A recorded message to recruit a driver is now the subject of a federal lawsuit

  Photo: Shutterstock

Photo: Shutterstock

Getting a "frustrating, obnoxious (and) annoying" robocall, from a recruiter trying to spur the listener's interest in taking a job as a truck driver, is now a federal case.

(And the lawsuit at the heart of the litigation uses those three adjectives).

A decision handed down in U.S. District Court for the Western District of Virginia last month will allow a case brought by a Charlottesville resident against truckload carrier U.S. Xpress, which directed recruitment robocalls to plaintiff Christopher Morgan, to continue. Not only that, but the decision by U.S. District Court Judge Norman Moon opens the door for the suit to become a class action--though actual certification of it as a class action still has not occurred--so it can bring in many more truck drivers or potential truck drivers aggrieved by what most people just view as the minutiae of life, not necessarily an event that ends up in court. But this one has.

The original lawsuit was filed December 11. Although the lawsuit gives no indication who plaintiff Morgan is, Ryan Donovan, an attorney with plaintiff’s attorney HFDR, said he is an independent owner/operator living in Charlottesville.

The plaintiffs are also listed as "on behalf of a class of all persons and entities similarly situated." The law firm that filed the original suit, Bailey & Glasser of Charleston, West Virginia, is involved in several "mass tort" lawsuits for a variety of grievances: customers of the Dish Network, Volkswagen owners, a pistol manufacturer. However, the attorney at the law firm whose name is on the original suit, Michael Hissam, is now part of a firm established just this month, HFDR, and he brought the case with him.

In the original suit, Morgan and the other unidentified class action plaintiffs say U.S. Xpress "sent" them prerecorded calls without consent. The calls directed the recipient of the call to "press 1" and be connected to a U.S. Xpress recruiter.

"Because the call to Mr. Morgan was transmitted using technology capable of generating at least hundreds of similar calls per day, Mr. Morgan sues on behalf of a proposed nationwide class of persons who received illegal telephone calls from U.S. Xpress," the lawsuit said.

The lawsuit cites the 1991 Telephone Consumer Protection Act as the basis for the suit. The lawsuit says the TCPA prohibits calls by "autodialers" to cell phone numbers unless the person receiving the call has given permission and prohibits the use of "an artificial or prerecorded voice" to call a residential telephone line, again, unless permission is granted.

Morgan received his first call from U.S. Xpress on August 18, 2017. He didn't press 1. But he then recieved calls on September 6, September 22 and October 3, according to the lawsuit.

Given that virtually all Americans have received these calls at one time or another, the list of negative consequences the suit says resulted from the call might be viewed as excessively draconian. "Plaintiff and the other call recipients were harmed by these calls," the lawsuit says. "They were temporarily deprived of legitimate use of their phones because the phone line was tied up during the calls and their privacy was improperly invaded. Moreover, these calls injured Plaintiff and the other call recipients because they were frustrating, obnoxious, annoying, were a nuisance and disturbed the solitude of Plaintiff and the class."

Beyond the suit, what's notable is that such telemarketing or robocalls--whatever you want to call them--are being utilized by carriers in the battle to recruit drivers.

Gordon Klemp, the president of the National Transportation Institute which conducts research on driver recruitment and retention, said he was aware that robocalls have been used by recruiters. "I am not aware of any that use them as a first contact with a driver," Klemp said in an email to FreightWaves. "I have seen them used as a follow up tool with drivers who they have already had personal contact with a couple of times but have not taken the next step and have dropped into the longshot category. The recruiters I have discussed it with indicate it is a way to generate 'net positive' results from a list of low probability candidates."

U.S. Xpress filed a motion to have the case dismissed on two separate grounds. In his decision, Judge Moon ruled in favor of U.S. Xpress on its motion to dismiss the plaintiff's claim that U.S. Xpress' calls to Morgan's cell phone violated not only the prohibitions against such calls, but concurrently constituted an illegal call to a residential phone line. 

(If at this point you're wondering why you continue to get automated robocalls about anything without having granted explicit permission despite the possibility the calls may be breaking the law, you're not alone). 

The logic laid out by Judge Moon is a complicated mix discussing the definitions of residential telephone lines versus cell phones, and whether a cell phone used in the home becomes in essence a residential line; that's just one strand of the tangled weave.

Donovan said that what the judge’s action means for now is that the legal question still alive in the suit is whether the call to a cell phone violated TCPA. But the question of whether it concurrently violated the ban on residential lines, which would have required the court to find that Morgan's cell phone was also a residential line, will not be part of the case, though Donovan suggested lawyers may try to have that reinstated.  

U.S. Xpress also sought dismissal of efforts to make the case a class action. It's significant because damages from the "injuries" suffered by one plaintiff--in this case, Morgan--have little value for a lawyer to pursue. Put a bunch of truck driver recruitment targets together, and it could be a substantial class action.

After a lengthy discussion of legal precedents that included the Bristol Myers Squibb decision handed down by the Supreme Court last year--considered an important ruling in the question of jurisdiction in a class action case--Judge Moon ultimately rejected U.S. Xpress' argument that the case should not be allowed to proceed as a class action. That opens the doors to a wider group of plaintiffs. But the Moon decision does not yet certify the case as a class action.  

Donovan noted that additional individual plaintiffs are not necessary for a class action to proceed, that one individual as plaintiff—Morgan—is enough as a "named" plantiff.

An attorney for U.S. Xpress said the company does not comment on pending litigation.