Pages 1 - 75 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE WILLIAM H. ALSUP TERRELL ABERNATHY, et al, ) ) Petitioners, ) vs. ) No. © 19-7545 WHA ) DOORDASH, INC., ) ) San Francisco, California Respondent. ) Monday ) November 25, 2019 ) 1:45 p.m. TRANSCRIPT OF PROCEEDINGS APPEARANCES : For Petitioner: BY: BY: For Respondent: BY: BY: KELLER LENKNER LLC 1300 I Street N.W Suite 4008 Washington, DC 20005 WARREN D. POSTMAN, ESQ. KELLER LENKNER LLC 150 N. Riverside Plaza Suite 4270 Chicago, Illinois 60606 TRAVIS D. LENKNER, ESQ. MARQUEL P. REDDISH, ESQ. GIBSON DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071 JAMES P. FOGELMAN, ESQ. GIBSON DUNN & CRUTCHER LLP 555 Mission Street. Suite 3000 San Francisco, California 94105 JOSHUA DAVID DICK, ESQ. Reported By: Debra L. Pas, CSR 11916, CRR, RMR, RPR Oficial Reporter - US District Court Computerized Transcription By Eclipse Debra L. Pas, CSR, RPR RMR CRR Official Reporter - (415) 431-147 . District Court - San Francisco10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Monday - November 25, 2019 1:50 p PROCEEDINGS -000--- THE CLERK: Calling Civil Action 19-7545, Abernathy, et al versus DoorDash, Inc Counsel, please step forward and state your appearances for the record for the record MR. POSTMAN: Good afternoon, your Honor. Warren Postman of Keller Lenkner for the petitioners and movants. MR. FOGELMAN: Good afternoon, your Honor. James Fogelman, with me is Josh Dick, of Gibson Dunn for the defendant . THE COURT: Thank you. Welcome to you. MR. FOGELMAN: Thank you. THE COURT: So we're here on a TRO mediation Mr. Postman, please go ahead. MR. POSTMAN: Thank you, your Honor. We're here because DoorDash is engaging in an unprecedented attempt to change the rules of arbitration in the middle of the process, and they are doing it in circumvention of the right to counsel. That violates Rule 4.2. It violates the covenant of good faith and fair dealing. And it violates the Labor Code. Each of those violations independently is causing our clients irreparable injury and each of them is an independent Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ground to grant temporary relief while the Court decides the pending Motion to Compel that we filed. on the other side of the balance, DoorDash attacks the strawman that we're asking for them to not be able to contact any of their Dashers. We're obviously not All we're asking is that DoorDash not try to change the terms of the arbitration agreements that we are litigating over in this action. They have not identified any harm to them that will occur -- THE COURT: When you say "change the terms," do you mean change the terms as to the petitioners, who are -- what is it, 3,000 in this case? MR. POSTMAN: 2,236. THE COURT: As to those individuals, or do you mean as to people who have not yet filed a petition? MR. POSTMAN: Well, we think what they are doing is improper as to all parties who have retained counsel and represented that they are proceeding with arbitration You know, it's up to Your Honor in structuring the scope a remedy whether -- how to craft the order, whether to tell them to stop what you think is the violation -- THE COURT: This is not a class action. MR. POSTMAN: Correct. THE COURT: So I can only give relief as to your petitioners Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. POSTMAN: And we're fine with that, Your Honor. THE COURT: All right. So let's focus on it from the point of view of the petitioners and what the injury is to them. What is the injury to them? MR. POSTMAN: So there's two injuries. Two groups of injuries, I would say. one is having the right to have the advice of their lawyer at the time they are being asked to agree to change the terms. That's what Rule 4.2 is supposed to protect, that interest, and we think that right is per se irreparable. THE COURT: 4.2 of what? MR. POSTMAN: The California Rules of Professional Conduct. They represent the public policy of California and generally of professional ethics; that when a client is represented and seeking to bring a claim, for a lawyer to reach out directly or indirectly and try to gain an advantage in litigation by contacting the client outside the presence of their lawyer, that is improper. And in doing that here, you know, our clients are getting this requirement that in order to -- the way it happens, and this is in the Jackson declaration that we submitted, the clients see this when they start their shift. They have an assigned shift. And when they open up their app to start work they get the pop up Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It says nothing about affecting their pending claim. It says nothing about talking to a lawyer. It says: By signing you've represented that you've done everything you need to get assistance to understand the agreement. But it doesn't mention the pending action or the lawyer And there is, you know, scroll down through a lot of stuff and you hit "Accept." And you have to do that in order to start your shift. As the Jackson declaration described, there's only a few minutes before you miss your window and then you don't get paid for that shift. And that creates a lot of pressure that is not there if we can communicate to our client: Here are the implications of this, and here is -- you know, here is what we would advise. That's one set of irreparable injuries. The other is that, as we describe in our brief, we think this is a textbook violation of the covenant of good faith and fair dealing. DoorDash doesn't dispute that that applies to arbitration agreements. And to say that once you've started down with arbitrations and you get rulings you don't like, you can sabotage the process, force AAA to close it, and then the very next day on a Saturday force the client to sign a new agreement shifting to another gravely inferior process. That is not in keeping with the spirit of the bargain. THE COURT: How far did it get with the AAA? Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. POSTMAN: We filed demands. We advanced over $1.2 million in filing fees for our clients. We met every requirement, and that's what AAA determined. They make a lot of statements about the improper nature of the demands, but they know full well that under the delegation clause in their contract, all those issues are delegated to AAA and the arbitrator So AAA made the threshold administrative determination -- I'm sorry, I'll slow down -- that each claimant had met their filing requirements and had a right to proceed They invoiced DoorDash for their filing fees and AAA has no ability and will not proceed with an arbitration unless the respondent pays their fees. DoorDash flatly refused AAA has no remedy at that point. An arbitrator has not been appointed, so they can't issue any -- any award or sanctions. THE COURT: I misunderstood then. I thought you said that they got an adverse ruling they didn't like, so they gave up on AAA. what was that adverse ruling? MR. POSTMAN: That they have to proceed with all of our clients' claims individually at the same time. If I can zoom out for a little bit to speak to that context, because I think this really informs the obvious purpose of what they were doing, why it's related to the representation, a lot of the harms here Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Keller Lenkner has put an extensive amount of resources in preparing to litigate petitioner's claims because we think the claims are incredibly strong. Under California law DoorDash employees have very strong claims We've got over 80 people working on these matters now. We partnered with Quinn Emanuel. They have over 800 lawyers. They have the largest law firm in the world dedicated just to litigation. As I said, we've advanced all those filings fees. we did that because we believe in the claims and we thought it was time to bring resources to sort of overcome the obstacles that DoorDash's class waiver puts in way of litigating these claims When we did that, DoorDash, they -- well, and I explained the AAA process that we went through. DoorDash's response, what I think is remarkable about it, is they concede that they switched agreements to address that problem they had Now, they frame it as wreaking havoc on the arbitration program and wobble out of epithets that we think are neither relevant or are completely baseless. But the core theme running through their brief is -- and they say expressly -- the CPR rules that they adopted in the November 9th agreement were a reaction to Keller Lenkner's, quote, scheme. So when we brought up all these individual actions, they no longer could bring superior resources to bear on three, Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 four, five individual employees. There is, you know, something I didn't realize until I started working on arbitrations. I've done a lot of work on enforcing arbitration agreements. I never realized that even though they are defended on the premise that arbitration is speedy and informal and less litigious, that's the whole trade-off in ATT v Concepcion. Right? You give up the class but you get this informality and speed When you actually get into arbitration as a single employee, these companies turn it into full-fledged bloody knuckle federal court style litigation. There is depositions lots of them. There is protective orders. Fights about discovery. Dispositive motions. And so if you're a small law firm, you can't get more than a few of these done in a year. And it's great. The class action waiver becomes a liability waiver, because you can only fit a few employees through that pipe. And we saw that and we said: We're going to bring the resources to bear and we'll do them all. You know, they have this thing, this statement in their brief that I really -- I have to address. They say -- and this is on page three. "Keller Lenkner had no intention nor the practical ability to proceed with 3,000 arbitrations simultaneously." Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And based on that statement, they accuse us of a shakedown and extortion. What do they cite for that? Nothing. They don't have a citation. And as I've described the resources we brought to bear, it's totally false THE COURT: What are the resources? MR. POSTMAN: So we have, as I said, over 80 lawyers, you know -- THE COURT: How many? MR. POSTMAN: I'm sorry. Not 80 lawyers. Sorry. Over 80 personnel, combination of paralegals and lawyers. We have partnered with Quinn Emanuel, who has 800-plus lawyers and is committed to litigating these. And, you know, we've advanced a lot of money. The key point I was going to make, though, is we will litigate them the way arbitration was intended. And I don't want to get too far into our litigation strategy, but the rules of arbitration have processes to do this. You can do them on the papers. You don't need to do all of that fighting that wasn't supposed to be part of arbitration. We can and we will arbitrate these. What DoorDash is so upset about is that by having them to do them all at once, instead of staging them in five, ten, claimant chunks, they have to face all these claims. You look at the CPR agreement, which was the big switch in the November 9th agreement. They say it's innovative. It's Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 innovative because it's the first set of arbitrable rules that I'm aware of where even though everyone is purportedly bringing in an individual claim, there is a queue. If there is more than 30 that the defendant is dealing with, they will take ten the parties litigate that. And, of course, that will be full-on, complex, all the sort of hard-fought litigation that Concepcion was saying you get from class actions; right? Because if it's essentially a bellwether, parties are going to fight like crazy. But you don't get the benefit of the class action because once that happens, the company isn't bound to anything. They can settle if they want; but if they don't want to, under the CPR rules, everyone gets a number and you get in line. and they'll do it sequentially. and as far as we can tell, there is 63 employment arbitrators at CPR. There is well over a thousand -- I don't know the exact number, but there is orders of magnitude more at AAA And it's really good for defendants, again, to be able to have a class waiver become a liability waiver. If you only have to deal with a handful of claimants each year, you can keep violating the law and, you know, you settle a few, you take a few to an award. Nobody can get a large amount of -- of the claims against you. So that's the context we are dealing with Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 And DoorDash's counsel is also counsel to Postmates. We, in our motion, which you may not have read yet, talked about Adams v Postmates, where there was a related occurrence. DoorDash's counsel here, Gibson Dunn, Ms. Evangelis, is counsel for them They complained about AAA's failure to do everything the CPR rules do. They fought with AAA to get them to stage the arbitrations. They didn't want to proceed with them all at once, like we were ready to. And when they lost that argument, AAA said: No, everyone has got an individual right, and we can't depart from that. The contract is the contract. The Supreme Court has said for years that an agreement to arbitrate must be enforced according to its terms. The agreement calls for the commercial -- for the AAA rules. We have to go ahead, absent agreement from the parties to change it. And they were so upset about that because it put them finally in the spot where they had to face a lot of claims that they -- they don't dispute. They worked behind the scenes before the CPR rules were public with CPR to write into those rules exactly the relief they couldn't get administratively from AAA. And they also don't dispute that it was DoorDash's lawyers who masterminded this plan, who helped write the agreement. And, of course, it was because we're dealing here with really Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 complex questions of arbitration and procedure. DoorDash's CFO didn't come up with the idea to change the rules of AAA. and so in that context I think it's really easy to walk through the elements of the claims we're alleging and show why we're very likely to succeed on the merits of that. So first question under Professional Rule of Conduct 4.2. Does the change relate to the representation? The whole point of the change was to address our representation. They say we wreaked havoc on their arbitration system. As I said, the rules specifically undo AAA's conclusion that we can proceed at once. Another way of saying it is if they don't relate to the representation, will they stipulate here that they won't rely on or mention the new rules in this action? THE COURT: Say that again? MR. POSTMAN: The new rules, the change, is not related to this representation. Keller Lenkner's representation. Well, they stipulate that they won't refer to or rely on the new rules in the course of our representation. The whole point is they are going to bring up these rules to say that we can't go to AAA. THE COURT: I thought the -- I thought you said that AAA had dismissed all the cases because they -- MR. POSTMAN: Well -- THE COURT: Because fees were not paid Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 MR. POSTMAN: Sorry. Right. They have administratively closed them. And what happens next, and DoorDash is well aware of the process here, is that that's a breach of the arbitration agreement. So under Section 4 of the FAA when a party breaches an arbitration agreement -- and here the breach was refusal to comply with their end, which was comply with AAA's determination of how to move forward -- the Court can compel them to arbitrate and enforce according in the manner provided for in the agreement, the arbitration agreement. That's Section 4 of the FAA. So what we're asking Your Honor in the Petition to Compel Arbitration and the Motion to Compel arbitration, the permanent relief we're asking for is to find that by just refusing to comply with AAA's determination and forcing AAA to close, administratively close the proceedings, because it has no alternative, they have breached their agreement, and the remedy for that is specific performance, as often in a breach, which is to order them to comply with AAA's determinations and move forward. THE COURT: Did AAA refund your 1.2 million? MR. POSTMAN: Yes. THE COURT: When you have say "administratively closed," can they be administratively reopened? MR. POSTMAN: I believe so. It's up to AAA whether Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 they ask us to refile the same demands exactly as they were or they will just administratively reopen them. They can choose to do it either way But I think at the end of the day this Court must and does -- I mean, Courts have ordered, as we cite in our Motion to Compel, parties to pay the fees to go ahead with arbitration Were it otherwise, any time a party didn't want to arbitrate, they could just refuse to pay the fees at the front end and they wouldn't have to. That can't be the rule under the FAA and that's not the rule in our Motion to Compel. We explained Your Honor can, and we argue should, remedy the breach by ordering them to move forward So we're going to be in front of you, we believe, on that motion, and we're going to be saying there is a clear agreement to arbitrate. Any questions they may have, any fights about, how arbitration should proceed under their clear delegation clause has to go to AAA and the arbitrator. They have been enforcing delegation clauses for years and they know that that's the case. And so we'd like you to send it to AAA. And what they are going to say, I believe, they are free to correct me, is: Oh, no. They have signed a different agreement. They've agreed to go elsewhere. You judge, Your Honor, can't force them to go to AAA Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 The entire right we're here in this action to enforce is the right under the contract to go to AAA. Their new agreement effectively releases that right. It says once you sign this, you no longer have it. And if I'm wrong about that, they simply need to say that they won't come in and invoke that agreement when we're trying to remedy the breach of the AAA agreement. To say it's not represented blinks reality. They are doing it specifically, they say, as a reaction to our clients’ claims. So the related to representation thing I think just doesn't hold water. They make a related point. They say over and over: It's just a procedural requirement we're changing. We're not. extinguishing any rights. We can't cite any unfair advantage Well -- THE COURT: Tell me this. What in the record proves that AAA could hear these 3,000 -- give me the exact number again. I'm sorry. MR. POSTMAN: 2,236. THE COURT: 2,000-? MR. POSTMAN: -236. THE COURT: All right, 2236. What in the record shows us that AAA could hear these all at once, but CPR would refuse to do so? MR. POSTMAN: AAA made an administrative Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 determination that they all had to move forward. And I can give you the cite for that. THE COURT: Does that mean AAA refused to adopt some kind of class action procedure? MR. POSTMAN: Exactly, exactly. So that was on September 23rd, and it's Exhibit D to the Keller declaration in support of this motion THE COURT: Has AAA changed its mind on that? MR. POSTMAN: I don't believe so. So we've -- again, once a party refuses to pay, AAA has no ability to make them. They are an administrator. It's like if you don't pay the docketing fee to a clerk, they can't docket it. But Your Honor can remedy that breach. And when you do, AAA will move forward individually with them. THE COURT: what is the dollar amount that DoorDash would have to put up with AAA? MR. POSTMAN: Their invoice was 4.275 million THE COURT: How come yours was only 1.2? MR. POSTMAN: That's the structure -- THE COURT: So the -- MR. POSTMAN: Excuse me. THE COURT: I'm sorry. Please go ahead. MR. POSTMAN: That's the structure of the fee schedule set by AAA. So under the fee schedule the claimant in an employment -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 under the employment fee schedule, which applies here, pays $300 per person to move forward, and the respondent pays 1,900. THE COURT: Is that the filing fee? MR. POSTMAN: Correct THE COURT: In addition, are there fees for the arbitrator? MR. POSTMAN: There are. Those are assessed after an arbitrator is assigned and does a preliminary conference and gets an understanding of the case. They set a retainer that. has to be paid. And then there is also - THE COURT: By DoorDash? MR. POSTMAN: Correct. And this is all a result of the AT&T v. Concepcion line and arguments by defendants that. their agreements are not unconscionable because they don't force claimants to pay more to proceed in arbitration than they do to court. Plaintiffs had long argued that arbitration agreements with class waivers were unenforceable because of the prohibitive fees. And the respondents essentially wrote their agreements to say: Well, we'll cover those, because in exchange for giving up a class waiver -- I'm sorry, in exchange for losing the right to bring a class action, you get the right to move forward in this informal process and we'll pay the bulk of the fees Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 Again, under the FAA contracts must be enforced according to their terms. The contracts incorporate the AAA rules. The ABA rules say AAA makes these administrative determinations. We're happy to -- I'm happy to discuss why we believe there is an overwhelming case that they have breached their AAA agreement and that you should compel them to fix it by moving forward I think what is clear, though, is that these are important. rights. DoorDash has been litigating to compel arbitration speaking about how important the rights to arbitrate are. They are not procedural. They are a right under a contract. And the Supreme Court in Moses H. Cone sai "section 2 is a declaration of a liberal policy favoring arbitration notwithstanding any state's substantive policies to the contrary. The effect of Section 2 is to create a body of federal substantive law applicable to any arbitration agreement within the coverage." Federal law makes these important substantive rights. That's what we are asserting in this Motion to Compel. And the agreement they are forcing our clients to sign without the involvement of counsel -- THE COURT: I -- I let us get off the -- I hada question though. What in the record shows us that CPR would be a much longer period of time? Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 MR. POSTMAN: Sure. So I've given you the citation for AAA. CPR is document No. 1114, and this is just the protocol where it describes, as I did, that once there are more than 30 claims facing a defendant, they will proceed -- everyone waits and they will proceed with ten. And then after that, they will give everyone a number and proceed sequentially THE COURT: How long will it take to go through that, for 2,236 to go through that process? MR. POSTMAN: We state in our motion just -- just a hypothetical. I don't know how fast they will move these. I can't know that for sure, but we state -- there's numbers in the brief that if each of the CPR arbitrators heard ten a year, and that's on top of their other case loads, it would be four years before some of these petitioners would get to start And we have other petitioners, other claims as well. So it's -- it's a very important substantive right to be able to move forward with your claim. I think everyone understands that if the agreement they had written said: New agreement. Instead of going to AAA, like you want, everyone can do -- there can be one arbitration a year. That's it. That's obviously important. Now, what we've done is a difference in degree, but not in kind. And they have done it in the middle of the process. They forced AAA to close administratively the arbitrations -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 THE COURT: 2,236? MR. POSTMAN: Yes. THE COURT: All 2,236 had filed? MR. POSTMAN: Correct. And they didn't pay a single fee on their end THE COURT: How many of your 2,236 have signed or clicked through and approved the agreement and/or opted out of it? MR. POSTMAN: Every single one has signed and clicked through the agreement, and nobody that we're aware of has opted out. And I'd like to, if I could, address a statement in their brief that suggests we haven't established that. That is just not true. The reason it's not true, they say we only attached a general copy of the independent contractor agreement. Well they don't make unique copies of the independent contractor agreement . The way it works when you sign up, as you said, Your Honor, is you -- you're signing up. There is a link where you could see a general copy, and then you click on "Accept" and you're deemed bound. There is no signature, signed version And so in every case where they have moved to compel arbitration against a plaintiff, what they do -- and you can look at the Tang declaration, Docket 35-3, Paragraph 4 that Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 speaks to. They say this person is driving for DoorDash. That's the nature of the claim. And I'm quoting the declaration: "Contractors are not able to use the DoorDash platform or accept or perform delivery opportunities without agreeing to the ICA." So we've proved it the same way they've proved it, which is to say -- we establish that they have driven for DoorDash and that, as they said, you can't deliver without it. We noted in footnote two of the Keller declaration that we were providing one witness statement to save judicial resources. They are all identical. We have every witness statement in a box. If DoorDash or Your Honor would like me to, we can file them electronically. We can give physical copies. But, you know, I can make the representation to the Court that there is an evidentiary basis to show this. THE COURT: To show what? MR. POSTMAN: That every single petitioner is a party to a valid arbitration agreement with DoorDash. We proved it the same way they do. THE COURT: You mean, the AAA one or the -- MR. POSTMAN: The AAA one. THE COURT: All right. Well, how about the CPR one? How many of them have signed the CPR one -- not signed, but Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 approved and clicked through there? MR. POSTMAN: This was just rolled out a couple weeks ago, so we don't know the exact numbers. They may have a live tally, but we don't know the exact numbers But, you know, we're familiar with our clients. We talk to them a lot. Some drive every day full-time. Some drive more sporadically THE COURT: Give me an estimate. Is it more than half, less than half of your clients have clicked through the new agreement? MR. POSTMAN: With full caveats that I'm really estimating -- THE COURT: Just a guess. MR. POSTMAN: -- I think it is about a third THE COURT: Okay. And of that one-third have any of those opted out of the CPR agreement? MR. POSTMAN: We're in the -- yes. We're in the process of collecting statements. We've suggested they opt out, and we're in the process of collecting those. We have a number. We don't have them tied specifically to petitioners. It's developing as we speak. I think the point we -- the reason we moved is these rights -- and we're happy to walk through in total detail. we do it, I think, more in the Motion to Compel. These rights are intimately wrapped up with this Motion to Compel arbitration. Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 And for the defendant to be changing them by presenting an agreement to our clients that they have to sign to start work, that doesn't say it's going to affect this action, that doesn't say consult a lawyer, it's improper and they have no interest in it I mean, they could easily if they have they have put nothing in the record. There is no evidence in the record to suggest it would be technologically hard for them to stop sending our clients this new agreement. So there is no -- no technological problem with an evidentiary basis. Absent that, what interests do they have in changing the agreement for this action? The only interest they could have would be a litigation advantage. But trying to get a litigation advantage by reaching out to our clients is exactly the thing you can't do. And trying to get a litigation advantage after the arbitration process has commenced by changing the process is what the covenant of good faith and fair dealing says you can't do. I mean, the Penet case (phonetic spelling) says this very expressly. You can't change it once the claim has accrued Here it's not just accrued. We've -- we've told them our clients have retained counsel and we're pursuing actions. So we're really just asking the Court to freeze the status quo so that as we -- Your Honor can decide whether we can compel arbitration before AAA or, you know, whether there Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 is some reason not to. I will note the arbitration agreement that we're moving to compel under expressly says that we can move in court to seek temporary injunctive relief and that's -- you know, the one exception under the agreement to having to send everything to the arbitrator is that if the phrase is without that temporary relief, the arbitration provided in this paragraph may be rendered ineffectual. If that's the case, we can come to the Court and say: Hold on. We're in the process of moving to compel. You need to issue temporary relief so we get to have this right. So we're asking to freeze the status quo. Really don't think they have any legitimate interest in this action in trying to stop us -- or, I'm sorry, in trying to reach out to our clients and change the rules. And, you know, in Rule 4.2 when this process is driven by the lawyers to do this, as it obviously was, it's just plainly improper. There is another misleading, frankly, statement in the brief that I do want to correct. Let me... (Brief pause.) They say that they can't find 936 of our clients in their DoorDash system, and they use this to suggest that we're bringing claims for people who have not -- who aren't DoorDash drivers. That's opposition Page 3 Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 It's at best a half truth. If you look at the Cao declaration, which is Docket 35-4, it concedes that when they van this search, it was a list of 5,000 people. They only checked emails. They didn't check for people's names. They didn't check for phone number. They didn't check for address. All of which they have. So the point to that is evident. They didn't really do a full search. The point to that is evidence that we're somehow misrepresenting is entirely unfounded And there is another thing they do. They put in the record -- and this is ECF 35-5 -- an email where they have told us about this, and they say: We've told them. We've told Keller Lenkner that there are these people we can't find Well, they don't include the reply to the email. In the reply to the email we said: People often have different emails. If you tell us who the people are, we'll give you additional information so you can track them down We didn't know at this point they hadn't searched any of the other identifying information. They refused. We renewed that suggestion at least three other times. In a good faith informal non-litigious arbitration process parties confer like that. They refused. And then after not really looking and refusing to confer, accuse us of bringing claims on behalf of people who aren't Dashers. Not only that, the list they are talking about is not a Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 list of petitioners. It's a separate list we gave them to request employment records under California Labor Code. We found about five petitioners that are on that list. But to point to that to suggest petitioners aren't DoorDashers is particularly misleading And what's more, they have the list of petitioners! information. Presumably they have checked. We have put in evidence in the record saying that -- showing that they are Dashers. They have not disputed it as to a single person. They, to date, have never identified a single petitioner who they even assert is not a DoorDasher. So under the classic Celotex standard, we have record evidence. They won't dispute it. They point to some other evidence where they did a partial search. I don't think that -- that counts, if they are not even petitioners, as rebutting. THE COURT: All right. I need to let the -- you'll get a rebuttal. I want to hear from the other side MR. FOGELMAN: Thank you, Your Honor. I heard your questions. I think they are excellent questions. And I heard your comment this is not a class action, which I think actually is quite important here. I also heard counsel say that -- I'm trying to quote here -- they are very familiar with their clients and talk to them a lot Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 So why are we here? According to the petitioners, all that's happened is that they have some, one person, that's all we know, because the only evidence -- THE COURT: We're here because you had a -- your client had an agreement to go to AAA. And when it came time to pay the fee, you backed out and reneged on the agreement. MR. FOGELMAN: Your Honor, I -- THE COURT: That's why we're here. MR. FOGELMAN: I hear you, and I have an answer to that, but I wanted to -- THE COURT: You made the agreement. Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court in employment cases. And you've gotten a lot of success in the courts. After so finally somebody says: Okay, we'll take you to arbitration. And suddenly it's not in your interest any more And now you're wiggling around trying to figure some way to squirm out of your own agreement. I am not -- you know, I'ma little older than you and there is a lot of poetic justice here. MR. FOGELMAN: Your Honor, I don't think you look older than me, and I appreciate that, but I will tell you this much. First of all, we have a valid defense to the Motion to Compel arbitration. I'm going to walk through that, but I Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 would like to do that at the end, if you don't mind, because I do have - THE COURT: I read the agreement. There is no possible way to say that you don't have a valid defense -- I mean, that you do have a valid -- I mean, maybe on the merits, but that's what the arbitration is for. MR. FOGELMAN: Well, I hear you, Your Honor. Let me walk through what the merits are of both today's motion and that one, since the only tie between the two is they have both been argued today, but today's relief is not related to the Motion to Compel arbitration on the schedule -- THE COURT: Let me ask you some questions about the -- let's say that somebody opts out of the CPR agreement Let's say they click through it, but then they send you the opt-out letter. Does that then mean that the AAA arbitration agreement is back in force? Your brief was very cleverly written to avoid answering that question. MR. FOGELMAN: I'll answer it directly. THE COURT: Answer it. MR. FOGELMAN: If someone either doesn't sign on to the app, which they don't have to do, and we don't -- THE COURT: Let's say they do sign on. MR. FOGELMAN: I'm with you. Right. I'm going to answer every possibility. I'm going to walk through them. Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 THE COURT: All right. MR. FOGELMAN: If they don't sign on or they sign on and agree to the new terms, but opt out, they are exactly where they are today on every level. They can pursue arbitrations in AAA. But although I have another comment about that, I'11 wait until the end. But there is no - THE COURT: Wait. Just a second. They can pursue or that you will agree that it's proper. See, you said in your brief "attempt." I understand how your firm can use words like "attempt." MR. FOGELMAN: I -- THE COURT: All lawyers -- but you will then come back and say: Oh, no. There's some other reason why we won't Will you submit to arbitration in the AAA in those circumstances? You won't answer that question. MR. FOGELMAN: I'm answering every question -- THE COURT: Answer that question. MR. FOGELMAN: So what's happened as of Friday, Your Honor, is that a class, a putative class has actually been settled. I don't know if any of those people will wind up wanting to go forward. There will be -- THE COURT: There is no class. You've got a class action waiver. MR. FOGELMAN: [I hear you, Your Honor, but I'm telling you -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 THE COURT: You, yourself -- MR. FOGELMAN: On Friday on Friday, Your Honor, in another case a putative class action, motion for preliminary approval, was filed in another case -- THE COURT: DoorDash? Involving DoorDash? MR. FOGELMAN: Yes, Your Honor. And the THE COURT: Who was the judge in that case? MR. FOGELMAN: [I have a case number. I don't have the judge. It was just filed on Friday. THE COURT: I'm not going to get into some other judge. MR. FOGELMAN: Your Honor -- THE COURT: That's an old -- I'm not -- I want to solve my problem on my record. MR. FOGELMAN: Your Honor, I only -- THE COURT: And I -- MR. FOGELMAN: -- say that -- THE COURT: If they -- (Simultaneous crosstalk.) THE COURT: Wait a minute. So if they -- if they -- if the person opts out of the CPR agreement, you say yes, they can go to AAA and arbitrate their case, but will you submit to jurisdiction there? MR. FOGELMAN: Your Honor, the only reason I mentioned the settlement is because I want that to be a caveat. Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 They will have an opportunity to participate in that. If they opt out, then these answers will apply. But here are the answers to every question I think you've asked We've already agreed to AAA arbitration. All the client was asking for is that they comply with the AAA rules, which are very minimal. You attach an agreement to arbitrate. You identify what your claim is. And you identify what the amount in controversy is. Some of these people have zero claims. Some have $20. And if they had done that -- which 250, by the way, are going forward right now. Separate issue, but there are people going forward and there are court cases going forward THE COURT: At the AAA? MR. FOGELMAN: AAA. 250 going forward at the AAA THE COURT: Represented by the Keller law firm? MR. FOGELMAN: I think so, Your Honor. Yeah. Yeah I think so. I think so. THE COURT: Okay. MR. FOGELMAN: Those are still going forward. These were a chunk of two sets of 2,000, where 4,000 were filed at once. Now they have been divided in two cases: One before us today and one that was removed from state court. I don't know what court has that at the moment, but it's here in the courthouse. Okay? Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 For the 2,200 here today, assuming that they -- there is approval of the settlement and they opt out, they will have the answer to do whatever they want. The agreement that they signed is just a new version, updated version of the terms of service, the independent contractor agreement on a going-forward basis. THE COURT: AAA is out. CPR is in. And some of the other language has been changed. MR. FOGELMAN: Well, I -- THE COURT: I read the difference. I saw the red line version. MR. FOGELMAN: If you saw Exhibit C to the Tang declaration, you'll have seen in all capital, all black type face it says, the first page, that anyone who signs on permanently to the app. No one is contacted unless they sign in. And he did not tell you how many people have signed in We'll get to that in a moment. "Important please review this agreement carefully. In particular, please review the mutual arbitration provision in Section 11, as it requires the parties" -- this is the part he didn't talk about -- "(unless you validly opt out of arbitration, as provided below) to resolve disputes on an individual basis to the fullest extent permitted by law through final and binding arbitration. By accepting this Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 agreement, you acknowledge that you've read and understood all the terms, including Section 11, and have taken the time and sought any assistance needed to comprehend the consequences of accepting this agreement." THE COURT: But if they don't click on that, then they don't get a job for that day; right? MR. FOGELMAN: Your Honor, that -- we don't know how many people have clicked on it as of today. There has been no evidence in the record that more than this one person has clicked on it. THE COURT: Well, but you're the company. You ought to know immediately. You can look at the computer and it will tell you. MR. FOGELMAN: It does not, Your Honor. It takes time to figure out who they are. We cannot put their names in the complaint -- THE COURT: I'm going to say there are people out. there who are desperate, living paycheck to paycheck, and they said: What the hell, I've got no choice. I better click on this. I have -- MR. FOGELMAN: I understand what you're saying, Your Honor -- THE COURT: I have no -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 MR. FOGELMAN: I'm not disagreeing with you on whether it's important to people or not. You can assume it's extremely important to people. That's not going to change why we're here today All that happens today is they -- if they click on -- and the only evidence in the record is that one person clicked on. That's all that's in the record. If they click on, they read the information that I just read to you and the actual arbitration provision, and they can consult with their counsel. This is not a class action where they are unrepresented. They have a close connection to people who are their counsel. They are familiar with their clients and talk to them a lot They can then ask them for advice and whether these are actually better or not. I think, Your Honor, there is a very good record in the community-at-large that this is a faster and more efficient way to arbitrate for everyone. Counsel may disagree. As you just heard him tell you, they have advised their clients on their opinion on whether this is a better or worse arbitration than the one they currently have a right to pursue. At that point their client has got to make an informed decision. A, they don't have to agree at all to anything. If that's the case, they are still free to arbitrate in AAA, subject to their decision of the settlement issue we talked about. Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 If they click on this, they still don't have to arbitrate. They still don't have to arbitrate in the new arbitration form. This is a new term on going-forward basis. They could opt out of the new provision by just mailing a letter Now, all I have in this record, Your Honor, for today is the essentially one-page declaration of Ms. Jackson, which says that she logged on on November 11th and she didn't realize that it could be something that could affect her case, and she didn't have enough time to thoroughly read through it. This opt out is not immediate. Bach person has 30 days in which to consult with their counsel -- and according to counsel of record, they are in contact with them frequently -- and decide for themselves if they like the AAA better or the new one better. If they opt out, they can do the AAA. If they decide to opt in, they can do the new one. But that informed decision is before them. No one is forcing them to do anything on that particular issue. This is simply the fourth change, I think, in three years to the standard agreement and many of these relate to the arbitration agreement on a going-forward basis. They are not required to either agree to the new terms or, if they agree, to enter into the new arbitration provisions. Counsel has now said that a third, perhaps, have opted out already. Well, does that mean that two-thirds have made a decision -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 THE COURT: No. He said a third had clicked through it. MR. FOGELMAN: Okay THE COURT: I think that's what he said. MR. FOGELMAN: So a third had clicked through it. And he said that some, perhaps all I don't know, there is nothing in the record. Some have opted out. Not this person, yet. But this person has 30 days from November 11th, according to her statement, to opt out. So why did we have to come here today? What is the relief they are seeking when if this person, rather than filling out this declaration and jumping into an emergency motion, is talking to counsel of record. If she doesn't like the new one -- I like it, maybe they would like it -- she doesn't have to agree. She can opt out, and some have. What is the emergency relief and what is the emergency they are asking the Court to engage in? Walk me through this one hypothetical, Your Honor. What if there's a person who read the new terms, is not happy with how AAA was going, wants to try the new provision because they think it's better for them even after hearing the advice of counsel. Is Your Honor going to tell them that they can't make an informed decision, even after speaking with their counsel, of choosing the new form? It's their right. They can go to the old form or the new one. It's their choice Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 But the injunction they are seeking today, Your Honor, is really not just enjoining our client's speech and not just enjoining our client's change of business practices, which is in this case a contract for hundreds of thousands of Californians, of which they are just a small part, but in many ways they are asking for an injunction against their own clients to prevent them from deciding on their own, with their advice of counsel, to choose the new form. That's not right. All we have in this record is one person saying she clicked through, and it doesn't even say she's opted out or is going to opt out or she liked it or didn't like it. She simply says she wished she had more time. Well, the contract gives her 30 days. And if they are in contact frequently with her, as they say they are, she's got plenty of time after today to opt out. THE COURT: It may be that they clicked through it and they don't know they even have to get a hold of the lawyer There may be some lag time before events catch up with it and they may be on day 27 or 28. MR. FOGELMAN: Your Honor, the -- THE COURT: Thirty days is not a very