How a Corporation Suddenly Faced 'Flood' of Lawsuits From Thousands of Gig Workers (nytimes.com) 73
Long-time Slashdot reader PalmAndy shared the New York Times profile of two pioneers in "mass arbitration." One Silicon Valley founder created FairShake, an automated system to help consumers launch hundreds of arbitration cases against corporations like Comcast and AT&T.
And then there's attorney Travis Lenkner (and his firm Keller Lenkner), who says most companies never thought consumers would actually use arbitration. "We don't see it that way." Keller Lenkner's first wave of cases have focused on workers in the gig economy. [Alternate version of article] Many of these workers, particularly at food delivery companies, have been thrust onto the front line of the coronavirus crisis by ferrying food and supplies to housebound consumers, while risking getting sick. A large number of their employers require these workers to sign arbitration clauses... One of the firm's latest showdowns is with DoorDash, a leading food delivery app in the United States. It shows the traction that mass arbitration is gaining with judges and the lengths that companies will go trying to stop it.
It began last summer when Keller Lenkner filed more than 6,000 arbitration claims on behalf of couriers for DoorDash, known as "dashers...." The cases were taken to the American Arbitration Association, an entity that provides the judges and sets up the hearings for such disputes. DoorDash specified in its contracts with its roughly 700,000 dashers that they had to use the association when filing an arbitration claim. The company also told the dashers that it would pay any fees that the association required to start the legal process.
Then DoorDash got the bill for the 6,000 claims — more than $9 million.
DoorDash balked, arguing in court that it couldn't be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead... But a federal judge in San Francisco wasn't willing to go along with it. The judge, William Alsup, ordered DoorDash in February to proceed with the American Arbitration Association cases and pay the fees...
"Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court," the judge told DoorDash's lawyers at the Gibson Dunn firm late last year. "And so finally someone says, 'OK, we'll take you to arbitration,' and suddenly it's not in your interest anymore. Now you're wiggling around, trying to find some way to squirm out of your agreement."
"There is a lot of poetic justice here," the judge added.
And then there's attorney Travis Lenkner (and his firm Keller Lenkner), who says most companies never thought consumers would actually use arbitration. "We don't see it that way." Keller Lenkner's first wave of cases have focused on workers in the gig economy. [Alternate version of article] Many of these workers, particularly at food delivery companies, have been thrust onto the front line of the coronavirus crisis by ferrying food and supplies to housebound consumers, while risking getting sick. A large number of their employers require these workers to sign arbitration clauses... One of the firm's latest showdowns is with DoorDash, a leading food delivery app in the United States. It shows the traction that mass arbitration is gaining with judges and the lengths that companies will go trying to stop it.
It began last summer when Keller Lenkner filed more than 6,000 arbitration claims on behalf of couriers for DoorDash, known as "dashers...." The cases were taken to the American Arbitration Association, an entity that provides the judges and sets up the hearings for such disputes. DoorDash specified in its contracts with its roughly 700,000 dashers that they had to use the association when filing an arbitration claim. The company also told the dashers that it would pay any fees that the association required to start the legal process.
Then DoorDash got the bill for the 6,000 claims — more than $9 million.
DoorDash balked, arguing in court that it couldn't be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead... But a federal judge in San Francisco wasn't willing to go along with it. The judge, William Alsup, ordered DoorDash in February to proceed with the American Arbitration Association cases and pay the fees...
"Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court," the judge told DoorDash's lawyers at the Gibson Dunn firm late last year. "And so finally someone says, 'OK, we'll take you to arbitration,' and suddenly it's not in your interest anymore. Now you're wiggling around, trying to find some way to squirm out of your agreement."
"There is a lot of poetic justice here," the judge added.
Liberal Judges (Score:4, Insightful)
"Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court," the judge told DoorDash's lawyers at the Gibson Dunn firm late last year. "And so finally someone says, 'OK, we'll take you to arbitration,' and suddenly it's not in your interest anymore. Now you're wiggling around, trying to find some way to squirm out of your agreement."
