Monthly Archives: October 2018

By Aryeh Mellman, CLS ’20

In a case that has important implications for the future of the gig economy, the 9^thCircuit ruled in O’Connor v. Uber Technologies that Uber drivers who were suing to be classified as employees rather than independent contractors could not sue as a class and would have to litigate their claims individually.[1]

The reason for the suit boils down to the differences between employees and independent contractors. Generally, contractors have more flexibility (drivers can work for both Uber and Lyft at the same time and can set their own hours), but employees are legally entitled to a broader set of benefits, including health insurance. In this case, contractors working for Uber also had to sign an arbitration agreement waiving their right to sue Uber as a class, though the agreement did contain an opt-out provision. Notably, the court had previously held in Mohamed v. Uber Technologies, Inc.[2]because it contained an opt-out provision, the arbitration agreement was not unconscionable and gave drivers a real opportunity to exercise that option if they so chose.

The court rejected both of plaintiffs’ lines of reasoning claiming that the arbitration agreements were unenforceable. First, it disposed of plaintiffs’ argument that “the lead plaintiffs in O’Connor had constructively opted out of arbitration on behalf of the entire class” on the grounds that plaintiffs’ sole authority for that proposition rested on a state supreme court case that did not reach federal law.[3]Plaintiffs’ second argument was that arbitration agreements that contain class action waivers, as Uber’s arbitration agreements did, are illegal under the National Labor Relations Act. However, plaintiffs had to withdraw this argument as their position was squarely rejected in Epic Systems Corp. v. Lewis, decided as O’Connor was ongoing.[4]

The class of drivers suing Uber included some plaintiffs who agreed to the arbitration provision, thus waiving their right to participate in a class action. Since the court held the arbitration agreements to be enforceable, they deemed those plaintiffs improperly part of the class and reversed the certification orders.

The decision is a clear victory for Uber, which had at one point agreed to settle with the drivers for $100 million.[5]Conversely, plaintiffs have two unattractive options remaining. They can appeal for an en banc hearing, in which case they would have to win a majority of 9^th Circuit judges’ votes just to hear the case and then would have to win on the merits. Alternatively, Uber drivers can litigate their cases individually in arbitration, which plaintiffs’ lawyer has said is already occurring.[6]Of course, litigating thousands of cases individually consumes far more time and resources than litigating as a class. It may also lead to inconsistent judgments, especially since arbitration proceedings are not bound by precedent. Barring a judicial reversal though, that seems to be the only option left available to Uber drivers unhappy with their employment status.

[1]O’Connor v. Uber Technologies Inc., 2018 WL 4568553.

[2]Mohamed v. Uber Technologies Inc., 848 F.3d 1201 (9^thCir. 2016).

[3]O’Connor, 2018 WL 4568553, 14.

[4]Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[5]Andrew J. Hawkins, Uber Scores a Big Win in Legal Fight to Keep Drivers as Independent Contractors, The Verge (September 25, 2018). https://www.theverge.com/2018/9/25/17901284/uber-drivers-independent-contractors-vs-employees-legal-fight.

[6]Jonathan Stempel,No Class Action for Unhappy Uber Drivers: U.S. Appeals Court, Reuters (September 25, 2018) https://www.reuters.com/article/us-uber-lawsuits/uber-can-force-drivers-into-arbitration-u-s-appeals-court-idUSKCN1M526F.

By Edmund Costikyan, CLS ’20

If you’re a true crime podcast fan, you may have heard the name Joey Watkins. Watkins is one of a small but growing group of defendants who has had his case reinvestigated and told to an audience of millions of podcast subscribers. Serial, a podcast known for its deeply affecting series on the case of Adnan Syed, initially popularized this phenomenon. Watkins, who, like Syed, has maintained his claim of innocence throughout nearly two decades of incarceration, is represented by the Georgia Innocence Project, and had his story told on the true crime podcast Undisclosed, which is dedicated to investigating potential wrongful convictions. However, it is not his strong claim of actual innocence which makes a recent decision by the Georgia Superior Court of Walker County in his case problematic. Rather, this decision raises a long-standing justice system concern — the protection of jurors once they have been discharged from their duty from “[v]exatious or harassing investigations[.]” Model Code of Prof’l Responsibility EC 7-30 (Am. Bar Ass’n 1983).

