A putative class action against Uber filed by some of the company's California-based drivers has crashed. The Ninth Circuit reversed rulings denying Uber's motion to compel arbitration, certifying the class of drivers, and enjoining Uber from distributing and enforcing a new arbitration agreement. Relying on its decision in a previous class action against Uber (Mohamed v. Uber Technologies, Inc., 848 F.3d 1201 (9th Cir. 2016), the Ninth Circuit held that the arbitration agreements delegated the threshold question of arbitrability to the arbitrator. Thus, the determination of arbitrability was not within the district court's province.
The plaintiffs argued the district court's determination that the arbitration agreements were unenforceable should be upheld because the named class representatives had "constructively opted out of arbitration on behalf of the entire class." The Ninth Circuit held the plaintiffs had no authority to take that action on behalf of and binding the other drivers. Although the plaintiffs found a Georgia Supreme Court case (Bickerstaff v. Suntrust Bank, 788 S.E. 787 (Ga. 2016)) supporting their position, they were unable to point to any federal case doing so. Bickerstaff relied exclusively on state law grounds and did not discuss the Federal Arbitration Act.
The plaintiffs' second argument, that the arbitration agreements were unenforceable because they contain class action waivers that violate the National Labor Relations Act, was extinguished by the United States Supreme Court in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). Because the arbitration agreements were enforceable, Uber's motion to compel arbitration should have been granted, and because the plaintiff's claims would be arbitrated, the district court's order certifying the class and restricting Uber's communications with the class were also reversed. O'Connor v. Uber Technologies, Inc. , Case No. 14-16078 (9th Cir. Sept. 25, 2018).