Trump Administration Files New Lawsuits Against Sanctuary Jurisdictions

On Monday, Attorney General William Barr announced that the Trump administration is filing new lawsuits challenging sanctuary policies in New Jersey and King County, Washington (which includes the City of Seattle). For the most part, these lawsuits are based on some of the same flawed constitutional reasoning that has caused the administration to lose a long series of other cases against sanctuary cities and states. The administration’s position is premised on the idea that the federal government can force states and localities to assist in enforcing federal laws, even when the former would prefer not to do so. This runs directly into the Supreme Court’s anti-commandeering precedents holding that the Tenth Amendment forbids such federal coercion of states.  If the federal government wants to enforce federal law against private parties, it must either use its own resources to do so, or secure the voluntary cooperation of the states.

The lawsuit against New Jersey targets a state policy limiting the range of information that state and local law enforcement agencies are permitted to provide to federal immigration enforcement officials. The administration argues that this violates various federal immigration laws that supposedly require states to turn over information about aliens potentially sought for deportation by federal authorities. Even if the laws in question do say that, that just means they themselves are themselves unconstitutional, because they commandeer state governments to help enforce federal law.

That is exactly what several federal courts have already concluded in previous sanctuary city cases in which the Trump administration tried to rely on 8 U.S.C. Section 1373, a controversial federal law mandating that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Because of Section 1373’s indirect nature, the issue of its constitutionality was once a close call. But in the wake of the Supreme Court’s 2018 decision in Murphy v. NCAA, the issue became a fairly simple one, for reasons I summarized here. Since Murphy  was decided, multiple lower courts have uniformly either ruled that Section 1373 is unconstitutional, or interpreted it very narrowly to avoid causing constitutional problems by interfering with state autonomy. I went over these cases in detail in my recent Texas Law Review article on Trump-era sanctuary city litigation. The same fate likely awaits the Trump administration’s attempt to force New Jersey to do its bidding in this case.

Interestingly, the Justice Department’s complaint against New Jersey, barely even attempts to rely on Section 1373, even though it is the federal statute most directly on point. That may be because so many court decisions have recently ruled that Section 1373 is unconstitutional. They instead cite various other federal laws, such as 8 USC Section 1226 and 8 USC Section 1231. The obvious flaw in this strategy is that neither of these laws actually imposes any information-sharing mandates on state and local governments, or even any other kinds of mandates. Both give states the option of helping federal deportation efforts, and even of asking for federal assistance in removing aliens the states themselves want to see gone. For example Section 1231 allows state officials to request the removal of nonviolent criminal aliens serving sentences in state custody if, among other things, they determine that “the removal is appropriate and in the best interest of the State.” But the states are not required to make such requests, and nothing in Section 1231 requires them to turn over information to the feds if they do not want to.

At the very least, Sections 1226 and 1231 are ambiguous about whether they impose any information-sharing duties on states. And, where that is the case, courts will generally interpret statutes in ways that avoid constitutional problems. That means avoiding any theory that allows the federal government to coerce states into turning over information against their will. If courts find that 1226 and 1231 do somehow require information-sharing, they should consign these laws to the same fate as Section 1373 has lately undergone.

The federal argument also claims that New Jersey’s information-sharing restrictions violate the doctrine of “intergovernmental immunity” which bars state laws that “regulate the United States directly or discriminate against the Federal Government or those with whom it deals.” The claim here is that New Jersey is “discriminating” against the federal government because it doesn’t similarly restrict information-sharing with other federal and state law enforcement agencies. If adopted by the courts, this kind of argument would completely demolish the anti-commandeering principle. Any state refusal to help enforce any federal law can be described as “discrimination,” so long as the state in question continues to cooperate with federal or other states’ law enforcement efforts on other issues.

Moreover, as I explained here, the idea that there is “discrimination” here overlooks the ways in which federal immigration enforcement is fundamentally different from other government and private activities with which states might choose to cooperate. he concept of discrimination implies treating similarly situated entities differently. But there is no private-sector analogue to immigration enforcement because because no private entity has the legal right to deport people, forcibly separate families, and confine people in cages. Immigration enforcement is also fundamentally different from other federal or state law enforcement operations because a series of dubious constitutional double standards insulate it from most of the constitutional safeguards that protect suspects in virtually every other area of law.

