Owner-Operator Independent Drivers Ass'n v. Landstar System, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 3, 2008
No. 07-11866 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-01005-CV-J-25-MCR

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC.,
G.L. BREWER, on behalf of all others similarly situated,

Plaintiffs-Appellants-
Cross-Appellees,

GERALD E. EIDAM, JR., on behalf of all others similarly situated,

Plaintiff-Counter-Defendant-
Appellant-Cross-Appellee,

JAMES E. MICHAEL, on behalf of all others similarly situated,
ROBERT PENMAN, on behalf of all others similarly situated,
JAMES E. SCHMIDT, on behalf of all others similarly situated,

Plaintiffs-Appellants-
Cross-Appellees,

versus

LANDSTAR SYSTEM INC.,
LANDSTAR EXPRESS AMERICA, INC.,
LANDSTAR GEMINI, INC.,

Defendants-Appellees-
Cross-Appellants,
LANDSTAR INWAY, INC.,
LANDSTAR LIGON, INC., et. al.,

Defendants-Counter Claimants-
Appellees-Cross Appellants,

QUALCOMM Incorporated,

Defendant-Intervenor-
Appellee.
________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(September 3, 2008)

Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN,* Circuit
Judges.

ALARCÓN, Circuit Judge:

The Owner-Operator Independent Drivers Association, et al., (“Owner-

Operators”) represents truck owners and truck drivers who enter into lease

agreements to provide equipment and services to haul freight in interstate

commerce for Landstar System, Inc., et al., (“Landstar”) a motor carrier. The

Owner-Operators have appealed from the judgment entered against them rejecting

their claims that Landstar violated 49 C.F.R. § 376.12(d) and (h), provisions of the

*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

2
Truth-in-Leasing regulations, 49 C.F.R. § 376.1 et seq., by failing to disclose in

their lease agreements that banking fee charges would be deducted from

compensation paid to the truck owners and drivers, and by failing to provide

documentation regarding the computation of charge-back items including pricing

information submitted by Qualcomm Incorporated (“Qualcomm”). The Owner-

Operators also seek reversal of the District Court’s ruling that they are not entitled

to restitution or disgorgement.

We vacate the judgment because we conclude that the District Court erred in

finding that Landstar was not required to disclose banking fee charges and

document charge-back items. We also hold that the District Court erred in granting

an injunction sealing the pricing information Qualcomm provided to Landstar.

I

A

The District Court granted in part, and denied in part, the parties’ cross-

motions for summary judgment as to the issue of liability. The facts set forth in the

parties’ oppositions demonstrate that Landstar is a motor carrier that hauls freight

in interstate commerce under the authority of the United States Department of

Transportation (“DOT”). The individuals who drive trucks under the Landstar

name are represented in this case by the Owner-Operators who are independent

3
truck owners and truck drivers who lease their equipment and driving services to

Landstar. Landstar compensates the Owner-Operators by giving them a specific

percentage of the revenue on the hauled freight.

As a DOT-authorized motor carrier, Landstar is required to enter into written

leases with the Owner-Operators.1 As part of the written lease agreement, Landstar

charges the Owner-Operators fees. For example, the record shows that Landstar is

required to use “Powertrack” for military loads. Powertrack is an electronic billing

and payment system at U.S. Bank. U.S. Bank charges Landstar a payment

processing fee to use the Powertrack system. Landstar charges the Owner-

Operators for this fee, but nowhere in the lease is this specific banking charge

listed. Rather, the lease provides that the Owner-Operators’ compensation is

subject to adjustment due to fees owed to “third parties.” Lease, Appendix A, ¶

(a)(2).

Landstar also offers programs to the Owner-Operators so that they have the

opportunity to purchase products and services they need to run their businesses.

For example, Landstar’s programs include the “LCAPP Tire Program”2 under

1
See 49 C.F.R. § 376.11 (providing that “the authorized carrier may perform authorized
transportation in equipment it does not own only under the following conditions: (a) Lease.
There shall be a written lease granting the use of the equipment and meeting the requirements
contained in § 376.11 . . . .”).
2
LCAPP stands for “Landstar Contractors’ Advantage Purchasing Program.”

4
which the Owner-Operators can opt to purchase tires for their tractors or trailers

from Landstar. Landstar charges the Owner-Operators an administrative fee for

processing the purchase.

Landstar also offers the Owner-Operators an opportunity to purchase

Qualcomm’s services. Qualcomm, Landstar’s third-party vendor, has a written

agreement with Landstar under which it provides satellite communication and

equipment services to the Owner-Operators. Qualcomm negotiated the terms of its

agreements with Landstar. As part of those negotiations, Qualcomm required that

Landstar keep confidential the terms of its agreement with Qualcomm, including

pricing. Landstar charges a flat-fee to the Owner-Operators who opt to use

Qualcomm’s services, but Landstar does not disclose the amount it pays to

Qualcomm for the services.

The Owner-Operators may voluntarily purchase the LCAPP Tire Program

and Qualcomm’s services from Landstar through pre-compensation advances.

These advance and subsequent deductions from the revenue are referred to as

“charge-backs.” Landstar repays the advances when the Owner-Operators’

compensation is settled. Landstar settles with the Owner-Operators by providing

written descriptions of the revenue earned and the charge-backs on weekly

“settlement statements,” which the parties reference as a receipt similar to a “pay

5
slip.” The settlement statements list the amount the Owner-Operators paid for the

charge-backs. The settlement statements do not show how the charge-back items

were computed, how much Landstar marks-up the charge-back item, or how much

profit Landstar makes from the charge-backs.

B

The Owner-Operators brought a class action lawsuit against Landstar

alleging that the leases violate § 376.12(d)3 and (h) 4 of the Truth-in-Leasing

regulations because Landstar did not disclose reductions for fees, like Powertrack,

3
49 C.F.R. § 376.12(d) provides:
(d) Compensation to be specified. The amount to be paid by the
authorized carrier for equipment and driver's services shall be
clearly stated on the face of the lease or in an addendum which is
attached to the lease. Such lease or addendum shall be delivered to
the lessor prior to the commencement of any trip in the service of
the authorized carrier. An authorized representative of the lessor
may accept these documents. The amount to be paid may be
expressed as a percentage of gross revenue, a flat rate per mile, a
variable rate depending on the direction traveled or the type of
commodity transported, or by any other method of compensation
mutually agreed upon by the parties to the lease. The
compensation stated on the lease or in the attached addendum may
apply to equipment and driver's services either separately or as a
combined amount.
4
49 C.F.R. § 376.12(h) provides:
(h) Charge-back items. The lease shall clearly specify all items that
may be initially paid for by the authorized carrier, but ultimately
deducted from the lessor's compensation at the time of payment or
settlement, together with a recitation as to how the amount of each
item is to be computed. The lessor shall be afforded copies of
those documents which are necessary to determine the validity of
the charge.

