Case 2:20-cv-02783 Document 1 Filed 03/25/20 Page 1 of 21 Page ID #:1
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`THEANE EVANGELIS, SBN 243570
`tevangelis@gibsondunn.com
`DHANANJAY S. MANTHRIPRAGADA, SBN 254433
`dmanthripragada@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: 213.229.7000
`Facsimile: 213.229.7520
`
`MICHELE L. MARYOTT, SBN 191993
`mmaryott@gibsondunn.com
`SHAUN A. MATHUR, SBN 311029
`smathur@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`3161 Michelson Drive
`Irvine, CA 92612-4412
`Telephone: 949.451.3800
`Facsimile: 949.451.4220
`Attorneys for Plaintiff Postmates Inc.
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Postmates, Inc.,
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`Plaintiff,
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`v.
`10,356 Individuals,
`Defendants.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`DEMAND FOR JURY TRIAL
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`Case 2:20-cv-02783 Document 1 Filed 03/25/20 Page 2 of 21 Page ID #:2
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`Plaintiff Postmates Inc. (“Postmates”) files this Complaint to enforce its
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`contractual agreements with independent couriers to resolve disputes through individual
`arbitration, free from interference by unconstitutional state laws that impermissibly
`target arbitration contracts for unfavorable treatment. Postmates does not seek damages
`from Defendants or to discourage independent couriers from pursing legitimate claims
`against Postmates in individual arbitration. Nor does it seek to evade its obligation to
`pay arbitration filing fees for properly instituted arbitrations. Rather, Postmates seeks
`to forestall abusive litigation tactics by certain plaintiffs’ attorneys who repeatedly file
`thousands of arbitration demands at the same time, including on behalf of individuals
`who are not actually represented by these attorneys or indisputably have no claims; insist
`that millions of dollars in arbitration filing fees be paid up front; and demand that all
`arbitrations be administered together and proceed simultaneously—all to use the threat
`of massive arbitration filing fees as leverage to extract the highest possible payout from
`corporate defendants. Postmates and independent couriers agreed to resolve all disputes
`in individual arbitration, and both this de facto class arbitration tactic and newly enacted
`California Senate Bill 707 (“SB 707”)—codified at California Code of Civil Procedure
`sections 1281.97, 1281.98, and 1281.99—interfere with and undermine the parties’
`agreement and the Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”).
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`Accordingly, Postmates requests declaratory and injunctive relief determining
`that any attempt by Defendants—who are 10,356 purported users of the Postmates
`platform—to pursue de facto class arbitration against Postmates violates the parties’
`agreement to resolve disputes in individual arbitration, and that those purported users
`may not enforce SB 707 against Postmates because it is preempted by the FAA and
`unconstitutional.
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`INTRODUCTION
`1.
`Postmates brings this lawsuit to enforce its contractual agreements with
`10,356 individuals to resolve disputes in individual arbitration, free from interference by
`unconstitutional state laws that impermissibly target arbitration agreements for
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`Case 2:20-cv-02783 Document 1 Filed 03/25/20 Page 3 of 21 Page ID #:3
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`unfavorable treatment.
`2.
`Postmates operates an online and mobile app-based platform, through
`which consumers connect with local merchants and (if consumers request delivery)
`independent couriers to facilitate the purchase, fulfillment, and (when applicable) local
`delivery of purchased products from merchants to consumers.
`3.
`Postmates requires each independent courier to execute a contract
`governing the parties’ relationship before the courier may access the Postmates platform
`and begin receiving delivery opportunities.
`4.
`That contract, known as the Fleet Agreement, is governed by the FAA and
`includes a Mutual Arbitration Provision that requires couriers who do not opt out of the
`provision to resolve all disputes with Postmates in individual arbitration. The Mutual
`Arbitration Provision expressly prohibits class, collective, and representative arbitration
`proceedings.
`5.
`The Supreme Court has recognized that the “traditional individualized
`arbitration” envisioned by Congress when it enacted the FAA offers parties numerous
`benefits, “not least the promise of quicker, more informal, and often cheaper resolutions
`for everyone involved.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621, 1623 (2018).