The King County, Washington lawsuit is somewhat more complicated. It challenges the County’s policy of refusing to let Immigration and Customs Enforcement use the municipal airport for flights that deport immigrants. There are some complexities here related to federal aviation law, which I will leave to those more expert on the subject than I am. But the commandeering and intergovernmental immunity issues are basically similar to those in the New Jersey case. Here too, the federal government is claiming the right to coerce state and local governments into helping enforce federal law, and also claiming that refusal to help qualifies as “discrimination” against the federal government. And these claims have all the same flaws as they did in other cases where the federal government has made them.

In October, the federal government asked the Supreme Court to take the California “sanctuary state” case, which raises much the same issue as the New Jersey case. The Trump administration lost on this issue in the lower courts (at the hands of both Republican and Democratic-appointed judges), and I doubt that the Supreme Court will overturn those rulings. But, obviously, if it does, that would have major implications for the New Jersey litigation  and other similar cases.

If the administration somehow manages to win these cases, it would set a dangerous precedent that goes far beyond immigration policy, creating a road map for federal coercion of states and local governments that can be used on many issues. Those on the right who now cheer Trump’s efforts to coerce sanctuary cities may not be so happy when future Democratic presidents use similar tactics on issues such as gun control, education, or  the “Green New Deal.” Particularly in our highly polarized era, Americans with a wide range of ideological commitments have good reason to support strong judicial enforcement of constitutional limits on federal power over state and local governments.

 

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Trump Administration Files New Lawsuits Against Sanctuary Jurisdictions

On Monday, Attorney General William Barr announced that the Trump administration is filing new lawsuits challenging sanctuary policies in New Jersey and King County, Washington (which includes the City of Seattle). For the most part, these lawsuits are based on some of the same flawed constitutional reasoning that has caused the administration to lose a long series of other cases against sanctuary cities and states. The administration’s position is premised on the idea that the federal government can force states and localities to assist in enforcing federal laws, even when the former would prefer not to do so. This runs directly into the Supreme Court’s anti-commandeering precedents holding that the Tenth Amendment forbids such federal coercion of states.  If the federal government wants to enforce federal law against private parties, it must either use its own resources to do so, or secure the voluntary cooperation of the states.

The lawsuit against New Jersey targets a state policy limiting the range of information that state and local law enforcement agencies are permitted to provide to federal immigration enforcement officials. The administration argues that this violates various federal immigration laws that supposedly require states to turn over information about aliens potentially sought for deportation by federal authorities. Even if the laws in question do say that, that just means they themselves are themselves unconstitutional, because they commandeer state governments to help enforce federal law.

That is exactly what several federal courts have already concluded in previous sanctuary city cases in which the Trump administration tried to rely on 8 U.S.C. Section 1373, a controversial federal law mandating that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Because of Section 1373’s indirect nature, the issue of its constitutionality was once a close call. But in the wake of the Supreme Court’s 2018 decision in Murphy v. NCAA, the issue became a fairly simple one, for reasons I summarized here. Since Murphy  was decided, multiple lower courts have uniformly either ruled that Section 1373 is unconstitutional, or interpreted it very narrowly to avoid causing constitutional problems by interfering with state autonomy. I went over these cases in detail in my recent Texas Law Review article on Trump-era sanctuary city litigation. The same fate likely awaits the Trump administration’s attempt to force New Jersey to do its bidding in this case.

Interestingly, the Justice Department’s complaint against New Jersey, barely even attempts to rely on Section 1373, even though it is the federal statute most directly on point. That may be because so many court decisions have recently ruled that Section 1373 is unconstitutional. They instead cite various other federal laws, such as 8 USC Section 1226 and 8 USC Section 1231. The obvious flaw in this strategy is that neither of these laws actually imposes any information-sharing mandates on state and local governments, or even any other kinds of mandates. Both give states the option of helping federal deportation efforts, and even of asking for federal assistance in removing aliens the states themselves want to see gone. For example Section 1231 allows state officials to request the removal of nonviolent criminal aliens serving sentences in state custody if, among other things, they determine that “the removal is appropriate and in the best interest of the State.” But the states are not required to make such requests, and nothing in Section 1231 requires them to turn over information to the feds if they do not want to.