long period of time. MR. FOGELMAN: Well, with all due respect, Your Honor, it's 30 days from the time they click through. All we know is that one person has clicked through. That's all that's Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 the record. If the next person clicks through today, they have 30 days from today. If the next person clicks through a month from now, they have 30 days from that month. If they click through in February, et cetera, 30 days. It's a rolling 30 days, Your Honor. And they have counsel in frequent contact. with them. THE COURT: What date did you start rolling out the new agreement? MR. FOGELMAN: November 9th, Your Honor. So even that date, there is still two weeks left for the first person. She's not that person. She says she clicked in on November 11th. But even two days earlier when they were rolled out, that person still has two more weeks to opt out and they have counsel in frequent contact with them. You don't have to get involved here and offer an injunction. THE COURT: Is counsel able to -- I saw in your agreement. It can't be counsel opting out on behalf of everyone. It has to be an individualized agreement. can counsel deliver those agreements to your office? MR. FOGELMAN: Your Honor, it's spelled out in the agreement if they want to sign up, how to opt out. I believe it's an address they mail it to and they have to sign it themselves. THE COURT: Does it have to be postmarked that day, Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 or can it be -- have to be received that day? MR. FOGELMAN: [I believe it's received within 30 days, Your Honor, but I don't think that's in the record, that they are having trouble having it received THE COURT: So we've got the postal system. It's at the mercy of the postal system. MR. FOGELMAN: Your Honor, I have to say I'm not aware of anything in the record which suggests that they are having trouble getting it mailed or they have asked us to get involved in waiving the term for specific people because it got mailed late. There is nothing in the record on that. And I would say on this one, the AAA didn't close the cases because we told them to. What's in this record is that plaintiff's counsel told them to close the file. THE COURT: Tell me, what was it. DoorDash refused to pay the filing fee, so AAA closed the cases administratively. MR. FOGELMAN: Your Honor, it's not as nefarious as that was brought to you at all. THE COURT: Tell me what happened MR. FOGELMAN: They filed claims all at once without any arbitration agreements, without identifying what their claim is, and without identifying what the amount in controversy is. Those are the AAA rules that are part of our agreement Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 All we asked them to do -- that DoorDash asked them to do was comply with those terms and they could arbitrate. In fact there are 250 going forward right now. That's all They decided that they didn't want to present an actual agreement to arbitrate or identify the amount. Why would you do that? I'11 just walk you through one potential possibility here. A person has a $20 claim. If they put a $20 demand in there every defendant who receives that is going to go through the same thought process every single time. Should I just pay them the $20, as opposed to paying $1,900 for a filing fee? Should I offer them $10 to compromise? Should I fight this one, or should I just let them take a default because they are not taking the $20 and I'm not going to pay $1900 to save 20 Those are the things that everyone who is sued in a particular forum will always go through. And that's all we asked here, is that they comply with the agreement, which is file the agreement that you have to arbitrate. THE COURT: The agreement requires that, or do the rules require that? MR. FOGELMAN: Both. Because the agreement requires you to comply with the rules, and the rules expressly state that's what AAA requires. So if they had done that, they would have been arbitrating right now. The fact that the rules -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 THE COURT: Wait, wait. Hold that thought. Counsel, come back up here just on that one point. I'm not going to interrupt you long Now, what counsel is telling me is vastly different than what you represented MR. POSTMAN: Yes. THE COURT: What you represented to me was that AAA closed the files administratively because DoorDash refused to pay the filing fee. MR. POSTMAN: Yes. THE COURT: Is that right? That's what you told me; right? MR. POSTMAN: Yes. THE COURT: Now, what counsel is now telling me is that's false and that what happened was that the AAA closed the files because AAA requires that a copy of the agreement be attached; that the dollar amount be stated. And I forgot what the third thing was. And that you failed to do that, and that's why they were closed. MR. FOGELMAN: Your Honor, I think you are misunderstanding what I said. That's not what I said or meant. THE COURT: All right. Then you rephrase what you said. MR. FOGELMAN: You correctly repeated what I said, but I did not say that was the reason they closed. I said it Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 was closed because the plaintiffs asked them to close the file instead of complying with the AAA rules in our agreement. That's what I said THE COURT: All right. Is that true? MR. POSTMAN: Absolutely not. Docket 5-12, email from Heather -- from AAA to the parties: "Respondent has failed to submit the previously requested filing fees. Accordingly, we have administratively closed our files." That's their closure notice. THE COURT: Show that to counsel, and then hand it up to me so I can see it. MR. FOGELMAN: Your Honor -- THE COURT: Wait MR. FOGELMAN: -- there was a separate request by plaintiff's counsel that preceded the closing, which is not part of that email. (Whereupon document was tendered to the Court.) MR. POSTMAN: That was my next point that I was about to make. THE COURT: Just a minute. MR. FOGELMAN: I have that in my hand, too, if you'd like to see that, Your Honor. It's actually the Lipshutz declaration. THE COURT: All right. Say it again Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 MR. FOGELMAN: This is an email. It says: "We have conferred with counsel for DoorDash and the parties are not able to come to a mutual agreement to depart from the process or deadline that you outlined in your email below. Claimants accordingly agree that if DoorDash has not paid the fees it owes by November 7, 2019, AAA should close Claimants! cases due to DoorDash's refusal to proceed so that Claimants may seek additional remedies." This is a request by them to close it so they could come to court. And what I'm saying to you, Your Honor, is that all DoorDash asked was that they do what's required in court, which is, in part, even here. You've got to have an agreement to arbitrate on which to base a Motion to Compel arbitration, which they don't put before Your Honor. They put one THE COURT: But did AAA ever say that the reason it was closing any file was because the agreement had not been attached? MR. FOGELMAN: No, Your Honor. That's -- I'm just saying why DoorDash was not going to pay $11 million without at least confirming they had an agreement with the people who were claiming they had an agreement; that they knew what the claim was and they knew what the amount in controversy was, which is what the AAA rules require Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 THE COURT: Is it true that you did not attach the agreements? MR. POSTMAN: No. We filed each demand electronically, as we're permitted to do, as they consented to do. They consented to accept electronic service. We did that by uploading each claimant's individual demand into an online portal -- THE COURT: By individual contract? MR. POSTMAN: And what we did is we attached the relevant contract, arbitration agreement. We did not attach 2,236 copies of the identical agreement online. We attached the agreement. They never said that this was a problem. They never in the whole course of this -- THE COURT: Well, wait, wait, wait. For all 2,236 did you individually attach the agreement that corresponded to that individual with their arbitration demand? MR. POSTMAN: No. We attached -- we attached the multiple agreements and designated which responded to which. We didn't reattach thousands of the same agreement over and over, but we did -- THE COURT: If it's electronic, who cares. MR. POSTMAN: Going through folders. I mean, we easily could. The silly thing about this is they never raised this, Your Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 Honor. THE COURT: But, wait. I'm just trying to find out. I'm not saying it's right or wrong, but I'm trying to find out is it true It sounds like counsel for DoorDash is correct when he says that you did not attach the individual contract to each individual claim MR. POSTMAN: I want to reiterate, there is no unique contract. That doesn't exist. There is a generic contract that is online that when you click through, you are deemed to have accepted. So you can't attach, you know, Warren Postman's contract. It's not -- it doesn't exist. So it's correct. What happened is we attached a single version of the general contract that applied. But very importantly here, here is what the key point is They didn't raise that dispute. Had they raised it, that is exclusively committed to AAA's determination and the arbitrator's determination. They don't get to decide themselves whether they get to go forward. AAA, and this is document 5-11 Page 2, said: "We have made an administrative determination that the minimum filing requirements have been met by claimants." Their contract says the AAA rules apply. It says that: Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 "All other disputes, except for whether a class waiver is invalid, with respect to this mutual arbitration provision shall be determined exclusively by an arbitrator and not any court." And the AAA rules likewise say that AAA makes that decision and an arbitrator makes that decision. THE COURT: Look. Let me go back to DoorDash. Since all of these are form contracts and you click through them, there is never a signature; right? There is never a signature. So why would you insist on seeing the electronic version? You're the only one that has the electronic version anyway. So how could these individuals even -- I don't get your point Why did you insist on seeing the contracts? They are not they are all the same. MR. FOGELMAN: For the same reason we insist on seeing them at this Motion to Compel arbitration being heard in January. Because at a minimum we have to know we have an agreement to arbitrate with them before you can go forward. THE COURT: You can look at your own records to see. MR. FOGELMAN: We could not do that, Your Honor. That was the whole point. We've asked them to -- first of all - THE COURT: Maybe it's unconscionable that you would have a system where no one could even tell if they have got Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 a -- because you're the one that -- they click on it, but do you automatically send them an electronic copy? To me, it's a screwed up system if you can't even tell who you've got an agreement with MR. FOGELMAN: Your Honor, I didn't say we couldn't tell with sufficient information. They didn't give us the information THE COURT: They gave you the name. Look up Joe Jones and -- MR. FOGELMAN: All right. How -- THE COURT: -- see if there is -- MR. FOGELMAN: All right. So how many Joe Joneses are there in -- THE COURT: Including Ohio, probably one that works for DoorDash. MR. FOGELMAN: We're only talking about California right now, by the way. But how many Joe Joneses are there, and how do I know that's the Joe Jones in our system, if there is one. We asked for email addresses that they link to their account and were not provided those with these claimants. Even today, Your Honor, for the 2,236 plaintiffs they have not attached the agreement, which they can print out themselves, to a declaration saying: I agreed to these terms on this date. Here is the email address that's linked to my Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 account, and I didn't opt out of arbitration. Instead they treat it like a class action, which they cannot do, and have one person say, I -- well, actually, she doesn't mention her original agreement, but she says she read the -- today, her declarant, Ms. Jackson, she read the new ones. That's all she says. But, Your Honor, if you -- if you eliminate the obligation to establish that you have an agreement to arbitrate, you put the cart before the horse. THE COURT: I don't figure that at all, because you set up this -- this Draconian system. You get up at 5:00 a.m, and you're starting your work, and before you can get your first job you've got to click through. And now you expect. seven or eight months later that the poor guy is going to remember the day that he clicked through it and be able to somehow keep a -- get an electronic copy? You're the one that has all the click-through information. MR. FOGELMAN: It wouldn't be difficult -- THE COURT: All they've got to do is give the name, the name, and say: I work for you, DoorDash. Don't you vemember me? I'm the poor guy who -- like Tiny Tim, who is begging at Christmas for money -- MR. FOGELMAN: Your Honor -- THE COURT: -- and DoorDash -- come on. This is so Draconian Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 MR. FOGELMAN: Your Honor, I could tell you we're not beating up on poor Tiny Tim. What we're here to talk about today are two things primarily one is the relief they are asking for. why is it an emergency? Why is it irreparable? And secondarily, although it's untethered with the relief today, they are not linked to the petition to compel arbitration, what is the likelihood they would prevail on that one? Now that we're on that topic, it's not difficult or Draconian and it doesn't have to be done at 5:00 in the morning. THE COURT: Let me -- MR. FOGELMAN: May I THE COURT: All right. There is a point you raise that I do want to ask counsel for plaintiffs. Look. Let's assume that this is Draconian; that it's unconscionable and all of those things. You are the lawyer and you are in contact with 2236. This is not a class action. So forget that class action analogy. This is a -- you've got 2236 clients. You can get on the phone tonight and call every one of them or email them en masse and say: Hey, don't click through this thing. And if you do click through it, my advice to you is opt out and we will go to AAA. Why isn't that enough of a remedy for you? You have the Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 remedy in your own hands. MR. POSTMAN: Your Honor, we may have made a huge amount of progress today because it's most of the remedy. And if I can explain why we're here, and I'm surprised about this -- THE COURT: You're not answering my question. MR. POSTMAN: I'm saying -- THE COURT: You're sliding off, just like all the lawyers. Always slide off. Go ahead. What is it you want to say? MR. POSTMAN: I apologize, Your Honor. Docket document 11-13, which is the new November 9th agreement. And what I'm about to say is it's very surprising to us that DoorDash's position is if you opt out, you get to keep the right to go to AAA. We're very happy with that and -- THE COURT: That's what they said? That's what they said? MR. POSTMAN: Well, we're not -- there's the wiggle words of the "attempts" and the he didn't quite answer the question that you asked. THE COURT: I'll tell you this. The word "attempts" in my court will get you nowhere. What he has said to me today is enough. If somebody opts out, they are going to be compelled to go to AAA, period. And no gimmicks by DoorDash Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 MR. POSTMAN: Thank you, Your Honor. THE COURT: That's the way I feel about it. That's what you said. I'm going to give you a chance now. If you want to wiggle off of that, this is your time and place to wiggle MR. FOGELMAN: Your Honor, I have not been known as a wiggler THE COURT: Yes. The word "attempt" was a wiggle word. MR. FOGELMAN: Your Honor, all I was saying was that the agreement prior to the new one. And that's what would apply to people who don't click on it voluntary or agree to it and don't opt out. I don't know what percentage that could be It could be zero. But whenever people either don't sign on or opt out and then don't participate in the settlement, are allowed to go back to AAA. But we're still allowed to defend ourselves First and foremost, just establish you are, in fact, a person we have an agreement with. THE COURT: But that agreement, that prior -- if they opt out of the CPR, then you're telling me that the AAA agreement comes back into place for all of those people for whom there was such an agreement. MR. FOGELMAN: Yes. If they have an agreement, they have an agreement. And if they don't click on it, it's still Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 the agreement. In they opt out after clicking on it, it's still the agreement. THE COURT: But now you say "if they have an agreement." They may not have an electronic -- you're the one with the copy MR. FOGELMAN: But they have a pen. They can say: I agree to the terms on this date. Here is the email address I use, At least give us something. THE COURT: I'm not going to require them to remember the exact date. No. MR. FOGELMAN: How about approximate, Your Honor? THE COURT: Maybe approximate. What I would do is allow Mr. Keller to march through your files, over the Christmas holidays if need be, and to find their names as proof that they, in fact, did it instead of -- no. You're not going to be able to get away with saying: Oh, the poor guy, he didn't keep a copy. Oh, too bad for him. No, it's not going to work that way. MR. FOGELMAN: You can print out the copy from the app and say: This is what I agreed to. or you could -- you could do the minimum that the AAA rules require, which are part of our agreement. It is not asking for Draconian relief to say: I am the person who signed up. Here is approximately when I did it. and if I can, show you a copy of what I signed on to. It looks Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 like they have it. Counsel has it, that's what they say. Just attach it to their declaration, say this is it -- THE COURT: All right MR. FOGELMAN: -- and say how much you're seeking -- THE COURT: All right. Look MR. FOGELMAN: -- but we're not there THE COURT: Mr. Keller -- okay. A lot of -- I don't know if this makes a lot of progress or not, but why isn't it enough for you to get in touch with your clients and just say: Please, I advise you to opt out of this thing. Here is how you do it. Send a letter, so forth. MR. POSTMAN: So in classic lawyer fashion, I will say that it's mostly enough. It really is a lot. The reason it's not all the way there is because getting the message from their lawyer and the advice from a lawyer at the same time instead of at 5:00 in the morning when you've got to sign on, even if they have got an email and text message and a phone call from us, is not as good. And I think there is no interest on the other side in doing it that way. But I'm not going to fight for that last 5 percent. I would like to just clarify a couple points. It is just not true that you can print the agreement from your app, at least not so far as we have been able to figure out, Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 THE COURT: I can't print anything on my iPhone. MR. POSTMAN: It is also not true that we didn't give them email addresses. We have given them lists with the email address, home address, phone number, name, city and state for every one of these petitioners We've got a declaration from every one of them that establishes they were party to an agreement, exactly the same way DoorDash establishes it in court. It's a declaration that they drove for DoorDash, which can't happen unless you're a party to the agreement. And DoorDash has simply not tried to search fully and when they have, they won't tell us who. They won't even let us -- and this is during arbitration THE COURT: Well, maybe effective tomorrow you're going to get a big deposition or two. Because if this is the kind of hide-the-ball we're going to get, then you get to do a little discovery. All right. So you've got 95 percent of what you need already, at least in terms of preliminary relief; is that true? MR. POSTMAN: Yes. THE COURT: All right. MR. FOGELMAN: Just to follow up, Your Honor, on the idea of any Draconian issue of printing the agreement. I have what they have attached to their papers. It's the blank version of the agreement they claim people have signed. It's somewhere in one of these. This is the arbitration Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 agreement. And my theory is they could attach it to someone and say: Yes, I signed this and agreed or not. They haven't done that to AAA, and they haven't done it today, and they haven't done it for the hearing scheduled in January This is not a class. They are individuals. It's not too much to ask for them to say individually: This is my lawyer. Here is my declaration. Here is my demand to arbitrate. Here is my demand for money. It's not that complicated. I know Your Honor thinks that we're wiggling. I want to set the record straight. It's not a Herculean effort to do that. THE COURT: All right. MR. POSTMAN: May I add one thing just for clarity, Your Honor? THE COURT: Of course. MR. POSTMAN: I appreciate the stipulation about being able to go back to AAA. The reason I was surprised by it is because the CPR agreement really looks differently. It says that that agreement : "...supersedes any prior contract between the parties and shall constitute the entire agreement and understanding between the parties." And then it says, again, in the arbitration provision Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 that: "This mutual arbitration provision" -- the November 9th one -- "is the full and complete agreement relating to the formal resolution of disputes covered by this mutual arbitration agreement." And it says: "I£ the contractor opts out, the contractor will not be subject to this provision." So that doesn't say you get to go back to AAA. It says the one agreement, the CPR one, no longer applies. I respectfully -- I think they got caught with their hand in the cookie jar and they are trying to give it back. I'11 take it. But I don't want any confusion later that - THE COURT: Well, all right. I have a question on that, too. When I was looking at this, admittedly on a hurry-up basis, because this was an emergency motion, I said to myself: Well, one way to read all this is just the way you described it for DoorDash, is that AAA comes back to life for those people who opt out if they, in fact, had a AAA agreement to begin with. And then it occurred to me, well, it could be that that's what DoorDash wants us to believe, but then they are going to play a trick on me. I'm being a little cynical here. After 20 Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 years on this job, forgive me, I ama little cynical. And the cynical thing would be to say, just like counsel just