Finally a liberal judge that does something I agree with.
what makes you think he's "liberal" (Score:5, Insightful)
For all you know he could be a libertarian - the only thing more important to a libertarian than contracts is property rights. And if the contract says the company will pay arbitration fees....
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This decision is 100% what the libertarians or the republicans would support. You can put arbitration in the contract, and both parties are free to elect to be bound by that contract, but no party can just weasel out of it willy-nilly.
Re:what makes you think he's "liberal" (Score:5, Insightful)
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You are proving the point that this wasnt a lefty decision. Lefties think arbitration shouldnt exist and therefore wo
Re: what makes you think he's "liberal" (Score:5, Interesting)
Then why do they exist at all, if they are oh-so equal to a real process in a real court?
Simpe: They aren't. And that is the point. They exist so you don't get your full rights and possibilities.
So all your statements in your comment are meaningless.
Though, in the name of all Unamericans, I must say it amazes us, how you, the victims of such things, always defend the very enemy that harms you, against your own rights, so vehemently, in the US.
It's like a country-wide Stockholm syndrome that went so far that the victims became the enemy's greatest warriors.
Re: what makes you think he's "liberal" (Score:5, Informative)
The idea is that while you have less options in an arbitration, so does the other side. The idea is that it's still a level playing field, as both sides have their options reduced in the same ways, so it is fair. Each side loses some things more important to it, but it evens out in the end. Or at least, that's the idea...
The reality is that the major loss corporations face is the ability to drag something out in an extended court battle and bury an individual. What individuals lose is the ability to create a class action suit. The reality is that the loss of a class action is not on par with the ability to abuse the system to bankrupt a plaintiff.
Class action suits are often the only way corporations can be held accountable, as arbitration limits damages to each individual case, which is nearly always lower than the costs associated with the time it takes to file and follow up, and virtually never pays enough to hire a lawyer.
On the other side, corporations lose the ability to employ one of the know dirtiest tricks in the legal system - using deeper pockets to outlast any challengers.
The true problem here is that one side had to give up a dirty trick, and the other side had to give up both the one real counter against that dirty trick, and also the biggest legal weapon to keep corporations in check.
Binding arbitration isn't the problem - it's forced binding arbitration that is. It's the fact that one side requires it, and does so from a position of ultimate power. If it's a company you're dealing with, they often have monopoly or near-monopoly power. If it's a potential employer, your option is to be employed or unemployed. In both cases your refusal is insignificant to them, but very significant to you, and thus they hold all the power and force you into it.
There are many situations where binding arbitration is a good idea. The unfortunate truth is that letting the MegaCorps dictate forced usage of them is not.
Re: what makes you think he's "liberal" (Score:5, Interesting)
You miss the important part. What is also lost is the ability to set precedent.
That is why companies love it so much. Similar cases are independent of each other.
Re: what makes you think he's "liberal" (Score:5, Informative)
Companies Love Forced Arbitration because they thought that there was no money in it for Plaintiffs Lawyers. I, as a dissatisfied customer, have no idea how to start an Arbitration case if I am dissatisfied over over some charge under $100. No lawyer would be willing to help me unless I paid them $100+ per hour...up front. Hence nobody started any Arbitration cases. Also, I would probably have more expenses (perhaps even travel if I must appear in person) to the point that it is just not worth it.
Class Action suits, on the other hand, are big money which brings lawyers out of the woodwork seeking to round up huge numbers of class participants and wrangle out a settlement from the Defendant.
Enter some enterprising people who see a way to put humpty dumpty back together again in the form of Mass Arbitration, and make a decent profit from that very system these companies thought shielded them.
Now companies don't like it so much and want to change the playing field again....what greedy companies don't realize is that if they treated their workers/customers fair then either system would dwindle in cases. But of course there is always an enterprising lawyer to stir up dissent.