At the very least, Sections 1226 and 1231 are ambiguous about whether they impose any information-sharing duties on states. And, where that is the case, courts will generally interpret statutes in ways that avoid constitutional problems. That means avoiding any theory that allows the federal government to coerce states into turning over information against their will. If courts find that 1226 and 1231 do somehow require information-sharing, they should consign these laws to the same fate as Section 1373 has lately undergone.

The federal argument also claims that New Jersey’s information-sharing restrictions violate the doctrine of “intergovernmental immunity” which bars state laws that “regulate the United States directly or discriminate against the Federal Government or those with whom it deals.” The claim here is that New Jersey is “discriminating” against the federal government because it doesn’t similarly restrict information-sharing with other federal and state law enforcement agencies. If adopted by the courts, this kind of argument would completely demolish the anti-commandeering principle. Any state refusal to help enforce any federal law can be described as “discrimination,” so long as the state in question continues to cooperate with federal or other states’ law enforcement efforts on other issues.

Moreover, as I explained here, the idea that there is “discrimination” here overlooks the ways in which federal immigration enforcement is fundamentally different from other government and private activities with which states might choose to cooperate. he concept of discrimination implies treating similarly situated entities differently. But there is no private-sector analogue to immigration enforcement because because no private entity has the legal right to deport people, forcibly separate families, and confine people in cages. Immigration enforcement is also fundamentally different from other federal or state law enforcement operations because a series of dubious constitutional double standards insulate it from most of the constitutional safeguards that protect suspects in virtually every other area of law.

The King County, Washington lawsuit is somewhat more complicated. It challenges the County’s policy of refusing to let Immigration and Customs Enforcement use the municipal airport for flights that deport immigrants. There are some complexities here related to federal aviation law, which I will leave to those more expert on the subject than I am. But the commandeering and intergovernmental immunity issues are basically similar to those in the New Jersey case. Here too, the federal government is claiming the right to coerce state and local governments into helping enforce federal law, and also claiming that refusal to help qualifies as “discrimination” against the federal government. And these claims have all the same flaws as they did in other cases where the federal government has made them.

In October, the federal government asked the Supreme Court to take the California “sanctuary state” case, which raises much the same issue as the New Jersey case. The Trump administration lost on this issue in the lower courts (at the hands of both Republican and Democratic-appointed judges), and I doubt that the Supreme Court will overturn those rulings. But, obviously, if it does, that would have major implications for the New Jersey litigation  and other similar cases.

If the administration somehow manages to win these cases, it would set a dangerous precedent that goes far beyond immigration policy, creating a road map for federal coercion of states and local governments that can be used on many issues. Those on the right who now cheer Trump’s efforts to coerce sanctuary cities may not be so happy when future Democratic presidents use similar tactics on issues such as gun control, education, or  the “Green New Deal.” Particularly in our highly polarized era, Americans with a wide range of ideological commitments have good reason to support strong judicial enforcement of constitutional limits on federal power over state and local governments.

 

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Andrew Yang, Who Wanted Libertarians in His Coalition and Opposed Cancel Culture, Exits the Democratic Race

Businessman Andrew Yang, a longshot candidate for the Democratic Party’s presidential nomination, has dropped out of the race in advance of what are expected to be disappointing results in the New Hampshire primary.

“I am a numbers guy,” said Yang, according to The Washington Post. “I’m not going to be at a threshold where I get delegates, which makes sticking around not necessarily helpful or productive in terms of furthering the goals of this campaign.”

Yang’s candidacy was predominantly based on a specific proposal, akin to a universal basic income: Yang wanted to give every adult American $1,000 each month. He described his policy approach as “humanity first,” and he wanted to use the powers of the federal government to ease the burdens on Americans whose short-term job prospects have suffered due to outsourcing and automation.