In Watkins v. Ballinger, Watkin’s habeas petition to the Superior Court, one of the grounds upon which Watkins challenges his incarceration is that “[j]uror misconduct resulted in a violation of [his] rights under the Fifth, Sixth, and 14th Amendments… and Article I, Section I, Paragraphs I and XIV or the Georgia Constitution…” Watkins Application for Writ of Habeas at 5 Filed Jan 18 2017.  The alleged juror misconduct, discovered fifteen years after Watkins’ conviction during a 2016 interview with Undisclosed reporter and attorney Susan Simpson, was that one juror, during deliberations, had taken it upon herself to do a drive test of an alleged aspect of the charged offense, and, as a result of that independent drive test, changed her vote from not guilty to guilty.  Watkins Application for Writ of Habeas Corpus, Juror Aff. 5 Filed Jan 18 2017. This is a violation of the directions the jury was given by the trial court, which instructed the jurors that they “ha[d] to base [their] decision in any trial like this on what [they] hear[d] in the courtroom from the witness stand and [they] c[ouldn’t] go investigating anything on [their] own.” Addendum to Part II of Watkins Application for Writ of Habeas at 2, quoting Trial Transcript at 411-412. As such, Watkins claim was that this violated his constitutional rights “to be present at all critical stages of his trial and to confront the witnesses against him.” Watkins Application for Writ of Habeas at 5 Filed Jan 18 2017.

The court’s Judge Don W. Thompson declined to address the merits of the argument, instead dismissing the petition for habeas corpus relief as untimely on the grounds that Watkins, “with the exercise of due diligence, could have spoken with this juror once his trial was over in 2001 to determine whether any juror misconduct had occurred.” Order Dismissing Petition as Untimely and Successive at 5 Filed Jul 19 2018. He determined that the statute allowing Watkins to petition for habeas relief contains a one-year statute of limitations which starts to run “when a person knows or through due diligence could discover the vital facts, regardless of when their legal significance is discovered.” Id. at 4, citing Cole v. Warden, 768 F.3d 1150 (11th Cir. 2014), cert,denied, 135 S.Ct. 1905 (2015). See also O.C.G.A. § 9-14-42(c); 28 U.S.C. § 2244(d)(1)(D).

This has problematic implications for defendants and their attorneys in Georgia, but perhaps even more for the jurors themselves. If any potential juror misconduct must be discovered and brought to the attention of the court within one year in order to be considered timely, this means that every defendant who loses at trial has a pressing incentive to immediately and exhaustively interview every juror about all aspects of their deliberations in the hope of discovering potentially actionable juror misconduct. While both the ABA Model Code of Professional Responsibility and the Georgia Rules of Professional Conduct state that a lawyer may communicate with jurors after a trial, these communications must be limited and are often regarded with skepticism. Model Code of Prof’l Responsibility EC 7-29  (Am. Bar Ass’n 1983). The Georgia Rules of Professional Conduct Rule 3.5 provides, in pertinent part, that “[A] lawyer shall not, without regard to whether the lawyer represents a client in the matter:

3. communicate with a juror or prospective juror after discharge of the jury if:

1. 1. the communication is prohibited by law or court order; or
   2. the juror has made known to the lawyer a desire not to communicate; or
   3. the communication involves misrepresentation, coercion, duress or harassment.”

