Uber Technologies Inc. has taken the extraordinary step of petitioning an appeals court to reverse coordination of what could be thousands of lawsuits from passengers alleging its drivers sexually assaulted them.
In a Nov. 10 petition for a writ of mandamus, Uber asked the U.S. Court of Appeals for the Ninth Circuit to vacate last month’s order from the U.S. Judicial Panel on Multidistrict Litigation transferring the sexual assault cases to U.S. District Senior Judge Charles Breyer of the Northern District of California. Uber cited “different laws and regulations in different states” and “overwhelmingly individualized factual questions” as reasons for its petition, which, although allowed, is extremely rare in multidistrict litigation.
To get such a petition granted, said Robert Klonoff, a professor at Lewis & Clark Law School, is “almost impossible.”
“The Chief Justice appoints this panel: they’re seven judges, they’re from all over the country, they’re highly respected, and they know what they’re doing,” said Klonoff, author of the 2021 law review article, “The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion.”
“Here,” he said, “they transferred the cases to one of the most respected MDL judges, who himself has been a member of the Judicial Panel on Multidistrict Litigation, and, is a district judge within the Ninth Circuit. I just am at a loss to understand that they think they have any chance of success on this.”
A representative of Uber, based in San Francisco, and its lawyer, Robert Atkins, of New York’s Paul, Weiss, Rifkind, Wharton & Garrison, did not respond to requests for comment.
Rachel Abrams, the plaintiffs’ lawyer who moved to coordinate Uber’s sexual assault cases into multidistrict litigation, said the petition was a first in her 25-year career. She called the petition a “Hail Mary” pass designed to delay the lawsuits.
“It is highly unusual to appeal a judicial panel’s decision for coordination,” said Abrams, a partner at Peiffer Wolf Carr Kane Conway & Wise in San Francisco. “The panel has really, really broad discretion, and overturning the panel’s determination is exceedingly rare.”
‘It’s Almost Never Done’
It’s not the first procedural fight in the sexual assault litigation against Uber, however.
Many plaintiffs originally sued in California state courts, but dozens had to refile cases in federal courts this year after San Francisco County Superior Court Judge Ethan Schulman dismissed nearly 1,000 lawsuits brought by passengers outside California.
At the first hearing in the multidistrict litigation, which so far involves about 150 lawsuits, Breyer asked how many potential cases were out there.
Abrams said her firm had 1,000, none of which were originally part of the California state court proceeding, according to a transcript of the Nov. 3 hearing.
“And, unfortunately, my phone is still ringing every day and continues to ring because this is a—really, an epidemic right now that’s going on,” she told Breyer.
The lawsuits allege Uber’s policies and procedures failed to prevent sexual assault of passengers by providing inadequate screening and training of drivers, and few safety features on the app.
Uber has argued against coordination from the start. But the JPML, in its Oct. 4 order, found that common issues predominated, such as Uber’s knowledge about sexual assault issues, its background checks on its drivers, and its responses to passenger complaints. As to Schulman’s ruling, the panel found it did not have the same public interest in not overburdening the local courts with out-of-state cases.
In its petition, Uber said the panel failed to consider state-by-state differences in laws involving common carriers, background checks and the liability of the drivers, as third parties. Not to mention, the facts of each case differed.
“The individual factual and legal issues raised by each of these complaints vary dramatically,” the petition says. “Each claim arises from a unique set of facts and circumstances: different sexual assaults each committed by a different independent driver in a different way, in a different location, at a different time, and under different conditions. Each claim will involve a different set of questions about whether Uber could have done anything that would have prevented the alleged assault. And, of course, a threshold question as to whether an assault occurred as alleged.”
Under the MDL statute, parties can file writ petitions challenging the JPML’s coordination orders, but the mandamus standard is a high bar. Klonoff said petitions are rare—but even more rare are those granted.
“It’s almost never done,” he said. “There’s only been one case I’ve been able to find since 1968, when the statute was adopted, where an appellate court has granted mandamus, and it has no relation to this situation at all.”
Source: Law.com November 17 2023