That was never a particularly libertarian agenda, but Yang’s practical approach—find ways to help people who may have been hurt by capitalism, rather than destroy capitalism itself—nevertheless made him popular with a diverse range of people, including some libertarians. Former Libertarian Party vice presidential candidate Bill Weld recently cited Yang as his dream running mate. Yang and Rep. Tulsi Gabbard (D–Hawaii) have been the only Democratic candidates thus far this year to make any sort of explicit pitch to libertarians. (Indeed, they are the only two candidates on the New Hamphire ballot to plausibly demonstrate that they know what a libertarian is.)

Yang also generated headlines for denouncing cancel culture. He criticized Saturday Night Live‘s firing of comedian Shane Gillis, and he earned the endorsement of Dave Chapelle.

“I believe that our country has become excessively punitive and vindictive about remarks that people find offensive or racist and that we need to try and move beyond that, if we can,” Yang said. “Particularly in a case where the person is—in this case—a comedian whose words should be taken in a slightly different light.”

Yang’s friendly, upbeat approach made him extremely hard to dislike. If elections truly came down to Which candidate would you like to get a beer with?, he would undoubtedly have fared better.

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Wuhan-400 Coronavirus: 1981 Novel Predicts Virus Origin

Wuhan-400 Coronavirus: 1981 Novel Predicts Virus Origin

Via GreatGameIndia.com,

In a bizarre coincidence, a 1981 fictional novel The Eyes of Darkness by Dean Koontz predicts a Coronavirus like outbreak and its origin. The book talks about how the virus called Wuhan-400, was developed in military labs around the Chinese city of Wuhan from where it got its name. The top secret information of the Biological  weapons Program is later acquired by US intelligence from a Chinese defector. The American military is ultimately successful in creating a vaccine which the Chinese could not.

Wuhan-400 Coronavirus – 1981 Novel predicts Coronavirus like Outbreak and Origin

The Eyes of Darkness is a thriller novel by American writer Dean Koontz, released in 1981. The book focuses on a mother who sets out on a quest to find out if her son truly did die one year ago, or if he is still alive.

Plot

A mother sends her son on a camping trip with a leader who has led this trip into the mountains 16 times before without mishap; that is until this time. Every single camper and leader and driver die with no explanation. As the grieving mother who is the protagonist begins to accept the fact that her son, Danny, is dead she starts getting vicious bully-like attacks from nowhere saying he is not dead, such as writing on chalk boards, words from printers and other various ‘signs’. Along with her new friend, Elliot Stryker, Christina Evans sets out to find out what could have possibly happened on the day that her son ‘died’.

Excerpts on Wuhan-400

The Eyes of Darkness by Dean Koontz, a 1981 novel predicts Coronavirus like outbreak called Wuhan-400 Coronavirus

To understand that you have to go back twenty months. It was around then that a Chinese scientist named Li Chen defected to the United States, carrying a diskette record of China’s most important and dangerous new biological weapon in a decade. They call the stuff “Wuhan-400” because it was developed at their RDNA labs outside of the city of Wuhan, and it was the four-hundredth viable strain of man-made microorganisms created at that research center.

Wuhan-400 is a perfect weapon. It afflicts only human beings. No other living creature can carry it. And like syphilis, Wuhan-400 can’t survive outside a living human body for longer than a minute, which means it can’t permanently contaminate objects or entire places the way anthrax and other virulent microorganisms can. And when the host expires, the Wuhan-400 within him perishes a short while later, as soon as the temperature of the corpse drops below eighty-six degrees Fahrenheit. Do you see the advantage of all this?

…

The Chinese could use Wuhan-400 to wipe out a city or a country, and then there wouldn’t be any need for them to conduct a tricky and expensive decontamination before they moved in and took over the conquered territory.