6
before calculating the Owner-Operators’ compensation, and failed to disclose or

document mark-ups and profits made on charge-back items. In the complaint, the

Owner-Operators alleged that the leases (1) violate § 376.12(d) because it

“contained nothing regarding Landstar’s practice of reducing shipping revenues

before calculating [the Owner-Operators’] compensation,” and (2) violate §

376.12(h) because the lease “failed to clearly specify that charge-backs included

mark-ups for profits and fees and failed to disclose how the charge-backs were

computed.” Qualcomm filed a motion to intervene when it discovered that

Landstar intended to disclose Qualcomm’s confidential pricing information. The

District Court granted the motion.

After the complaint was filed, Landstar executed a new lease (the “New

Lease”), which purported to correct certain violations in the original lease (the

“Original Lease”). The Owner-Operators subsequently filed an amended

complaint. In the amended complaint, the Owner-Operators alleged that the New

Lease violated § 376.12(d) because, although the New Lease discloses “Landstar’s

practice of understating shipping revenues,” it “fails to provide the amount of the

reductions or the method by which they are implemented.” The Owner-Operators

also alleged that the New Lease violated § 376.12(h) because it “fails to disclose

how charge-back items are computed.”

7
 Pursuant to 49 U.S.C. § 14704(a)(2),5 the Owner-Operators sought damages

and equitable relief, including restitution, disgorgement of Landstar’s profits, and

injunctive relief.

Landstar moved to dismiss the complaint on the ground that the statute of

limitations had run. Landstar argued that the Owner-Operators’ claims were

governed by a two-year statute of limitations as opposed to the four-year statute

asserted by the Owner-Operators. On June 4, 2004, the District Court ruled in

favor of the Owner-Operators finding that the four-year statute of limitations

applied to the Owner-Operators’ claims.6

On August 30, 2005, the District Court certified the class as comprised of

“[a]ll owner-operators in the United States, who, after November 1, 1998, and

through the pendency of this proceeding, had or have leases with [Landstar] or

their authorized agents or business affiliates (‘Lessors’), that are subject to federal

regulations contained in Part 376, Code of Federal Regulations.” The District

Court stated, however, that “not all aspects of this case present common issues.

5
49 U.S.C. § 14704(a)(2) provides: “Damages for violations.--A carrier or broker
providing transportation or service subject to jurisdiction under chapter 135 is liable for damages
sustained by a person as a result of an act or omission of that carrier or broker in violation of this
part.”

6
“This ruling, along with the class certification determination, are the subjects of
Landstar’s cross-appeal.”

8
For example, if these common questions are resolved in favor of the putative class,

the issue of damages will be unique and subject to individualized proof.”

Landstar appealed the class certification order. This Court denied Landstar’s

petitioner for permission to appeal on October 18, 2005. Landstar, et al. v. Owner-

Operator Indep. Drivers Ass’n, et al., No. 05-90034 (11th Cir. Oct. 18, 2005).

C

On October 6, 2006, the District Court issued its ruling on the parties’ cross-

motions for partial summary judgment only on the issue of liability. First, the

District Court denied Landstar’s request to adopt a “substantial compliance”

standard of review regarding § 376.12(d), and instead used the “literal compliance”

standard.7 In applying the literal compliance standard, however, the District Court

ruled in favor of Landstar and determined that the leases complied with §

376.12(d). The District Court explained that there was no dispute that

“compensation is calculated as a percentage of ‘98% of Adjusted Gross Revenue

[(AGR)]’” and that the “leases set forth the specific deductions used to calculate

AGR.” The District Court found that “[t]his unambiguously falls within the

myriad of possible compensation methods [under § 376.12(d)] upon which the

parties may agree.”

7
On appeal, there is no dispute that the literal compliance standard is the appropriate
standard to use.

9
 As to the Owner-Operators’ § 376.12(h) claim, the District Court ruled in

favor of Landstar that Landstar was allowed to profit from charge-back items. The

District Court ruled in favor of the Owner-Operators, however, in finding that

Landstar violated § 376.12(h) because it did not provide the Owner-Operators with

“access to documents under the Original or New Leases which allow them to

ascertain whether they are being properly charged.”

D

On November 17, 2006, the parties filed a joint waiver of jury trial. In the

joint waiver, the parties agreed that “with the exception of the resolution of

Plaintiff’s Motion for Partial Reconsideration [of the order on Plaintiffs’ Motion

for Summary Judgment], the phase of this case regarding whether Defendants did,

or did not, violate the Federal Leasing Regulations has come to a conclusion.”

Subsequently, the District Court denied Plaintiff’s motion for partial

reconsideration. As to the issue of damages, the parties stipulated:

Defendants reserve their right to argue that in a civil
action, such as this, brought pursuant to 49 U.S.C. §
14704(a), equitable relief in the form of
disgorgement/restitution is not an available remedy, but,
if it is, Plaintiffs have not demonstrated a legal or factual
basis for the award of such relief. Plaintiffs have
reserved the right to seek damages pursuant to
14704(a)(2) in the event Defendants prevail in their
argument that equitable relief in the form of
disgorgement/restitution is not an available remedy.

10
 E

There were a number of additional pre-trial motions and orders.

Qualcomm, Landstar’s third-party vendor, moved for a preliminary injunction

asking the District Court to seal its confidential pricing information it provided to

Landstar. On January 5, 2007, the District Court granted Qualcomm’s motion,

explaining that Landstar’s charge-back for Qualcomm’s services was “not a

charge-back item as anticipated by Section 376.12(h) for which lessors must be

afforded copies of Qualcomm’s confidential pricing information to determine the

validity of the charge.”

On January 12, 2007, the District Court issued an order to define the scope

of the bench trial. The District Court first determined that a breach of contract

claim was not properly before the court because the Owner-Operators had not

brought that claim in their complaint. The District Court explained that the “only

claims remaining in this action are those regarding injunctive relief, damages

sustained, and attorney’s fees.”

In the order, the District Court also granted Landstar’s motion in limine

which prevented the Owner-Operators from presenting evidence regarding unjust

enrichment. The District Court rejected the Owner-Operators’ argument that 49

U.S.C. § 14704(a)(1)’s provision for “injunctive relief” included the equitable

11
remedies of restitution and disgorgement.8 The District Court explained its

conclusion as follows: “Congress has clearly and unambiguously provided for

remedies in the form of injunctive relief, damages sustained, and attorney’s fees –

not restitution and disgorgement.”

F

The three-day bench trial began on January 16, 2007. On the first day of the

bench trial, the District Court heard oral arguments concerning Landstar’s

argument in its trial brief that the class should be decertified as to damages. The

District Court ruled in favor of Landstar and decertified the class. The District

Court explained that “issues regarding damages sustained by individual members

of the Class would require unique and individualized proof.” The District Court’s

decertification ruling applied only to the issue of damages, not to the issue of

injunctive relief.

On January 17, 2007, at the close of the Owner-Operators’ case-in-chief,

Landstar presented an oral motion for judgment as a matter of law pursuant to Rule

8
49 U.S.C. § 14704(a)(1) provides:
Enforcement of order.--A person injured because a carrier or
broker providing transportation or service subject to jurisdiction
under chapter 135 does not obey an order of the Secretary or the
Board, as applicable, under this part, except an order for the
payment of money, may bring a civil action to enforce that order
under this subsection. A person may bring a civil action for
injunctive relief for violations of sections 14102 and 14103.