Given these concerns, does it make sense for the Georgia courts to require that an attorney, in order to have acted in due diligence, must contact all the jurors who had decided her client’s verdict and interview them about what transpired in the jury room within such a short period after the trial, and ensure that she gets the information then or else relinquish her client’s chance to appeal on the grounds of any juror misconduct? Doesn’t such a requirement implicate concerns that jurors will feel coerced, harassed, or under duress by the interviews the Walker County Superior Court now makes mandatory in this decision’s definition of due diligence? Hopefully, Watkins will be permitted to appeal this ruling to the Georgia Supreme Court, and we will see how it responds to these questions.

If you’d like to learn more about Watkins’s case, you can listen to the reinvestigation and in-depth discussion of his case in season 2 of the incredible true crime podcastUndisclosed at http://undisclosed-podcast.com/episodes/season-2/, or at the Georgia Innocence Project’s active cases page at https://www.georgiainnocenceproject.org/active-cases-2/.

By Brandyn Arnold, CLS ’20

The First Circuit recently addressed the issue of whether people can be bound by an arbitration agreement of which they were not made aware. An advocacy group for the blind filed a lawsuit against the Container Store alleging that the company’s use of visual, touch screen point of sale devices constituted discrimination in violation of federal and state law. The Container Store sought to stay the proceedings, arguing that the customers agreed to arbitrate any disputes when they signed up for the company’s loyalty program. The First Circuit, with Justice David Souter sitting by designation, affirmed the district court’s decision to deny compelling arbitaration, finding that the customers never actually agreed to the arbitration clause. National Federation of the Blind v. The Container Store, Inc., No. 16-2112, 2018 WL 4378174 (1st Cir. Sept. 14, 2018).

The court begins its analysis by focusing on whether the issue of the arbitrations clause’s enforceability itself should have been resolved by an arbitrator. While the validity of an agreement as a whole should be determined by an arbitrator, a challenge to the formation of the arbitration clause can properly be considered by a court. Considering the challenge to the arbitration agreement to be based upon the contract principles of offer and acceptance, the court considers the issue to be whether there was the formation of a contract to arbitrate. Therefore, the court holds that the district court was an appropriate forum to resolve the issue of whether the customers agreed to arbitrate.

The court then examines whether the plaintiffs had adequate notice of the arbitration agreement to accept it. The court notes that no store clerk ever informed blind customers who signed up for the loyalty program that they were being subjected to an arbitration agreement. Nevertheless, the Container Store maintained that the customers actually had constructive notice of the clause’s existence by pointing out that the inability to read is not a defense to contract formation. However, the court found the cases relied on by the Container Store to be distinguishable because they involved situations in which the formation of legal rights and duties would be expected such as signing documents initiating loans or employment. Since the in-store customers had no reason to think that legal terms and conditions applied to the loyalty program, there was no presumption that the customers knew what these terms and conditions were. Accordingly, the customers had no actual or constructive knowledge of the arbitration clause’s existence and thus could not have agreed to be bound by its terms.

The case serves as a cautionary tale for both businesses and consumers alike. Businesses that want to avoid the costs of litigation by resolving disputes through arbitration should ensure that all customers are made fully aware of any arbitration agreement and thus have the capability of accepting it. In addition, a customer made aware of an arbitration agreement should fully consider the nature of the agreement and its ability to restrict the forum in which the customer’s grievances may be heard.

By Dani Parker, CLS ’20

On September 27, 2018, Dr. Christine Blasey Ford testified in front of the Senate Judiciary Committee that she had been sexually assaulted at a high-school party by then D.C. Circuit Judge and Supreme Court nominee, Brett Kavanaugh.[1]Dr. Ford was initially hesitant to testify front of the committee without a preceding FBI investigation, but she agreed to participate in a public hearing after Senate Republicans insisted upon continuing with the nominating process without her testimony.[2]This is not the first time assault allegations have surfaced amid Supreme Court nominations. In October 1991, Anita Hill testified in front of the Senate Judiciary Committee to sexual harassment by then Supreme Court Nominee Clarence Thomas.[3]

Allegations by Ms. Hill and Dr. Ford and the corresponding congressional hearings highlight the inadequacy of Senate procedures to appropriately account for sexual assault allegations that arise during the Supreme Court confirmation process. In this high-stakes context, such inadequate process may result in the appointment of individuals who are unsuited to sit on the nation’s highest court. As such, the Senate should employ research-based procedures for addressing sexual assault allegations that arise during the Supreme Court nomination process.