And Wuhan-400 has other, equally important advantages over most biological agents. For one thing, you can become an infectious carrier only four hours after coming into contact with the virus. That’s an incredibly short incubation period. Once infected, no one lives more than twenty-four hours. Most die in twelve. It’s worse than the Ebola virus in Africa – infinitely worse. Wuhan-400’s kill-rate is one hundred percent. No one is supposed to survive.

…

The Chinese tested it on God knows how many political prisoners. They were never able to find an antibody or an antibiotic that was effective against it. The virus migrates to the brain stem, and there it begins secreting a toxin that literally eats away brain tissue like battery acid dissolving cheesecloth. It destroys the part of the brain that controls all of the body’s autonomic functions. The victim simply ceases to have a pulse, functioning organs, or any urge to breathe.

After Li Chen defected with all the data on Wuhan-400, he was brought here (US military facility). We immediately began working with him, trying to engineer an exact duplicate of the virus. In relatively short order we accomplished that. Then we began to study the bug, searching for a handle on it that the Chinese had overlooked.

Someone got careless and stupid. Almost thirteen months ago, when the boys were on their winter survival outing, one of our scientists accidentally contaminated himself while he was working alone one morning in this lab.

You’re trained what to do from the day you start to work here. In the event of accidental contamination, you immediately set off an alarm. Immediately. Then you seal the room you’re working in. If there’s an adjoining isolation chamber, you’re supposed to go into it and lock the door after yourself. 

A decontamination crew moves in swiftly to clean up whatever mess you’ve made in the lab. And if you’ve infected yourself with something curable, you’ll be treated. If it’s not curable . . . you’ll be attended to in isolation until you die. That’s one reason our pay scale is so high. Hazardous-duty pay. The risk is part of the job.

*  *  *

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Tyler Durden

Tue, 02/11/2020 – 21:25

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Airbnb IPO In Peril After Unexpected Loss, Coronavirus Fears

Airbnb IPO In Peril After Unexpected Loss, Coronavirus Fears

The coronavirus outbreak in China could derail Airbnb Inc.’s attempt to going public in the next several quarters. It’s a race against time for the online marketplace that arranges lodging, as slumping financials have led to steep losses and risks, a valuation correction. 

Airbnb has taken notice of WeWork’s implosion last fall, as it attempted to IPO but failed because of valuations concerns, ran out of cash several months later, and had to be bailed out by its largest investor, SoftBank. 

WeWork has been a barometer of the VC and IPO bubble; all have deflated in the last five months. 

A source told The Wall Street Journal that Airbnb recorded a $322 million net loss for the nine months through September, down from a $200 million profit a year earlier. 

Investors with direct knowledge of the company said diminishing profitability could affect the company in obtaining a listing. 

The new demand on Wall Street is a dash out of junk and into value, which means the era of growth stocks could be coming to an end. 

Airbnb’s valuation in its last funding round in 2017 was $31 billion, but there’s concern among the sources that today’s valuation could be significantly less. 

Just look at what happened to Casper last week when it priced the IPO – the lost at least half of its value from the last funding round. 

One person close to the company told the Journal that the coronavirus could delay the IPO because its Chinese segment is entirely down. 

Mainland China is a significant growth driver for Airbnb, but with two-thirds of the country’s economy shut down, it has become a drag. 

Another source told the Journal that Airbnb could IPO in Q3. Several months before, it would file the needed paperwork with the Securities and Exchange Commission to go public.

Airbnb’s slumping profitability is creating concern within the management, sources said, though they added it has $3 billion in cash on its balance sheet. 


Tyler Durden

Tue, 02/11/2020 – 21:05

Tags
Business Finance

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Suspect Who Plowed Vehicle Through Voter Registration Tent Admits Anti-Trump Motive

Suspect Who Plowed Vehicle Through Voter Registration Tent Admits Anti-Trump Motive

Authored by Paul Joseph Watson via Summit News,

The suspect who drove a vehicle through a voter registration tent occupied by Trump supporters in Jacksonville admitted to police that he had an anti-Trump motive and told authorities “someone had to take a stand.”

27-year-old Gregory Timm drove his van into a pro-Trump Republican voter registration drive tent at a Jacksonville Walmart on Saturday and was subsequently arrested and charged with aggravated assault, criminal mischief and driving with a suspended license.

