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Filing # 181454455 E-Filed 09/08/2023 10:20:12 PM
IN THE COUNTY COURT OF THE FIFTEENTH JURDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
Southern Airways Corporation,
Plaintiff/Counter-Defendant
CASE NO.: 50-2023-sc-010947-xxxx-mb
v.
CLASS ACTION COUNTERCLAIM
Benjamin Ryan,
Defendants/Counter-Plaintiff.
____________________________________/
DEFENDANT BENJAMIN RYAN’S ANSWER TO PLAINTIFF’S COMPLAINT,
AFFIRMATIVE DEFENSES, AND CLASS COUNTERCLAIM
Benjamin Ryan (“Defendant,” “Counterclaim Plaintiff,” or “Ryan”), by and through his
attorneys and on behalf of himself answers the Complaint of Southern Airways Corporation
(“Plaintiff,” “Counterclaim Defendant,” or “Southern”), and states affirmative defenses, and on
behalf of himself and the Class set forth below, and in the public interest, brings the Counterclaims
set forth below, seeking relief for violations of the Fair Labor Standards Act, 29 U.S.C. § 203 et
seq., the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1589, et seq., and Florida law.
ANSWER
1. As to paragraph 1, Defendant admits that Southern is a Delaware corporation with
its principal place of business in Palm Beach County, Florida, and that Southern is the former
employer of Defendant, and denies the remainder of the paragraph.
2. As to paragraph 2, Defendant admits that he is a former employee of Southern, and
denies the remainder of the paragraph.
3. As to paragraph 3, Defendant denies. Due to his counterclaims, the matter in
controversy exceeds $50,000.
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 09/08/2023 10:20:12 PM
4. As to paragraph 4, Defendant admits that this Court has personal jurisdiction over
Defendant. Defendant denies that he failed to perform under the terms of the agreement and that
he materially breached his contract.
5. As to paragraph 5, Defendant admits.
6. As to paragraph 6, Defendant repeats his prior admissions and denials.
7. As to paragraph 7, Defendant admits.
8. As to paragraph 8, Defendant admits that some airlines have experienced a pilot
shortage in recent years and denies the remainder of the paragraph.
9. As to paragraph 9, Defendant denies.
10. As to paragraph 10, Defendant admits the existence of the quoted language in the
contract and denies the remainder of the paragraph.
11. As to paragraph 11, Defendant admits pilots enter into an agreement with Southern
and denies that this agreement is “voluntary.”
12. As to paragraph 12, Defendant does not have sufficient information to admit or
deny the number of applicants for each job opening, and denies the remainder of the paragraph.
13. As to paragraph 13, Defendant admits.
14. As to paragraph 14, Defendant admits.
15. As to paragraph 15, Defendant denies.
16. As to paragraph 16, Defendant admits.
17. As to paragraph 17, Defendant admits.
18. As to paragraph 18, Defendant admits that he signed the promissory note and denies
that this agreement was “voluntary.”
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19. As to paragraph 19, Defendant admits the existence of the quoted language in the
contract and denies the remainder of the paragraph.
20. As to paragraph 20, Defendant admits the existence of the quoted language in the
contract and denies the remainder of the paragraph.
21. As to paragraph 21, Defendant admits.
22. As to paragraph 22, Defendant admits.
23. As to paragraph 23, Defendant admits.
24. As to paragraph 24, Defendant denies.
25. As to paragraph 25, Defendant denies.
26. As to paragraph 26, Defendant repeats his prior admissions and denials.
27. As to paragraph 27, Defendant admits that the promissory note was signed on May
10, 2021. The remainder of the paragraph contains legal conclusions for which no response is
required. To the extent a response is required, Defendant denies.
28. As to paragraph 28, Defendant admits the existence of the quoted language and
denies that the agreement is enforceable.
29. As to Paragraph 29, Defendant admits the existence of the quoted language and
denies that the agreement is enforceable.
30. Paragraph 30 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies.
31. Paragraph 31 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies the allegations stated therein.
32. As to Paragraph 32, Defendant admits that he tendered his resignation on January
8, 2023, effective January 22, 2023, and denies the remainder of the paragraph.
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33. Paragraph 33 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies the allegations stated therein.
34. Paragraph 34 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies the allegations stated therein.
35. Paragraph 35 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies the allegations stated therein.
36. As to the unnumbered paragraph following paragraph 35, Defendant denies that
Plaintiff is entitled to judgment or any monetary or other relief.
37. As to paragraph 36, Defendant repeats his prior admissions and denials.
38. Paragraph 37 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies the allegations stated therein.
39. As to Paragraph 38, Plaintiff admits that his employment with Southern started on
May 10, 2021 and denies the remainder of the paragraph.
40. As to Paragraph 39, Defendant denies.
41. As to Paragraph 40, Defendant denies.
42. As to Paragraph 41, Defendant admits that he signed the employment offer on April
11, 2021 and the promissory note on May 10, 2021 and denies the remainder of the paragraph.
43. Paragraph 42 contains legal conclusions for which no response is required. To the
extent a response is required, Defendant denies the allegations stated therein.
44. As to Paragraph 43, Defendant denies.
45. As to the unnumbered paragraph following paragraph 43, Defendant denies that
Plaintiff is entitled to judgment or any monetary or other relief.
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AFFIRMATIVE DEFENSES
Without waiving the requirement that Plaintiff prove each and every element of each claim
asserted in the Complaint, Defendant asserts the following affirmative defenses.
FIRST AFFIRMATIVE DEFENSE
(FAILURE TO STATE A CLAIM)
Plaintiff fails to state a cause of action upon which relief may be granted because Plaintiff's
complaint fails to establish that a legal contract was formed or otherwise capture the true nature of
the working relationship between Plaintiff and its pilots, including Defendant. Further, Plaintiff
also seeks to incorporate into its purported contract an illegal penalty.
SECOND AFFIRMATIVE DEFENSE
(ILLEGALITY)
The purported contract is illegal and contrary to public policy and thus not an enforceable
contract. Among other things, the document violates the Fair Labor Standards Act and the
Trafficking Victims’ Protection Act, as well as Florida competition law, as described in greater
detail below. Plaintiff also seeks to incorporate into its purported contract an illegal penalty.
THIRD AFFIRMATIVE DEFENSE
(UNCONSCIONABILITY)
The purported contract is both procedurally and substantively unconscionable. The
document is a form document. It was presented to Defendant on a take-it-or-leave-it basis in a
situation in which Plaintiff held all the bargaining power. Plaintiff also seeks to incorporate into
its purported contract an illegal penalty.
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FOURTH AFFIRMATIVE DEFENSE
(LACK OF MUTUALITY)
Plaintiff's complaint contains provisions regarding damages, costs, and enforcement that
are not enforceable because they constitute a penalty, lack mutuality, and are unreasonable and
excessive. Plaintiff also seeks to incorporate into its purported contract this illegal penalty.
FIFTH AFFIRMATIVE DEFENSE
(MATERIAL BREACH BY PLAINTIFF)
In the alternative, Plaintiff was in material breach of any contract with Defendant that may
have existed. Plaintiff failed to provide Defendant with training worth anywhere near the purported
value and failed to provide Defendant with a reasonably safe working environment.
SIXTH AFFIRMATIVE DEFENSE
(IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING)
In the alternative, Plaintiff breached the implied covenant of good faith and fair dealing
by failing to provide Defendant training worth anywhere near the purported value, by failing to
provide Defendant with a reasonably safe working environment, and by forcing Defendant to work
under threatened abuse of legal process.
SEVENTH AFFIRMATIVE DEFENSE
(UNCLEAN HANDS)
In the alternative, under the doctrine of unclean hands, the actions of the Plaintiff—as set
out in detail below and, among other things, failing to provide Defendant with a reasonably safe
working environment and by forcing Defendant to work under threatened abuse of legal process—
bar recovery in this action. Plaintiff's wrongful conduct precludes it from seeking relief and the
claim should be dismissed.
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EIGHTH AFFIRMATIVE DEFENSE
(MITIGATION)
Plaintiff has mitigated any arguable damages resulting from any breach of contract given
its allegation that it has no trouble with hiring new pilots to fill any available spots.
NINTH AFFIRMATIVE DEFENSE
(WAIVER)
In the alternative, Plaintiff has waived claims by its actions, including but not limited to by
failing to provide Defendant training worth anywhere near the purported value, by failing to
provide Defendant with a reasonably safe working environment, and by forcing Defendant to work
under threatened abuse of legal process.
TENTH AFFIRMATIVE DEFENSE
(ESTOPPEL)
In the alternative, Plaintiff is estopped from pursuing its purported claims by its actions,
including but not limited to by failing to provide Defendant training worth anywhere near the
purported value, by failing to provide Defendant with a reasonably safe working environment, and
by forcing Defendant to work under threatened abuse of legal process.
ELEVENTH AFFIRMATIVE DEFENSE
(FAILURE OF CONSIDERATION)
In the alternative, any contract between Plaintiff and Defendant is unenforceable because
Plaintiff failed to provide Defendant training worth anywhere near the purported value, failed to
provide Defendant with a reasonably safe working environment, and forced Defendant to work
under threatened abuse of legal process, depriving Defendant of any benefit of the bargain.
