ThePopTort

Uber’s Uber-Hypocrisy

When you look up the definition of “uber” online, here’s what it says: “denoting an outstanding or supreme example of a particular kind of person or thing.” I think I’ve figured out exactly what kind of uber thing Uber is: an outstanding or supreme example of a “tort reform” hypocrite.

Clearly, this is a company that understands the importance of litigation, and makes unfettered use of the civil courts in order to protect its own profits. For example, just last September, the company filed a lawsuit seeking at least $40 million for harms Uber says it suffered after a mobile ad agency “misrepresented the effectiveness of its mobile ads,” among other things. A company representative told Law360, “While we believe litigation should always be a last resort, we hope this action will help bring more attention to the problem of online ad fraud.” Uber also clearly knows the importance accessing the courts when there’s a data breach. Right now, the company is pursuing a lawsuit to uncover the identity of someone who allegedly “stole information from a database containing names and driver’s license numbers for 50,000 current and former drivers.”

But when it comes to harm that the company directly causes its own customers and employees, Uber is single-mindedly fixated on blocking court access. It does so through the use of forced arbitration clauses and class action waivers. As we speak, Uber is demanding that a federal court “dissolve a class of hundreds of thousands of current and former Uber drivers who allege they were misclassified as independent contractors and denied fair wages.… in light of the high court’s May 21 ruling in Epic Systems.” (See our post on Chrysler last week.) Writes Law360,

The Supreme Court ruling wiped out precedent in a handful of circuits, including the Ninth, stating that workers can’t give up their power to file class actions in court under the National Labor Relations Act, which guarantees workers’ rights to engage in certain group activity. The Northern District of California had in its certification order declared unenforceable some drivers’ agreements to arbitrate work disputes.

“Epic Systems ends any possible argument that the arbitration agreements should not be enforced,” Uber said. “And because the majority of class members signed these arbitration agreements, Uber respectfully submits that this court must reverse the district court’s class certification order and its order declining to enforce the arbitration agreements.”

Forced arbitration clauses and class action waivers are not just part of driver contracts, but are also part of the Uber app that we all use, buried in “terms of use” agreements that online companies use and that no one reads, let alone “negotiates.” As a result, the company was able to compel arbitration in a price-fixing case involving Uber fares, with a court throwing out a customer’s class action after finding that the arbitration clause “was right there, lurking within a ‘terms and conditions’ page hyperlinked on his smartphone. Once he clicked the ‘I agree’ button to set up his account, he was ‘sunk.’”

Yes, Uber can be commended for agreeing to no longer force cases involving sexual assault into arbitration, bowing to pressure from sexual assault victims. But the fact remains that the company still insists on using class action waivers to prevent victims from joining with others in court and continues using forced arbitration clauses and class action bans in every other kind of dispute, whether the case involves employees, drivers or users of the Uber app.

But here’s some good news. 

This week, a Brooklyn New York judge stood up to Uber, “allowing a disabled woman to move forward with a lawsuit” saying “Uber can’t force its customers to accept private arbitration instead of taking their legal claims to court.”  Uber tried to stop a discrimination class action from going forward, saying a customer agreed to arbitration. But this time, a judge – using basic common sense - said no. Writes the New York Post,

The company’s arbitration clause is buried so deep in reams of legal language that it is unfair to expect users of the app to dig that deeply through the fine print, wrote Kings County Judge Francois Rivera in a decision released Wednesday.

“A registrant may complete the process without seeing or even being aware that there are other clickable buttons leading to a screenshot containing Uber’s terms and conditions,” he wrote.

“Uber has been pushing cases to arbitration all across the country so they don’t have to go to court and create a precedent,” said [her attorney, Ian] Poulos. “This case isn’t binding outside of New York, but it is very persuasive and other courts could follow this standard. This is a big deal.”

I guess we’ll see how long it lasts. In the meantime, we’ve been hinting over the last couple weeks about who may have made CJ&D’s Top 30 “Tort Reform” Hypocrites of 2018.  Guess who made the list? Find out Monday!

House Judiciary Committee’s New Anti-Victim Fix

You know how some addict’s can be. A few days sober and then back to some bad old habits.Take the House Judiciary Committee. Earlier this year, this committee rammed through five pieces of anti-victim legislation (class actions, asbestos, fraudulent joinder, Rule 11, and medical malpractice) without so much as a single hearing. Now, just two days back from its August recess, the committee - obviously experiencing some type of withdrawal – has focused on a new target: the disabled.  

Today, this committee. again without holding one hearing, will be voting on H.R. 620, a bill that would weaken the 27-year-old Americans with Disabilities Act, described by the ACLU as “the most comprehensive and foundational civil rights law prohibiting discrimination on the basis of disability.”

The bill would amend the ADA’s public accommodations requirement, changing its entire purpose and intent by relieving non-compliant businesses of the obligation to comply with the law unless and until they first receive a very specific type of notice from an aggrieved individual. Notice must specifically include (1) the address of property where there was a barrier, (2) the specific sections of the ADA that they believe the business has violated, (3) whether the individual requested assistance in removing the architectural barrier, and (4) whether the barrier was permanent or temporary.

What if an individual is blind? Or cannot write? Or simply does not have access to law books? By placing this kind of ridiculous notice burden onto aggrieved individuals, H.R. 620 dramatically weakens incentives for businesses to comply with the ADA.

