Half of Uber MDL to Arbitrate

A federal judge tossed half of the lawsuits concerning Uber's data breach after finding claimants were aware they signed arbitration agreements upon registering to use the app. Uber sought to compel arbitration in consumer class actions filed over the breach, which compromised the personal information of 57 million drivers and riders. This month, the presiding U.S. District Judge, Philip Gutierrez of California, granted such motions in separate orders in seven cases while seven other cases remain. The trial court relied on the U.S. Court of Appeal for the Second Circuit’s decision last year in Meyer v. Uber, finding a “reasonable user” of a smartphone would understand the process of agreeing to Uber’s terms of service. Of course, plaintiffs disagree with that holding and its reasoning. The judge wants further hearings to address whether there is going to be an MDL after this whole process of weeding out arbitrable cases is over with, or not. He noted, however, that all the cases are nationwide class actions that could go forward as a consolidated complaint, but that plaintiffs' lawyers are debating who should lead that action. Uber announced hackers breached its app in 2016 and also admitted paying them $100,000 to destroy the information in 2017. Last spring, the U.S. Judicial Panel on Multidistrict Litigation sent the class actions to this judge, whose first action was to decide Uber’s arbitration motions. Plaintiffs lawyers argued that data breaches fell outside the scope of Uber’s agreement. The current judge was not persuaded and instead found that an arbitrator must decide that issue. He cited the U.S. Court of Appeals for the Ninth Circuit’s 2016 decision in Mohammed v. Uber, which had a “nearly identical Uber delegation provision.” Plaintiffs also cited this summer's decision by the U.S. Court of Appeals for the First Circuit in Cullinane v. Uber and U.S. District Judge Richard Seeborg’s decision last year in Metter v. Uber, both finding Uber’s arbitration agreement unconscionable because a pop-up keyboard obscured text. But Judge Gutierrez found those cases, unlike the Second Circuit’s Meyer case, involved different devices or different versions of Uber’s app, stating he agreed with defendants "that the Cullinane decision departs dramatically both from what other courts have found regarding Uber’s registration process, and from the overall legal landscape regarding assent to online agreements." The court found rather that "Clickable buttons come in all shapes and sizes.” It is clear there is a split of authority in these cases likely to continue affecting arbitrability. See full story here-- https://bit.ly/2NqLmDK

NLRB Invalidates UBER Arbitration Agreements

Last week, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) ruled an Uber Technologies arbitration agreement was unlawful. Uber was requiring its software engineers to sign an agreement that compelled arbitration of claims against the company. The ALJ found language in the agreement ambiguous as to employee rights to file charges with the NLRB, even though a provision in the agreement explicitly stated those interested in filing administrative charges could do so at the www.nlrb.gov website. Uber was ordered to rescind or revise its policy to more clearly state how employees can access NLRB processes. Uber is considering appealing the decision to the full NLRB, but has not yet done so. The U.S. Supreme Court is also currently considering a case in which employers are challenging the NLRB’s view that class action waivers in compulsory employment arbitration pacts violate the National Labor Relations Act (NLRA). Given this scrutiny, companies using or considering an arbitration program to resolve workplace disputes with employees should take care when drafting and implementing the agreements to account for recent NLRB decisions and guidance. Evidently, failure to do so may result in the program being partially or wholly invalidated. See more here-- http://bit.ly/2rI1Dt4 and http://bit.ly/2rIeaN9