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THIRTEENTH AFFIRMATIVE DEFENSE
(ENFORCEMENT OF CONTRACT VIOLATES WHISTLEBLOWER PROTECTIONS)
In the alternative, Plaintiff’s efforts to enforce the purported contract at issue in this case
violates federal whistleblower protections under 49 U.S.C. § 42121 because Defendant engaged
in protected whistleblower activities and this case is in retaliation for those activities and/or this
case arises from Defendant’s reasonable belief that continued employment with Plaintiff would
necessarily cause him to violate any order, regulation, or standard of the FAA or any other
provision of Federal law relating to aviation safety.
FOURTEENTH AFFIRMATIVE DEFENSE
(RESERVATION OF AFFIRMATIVE DEFENSES)
Defendant reserves the right to assert and rely upon such additional affirmative defenses to
the Complaint as may become available or apparent as discovery commences and progresses in
this action.
COUNTERCLAIMS
1. The lawsuit against Defendant and Counterclaim Plaintiff Benjamin Ryan is one of
approximately 59 lawsuits that Plaintiff and Counterclaim Defendant Southern Airways
Corporation (“Southern”) has filed against its former pilots. These lawsuits seek to collect
thousands of dollars from each pilot, purportedly in order to reimburse Southern for training
expenses incurred on the pilots’ behalf.
2. The true purpose of these lawsuits is not to collect money at all. Rather, as CEO
Stan Little told a reporter for the Huffington Post, the lawsuits were filed because Southern is
experiencing a “pilot shortage” and needs to stem high rates of pilot turnover. 1
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Dave Jamieson, Southern Airways Express Is Suing Former Pilots For Training Costs, Huffpost (August 3, 2023),
https://www.huffpost.com/entry/southern-airways-express-is-suing-former-pilots-for-training-
costs_n_64cbe72ee4b01796c06b6af8.
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3. But Southern’s inability to retain pilots absent the threat of lawsuits to recover an
unenforceable debt is of its own making.
4. Although Southern advertises its pilot jobs as a good opportunity to gain training
and flight hours, that is not what pilots find when they begin working.
5. Instead, they quickly find that they are bound to a company that shows a systematic
disregard for the safety of its pilots and passengers. The safety issues at Southern include requiring
pilots to fly planes with obvious mechanical issues, failing to invest appropriate resources in
repairs, pressuring pilots to fly in dangerous weather conditions, scheduling pilots to work long
days with little sleep, and seeking to implement policies that punish pilots who are too fatigued to
fly.
6. Instead of addressing these issues, Southern filed lawsuits against Defendant Ben
Ryan, along with many other pilots (the “Counterclaim Class”) in order to punish them for leaving
their jobs at Southern to secure better, safer working conditions and higher pay at other airlines,
and to intimidate current Southern employees into staying in jobs that they are desperate to leave.
7. In furtherance of these goals, Southern requires its pilots as a condition of
employment to sign a Training Repayment Provision Agreement (“TRAP”) that requires pilots to
pay up to $20,100 to “reimburse” the airline for the cost of training.
8. The training Southern provides gives pilots with no portable license or credential,
and does not move with pilots from job to job because the Federal Aviation Administration
(“FAA”) requires the training of the airline, not of the individual pilots.
9. These TRAPs are unenforceable. Charging pilots for required job training that is of
primary benefit to their employer unless they stay working for Southern for years violates several
state and federal laws.
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10. Despite this, Little told the Huffington Post that there would be “more [lawsuits] to
come” against additional pilots.
11. Southern’s abuse of the legal system to attempt to stem high turnover resulting from
low pay and difficult working conditions should not be facilitated by the courts.
12. Therefore, Defendant Benjamin Ryan files this answer and counterclaim on behalf
of himself and the Counterclaim Class alleging violations of the Fair Labor Standards Act, the
Trafficking Victims Protection Act, and other state and federal laws.
JURISDICTION AND VENUE
13. Florida’s Circuit Court has jurisdiction because they are courts of general
jurisdiction for civil matters with claims in excess of $50,000, as here.
14. Moreover, these Counterclaims are compulsory because they arise out of the same
transaction or occurrence as Southern’s alleged claims against Ryan.
15. Southern Airways Express has consented to the jurisdiction and venue in Palm
Beach County, Florida.
PARTIES
16. Benjamin Ryan is a pilot who was employed by Southern. He is a resident of
Boston, Massachusetts.
17. Southern Airways Corporation is a Delaware corporation with its principal place of
business in Palm Beach County, Florida.
STATEMENT OF FACTS
I. Southern’s Fleet and Hiring Requirements
18. Southern is a national commuter airline that flies throughout the country, including
New England, the Mid-Atlantic, the Midwest, and Southern California.
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19. Southern also operates in Hawaii under the name Mokulele Airlines, and in New
York and New England under the name Tailwind Air.
20. Southern’s fleet consists of approximately 50 aircraft, the vast majority of which
are Cessna 208 Caravans. In addition, it operates 3 Tecnam P2010s, 7 Pilatus PC-12s, and 2 Saab
340Bs.
21. In order to qualify for hire, all Southern pilots must hold a commercial pilot
certificate with a multi-engine land and instrument rating. The company also requires a minimum
of 250 hours of flying time, as well as minimum requirements for specific types of flight
experience, including a certain amount of time flying turbine engines, flying cross-country, and
flying at night.
22. In other words, pilots must come to Southern with existing certifications or
credentials. These certifications require substantial experience, which pilots must obtain before
coming to Southern. A commercial pilot certificate requires 250 hours of flight experience,
including a specific amount of time flying cross-country and as a pilot-in-command, along with
instrument training and experience flying a complex aircraft.
23. Pilots with a commercial pilot certificate are permitted to fly certain commercial
planes without any additional certification or licensure. These planes include planes that weigh
under 12,500 pounds and are powered by propellors. Nearly all of the aircraft in Southern’s fleet
fall into this category.
24. In order to captain commercial aircraft that weigh over 12,500 pounds, any airplane
with a jet engine, and certain other aircraft as designated by the FAA, pilots must achieve what is
called a “type rating” in addition to their commercial pilot certificate. A type rating is an additional
certification, beyond a commercial pilot’s certificate, that allows pilots to captain a specific make
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and model of an aircraft. For example, a pilot who wants to captain an Airbus A320 must receive
an Airbus type rating that encompasses the A319, A320, A321 aircraft types.
25. Of the planes in Southern’s fleet, only the two Saab 340s are type-rated aircraft
because of how much they weigh.
26. The aircraft that Southern Airways operates can all be flown with a single pilot.
However, Southern operates these aircraft with both a pilot-in-command (i.e., captain) and second-
in-command (i.e., first officer).
27. In the first group of complaints against its pilots, Southern states that most of its
aircraft “do not require co-pilots,” but Southern “voluntarily and at its own expense” hires co-
pilots to “help[] accelerate their career paths.”
28. This is misleading. Pursuant to federal aviation regulations under 14 C.F.R. Part
135, pursuant to which Southern operates, Southern’s aircraft do not require co-pilots if they have
a functioning autopilot system, but they do require co-pilots if the autopilot system is not
operational. The autopilot system on aircraft in Southern’s fleet is frequently broken, and has been
removed or made inoperable in many planes.
29. In fact, Southern does not currently have FAA authorization for single-pilot
operations under Part 135.
30. The allegation that Southern hires co-pilots out of generosity is not included in the
complaints it filed against pilots in August, which are otherwise substantially similar to the
complaints it filed against pilots in July.
II. Southern’s Operating Requirements
31. Southern is a Part 135 airline. Part 135 refers to 14 C.F.R. Part 135, an aviation
regulation that applies to operators of charter planes in interstate, foreign, or overseas
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transportation or carrying mail and that have 30 or fewer seats or a maximum payload capacity of
7,500 pounds.
32. Holders of Part 135 certification, including Southern, must meet specific
requirements for equipment, facilities, personnel, manuals and programs. These requirements
include that the operator submit a completed training curriculum as part of its Part 135 application
letter, including:
● Basic indoctrination training
● Emergency training
● Crew resource management (CRM) training
● Initial ground and flight training
● Upgrade ground and flight training
● Recurrent ground and flight training
● Requalification training
● Differences ground and flight training
● Transition ground and flight training
● Hazardous material (hazmat) training
33. FAA regulations require Part 135 operators to have all newly-hired pilots undergo
the training curriculum for the airplane they were hired to fly, regardless of whether the pilots
already have the certifications they would need in order to fly independently of the operator, and
regardless of their prior experience.
34. Part 135 certification is required of airline operators, not of specific pilots. In other
words, the Part 135 training is for the benefit of the airline operator (so that they can maintain the
proper certification) rather than for the benefit of the pilots (who do not necessarily receive
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transferrable certification or credentialing as a result of the training they receive). Pilots may
receive a type rating as part of the Part 135 training process, but only if the aircraft is type-rated,
which the vast majority of planes Southern operates are not.
III. Pilot Training Provided to New Hires at Southern
35. Part 135 training for pilots at Southern lasts for approximately four weeks,
although in some cases it takes significantly longer, as trainer staffing issues and limited
equipment may leave pilots waiting for training spots for weeks or even months.
36. Training begins with approximately two weeks of new hire training at Southern’s
facilities in Palm Beach, Florida.