12
52 of the Federal Rules of Civil Procedure.9 The District Court granted Landstar’s

motion as it related to damages, but denied the motion as it related to injunctive

relief. The District Court explained that it would set forth its judgment concerning

damages in a written order following the trial. Landstar renewed the motion on the

issue of injunctive relief at the close of its case. The District Court took Landstar’s

renewed motion under advisement.

On March 29, 2007, the District Court entered an order setting forth its

findings of fact and conclusions of law on the issue of damages and injunctive

relief. First, as to damages, the District Court stated, in relevant part, the following

findings of fact:

Plaintiffs presented insufficient evidence at trial tending
to show that Plaintiffs sustained damages as a result of
Defendants’ failure to disclose documents to determine
the validity of chargebacks . . . . To the contrary,
Plaintiffs testified that it would even be beneficial to use
Landstar’s program, and that Plaintiffs have continued to
purchase products and services through Landstar even
after suit was filed . . . . The testimony diminishes

9
Rule 52(c) provides:
If a party has been fully heard on an issue during a nonjury trial
and the court finds against the party on that issue, the court may
enter judgment against the party on a claim or defense that, under
the controlling law, can be maintained or defeated only with a
favorable finding on that issue. The court may, however, decline to
render any judgment until the close of the evidence. A judgment
on partial findings must be supported by findings of fact and
conclusions of law as required by Rule 52(a).

13
 Plaintiffs’ claim of damages . . . . Plaintiffs were
instructed that simply proving the Defendants charged
more for a product or service than they paid a third-party
vendor is insufficient, standing alone, to establish that
Plaintiffs have sustained damages as a result of a
disclosure violation under Section 376.12(h).

Based on these findings of fact, the District Court entered judgment in favor

of Landstar on the issue of damages. The District Court concluded that the Owner-

Operators were only entitled to actual damages because, under 49 U.S.C. §

14704(a)(2), “Defendants are [only] liable to Plaintiffs for ‘damages sustained . . .

as a result’ of [a] violation.” The District Court further explained:

The Court has unambiguously held that charge-back
items which include fees and profits are not unlawful
under Section 376.12(h) . . . . The Court finds that proof
of the difference between Defendants’ third-party costs
and the prices they charged Plaintiffs does not, standing
alone, establish that Plaintiffs sustained damages as a
result of that violation . . . . Accordingly, the Court finds
that Plaintiff’s have failed as a matter of law to establish
damages sustained as a result of Defendants’ violation of
Section 376.12(h).

The District Court also ruled on the scope of the Owner-Operators’ claim for

injunctive relief. The District Court determined that “[Landstar’s] violation of

Section 376.12(h) only applies to the LCAPP Tire Purchase Program.” The

District Court further explained:

For all other programs at issue in this case [except the
LCAAP Tire Purchase Program], Appendix C to the New

14
 Lease provides that Landstar’s pricing to owner-
operators is based on fixed rates and discloses that certain
chargeback items include a charge for profits and fees.
For those programs, the only documents necessary to
determine the validity of those charges are documents
showing that owner-operators were in fact charged the
amounts that are stated in the lease. The evidence at trial
demonstrates that Landstar provides settlement
statements reflecting the amount that was charged back to
the owner-operators . . . . Defendants’ efforts to comply
with the regulations have been demonstrated by their
issuance of the New Lease in June 2004 and their
considerable efforts to compile an elaborate disclosure
plan subsequent to the Court’s summary judgment Order
....

The District Court concluded that, although Landstar violated § 376.12(h),

“Defendants have, nonetheless, demonstrated that they have discontinued the

violation of the regulation.” The District Court explained its conclusion:

this Court finds that Defendants have expressed a sincere
intent to comply with regulations. Defendants have also
demonstrated that the effectiveness of the discontinuance
presents no threat of future violations. Upon due
consideration of these and other pertinent factors, the
Court finds that an injunction shall not enter in this case.

The District Court granted Landstar’s renewed motion for judgment as a matter of

law. It also entered judgment in favor of Landstar on the issues of damages and

injunctive relief. The Owner-Operators filed a timely notice of appeal.

G

15
 The Owner-Operators appeal from seven of the District Court’s rulings.

First, the Owner-Operators appeal from the District Court’s grant of summary

judgment in favor of Landstar on the grounds that Landstar complied with §

376.12(d) and that Landstar is allowed to make profit from charge-back items

under § 376.12(h). Second, the Owner-Operators appeal from the District Court’s

finding that Landstar complied with the requirements of § 376.12(h) because

Landstar provided settlement statements to the Owner-Operators. Third, the

Owner-Operators contend that the District Court erred in sealing Qualcomm’s

confidential pricing list. Fourth, the Owner-Operators appeal from the District

Court’s grant of Landstar’s motion in limine which prevented the Owner-Operators

from seeking restitution and disgorgement of Landstar’s profits. Fifth, the Owner-

Operators contend that the District Court erred in ruling in favor of Landstar on the

Owner-Operators’ claim for injunctive relief. Sixth, the Owner-Operators contend

that the District Court erred in determining that they were entitled only to actual

damages under 49 U.S.C. § 14704(a)(2). Seventh, the Owner-Operators assert that

the District Court erred in decertifying the class as to the issue of damages.

We will address each of the Owner-Operators’ arguments in turn. We have

jurisdiction to review the District Court’s final order pursuant to 28 U.S.C. § 1291.

II

16
 The Owner-Operators appeal from the District Court’s denial of their motion

for partial summary judgment. They argue that the District Court erred in two

ways. First, the Owner-Operators assert that the District Court erred in finding that

Landstar had complied with the requirements of § 376.12(d). Second, the Owner-

Operators contend that the District Court erred in finding that § 376.12(h) allows

Landstar to make profits on charge-back items.

“We review a grant of summary judgment by a district court de novo.”

Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir.

2007). “We apply the same legal standards that bound the district court and view

all facts and reasonable inferences in the light most favorable to the nonmoving

party.” Id. (citations omitted). “The interpretation of a statute is a question of law

subject to de novo review.” United States v. Murrell, 368 F.3d 1283, 1285 (11th

Cir. 2004).

A

The Owner-Operators contend that the District Court erred in granting

partial summary judgment in favor of Landstar on the ground that the Original

Lease10 had complied with the requirements of 49 C.F.R. § 376.12(d).

Specifically, the Owner-Operators maintain that the Original Lease violates §

10
The Owner-Operators are raising this issue concerning only the Original Lease, as
opposed to the New Lease.

17
376.12(d) because it fails to state that the Powertrack fee would be deducted from

the driver’s compensation. The Owner-Operators argue “the Powertrack reduction

was not ‘unambiguously’ or ‘clearly stated’ on the face of the Original Lease as

was found by the district court.” As evidence to support their argument, the

Owner-Operators point to the fact that the Original Lease did not have any

reference to deductions for electronic processing fees, but the New Lease does.