`As a result, the Supreme Court has repeatedly emphasized that “private arbitration
`agreements [must be] enforced according to their terms,” AT&T Mobility LLC v.
`Concepcion, 563 U.S. 333, 344 (2011)—“including terms providing for individualized
`proceedings,” Epic Sys., 138 S. Ct. at 1619.
`6.
`Defendants are 10,356 individuals who allege that they used the Postmates
`platform to identify delivery opportunities. They contend that they have executed the
`Fleet Agreement, that their claims fall within the scope of the Mutual Arbitration
`Provision, and that they have been misclassified as independent contractors rather than
`employees.
`7.
`Rather than resolve their disputes in individual arbitration as required by
`the Mutual Arbitration Provision, these individuals initiated, through their purported
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`Case 2:20-cv-02783 Document 1 Filed 03/25/20 Page 4 of 21 Page ID #:4
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`counsel at Keller Lenkner LLC, a de facto class arbitration against Postmates by
`simultaneously filing 10,356 boilerplate arbitration demands with the American
`Arbitration Association (“AAA”) on February 15, 2020 (the “AAA Arbitration”).1
`8.
`The demands are virtually identical, assert generic claims, and seek
`identical forms of relief. They provide no individualized information about the work
`the individuals purportedly performed while using the Postmates platform.
`9.
`Keller Lenkner has insisted—consistent with its prior practice of seeking
`to arbitrate thousands of individuals’ claims against Postmates in a de facto class
`manner—that all arbitration filing fees be paid up front before any arbitrations may
`commence, that all arbitrations be administered together, and that all arbitrations
`proceed at the exact same time.2 And consistent with Keller Lenkner’s demands, the
`AAA has collectively assessed over $4 million in initial administrative filing fees under
`its “Group Administrative Filing Fee Schedule” (as opposed to its fee schedule for
`individual arbitrations), and otherwise has administered the demands collectively.
`10. The parties never agreed to arbitrate in this manner, and it is evident that
`Keller Lenkner’s strategy is designed solely to extract a ransom-style settlement
`regardless of the merits of the underlying demands. Because “arbitration is a matter of
`contract,” AT&T Techs., Inc. v. Comm’s Workers of Am., 475 U.S. 643, 648 (1986), the
`Court should declare that the pending arbitrations may not be conducted in a de facto
`class manner and enjoin the 10,356 individuals from proceeding with the pending AAA
`Arbitration.
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`1 Postmates uses the phrase “de facto class arbitration” to describe Keller Lenkner’s
`scheme because, like class arbitration, Keller Lenkner’s scheme sacrifices the principal
`advantages of traditional individual arbitration, and is not the individual arbitration
`envisioned by the FAA or the Fleet Agreement.
`2 In fact, Keller Lenkner is attempting to have far more than 10,356 arbitration demands
`against Postmates administered collectively. This is the fourth time Keller Lenkner has
`filed hundreds or thousands of virtually identical arbitration demands against Postmates
`simultaneously, with the apparent expectation that the demands would be administered
`collectively. Those other simultaneous filings are the subject of other litigation. See
`Adams v. Postmates Inc., No. 3:19-cv-03042 (N.D. Cal.); Adams v. Postmates Inc., No.
`19-17362 (9th Cir.); McClenon v. Postmates Inc., No. 1:19-cv-06415 (N.D. Ill.).
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`Case 2:20-cv-02783 Document 1 Filed 03/25/20 Page 5 of 21 Page ID #:5
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`11. The Court also should enjoin the 10,356 individuals from enforcing the
`newly enacted California Code of Civil Procedure Sections 1281.97, 1281.98, and
`1281.99, otherwise known as “SB 707.”
`12. On February 24, 2020, the AAA assessed initial filing fees against
`Postmates, and stated that Postmates’ “portion of [the] filing fees is due on or before
`March 16, 2020.” The AAA also stated that “these matters are subject to California
`Code of Civil Procedure [Sections] 1281.97 and 1281.98,” and that it would close the
`cases if Postmates’ portion of the filing fees is not received by April 15, 2020.
