COMMENTARY ON LAWYERING, LANGUAGE, AND POLITICS
Friday, March 9, 2018
Rakoff send Uber suit to Arbitration, denounces binding federal precedent
Rakoff sendS Uber suit to Arbitration, denounces binding federal precedent
BY JASON GRANT/alm
New York-based federal judge Jed Rakoff has sent a major antitrust price-fixing lawsuit against Uber Technologies Inc. into arbitration, albeit reluctantly, and dismissed the case from court.
But not before first devoting pages of his opinion in Meyer v. Kalanick, 15-cv-9796, to fiercely criticizing the U.S. Court of Appeals for the Second Circuit, and the federal judiciary as a whole, for repeatedly upholding U.S. companies’ use of mandatory arbitration clauses that consumers assent to via internet-based customer agreements that appear on screens. Rakoff said such terms of service agreements “totally coerce” the consumer into waiving his or her constitutional right to a jury trial.
In two and a half pages of dictum that open the opinion, Rakoff, a senior judge in the U.S. District Court for the Southern District of New York, spares no niceties. He makes clear that he thinks the federal judiciary has gotten an important constitutional issue wrong for years, and that the law must change.
“Thus, while [federal] appellate courts still pay lip service to the ‘precious right’ of trial by jury,” he wrote, “and sometimes add that it is a right that cannot readily be waived, in actuality federal district courts are now obliged [because of appellate court rulings] to enforce what everyone recognizes is a totally coerced waiver of both the right to a jury and the right of access to the courts—provided only that the consumer is notified in some passing way that in purchasing the product or service she is thereby ‘agreeing’ to the accompanying voluminous set of ‘terms and conditions.’
“This being the law,” he continued, “this judge must enforce it—even if it is based on nothing but factual and legal fictions.”***KEEP READING