In response, Landstar points to the appendix to the Original Lease which sets

forth how Landstar computes the amount of AGR for a load. Compensation is

based on a percentage of the AGR. As an explanation of that computation, the

lease appendix defines, in relevant part, AGR as follows: “Adjusted Gross

Revenue shall mean revenue to CARRIER . . . for commodities hauled by

INDEPENDENT CONTRACTOR, reduced by . . . the amount paid to any third

party by CARRIER in relation to movement of the load . . . [and by] all incentives,

discounts, or commissions given to . . . third parties.” Original Lease, Appendix

A, ¶ (a)(2) (emphasis added). Landstar maintains that this language meets the

requirements of § 376.12(d) because it sets forth a compensation method mutually

agreed upon.

Section 376.12(d) provides, in relevant part:

The amount to be paid by the authorized carrier for
equipment and driver's services shall be clearly stated on

18
 the face of the lease or in an addendum which is attached
to the lease . . . The amount to be paid may be expressed
as a percentage of gross revenue, a flat rate per mile, a
variable rate depending on the direction traveled or the
type of commodity transported, or by any other method
of compensation mutually agreed upon by the parties to
the lease.

See also supra note 3.

While the language in the appendix to the Original Lease explains that the

AGR will be reduced, it does so in broad terms, referring to “third party” fees.

Such language does not “clearly” state that the computation of the amount to be

paid may be reduced by payment processing fees like Powertrack. § 376.12(d). It

is only fair that the Owner-Operators be put on notice how their compensation is

specifically being reduced. The catch-all phrase of “third party” fees is insufficient

to satisfy § 376.12(d) because it does not give adequate notice of any specific

charges. Some district courts have ruled that § 376.12 requires more specificity.

See, e.g., Owner-Operator Indep. Drivers Ass’n v. Bulmatic Tr. Co., 503 F. Supp.

2d 961, 969 (N.D. Ill. 2007) (finding that a lease was ambiguous under § 376.12(d)

because it failed to define the meaning of “gross revenue” or “specifically state

which items, if any, may be excluded from gross revenue before calculating owner-

operator compensation”); Owner-Operator Indep. Drivers Ass’n v. Arctic Express,

Inc., 159 F. Supp. 2d 1067, 1078 (S.D. Ohio 2001) (finding a violation of §

19
376.12(k) because language in the agreement of “‘specific items’ are . . . not

‘specific,’ since in practice they include any and all conceivable costs”).

To meet the requirements of § 376.12(d), it is sufficient for the lease to

provide a specific category which would encompass deductions like Powertrack

fees. In the New Lease, Landstar has added a new category of deductions that

specifically encompasses “payment processing fee[s],” which, the Owner-

Operators concede, covers deductions like Powertrack. The language in the New

Lease makes clear, on its face, the deductions to the driver’s compensation. The

Original Lease does not have this clarity.

Landstar cites Tester Corp. v. United States, 1 Cl. Ct. 370, 374 (Cl. Ct.

1982), for the proposition that a “revision to a contract does not prove that the

older version was deficient.” Landstar is correct. The revisions to the New Lease

cannot constitute an admission that the language in the Original Lease was

defective. However, Landstar’s argument fails to address the problem that the

broad reference to “third party” fees in the Original Lease does not literally comply

with § 376.12(d). Therefore, the District Court erred in ruling on summary

judgment in favor of Landstar that the Original Lease meets the requirements of §

376.12(d).

B

20
 On summary judgment, the District Court found that, as a matter of law, §

376.12(h) allows motor carriers to include administrative fees and to make profits

on charge-backs. On appeal, the Owner-Operators contend that § 376.12(h) creates

a flat ban on profits from charge-backs. The Owner-Operators argue that the

Interstate Commerce Commission (the “ICC”) “intended to eliminate the profit as a

component of valid charge-backs.”

This is an issue of first impression. The Truth-in-Leasing regulations are

silent regarding a motor carrier’s ability to profit on charge-backs. “‘[I]f a statute

is silent or ambiguous with respect to the question at issue, our longstanding

practice is to defer to the executive department's construction of a statutory scheme

it is entrusted to administer, unless the legislative history of the enactment shows

with sufficient clarity that the agency construction is contrary to the will of

Congress.’” Lyons v. Ga.-Pac. Corp. Salaried Employees Ret. Plan, 221 F.3d

1235, 1246 (11th Cir. 2000) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221, 233 (1986) (internal quotations and citations omitted)).

In 1981, the ICC made the following statement concerning charge-backs:

It appears that, in certain instances, carriers are defeating
the intent of the present regulations by profiting from
charge-back items at the expense of owner-operators.
Charge-backs are items that may be paid for initially by
the authorized carrier, but ultimately deducted from the
lessor's compensation at the time of payment or

21
 settlement. We believe that all legitimate charge-backs
and deductions should be clearly specified and identified
in the lease and agreed upon between the parties. The
carrier should not be in a position to manipulate these
expenses in such a way that it makes a profit in its
handling of these matters. To the extent that
charge-backs to owner-operators reduce the carrier's
legitimate expenses, resulting in losses to the
owner-operator and a profit to the carrier, they are not
legitimate charge-backs or deductions.

ICC, Lease & Interchange of Vehicles, 46 Fed. Reg. 44013-01, 44014-15

(proposed Sept. 2, 1981) available at 1981 WL 107853 (emphasis added).

The ICC then proposed to modify the charge-back provision “to require

carriers to refund all amounts paid to the carriers which exceed the amount owed.”

Id. at 44015. The language of the 1981 proposed rule related to charge-backs

provided:

Charge-back items. The lease shall clearly specify all
items and the amount of such items, including
administrative costs, that may be initially paid for by the
authorized carrier, but ultimately deducted from the
lessor's compensation at the time of payment of
settlement. The carrier shall refund, with interest
computed by the same method as on escrow funds under
section 1057.12(1)(5), on deductions which exceed 110
percent of the amount shown on the lease as deductible
from the lessor's compensation.

22
Id. at 44015 (emphasis added). Thus, as noted, by the emphasized language in the

ICC’s comments and the proposed regulation, in 1981 the ICC considered

prohibiting motor carriers from profiting from charge-back items.

The final rule relating to charge-backs, however, differed from the 1981

proposed rule in that the final rule did not require motor carriers to refund charge-

backs or administrative costs. The current rule, adopted in 1982, provides:

Charge-back items. The lease shall clearly specify all
items that may be initially paid for by the authorized
carrier, but ultimately deducted from the lessor's
compensation at the time of payment or settlement,
together with a recitation as to how the amount of each
item is to be computed. The lessor shall be afforded
copies of those documents which are necessary to
determine the validity of the charge.

ICC, Lease & Interchange of Vehicles, 47 Fed. Reg. 51136-02, 51140 (proposed

Nov. 12, 1982) (codified at 49 C.F.R. § 376.12(h)) available at 1982 WL 146684.

See also supra note 4. Nothing in the adopted rule prohibits motor carriers from

profiting from charge-back items. The ICC considered a prohibition on profits

from charge-backs in 1981, but ultimately rejected making it part of the final

regulation. Thus, the District Court did not err in finding in favor of Landstar that,

as a matter of law, Landstar can profit from charge-back items. See, e.g., INS v.

