WASHINGTON D.C. — Pink Cheetah Express, LLC has filed a lawsuit in the District of Columbia District Court against Total Quality Logistics (TQL) for its failure to comply with a Federal Motor Carrier Association order to process shipper-broker rate transparency requests.
According to the court filing, Pink Cheetah has standing to bring the action because it was injured as a result of the TQL’s failure to obey an order given to them by the USDOT pursuant to 49 USC 514704, based on Pink Cheetah’s regulatory right to inspect records under 49 C.F.R’ 371-3. The company is asking for a declaratory judgment ordering TQL to comply with a previous FMCSA order to provide transactional records.
TQL Refuses to Release Records
On or about January 18, 2023 Pink Cheetah contracted with TQL on the spot market to haul one interstate truck load of ice cream. After the load was hauled, Pink Cheetah filed a request to inspect TQL’s transactional records required to be kept by TQL under 49 C.F.R. 37l.3, including records between the TQL and Pink Cheetah and its shipper client pursuant to Pink Cheetah’s regulatory rights to rate transparency.
TQL refused to release the records on the basis that TQL’s standard spot market contract requires motor carriers such as Pink Cheetah to waive their rights under 49 CFR 371.3(c), which states in relevant part: “Each party to a brokered transaction has the right to review the record of the transaction required to be kept under these rules.”
Broker Rate Transparency Rights
Pink Cheetah learned that FMCSA had approved in March of 2023 a rule to strengthen motor carriers’ broker rate transparency rights and that FMCSA had previously issued a letter to one of these associations one year prior on March 1, 2023 stating 49 C.F.R. 371.3 was still in full force and effect and brokers were obligated to comply with the regulation in the interim during the pendency of the rulemaking.
FMCSA Investigation Begins
FMCSA began an investigation on Pink Cheetah’s behalf and demanded the records from TQL
On Nov. 29, 2023, FMCSA Transportation Specialist Nelson Newcomb called Pink Cheetah’s owner, Dakota Springfields and told her TQL was refusing to turn over the requested documentation to USDOT until they talked with their legal department and the FMCSA Ohio Field Office would be paying a visit to Pink Cheetah’s office the following day to seize the records if they didn’t respond.
Records Reveal Pink Cheetah was Cheated
The following day, TQL complied with FMCSA’s request and produced the records to FMCSA. It is unclear if the planned visit took place. Newcomb provided Springfields with the records she had originally requested from TQL. Despite statistics from the brokerage industry that purport that the average broker “margin” is 14-16 %, the records revealed that Pink Cheetah received from the broker only 56 % of the payment for the load in question in terms of what the shipper paid as a freight rate to the broker
At the conclusion of the investigation, FMCSA issued an order to TQL to remove the waiver language from its contracts because it may violate the evasion of regulation statute (49 U.S. Code $ 14906), and to comply with future 49 CFR 371.3 records inspection requests from any motor carriers who haul for TQL.
Non-Compliance
It is Pink Cheetah’s belief that TQL has not complied with the order in general by removing the contract waiver clause or cooperating with other carriers’ requests to inspect records, according to court documents.
On Dec. 3, 2023, after FMCSA issued and the TQL had received the Nov. 30 order, Pink Cheetah contacted TQL again and requested to inspect the transactional records on an additional 15 loads Pink Cheetah carried for TQL over the past three years in furtherance of collecting evidence to be used to sue TQL. TQL rejected the request, violating the order.
Pink Cheetah sent an email to Newcomb on Dec. 6 that she made a request to TQL for broker transparency on an additional 15 loads the company hauled and Pink Cheetah once again requested FMCSA assistance in retrieving the documents as they are an addendum to the original request for assistance from USDOT and complaint the Pink Cheetah previously filed with the Secretary against TQL.
On Dec. 7, 2023 Springfields sent an email to the National Consumer Complaint Database (“NCCDB”) to update her previously-filed complaint number against TQL. She made the following notation: “Pursuant to FMCSA’s previous action on my complaint against TQL in the matter of complaint number 10245033, I request you also order this broker to comply with 371.3 and or seize and furnish me with shipper broker records on this load. Insofar as my complaints in part involve alleged deceptive business practices I request you refer that part of the complaint to the Federal Trade Commission.”
Blocked From Communicating
The next day, TQL blocked Pink Cheetah from all communication which prevented the company from further communicating and following up on transparency requests.
As of the filing of the complaint, Pink Cheetah has not received any information regarding the broker transparency requests aside from the initial document that was turned over on Nov. 30, 2023, even though several good-faith requests to TQL and to FMCSA have been made
Violating Regulations
“Defendant has knowingly and intentionally violated the regulations, the law, and the FMCSA’s order and arrogantly takes the position it is above the law,” the lawsuit said. “This must not be allowed to continue to happen with impunity.”
Through the lawsuit, Pink Cheetah Express is requesting TQL to turn over all records, in an un-redacted format, of any transaction that has taken place between the Pink Cheetah and TQL, including but not limited to all of the 14 transactions that the Pink Cheetah previously requested pursuant to the Nov. 30, 2023 order, as well as any documentation, in un-redacted form, between TQL and their original shipper client for all loads that were the subject of the 14 transactions as described above.
Call to Action
“Tell FMCSA you demand broker transparency automatically and you need the waiver language removed from contracts when you comment on this link that brings you directly there,” Pink Cheetah said on the company’s Facebook page regarding the lawsuit and broker transparency. “If you have been affected by these horrible rates and you’re on your way out of business or you’re barely alive or you already went out of business, this is the time to be heard so please no short answer answers, make your comments as to why FMCSA must do this for you. I’m fighting for us, but you need to help me fight.”
FMCSA Re-Opens Comment Period for Broker Transparency
According to the Federal Register, the comment period on Broker Transparency Rulemaking is being reopened at the request of the Small Business in Transportation Coalition (SBTC). The new comment period will last through March 20.
To comment on the rulemaking click here.
In December 2024, OOIDA president Todd Spencer urged all truck drivers to comment on the issue in a strongly worded statement.
“To the shady freight brokers, you’ve skirted federal regulations to take advantage of the hardworking (people) behind the wheel for too long and it’s far past time this era of screwing over truckers comes to an end,” Spencer said. “To the American trucker, now is your chance to hold bad brokers accountable. Jump into the arena and demand action from FMCSA. No more sitting on the sidelines complaining. If you speak up, we’ll win this fight.”
Dana Guthrie is an award-winning journalist who has been featured in multiple newspapers, books and magazines across the globe. She is currently based in the Atlanta, Georgia, area.