37. This training is taught in-house by a Southern employee.
38. Approximately the first week of training consists of classroom training on
Southern policies, procedures, and operational specifications, commonly known as “indoc.”
39. Approximately the second week of training consists of ground systems training,
where new pilot hires learn the systems and flight limitations of the aircraft they will be flying,
including for example takeoff weight, airspeed, and performance in various weather conditions.
40. Once trainees have completed ground school, they receive simulator and hands-on
flying experience, which takes place either in-house at Southern’s facilities in Hawaii, or at a third-
party flight school.
41. The amount that Southern charges pilots does not vary based on whether the second
part of training takes place in-house at Southern or at a third-party flight school.
42. In order to complete training, pilots are required to log at least two supervised
flights.
43. Pilots who attend training in Hawaii gain flying experience by taking the supervised
flights directly on Southern aircraft. Because the aircraft used for training in Hawaii are used for
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passenger flights during the day, pilots have to complete their training flights in the middle of the
night, often with very little notice.
44. Due to backups at both flight school and Southern’s in-house training, pilots often
experience delays before they are able to begin revenue flying. During this period, pilots are
earning $12 an hour and as little as approximately $700 per month.
45. Once pilots have completed their practice flying, they undergo a check-ride, which
is how pilots refer to an FAA practical test conducted by an authorized examiner.
46. Pilots who had passed their check-ride and completed the necessary paperwork are
released to begin flying revenue flights.
47. Southern could easily calculate and provide the actual cost of the training to the
pilots who undergo it, but it does not do so.
48. Southern’s training does not provide any sort of credential that is transferrable to
another employer. That’s because Part 135 training is tied to a specific employer, and most
Southern aircraft do not require a type rating to fly. Pilots come to Southern with all of the licensing
they need to fly these aircraft.
49. Furthermore, even a type-rated pilot who transferred to a different Part 135 operator
would have to repeat most of the Part 135 training that they received from Southern—the training
that gave them the type rating—because that training is a requirement for the airline to operate and
not for the individual pilots.
IV. Training Repayment Agreement Provision
A. Promissory Note
50. Southern requires all new pilot hires to sign a Promissory Note upon
commencement of their employment with Southern. This provision is hereinafter referred to as the
Training Repayment Agreement Provision, or TRAP.
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51. The TRAP requires new second-in-command hires to pay Southern between
$16,000 and $20,100, and new pilot-in-command hires to pay Southern $9,500, if they resign, are
terminated for cause, or become “unable to fulfill [their] duties and tasks” before they have flown
for at least 12 months for the company as a pilot-in command (the “TRAP Period”).
52. The TRAP claims that the TRAP debt is an “advance” for “training, travel, check-
rides, simulator time, and/or ground school.”
53. Pilots are eligible for promotion from second-in-command to pilot-in-command
when they have flown a total of 1200 hours, which can take ten months or more depending on the
amount of flying time the pilot started with. Therefore, for many pilots, TRAP requires pilots to
work for Southern for far longer than 12 months.
54. The amount pilots owe under the TRAP is reduced in equal increments for each
month that the pilot flies for Southern until the end of the TRAP period.
55. In the offer letter provided to pilots, Southern explicitly tells them that the true
purpose of the TRAP is not to recover training costs, but rather to prevent pilots from leaving their
job.
56. The offer letter, which is signed by Manager of Corporate Recruiting Julie
Puckhaber, states: “In exchange for your training, we require a promissory note that will be
provided during Ground School. The value of the note is [between $9,500 and $20,100], which
ensures against your resignation . . . ” (emphasis added).
57. The TRAP is an unreasonable restraint of trade, with no geographical limitations
or limitations on the scope of the activity to be restrained. The TRAP imposes a serious financial
burden on pilots who wish to leave Southern, whether they are doing so to work for a competitor,
to move to another state or country, or to change careers entirely. It is not reasonably tailored to
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maintaining Southern’s goodwill or other business interests. Rather, it is designed to punish
employees for exercising their right to seek better or even simply different terms of employment
elsewhere.
58. In addition, the amount of money Southern charges employees for leaving their
jobs is not a reasonable forecast of just compensation for the training they receive. The valuation
for training is arbitrary and inflated.
B. Tuition and Fee Reimbursement Agreement
59. The Promissory Note is not the only Training Repayment Agreement Provision that
Southern pilots are presented with.
60. In addition to the Promissory Note, Southern provides pilots with a document called
a “Tuition and Fee Reimbursement Agreement” (hereinafter “SkyWest TRAP”) to sign upon hire.
61. This agreement provides that Southern and SkyWest Airlines, Inc., “have entered
into an agreement pursuant to which Southern and SkyWest will work together to encourage
SAE’s Part 135 pilots to qualify as Part 121 pilots and thereafter obtain employment at SkyWest.”
62. SkyWest is a commercial passenger airline regulated under 14 C.F.R. Part 121 that
contracts with Alaska Airlines, American Airlines, Delta Airlines, and United Airlines to offer
flights from smaller regional airports to the large hubs of its partner airlines.
63. SkyWest is the largest regional airline in North America.
64. Pursuant to the SkyWest TRAP, Southern will pay pilots $7,500 upon completion
of initial flight training at Southern, $5,000 upon promotion to captain, and an additional $5,000
upon completion of SkyWest training.
65. These payments are intended as reimbursement for “pilot training fees, aircraft
usage fees and other tuition payments.”
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66. However, these payments are conditional and subject to clawback if pilots do not
both 1) accept a job at SkyWest after flying for at least 600 hours as a pilot-in-command at
Southern and then 2) continue to work as a pilot at SkyWest for at least two years after completing
training.
67. According to the contract Southern imposes on them, pilots who do not accept a
job with SkyWest, or who leave SkyWest within two years, must pay back up to $17,500. If the
pilots do not pay this amount within 30 days of termination, they are subject to an additional
penalty in the form of interest at a rate of 6 percent annually.
V. Working Conditions
A. Maintenance Concerns
68. Southern pilots are forced to operate with glaring maintenance and safety concerns
that management consistently fails to address despite repeated complaints.
69. Indeed, at least one of the pilots Southern has sued wrote in his resignation letter
that he resigned “[d]ue to ongoing concerns regarding maintenance and safety.”
70. Frequent maintenance issues that pilots experienced included inoperable fire
detection switches, constant oil leaks, incorrect altitude indicators, non-functional autopilots, and
no air conditioning that led to passengers and pilots overheating.
71. If these issues occurred on a private plane, that plane would be illegal to fly.
72. When these issues occur on commercial aircraft, they can be placed on a Minimum
Equipment List (“MEL”). Pursuant to FAA regulations, the MEL provides temporary relief from
the requirement that all parts of an aircraft are in working order.
73. The MEL is intended to allow airlines to continue to operate flights until they have
enough time to fix mechanical issues that are not immediately dangerous.
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74. MEL repairs on Southern aircraft were consistently delayed, often to the point
where Southern had to seek an extension on the repair deadline. This practice led to a pile-up of
maintenance issues, and meant that pilots frequently had to fly planes that had numerous pieces of
malfunctioning equipment.
75. Some issues were simply never fixed. For example, as noted above, the autopilot
on the vast majority of Southern aircraft is not functioning or has been removed altogether.
76. It is highly unusual for a commercial passenger aircraft in the United States to
operate without autopilot.
77. These maintenance issues have real consequences. For example, on or around May
2, 2023, Mokulele Flight 209 experienced engine failure shortly after taking off from the island of
Molokai en route to Honolulu carrying 23 passengers. The aircraft finished the flight with a single
functioning engine.
78. This incident is currently under investigation by the FAA.
79. To maintain its operations without investing in sufficient maintenance or repairs,
Southern persistently pressured pilots to stay silent about Southern’s operational issues. Pilots who
reported mechanical issues reported facing retaliation, such as being held on the tarmac for so long
that they were unable to make a connecting flight home, or being assigned to particularly
unfavorable schedules.
B. Pressure to Fly in Severe Weather
80. Southern pilots report being required to fly in severe weather conditions, such as
storms that impeded visibility or hail.
81. Another recurring issue related to winter weather. When ice forms on an aircraft, it
can disrupt the flow of air and lead to problems with handling and performance. As a result, FAA
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regulations require planes to be thoroughly de-iced before they are able to fly and that anti-icing
equipment is operational.
82. Southern pilots report pressure to fly in known icing conditions with
malfunctioning or inoperative de-icing equipment.
C. Fatigue and overwork
83. Although Southern tells pilots when they are hired that they will be scheduled for
four days flying and four days of rest, in fact schedules are intense, with very little time off.
84. Southern’s operating requirements mandate that they provide pilots with their
schedule at least a week before the month begins. In practice, however, pilots frequently do not
receive their monthly schedules until a day or two before the beginning of the month, and schedules
undergo constant changes, making it very difficult to plan.
85. Pilots are told that they will have the opportunity to bid on their preferred schedules
as they gain seniority, but pilot bids are rarely taken into consideration.
86. FAA regulations require all pilots to state at the beginning of each flight segment
that he or she is fit for duty, which includes an affirmative statement that he or she is not
experiencing fatigue. Therefore, flying while fatigued is a serious violation of FAA regulations.