Cardoza Fonseca, 480 U.S. 421, 442-43 (1987) (“‘Few principles of statutory

construction are more compelling than the proposition that Congress does not

23
intend sub silentio to enact statutory language that it has earlier discarded in favor

of other language.’”) (citations omitted).

Those courts that have considered this issue have come to a similar

conclusion. See, e.g., Albillo v. Intermondal Container Serv., Inc., 2000 WL

35436363, at *17 (Cal. Sup. Ct. Sept. 20, 2000) (discussing charge-backs for

insurance payments and finding that “defendants’ apparent profit on the charge-

back amounts is not illegal”), aff’d in relevant part, 114 Cal. App. 4th 190 (Ct.

App. 2003); Kellander v. Davidson Bros., 2003 WL 25267577, at *5 (Pa. Ct. of

C.P. June 18, 2003) (finding that the regulations do not prohibit deductions

exceeding third-party costs).

The Owner-Operators cite to Owner-Operator Independent Drivers Ass’n v.

Ledar Transportation, 2004 WL 5249148, at *6 n.36 (W.D. Mo. Dec. 30, 2004),

for the proposition that profits on charge-backs are unlawful. However, in Ledar,

the district court’s ruling mistakenly relies on the ICC’s comments from 1981,

instead of 1982, when the rule was adopted. Id. (citing to Lease & Interchange of

Vehicles, 46 Fed. Reg. 44013 (proposed Sept. 2, 1981)). Thus, the Owner-

Operators’ reliance on Ledar is misplaced.

III

24
 The District Court ruled on summary judgment that, under § 376.12(h),

Landstar must disclose the validity of charge-back items. The Owner-Operators do

not dispute this ruling. Instead they argue that this ruling was eroded by

subsequent rulings from the District Court. They assert that “[u]ltimately, the

court ruled that the only documentation required by Section 376.12(h) was

verification in Plaintiffs’ settlement statements that the amount Landstar charged

corresponded to the dollar amount specific in the written lease.”

The District Court determined, as part of its findings of fact at trial, that

Landstar’s New Leases, with the exception of the LCAPP Tire Purchase Program,

met the § 376.12(h) requirement because it provided “settlement statements” to the

Owner-Operators “reflecting the amount that was charged back to owner-

operators.” The Owner-Operators assert that Landstar failed to comply with the

requirements of § 376.12(h) because the settlement statements, which the parties

refer to as “pay slips,” do not meet the requirements of § 376.12(h). Landstar

asserts that the regulation “requires only that the method for determining the

charge be disclosed,” which the settlement statements satisfy. Landstar maintains

that nothing in § 376.12(h) requires Landstar to provide documents that would

reveal its profits on charge-backs.

25
 We review the District Court’s entry of judgment in favor of Landstar, after

the bench trial, de novo. Mitchell v. Hillsborough County, 468 F.3d 1276, 1282

(11th Cir. 2006). We review a district court’s findings of fact for clear error. Id.

However, a district’s court interpretation of the federal regulations are reviewed de

novo. Murrell, 368 F.3d at 1285.

“Where there is a question of statutory interpretation, ‘we begin by

examining the text of the statute to determine whether its meaning is clear.’”

United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004) (citation omitted).

“Indeed, ‘[i]n construing a statute we must begin, and often should end as well,

with the language of the statute itself.’” Id. (citation omitted).

Section 376.12(h) provides that the “lease shall clearly specify all items that

may be initially paid for by the authorized carrier, but ultimately deducted from the

lessor's compensation at the time of payment or settlement, together with a

recitation as to how the amount of each item is to be computed.” Section

376.12(h) also requires the motor carrier to “afford[] copies of those documents [to

the lessor] which are necessary to determine the validity of the charge.” See supra

note 4.

The language of the regulation requires motor carriers to recite how the

amount of payment is computed. Landstar argues that, “if the method is to charge

26
a flat fee (such as $1,650 per tractor per year for a base plate) then that is all that

must be disclosed.” Landstar further maintains that “[n]othing in Section

376.12(h) requires Landstar to disclose what it [actually] paid for a base plate,”

which would reveal its profit. Id. Thus, the issue before us is whether, where

charge-back items are listed as flat-fees, § 376.12(h) requires Landstar to afford

more documents to the Owner-Operators than copies of the settlement statements.

Because the plain language of the regulation does not address this specific

question, we defer to “‘the executive department’s construction of a statutory

scheme,’” unless it is contrary to legislative history. Lyons, 221 F.3d at 1246

(citation omitted). The ICC commented on § 376.12(h) as follows:

In light of these comments, we conclude that, rather than
require carriers to state with specificity the amount of
charge-backs, we should, instead, require that the lease
contain the charge-back items, together with a recitation
as to how the amount of each item is computed. To
ensure that the owner-operator has access to these
computation methods, we will require that
owner-operators be afforded copies of those documents
which are necessary to determine the validity of the
charge. With such information, the owner-operators will
be able to ascertain whether these charges have been
computed correctly.

ICC, Lease & Interchange of Vehicles, 47 Fed. Reg. 51136-02, 51139 (proposed

Nov. 12, 1982) available at 1982 WL 146684 (emphasis added). Thus, the ICC’s

comments make clear that § 376.12(h) requires the lease to list the items subject to

27
charge-backs and to provide access to the documents so that the Owner-Operators

can determine how those fees were computed. Nothing in the ICC’s comments or

the language of the regulation carves-out an exception for flat-fee charges.

While this is an issue of first impression for this Circuit, district courts have

come to the same conclusion. For example, in Owner-Operator Independent

Drivers Ass’n v. Rocor International, Inc., 2000 WL 35512897, at *1 (W.D. Okla.

July 19, 2000), at issue on summary judgment was the motor carrier’s “practice of

charging owner-operators [a flat-fee of] $35.00 per week for workers'

compensation coverage.” The court rejected the motor carrier’s “argument that it

need not disclose the method of computing the $35.00 charge because it is a ‘flat

fee.’” Id. at *3. The court explained that a flat-fee does not “alter the fact that [the

motor carrier] did not disclose the amount charged and has not provided ‘copies of

those documents which are necessary to determine the validity of the charge.’” Id.

(citations omitted).

In Tayssoun Transportation, Inc. v. Universal Am-Cam, Ltd., 2005 WL

1185811, at *16 (S.D. Tex. Apr. 20, 2005), the district court ruled on summary

judgment that a motor carrier violated § 376.12(h) because the lease did not give a

clear method of computing cargo insurance charge-backs. The district court ruled

that references to a “per trip fee” and a “range” of that fee was a violation of §

28
376.12(h). Id. The court explained that the § 376.12(h) “requirement is designed

to allow owner-operators . . . to determine whether a per trip fee being charged is

fair” and the language in the lease was “incomprehensible” to make the

determination. Id.