According to an arrest report obtained by Action News Jax, Timm told police he drove his van through the tent because “someone had to take a stand.”

He also showed police a video he made of himself driving towards the tent as the victims stood in front of it. The video ended before Timm actually drove into the tent, a moment he described to police as “the good part.”

Timm also told police he made a video of himself prior to driving through the tent, but this video has not been made public.

“The suspect advised that he does not like President Trump,” according to the police report. Timm “did not show any emotion, recorded the aftermath of the incident and gave an obscene gesture,” according to Action News Jax.

“What’s clear is, this individual drove up to a tent and was clearly registering voters with Donald Trump’s name and attire around them. And drove a vehicle at volunteers that’s what we know, looks pretty political to me,” said Mayor Lenny Curry.

Nobody was injured during the incident, although victims were left in a state of severe shock.

Will the media now dig through Timm’s social media history to discover who radicalized him into attempting this act of terror?

Or will the story completely disappear by the end of the week?

Don’t hold your breath.

*  *  *

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Tyler Durden

Tue, 02/11/2020 – 20:45

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Andrew Yang, Who Wanted Libertarians in His Coalition and Opposed Cancel Culture, Exits the Democratic Race

Businessman Andrew Yang, a longshot candidate for the Democratic Party’s presidential nomination, has dropped out of the race in advance of what are expected to be disappointing results in the New Hampshire primary.

“I am a numbers guy,” said Yang, according to The Washington Post. “I’m not going to be at a threshold where I get delegates, which makes sticking around not necessarily helpful or productive in terms of furthering the goals of this campaign.”

Yang’s candidacy was predominantly based on a specific proposal, akin to a universal basic income: Yang wanted to give every adult American $1,000 each month. He described his policy approach as “humanity first,” and he wanted to use the powers of the federal government to ease the burdens on Americans whose short-term job prospects have suffered due to outsourcing and automation.

That was never a particularly libertarian agenda, but Yang’s practical approach—find ways to help people who may have been hurt by capitalism, rather than destroy capitalism itself—nevertheless made him popular with a diverse range of people, including some libertarians. Former Libertarian Party vice presidential candidate Bill Weld recently cited Yang as his dream running mate. Yang and Rep. Tulsi Gabbard (D–Hawaii) have been the only Democratic candidates thus far this year to make any sort of explicit pitch to libertarians. (Indeed, they are the only two candidates on the New Hamphire ballot to plausibly demonstrate that they know what a libertarian is.)

Yang also generated headlines for denouncing cancel culture. He criticized Saturday Night Live‘s firing of comedian Shane Gillis, and he earned the endorsement of Dave Chapelle.

“I believe that our country has become excessively punitive and vindictive about remarks that people find offensive or racist and that we need to try and move beyond that, if we can,” Yang said. “Particularly in a case where the person is—in this case—a comedian whose words should be taken in a slightly different light.”

Yang’s friendly, upbeat approach made him extremely hard to dislike. If elections truly came down to Which candidate would you like to get a beer with?, he would undoubtedly have fared better.

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No Sealing + Harsh Words About Employer-Mandated Arbitration in Doordash Case

Some excerpts from Judge William Alsup in Abernathy v. Doordash, Inc. (N.D. Cal.); I can’t speak to whether the analysis of the arbitration matters is sound, but I thought it worth noting:

Petitioners are 5,879 couriers who work for respondent, DoorDash, Inc. In order to make deliveries for respondent, petitioners allegedly each clicked through a contract that contained a “Mutual Arbitration Provision,” that required among other things, that … the arbitrations … be administered by the American Arbitration Association (AAA)…. In turn, AAA’s Commercial Arbitration Rules require each individual to pay a filing fee of $300 and the responding company to pay a filing fee of $1,900.