Mass-arbitration better (Score:2)
Class Action suits, on the other hand, are big money which brings lawyers out of the woodwork
That's because the only people who make money from them are lawyers. The rest of us get something like a voucher for $10 off our next purchase from the same company that screwed us over.
Even if mass arbitration gets everyone involved $100 in cash it's probably far better than a class action lawsuit...as long as you aren't a lawyer.
Re: what makes you think he's "liberal" (Score:5, Interesting)
Anecdotal as it may be, a lawyer I spoke to about what he thought about arbitration is that there tends to be less money in it for the winning plaintiff. That is because the arbitration judges are inclined to just split the difference, get a modest check written for the wronged plaintiff, not bother considering punitive damages at all, and get it over with so they can collect their own fee as an arbitration judge who gets paid on a per case basis.
To make up an example, if under the bright lights of the court, a judge found the plaintiff had "80%" of the evidence on his side about serious wrongdoing from the employer to the tune of $20,000, the judge might well award the full 20k and then consider tacking on another 20k-40k in punitive damages. With the same case, an arbitration judge will hurry it along and get a $16000 check written.
Effectively, there is less money on the table, even when the defending corporation is in the wrong.
Re: what makes you think he's "liberal" (Score:5, Informative)
While that is true, the fact of the matter is that precedent is almost never set in these cases. They're usually just contract law, and go fairly clearly one way or the other if it ever gets to trail - which is almost never does, since they almost always end up with a settlement.
Even if the cases go to trial, there's seldom anything in contract law that is contentious enough that precedent will be set in a Crop vs. Customers / employees ruling. The bigger issue might be findings in one case being used in another, but considering most cases settle, and almost every settlement involves an NDA, that rarely happens, either.
Re: what makes you think he's "liberal" (Score:4, Interesting)
Arbitration should be there to fix the imbalance of power between the employer and the employee.
For example it's often very difficult for an employee to afford legal representation but no problem for the company. So arbitration should be made accessible without a lawyer and avoid using legal jargon, giving the employee a fair chance to put their side of the case as a layperson. That may include assigning them free council, at the employer's expense.
In the UK you can't be forced to agree to arbitration but often it is preferable, and you still have the option to go to court. In fact often courts will ask the parties to arbitrate if they have not done so already.
Re: what makes you think he's "liberal" (Score:5, Insightful)
Binding arbitration isn't the problem - it's forced binding arbitration that is.
Excellent summary. Additionally it should be observed that the corporation makes the selection of arbitrator, and goes "arbitrator" shopping. The corporations are the real clients of the arbitration outfits. Without the corporation sending cases their way, they have no business.
This creates a severe "moral hazard" with the supposedly neutral arbitrator, similar to the bond rating agencies leading up to 2008. It they do not corrupt their own processes to favor the corporations they get no business.
Arbitrator shopping is openly on display in this case, with corporations seeking to change who gets to arbitrate when they don't like how cases develop.
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To prevent the parties involved hiding behind legal procedure. Since such contracts revolve around blame and liability, it is a way for the party with more money to avoid an expensive legal defense. But when they piss-off everyone, the cost of responding is expensive.
I wonder if they can then be sued for breach of contract, which will happen in a civil court because the employer hasn't provided the arbitration it is legally required to provide?
We saw a California case some weeks ago, where AT&T demand
Re:what makes you think he's "liberal" (Score:5, Insightful)
You are proving the point that this wasnt a lefty decision. Lefties think arbitration shouldnt exist and therefore would not have made the decision this judge made.
The political system isn't binary. You can't claim someone is guaranteed to have a specific opinion on one subject just because they lean one way politically.
Re:what makes you think he's "liberal" (Score:5, Insightful)
Ground-zero for the far left is Hollywood, and Hollywood loves its copyrights.
And yet Orrin Hatch is a Republican senator.
Remember the good old days when everyone on slashdot could hate Sen. Hatch because he's an arsewipe intent on stealing from the public domain for the benefit of large corporations, regardless of either his or their political affiliation?