In Owner-Operator Independent Drivers Ass’n v. Ledar Transportation,

2000 WL 33711271, at *7 (W.D. Mo. Nov. 30, 2000), the district court, in granting

a motion for preliminary injunction, ruled that a lease which merely listed charge-

back items violated § 376.12(h):

For the few items that Defendant's Standard Lease
Agreement does specify, it fails to recite how the amount
of each such item is computed (e.g., whether Defendant
will deduct simply the actual cost of the charge, or the
cost plus administrative fees, etc.). Defendant's Lease
Agreement also fails to specify that the owner-operator
will be afforded copies of documents to verify the
validity of these charges. Accordingly, Defendant's lease
is in violation of [§ 376.12(h)] and therefore illegal.

See also Sheinhartz v. Saturn Transp., Inc., 2002 WL 575636, at *6 (D. Minn.

March 22, 2002) (finding that federal law required disclosure of the “amount of

any fees charged in excess of the premiums”); Fed. Proc. Forms § 66:191, Prayers

for Relief ¶ 6 (2007) (providing that § 376.12(h) requires “an accounting of all

transactions involving [the motor carriers’] compensation in any respect, including

but not limited to deductions from income, debits, fuel tax credits and debits, and

requiring [the motor carriers] to recite how each charge to income was calculated

29
while providing all documents necessary to confirm the validity of the same

transactions.”).

Here, there is no dispute that Landstar’s leases list flat-fee items that may be

charged-back, and that Landstar provides settlement statements to the Owner-

Operators that verifies that it charged the flat-fee listed in the lease. The settlement

statements are analogous to the types of information the district courts in Rocor,

Universal Am-Cam, Ledar, and Sheinhartz, found inadequate under § 376.12(h).

Much like a flat-fee statement, Landstar’s settlement statements fail to show how

the amount on the settlement statement was computed so that the Owner-Operators

can determine the validity of the charge. This outcome is contrary to the purpose

of § 376.12(h) which is to “ensure that the owner-operator has access to these

computation methods.” ICC, Lease & Interchange of Vehicles, 47 Fed. Reg.

51136-02, 51139 (proposed Nov. 12, 1982) available at 1982 WL 146684; see

also Siemens Power Transmission & Distrib., Inc. v. Norfolk S. Ry. Co., 420 F.3d

1243, 1252 (11th Cir. 2005) (“‘While it is true that the language of a statute should

be interpreted according to its ordinary, contemporary and common meaning, this

plain-meaning rule should not be applied to produce a result which is actually

inconsistent with the policies underlying the statute.’”) (citations omitted); Owner-

Operator Indep. Drivers Ass’n v. New Prime, Inc., 398 F.3d 1067, 1070 (8th Cir.

30
2005) (noting that the Truth-in-Leasing regulations were “intended to remedy

disparities in bargaining positions between independent owner operators and motor

carriers.”). Thus, Landstar has failed to comply with § 376.12(h).

We conclude, therefore, that the District Court correctly ruled that §

376.12(h) requires Landstar to provide documentation related to charge-back

items, but erred in concluding that it met the requirement.

IV

The District Court granted Qualcomm’s motion for a preliminary injunction

and sealed Qualcomm’s pricing list that it provided to Landstar. In sealing the

documents, the District Court found that Qualcomm’s services was “not a charge-

back item as anticipated by Section 376.12(h).” The Owner-Operators appeal this

ruling. They argue that § 376.12(h) entitles them to Qualcomm’s pricing lists

because the documents would reveal the profits Landstar made on charge-backs

related to Qualcomm’s services.

Qualcomm asserts the District Court’s ruling was correct. Qualcomm

maintains that if third-party vendors’ confidential pricing is disclosed “into the

public market and into the hands of competitors,” then “vendors’ incentives to

provide pricing discounts and their ability to tailor pricing and other terms to

individual customer needs would be destroyed.”

31
 “We review the ultimate decision of whether to grant a preliminary

injunction for abuse of discretion, but we review de novo determinations of law

made by the district court en route.” Teper v. Miller, 82 F.3d 989, 993 (11th Cir.

1996).

Here, the New Lease provides that Qualcomm’s services cost “$65 per

month . . . and $0.0003 per character/$0.02 per message when more than 60,000

charter/messages [sic] are used by [the Owner-Operator] in any month.” Lease,

Appendix C (Doc. 237). The $65 per month charge is analogous to a flat-fee. As

discussed above, § 376.12(h) requires Landstar to provide copies of “documents

which are necessary to determine the validity of the charge,” so that the Owner-

Operators can ascertain “how the amount of each item is to be computed.”

Landstar is required to do so, even if those documents reveal Qualcomm’s pricing

list. See, e.g., Rocor, 2000 WL 35512897, at *1 (finding that motor carrier must

provide documents to show how a flat-fee was computed). Qualcomm offers no

authority that § 376.12(h) should be read to allow flat-fee charge-backs without

documents showing how the flat-fee was computed. We are persuaded that the

District Court erred in sealing Qualcomm’s documents.

V

32
 The Owner-Operators appeal from the District Court’s order granting

Landstar’s motion in limine regarding unjust enrichment. The Owner-Operators

argue that 49 U.S.C. § 14704(a)(1)’s provision for “injunctive relief” includes the

equitable remedies of restitution and disgorgement. Landstar maintains that the

District Court’s decision should be affirmed “because it correctly rejected the

remedy proposed by Plaintiffs as inconsistent with the plain language of Section

14704(a)(2).”

“[W]e review the district court's grant of a motion in limine for abuse of

discretion.” Mercado v. Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005).

Interpretations of federal statutes are reviewed de novo. Murrell, 368 F.3d at 1285.

Section 14704(a)(1) provides for “injunctive relief.” See supra note 8.

Neither the term “restitution,” nor “disgorgement” appear in the statute. If §

14704(a)(1) allowed for restitution or disgorgement, it would have so stated. See

Harry v. Marchant, 291 F.3d 767, 772 (11th Cir. 2002) (en banc) (“Where the

language of a statute is unambiguous, as it is here, we need not, and ought not,

consider legislative history.”). Injunctive relief constitutes a distinct type of

equitable relief; it is not an umbrella term that encompasses restitution or

disgorgement. See Owner-Operator Indep. Drivers Ass’n v. New Prime, Inc., 213

F.R.D. 537, 545 (W.D. Mo. 2002) (“Although disgorgement is an equitable

33
remedy, it does not qualify as injunctive relief.”), aff’d 339 F.3d 1001 (8th Cir.

2003), cert. denied, 541 U.S. 973 (2004).

The Owner-Operators cite to the Savings Clause, 49 U.S.C. § 13103, for the

proposition that the district court can impose broad equitable remedies for

violations of the Truth-in-Leasing regulations. We disagree. The Savings Clause

provides that, “[e]xcept as otherwise provided in this part, the remedies provided

under this part are in addition to remedies existing under another law or common

law.” Id. If the Savings Clause invoked all equitable powers, Congress would not

have specifically provided for “injunctive relief” in § 14704(a)(1). See, e.g.,

Fulfillment Servs., Inc. v. United Parcel Serv., Inc., 2006 WL 1061892, at *8 (D.