Petitioner couriers say they have been improperly classified as independent contractors rather than employees. Accordingly, in August 2019, petitioners’ counsel filed individual demands for arbitration with the AAA on behalf of 2,250 individuals (Abernathy petitioners) claiming violations of statutes such as the Fair Labor Standards Act and the California Labor Code. In September 2019, petitioners’ counsel filed further demands on behalf of 4,000 more individuals with the AAA (Boyd petitioners) making the same claims. Petitioner couriers paid over $1.2 million in filing fees.

AAA then imposed a deadline of October 28 for respondent DoorDash to pay its share of the fees for the Abernathy arbitrations and a deadline of November 7 for the Boyd arbitrations. On October 28, respondent’s counsel emailed AAA and petitioners’ counsel stating they had “determined that there are significant deficiencies with the claimants’ filings,” and that “Doordash is under no obligation to, and will not at this time, tender to AAA the nearly $12 million in administrative fees.” On November 8, AAA emailed the parties and stated, “Respondent has failed to submit the previous requested fees for the 6,250 individual matters; accordingly, we have administratively closed our files.” …

[P]etitioner couriers have … filed an amended motion to compel arbitration with the AAA which seeks to compel arbitration on behalf of 5,879 individuals….

The court granted the motion to compel arbitration through AAA for the 5,010 petitioners who “signed declarations attesting to ‘click[ing] through’ DoorDash’s AAA arbitration agreement.” There was apparently some dispute about “the authority of petitioners’ counsel to represent certain other petitioners and seek relief on their behalf,” and the court left them to the AAA arbitration, adding,

If it turns out that Keller Lenkner [the firm representing the petitioners] has overstated its authority, or for any procedural reason, petitioners have not perfected their right to arbitrate, this order imposes on Keller Lenkner a requirement to fully reimburse DoorDash for all arbitration fees and attorney’s fees and expenses incurred by DoorDash in defending the arbitration, and the arbitrator shall so award them.

The court also added:

[1.] Petitioners have filed an unopposed motion to file under seal certain portions of their reply brief, Aaron Zigler’s declaration, and the exhibits attached to Aaron Zigler’s declaration. CPR has designated these materials as confidential purporting that they contain, among other things, trade secrets, proprietary information, and sensitive information. The materials sought to be sealed here all relate to email communications between CPR and respondent’s counsel, Gibson Dunn, in 2019.

In short, the emails track the following events: in May 2019, Gibson Dunn reached out to CPR to discuss issues DoorDash was having with filing fees for mass arbitrations, and to find a solution to prevent “an abuse of process.” In October 2019, CPR provided Gibson Dunn with a draft of a mass arbitration protocol for discussion. A week later, CPR provided Gibson Dunn with another draft of the protocol based on their discussion. Gibson Dunn “interlineated comments, questions, and recommendations” in the new draft. CPR and Gibson Dunn traded additional drafts and revisions in the following weeks. On November 4, CPR notified Gibson Dunn that it had posted the finalized new protocol and asked to be notified when the new DoorDash contracts providing for arbitration under CPR were distributed.

Just because such information has been designated as confidential does not mean that it deserves to be kept from the public once filed in the federal district court. The district court should not be a party to concealing this information from the public, especially as it concerns an arbitration organization that holds itself out to the public as impartial. These documents would be useful to the public in evaluating the true extent to which the organization is impartial. The motion to seal is accordingly DENIED….

[2.] For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order….

 

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You Say “Quarantine,” I Say “Solid Writing Time”

I don’t know Prof. Chunlin Leonhard (Loyola Univ. New Orleans), an American who was evacuated from Wuhan and who is now in a two-week-long mandated quarantine, but I like her spirit; from Karen Sloan (Law.com):

For now, the quarantine isn’t too bad, Leonhard said. The evacuees can go outside, though they must remain within the fencing of the hotel grounds. They get three meals delivered each day, in addition to mandatory temperature checks.

“I have Internet access,” she said. “I collected a lot of materials in China, so I can work on my law review article on ancient Chinese contract law. My research continues regardless.”

Thanks to Dean Paul Caron (TaxProf Blog) and Prof. Glenn Reynolds (InstaPundit) for the pointer.

