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Uber “Terms and Conditions” Depriving Users of Constitutional Rights

Uber-app-300x225When you click “accept” under the multi-paragraph “Terms and Conditions” portion of the Uber app, are you really bound by those terms? How about if those terms strip you of your constitutional rights?

Uber, the cell-phone based transportation company, is working to make sure the answer to both of those questions is an unambiguous “Yes.” Now, with their new terms of use, which became effective on November 21, 2016, Uber may have succeeded.

At stake is nothing less than your constitutional right to sue a wrongdoer in court. Uber is once again seeking to waive the customer’s right to seek justice in a court of law even in such cases of death or passenger sexual assault.

Specifically, Uber’s new terms of use state, “You acknowledge and agree that you and Uber are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.” In lieu of a trial, the contract mandates that all complainants enter binding private arbitration.

Fortunately, you have the chance to “opt out” of this arrangement by providing Uber with written notice by mail, by hand delivery or by email within 30 days of November 21, 2016.

Attorney James Napoli has provided an email template, to be sent to change-dr@uber.com, that any person can use:

“I, (insert full name), reject Uber’s updated terms of use that became effective on November 21, 2016, including but not limited to the sections regarding the Arbitration agreement.”

Why should you do this? Until now, it has been unclear whether Uber’s arbitration clause, hidden in their terms of service, was enforceable. In August, United States District Judge Jed Rakoff of Manhattan declared that users did not have “reasonably conspicuous notice” of Uber’s User Agreement, including its arbitration clause.” In other words, customers could not agree “to lengthy ‘terms and conditions’ that they had no realistic power to negotiate or contest and often were not even aware of.” While this was good news for Uber riders, it by no means marked the end of this debate.

On November 15, 2016, Uber, eager to make its arbitration clause enforceable, released new terms and conditions, seemingly in response to Rakoff’s decision. Key to the new terms is the above-mentioned “opt-out” provision, which Uber hopes will bolster its argument that customers understand the terms they are agreeing to, and have a meaningful chance to reject them.

It remains to be seen how or if Uber’s new effort to deprive passengers of their day in court will be successful. In the meantime, the best thing Uber customers can do to protect themselves is to follow the instructions above to opt out of the new terms of service.

As Judge Rakoff said, your “most precious and fundamental right” to a trial by jury must be protected.

References:

Arias, Jeremy. “Uber driver charged with sexually abusing 14-year-old girl near Ceresville.” The Frederick News-Post, 19 October 2016.

Cabrera, Krista, and Wong, Kelsey. “Class Action Waivers in Arbitration Agreements: Proceed with Caution.” The National Law Review, 28 November 2016.

Fernandes, Tyisha. “Uber driver accused of hitting passengers with car” WESB-TV Atlanta, 1 July 2016.

Frankel, Alison. “Uber’s arbitration appeal at the 2nd Circuit is big test for Internet business.” Reuters, 30 November 2016.

Legal. “U.S. Terms of Use.” Uber. https://www.uber.com/legal/terms/us/

Michael, Charles. “Judge Rakoff Rules That Uber’s Customer Arbitration Clause Is Not Conspicuous Enough to Be Enforceable.” SDNY Blog, 29 July 2016.

“United States Court of Appeals for the Ninth Circuit: Abdul Kadir Mohamed… v. Uber Technologies, Inc.” Filed 7 September 2016.

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/07/15-16178.pdf