Ariz. April 19, 2006) (explaining that the purpose of the Savings Clause “is to

preserve all existing rights not inconsistent with those” the statute creates) (citing

Penn. R. Co. v. Sonman Shaft Coal Co., 242 U.S. 120, 123 (1916)).

We conclude, therefore, that the District Court did not err in concluding that

§ 14704(a)(1) does not authorize restitution or disgorgement in providing for

“injunctive relief.”

VI

There is no dispute that the District Court correctly ruled that injunctive

relief was available on a class-wide basis in this case. The District Court denied

34
injunctive relief at the conclusion of trial because it determined that Landstar had

“discontinued” violating § 376.12. The Owner-Operators assert that, because

Landstar violated the regulations, the District Court “erred by failing to order

injunctive relief.” We agree.

The district court’s determination not to issue injunctive relief is reviewed

for abuse of discretion, Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002);

however, a court “by definition abuses its discretion when it makes an error of

law.” Koon v. United States, 518 U.S. 81, 100 (1996) superseded by statute on

other grounds, 18 U.S.C. § 3742(e).

As set forth above, Landstar violated § 376.12(d) by failing to disclose that

the Powertrack fees would be deducted from the Owner-Operators’ compensation.

See supra II.A. Landstar also violated § 376.12(h) by failing to provide

documentation relating to how charge-back items were computed. See supra III.

Therefore, we conclude that this case should be remanded with instructions to

determine whether injunctive relief is appropriate concerning these alleged

violations.

VII

The Owner-Operators argue that, under 49 U.S.C. § 14704(a)(2), monetary

damages are based on the profit that Landstar made from charge-back items.

35
Landstar contends that damages must be measured by “actual damages.” Landstar

maintains that “Plaintiffs must show that, but for the violation, they would have

made different choices, and, thereby, saved money.” The District Court agreed

with Landstar and ruled that “proof of profits and other overcharges is not standing

alone proof of actual damages in this case.” The District Court determined at trial

that the Owner-Operators had not proved damages. The Owner-Operators appeal

this ruling.

We review the trial court’s determination that damages were not proved

under the clearly erroneous standard. Anderson v. Bessemer City, 470 U.S. 564,

573 (1985). Interpretations of federal statutes, however, create issues of law which

are reviewed de novo. Murrell, 368 F.3d at 1285.

The District Court’s ruling that the Owner-Operators must prove actual

damages is correct because it is supported by the plain language of the statute. A

carrier “is liable for damages sustained by a person as a result of an act or omission

of that carrier or broker in violation [of the regulations].” 49 U.S.C. § 14704(a)(2)

(emphasis added). See supra note 5. This standard requires proof that the Owner-

Operators sustained an injury as a result of Landstar’s failure to comply with §

376.12. Such proof goes beyond simply pointing to Landstar’s undisclosed profits.

Rather, it requires owner-operators to show how they sustained damages because

36
of the violations. See, e.g., Owner-Operator Indep. Drivers Ass’n v. New Prime,

Inc., 339 F.3d 1001, 1012 (8th Cir. 2003) (explaining that a finding of damages by

a motor carrier under § 14704(a)(2) requires examination of “offsets, advances,

and other items”). The Owner-Operators’ argument that it is entitled to Landstar’s

undisclosed profits is akin to statutory or presumed damages, rather than sustained

damages as required by § 14704(a)(2).

Those courts that have considered this issue have reached the conclusion that

§ 14704(a)(2) requires evidence of actual damages. See, e.g., Rivas v. Rail

Delivery Serv., Inc., 423 F.3d 1079, 1083 (9th Cir. 2005) (“Plaintiffs concede that

the regulatory violations for which they sought injunctive relief caused them no

injury. Because the Truth-in-Leasing violations caused them no injury, Plaintiffs

did not have Article III standing to bring suit against Defendant motor carriers for

those violations.”); Owner-Operator Indep. Drivers Ass’n v. Arctic Exp., Inc., 288

F. Supp. 2d 895, 908 (S.D. Ohio 2003) (plaintiffs must “adduce evidence . . .

sufficient to allow the fact finder to make a just and reasonable estimate of . . .

damages actually suffered”) (emphasis in original); Owner-Operator Indep.

Drivers Ass’n v. Swift Transp. Co., 2006 WL 2521183, at *4 (D. Ariz. Mar. 30,

2006) (finding plaintiffs must show actual damages); Hall v. Aloha Intern. Moving

Servs., Inc., 2002 WL 1835469, at *14-15 (D. Minn. Aug. 6, 2002) (same);

37
Robertson v. N. Am. Van Lines, Inc., 2004 WL 5026265, at *4 (N.D. Cal. Apr. 19,

2004) (same); Kellander v. Davison Bros., 2003 WL 25267577, at *5 (Pa. Ct. C.P.

June 18, 2003) (same); Fed. Proc. Forms § 66:191, Prayers for Relief ¶ 9 (2007)

(suggesting that the proper prayer for relief is “for all actual damages for

violations of 49 C.F.R. pt. 376 pursuant to 49 U.S.C.A. § 14704(a)(2)”) (emphasis

added).

To support their theory of damages, the Owner-Operators rely on state court

cases that interpret the Florida Deceptive and Unfair Trade Act (“Florida’s Act”).

For example, they cite, Turner Greenberg Ass’ns v. Pathman, 885 So. 2d 1004,

1008 (Fla. App. Ct. 2004), for the proposition that under the Florida Act the proper

measure of “actual damages” is undisclosed profits. This Circuit has defined

actual damages differently: “To recover actual damages, consumers must show

that they suffered a loss because they relied on an inaccurate or incomplete

disclosure.” Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en

banc) (explaining the meaning of “actual damages” under 15 U.S.C. § 1640(a)(1),

the Truth-in-Lending Act).

The Owner-Operators also argue that Landstar violated the “Actual Payment

Clause” of the leases when it failed to reimburse the Owner-Operators for

undisclosed profits. The District Court correctly concluded that this damage

38
theory is based on a breach of a lease provision, not a violation of § 376.12.

Because the Owner-Operators failed to bring a breach of contract claim, this issue

is not properly before the Court.

We hold, therefore, that the District Court correctly concluded that the

Owner-Operators have to prove actual damages. However, because the District

Court failed to require Landstar to provide documentation under § 376.12(h)

related to profits on charge-backs, the Owner-Operators did not have the

opportunity to demonstrate that they had sustained actual damages. The Owner-

Operators also did not have the opportunity to prove whether they had sustained

actual damages for Landstar’s failure to comply with § 376.12(d). Therefore, this

matter must be remanded for an evidentiary hearing to permit the Owner-Operators

to produce evidence of any actual damages sustained by Landstar’s violations of §

376.12(d) and (h).

