MOHAMED v. UBER TECHNOLOGIES, INC., 15-16178 (2016)
Court: Court of Appeals for the Ninth Circuit
Number: infco20160907124
Visitors: 6
Filed: Sep. 07, 2016
Latest Update: Sep. 07, 2016
Summary: FootNotes 1. An Uber black car is a commercially registered livery car that passengers can access using the Uber smartphone application. UberX is a lower-cost alternative in which drivers use their own cars to pick up passengers via the app. 2. Except where necessary, this opinion refers to Uber and Rasier collectively as "Uber." The Rasier Agreement contained terms similar to those in the Software License and Online Services Agreement, and neither party has alleged any arguments specific to
Summary: FootNotes 1. An Uber black car is a commercially registered livery car that passengers can access using the Uber smartphone application. UberX is a lower-cost alternative in which drivers use their own cars to pick up passengers via the app. 2. Except where necessary, this opinion refers to Uber and Rasier collectively as "Uber." The Rasier Agreement contained terms similar to those in the Software License and Online Services Agreement, and neither party has alleged any arguments specific to ..
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FootNotes
1. An Uber black car is a commercially registered livery car that passengers can access using the Uber smartphone application. UberX is a lower-cost alternative in which drivers use their own cars to pick up passengers via the app.
2. Except where necessary, this opinion refers to Uber and Rasier collectively as "Uber." The Rasier Agreement contained terms similar to those in the Software License and Online Services Agreement, and neither party has alleged any arguments specific to the Rasier Agreement. Thus, we treat it as part of the 2014 Agreement.
3. In the 2014 Agreement, this sentence read: "This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
4. The arbitration agreements may not have clearly and unmistakably delegated to the arbitrator the authority to decide the question of waiver by litigation conduct. See Martin v. Yasuda, No. 15-55696, 2016 WL 3924381, at *5 (9th Cir. July 21, 2016). But that question is not at issue in this litigation.
5. The district court order cited several of our decisions, culminating with Kilgore v. Key Bank, Nat'l Ass'n, 718 F.3d 1052 (9th Cir. 2013) (en banc), acknowledging that they supported Uber's position. Mohamed, 109 F.Supp.3d at 1212. Nonetheless, the order stated that the district court "cannot follow the Ninth Circuit cases cited by Uber in the face of directly contradicting California Supreme Court authority." Id. The California authority cited in the order preceded our decision in Kilgore, so the court's decision to ignore our precedent cannot be explained by any intervening California authority.
6. We note that Plaintiffs also raised the argument that the class and collective action waivers in the arbitration agreements may violate the National Labor Relations Act (NLRA) for the first time in a sur-reply. That untimely submission waived the argument. See, e.g., United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) ("Generally, an appellee waives any argument it fails to raise in its answering brief."). Even if the argument had been properly raised, however, the option to opt out meant that Uber drivers were not required "to accept a class-action waiver as a condition of employment," and thus there was "no basis for concluding that [Uber] coerced [Plaintiffs] into waiving [their] right to file a class action" in violation of the NLRA. Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072, 1075 (9th Cir. 2014); see also Morris v. Ernst & Young, No. 13-16599, 2016 WL 4433080 at n.4 (Aug. 22, 2016).
7. MGL ch. 93 § 60 requires consumer reporting agencies under certain circumstances to:
notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date.
It also requires consumer reporting agencies to "enter into an agreement with the user of such consumer report which provides that no consumer report may be requested by the user until and unless the user has provided written notice to the employee or prospective employee that a consumer report regarding the employee will be requested." Id.
8. MGL ch. 93 § 62 provides in relevant part that "[w]henever ... employment involving a consumer is denied or terminated ... because of information contained in a consumer report from a consumer reporting agency, the user of the consumer report shall ... notify such consumer in writing against whom such adverse action has been taken."
Source: Leagle
