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Uber Lawsuit: Chen's Class Certification to Be Reviewed by 9th Cir.

By Jonathan R. Tung, Esq. | Last updated on

Remember how it seemed that the world was coming to and end in the case of O'Connor v. Uber when District Court Judge Chen certified a class of Uber drivers that numbered approximately 150,000? Uber was not too happy about that and appealed the class certification. They got denied once.

Just Kidding! It looks like the Ninth Circuit will be hearing that issue after all. It should be emphasized that the challenge to certification does not stop the case, but a decertification of the class would be a major step back for Uber plaintiffs who've been pushing for employee status and labor protections.

Not Just the Class

Uber will take the opportunity not only to contest the class certification of more than 150,000 drivers, but will also contest the invalidation of each of the associated arbitration provisions in which the drivers allegedly waived their rights to litigate in class actions. Also up for challenge is whether or not Uber retained the right to bring on new drivers using a newer, stiffer version of the arbitration clause.

Class Action Special Treatment

Class actions are special animals in that they are working examples of a legal reality: the need to balance the long standing principle in Anglo-Saxon common law of individual standing against the needs to get the ball rolling continuously in the legal system. Interlocutory appeals generally are not granted in individual suits. But since class action suits almost always implicate a company, there is a stronger incentive to push for settlement lest the company's legal woes clog up the court's docket.

And with that in mind, there's a very real chance that Uber will at least win back some of what it has lost in court these last few months. The plaintiffs' attorney, Shannon-Liss Riordan, has been on a tear with class action suits. But her momentum may have hit a wall in this latest development. Uber's legal team will shine a very bright light on Chen's certification of the class, arguing that at least one of the necessary conditions of class (most likely commonality and typicality) just were not met under the facts.

Merely an App Company?

Gone are the days when people would naively accept the self-characterization of Uber as an "app company." What the company is, nobody knows. And that's the debate. But if Uber's momentum picks up steam against class certification, it looks like it could be a while yet before we really find out what the law thinks.

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