VIII

The Owner-Operators also appeal from the District Court’s decertification of

the class. After ruling that the Owner-Operators had to prove actual damages, the

District Court decertified the class. It explained that “decertification is appropriate

because the determination of the remaining issue of damages in this case on a

class-wide basis is unfeasible, unmanageable, and would not be superior to

39
individual actions.” “A district court's denial of class certification will not be

disturbed absent an abuse of discretion.” Jones v. Firestone Tire & Rubber Co.,

977 F.2d 527, 531 (11th Cir. 1992), cert. denied, 508 U.S. 961 (1993).

“It is primarily when there are significant individualized questions going to

liability that the need for individualized assessments of damages is enough to

preclude 23(b)(3) certification.” Klay v. Humana, Inc., 382 F.3d 1241, 1260 (11th

Cir. 2004). “Of course, there are also extreme cases in which computation of each

individual's damages will be so complex, fact-specific, and difficult that the burden

on the court system would be simply intolerable . . . but we emphasize that such

cases rarely, if ever, come along.” Id. (internal citations omitted).

The Owner-Operators argue that since their theory of damages is based on

“the charge-back differential” (e.g., Landstar’s profits from charge-backs),

damages for the entire class would be “easily calculated by computer” and would

take “no more than four hours.” The Owner-Operators’ argument fails because, as

discussed above, the correct measure of damages is actual damages, not Landstar’s

profits from charge-backs. Thus, each class member will have to offer evidence as

to his or her actual damages, offset against any counterclaims. See Heaven v. Trust

Co. Bank, 118 F.3d 735, 738 (11th Cir. 1997) (holding that class member’s

potential exposure to a defendants’ counterclaim is a proper factor to consider); see

40
also New Prime, 339 F.3d at 1012 (holding that district court properly denied class

certification of owner-operators because damages under § 14704(a)(2) requires

individual fact findings). Classes have been decertified in Truth-in-Lending cases

where actual damages had to be proven. See Turner, 242 F.3d at 1026 (affirming

the district court's denial of class certification on Truth-in-Lending claims for

actual damages).

Damages for each class member may be different. Because the Owner-

Operators failed to establish that actual damages can be easily calculated for all

class members, the District Court did not abuse its discretion in decertifying the

class for actual damages.

IX

On cross-appeal, Landstar argues that the District Court erred in denying its

motion to dismiss on the ground that the proper statute of limitations for damages

under 49 U.S.C. § 14704(a)(2) is four years. Landstar maintains that 49 U.S.C. §

14705(c)11 sets forth a two-year statute of limitations for subsection (b) of § 14704,

and that the legislative history makes clear that, but for a “scrivener’s error,”

subsection (a)(2) should have been included along with subsection (b).

11
49 U.S.C. § 14705(c) provides: “(c) Damages.--A person must file a complaint with
the Board or Secretary, as applicable, to recover damages under section 14704(b) within 2 years
after the claim accrues.”

41
 There is no reason for this Court to rewrite a statute because of an alleged

scrivener error unless a literal interpretation would lead to an absurd result. See

United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242 (1989) (“The plain

meaning of legislation should be conclusive, except in the ‘rare cases [in which]

the literal application of a statute will produce a result demonstrably at odds with

the intentions of its drafters.’”) (citations omitted); In Re Leham, 205 F.3d 1255,

1256 (11th Cir. 2000) (“There was no error in the decision that a literal application

of the language of the statute would violate Congressional intent and would

produce an absurd result.”).

There is no absurd result imposing different statute of limitations for two

different types of claims arising out of § 14704. Thus, for § 14704(a)(2), the

default four-year statute of limitations under 28 U.S.C. § 1658(a) 12 applies. As one

district court explained, “[t]he imposition of the two-year statute of limitations for

one category of claims while retaining the general four-year federal statutes of

limitations for the type of claims at issue in this case was a reasoned choice by

Congress and the Court will not attempt to rewrite the statute.” Owner-Operator

Indep. Drivers Ass’n v. C.R. England, Inc., 325 F. Supp. 2d 1252, 1265 (D. Utah

12
28 U.S.C. § 1658(a) provides: “Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the date of the enactment of this section may not
be commenced later than 4 years after the cause of action accrues.”

42
2004); see also Owner-Operator Indep. Drivers Ass’n v. Swift Transp. Co., 2004

WL 5376210, at *6 (D. Ariz. July 28, 2004) (explaining that a imposing a two-year

statute of limitations “would involve the substantial rewriting of a provision that is

unambiguous on its face, not just the correction an obvious scrivener's error.”).

But see Fitzpatrick v. Morgan S., Inc., 261 F. Supp. 2d 978, 982 (W.D. Tenn.

2003) (finding that two-year statute of limitations should apply).

X

Landstar also asks on cross-appeal that, if this Court finds that Landstar

violated the regulations, then the District Court be instructed to “revisit its original

class certification decision so that the parties can brief whether . . . the key

questions can be resolved on a class-wide basis.”

The issues here concern summary judgment motions, other pre-trial motions,

and judgment, all of which were litigated and decided in 2006 and 2007, years after

the District Court certified the class in 2005. Thus, regardless of the holdings here,

there are no new issues for the District Court to consider that it did not already

review when it originally certified the class. Landstar cites no authority to support

its position. There is no reason to instruct the District Court to revisit the class

certification issue.

43
 Pursuant to Rule 28.1(c)(4) of the Federal Rules of Appellate Procedure,13

the Owner-Operators have filed a motion to strike portions of Landstar’s cross-

reply brief on the ground that it addresses issues beyond what was presented in the

cross-appeal. The Owner-Operators’ motion to strike is denied. The arguments

Landstar makes in the cross-appeal are related to the question of whether on

remand the District Court should revisit its order certifying the class, an issue

Landstar raised in the cross-appeal. See, e.g., Eskra v. Provident Life & Accident

Ins. Co., 125 F.3d 1406, 1418 (11th Cir. 1997) (denying a motion to strike portions

of a reply brief where argument was raised in initial brief).

Conclusion

For the reasons stated above, we REVERSE the District Court’s order on

summary judgment that Landstar complied with 49 C.F.R. § 376.12(d). We

AFFIRM the District Court’s conclusion that, under § 376.12(h), Landstar is

required to provide documentation related to charge-back items, but REVERSE the

District Court’s finding that Landstar provided those documents. We also

REVERSE the District Court’s order sealing Qualcomm’s documents because they

are required to be disclosed under § 376.12(h). We REMAND this case with

13
Rule 28.1(c)(4) provides: “Appellee's Reply Brief. The appellee may file a brief in
reply to the response in the cross-appeal. That brief must comply with Rule 28(a)(2)-(3) and (11)
and must be limited to the issues presented by the cross-appeal.”

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instructions that the District Court allow the Owner-Operators to seek injunctive

relief concerning the violations of § 376.12(d) and (h).

As to the issue of damages, we AFFIRM the District Court’s ruling that the

Owner-Operators have to prove actual damages under 49 U.S.C. § 14704(a)(2), but

REMAND the case with instructions that there be an evidentiary hearing to permit

the Owner-Operators an opportunity to produce evidence of actual damages, if any

exists. We also AFFIRM the District Court’s ruling decertifying the class as to

actual damages.

We AFFIRM the District Court’s ruling that the statute of limitations under

49 U.S.C. § 14704(a)(2) is four years.

AFFIRMED, in part, REVERSED, in part, and REMANDED for further

proceedings consistent with this opinion.

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