Lawyers in federal court in San Francisco have clashed last week over whether to put dozens of consolidated cases involving sexual assaults by Uber drivers on hold while Uber tries to vacate the ruling that consolidated the cases.
The underlying dispute raises the question of whether it is appropriate for the federal court in San Francisco to have a central role in considering sexual assault cases against Uber from all over the country.
San Francisco’s role as a national testing ground for new mobility technologies cannot be disputed. From ride-sharing services, to electric scooters, to autonomous vehicles, the city has been at the forefront of innovation, with all the promises of the new technologies on display.
But the city has also born witness to the problems of innovative technology.
… it is perhaps not surprising that the federal judiciary decided to select San Francisco as the jurisdiction to deal with another unpleasant byproduct of mobility technology: sexual assault cases brought against Uber based on the actions of their drivers.
For example, in 2018, city pedestrians were up in arms over electric scooters abandoned helter-skelter on city sidewalks and in public rights of way. And in October 2023, Cruise autonomous vehicles were barred from the city’s roads after one of the fleet ran over and seriously injured a pedestrian previously hit by a motorist and flung into the Cruise vehicle’s path.
Against that background, it is perhaps not surprising that the federal judiciary decided to select San Francisco as the jurisdiction to deal with another unpleasant byproduct of mobility technology: sexual assault cases brought against Uber based on the actions of their drivers.
On Oct 4, 2023 the United States Judicial Panel on Multidistrict Litigation, or “MDL” for short, decided if — and where — to consolidate what were then 79 federal lawsuits that asserted claims against Uber for alleged assaults committed by their drivers. Those cases were initially filed in 11 different federal jurisdictions.
The idea behind MDL proceedings is that when a large number of federal cases scattered around the country involve common questions of fact, consolidating the cases in one place may promote judicial efficiency, avoid inconsistent rulings, and enhance the convenience of parties.
The transferee court would then coordinate pre-trial proceedings, especially the process of “discovery” — the exchange of documents and depositions by which plaintiff and defendant learn about each other’s case. In theory, the cases would return to their home jurisdictions for trial, at least if they were not settled or otherwise resolved before then.
In the Uber cases, San Francisco edged out the other jurisdictions — Texas, Massachusetts, and North Carolina all had advocates — as the location for transfer.
Three considerations favored San Francisco.
First, the city is the headquarters of Uber Technologies, Inc.
Second, federal cases filed in California constituted 62 of the 79 pending cases.
Last, the Superior Court of San Francisco County was already in charge of “Joint Council Coordinating Proceedings” involving a group of California state court cases brought against Uber for passenger assaults. In other words, the JCCP proceedings — a state court version of the federal MDL — was already in place in San Francisco.
The panel ordered the MDL to be heard in San Francisco and in doing so gave a shout out to U.S. Senior District Judge Charles R. Breyer, who would preside over the federal cases. According to the panel, Breyer “has unparalleled experience as a transferee judge, and we are confident that he will steer this litigation on a prudent course.”
Uber’s legal manuevers
Uber challenged the premises of the transfer order and on November 14, 2023 filed a petition with the U.S. Court of Appeals for the 9th Circuit asking it to issue an “extraordinary writ” that would direct the MDL panel to revoke its order of transfer.
Uber’s argument was that the supposedly common issues among the transferred cases were far from common.
Uber said that the key issues — whether the drivers were employees, how Uber backgrounded the drivers, and what happened in the particular assaults — were all individualized inquiries that would not benefit from a common approach.
Uber’s lawyers hammered on the differences. “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,” they argued.
Uber added its ace-in-the-hole argument. It pointed out that the state court judge in the JCCP cases had recently ruled that California was not the most convenient forum and dismissed approximately 1,000 of the JCCP cases. The court relied on the fact, among others, that different state laws and regulatory schemes would apply to the different cases and make a common proceeding inefficient.
The 9th Circuit has not yet ruled on Uber’s argument.
However, in the meantime, Uber asked Judge Breyer — younger brother of the retired Supreme Court Justice Stephen Breyer — to put the federal MDL on hold while its petition in the 9th Circuit was pending.
Steering away from the central issue?
Arguments on that motion were heard in Judge Breyer’s court in San Francisco on Thursday.
Judge Breyer — a judge with a genial disposition and incisive intellect — asked the parties to address what he saw as the central issue: would they be hurt if the MDL case paused while the 9th Circuit considered Uber’s petition to vacate the MDL order.
Lawyers for the plaintiffs argued that suspending the proceedings would kill the momentum of the case just as they were getting their arms around many of the key organizing issues that must happen in MDL litigation cases.
They said that groups of different plaintiffs were in the process of figuring out how to work together and determining their strategy for unearthing and analyzing the facts. If the court let the air out of the case’s tires, much of that important work would be suspended and subject to slow and fitful restarting.
Uber — apparently optimistic about its chances on appeal — pressed the argument that if it won in the 9th Circuit, all the time-consuming and expensive work in the MDL case that happened in the interim would be largely wasted.
Judge Breyer leapt in on this point. He pointed out that even if the 9th Circuit sent the transferred cases home, the group of at cases that were originally initiated in federal court in California would continue before him. Given that fact, he didn’t understand how Uber would be hurt because Uber would need to do the same organizational work for those cases even if the transferred cases were returned to their original homes.
Uber argued there was a mighty difference between what would need to be done for a relatively homogenous group of California cases, as opposed to a collection that included cases and lawyers from all over the country.
After more than an hour of arguments, Judge Breyer thanked the parties and promised to decide the matter within a week.
Breyer did not tip his hand as to how he would rule, though his questioning appeared sympathetic to the argument that the case should move forward pending the 9th Circuit proceedings.
Should the MDL remain in San Francisco, it is likely that more cases will be transferred to it. Sarah London, one of the plaintiffs’ lawyers, said that there were already more than 200 cases as part of the MDL.
Some idea of the scope of the issue can be gleaned from Uber’s 2019-20 U.S. Safety Report released in June of 2022.
That report disclosed a total of 3,824 sexual assaults over the two-year period, down from 5,981 in the 2017-18 period.
The company divided the 2019-20 assaults into five categories running from “Non-consensual kissing of a non-sexual body part” (650) to “Non-consensual sexual penetration” (388).
The largest category was “Non-consensual touching of a sexual body part” (2,054).
While a majority of the assaults in 2019-20 were on passengers; roughly 40 percent of the assaults were on Uber drivers. Most, but not all, of the assaults were against women.
Uber’s report noted that during the two-year period there were more than 2 billion trips in the U.S. on its platform.
While Uber argued that 99.9 percent of rides ended without a safety incident, it stated that “although these incidents are incredibly rare, we recognize that each one represents a devastating experience for individuals, families, and communities impacted.”