Moreover, assuming proper written notice is given to a business owner, the owner would have 60 days to acknowledge that there is a problem and once the problem is acknowledged, an additional 120 days to begin to remedy the problem. The barrier does not have to be completely removed by the end of the 180-day period. Instead the business only has to show that there has been substantial progress made to remove or alter the architectural barrier. During this period, disabled individuals would still not be able to access the public accommodation, with no deadline for completion.

As noted by the ACLU, even today,

… people with disabilities still face enormous barriers. People with mobility disabilities routinely find themselves blocked from the simplest of social interactions. They are unable to go to the corner grocery store to pick up a quart of milk because there is a step at the door. They are unable to go to the local movie theatre with their friends because there is no accessible seating. They might be able to get into the door of the local restaurant, but are stymied if they have to go to the bathroom while they are there, because it is the size of a postage stamp.…

The bottom line is that people who use wheelchairs or who have other needs deserve the same right to visit local businesses as any other individual. Forcing people with disabilities to wait months to visit a supermarket or bookstore is precisely the kind of discrimination the ADA was designed to prevent. Businesses have had more than enough “notification” to comply with disability rights law. People with disabilities deserve equal access today — civil rights should not be delayed or tied up in bureaucratic red tape.

H.R. 620 is obviously a step in a very wrong direction for the nation. In other words, no surprise from this very diseased committee.

Our Top 10 “Un”- Safety List, Government Shutdown Edition

Here’ our list of the Top 10 things that will stop thanks to the House minority’s juvenile temper tantrum.  (And don’t say we didn’t warn you!)

10. Funding for “Prevention of Elder Abuse and Neglect, the Long - Term Care Ombudsman program, and Protection and Advocacy for persons with developmental disabilities” programs, all part of the Administration for Community Living.  

9. The Centers for Disease Control and Prevention “annual seasonal influenza program, outbreak detection” efforts as well as “technical assistance, analysis, and support to state and local  partners for infectious disease surveillance." 

8. The clean up of 505 Superfund sites in 47 states.

7. The addition of about 200 patients, 30 of them children (mostly cancer patients) to possibly life-saving clinical trials.

6. Drug approvals for a bunch of new drugs. 

5. Funding activities "related to medical countermeasures against chemical, biological, radiological, nuclear, and emerging threats". 

4. Workplace safety inspections except in cases of imminent danger.

3. New car safety inspections and recalls.  Says NHTSA, "Consumers can continue to file safety defect complaints … but they will not be evaluated by NHTSA staff until funding and services are restored."

2.  Airplane safety inspections. Notes ABC News, “Nearly 3,000 aviation safety inspectors are being furloughed by the Federal Aviation Administration as part of the government shutdown, the union representing the inspectors said Monday. The inspectors check to make sure airlines are maintaining their planes safely, conduct inspections at airports of planes and pilots, and visit domestic and foreign repair stations where airlines send planes for major overhauls, among other safety jobs, said Kori Blalock Keller, a spokeswoman for the union, Professional Aviation Safety Specialists.”  (See here, too.)  

1. Food safety inspections.  Most FDA food safety inspections will stop.  Writes the Dept. of Health and Human Services, the FDA will “have to cease safety activities such as routine establishment inspections, some compliance and enforcement activities, monitoring of  imports, notification programs (e.g., food cont act substances, infant formula), and the majority of the laboratory research necessary to inform public health decision."

You are welcome, America!

Struggling Underground in New York City

David Letterman once said, “Everyone has this sense of togetherness right now. For example, one guy on the subway today, he wanted to share my pants.”  

If you are a New York City subway rider, you know that sometimes after big national events (like 9/11), everyone suddenly becomes really friendly, helpful, and not bothered by the daily annoyances that normally trigger a lot of complaining.  But that doesn’t last too long.  For the most part, the subway experience drives a lot of people a little crazy. 

New York Times columnsit Clyde Haberman had a piece a few weeks ago arguing that a few slight improvements could make every subway rider’s day-to-day life far more pleasant - like silencing screaching alarm bells, keeping doors open a few seconds to allow transfers betweent trains, better signage, and just more garbage cans. 

As bad as things seem for most of us, though, these minor problems are nothing campared to what people in wheelchairs face trying to use New York City subways at all.  I honestly don’t know how they do it, and now it turns out, many can’t. 

The New York Daily News reports that today, the United Spinal Association and Disability Rights Advocates have  filed a class action suit in Manhattan against New York City's Metropolitan Transportation Authority “for not spending a federally mandated 20% of station rehabilitation budgets on improvements like elevators and ramps.”   United Spinal Association's senior vice president James Weismann says:

"Without access to the subway, the MTA makes travel next to impossible for New Yorkers with physical disabilities and prevents them from getting to work or seeking employment.

"The authority's bus and subway division is in the early stages of a $20 million overhaul to the Dyckman St. station on the No. 1 line in northern Manhattan, but it hasn't allocated any funds to making it handicapped accessible, in violation of the Americans with Disabilities Act.

"The need for accessible subway stations is even more critical because the authority eliminated or scaled-back dozens of bus routes to help close a budget gap earlier this year."

The MTA is also applying a stricter interpretation of who is eligible for its door-to-door van service, Access-A-Ride.

C'mon, MTA, was that really necessary?