December 6th, 2016

Opting Out of Uber’s Forced Arbitration (The Clock is Ticking)

Uber logo. Used without its permission.

You have until December 21st. That’s it. But you can opt out.

Here’s the deal: Uber changed its terms of service to force people into arbitrations, taking away consumers’ rights to sue the ride sharing company if something goes wrong. Like plow into another car because the driver was looking at his phone to see where his next right might come from.

That kind of thing.

And compulsory arbitration is very bad for the little guy, as I’ve discussed earlier, as arbitrators would love to have the repeat business of the companies that are always involved in disputes. There is a hidden financial motivation to arbitrators to be gentle to Uber and other large businesses so that they continue to hire said arbitrators.

That is why, for example, Wells Fargo is trying hard to force claims against it for creating sham accounts into arbitration, instead of facing the wrath of juries.

So while Big Business of all stripes can pull it’s business from arbitrators who might not be as nice as they’d like, the one-and-done consumer has no leverage. None. Nada. Zip.

Advantage: Big Biz.

So, courtesy of Marea L. Wachsman, comes this easy-peasy method of preserving your rights against Uber.

Take it away Marea:
————————-

Marea Wachsman, of Schreier & Wachsman, LLP

If a passenger is injured in an Uber vehicle due to its negligence, passengers were required to arbitrate their claims for personal injuries before the American Arbitration Association. They were required to arbitrate pursuant to the terms and conditions of the Uber contract the passenger “accepts” when using Uber.

On July 29, 2016, however, Judge Rakoff from the Southern District ruled that the Uber arbitration terms were not conspicuous enough or did not evince the users “unambiguous manifestation of ascent” to the arbitration provision and therefore the court ruled that the arbitration provision was not enforceable.

With its forced arbitration clause tossed into the dumper, Uber tried again.

On November 14, 2016 Uber sent an email to its users to undermine Judge Rakoff’s decision, announcing it was updating its Terms effective November 21, 2016 — while everyone was scampering somewhere, or doing something, in anticipation of Thanksgiving.

In that same email, Uber instructed its users to read the new Terms and expressly stated it had “revised our arbitration agreement.” The revision is with an eye to ensuring that negligence claims by passengers must have their claims for personal injuries arbitrated, and not litigated, thereby waiving the passengers’ rights to a jury trial.

Fortunately, you can reject the November 21, 2016 Uber Terms, by providing Uber with written notice by mail, by hand delivery or by email within 30 days of November 21, 2016.

If the rejection is by email, the email must come from the email associated with the individuals account and addressed to [email protected]. The notice to reject the Terms must include the individuals full name and state your explicit intent to reject the changes to the Terms.

By rejecting the November 21, 2016 Terms, the individual continues to be bound by the Terms the individual first agreed to when the individual signed up with Uber. Thus, presumably, the individual would still have the protection Judge Rakoff provided in having the claims for personal injury for an Uber passenger against Uber heard in a courtroom and not in an arbitration hall.

You can find the information buried on Uber’s legal page, in paragraph 5, reprinted in full below:

Uber may amend the Terms from time to time. Amendments will be effective upon Uber’s posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Uber changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Uber written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Uber USA, LLC (the name and current contact information for the registered agent in each state are available online here), or (b) by email from the email address associated with your Account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).

December 1st, 2016

Is Uber Trying to Kill You?

An Uber drone advertises uberPOOL above traffic on a highway in Mexico City on June 17. Photographer: Brett Gundlock/Bloomberg

I bet it sounded like a great idea in the boardroom: Hey, let’s find a nasty traffic jam, with lots of stop-and-go traffic and fly some drones over it with advertising!

Wow! Great idea! Captive audience! Stuck in their cars!

And they will just look up in the air at our drones while in this stop-and-go traffic and read our advertisements about car-pooling!

What could possibly go wrong?

I once ripped on Geico and the Port Authority, for stupidly planning to put Geico ads in a crowded toll booth plaza. The signs would have touted “safety” while diverting the attention of drivers to read the signs in that crowded plaza. Genius.

Human error from distracted driving is the leading form of injury from vehicle collisions. Advertising schemes that distract drivers on crowded roadways can only makes things worse.

So Uber is taking things to the next level past Geico and the Port Authority, cranking stupidity up to 12, because the eventual injuries that would most certainly happen from the continuation of such a program shouldn’t be joked about by saying the stupidity merely goes to 11.

The activity is taking place in Latin America, where Uber hopes to increase their market share.

But can this Latin American experiment be replicated on New York’s roadways? Well, even if they could somehow get FAA approval to do it, my guess is that the company would get sued out of existence for the very predictable, and quite inevitable, injuries that such distractions would be a cause of.

