Understanding the Clean Truck Litigation Part V: 5 years, millions of dollars, and tens of thousands of pages later... And And wo worke rker r misclassi misclassificati fication on Pres Presented ented by by Cameron Cameron W. W. Roberts Roberts Rob Roberts erts & Keha & Kehagiaras giaras LLP LLP
THRE THREE E YEARS YEARS AND AND COUN COUNTI TING: NG: “This is going to go on for years.” Ju Judg dge e Har Harry ry Pre Prege gers rson on, Ninth Ninth Cir Cir . www.tradeandcargo.com 11 11/15 15/20 2012 12
A YEAR AGO … www.tradeandcargo.com 11 11/15 15/20 2012 12
WHERE WHERE ARE WE ARE WE NOW? NOW? www.tradeandcargo.com 11 11/15 15/20 2012 12
WHERE WHERE ARE WE ARE WE NOW? NOW? www.tradeandcargo.com 11 11/15 15/20 2012 12
WHERE WHERE WE ARE WE ARE NOW? NOW? www.tradeandcargo.com 11 11/15 15/20 2012 12
IN IN THE THE BEGINN BEGINNING NG . . . . . In Nove In N ovembe mber r 20 2006 06, , the the Ports voted Ports voted t to o ap appro prove ve the the Sa San n Pe Pedro dro Bay Bay Po Ports rts Cl Clea ean Ai n Air r Acti Action on P Plan lan (“CAAP”). The CAAP’s general goal is to reduce pollution in the the Ports an Ports and su d surroun rrounding ding are areas, there as, thereby by reduc red ucing ing the the atten attenda dant h nt hea ealth ri lth risk sks. s. One compo One co mpone nent nt of the CA of the CAAP AP is the is the C Clean lean T Truc ruck k Program (“CTP”). www.tradeandcargo.com 11 11/15 15/20 2012 12
THE THE CONCE CONCESSIO SSION N AGREE AGREEMENT MENT MAYOR VILLARAIGOSA LAUNCHES LANDMARK CLEAN TRUCK PROGRAM TO CLEAN LOS ANGELES' AIR Bans over 10% of port trucks or 2000 “dirty - diesel” trucks, removing over 350 tons of harmful port-related emissions from Los Angeles' air. When fully implemented in 2012, the Clean Truck Program takes over 16,000 dirty-diesel trucks off the road, slashing harmful truck emissions by 80 percent. www.tradeandcargo.com 11 11/15 15/20 2012 12
MORE MORE POL POLITICS ITICS – LAB LABOR OR & & THE THE GOVER GOVERNOR NOR Tea Teamst mster ers s also also wor worke ked d tire tireless lessly ly to to re retu turn rn Brown Br own to to the the go gove vern rnor or's 's man mansion sion. . Teamsters say: Brown “a lifelong public se serv rvan ant t . . . . . . suc succe cess ssfull fully y foug fought ht to to pro prote tect ct wor working king famil families ies an and co d cons nsume umers rs, , includ including ing po port rt dr driver ivers s fight fighting ing ag again ainst st tr truc uckin king g co compa mpany ny ab abus uses es .” - Te Teams amster ter pre press ss relea release se. . www.tradeandcargo.com 11 11/15 15/20 2012 12
THE THE CONCE CONCESSIO SSION N AGREE AGREEMENT MENT Th The e Po Ports rts of Lo of Long ng Beach an Beac h and d Lo Los Ange s Angeles les ha have ve ea each ch ad adop opted ted a a CTP an CTP and d a Conc a Concess ession ion Agreem Agre emen ent (t t (the he “Agreements”). Th The e Agree Agreemen ments ts req required uired motor carriers motor carriers to c to com omply with ply with a a nu numbe mber r of prov of provisi ision ons. s. Fa Fail ilure ure t to o co comply mply wou would r ld resu esult lt in ba in barri rring ng the the motor motor ca carri rrier er from from en entry. T try. The he ATA ATA fil filed ed a a lega legal l ch challeng allenge e to the to the Agree Agreemen ments. ts. www.tradeandcargo.com 11 11/15 15/20 2012 12
TRIAL COURT: HIST TRIAL COURT: HISTORY, STATUS ORY, STATUS ATA ATA fil filed ed ac action tion in in fed feder eral al co cour urt t on on July July 28 28, , 20 2008 08. Tw Two o da days l ys lat ater er, ATA , ATA fil filed ed a mot a motion ion for for a pr a prelimi elimina nary ry injunction injunc tion i in n or orde der r to to stop stop the the i impleme mplement ntat ation. ion. Judge Snyder’s September 9th order denied ATA’s request for a pr a prelimi elimina nary ry injunc injunction tion. On On re reman mand, the d, the Court Court issued issued an or an orde der r en enjoining po joining portion rtions of s of th the Agre e Agreeme ement nts. s. Port Port of Lo of Long ng Bea Beach ch settled settled. NRDC . NRDC ch challeng allenged ed th the set e settleme tlement nt. Tri Trial al is is ove over. r. Septe Septembe mber r 10 10, 2 , 201 010. 0. Cou Court rt en ente ters FINAL rs FINAL JUDG JUDGME MENT NT in in favo favor of r of th the Port of e Port of Lo Los Ange s Angeles, NRDC, les, NRDC, Si Sier erra ra Club Club and Co Coali lition tion fo for r Clea Clean Air. Air. ATA filed an appeal of the trial court’s FINAL ORDER. Ninth Ninth Circuit Circuit op opinion issued inion issued on Septe on Septembe mber r 26 26, , 20 2011 11. www.tradeandcargo.com 11 11/15 15/20 2012 12
