The Recorder: Uber ADR Bid May Face Tough Audience

Original article from The Recorder.

Ross Todd, The Recorder

SAN FRANCISCO — U.S. District Judge Edward Chen hasn’t been a big fan of the arbitration clause Uber Technologies Inc. added in 2013 to its driver licensing agreements.

The transportation networking company made the change while proposed employment class actions were pending in Illinois and Massachusetts and just before a similar suit filed in the Northern District was assigned to Chen.

The judge, who called Uber’s conduct “potentially misleading, coercive,” and threatening to the rights of class members, demanded Uber change the wording of its agreement, ease its opt-out procedures and inform new drivers of the pending litigation.

Now, thanks to Uber’s lawyers at Littler Mendelson, Chen will be spending some more time parsing Uber’s arbitration provision.

On Friday, Littler lawyers filed a motion to compel arbitration in a separate but related case before Chen challenging the way Uber conducts driver background checks. Uber’s lawyers claim that plaintiff, former driver Ronald Gillette, entered into a binding arbitration agreement with Uber before filing suit on behalf of himself and others who were booted from the service after the company toughened its background checks.

“Uber brings this motion to compel plaintiff’s compliance with his agreement to arbitrate and requests that the court dismiss plaintiff’s class and representative claims and order him to submit his individual claims to arbitration,’ wrote Littler’s John Fish Jr.

Friday’s motion tackles Chen’s prior rulings on the arbitration clause in footnotes. The company’s lawyers argue that Gillette agreed to the arbitration provision before the proposed employment class action, O’Connor v. Uber Technologies, was filed. They argue that Chen’s prior rulings taking issue with the arbitration clause in the O’Connor case don’t apply to Gillette’s case.

In his earlier review, Chen took issue with Uber’s “opt out” procedures, calling it “extremely onerous” to require drivers to deliver their opt out notices to Uber by hand or via overnight delivery.

The Littler lawyers claim that take is “largely irrelevant” to the background check case. They claim that Uber wasn’t obligated to provide an opt-out, that San Francisco offers plenty of overnight mail options, and that hand delivery wouldn’t have been difficult for Gillette, who lived and drove in San Francisco.

Littler’s Fish didn’t immediately respond to a phone message.

Gillette’s lawyers, Laura Ho of Goldstein, Borgen, Dardarian & Ho and Oren Sellstrom of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, didn’t respond to calls and emails.

Contact the reporter at rtodd@alm.com.