In Google’s lawsuit against Uber as to alleged theft of self-driving car technology, Uber sought to hold a hearing in camera, closed to the public. Judge Alsup concluded that Uber sought confidentiality not for any proper purpose permitted udner law, but to avoid embarrassment. From the court transcript for March 26, 2017:
Mr. Gonzalez (for Uber): Your Honor, the reason why we wanted it in chambers is because of the adverse impact that we think it would have on our client. If ther’s a headline tomorrow saying this guy is asserting the Fifth Amendment —
The Court: Listen, please don’t do this to me again. There’s going to be a lot of adverse headlines in this case on both sides. And I can’t stop that that.
[T]he public has a right — in fact, this whole transcript, I’m going to make it public.
Details in The Verge
In a 30 minute podcast on Legal Talk Network, Uber then-General Counsel Salle Yoo remarked:
I tell my team, “We’re not here to solve legal problems. We’re here to solve business problems. Legal is our tool”
She continued: “I am going to be supportive of innovation” — broadly indicating prioritizing innovation ahead of compliance with the law.
Bloomberg reported that then-CEO Travis Kalanick encouraged then-General Counsel Salle Yoo to create a legal department with what Bloomberg called a “spirit of rule-breaking.” In a performance review, Kalanick told Yoo she needed to be more “innovative.” Bloomberg reports that Yoo considered herself “liberated” by not having to follow “best practices”, being allowed “to do things the way I think things should be done, rather than the way other people do it.” But Bloomberg says Yoo failed to challenge Kalanick and his deputies, or raise objections to Uber’s board.
In October 2017, Bloomberg reported at least five criminal probes of Uber by the US Department of Justice, two more than previously reported. Additions:
- violations of price-transparency laws
- Uber’s role in the alleged theft of schematics and other documents related to Google autonomous-driving technology
Confident that it would prevail in trade secret litigation alleging that Uber stole Google information, Google proposed that Uber pay $1 billion of damages, issue a public apology, and appoint an independent monitor to assure that Uber does not use Google technology i nthe future.
Reuters interpreted Google’s proposal: “Waymo’s tough negotiating stance, which has not been previously reported, reflects the company’s confidence in its legal position after months of pretrial victories in a case which may help to determine who emerges in the forefront of the fast-growing field of self-driving cars. The aggressive settlement demands also suggest that Waymo is not in a hurry to resolve the lawsuit, in part because of its value as a distraction for Uber leadership.”
Uber rejected the proposal.
In response to a complaint from trade union GMB, the London Employment Tribunal determined that Uber drivers are employees.
Remarking “the lady doth protest too much, methinks” at Uber’s numerous contractual provisions insisting that drivers are not employees, the LET simultaneously looked at Uber’s various “unguarded moments” in which the company used terminology most consistent with employment status. Ultimately the LET said it is “unreal” to deny the “practical reality” that Uber provides transportation services, and in that context the LET found that the drivers must be employees.
The LET rejected as “ridiculous” the suggestion that Uber is “a mosaic of 30,000 small businesses linked by a common ‘platform.'” The LET rejected Uber’s claim of only providing driver with “leads.” For one, drivers have no opportunity to negotiate or bargain with passengers. The LET also examined the interaction between drivers and passengers, including when drivers learn the route and how payment occurs. The LET said all these factors indicate an employment relationship.
In a 13-item list, LET gathered factors indicating that drivers are employees, including those detailed above as well as Uber’s practice of interviewing and recruiting drivers, instructing drivers in various respects, setting routes, collects ratings and imposes penalties, handles complaints, and has the power to amend the contract provisions of the relationship.
Informed by the finding that drivers are employees, the LET went on to analyze their rights as employees and Uber’s violations of those rights.
In October 2017, Uber’s board voted to end the benefit that let early employees and investors get 10 votes per share, a benefit which had given those groups disproportionate control. In response, early Uber investors Shervin Pishevar and Steve Russell said they would sue to block the change. Their statement:
Today’s action by the board was the culmination of a blatant bait and switch, essentially robbing loyal employees, including the more than 200 early founding Uber employees and advisors, of their hard earned shareholder rights.
Seeking to avoid regulations from individual countries in Europe, Uber argued that it is an “information society service” that could only be regulated in accordance with Europe-wide procedures. In a May 2017 decision, the European Court of Justice said that Uber “falls within the field of transport” and therefore “Uber can … be required to obtain the necessary licenses and authorizations under law.”
In a lawsuit, the Irving Firemen’s Relief & Retirement Fund alleges that Uber and its former CEo Travis Kalanick knowingly misled them while raising funds, including failing to disclose that the company had broken laws.
The lawsuit chronicles a variety of Uber improprieties including “Greyball” evasion of law enforcement, “Hell” tracking of rivals, allegations of intellectual property theft from Google, sexual harassment and other human resources violations, knowingly renting out recalled and unsafe vehicles, and theft of a passenger’s medical records.
The lawsuit seeks class-action treatment for Uber investors.
San Francisco district Judge William Alsup criticized Uber’s practice of including lawyers in discussions strategically — using the lawyer’s presence to claim that discussions were privileged if Uber wants to keep the content confidential, but claiming that the attorney did not attend in the capacity of an attorney if that advances Uber’s interests. Alsup explains:
Uber has indulged in the slick practice of including its lawyers in meetings and communications and deciding after the fact if a lawyer was actually included for the purpose of providing legal advice, all in accordance with what happens to be convenient for Uber’s case. Where, as here, the contents of a meeting prove advantageous for Uber to reveal, it readily claims that the lawyer did not attend the meeting in their capacity as a lawyer. But where the contents of a meeting would hurt Uber’s litigation position, Uber is quick to conceal the facts under claims of privilege.
Alsup concluded that he will not “indulge this pattern of convenience.”
Full order from Judge William Alsup and full order from Magistrate Judge Jacqueline Scott Corley