87. On one occasion, an email from CEO Stan Little was leaked to pilots where Little
suggested “look[ing] to implement a policy in the future that anyone who calls fatigue on his last
day of a rotation must remain in place the following day as ready reserve—we shouldn’t have to
be nervous that crews will call fatigue to get an earlier start to their trip home.”
88. The result of this policy would have been that pilots were discouraged to report
feeling fatigue for fear that they would not be permitted to go home on their rare days off.
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89. Pilots also report consistent timekeeping issues, particularly when they are about to
run up against FAA flying limits. These timekeeping issues can lead to pilots flying more than
they are legally permitted to fly under existing regulations.
D. Job Satisfaction and Pay
90. In November 2022, an anonymous survey was emailed to Southern pilots. Although
Southern deleted the survey from pilots’ email inboxes, many pilots were able to respond. The
results indicated overwhelming pilot dissatisfaction, in particular with regard to safety concerns.
91. In addition to the maintenance and safety issues at Southern, pay is extraordinarily
low. First Officers earn as low as $12 per hour with a 57-hour a month minimum guarantee. This
amounts to only $684 per month, or $8,208 per year pre-tax.
92. For the first part of the class period, First Officers’ wages did not increase until they
were employed for six months, at which point they were raised to approximately $18 per hour. For
the second part of the class period, First Officers’ wages did not increase until they had at least
600 hours of flight time, at which point they were raised to approximately $21 per hour.
93. Captains earn a base salary of as little as $45 per hour with a 65-hour a month
minimum guarantee, which amounts to approximately $35,000 per year pre-tax.
94. This pay is not enough to survive in many of the markets in which Southern pilots
live. For example, as of August 2022, Honolulu, Hawaii was the third-most expensive place to
rent an apartment in the entire country, with a median rent for a two-bedroom apartment of $2,500.
95. Pilots who leave the company before they have served 12 months as a pilot-in-
command are marked ineligible for rehire, and those who do not repay the TRAP amount are told
that the company will report them as having left not in good standing.
96. Southern’s handbook informs pilots that employees who are ineligible for rehire
will have that information reported on their permanent records under the Pilot Records
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Improvement Act (“PRIA”). A PRIA is a centralized record that contains information about all of
a pilot’s previous employment, reported by the pilot’s employers.
97. Negative information in a PRIA can ruin a pilot’s career.
VI. Collections Efforts
98. Due to the working conditions detailed above, many Southern pilots find it
impossible to continue working for the company for long enough for the TRAP term to expire. As
a result, Southern has very high pilot turnover.
99. The company attempts to stem this turnover not by addressing the issues with its
working conditions but by threatening to enforce and enforcing the TRAP against employees who
leave the company.
100. When pilots resign from Southern, the airline informs them of the amount it
believes they owe on their TRAP and requests repayment prior to the pilots’ final day of
employment.
101. Because of the extraordinarily low pay provided to pilots, many cannot afford to
pay thousands of dollars in a lump sum. However, Southern representatives have told some pilots
who requested a payment plan that no such plan was available.
102. Pilots are given the option of accepting a payout for unused paid time off (“PTO”)
or using their accrued PTO to pay down their debt.
103. Southern threatens pilots that if they leave Southern without paying their
outstanding TRAP amount prior to their final day of employment, there “will be consequences,”
including legal action and a notation on the pilot’s employment record that they did not leave in
good standing.
104. Between July 4 and July 10, 2023, Southern made good on this threat and filed debt
collections lawsuits against 19 pilots in Palm Beach small claims and county courts.
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105. In an article published in the Huffington Post on August 3, 2023, Southern CEO
Stan Little said that the purpose of the lawsuits was to prevent pilots from leaving Southern for
work at other airlines in light of a “pilot shortage.”
106. Little also stated, “There will be more to come.”
107. Sure enough, in the next three days after the article was published, Southern filed
lawsuits against 19 additional pilots. It has since filed approximately 40 more, bringing the total
number of lawsuits to approximately 59.
108. The burden and expense of responding to the TRAP lawsuits is extraordinarily high.
109. For the small claims cases, for example, the court automatically sets hearing dates
for approximately a month after filing. Properly served plaintiffs are required to appear in person
for these hearings. For those pilots who live outside of Florida—many as far away as Hawaii,
which is 5,000 miles away from Palm Beach—simply appearing in response to the court’s
summons requires them to fly for 12 hours or more in either direction, in addition to taking time
off work, finding and paying for lodging, and if necessary securing childcare.
110. The lawsuits have been effective in intimidating current pilots into staying at
Southern.
111. As Little himself stated to the Huffington Post, this is their intended purpose.
VII. Benjamin Ryan
A. Training
112. Defendant and Counterclaim Plaintiff Benjamin Ryan was hired as a First Officer
by Southern in March 2021.
113. At the time Southern hired him, Ryan had a single and multi-engine commercial
pilots’ license and approximately 270 hours of flying time.
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114. Ryan was hired by Southern to fly a Cessna Caravan out of the Dubois,
Pennsylvania airport.
115. At the time of his hire, Ryan already had all of the licensing and certification he
needed in order to legally fly a Cessna Caravan outside of the Part 135 context.
116. Ryan had to undergo Part 135 training in order to fly the Cessna Caravan for
Southern because Part 135 training is legally required of Part 135 airlines like Southern.
117. Ryan’s training began on May 10, 2021 in Palm Beach, Florida.
118. Ryan was presented with the TRAP on or around the first day of training. Southern
representatives made clear to him and his fellow trainees that if they did not sign the promissory
note, they would be fired on the spot, and would have to pay for their own plane ticket home.
119. One of Ryan’s fellow trainees asked if he could take the promissory note with him
to review it before he signed. Southern representatives told him that he could not.
120. The training in Palm Beach lasted for two weeks.
121. The following month, in June, Ryan flew to Hawaii to receive additional training.
This training involved two supervised training flights, and one check ride.
122. The training flights took place on Mokulele aircraft. Because the aircraft were
required for flights during the day, Ryan had to wait until 9 pm to learn if he would be able to take
a training flight during any given night. If he was able to take a training flight, that flight would
take off around 3 am.
123. Because limited planes were available for training flights, Ryan spent 10 days in
Hawaii, but only received actual training on four of those days.
124. Once Ryan passed his check-ride, he returned to the mainland to await release to
the line. Due to an error that Southern made with his paperwork, this took several more weeks.
24
During this period, Ryan was earning only $12 an hour for 65 hours a month, or less than $800 a
month.
125. Ryan’s rent for a shared studio apartment in Quincy, Massachusetts was $1,250 a
month.
126. As a result of rent and other basic cost of living expenses, he was under immense
financial strain during this period.
127. The financial pressure was so severe that Ryan was planning to start work at another
job, even though Southern told him that was not allowed.
B. Line Flying
128. Ryan was finally released to begin flying for Southern on July 24, 2021, and took
his first revenue flight on July 27, 2021.
129. In approximately October 2021, Ryan was presented with the SkyWest TRAP,
which he signed. Upon signing that agreement, Ryan received $7,500 from Southern in purported
reimbursement for training fees.
130. Ryan was based out of the Dubois airport as a First Officer until February 2022.
131. Ryan was based out of the Lancaster, Pennsylvania airport as a First Officer
between February 2022 and July 2022.
132. However, Ryan frequently flew out of other airports across the country because he
was assigned to temporary duty.
133. In July 2022, Ryan was upgraded to Captain. His base was moved to New Bedford,
Massachusetts, and he flew out of Nantucket.
134. Upon upgrade to Captain, Ryan received an additional $5,000 from Southern
pursuant to the SkyWest TRAP.
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135. In October 2022, Southern closed its location on Nantucket, and Ryan was assigned
permanently to temporary duty.
136. Ryan resigned from Southern in October 2022.
137. In his resignation e-mail, he explained that the unpredictable and last-minute
scheduling had made it too difficult to plan basic aspects of his life.
138. In addition, Ryan’s decision to resign was influenced by the ongoing safety issues
he experienced as a pilot at Southern.
139. He did not mention these issues in his letter because he knew that he would have
the opportunity to discuss them at his exit interview with Southern’s chief pilot, which he did. This
conversation lasted for over an hour.
140. Due to delays starting his new job, Ryan continued to fly part-time for Southern
until January 2023.
C. Safety Issues
141. During the course of his employment at Southern, Ryan experienced consistent,
repeated safety issues with Southern aircraft, and a cavalier attitude about safety from
management, including pressure from management to fly in what Ryan believed were unsafe
conditions.
142. For example, one time Ryan was required to fly one of the oldest aircraft Southern
owned, even though other pilots had been reporting for several days that unexplained white smoke
was emerging from the plane during flight.
143. Although Ryan’s initial flight in the aircraft was uneventful, the plane began to emit
smoke upon touchdown at Washington Dulles International Airport.
144. However, Southern mechanics assigned to inspect the aircraft said that they didn’t
see anything wrong.
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145. Ryan had to insist several times that the plane was not fit for use before a mechanic
agreed with him that the plane could not continue to be flown until the issue that was causing the
smoke was identified and resolved.
146. On another occasion, in August or September of 2021, Ryan noticed that the engine
on the aircraft he was flying from Washington, D.C. to Lancaster, Pennsylvania wasn’t performing
normally.