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No Sealing + Harsh Words About Employer-Mandated Arbitration in Doordash Case

Some excerpts from Judge William Alsup in Abernathy v. Doordash, Inc. (N.D. Cal.); I can’t speak to whether the analysis of the arbitration matters is sound, but I thought it worth noting:

Petitioners are 5,879 couriers who work for respondent, DoorDash, Inc. In order to make deliveries for respondent, petitioners allegedly each clicked through a contract that contained a “Mutual Arbitration Provision,” that required among other things, that … the arbitrations … be administered by the American Arbitration Association (AAA)…. In turn, AAA’s Commercial Arbitration Rules require each individual to pay a filing fee of $300 and the responding company to pay a filing fee of $1,900.

Petitioner couriers say they have been improperly classified as independent contractors rather than employees. Accordingly, in August 2019, petitioners’ counsel filed individual demands for arbitration with the AAA on behalf of 2,250 individuals (Abernathy petitioners) claiming violations of statutes such as the Fair Labor Standards Act and the California Labor Code. In September 2019, petitioners’ counsel filed further demands on behalf of 4,000 more individuals with the AAA (Boyd petitioners) making the same claims. Petitioner couriers paid over $1.2 million in filing fees.

AAA then imposed a deadline of October 28 for respondent DoorDash to pay its share of the fees for the Abernathy arbitrations and a deadline of November 7 for the Boyd arbitrations. On October 28, respondent’s counsel emailed AAA and petitioners’ counsel stating they had “determined that there are significant deficiencies with the claimants’ filings,” and that “Doordash is under no obligation to, and will not at this time, tender to AAA the nearly $12 million in administrative fees.” On November 8, AAA emailed the parties and stated, “Respondent has failed to submit the previous requested fees for the 6,250 individual matters; accordingly, we have administratively closed our files.” …

[P]etitioner couriers have … filed an amended motion to compel arbitration with the AAA which seeks to compel arbitration on behalf of 5,879 individuals….

The court granted the motion to compel arbitration through AAA for the 5,010 petitioners who “signed declarations attesting to ‘click[ing] through’ DoorDash’s AAA arbitration agreement.” There was apparently some dispute about “the authority of petitioners’ counsel to represent certain other petitioners and seek relief on their behalf,” and the court left them to the AAA arbitration, adding,

If it turns out that Keller Lenkner [the firm representing the petitioners] has overstated its authority, or for any procedural reason, petitioners have not perfected their right to arbitrate, this order imposes on Keller Lenkner a requirement to fully reimburse DoorDash for all arbitration fees and attorney’s fees and expenses incurred by DoorDash in defending the arbitration, and the arbitrator shall so award them.

The court also added:

[1.] Petitioners have filed an unopposed motion to file under seal certain portions of their reply brief, Aaron Zigler’s declaration, and the exhibits attached to Aaron Zigler’s declaration. CPR has designated these materials as confidential purporting that they contain, among other things, trade secrets, proprietary information, and sensitive information. The materials sought to be sealed here all relate to email communications between CPR and respondent’s counsel, Gibson Dunn, in 2019.

In short, the emails track the following events: in May 2019, Gibson Dunn reached out to CPR to discuss issues DoorDash was having with filing fees for mass arbitrations, and to find a solution to prevent “an abuse of process.” In October 2019, CPR provided Gibson Dunn with a draft of a mass arbitration protocol for discussion. A week later, CPR provided Gibson Dunn with another draft of the protocol based on their discussion. Gibson Dunn “interlineated comments, questions, and recommendations” in the new draft. CPR and Gibson Dunn traded additional drafts and revisions in the following weeks. On November 4, CPR notified Gibson Dunn that it had posted the finalized new protocol and asked to be notified when the new DoorDash contracts providing for arbitration under CPR were distributed.

Just because such information has been designated as confidential does not mean that it deserves to be kept from the public once filed in the federal district court. The district court should not be a party to concealing this information from the public, especially as it concerns an arbitration organization that holds itself out to the public as impartial. These documents would be useful to the public in evaluating the true extent to which the organization is impartial. The motion to seal is accordingly DENIED….

[2.] For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order….

 

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