Also you have no idea what "far left" is or what Hollywood is for that matter. If you think the army of vampire-lawyers running Disney give a crap about political affiliation beyond what new aggressive copyright laws they can buy then you are deeply, tragically naive.
How about you pull your partisan head out of your partisan arse and actually start using your brain. Drop bullshit terms and sweeping generalisations and start reasoning.
Those Enron-Accountants running the studios want you to be angry with them because "they're lefties". That way you can get all angry about how they want universal healthcare, or something about borders and immigration or some other thing they clearly don't give a crap about. Because while you're angry with them for that you won't notice their criminally fraudulent dealings (Hollywood Accounting), so your misplaced anger will lead to a bunch of churn involving border walls and flight restrictions and whatnot which will come and go, spinning in circles, while they stay rich and happy and corrupt.
That's what they want. And you are giving it all to them.
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How about you pull your partisan head out of your partisan arse and actually start using your brain. Drop bullshit terms and sweeping generalisations and start reasoning. Those Enron-Accountants running the studios want you to be angry with them because "they're lefties". That way you can get all angry about how they want universal healthcare, or something about borders and immigration or some other thing they clearly don't give a crap about. Because while you're angry with them for that you won't notice their criminally fraudulent dealings (Hollywood Accounting), so your misplaced anger will lead to a bunch of churn involving border walls and flight restrictions and whatnot which will come and go, spinning in circles, while they stay rich and happy and corrupt.
The problem is that the root cause is the US election system, not the party you're voting for. The big issues that divide things into a left-right axis are real and exist in all democracies, they're a natural consequence of needing a majority to rule. Even with proportional representation a party can not be judged independent of its prospective partners, leading parties to be broadly lumped into left-wing, center and right-wing. What's different about the US is that this is both the beginning and the end of
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Republicans love copyright too, seems the whole point of NAFTA2 was to force Canada to extend its copyright terms to what Hollywood demanded along with patent changes to what the pharmaceutical companies want. I guess the Republicans were dead set on those TPP parts that everyone hated.
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The GP is just trying to assign credit to the lefties. This decision is 100% what the libertarians or the republicans would support. You can put arbitration in the contract, and both parties are free to elect to be bound by that contract, but no party can just weasel out of it willy-nilly.
Both parties aren't "free". Just another "right-wing" lie and typical corporate propaganda. People aren't "free" to choose arbitration, they're not "free" to make any choice. Oh, except the choice to go away, which is exact the aim of the abusive people who profited from unethical actions in the first place. Personally, I don't know what your talking about but I'm guessing that your definition of free, and your definition of fair, are not the same as mine, or any other fair-minded person. Selfish, greedy af
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For all you know he could be a libertarian - the only thing more important to a libertarian than contracts is property rights. And if the contract says the company will pay arbitration fees....
He's a Clinton appointee. How libertarian do you imagine he might be?
Re:what makes you think he's "liberal" (Score:5, Informative)
Donald Trump thinks he's a liberal, for what that's worth. Alsup was appointed by Clinton, and while you can't predict a judges rulings by the president that appointed him, it's extremely unlikely that Clinton would appoint a libertarian ideologue.
His most well-known rulings thus far:
Oracle America v. Google, Inc.: ruled the Java API is not copyrightable, although he was overturned by the appeals court.
Ibrahim v. DHS (2014): Ruled that people put on the no-fly list can seek judicial relief if the government doesn't provide a mechanism to challenge their inclusion.
DHS v. Regents of the University of California: blocked Trump's attempt to shut down the DACA program until the lawsuit was resolved.
The People of the State of California v. BP P.L.C. et al: dismissed suit against fossil fuel companies, ruling that the issue should be dealt with by Congress rather than the courts.
A good judge's rulings shouldn't be predictable based on some simple political ideology. Judges are suppose to be apolitical.
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What 45 thinks is hardly reflective of reality. To him and his voters, minions, supplicants, supporters, and et cetera; anyone just slightly to the left of Mussolini is a liberal. And if you're the smallest bit to the left of Reagan or Thatcher; you're a full-blown communist.