147. When he landed, he called mechanics to come look at the plane. The mechanics
then discovered that maintenance had missed several steps of the standard safety procedures and
failed to safety-wire the engine, which is a necessary procedure to keep screws and bolts from
shaking loose during aircraft operations.
148. If this oversight had not been caught due to Ryan’s vigilance, the aircraft would
likely have experienced total engine failure within hours.
149. Broken air conditioning was also a consistent issue, which became dangerous for
both pilots and passengers when it was hot outside.
150. For example, on on
Preview
Filing # 181454455 E-Filed 09/08/2023 10:20:12 PM IN THE COUNTY COURT OF THE FIFTEENTH JURDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Southern Airways Corporation, Plaintiff/Counter-Defendant CASE NO.: 50-2023-sc-010947-xxxx-mb v. CLASS ACTION COUNTERCLAIM Benjamin Ryan, Defendants/Counter-Plaintiff. ____________________________________/ DEFENDANT BENJAMIN RYAN’S ANSWER TO PLAINTIFF’S COMPLAINT, AFFIRMATIVE DEFENSES, AND CLASS COUNTERCLAIM Benjamin Ryan (“Defendant,” “Counterclaim Plaintiff,” or “Ryan”), by and through his attorneys and on behalf of himself answers the Complaint of Southern Airways Corporation (“Plaintiff,” “Counterclaim Defendant,” or “Southern”), and states affirmative defenses, and on behalf of himself and the Class set forth below, and in the public interest, brings the Counterclaims set forth below, seeking relief for violations of the Fair Labor Standards Act, 29 U.S.C. § 203 et seq., the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1589, et seq., and Florida law. ANSWER 1. As to paragraph 1, Defendant admits that Southern is a Delaware corporation with its principal place of business in Palm Beach County, Florida, and that Southern is the former employer of Defendant, and denies the remainder of the paragraph. 2. As to paragraph 2, Defendant admits that he is a former employee of Southern, and denies the remainder of the paragraph. 3. As to paragraph 3, Defendant denies. Due to his counterclaims, the matter in controversy exceeds $50,000. FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 09/08/2023 10:20:12 PM 4. As to paragraph 4, Defendant admits that this Court has personal jurisdiction over Defendant. Defendant denies that he failed to perform under the terms of the agreement and that he materially breached his contract. 5. As to paragraph 5, Defendant admits. 6. As to paragraph 6, Defendant repeats his prior admissions and denials. 7. As to paragraph 7, Defendant admits. 8. As to paragraph 8, Defendant admits that some airlines have experienced a pilot shortage in recent years and denies the remainder of the paragraph. 9. As to paragraph 9, Defendant denies. 10. As to paragraph 10, Defendant admits the existence of the quoted language in the contract and denies the remainder of the paragraph. 11. As to paragraph 11, Defendant admits pilots enter into an agreement with Southern and denies that this agreement is “voluntary.” 12. As to paragraph 12, Defendant does not have sufficient information to admit or deny the number of applicants for each job opening, and denies the remainder of the paragraph. 13. As to paragraph 13, Defendant admits. 14. As to paragraph 14, Defendant admits. 15. As to paragraph 15, Defendant denies. 16. As to paragraph 16, Defendant admits. 17. As to paragraph 17, Defendant admits. 18. As to paragraph 18, Defendant admits that he signed the promissory note and denies that this agreement was “voluntary.” 2 19. As to paragraph 19, Defendant admits the existence of the quoted language in the contract and denies the remainder of the paragraph. 20. As to paragraph 20, Defendant admits the existence of the quoted language in the contract and denies the remainder of the paragraph. 21. As to paragraph 21, Defendant admits. 22. As to paragraph 22, Defendant admits. 23. As to paragraph 23, Defendant admits. 24. As to paragraph 24, Defendant denies. 25. As to paragraph 25, Defendant denies. 26. As to paragraph 26, Defendant repeats his prior admissions and denials. 27. As to paragraph 27, Defendant admits that the promissory note was signed on May 10, 2021. The remainder of the paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies. 28. As to paragraph 28, Defendant admits the existence of the quoted language and denies that the agreement is enforceable. 29. As to Paragraph 29, Defendant admits the existence of the quoted language and denies that the agreement is enforceable. 30. Paragraph 30 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies. 31. Paragraph 31 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies the allegations stated therein. 32. As to Paragraph 32, Defendant admits that he tendered his resignation on January 8, 2023, effective January 22, 2023, and denies the remainder of the paragraph. 3 33. Paragraph 33 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies the allegations stated therein. 34. Paragraph 34 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies the allegations stated therein. 35. Paragraph 35 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies the allegations stated therein. 36. As to the unnumbered paragraph following paragraph 35, Defendant denies that Plaintiff is entitled to judgment or any monetary or other relief. 37. As to paragraph 36, Defendant repeats his prior admissions and denials. 38. Paragraph 37 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies the allegations stated therein. 39. As to Paragraph 38, Plaintiff admits that his employment with Southern started on May 10, 2021 and denies the remainder of the paragraph. 40. As to Paragraph 39, Defendant denies. 41. As to Paragraph 40, Defendant denies. 42. As to Paragraph 41, Defendant admits that he signed the employment offer on April 11, 2021 and the promissory note on May 10, 2021 and denies the remainder of the paragraph. 43. Paragraph 42 contains legal conclusions for which no response is required. To the extent a response is required, Defendant denies the allegations stated therein. 44. As to Paragraph 43, Defendant denies. 45. As to the unnumbered paragraph following paragraph 43, Defendant denies that Plaintiff is entitled to judgment or any monetary or other relief. 4 AFFIRMATIVE DEFENSES Without waiving the requirement that Plaintiff prove each and every element of each claim asserted in the Complaint, Defendant asserts the following affirmative defenses. FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CLAIM) Plaintiff fails to state a cause of action upon which relief may be granted because Plaintiff's complaint fails to establish that a legal contract was formed or otherwise capture the true nature of the working relationship between Plaintiff and its pilots, including Defendant. Further, Plaintiff also seeks to incorporate into its purported contract an illegal penalty. SECOND AFFIRMATIVE DEFENSE (ILLEGALITY) The purported contract is illegal and contrary to public policy and thus not an enforceable contract. Among other things, the document violates the Fair Labor Standards Act and the Trafficking Victims’ Protection Act, as well as Florida competition law, as described in greater detail below. Plaintiff also seeks to incorporate into its purported contract an illegal penalty. THIRD AFFIRMATIVE DEFENSE (UNCONSCIONABILITY) The purported contract is both procedurally and substantively unconscionable. The document is a form document. It was presented to Defendant on a take-it-or-leave-it basis in a situation in which Plaintiff held all the bargaining power. Plaintiff also seeks to incorporate into its purported contract an illegal penalty. 5 FOURTH AFFIRMATIVE DEFENSE (LACK OF MUTUALITY) Plaintiff's complaint contains provisions regarding damages, costs, and enforcement that are not enforceable because they constitute a penalty, lack mutuality, and are unreasonable and excessive. Plaintiff also seeks to incorporate into its purported contract this illegal penalty. FIFTH AFFIRMATIVE DEFENSE (MATERIAL BREACH BY PLAINTIFF) In the alternative, Plaintiff was in material breach of any contract with Defendant that may have existed. Plaintiff failed to provide Defendant with training worth anywhere near the purported value and failed to provide Defendant with a reasonably safe working environment. SIXTH AFFIRMATIVE DEFENSE (IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING) In the alternative, Plaintiff breached the implied covenant of good faith and fair dealing by failing to provide Defendant training worth anywhere near the purported value, by failing to provide Defendant with a reasonably safe working environment, and by forcing Defendant to work under threatened abuse of legal process. SEVENTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) In the alternative, under the doctrine of unclean hands, the actions of the Plaintiff—as set out in detail below and, among other things, failing to provide Defendant with a reasonably safe working environment and by forcing Defendant to work under threatened abuse of legal process— bar recovery in this action. Plaintiff's wrongful conduct precludes it from seeking relief and the claim should be dismissed. 6 EIGHTH AFFIRMATIVE DEFENSE (MITIGATION) Plaintiff has mitigated any arguable damages resulting from any breach of contract given its allegation that it has no trouble with hiring new pilots to fill any available spots. NINTH AFFIRMATIVE DEFENSE (WAIVER) In the alternative, Plaintiff has waived claims by its actions, including but not limited to by failing to provide Defendant training worth anywhere near the purported value, by failing to provide Defendant with a reasonably safe working environment, and by forcing Defendant to work under threatened abuse of legal process. TENTH AFFIRMATIVE DEFENSE (ESTOPPEL) In the alternative, Plaintiff is estopped from pursuing its purported claims by its actions, including but not limited to by failing to provide Defendant training worth anywhere near the purported value, by failing to provide Defendant with a reasonably safe working environment, and by forcing Defendant to work under threatened abuse of legal process. ELEVENTH AFFIRMATIVE DEFENSE (FAILURE OF CONSIDERATION) In the alternative, any contract between Plaintiff and Defendant is unenforceable because Plaintiff failed to provide Defendant training worth anywhere near the purported value, failed to provide Defendant with a reasonably safe working environment, and forced Defendant to work under threatened abuse of legal process, depriving Defendant of any benefit of the bargain. 