The Fair Labor Standards Act (FLSA) provides that employers must pay non-exempt employees at “one and one-half times the regular rate” for time worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The FLSA exempts “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service” under the Motor Carrier Act (MCA). 29 U.S.C. § 213(b)(1) (“the MCA Exemption”). Mr. Williams brought this action alleging that Central Transport LLC violated the FLSA’s overtime requirements when it employed him as a “switcher” at its St. Louis terminal. He tried to make the claim into a class action suit. The question of how Williams spent his time working for Central Transport is a question of fact; the ultimate issue of whether his work activities exempted Central Transport from paying FLSA overtime is one of law. In United States v. American Trucking Ass’ns, 310 U.S. 534, 553 (1940), the Supreme Court rejected the contention of that all employees of interstate motor carriers were exempt, concluding that the jurisdiction to regulate maximum hours “is limited to those employees whose activities affect the safety of [motor carrier] operation.” Later, the rule was expanded that motor carrier drivers, mechanics, loaders, and drivers helpers who “perform duties which affect the safety of operation… are therefore subject to the authority conferred [by the MCA] to prescribe qualifications and maximum hours of service.” MC-2, 28 M.C.C. 125, 126 (1941). Mr. Williams was a “city loader” by title with Central Transport. However, he also did some minimal loading of trailers that affected the motor carrier’s safe interstate operation, including balancing loads and stacking cargo “high and tight.” The 8th Circuit Court of Appeals in a decision published July 28 2016 seems to have expanded a ruling from 1947

Thanks to our managing partners for a great Halloween Potluck celebration in our Phoenix Arizona office. Our firm administrator Carol spent many hours putting together this event and it went off without a hitch. We celebrated Halloween in style with our friends and family with great costumes from the staff as well as their children. We hope you stayed safe during Halloween! halloween


In May 2012, Mitchell (“Mitch”) Resnick and Lena M. Louis left a well-respected, mid-size law firm with three other attorneys, two paralegals and one legal secretary to embark on the monumental task of opening their own firm: Resnick & Louis, P.C. Just eight months later, the firm has grown to sixteen attorneys and associated support staff, practicing civil litigation in six different states in the Southwest, West Coast and Mountain West in a variety of practice areas, including construction, insurance defense litigation, environmental, first party property analysis, business and corporate law, commercial litigation and transactional, real estate, gaming, general liability, domestic relations, and labor and employment. Offices are located in Scottsdale, Orange County, Riverside, Bakersfield, Sacramento, Las Vegas, Denver and Albuquerque. “When I look back on the past year I could not be more amazed by what we have accomplished,” says Jennifer Boldi, an associate in the firm’s Scottsdale and Irvine offices who came with Resnick and Louis from their prior firm. “We’ve been incredibly fortunate to have had many of our clients rally to our side, and the success we’ve accomplished in such a short time was really made possible through the blood, sweat and tears of the incredible team we have.” Resnick adds, “It’s nice to also have great new insurance companies and clients who trust us to get the job done in many places.”

Experience and Diversity

Resnick and Louis have almost 40 years of experience as attorneys. Resnick is a recognized leader in the insurance defense and construction communities and has been designated as panel counsel for more than a dozen insurance companies for general liability, construction, and environmental matters; being lead counsel on large exposure cases in different jurisdictions; has handled more than

There’s a discordant, significant difference between a motor carrier’s liability and insurance policy’s coverage for damaged or lost freight. There are a number of reasons you should not accept a claim denial so quickly. Investigate, hire a marine surveyor to document and appraise damage and then consider a Transportation Attorney to work through the denial. Every driver has a cellphone capable of taking pictures to prove the condition of cargo at the pick-up and delivery points. It can’t always be done – sometimes drivers are kept off the dock by the shipper, but the smart driver can manage to inspect and that’s the best proof for exoneration. If the cargo has been pre-loaded and sealed, the driver must note the seal number with counter-signatures on his papers, which significantly limits the driver’s responsibility, often but not always.   Reason: Inadequate Documentation to the Motor Carrier or Its Insurer You need to supply the POD, initial billing document from seller to buyer and other relevant documents such as dispatch or order confirmation.   Reason: Failure to Mitigate Damages Motor Carrier liability under the Carmack Amendment to the Interstate Commerce Act, which controls interstate cargo and pre-empts just about every potential state claim for cargo loss, is limited to the actual measure of damage (often wholesale price). You, if you are the beneficial cargo owner (“BCO”) might have the responsibility of having the cargo repaired, or selling it at a discount for salvage value, or returning it to the supplier for inspection and credit. If the cargo moved under a contract that itself pre-empted Carmack limitations on damages, the cargo may be subject to additional damages of lost profit, or consequential damages. For a Carmack-type claim, you’ll need a copy of the original purchase invoice, the itemized repair bill or new sales

Will the number of cases appearing before probate judges increase dramatically in the next several years – specifically estate and trust disputes as well as fiduciary cases?  The answer is “yes” according to Kenneth J. Peace, head of the litigation group at Braun Siler Kruzel, PC in Scottsdale, Arizona. In an article titled “A Call to Mediate,” (Trusts & Estates, July 2007), Mr. Peace makes this assertion based upon the aging of baby boomers, the rising number of millionaire households, a generation of children born from 1979 to 1994 labeled as the “Entitlement Generation,” and a plethora of new litigators eager to profit from family disputes.  Mr. Pease posits that the effect of this trend will be to overwhelm the court system, leading to even longer settlement times than currently seen and overburdened and possibly less attentive judges. An Alternative to Litigation Litigation is often long, all-consuming, divisive, and potentially very expensive.  Mr. Peace, through his article, suggests an alternative to the litigation process – mediation.  Mediation offers family members an opportunity for conflict resolution without the negatives of the litigation process. It is a process in which a neutral third party acts as a facilitator to assist in dispute resolution.  According to Ray D. Madoff, (“Mediating Probate Disputes: A Study of Court Sponsored Programs,” Real Property, Probate and Trust Journal, Winter 2004) “Attorneys and judges operating within jurisdictions in which mediation of probate disputes regularly occurs are quite enthusiastic about it.” Mediation is not the same thing as arbitration. Arbitration involves submitting a dispute to one (sometimes more) impartial persons, who then render a final binding decision, often in the form of an “award” to one side or the other.  In essence, the arbitrator takes on the role of the judge. Who Can Mediate? Mr. Peace states in