APPE APPEAL: AL: HISTO HISTORY, RY, STAT STATUS US The ATA has appealed the District Court’s order denying the injunct the injunction ion to th to the e U.S. U.S. Cour Court t of A of Appeals ppeals for t for the he Nint Ninth h Cir Circuit. cuit. The N The Ninth inth Cir Circuit cuit agreed agreed with with the A the ATA TA and reman and remanded ded the case the case back to back to the D the District istrict Cour Court. t. The D The District istrict Cour Court t issued issued an order an order following following the r the remand. emand. The A The ATA TA filed filed a second appeal a second appeal as to as to the or the order der following following remand. The Ninth Circuit denied the ATA’s second appeal. appeal. The The AT ATA A has f has filed iled a a thir third d app appeal, eal, this is this is an a an appe ppeal of al of the the trial court’s FINAL ORDER. www.tradeandcargo.com 11 11/15 15/20 2012 12
THE TRIAL COURT’S FINAL ORDER The The Cou Court rt he held: ld: The FAAA The FAAA Act Act ap applies. plies. Cert Certain ain pr provisions ar ovisions are Not e Not sub subject ject to price to prices, ro s, rout utes an es and d services in ser vices in th the FAAA e FAAA Act: Act: Mainte aintena nanc nce e pro provi visi sion on; Placa Placard pro rd provi visi sion on; Fina Financ ncial ial ca capa pabili bility; ty; Subject to the “Safety” Exception: Mainte aintena nanc nce e pro provi visi sion on; Placa Placard pro rd provi visi sion on; NOT NOT sub subject ject to FAAA to FAAA Act Act be beca cause use th the Port of e Port of Lo Los Ange s Angeles les is is acting ting as s a mar market pa t partic rticipa ipant: t: Employee Employee mand mandate ate Park Parking ing www.tradeandcargo.com 11 11/15 15/20 2012 12
PRICE, ROUTE PRICE, ROUTE, OR , OR SERVICE SERVICE Fe Fede dera ral l Aviat Aviation ion Administ Administra ration tion Aut Autho horization rization Act Act Pre Preemp emption tion is is th the ge e gene nera ral l ru rule. le. 49 49 U.S.C. U.S.C. § 14501(c)(1): A State “may not en enac act t or or en enforc force a e a law, law, re regu gulation lation, , or or ot othe her r pr prov ovision ision ha having ving th the forc e force e an and effect d effect of l of law aw relate re lated d to to a pr a price, ice, ro rout ute, e, or or se serv rvice ice or or an any y mo moto tor r ca carr rrier ier . . . . . . with with re resp spec ect t to to th the e transportation of property.” www.tradeandcargo.com 11 11/15 15/20 2012 12
MARKE MARKET T PART PARTICIPATI ICIPATION ON If state action is proprietary, rather than regulatory, such action is not generally subject to statutory preemption. The mark The market et part participant icipant test test does does not t not turn urn on whether on whether the stat the state e or local or local government government is is a purcha a purchaser ser or seller or seller of of the good the goods s and services and services at at issue. issue. The Court rejected ATA’s contention that the Port itself must must part participate icipate direct directly ly in in the dr the drayage ayage market market. The Port’s participation in the port services market is sufficient. sufficient Concession Agreement was a “business necessity,” in order order to eliminate to eliminate evident evident obstacles obstacles to PO to POLA LA growth. growth. www.tradeandcargo.com 11 11/15 15/20 2012 12
THE THE ATA ATA INJUCTION INJUCTION – STAY STAY While the appeal is pending, the ATA asked the court to enjoin: Employee mandate; Off street parking fees; Financial responsibility. The court only enjoined: Employee mandate. www.tradeandcargo.com 11 11/15 15/20 2012 12
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