said, the new DoorDash agreement with CPR that refers to CPR, yes, you can opt out of it, but if you opt out of it, then you get to go to court. But since there is a class action waiver, it will still be an individual case. Now, you're telling me that that is not your interpretation; that your interpretation is if you opt out of it, you get to go to AAA, if you had a prior agreement on AAA. MR. FOGELMAN: Yes. THE COURT: All right. With that statement, I don't think there is any need for emergency relief today However, I'm going to allow expedited discovery effective immediately. You can get in there and start taking depositions on both sides and limited document requests, but you can take document requests. Don't do 35. I'll give each side ten document requests, and I'll give each side four depositions, all to be -- when is this hearing in January? MR. FOGELMAN: Your Honor, I think it's mid January. The 17th maybe? THE COURT: I know that this may wreck your holidays. It's too bad. That's the way it is. You big firms, you get big pay. You get big -- that's why you're here. It's part of the burden. You don't -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 MR. DICK: January 9th, Your Honor. MR. FOGELMAN: What is it? MR. DICK: January 9th MR. FOGELMAN: January 9th, Your Honor THE COURT: So I think all this discovery ought to be done by December 15th. MR. FOGELMAN: Your Honor, if I may just briefly. THE COURT: Please, go ahead. MR. FOGELMAN: As I mentioned at the beginning, just so it was clear, there was a motion for preliminary class settlement approval filed on Friday or Thursday at midnight, I forget what, and these people are all going to have an opportunity to participate in that resolution. THE COURT: Tell me about that case. I don't even know what case you're talking about. MR. FOGELMAN: [t's the Marciano case. I forget the case number. THE COURT: what court is it in? MR. FOGELMAN: It's in San Francisco Superior Court, Your Honor. I have the case number. THE COURT: Are you the lawyer in that case? MR. POSTMAN: No. THE COURT: What, was this some kind of a sweetheart deal? MR. FOGELMAN: No, Your Honor. It's, like, Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 $40 million. It's something like that. It's a dozen or 20 cases that are pending that are being resolved. I forgot the exact number The person who filed the preliminary approval filed it in Superior Court in the Marciano case I'll tell you the case number. Give me a second, I'11 give that to you here Marciano versus DoorDash, CGC 18-567869. There will be a hearing on December 17th for preliminary approval. at that point if it's approved, they will have a chance either participate or opt out. THE COURT: My Law Clerk tells me they have related that case somehow to me. THE LAW CLERK: Not yet. THE COURT: Not yet? Okay. MR. FOGELMAN: So, Your Honor, on December 17th will be a hearing on preliminary approval. And at that point if it's approved, which I obviously hope, then I'll have a chance to participate or opt out. It does not make sense in light of that to be doing expedited discovery up until December 15th about a motion to compel arbitration, which I think is both ill-fated because of lack of evidence and likely moot. I would instead ask the Court to take the existing hearing date in January and make it a check-back or a status so we Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 can decide -- we can inform the Court whether or not that settlement was approved, and counsel can indicate whether its clients intend to opt out or not But it doesn't make any sense to spend all the resources and time on this now in light of that. That's one of the reasons I brought it up. THE COURT: Tell me, are your clients going to opt out of that settlement, assuming it gets preliminary approval? MR. POSTMAN: We haven't seen it yet, so I'd have to look at it. I think - THE COURT: Is the 40 million, any of that money comes back to the client? MR. FOGELMAN: None. THE COURT: What is it for? It's 40 million nationwide? MR. FOGELMAN: I believe it's California and Massachusetts. It's about 400,000 Dashers. I don't know the exact number. Please don't quote me on that. It's approximately -- THE COURT: Two states. Two states, 40 million? MR. FOGELMAN: I believe so, Your Honor. I don't have the papers in front of me. But it's a substantial settlement, Your Honor. It's not -- it's not in any way going to be a problem getting it approved Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 THE COURT: It does sound like a lot of money for two states. What do you say to that? MR. POSTMAN: I say we'll learn about it. We've seen this movie before, though, with overlapping counsel with Postmates, where after we brought a large number of arbitrations they didn't like, several months later they mediated with another lawyer and proposed a class, which is fine. But what is amazing to me is that -- THE COURT: But how can they do that if there is a waiver of class actions? MR. POSTMAN: Exactly. So there is a way to do it, but not the way they are doing it. THE COURT: The agreement says that there will be no class actions. MR. POSTMAN: Exactly. And it's a mutual arbitration provision. So whenever they want to stop a class and not want to be a party in a class, they get to send everyone to individual arbitration. But when someone wants to do individual arbitration, they say: We've agreed with someone else to do a class, and we're going to drag you in as a party, even though our agreement says we can't make you a party to a class. MR. FOGELMAN: Your Honor, that -- MR. POSTMAN: I'm sorry Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 THE COURT: I think there should be discovery into this other lawsuit to find out what is how can you get around your own agreement that says there won't be any class actions? MR. FOGELMAN: So first, Your Honor, the Marciano case is what they call a PAGA case. THE COURT: A what? MR. FOGELMAN: A PAGA case. THE COURT: Yes, I know about PAGA. MR. FOGELMAN: And then there are -- other cases were filed, putative class actions that have not been resolved yet. THE COURT: Well, wait. What do you mean? It's only a PAGA case? MR. FOGELMAN: Your Honor, I'm saying that particular case was PAGA. There were others that were filed as putative class actions, and they haven't been resolved yet. And then there are a variety of others case that are being affected by this. But my point is it doesn't take discovery because there will be a hearing on a preliminary approval motion on December 17th. At that point, if there's approval, there will be notice procedures issued by the Court. Not by me, by the Court. And notice will go out, and they will have an opportunity to consult with their counsel. The only need discovery for that, and we don't need Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 discovery for this. THE COURT: No, no. PAGA only affects the penalties. It doesn't affect the actual money that will go to the class members And number two, I've just got to believe that at least some reasonable number of your 2236 will opt out of that deal, and so I will still have a case. I'11 still have to make rulings on it. And then we'll be back here in January, and you'll say that counsel can't prove his case, but he -- MR. FOGELMAN: Your Honor - THE COURT: -- could have if he had some recovery. MR. FOGELMAN: -- I hear you, but remember where we are today. The relief that they are requesting wasn't necessary, and they claim they've got it. The Motion to Compel arbitration has been filed -- THE COURT: It was necessary. It wasn't clear that the people could go back to AAA if they opted out. That was not clear going into this motion. MR. FOGELMAN: Okay, Your Honor. My other point, Your Honor, is that the Motion to Compel arbitration has been filed by a single plaintiff, a petitioner. Okay? And it's a person who says essentially, I worked -- THE COURT: Wait, wait, wait. That's not my understanding. I thought you had 2236 petitioners. MR. POSTMAN: 2,236. They are all being individually Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 entered on the docket. THE COURT: And you have okay from all 2236? MR. POSTMAN: Yes. And we have individual -- again, we're making a mountain out of an evidentiary molehill here. We, in order to save the Court the burden -- and, you know, we're happy to fix this tomorrow. We've got every single witness statement right here in a box. We'll put it on electronically, if the Court wants. These are each individual petitioners. They have got the evidentiary basis they need. THE COURT: Look. Look. Here is the thing. If DoorDash is going to be arguing with me in January that they don't have agreements, they don't have a dollar amount, whatever those three things were, then you get to go in -- I'm talking to plaintiff now. You get to go to DoorDash and take discovery so you can prove that. Now, if DoorDash were to say: Okay, we give up on that picayune point and we concede that you can prove that for all of these people. Then I'll give up on discovery. But it's unfair to my mind hold that against plaintiffs, to say that they can't point to the specific agreement that they had whenever you know good and well which one it was if you looked at your computer long enough. So I'm going to give them discovery. If you work that out -- but that's why I'm thinking they get the right to Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 discovery. Now, here is another thing I think you ought to take discovery on, separate from that. If you're going to -- it's not necessarily so easy to prove that -- for those people who don't opt out in time, you may have to prove unconscionability. Well, you made an accusation that Gibson Dunn had written this thing for CPR. Well, go take discovery to prove that. Find the CPR people and prove it. That's true. I don't know, is it true? MR. FOGELMAN: Your Honor, we haven't even -- I haven't had a chance to address the 4.2 issue with you, Your Honor, but I completely disagree with any -- THE COURT: I'm not saying it's 4.2. I'm just saying that it does -- it would be an important fact, to me at least, on unconscionability if in order to get away from the AAA, you ran off to CPR and cooked up some custom made deal, and then -- and then you really wrote the terms yourself, and now you're foisting that on to the people who can't opt out within 30 days. I'm not saying it's unconscionable yet, but I'm saying there is an issue there -- MR. FOGELMAN: Your Honor -- THE COURT: -- and they ought to take your deposition and the deposition of the people in -- where are they located? Arizona? Where is CPR located? Find out if it's true that Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 Gibson Dunn wrote these -- these -- MR. FOGELMAN: No one has alleged that, Your Honor. THE COURT: I heard it awhile ago MR. FOGELMAN: I think he was saying that we helped write the new contract for the client on their terms of service. I think that THE COURT: Well, that's not what he -- MR. POSTMAN: I'm saying CPR. THE COURT: CPR. MR. POSTMAN: And the reason, there is strong circumstantial evidence, which is the new CPR protocol was announced either on November 4th or 6th. There is a press release on November 6th. The rules are dated November 4th. By Saturday, November 9th, they had already written it into their new agreement and pushed it out the day after the -- MR. FOGELMAN: Your Honor -- THE COURT: I will give you one deposition. Go to CPR, do a 30(b) (6). And then all the communications with Gibson Dunn, with DoorDash, to show how the rule got written. MR. POSTMAN: Thank you, Your Honor. THE COURT: That would be something