Uber drivers union lawsuit headed back to appeals court shortly

Two weeks ago SCC Insight provided an update on a 2017 lawsuit filed by the U.S. Chamber of Commerce challenging Seattle’s ordinance granting Uber and Lyft drivers the right to collective bargaining. The case has been snaking its way through the court system for years now, with one trip to the 9th Circuit Court of Appeals in 2018 already. And with a defiant filing by the Chamber today, it’s about to head right back there.

The Chamber of Commerce asserts that the ordinance violates federal antitrust laws. In the first round, the city claimed that it had “state action” immunity, and in the case’s first trip to the 9th Circuit, that argument got shot down. The Chamber subsequently filed for summary judgment on its antitrust claim, but the City of Seattle successfully argued that it needed to be allowed to conduct discovery to gather facts so that it could argue that various other labor exemptions in the antitrust laws apply to Uber and Lyft drivers because of how the TNCs manage them. The district court agreed, and postponed ruling on the motion of summary judgment until after the City completed discovery on:

(a) whether the for-hire drivers are selling their labor, as opposed to a product or service that qualifies as a commodity under the antitrust laws, (b) the nature and scope of the drivers’ entrepreneurial investments in training, vehicles, and other business expenditures, (c) the drivers’ control over the supply of whatever commodity they are selling, (d) what powers and authority the drivers cede to the ride referral companies, (e) the process by which the ride referral applications can generate a single ride option at a fixed price, and (f) the market appeal and efficiencies of the coordinated selling arrangement.

That was a year ago. The discovery process has not gone smoothly, to say the least. The city submitted its discovery requests to the Chamber, much of which was for documents belonging to Uber, Lyft and the other members of the Chamber of Commerce that the chamber is representing through “associational standing.” But the Chamber rejected those requests, arging that it does not possess those documents and has no legal power to force its members to produce them. This led to an impasse, which ended up back in front of the judge to sort out.

Here’s the catch: in order for the Chamber of Commerce to invoke “associational standing” to sue on behalf of its aggrieved members, it needs to meet a three-part test established by the U.S. Supreme Court:

An association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members.

In the earliest days of the case, the city argued that the Chamber did not have standing because it could not meet the third part of the test: its members needed to participate in the case. The judge at that time rejected the argument. But now the city has returned to that point, arguing that the Chamber is trying to have it both ways: fully representing its members, but unwilling to provide (or incapable of providing) documents through the discovery process. Last month, the judge agreed with the city, and told the Chamber that it had two weeks to state definitively whether it could fulfill the discovery requests — and if it couldn’t he would most likely dismiss the Chamber as a party from the suit for lack of associational standing.

Today the Chamber filed its response, essentially repeating the argument that it made in January: that it has no legal power to compel its members to produce documents. Further, it asserted that the judge had already decided that the Chamber had associational standing, and therefore “no backsies.”  (yes, the legal jargon is heftier than that — but the point is the same) And it finishes off by telling the Judge to get it over with quickly so it can take it back to the 9th Circuit:

If this Court concludes (wrongly) that the Chamber now lacks standing because it cannot produce documents from other persons that the City could obtain via other means under the Federal Rule of Civil Procedure, then the Chamber requests that the Court enter final judgment dismissing the Chamber with an express determination that “that there is no just reason for delay” of an appeal.

The judge will no doubt do exactly that in the coming days, and the case will head upstairs again.

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