Consolidated Appeals Brought By Uber Overturn Pro-Driver Rulings Of District Court.
O'Connor v. Uber, No. 16-5595, and related appeals (9th Cir. 9/25/18) (Clifton, Tallman, Ikuta) reverses the district court's denial of Uber's motions to compel arbitration, based on Mohamed v. Uber Technologies, Inc., 848 F. 3d 1201 (9th Cir. 2016). Mohamed, which we blogged about on September 11, 2016, reversed the district court's orders denying Uber's motion to compel arbitration, and held that the issues of arbitrability and of the arbitrability of PAGA claims had been delegated to the arbitrator in Mohamed, and in a related appeal, Gillette v. Uber Technologies, Gillette's PAGA claims could proceed in court on a representative basis. These Uber Driver cases are ones in which the drivers claim they have been misclassified as contractors rather than employees.
In O'Connor v. Uber, the panel has now rejected plaintiffs' additional argument that the arbitration agreements were unenforceable. The panel was not persuaded by plaintiffs' first argument that the lead plaintiff could opt out of arbitration on behalf of the entire class.
In a December 21, 2016 follow-up post about the Uber Driver cases, we noted that the Ninth Circuit had amended a footnote in the Mohamed opinion so as to remove a suggestion that a class-action waiver would not violate the NLRA allowance of concerted action, so long as the Uber drivers had an opt-out provision. We suggested that the amendment of the footnote was a material change in light of the then-ongoing issue regarding whether class-action waivers fell afoul of the NLRA policy allowing concerted activity by employees.
And as it turned out, the panel in O'Connor v. Uber rejected plaintiff's second argument that the arbitration agreements were unenforceable because they contained class action waivers that violated the NLRA. As the panel explained, the Supreme Court "answered that question and rejected Plaintiffs' argument in Epic Systems Corp. v. Lewis , 138 S.Ct. 1612 (2018)."
In addition to reversing the district court's denial of Uber's motions to compel arbitration, the Court explained that the enforceability of the arbitration agreements required reversal of the district court's class certification orders. Additional orders governing communication with the class were reversed, because the class certification orders were reversed.
COMMENT: Given SCOTUS's rulings over the past decade on the enforceability of arbitration agreements, it seems most likely that an appeal would lead to the same result.
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