7 THIRTEENTH AFFIRMATIVE DEFENSE (ENFORCEMENT OF CONTRACT VIOLATES WHISTLEBLOWER PROTECTIONS) In the alternative, Plaintiff’s efforts to enforce the purported contract at issue in this case violates federal whistleblower protections under 49 U.S.C. § 42121 because Defendant engaged in protected whistleblower activities and this case is in retaliation for those activities and/or this case arises from Defendant’s reasonable belief that continued employment with Plaintiff would necessarily cause him to violate any order, regulation, or standard of the FAA or any other provision of Federal law relating to aviation safety. FOURTEENTH AFFIRMATIVE DEFENSE (RESERVATION OF AFFIRMATIVE DEFENSES) Defendant reserves the right to assert and rely upon such additional affirmative defenses to the Complaint as may become available or apparent as discovery commences and progresses in this action. COUNTERCLAIMS 1. The lawsuit against Defendant and Counterclaim Plaintiff Benjamin Ryan is one of approximately 59 lawsuits that Plaintiff and Counterclaim Defendant Southern Airways Corporation (“Southern”) has filed against its former pilots. These lawsuits seek to collect thousands of dollars from each pilot, purportedly in order to reimburse Southern for training expenses incurred on the pilots’ behalf. 2. The true purpose of these lawsuits is not to collect money at all. Rather, as CEO Stan Little told a reporter for the Huffington Post, the lawsuits were filed because Southern is experiencing a “pilot shortage” and needs to stem high rates of pilot turnover. 1 1 Dave Jamieson, Southern Airways Express Is Suing Former Pilots For Training Costs, Huffpost (August 3, 2023), https://www.huffpost.com/entry/southern-airways-express-is-suing-former-pilots-for-training- costs_n_64cbe72ee4b01796c06b6af8. 8 3. But Southern’s inability to retain pilots absent the threat of lawsuits to recover an unenforceable debt is of its own making. 4. Although Southern advertises its pilot jobs as a good opportunity to gain training and flight hours, that is not what pilots find when they begin working. 5. Instead, they quickly find that they are bound to a company that shows a systematic disregard for the safety of its pilots and passengers. The safety issues at Southern include requiring pilots to fly planes with obvious mechanical issues, failing to invest appropriate resources in repairs, pressuring pilots to fly in dangerous weather conditions, scheduling pilots to work long days with little sleep, and seeking to implement policies that punish pilots who are too fatigued to fly. 6. Instead of addressing these issues, Southern filed lawsuits against Defendant Ben Ryan, along with many other pilots (the “Counterclaim Class”) in order to punish them for leaving their jobs at Southern to secure better, safer working conditions and higher pay at other airlines, and to intimidate current Southern employees into staying in jobs that they are desperate to leave. 7. In furtherance of these goals, Southern requires its pilots as a condition of employment to sign a Training Repayment Provision Agreement (“TRAP”) that requires pilots to pay up to $20,100 to “reimburse” the airline for the cost of training. 8. The training Southern provides gives pilots with no portable license or credential, and does not move with pilots from job to job because the Federal Aviation Administration (“FAA”) requires the training of the airline, not of the individual pilots. 9. These TRAPs are unenforceable. Charging pilots for required job training that is of primary benefit to their employer unless they stay working for Southern for years violates several state and federal laws. 9 10. Despite this, Little told the Huffington Post that there would be “more [lawsuits] to come” against additional pilots. 11. Southern’s abuse of the legal system to attempt to stem high turnover resulting from low pay and difficult working conditions should not be facilitated by the courts. 12. Therefore, Defendant Benjamin Ryan files this answer and counterclaim on behalf of himself and the Counterclaim Class alleging violations of the Fair Labor Standards Act, the Trafficking Victims Protection Act, and other state and federal laws. JURISDICTION AND VENUE 13. Florida’s Circuit Court has jurisdiction because they are courts of general jurisdiction for civil matters with claims in excess of $50,000, as here. 14. Moreover, these Counterclaims are compulsory because they arise out of the same transaction or occurrence as Southern’s alleged claims against Ryan. 15. Southern Airways Express has consented to the jurisdiction and venue in Palm Beach County, Florida. PARTIES 16. Benjamin Ryan is a pilot who was employed by Southern. He is a resident of Boston, Massachusetts. 17. Southern Airways Corporation is a Delaware corporation with its principal place of business in Palm Beach County, Florida. STATEMENT OF FACTS I. Southern’s Fleet and Hiring Requirements 18. Southern is a national commuter airline that flies throughout the country, including New England, the Mid-Atlantic, the Midwest, and Southern California. 10 19. Southern also operates in Hawaii under the name Mokulele Airlines, and in New York and New England under the name Tailwind Air. 20. Southern’s fleet consists of approximately 50 aircraft, the vast majority of which are Cessna 208 Caravans. In addition, it operates 3 Tecnam P2010s, 7 Pilatus PC-12s, and 2 Saab 340Bs. 21. In order to qualify for hire, all Southern pilots must hold a commercial pilot certificate with a multi-engine land and instrument rating. The company also requires a minimum of 250 hours of flying time, as well as minimum requirements for specific types of flight experience, including a certain amount of time flying turbine engines, flying cross-country, and flying at night. 22. In other words, pilots must come to Southern with existing certifications or credentials. These certifications require substantial experience, which pilots must obtain before coming to Southern. A commercial pilot certificate requires 250 hours of flight experience, including a specific amount of time flying cross-country and as a pilot-in-command, along with instrument training and experience flying a complex aircraft. 23. Pilots with a commercial pilot certificate are permitted to fly certain commercial planes without any additional certification or licensure. These planes include planes that weigh under 12,500 pounds and are powered by propellors. Nearly all of the aircraft in Southern’s fleet fall into this category. 24. In order to captain commercial aircraft that weigh over 12,500 pounds, any airplane with a jet engine, and certain other aircraft as designated by the FAA, pilots must achieve what is called a “type rating” in addition to their commercial pilot certificate. A type rating is an additional certification, beyond a commercial pilot’s certificate, that allows pilots to captain a specific make 11 and model of an aircraft. For example, a pilot who wants to captain an Airbus A320 must receive an Airbus type rating that encompasses the A319, A320, A321 aircraft types. 25. Of the planes in Southern’s fleet, only the two Saab 340s are type-rated aircraft because of how much they weigh. 26. The aircraft that Southern Airways operates can all be flown with a single pilot. However, Southern operates these aircraft with both a pilot-in-command (i.e., captain) and second- in-command (i.e., first officer). 27. In the first group of complaints against its pilots, Southern states that most of its aircraft “do not require co-pilots,” but Southern “voluntarily and at its own expense” hires co- pilots to “help[] accelerate their career paths.” 28. This is misleading. Pursuant to federal aviation regulations under 14 C.F.R. Part 135, pursuant to which Southern operates, Southern’s aircraft do not require co-pilots if they have a functioning autopilot system, but they do require co-pilots if the autopilot system is not operational. The autopilot system on aircraft in Southern’s fleet is frequently broken, and has been removed or made inoperable in many planes. 29. In fact, Southern does not currently have FAA authorization for single-pilot operations under Part 135. 30. The allegation that Southern hires co-pilots out of generosity is not included in the complaints it filed against pilots in August, which are otherwise substantially similar to the complaints it filed against pilots in July. II. Southern’s Operating Requirements 31. Southern is a Part 135 airline. Part 135 refers to 14 C.F.R. Part 135, an aviation regulation that applies to operators of charter planes in interstate, foreign, or overseas 12 transportation or carrying mail and that have 30 or fewer seats or a maximum payload capacity of 7,500 pounds. 32. Holders of Part 135 certification, including Southern, must meet specific requirements for equipment, facilities, personnel, manuals and programs. These requirements include that the operator submit a completed training curriculum as part of its Part 135 application letter, including: ● Basic indoctrination training ● Emergency training ● Crew resource management (CRM) training ● Initial ground and flight training ● Upgrade ground and flight training ● Recurrent ground and flight training ● Requalification training ● Differences ground and flight training ● Transition ground and flight training ● Hazardous material (hazmat) training 33. FAA regulations require Part 135 operators to have all newly-hired pilots undergo the training curriculum for the airplane they were hired to fly, regardless of whether the pilots already have the certifications they would need in order to fly independently of the operator, and regardless of their prior experience. 34. Part 135 certification is required of airline operators, not of specific pilots. In other words, the Part 135 training is for the benefit of the airline operator (so that they can maintain the proper certification) rather than for the benefit of the pilots (who do not necessarily receive 13 transferrable certification or credentialing as a result of the training they receive). Pilots may receive a type rating as part of the Part 135 training process, but only if the aircraft is type-rated, which the vast majority of planes Southern operates are not. III. Pilot Training Provided to New Hires at Southern 35. Part 135 training for pilots at Southern lasts for approximately four weeks, although in some cases it takes significantly longer, as trainer staffing issues and limited equipment may leave pilots waiting for training spots for weeks or even months. 36. Training begins with approximately two weeks of new hire training at Southern’s facilities in Palm Beach, Florida. 37. This training is taught in-house by a Southern employee. 38. Approximately the first week of training consists of classroom training on Southern policies, procedures, and operational specifications, commonly known as “indoc.” 39. Approximately the second week of training consists of ground systems training, where new pilot hires learn the systems and flight limitations of the aircraft they will be flying, including for example takeoff weight, airspeed, and performance in various weather conditions. 40. Once trainees have completed ground school, they receive simulator and hands-on flying experience, which takes place either in-house at Southern’s facilities in Hawaii, or at a third- party flight school. 