`13. SB 707 provides that a party who drafts an arbitration agreement places
`itself at risk of severe punishment by courts for failing to pay certain fees, irrespective
`of the amount of the unpaid fee, the extent of the delay in paying, or the reason for the
`failure to pay. SB 707 states that a drafting party’s failure to pay arbitration fees—either
`the initial fees or any other fees that come due during arbitration—“within 30 days after
`the due date” is “in material breach of the arbitration agreement, is in default of the
`arbitration, and waives its right to compel arbitration.” Cal. Code Civ. Proc.
`§ 1281.97(a).
`14. SB 707 is preempted by the FAA because it stands as an obstacle to the
`FAA’s objectives by directly targeting and discouraging the drafting of arbitration
`agreements by engrafting onto arbitration agreements—and no other type of contract—
`a highly restrictive and onerous definition of material breach, and then punishing that
`breach by mandating default, sanctions, waiver of arbitration, and even contempt of
`court without any opportunity to justify the breach or argue its non-materiality.
`15. SB 707 also violates the United States and California Constitutions’
`Contracts Clauses because it substantially impairs the parties’ expectations as to what
`constitutes a material breach, and is neither an appropriate nor reasonable way to achieve
`a legitimate public purpose. SB 707 is designed to ensure that parties to mandatory
`arbitration agreements pay their arbitration filing fees. But by its terms, SB 707 is both
`overinclusive and underinclusive. It is overinclusive because it applies to drafting
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`Case 2:20-cv-02783 Document 1 Filed 03/25/20 Page 6 of 21 Page ID #:6
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`parties, like Postmates, that permit non-drafting parties to opt out of arbitration. And it
`is underinclusive because it applies only to drafting parties, and does not punish non-
`drafting parties for not paying their arbitration filing fees.
`16. The Court should declare that the parties’ disputes may not be arbitrated in
`a de facto class manner, that SB 707 is preempted by the FAA, and that SB 707 is
`unconstitutional. The Court also should enjoin the AAA Arbitration and enforcement
`of SB 707 against Postmates.
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`THE PARTIES
`17. Plaintiff Postmates is a corporation organized under the laws of the State
`of Delaware, with its principal office located in San Francisco, California. Postmates
`operates an online marketplace and mobile platform, through which consumers connect
`with local merchants and (if consumers request delivery) independent couriers to
`facilitate the purchase, fulfillment, and (when applicable) local delivery of purchased
`products from merchants to customers.
`18. Defendants are 10,356 individuals who allege that they executed the Fleet
`Agreement, that their claims fall within the scope of the Mutual Arbitration Provision,
`and that they used Postmates’ platform to identify delivery opportunities and make
`deliveries in California. All 10,356 individuals are purportedly represented by Keller
`Lenkner. Details for each of the 10,356 individuals are listed in Exhibit A.
`JURISDICTION AND VENUE
`19. This civil action arises under the United States Constitution, 9 U.S.C.
`§ 1 et seq., and 28 U.S.C. §§ 2201.
`20. This Court has subject matter jurisdiction over this action under 28 U.S.C.
`§§ 1331 and 1367.
`21. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202, as well as
`Federal Rule of Civil Procedure 57.
`22.
`Injunctive relief is authorized by Federal Rule of Civil Procedure 65.
`23. Venue is proper in this district under 28 U.S.C. § 1391(b).
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`24. A preliminary injunction enjoining the 10,356 individuals from pursuing
`the AAA Arbitration and enforcing SB 707 against Postmates would preserve the status
`quo and protect Postmates’ rights during this proceeding, and a permanent injunction
`would protect its rights after this proceeding ends.
`25. This Court has personal jurisdiction over the 10,356 individuals because
`they are domiciled in California and/or claim to have used the Postmates platform in
`California.
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`A.
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`FACTS
`Postmates’ Platform Connects Consumers, Merchants, And Couriers.
