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O'Connor v. Uber Technologies, Inc.

United States Court of Appeals, Ninth Circuit

September 25, 2018

DOUGLAS O'CONNOR; THOMAS COLOPY; DAVID KHAN; MATTHEW MANAHAN; WILSON ROLLE, JR.; WILLIAM ANDERSON, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellant. DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellant. HAKAN YUCESOY, on behalf of himself and all others similarly situated, Plaintiff-Appellee,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellant. RICARDO DEL RIO; TONY MEHRDAD SAGHEBIAN, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
UBER TECHNOLOGIES, INC.; RASIER-CA, LLC, a Delaware Limited Liability Company, Defendants-Appellants. ABDUL KADIR MOHAMED, individually and on behalf of all others similarly situated, Plaintiff-Appellee,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellant, and RASIER, LLC; HIREASE, LLC, Defendants. DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellee. HAKAN YUCESOY, on behalf of himself and others similarly situated, Plaintiff-Appellant,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellee. ABDUL KADIR MOHAMED, individually and on behalf of all others similarly situated; RONALD GILLETTE; SHANNON WISE; BRANDON FARMER; MEGHAN CHRISTENSON, Plaintiffs-Appellants,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellee. DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
UBER TECHNOLOGIES, INC., Defendant-Appellant.

          Argued and Submitted September 20, 2017

          Submission Withdrawn September 22, 2017

          Re-Submitted September 25, 2018 San Francisco, California

          Appeal from the United States District Court for the Northern District of California D.C. Nos. 3:13-cv-03826-EMC, 3:13-cv-03826-EMC, 3:15-cv-00262-EMC, 3:15-cv-03667-EMC, 3:14-cv-05200-EMC, 3:14-cv-05241-EMC, 3:15-cv-03009-EMC, 3:13-cv-03826-EMC, 3:15-cv-00262-EMC, 3:14-cv-05200-EMC, 3:13-cv-03826-EMC Edward M. Chen, District Judge, Presiding.

          Theodore J. Boutrous Jr. (argued), Theane D. Evangelis, and Kevin J. Ring-Dowell, Gibson Dunn & Crutcher LLP, Los Angeles, California; Joshua S. Lipshutz, Gibson Dunn & Crutcher LLP, San Francisco, California; for Defendants-Appellants.

          Shannon Liss-Riordan (argued) and Adelaide H. Pagano, Lichten & Liss-Riordan P.C., Boston, Massachusetts, for Plaintiffs-Appellees.

          Jeffery Burritt (argued), Attorney; Kira Dellinger Vol, Supervisory Attorney; Linda Dreeben, Deputy Associate General Counsel; John H. Ferguson, Associate General Counsel; Jennifer Abruzzo, Deputy General Counsel; Richard F. Griffin Jr., General Counsel; National Labor Relations Board, Washington, D.C.; for Amicus Curiae National Labor Relations Board.

          Andrew J. Pincus, Evan M. Tager, and Archis A. Parasharami, Mayer Brown LLP, Washington, D.C.; Jed Glickstein, Mayer Brown LLP, Chicago, Illinois; Kate Comerford Todd and Warren Postman, U.S. Chamber Litigation Center Inc., Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.

          Before: Richard C. Tallman, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY[*]

         Class Action / Arbitration

         The panel reversed the district court's denial of Uber Technologies, Inc.'s motions to compel arbitration, reversed the district court's class certification orders, and reversed as moot and without foundation the district court's Fed.R.Civ.P. 23(d) orders in several putative class actions brought by current and former Uber drivers alleging violations of various federal and state statutes arising from Uber's classification of drivers as independent contractors rather than employees.

         In Mohamed v. Uber Technologies, Inc., 848 F.3d 1201, 1206 (9th Cir. 2016), the panel previously considered and reversed the district court's orders denying Uber's motion to compel arbitration.

         The panel rejected plaintiffs' additional arguments in this current appeal alleging that the arbitration agreements were unenforceable. First, the plaintiffs argued that the lead plaintiffs in the O'Connor case constructively opted out of arbitration on behalf of the entire class. The panel held this was unpersuasive because nothing gave the O'Connor lead plaintiffs the authority to take that action on behalf of and binding other drivers, and the decision in Bickerstaff v. Suntrust Bank, 788 S.E.2d 787 (Ga. 2016), was not instructive where it relied exclusively on state law grounds and did not discuss the Federal Arbitration Act. Second, the plaintiffs argued that the arbitration agreements were unenforceable because they contained class action waivers that violated the National Labor Relations Act of 1935. The panel held that this argument was rejected by the Supreme Court in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018).

         The panel held that it had jurisdiction to review both the original class certification order and the December 9, 2015 certification order. The panel held that in the wake of the decision in Mohamed, the class certification orders must be reversed because they were premised upon the district court's conclusion that the arbitration agreements were not enforceable. The question whether those agreements were enforceable was not properly for the district court to answer because the question of arbitrability was designated to the arbitrator. The panel held that remand for further proceedings was appropriate, and leaving the existing class certification orders in place in the meantime was not appropriate.

         The panel held that the district court's Fed.R.Civ.P. 23(d) orders must be reversed as moot and without foundation in light of the panel's reversal of the district court's orders denying the motions to compel arbitration and certifying the class.

          OPINION

          CLIFTON, ...


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