41. The amount that Southern charges pilots does not vary based on whether the second part of training takes place in-house at Southern or at a third-party flight school. 42. In order to complete training, pilots are required to log at least two supervised flights. 43. Pilots who attend training in Hawaii gain flying experience by taking the supervised flights directly on Southern aircraft. Because the aircraft used for training in Hawaii are used for 14 passenger flights during the day, pilots have to complete their training flights in the middle of the night, often with very little notice. 44. Due to backups at both flight school and Southern’s in-house training, pilots often experience delays before they are able to begin revenue flying. During this period, pilots are earning $12 an hour and as little as approximately $700 per month. 45. Once pilots have completed their practice flying, they undergo a check-ride, which is how pilots refer to an FAA practical test conducted by an authorized examiner. 46. Pilots who had passed their check-ride and completed the necessary paperwork are released to begin flying revenue flights. 47. Southern could easily calculate and provide the actual cost of the training to the pilots who undergo it, but it does not do so. 48. Southern’s training does not provide any sort of credential that is transferrable to another employer. That’s because Part 135 training is tied to a specific employer, and most Southern aircraft do not require a type rating to fly. Pilots come to Southern with all of the licensing they need to fly these aircraft. 49. Furthermore, even a type-rated pilot who transferred to a different Part 135 operator would have to repeat most of the Part 135 training that they received from Southern—the training that gave them the type rating—because that training is a requirement for the airline to operate and not for the individual pilots. IV. Training Repayment Agreement Provision A. Promissory Note 50. Southern requires all new pilot hires to sign a Promissory Note upon commencement of their employment with Southern. This provision is hereinafter referred to as the Training Repayment Agreement Provision, or TRAP. 15 51. The TRAP requires new second-in-command hires to pay Southern between $16,000 and $20,100, and new pilot-in-command hires to pay Southern $9,500, if they resign, are terminated for cause, or become “unable to fulfill [their] duties and tasks” before they have flown for at least 12 months for the company as a pilot-in command (the “TRAP Period”). 52. The TRAP claims that the TRAP debt is an “advance” for “training, travel, check- rides, simulator time, and/or ground school.” 53. Pilots are eligible for promotion from second-in-command to pilot-in-command when they have flown a total of 1200 hours, which can take ten months or more depending on the amount of flying time the pilot started with. Therefore, for many pilots, TRAP requires pilots to work for Southern for far longer than 12 months. 54. The amount pilots owe under the TRAP is reduced in equal increments for each month that the pilot flies for Southern until the end of the TRAP period. 55. In the offer letter provided to pilots, Southern explicitly tells them that the true purpose of the TRAP is not to recover training costs, but rather to prevent pilots from leaving their job. 56. The offer letter, which is signed by Manager of Corporate Recruiting Julie Puckhaber, states: “In exchange for your training, we require a promissory note that will be provided during Ground School. The value of the note is [between $9,500 and $20,100], which ensures against your resignation . . . ” (emphasis added). 57. The TRAP is an unreasonable restraint of trade, with no geographical limitations or limitations on the scope of the activity to be restrained. The TRAP imposes a serious financial burden on pilots who wish to leave Southern, whether they are doing so to work for a competitor, to move to another state or country, or to change careers entirely. It is not reasonably tailored to 16 maintaining Southern’s goodwill or other business interests. Rather, it is designed to punish employees for exercising their right to seek better or even simply different terms of employment elsewhere. 58. In addition, the amount of money Southern charges employees for leaving their jobs is not a reasonable forecast of just compensation for the training they receive. The valuation for training is arbitrary and inflated. B. Tuition and Fee Reimbursement Agreement 59. The Promissory Note is not the only Training Repayment Agreement Provision that Southern pilots are presented with. 60. In addition to the Promissory Note, Southern provides pilots with a document called a “Tuition and Fee Reimbursement Agreement” (hereinafter “SkyWest TRAP”) to sign upon hire. 61. This agreement provides that Southern and SkyWest Airlines, Inc., “have entered into an agreement pursuant to which Southern and SkyWest will work together to encourage SAE’s Part 135 pilots to qualify as Part 121 pilots and thereafter obtain employment at SkyWest.” 62. SkyWest is a commercial passenger airline regulated under 14 C.F.R. Part 121 that contracts with Alaska Airlines, American Airlines, Delta Airlines, and United Airlines to offer flights from smaller regional airports to the large hubs of its partner airlines. 63. SkyWest is the largest regional airline in North America. 64. Pursuant to the SkyWest TRAP, Southern will pay pilots $7,500 upon completion of initial flight training at Southern, $5,000 upon promotion to captain, and an additional $5,000 upon completion of SkyWest training. 65. These payments are intended as reimbursement for “pilot training fees, aircraft usage fees and other tuition payments.” 17 66. However, these payments are conditional and subject to clawback if pilots do not both 1) accept a job at SkyWest after flying for at least 600 hours as a pilot-in-command at Southern and then 2) continue to work as a pilot at SkyWest for at least two years after completing training. 67. According to the contract Southern imposes on them, pilots who do not accept a job with SkyWest, or who leave SkyWest within two years, must pay back up to $17,500. If the pilots do not pay this amount within 30 days of termination, they are subject to an additional penalty in the form of interest at a rate of 6 percent annually. V. Working Conditions A. Maintenance Concerns 68. Southern pilots are forced to operate with glaring maintenance and safety concerns that management consistently fails to address despite repeated complaints. 69. Indeed, at least one of the pilots Southern has sued wrote in his resignation letter that he resigned “[d]ue to ongoing concerns regarding maintenance and safety.” 70. Frequent maintenance issues that pilots experienced included inoperable fire detection switches, constant oil leaks, incorrect altitude indicators, non-functional autopilots, and no air conditioning that led to passengers and pilots overheating. 71. If these issues occurred on a private plane, that plane would be illegal to fly. 72. When these issues occur on commercial aircraft, they can be placed on a Minimum Equipment List (“MEL”). Pursuant to FAA regulations, the MEL provides temporary relief from the requirement that all parts of an aircraft are in working order. 73. The MEL is intended to allow airlines to continue to operate flights until they have enough time to fix mechanical issues that are not immediately dangerous. 18 74. MEL repairs on Southern aircraft were consistently delayed, often to the point where Southern had to seek an extension on the repair deadline. This practice led to a pile-up of maintenance issues, and meant that pilots frequently had to fly planes that had numerous pieces of malfunctioning equipment. 75. Some issues were simply never fixed. For example, as noted above, the autopilot on the vast majority of Southern aircraft is not functioning or has been removed altogether. 76. It is highly unusual for a commercial passenger aircraft in the United States to operate without autopilot. 77. These maintenance issues have real consequences. For example, on or around May 2, 2023, Mokulele Flight 209 experienced engine failure shortly after taking off from the island of Molokai en route to Honolulu carrying 23 passengers. The aircraft finished the flight with a single functioning engine. 78. This incident is currently under investigation by the FAA. 79. To maintain its operations without investing in sufficient maintenance or repairs, Southern persistently pressured pilots to stay silent about Southern’s operational issues. Pilots who reported mechanical issues reported facing retaliation, such as being held on the tarmac for so long that they were unable to make a connecting flight home, or being assigned to particularly unfavorable schedules. B. Pressure to Fly in Severe Weather 80. Southern pilots report being required to fly in severe weather conditions, such as storms that impeded visibility or hail. 81. Another recurring issue related to winter weather. When ice forms on an aircraft, it can disrupt the flow of air and lead to problems with handling and performance. As a result, FAA 19 regulations require planes to be thoroughly de-iced before they are able to fly and that anti-icing equipment is operational. 82. Southern pilots report pressure to fly in known icing conditions with malfunctioning or inoperative de-icing equipment. C. Fatigue and overwork 83. Although Southern tells pilots when they are hired that they will be scheduled for four days flying and four days of rest, in fact schedules are intense, with very little time off. 84. Southern’s operating requirements mandate that they provide pilots with their schedule at least a week before the month begins. In practice, however, pilots frequently do not receive their monthly schedules until a day or two before the beginning of the month, and schedules undergo constant changes, making it very difficult to plan. 85. Pilots are told that they will have the opportunity to bid on their preferred schedules as they gain seniority, but pilot bids are rarely taken into consideration. 86. FAA regulations require all pilots to state at the beginning of each flight segment that he or she is fit for duty, which includes an affirmative statement that he or she is not experiencing fatigue. Therefore, flying while fatigued is a serious violation of FAA regulations. 87. On one occasion, an email from CEO Stan Little was leaked to pilots where Little suggested “look[ing] to implement a policy in the future that anyone who calls fatigue on his last day of a rotation must remain in place the following day as ready reserve—we shouldn’t have to be nervous that crews will call fatigue to get an earlier start to their trip home.” 88. The result of this policy would have been that pilots were discouraged to report feeling fatigue for fear that they would not be permitted to go home on their rare days off. 20 89. Pilots also report consistent timekeeping issues, particularly when they are about to run up against FAA flying limits. These timekeeping issues can lead to pilots flying more than they are legally permitted to fly under existing regulations. D. Job Satisfaction and Pay 90. In November 2022, an anonymous survey was emailed to Southern pilots. Although Southern deleted the survey from pilots’ email inboxes, many pilots were able to respond. The results indicated overwhelming pilot dissatisfaction, in particular with regard to safety concerns. 