This wouldn’t simply be negligence, but in my view, recklessness, that would subject the company to punitive damages.

And you thought that Uber drivers merely being distracted themselves by looking at their devices was bad.

(hat tip Kashmir Hill via Twitter)

May 23rd, 2016

Uber Cars are Uber Dangerous (The high cost of cheap taxis)

My dad told me a short story this winter, when three grandkids flew down to Florida to see him. When ready to go to the airport, he offered to call them a taxi. Not needed, they said, we’ll just Uber!

The cars arrived quickly. They were cheaper than taxis. Dad was amazed.

So what is the cost? No, I don’t mean the cost of the airport trip; I mean the cost to society.

The cost is this: Far more people are likely to be injured and killed by companies such as Uber that rely on apps and speed than by regular taxis or car services. And the worst part is, it’s part of the business model.

Uber drivers, you see, must respond quickly to the incoming notification on their smart phones — reportedly within 15 seconds. Otherwise, they lose that fare. Repeatedly make the mistake of failing to quickly respond? Then you lose your ability to work for Uber.

This means that Uber drivers must be diddling with their dinging smart phones while driving and responding. Instead of looking at the road. The Uber business model not only encourages dangerous distracted driving, but actually thrives and profits because of it.

How dangerous is distracted driving? It’s three times more dangerous than paying full attention. From the Viriginia Tech Transportation Institute:

The study, entitled The Impact of Hand-Held and Hands-Free Cell Phone Use on Driving Performance and Safety Critical Event Risk, shows that engaging in visual-manual subtasks (such as reaching for a phone, dialing and texting) associated with the use of hand-held phones and other portable devices increased the risk of getting into a crash by three times.

Car and Driver did a test for texting/reading while driving, and compared drunks with a .08 blood alcohol level with those who are sober. Time and again, those who were texting, or merely reading their texts, took longer to hit the brakes and stop their cars. And when I say longer, I mean the drunks were quicker to the brakes than the text readers. And these were people on a straight road track who knew they were being tested.

Let’s repeat that: Driving while reading texts is more dangerous than driving while drunk.

The conclusion is inescapable: Uber cars are uber dangerous.

There is a deadly cost to getting Uber drivers to their customers so quickly. And this is a cost not only to passengers, but also to others on the road — most significantly of all, to pedestrians who are not enveloped in that big metal cocoon with seatbelts.

Now take those distracted Uber drivers and put them in New York City, where such vehicles are currently allowed (though they are not yet allowed elsewhere in the state). Our street life hums and thrives on pedestrian traffic.

Uber is significantly more dangerous when people are walking about. The injuries such drivers inflict on pedestrians will likely be far more catastrophic than others, due to the delays in responding to danger by distracted drivers. In other words, an uber accident. (Though collision is the proper word.)

The first lawsuits against Uber drivers are now percolating through the system. They will raise many issues, a few of which are:

Are the drivers employees of Uber or independent contractors? You can be sure Uber wants to call them independent to shield itself from liability as being responsible for their employees’ actions. But just because they want it doesn’t mean they will get it.

Is the Uber app a defectively designed product, as it actively encourages distracted driving? Is it inherently dangerous?

Can Uber be held liable for simply sending messages to people that they know are behind the wheel and moving? I covered this subject last month, with respect to potential liability for friends sending texts to people they know are driving.

Knowing full well the danger, will juries decide that such conduct is reckless, and therefore subject Uber to punitive damages?

Are the issues interesting? You bet they are. For a lawyer. Not so much when you are splayed out on the blacktop waiting for the ambulance.

But perhaps more importantly, Uber will likely go running to the Legislature complaining about its insurance rates — as it’s inevitable that their drivers will get in more accidents, that the injuries will be more severe, and their insurance will obviously go up as a result. Insurance goes up for drunks, doesn’t it?

Did I say “will” be running to the Legislature? As it happens, they are running there now. A piece in Politico/New York discusses extensive lobbying efforts going on now for them to expand outside New York City. And the bill must go before the insurance committee.

One hopes that, if such bill does appear, and does go before the insurance committee, that legislators pay particular attention to the fact that Uber’s business model is exceptionally dangerous, and that the injuries they inflict to others will be far more catastrophic due to the delays in responding by distracted drivers.

The most dangerous drivers are probably those cruising for fares and waiting for the phone to ding.

If the technology is not going to be outlawed because it’s just too damn dangerous, then Uber (and Lyft and others of their ilk) should be made to carry significantly more insurance than others to cover the costs that they will inflict.

It isn’t enough for Uber to say, “let the injured and killed be damned so that we can make more profit.” And it isn’t enough for the victims and taxpayers to be left paying for the damage that the distracted drivers inflict.