Ninth Circuit Sends Uber Driver Claims to Arbitration
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This is a consolidated lawsuit brought by Uber drivers asserting FCRA and employee misclassification claims. Both named drivers were terminated after negative information surfaced in their credit report. Both drivers agreed to a 2013 version of Uber’s driver agreement, and one driver agreed to a 2014 updated version. Both agreements contained arbitration clauses, and drivers could opt out of the arbitration if they followed the appropriate steps. The 2014 agreement allowed for opt-out by email. Judge Chen denied Uber’s motion to compel arbitration. The Ninth Circuit reverses.
The Ninth Circuit focuses the fact that the agreement delegated to the arbitrator the question of whether a dispute arbitrable in the first instance:
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision.
Whether the delegation provisions were unmistakable: The district court held that the delegation clauses were not unequivocal because they conflicted with a venue provision in the agreement. The agreements said that state and federal courts in San Francisco had “exclusive jurisdiction” over disputes. The panel says that any conflict here is “artificial.” The jurisdiction clause should be construed to govern actions to enforce arbitration awards.
Unconscionability: Judge Chen concluded that the delegation provisions were also unconscionable. The 2013 agreement buried the arbitration clause. The 2014 agreement failed to apprise drivers of the “considerable” fees required to arbitrate. They were substantively unconscionable because they required fee-sharing.
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