`26. Postmates’ innovative online marketplace and mobile platform connect
`consumers and merchants to facilitate the purchase, fulfillment, and (when applicable)
`local delivery of goods from merchants to customers. When consumers place orders
`through Postmates’ platform, they can decide whether to pick up an order in person or
`have it locally delivered. If consumers choose delivery, nearby independent couriers
`receive a notification through the app and can choose whether to accept the consumer’s
`offer and pick up and complete the requested delivery.
`27. The service that Postmates provides is access to its app. Postmates is not a
`delivery company and does not hire delivery persons; it creates technology and operates
`an online marketplace and mobile platform. Postmates has about 1,200 actual
`employees. These employees are dedicated to sales, engineering, analytics, strategy,
`design, support (of consumers, merchants, and couriers who use the platform), and other
`functions.
`B. Under The Fleet Agreement, Couriers Agree To Resolve Disputes In
`Individual Arbitration.
`28. Anyone can sign up to be a courier, and all new couriers must accept
`Postmates’ Fleet Agreement before they may access the Postmates platform to receive
`delivery opportunities. The Fleet Agreement governs the relationship between
`Postmates and independent contractor couriers. It expressly provides that couriers are
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`independent contractors and contains a conspicuous Mutual Arbitration Provision,
`which couriers may opt out of if they choose. See Lee v. Postmates Inc., 2018 WL
`6605659, at *6 (N.D. Cal. Dec. 17, 2018) (Postmates’ Fleet Agreement provides
`reasonable notice of the Mutual Arbitration Provision).
`29. Arbitration is not a mandatory condition of couriers’ contractual
`relationship with Postmates, and therefore couriers may opt out of the Mutual
`Arbitration Provision by submitting an opt-out notice within thirty days of accepting the
`Fleet Agreement.
`30. Couriers who accept the Fleet Agreement and do not exercise their right to
`opt out of the Mutual Arbitration Provision agree to resolve any disputes with Postmates
`in individual arbitration. All-caps text on the first page of the May 2018 and April 2019
`Fleet Agreements also provides that “unless [couriers] opt out of arbitration,” they must
`resolve disputes “on an individual basis” through “final and binding arbitration.”
`31. The “Mutual Arbitration Provision is governed exclusively by the Federal
`Arbitration Act (9 U.S.C. §§ 1–16).” May 11, 2019 Fleet Agreement § 10A(i).
`32. The Mutual Arbitration Provision contains an express Class Action Waiver
`and Representative Action Waiver. The Class Action Waiver states:
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`CLASS ACTION WAIVER—PLEASE READ. Postmates and You
`mutually agree that any and all disputes or claims between the Parties will
`be resolved in individual arbitration. The Parties further agree that by
`entering into this Agreement, they waive their right to have any dispute or
`claim brought, heard or arbitrated as a class and/or collective action, or to
`participate in any class and/or collective action, and an arbitrator shall not
`have any authority to hear or arbitrate any class and/or collective action
`(“Class Action Waiver”).
`Id. § 10B(ii).
`33. The Mutual Arbitration Provision also contains a delegation clause, which
`provides that “any dispute relating to the interpretation, applicability, enforceability, or
`formation” of the Mutual Arbitration Provision must be decided by an arbitrator, not a
`court. Id. § 10A(ii). However, that clause does “not apply to any dispute relating to or
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`arising out of the Class Action Waiver and Representative Action Waiver, which must
`proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an
`arbitrator.” Id.
`34. The 10,356 individuals are therefore bound to arbitrate with Postmates on
`an individual basis.
`35. The Mutual Arbitration Provision provides that Postmates and couriers
`“shall equally share filing fees and other similar and usual administrative costs, as are
`common to both court and administrative proceedings.” Id. § 10B(vi).
`36. Postmates and couriers have used the arbitration procedures set forth in the
`Fleet Agreement to resolve numerous disputes, and Postmates is currently engaged in at
`least 90 arbitrations under the Fleet Agreement.
`C. Keller Lenkner Simultaneously Files Over 5,000 Arbitration Demands.