Re:Liberal Judges (Score:5, Insightful)
Re: Liberal Judges (Score:2)
Don't forget "stupid", "openly evil", and "batshit insane". The three staples that go together so well.
Re:Liberal Judges (Score:4, Insightful)
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Actually, slavery was endemic to the left in the US. Otherwise, you're right at the point.
Both parties are dishonest and unscientific. Yet the Civil War was between pro-slavery Democrats vs anti-slavery Repubs. It's also the Dems who did every bout of large-scale racism, every 50 years: 1860 1910 1960 2010.
So the diffs are:
Otherwise, both sides are merely fac
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In most other countries, you can choose a party that's only slightly bad. Not in the US.
Not true. Most ballots include independent candidates. And if enough people petition the officials, nobody can be denied a place on the ballot. The whole thing depends on genpop.
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I'm not sure what bout of racism occurred in 2010 that was attributable to Democrats, but attributing the ones prior to the 1970's to the modern Democratic Party is ignorant as fuck. Those racist Democrats were kicked out of the party in the 1960's and became today's Republicans, meanwhile the pre-1960's Republicans switched to being Democrats. Anything that happened prior to 1964 by one party is properly attributed to other party in terms of who actually was responsible. The pro-slavery Democrats in the 18
Re: Liberal Judges (Score:2)
Those racist Democrats were kicked out of the party in the 1960's and became today's Republicans
I keep hearing this. Surly you can provide a list of which racist democrats were kicked out of the party and became republicans? I mean there must have been hundreds of them, so I don't expect the list to be exhaustive, but maybe 10-12 examples?
Re: Liberal Judges (Score:2)
Re: Liberal Judges (Score:2)
So that was a "no I can't name any racists who left the democrat party and became republicans, but, like, republicans didn't like taxes and food stamps, which was ok in the north, but racist in the south"?
Maybe you wanna clear your head and try that one again.
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As another commenter said, 2010? What? You may recall that during the Obama years, Republicans went crazy and threw
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I agree. I have noticed a huge increase in racism.. against whites. This statement is supported by the nation's crime index reported by the FBI. So, while you are correct about racism, you are incorrect about the victims of racism. Political affiliation is not a measurement that's reported on, but I'm willing to bet that most of that increased racism is actually coming from democrats.
More on topic, it seems that it is the democratic policies that are more socialist, and have programs that increase taxes. Wh
Re:Liberal Judges (Score:4, Insightful)
The fact that you think those attributes (e.g., dishonest or unscientific) are tied to political party and not general human traits indicates that you're not just an idiot, but a bigoted idiot who judges people by their armbands.
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There are very specific and valid meanings for those words that have real value in political discussions. The problem is when you don't know the scope of the word and think the correlations between people who fit one word and other beliefs they tend to have are all the same thing. For example, being a left libertarian is a real thing.
Fair point, however what percentage of discussions involving those words match this? I mean, "liberal" (as in "classical liberal") actually means right wing but you are never going to be able to safely use it in that sense. Any time you are going to have a discussion about politics using those words you are going to have to qualify them ("liberal in the modern American sense") to the extend that a) it's really not the same word and b) you might as well use a different word if you only possibly can. Which
Liberal vs Conservative accurate. (Score:2)
You are half correct. There are real differences between left and right. There are differences between authoritarian and libertarian and members of both the left and right belong to both sides.
But the existence of other disputes does not mean that there is no difference between conservative (stick with what works) and liberal (we need to do better). Those are the actual original definitions, despite what the parties have become.
Similarly, scientific and religious gets associated with left and right when
A techie judge (Score:5, Informative)
Re: (Score:2)
"Thank you for providing an alternate link to that fucked up New York Times rag"
What was it? Infowars?