The Problem

Though its role is mostly customary, the modern Senate Judiciary Committee conducts pre-hearing investigations, holds public hearings, and makes a recommendation to the full Senate body.[4]While it normally conducts an extensive background investigation, there are no set guidelines for addressing the results of these efforts.[5]Typically, the Committee holds public hearings to discuss its investigative findings, but this practice results from custom and not rule.[6]Additionally, there are no rules governing what topics public hearings should concern.[7]Though politically unlikely, the Senate could complete the nomination process without formally considering or acknowledging sexual assault allegations.[8]

While the Judiciary Committee did choose to address such allegations during both the Kavanaugh and Thomas proceedings, the resulting publically televised hearings provided a hostile forum for serious consideration of the alleged victims’ claims. According to trauma research, neurobiological phenomena, “can affect the survivor’s ability to give a coherent, consistent account of their experiences.”[9]This is especially true when a significant amount of time exists between the alleged events and the victim’s testimony.[10]Both Dr. Ford and Ms. Hill came forward several years after their alleged assaults. Both sets of hearings pitted the testimony of the accuser against the word of the nominee and did not require additional investigation or testimony[11]. In both cases, televised hearings focused mainly on the words of the opposing parties and lacked an extensive standard for investigation. These methods place a scientifically inappropriate burden on the alleged victims’ memory, encouraging further political polarization instead of legitimate truth-finding.

Recommendation

To ensure comprehensive evaluation of Supreme Court nominees, the Senate Judiciary Committee should establish prescribed policies for addressing sexual assault nominations. In order to best facilitate truth-telling, these guidelines should be trauma-informed and should mandate research-based investigations. These requirements would facilitate appropriate due diligence on the part of the President and ensure that Senators would thoroughly consider the allegations before voting. While some may view this as too invasive, society should expect nothing less for the nomination process to our nation’s highest court.

[1]Scott Detrow and Danielle Kurtzleben, Kavanaugh and Christine Blasey Ford Testify Before Senate Judiciary Committee, N.P.R. All Things Considered (September 27, 2018),

https://www.npr.org/2018/09/27/652366140/kavanaugh-and-christine-blasey-ford-testify-before-senate-judiciary-committee

[2]Peter Baker et al., Christine Blasey Ford Wants F.B.I. to Investigate Kavanaugh Before She Testifies, N.Y. Times (September 18, 2018), https://nyti.ms/2NmMeZR.

[3]Elise Viebeck, Here’s what happened when Anita Hill testified against Clarence Thomas in 1991, Chicago Tribune (September 27, 2018), http://www.chicagotribune.com/news/nationworld/politics/ct-anita-hill-clarence-thomas-20180927-story.html.

[4]Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, Congressional Research Service Report (August 14, 2018), https://fas.org/sgp/crs/misc/R44236.pdf.

[5]Id.

[6]Id.

[7]Id.

[8]Id.

[9]Fiona Mason, Psychological Consequences of Sexual Assault, (2012), https://ac.els-cdn.com/S152169341200137X/1-s2.0-S152169341200137X-main.pdf?_tid=d4001a67-4cc1-4296-ac04-0d86dad97eea&acdnat=1538178437_a15324cf8da4dceb703153bbe2448280.

[10]Id.

[11]In fact, Anita Hill and Clarence Thomas’ testimonies popularized the phrase “he said, she said” in the context of “weighing the word of one defendant against the word of one plaintiff.” William Safire, On Language; He-Said, She Said, (April 12, 1998), https://www.nytimes.com/1998/04/12/magazine/on-language-he-said-she-said.html