that might -- it would surely add color to the case. Yes, sir. MR. FOGELMAN: But with all due respect, you're now writing a case for them that hasn't been filed yet, and that's Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 not what -- THE COURT: Well, that's what he told me. MR. FOGELMAN: Not what -- THE COURT: He told me today MR. FOGELMAN: Well, hold on, Your Honor. The Motion to Compel arbitration has a filing already. There is a motion on file. It doesn't say they need discovery. He doesn't ask for discovery. It simply says that they have arbitration agreements for the AAA. our response to that is due in a few weeks, but he will say, among other things, what I told you. where is the actual agreement to arbitrate? It's not attached to the Motion to Compel, and it wasn't attached earlier. THE COURT: I'm going to let them take discovery to get that. MR. FOGELMAN: What discovery do they need? They know they did agree or did not, Your Honor. They don't even -- THE COURT: I'm overruling that objection MR. FOGELMAN: All right, Your Honor. THE COURT: I'm going to make them -- I'm going to make you go sit in front of a computer screen and call it up and say: Here is the agreement that he signed. MR. FOGELMAN: Okay. Would you also agree then, Your Honor, that as part of that process, that plaintiffs have to provide sufficient information for that search to be done? It Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 isn't just a name in a complaint. THE COURT: Well, the name would be enough, in my judgment MR. POSTMAN: Your Honor, we will stipulate to provide email address, phone number, address, name. THE COURT: All right. MR. POSTMAN: We have provided it already. THE COURT: I'm telling you in every other -- in today's environment, this is something that the lawyers would be able to work out and not have to take discovery. MR. POSTMAN: Four requests. THE COURT: If it comes to it, I'm going to let him take the deposition. MR. FOGELMAN: All right, Your Honor. Hopefully, we will get the information in which that can be done But even so, the burden of anyone moving to compel arbitration is always on the person moving. THE COURT: What am I missing here? He comes in with a showing, plaintiff, for 2236. Let's say he's got 234 who opted out of the new deal. They clicked through it, but they opted out of the CPR. And then they say we, therefore, want to go to AAA. Compel them to go to AAA. And then I -- why shouldn't I just say -- MR. FOGELMAN: Let me answer it in three ways. First, I think you're assuming a lot more than the facts Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 will justify. For example, it might be that 1850 of those people won't even click on the website between now and the hearing on this Motion to Compel, whenever it is. And we don't know what percentage who clicked through would agree. and those who clicked through and agree, how many will opt out. They will have 30 days from the time they agree, if they clicked on and agreed So that could happen on a rolling basis over the next year. That's not going to happen between now and the end of the year. THE COURT: But we will have some who have not clicked on the new agreement at all and they have the AAA. And I'm going to probably compel you to arbitrate them And then we'll have the next group that clicked on to the CPR, but opted out of the CPR. And probably I'm going to compel you to arbitrate those. And then we'll have the group that clicked on and forgot to opt out. That's the harder case I don't know the answer to that. And I'm not even saying for sure I would -- I'm just saying that's the way I can see this working out, because it can't be that they can't find -- that you can't find the agreements. MR. FOGELMAN: Your Honor, as I said, if a sufficient information were provided, it would be something that could be found, if they are this the system Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 But there were almost a thousand that weren't in the system originally. I don't know how many of the 2200 we're here for today are in the system, and I don't know if we'll have that information before the end of the year All I'm saying, Your Honor, is that between the lack of information on which of their clients are going to want to go elsewhere, the lack of information on which their clients are going to want to settle their claims in the class action, it doesn't make sense to have either discovery or briefing in anticipation of a January 7th or 9th -- THE COURT: I'm not giving up on briefing, and we're going to go ahead with our hearing -- MR. FOGELMAN: Very well, Your Honor. THE COURT: -- and reasonable discovery. Now, counsel on the plaintiff's side, if they come across with the documents you need and the admissions that you need, don't just put them to time and pain and suffering -- MR. POSTMAN: Of course not. THE COURT: -- for the sake of it. MR. POSTMAN: Your Honor -- THE COURT: But when we get to that day, I'm going to want a breakdown of the 2236: 192 fall in this category, 1009 fall in that category. So that we can -- so that maybe relief is only granted as to 1,009. MR. POSTMAN: I understand, Your Honor. My Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 counterpart has actually, to my knowledge, not been involved in these matters up until recently. So he may not be familiar with this, but I've said it once and I need to correct the record again We have given DoorDash an email, a phone number, an address for every single one of petitioners. They have searched some different lists looking only for email, not tried anything else. And they haven't conferred with us despite four requests. So I appreciate Your Honor giving us the opportunity given that intransigence, to try to do that. MR. FOGELMAN: Counsel is correct. I am new to the matter, Your Honor, but I don't think that's accurate The email addresses that were the first ones provided, at least, are email addresses that seem to be new and not in our system. Some are in the system. That said, Your Honor, when we come back on whatever date it's going to be, I'm going to if you want to hear this at all, I'm going to ask that you would condition, that's what we're going to include, the bare compliance with AAA rules that every litigant would expect. That is, they have an agreement to arbitrate. Here is their claim and here is the amount in controversy. Because if it's a $20 claim, that's going to make a difference on how everyone approaches it Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 72 It's not that complicated. That's why we got stuck in the AAA in the first place. THE COURT: I have a comment now for plaintiff. You have a lot of things possibly going for you in this case, but you should not jeopardize those by not dotting every "i" and crossing every And if the rules require what counsel just said, don't blow that off. Don't put yourself in a position where you're saying: Oh, we just did ditto for case -- after the first 13, we decided we -- no. 2236 cases have all got to be documented perfectly. Don't bring up some bogus issue that puts me in the position of having to decide, well, he could have done it right, but he didn't do it right. No. Do it right MR. POSTMAN: I appreciate that, Your Honor, and we try every day to do that. If I may, I do want to point out that there is a process for deciding what is required, and we submitted everything we believed that was required to AAA. AAA, which under their contract is the exclusive determiner of what is required, said it was proper. They never raised these arguments once through the process. And then AAA said: You've done everything right, and -- but they are not paying, so we're closing it. I mean, we could have potentially done things differently had they raised these arguments earlier in the process had AAA Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 said so. But we have -- according to the relevant decision-maker under their contract and their very broad delegation clause, it's already been determined that we've dotted of "i" and crossed every "t." And we're happy to bring -- THE COURT: Does your record now prove that? MR. POSTMAN: Yes THE COURT: In the record before me? MR. POSTMAN: Yes. 5-11, email from the AAA administrator: "We have made an administrative determination the minimum filing requirements have been met by claimants." THE COURT: Are all 2236? MR. POSTMAN: Yes. This is referring to all of them And I'm happy to walk through in their contract why this finding is conclusive. And our brief speaks to that to some degree. MR. FOGELMAN: Your Honor, we're not talking about AAA, where some administrator made a finding based on a limited record. We're talking about the Motion to Compel before Your Honor. And we're asking if they can establish that they have a right to arbitrate. And if so, they comply with the bare minimum that the rules require, which are part of our agreement Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 We're not here to discuss that. I was just previewing it for Your Honor because you were raising it. THE COURT: All Right. I'm not going to rule on this Plaintiff, you're not -- I'm not the AAA. T am being asked to invoke the equity jurisdiction of the court. And what the other side is saying is you've got to prove these certain prerequisites before you get relief. MR. POSTMAN: We will prove every single -- THE COURT: If you want to gamble on that email from the AAA, you can gamble on it, but I'm not saying you're going to win on that. I'm not going to say you're going to lose on that. My plea to you is: Why do you want to put the poor judge in that position? Why can't you do your job and have a bulletproof record here. You could. You could. MR. POSTMAN: We will have a bulletproof record here on every requirement that is required for the Court to compel arbitration. I believe we are going to disagree about what the requirements are, and we can't go back and fix what we submitted to AAA. We could have done it differently, but AAA -- THE COURT: You can fix what you're submitting to me. MR. POSTMAN: Yes. And we will -- we will submit -- Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-147710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 THE COURT: You have my permission to beef up your record before the January 6th hearing. This can't be on January 6th because I'm not going to be here that day. What day is it? That whole week -- MR. FOGELMAN: The 9th, Your Honor THE COURT: I'm not going to be here that day. We're going to have to move it the following week MR. FOGELMAN: Your Honor, I would, if I could, ask that counsel simply confer with us because we're going to need to have a complete motion package to respond to. So we have to discuss briefing and maybe a better hearing date that will allow for that and allow for you to be here. THE COURT: All right. You all work that out between yourselves, but I'm going to have to slip it for one week MR. FOGELMAN: Thank you, Your Honor. I understand for today's motion, the motion has been withdrawn. MR. POSTMAN: Would you like us to withdraw it, Your Honor? THE COURT: Yes. MR. POSTMAN: The motion is withdrawn. THE COURT: All right. MR. FOGELMAN: Thank you for your time, Your Honor. THE COURT: All right. Thank you. (Proceedings adjourned.) Debra L, Pas, CSR, RPR, RMR, CRR Official Reporter- US. District Court - San Francisco (415) 431-1477CERTIFICATE OF OFFICIAL REPORTER I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Leta &. Pevo) Debra L. Pas, CSR 11916, CRR, RMR, RPR Tuesday, November 26, 2019 Debra L. Pas, CSR, RPR RMR, ORR Official Reporter - U.S. District Court - San Francisco (415) 431-147