We used to count on Britney Spears as the leading source for blog fodder. Move aside Britney. Uber just passed you by. We have two new Uber stories just in California alone.

First, last week the District Court for the Northern District of California issued its opinion in Mohamed v. Uber Technologies. Paul Mollica of the Employment Law Blog called that decision a “blockbuster,” because it ruled Uber’s arbitration agreement with its drivers unconscionable and therefore unenforceable. The opinion is very long, so we will simply bullet point the highlights. With respect to contracts entered into in 2013, the court found:

• Valid contracts were formed between plaintiffs and Uber, notwithstanding plaintiffs’ claims that they never read the agreements and that doing so was “somewhat onerous”;
• While Uber sought to delegate questions of enforceability to the arbiter, the court found that its attempt to do so was not “clear and unmistakable” as the contract included a provision that “any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Uber Service or Software shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California”;
• In the alternative, the agreement was unconscionable and therefore unenforceable;
• The procedural unconscionability standard of “oppression,” generally assumed in form contracting, was not overcome in this instance by an opt-out clause; the opt-out was inconspicuous and perhaps illusory;
• The procedural unconscionability standard of “surprise” was also met because the arbitration provision was “hidden in [Uber’s] prolix form” contract; and
• Uber’s arbitration provisions are substantively unconscionable because the arbitration fees create for some plaintiffs an insuperable bar to the prosecution of their claims.

The court acknowledged that the unconscionability question was a closer question with respect of the 2014 contracts but still found them both procedurally and substantively unconscionable.

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