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due by wire transfer or direct deposit into an account of TLC.
TLC did not maintain separate accounts for the funds received
from each trucking company client.
In order to minimize TLC’s loss in the event a trucking
company client did not pay to it the payroll period net lease fee
due, each exclusive lease agreement required each trucking
company client to make a deposit with TLC equal to $650 per truck
($650 deposit). TLC intended the $650 deposit to approximate
TLC’s payroll obligation for one week for each driver-employee
whom it leased to a trucking company client. The $650 deposit
that each trucking company client paid to TLC did not ensure that
TLC had sufficient funds to pay TLC’s payroll obligation with
respect to each driver-employee whom it leased to such trucking
company client where (1) such trucking company client selected a
payroll period that covered more than one week and/or (2) such
driver-employee was entitled to a batch report lump sum amount
that was greater than $650 per payroll period.
For the calendar years 1993, 1994, 1995, and 1996, TLC sent
a form letter (per diem letter) to each trucking company client,
which set forth the total of all per diem amounts that TLC paid
to the driver-employees whom it leased to such trucking company
client during the preceding calendar year. The per diem letter
for calendar year 1993 (sent to each trucking company client
early in calender year 1994) stated in pertinent part:
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