`37. Keller Lenkner has engaged in a practice of using social media to recruit
`couriers who are bound by individual arbitration agreements, and then simultaneously
`filing thousands of arbitration demands, insisting that all arbitration filing fees be paid
`up front, and demanding that all arbitrations be administered together and proceed at the
`same time—in the hopes that it can extract a settlement, regardless of the merits of the
`underlying claims. This tactic gives rise to the parties’ dispute.
`38.
`In March 2019, Keller Lenkner wrote to Postmates stating that it
`“represents more than 3,000” couriers in California and Illinois, and threatening to
`“proceed with every arbitration simultaneously” unless the parties could “agree on an
`alternative process for resolving [its] clients’ claims.” Counsel attached a list of
`purported clients and two draft arbitration demands—one designed to collectively apply
`to each purported California client, and a second designed to collectively apply to each
`purported Illinois client. Counsel also posited that AAA likely would assess “more than
`$20 million” in “arbitration retainers and filing fees” alone if arbitrations commenced,
`and insisted that agreeing to “an alternative process” would be desirable because
`“roughly 500 additional drivers engage [the] firm each week.”
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`39.
` Postmates would not abandon its Mutual Arbitration Provision, so in April
`and May 2019, Keller Lenkner simultaneously filed demands on behalf of 5,693
`individuals.
`40. Postmates expressed that it stands by its arbitration agreement, and that it
`is ready and willing to arbitrate individual claims brought under the terms of each
`individual claimant’s Fleet Agreement and AAA’s Rules. But because Keller Lenkner
`sought to commence arbitrations in a manner other than the individual arbitration
`required under the Mutual Arbitration Provision, Postmates explained that no arbitration
`proceedings had actually begun. Postmates also requested that AAA assess
`administrative filing fees as cases are actually administered and prosecuted, rather than
`up front regardless of when the cases could actually proceed. AAA rejected Postmates’
`argument and request, and instead assessed over $11 million in filing fees against
`Postmates, due before even a single arbitration could proceed.
`41.
`In June 2019, Keller Lenkner filed a Petition for an Order Compelling
`Arbitration and a Motion to Compel Arbitration in the Northern District of California,
`seeking an order requiring Postmates to “pay all arbitration filing fees” associated with
`the 5,257 purported demands it had filed on behalf of California couriers. Petition for
`Order Compelling Arbitration, filed in Adams v. Postmates Inc., No. 3:19-cv-03042,
`Dkt. 1 (N.D. Cal. June 3, 2019). Postmates argued that Keller Lenkner improperly
`sought to compel de facto class arbitration in violation of the Mutual Arbitration
`Provision’s Class Action Waiver, and filed a cross-motion to compel truly individual
`arbitrations. Cross-Motion to Compel Arbitration and Stay Proceedings, filed in Adams
`v. Postmates Inc., No. 3:19-cv-03042, Dkt. 228 (N.D. Cal. June 27, 2019).
`42. While Adams was pending, Keller Lenkner filed a Petition to Compel
`Arbitration in the Northern District of Illinois, asserting that Postmates had failed to pay
`arbitration filing fees and seeking an order requiring Postmates to “pay all arbitration
`filing fees” associated with the 200 purported demands it had filed on behalf of Illinois
`couriers. Petition to Compel Arbitration, filed in McClenon v. Postmates Inc., No. 1:19-
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`cv-06415, Dkt. 1 (N.D. Ill. Sept. 26, 2019). Postmates again argued that Keller Lenkner
`improperly sought to compel de facto class arbitration, and filed a cross-motion to
`compel individual arbitration as required by the Mutual Arbitration Provision and Class
`Action Waiver. Cross-Motion to Compel Arbitration, filed in McClenon v. Postmates
`Inc., No. 1:19-cv-06415, Dkt. 18 (N.D. Ill. Nov. 29, 2019).
`43.
`In September 2019, Keller Lenkner filed another set of identical arbitration
`demands against Postmates on behalf of 1,250 individuals who claimed to have
`performed delivery services using the Postmates app in California and Illinois. AAA
`eventually closed those cases, and Keller Lenkner has not pursued them further.
`D.
`The Parties Commence Individual Arbitrations.