Re:Fuck the New York Times (Score:4, Insightful)
I didn't click the link this time, but in case the editors are reading (ha-ha. okay, hold on, gotta catch my breath here...), stop linking to the NY Times. Their paywall and the shifting nature of how to go around it means I'm flatly not interested in reading their content. I'll read anyone else's article.
If I wanted to pay to read their articles, I'd subscribe to their newspaper. Putting it as the sole link to a piece of information is just giving them free advertising, but not actually adding much value to Slashdotters.
How is an arbitration clause even legal? (Score:5, Insightful)
In my country, such clauses would conflict with the law, and would hence be null and void, even if signed.
As far as I can tell, they directly conflict with basic US laws too. The laws that are the foundation of the whole legal system.
So why aren the ones that make such contracts not prosecuted and thrown in prison? I mean you're throwing ALL the people in prison for the siliest things anyway, buf not for that?
Re:How is an arbitration clause even legal? (Score:4, Informative)
Re:How is an arbitration clause even legal? (Score:4, Informative)
In some cases putting the unenforceable clause in the agreement may be Illegal as an unfair business practice.
For example; the FTC has written stern warning letters to companies putting "Warranty Void if opened" stickers.
Its called Misleading Language [ftc.gov]. Even if its unenforceable: the person reading the agreement might be, making it illegal to put the wording in there, E.G.
Re:How is an arbitration clause even legal? (Score:4)
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It was an offence to expect the ruling class to bind their own hands, let alone hold them accountable for anything they said or did or promised.
In over 243 years, that's still unchanged.
Re:How is an arbitration clause even legal? (Score:5, Informative)
This would be fair if both parties could enter this contract on even grounds. If one of the party has only the choice to enter the contract or starve to death, you can't really argue that this makes them a willing and consenting party.
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This has been mentioned a few times on Slashdot regarding arbitration cases. Civil contracts can be regulated by the US Federal Arbitration Act of 1925.
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Contract law is a fundamental part of the U.S. legal system. There are certain protections in some places (most are at the state level, not federal). But by and large, properly written contracts are enforceable. The whole point of a contract is to generate a sort of micro-legal framework for the involved parties. Contracts - as a rule - transcend the legal rights and obligations in force for everyone.
Accept No Substitutes (Score:2)
DoorDash balked, arguing in court that it couldn't be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead... But a federal judge in San Francisco wasn't willing to go along with it. The judge, William Alsup, ordered DoorDash in February to proceed with the American Arbitration Association cases and pay the fees...
Quite nice to have access to real courts, is it not . . .
Is it too late to join in? (Score:2)
I've never worked for Doordash, but I'd like to "arbitrate" with them anyway for some money.
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It certainly demonstrates what an enterprising mind, and technology can do. It was nice to read that the legal system is actually filled with intelligent people who haven't the wool pulled over their eyes, they just can't always do something about it.
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Clearly you're a dildo who puts money above personal honour. You should try this, and if you're caught, maybe we could make a few bucks off leaked videos of your first date at the prison prom.
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You appear to be insinuating that he'd break the law, something he at no point indicated that he would do.
I too would like to 'arbitrate' with doordash for some money. If I can find a legal way to do so, I can assure you that your concept of personal honour will in no way inform my decision whether to do so.
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Of course it wouldn't. I doubt the whole personal honour thing would mean much to you, either. That lack of basic decency is one of the reasons why the United States is circling the bowl. The idea that you can shake the hand of an American and trust them to honour an agreement is as dead as the "Made In America" sticker.
Hoist with their own petard (Score:3)
Judge (Score:5, Funny)
William Alsup: awesome, or brilliant? You be the judge!
No, wait, he's already the judge. You just sit there.
Upsidedown justice system (Score:2)
That the court of common law has picked up the claimants grievance in an arbitration dispute is the _bell ringer_ for justice.
DoorDash claim it is unable to verify " standing" before the court of Arbitration was telling. DoorDash thought it owned the legal system incorporated into its agreements. It forgot about torts, common law, and jurisprudence.
Just deserts (Score:2)
Independent contractors (Score:2)