driver program.

Among other claims, the class action complaint alleges the companies used false income statements and failed to disclose the high failure/turnover rate to secure class members’ agreement to become lease drivers.

C.R. England also allegedly deceptively sought lease drivers by baiting the general public with advertisements for “guaranteed” employee company driver positions and then allegedly used fraudulent and manipulative techniques to switch candidates into the lease driver program.

District Judge Robert J. Shelby, in his Jan. 31 order, granted class certification on certain claims.

The judge said “considering the relevant factors,” a class action is “superior” to other methods of adjudication.

“The court finds that concentrating the claims of a nationwide class of drivers in a single forum is desirable, especially where Defendants are located in the forum state,” he wrote. “Given the analysis above and the proposed trial plan, the court finds the benefits of the class action outweigh any difficulties that may be encountered in the course of this litigation.”

Shelby noted the class includes individuals of “insubstantial means.”

“Here, the cost and recovery of a single case would make it unlikely that thousands of individuals purportedly harmed would seek recovery outside a class action context,” he explained. “On the claims and record presented, a class action not only promotes efficiency but also promotes the public interest, insofar as the class action enables both parties to efficiently test their respective claims and defenses, as well as the reach of consumer protection laws in the forum.”

T.J. England, C.R. England’s chief legal officer, told the Commercial Carrier Journal in February that he was “deeply disappointed” by Shelby’s certification ruling.

He told CCJ that the company intended to “immediately appeal” the decision and fight the plaintiffs’ “unfounded claims as long as is necessary.”

San Rafael, Calif., attorney Robert S. Boulter; Milwaukee-based firm Kravit Hovel & Krawczyk SC; and Salt Lake City-based firm Anderson & Karrenberg PC are representing the plaintiffs.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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