Amazon delivery drivers who claim the e-commerce giant skimmed from their tips are asking a Seattle federal judge to revive claims under Massachusetts state law, arguing that drivers from that state may be eligible for "significant relief" beyond what they received through a 2021 settlement between Amazon and the Federal Trade Commission.
The request, filed Tuesday on behalf of Philip Sullivan, a Massachusetts-based plaintiff in the case, seeks to reinstate a claim under the Massachusetts Tips Act and certify a class of roughly 3,500 Amazon Flex drivers who made deliveries in that state between January 2017 and August 2019.
U.S. District Judge Barbara Jacobs Rothstein in October 2024 allowed the drivers' suit to proceed under the Washington Consumer Protection Act, dismissing claims filed under laws in other states. But this past July, she declined to certify the proposed nationwide class of 150,000 drivers.
Now that Massachusetts drivers' claims won't proceed under Washington law, the plaintiffs said in Tuesday's filing, the court should reopen the earlier claim under the Massachusetts Tips Act and certify the class of Massachusetts drivers.
Judge Rothstein said in her July order that the plaintiffs had failed to show that a class action was better than other methods of obtaining relief, pointing to the 2021 FTC settlement and noting that proceeding as a class action would be costly and duplicative.
The Massachusetts claim is superior for two reasons, the plaintiffs said in their new filing. First, Massachusetts drivers would be entitled to mandatory triple damages under the state's tips law, which they said goes beyond what the FTC settlement included. Washington's law, by contrast, would have awarded only discretionary damages.
The court ruled when denying the nationwide class that "the possibility of recovering damages" under the Washington law wasn't sufficient for duplicating the FTC settlement.
"For the Massachusetts claim, it is not a mere 'possibility' of recovery that has gone unrealized — it is automatic triple damages," the plaintiffs argued Tuesday.
A Massachusetts class is also "frankly, much more manageable" than a nationwide class, the drivers said.
"The class likely has approximately 3,500 members who are owed approximately $122 each in compensatory (treble) damages, and their claims can be litigated in a straightforward manner," they said.
The drivers claimed in their lawsuit filed in 2021 against Amazon.com Inc. and Amazon Logistics Inc. that the companies lied about drivers keeping 100% of delivery tips.
Massachusetts drivers under the FTC settlement received reimbursement of tips totaling $1.6 million, or an average of $61 per driver, according to the new filing, which cites an agency website.
"The Massachusetts Amazon Flex drivers have not been made whole under the Massachusetts Tips Act—they are entitled to seek automatic triple damages as a matter of Massachusetts public policy," the plaintiffs argued.
Counsel for the parties did not immediately respond to requests for comment Wednesday. Amazon also did not immediately reply.
Philip Sullivan and other plaintiffs are represented by Hillary Schwab, Brant Casavant and Brook Lane of Fair Work PC and Beth E. Terrell, Toby J. Marshall and Jennifer Rust Murray of Terrell Marshall Law Group PLLC.
Amazon.com Inc. and Amazon Logistics Inc. are represented by Andrew DeCarlow of Morgan Lewis & Bockius LLP and Walter F. Brown, Shawn M. Estrada, Marco A. Torres, Amy L. Barton, and Matthew Patrick Merlo of Paul Weiss Rifkind Wharton & Garrison LLP.
The case is Cain et al. v. Amazon.com Inc. et al., case number 2:21-cv-00204, in the U.S. District Court for the Western District of Washington.
Nov 19
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