91. In addition to the maintenance and safety issues at Southern, pay is extraordinarily low. First Officers earn as low as $12 per hour with a 57-hour a month minimum guarantee. This amounts to only $684 per month, or $8,208 per year pre-tax. 92. For the first part of the class period, First Officers’ wages did not increase until they were employed for six months, at which point they were raised to approximately $18 per hour. For the second part of the class period, First Officers’ wages did not increase until they had at least 600 hours of flight time, at which point they were raised to approximately $21 per hour. 93. Captains earn a base salary of as little as $45 per hour with a 65-hour a month minimum guarantee, which amounts to approximately $35,000 per year pre-tax. 94. This pay is not enough to survive in many of the markets in which Southern pilots live. For example, as of August 2022, Honolulu, Hawaii was the third-most expensive place to rent an apartment in the entire country, with a median rent for a two-bedroom apartment of $2,500. 95. Pilots who leave the company before they have served 12 months as a pilot-in- command are marked ineligible for rehire, and those who do not repay the TRAP amount are told that the company will report them as having left not in good standing. 96. Southern’s handbook informs pilots that employees who are ineligible for rehire will have that information reported on their permanent records under the Pilot Records 21 Improvement Act (“PRIA”). A PRIA is a centralized record that contains information about all of a pilot’s previous employment, reported by the pilot’s employers. 97. Negative information in a PRIA can ruin a pilot’s career. VI. Collections Efforts 98. Due to the working conditions detailed above, many Southern pilots find it impossible to continue working for the company for long enough for the TRAP term to expire. As a result, Southern has very high pilot turnover. 99. The company attempts to stem this turnover not by addressing the issues with its working conditions but by threatening to enforce and enforcing the TRAP against employees who leave the company. 100. When pilots resign from Southern, the airline informs them of the amount it believes they owe on their TRAP and requests repayment prior to the pilots’ final day of employment. 101. Because of the extraordinarily low pay provided to pilots, many cannot afford to pay thousands of dollars in a lump sum. However, Southern representatives have told some pilots who requested a payment plan that no such plan was available. 102. Pilots are given the option of accepting a payout for unused paid time off (“PTO”) or using their accrued PTO to pay down their debt. 103. Southern threatens pilots that if they leave Southern without paying their outstanding TRAP amount prior to their final day of employment, there “will be consequences,” including legal action and a notation on the pilot’s employment record that they did not leave in good standing. 104. Between July 4 and July 10, 2023, Southern made good on this threat and filed debt collections lawsuits against 19 pilots in Palm Beach small claims and county courts. 22 105. In an article published in the Huffington Post on August 3, 2023, Southern CEO Stan Little said that the purpose of the lawsuits was to prevent pilots from leaving Southern for work at other airlines in light of a “pilot shortage.” 106. Little also stated, “There will be more to come.” 107. Sure enough, in the next three days after the article was published, Southern filed lawsuits against 19 additional pilots. It has since filed approximately 40 more, bringing the total number of lawsuits to approximately 59. 108. The burden and expense of responding to the TRAP lawsuits is extraordinarily high. 109. For the small claims cases, for example, the court automatically sets hearing dates for approximately a month after filing. Properly served plaintiffs are required to appear in person for these hearings. For those pilots who live outside of Florida—many as far away as Hawaii, which is 5,000 miles away from Palm Beach—simply appearing in response to the court’s summons requires them to fly for 12 hours or more in either direction, in addition to taking time off work, finding and paying for lodging, and if necessary securing childcare. 110. The lawsuits have been effective in intimidating current pilots into staying at Southern. 111. As Little himself stated to the Huffington Post, this is their intended purpose. VII. Benjamin Ryan A. Training 112. Defendant and Counterclaim Plaintiff Benjamin Ryan was hired as a First Officer by Southern in March 2021. 113. At the time Southern hired him, Ryan had a single and multi-engine commercial pilots’ license and approximately 270 hours of flying time. 23 114. Ryan was hired by Southern to fly a Cessna Caravan out of the Dubois, Pennsylvania airport. 115. At the time of his hire, Ryan already had all of the licensing and certification he needed in order to legally fly a Cessna Caravan outside of the Part 135 context. 116. Ryan had to undergo Part 135 training in order to fly the Cessna Caravan for Southern because Part 135 training is legally required of Part 135 airlines like Southern. 117. Ryan’s training began on May 10, 2021 in Palm Beach, Florida. 118. Ryan was presented with the TRAP on or around the first day of training. Southern representatives made clear to him and his fellow trainees that if they did not sign the promissory note, they would be fired on the spot, and would have to pay for their own plane ticket home. 119. One of Ryan’s fellow trainees asked if he could take the promissory note with him to review it before he signed. Southern representatives told him that he could not. 120. The training in Palm Beach lasted for two weeks. 121. The following month, in June, Ryan flew to Hawaii to receive additional training. This training involved two supervised training flights, and one check ride. 122. The training flights took place on Mokulele aircraft. Because the aircraft were required for flights during the day, Ryan had to wait until 9 pm to learn if he would be able to take a training flight during any given night. If he was able to take a training flight, that flight would take off around 3 am. 123. Because limited planes were available for training flights, Ryan spent 10 days in Hawaii, but only received actual training on four of those days. 124. Once Ryan passed his check-ride, he returned to the mainland to await release to the line. Due to an error that Southern made with his paperwork, this took several more weeks. 24 During this period, Ryan was earning only $12 an hour for 65 hours a month, or less than $800 a month. 125. Ryan’s rent for a shared studio apartment in Quincy, Massachusetts was $1,250 a month. 126. As a result of rent and other basic cost of living expenses, he was under immense financial strain during this period. 127. The financial pressure was so severe that Ryan was planning to start work at another job, even though Southern told him that was not allowed. B. Line Flying 128. Ryan was finally released to begin flying for Southern on July 24, 2021, and took his first revenue flight on July 27, 2021. 129. In approximately October 2021, Ryan was presented with the SkyWest TRAP, which he signed. Upon signing that agreement, Ryan received $7,500 from Southern in purported reimbursement for training fees. 130. Ryan was based out of the Dubois airport as a First Officer until February 2022. 131. Ryan was based out of the Lancaster, Pennsylvania airport as a First Officer between February 2022 and July 2022. 132. However, Ryan frequently flew out of other airports across the country because he was assigned to temporary duty. 133. In July 2022, Ryan was upgraded to Captain. His base was moved to New Bedford, Massachusetts, and he flew out of Nantucket. 134. Upon upgrade to Captain, Ryan received an additional $5,000 from Southern pursuant to the SkyWest TRAP. 25 135. In October 2022, Southern closed its location on Nantucket, and Ryan was assigned permanently to temporary duty. 136. Ryan resigned from Southern in October 2022. 137. In his resignation e-mail, he explained that the unpredictable and last-minute scheduling had made it too difficult to plan basic aspects of his life. 138. In addition, Ryan’s decision to resign was influenced by the ongoing safety issues he experienced as a pilot at Southern. 139. He did not mention these issues in his letter because he knew that he would have the opportunity to discuss them at his exit interview with Southern’s chief pilot, which he did. This conversation lasted for over an hour. 140. Due to delays starting his new job, Ryan continued to fly part-time for Southern until January 2023. C. Safety Issues 141. During the course of his employment at Southern, Ryan experienced consistent, repeated safety issues with Southern aircraft, and a cavalier attitude about safety from management, including pressure from management to fly in what Ryan believed were unsafe conditions. 142. For example, one time Ryan was required to fly one of the oldest aircraft Southern owned, even though other pilots had been reporting for several days that unexplained white smoke was emerging from the plane during flight. 143. Although Ryan’s initial flight in the aircraft was uneventful, the plane began to emit smoke upon touchdown at Washington Dulles International Airport. 144. However, Southern mechanics assigned to inspect the aircraft said that they didn’t see anything wrong. 26 145. Ryan had to insist several times that the plane was not fit for use before a mechanic agreed with him that the plane could not continue to be flown until the issue that was causing the smoke was identified and resolved. 146. On another occasion, in August or September of 2021, Ryan noticed that the engine on the aircraft he was flying from Washington, D.C. to Lancaster, Pennsylvania wasn’t performing normally. 147. When he landed, he called mechanics to come look at the plane. The mechanics then discovered that maintenance had missed several steps of the standard safety procedures and failed to safety-wire the engine, which is a necessary procedure to keep screws and bolts from shaking loose during aircraft operations. 148. If this oversight had not been caught due to Ryan’s vigilance, the aircraft would likely have experienced total engine failure within hours. 149. Broken air conditioning was also a consistent issue, which became dangerous for both pilots and passengers when it was hot outside. 150. For example, on on