`44. On October 22, 2019, the Northern District of California entered an order
`granting in part and denying in part the parties’ cross-motions to compel arbitration.
`Order, filed in Adams v. Postmates Inc., No. 3:19-cv-03042, Dkt. 253 (N.D. Cal. Oct.
`22, 2019). The court ordered the parties to arbitrate “in accordance with the Mandatory
`Arbitration Provision contained in the applicable Fleet Agreement,” but it declined to
`issue an order “compelling Postmates to pay outstanding and future arbitration fees” or
`to order couriers “to refile their demands and to proceed in a specific manner.” Id.
`45. That same day, Keller Lenkner refiled boilerplate arbitration demands on
`behalf of 5,255 Adams petitioners. Of those petitioners, 715 never accepted the Fleet
`Agreement; another 480 did no work on Postmates’ platform; and an additional 95
`released their claims in the settlement approved in Singer v. Postmates, Inc., No. 4:15-
`cv-01284-JSW, Dkt. 98 (N.D. Cal. Apr. 25, 2018). Moreover, multiple other law firms
`claim to represent about 586 of the Adams claimants in separate arbitrations against
`Postmates. Two claimants filed arbitration demands against Postmates more than a year
`ago through separate counsel, and those arbitrations have commenced. And a separate
`law firm informed Postmates that it represents 8,964 claimants—584 of whom are
`claimants in Adams, and 1,368 of whom appear on a client list that Keller Lenkner
`provided in October 2019.
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`46. Nevertheless, Keller Lenkner insisted that Postmates pay all arbitration
`filing fees up front before even one arbitration could commence. Postmates declined to
`pay filing fees because the Adams petitioners refused to arbitrate individually in
`accordance with the terms of the Fleet Agreement.
`47. On November 27, 2019, the Adams petitioners filed a motion for an order
`to show cause, arguing that Postmates should be held in civil contempt because it had
`not paid filing fees for all 5,255 claimants—even though the court had expressly
`declined to order Postmates to do so. Motion for an Order to Show Cause, filed in Adams
`v. Postmates Inc., No. 3:19-cv-03042, Dkt. 256 (N.D. Cal. November 27, 2019). The
`court issued an order to show cause on December 3, 2019. Postmates responded on
`December 11, 2019, explaining that it was prepared to arbitrate on a truly individual
`basis, but that claimants had refused to proceed with a single arbitration unless Postmates
`paid filing fees for all of them. Postmates’ Response to Order to Show Cause, filed in
`Adams v. Postmates Inc., No. 3:19-cv-03042, Dkt. 262 (N.D. Cal. Dec. 11, 2019).
`48.
`In December 2019, after further negotiations, the parties agreed to proceed
`with the arbitration of fifty claims on an individual basis, with a full reservation of rights.
`Postmates paid filing fees for the arbitrations of those individuals and answered those
`individuals’ demands. In February 2020, the AAA began assigning arbitrators to those
`claims, with a different arbitrator assigned to each claim.
`49.
`In March 2020, as individual arbitrators were confirmed, the parties began
`participating in preliminary hearings and briefing motions. It has taken months for
`arbitrations to begin. Although Postmates paid filing fees for fifty arbitrations in
`December 2019, as of March 25, 2020, only 21 arbitrators had been confirmed and only
`two arbitrators had conducted preliminary hearings.
`E. California Enacts SB 707.
`50. SB 707, signed by Governor Newsom on October 13, 2019, went into effect
`on January 1, 2020.
`51. SB 707’s purpose is to ensure that parties to mandatory arbitration
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`agreements timely pay their filing fees, so that individuals who have been forced to
`submit to mandatory arbitration to resolve employment or consumer disputes are able to
`have their disputes resolved in a timely manner.
`52. SB 707 provides that a party who drafts an arbitration agreement and fails
`to pay its arbitration fees “within 30 days after the due date” set by the arbitration
`provider is in “material breach of the arbitration agreement, is in default of the
`arbitration, and waives its right to compel arbitration.” Cal. Civ. Proc. Code
`§ 1281.97(a). By its terms, SB 707 applies to both mandatory and permissive arbitration
`agreements, and it does not apply if a non-drafting party fails to pay filing fees.
