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.
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!