`53.
`If the drafting party fails to pay arbitration fees, then the non-drafting party
`may proceed with its claim in court or compel arbitration. See id. § 1281.97(b). If the
`non-drafting party elects to proceed in court, then the non-drafting party is entitled to
`recover attorneys’ fees and costs incurred as a result of the breach and may recover
`additional non-monetary sanctions—including evidentiary sanctions, default on the
`underlying claims, and contempt of court. See id. § 1281.99. If the non-drafting party
`seeks to compel arbitration, then the non-drafting party is entitled to recover attorneys’
`fees and costs related to the arbitration. See id. § 1281.97(b). The law has the intent and
`effect of discouraging parties from drafting arbitration agreements, despite the FAA’s
`“command to place [arbitration] agreements on an equal footing with all other
`contracts.” Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1429 (2017).
`F. Keller Lenkner Files Another De Facto Class Arbitration Against Postmates,
`And AAA Begins Administering the Demands Collectively.
`54. On February 15, 2020, after SB 707 had gone into effect, Keller Lenkner
`simultaneously filed an additional 10,356 demands against Postmates on behalf of
`purported California couriers. The claims concern alleged worker misclassification and
`alleged violations of California wage and hour laws, California’s Unfair Competition
`Law, and unspecified “applicable Municipal Codes.” Some couriers’ demands also
`assert claims for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 206,
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`207 (“FLSA”).
`55. Keller Lenkner notified Postmates of the filing via a single e-mail to
`Postmates’ counsel. That e-mail contained a link to a Dropbox folder that contained
`10,356 demands and three versions of the Fleet Agreement, titled Exhibits A, B, and C.
`Each of the demands referenced one of the exhibits in the Dropbox folder.
`56. As with previous sets of demands, the 10,356 demands filed on February
`15 were virtually identical.3 Where the demand forms instruct claimants to “describe
`the nature of each claim” “in detail,” each demand reads:
`Claimant has been a courier for Postmates. Postmates has misclassified
`Claimant as an independent contractor instead of an employee. Claimant
`seeks all available relief under the following provisions, as shown to be
`applicable following discovery of
`information exclusively within
`Postmates’s control: California Labor Code, Wage Order No. 9 (Minimum
`Wage & Overtime); Applicable Municipal Codes (Minimum Wage,
`Overtime, Sick Time, & Notice Violations); California Labor Code § 226
`(Wage Statement & Records Access); and Cal. Bus. & Prof. Code § 17200
`(Unfair & Unlawful Business Practices).
`57. Certain demands also include a claim under the FLSA, 29 U.S.C. §§ 206 et
`seq. Those demands read:
`Claimant has been a courier for Postmates. Postmates has misclassified
`Claimant as an independent contractor instead of an employee. Claimant
`seeks all available relief under the following provisions, as shown to be
`applicable following discovery of
`information exclusively within
`Postmates’s control: 29 U.S.C. §§ 206, 207 (Minimum Wage & Overtime);
`California Labor Code, Wage Order No. 9 (Minimum Wage & Overtime);
`Applicable Municipal Codes (Minimum Wage, Overtime, Sick Time, &
`Notice Violations); California Labor Code § 226 (Wage Statement &
`Records Access); and Cal. Bus. & Prof. Code § 17200 (Unfair & Unlawful
`Business Practices).
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`3 Multiple experts have questioned the ethics of Keller Lenkner’s de facto class
`arbitrations. For example, nationally recognized ethics professor Nancy Moore has
`opined that Keller Lenkner has “engaged in numerous violations of [its] professional
`responsibilities,” and “breached its fiduciary duties to its clients by pursuing a mass
`arbitration approach without disclosing the risks of doing so.” Declaration of Professor
`Nancy J. Moore, filed in In re: CenturyLink Sales Practices & Sec. Litig., No. 0:17-md-
`02795-MJDKMM, Dkt. 510 (D. Minn. Jan. 10, 2020).
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