As part of the ongoing Uber antitrust litigation, the Second Circuit yesterday reversed Judge Rakoff’s earlier ruling that the arbitration clause in Uber’s terms of service was not enforceable (see our previous coverage of Judge Rakoff’s decision here, and the interlocutory appeal here).

Continue Reading Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable

Last week, the New York Times Company moved to dismiss a defamation suit brought by Sarah Palin over a New York Times editorial drawing a connection between SarahPAC’s publication of a “crosshairs map” referencing Representative Gabrielle Giffords and the mass shooting where she was wounded in 2011 (see our previous coverage of the suit here).

The Times argues that SarahPAC cannot be considered an alter ego of its namesake, meaning that the editorial was not “of and concerning” her:
Continue Reading N.Y. Times Moves to Dismiss Palin Defamation Suit, Arguing Editorial Concerned Palin’s PAC, Not Palin Personally

Yesterday, the U.S. Supreme Court held that New York State’s law preventing merchants from charging an additional fee for using a credit card (see our previous coverage here) regulates speech, and remanded the case to the Second Circuit to determine whether the law can survive First Amendment scrutiny.  Judge Rakoff had initially ruled in favor of the merchants, but the Second Circuit found that the law was permissible as it only regulated the relationship between the two prices rather than speech.

In an opinion by Chief Justice Roberts, the Court found otherwise:
Continue Reading SCOTUS: NY Credit Card Surcharge Law Regulates Speech

The summary judgment ruling, issued yesterday, begins:

Why would the executives (and former principals) of a paddle-board division of a sports and recreation company cause the company to make a one-time $60,500 purchase of one million stickers that the executives themselves immediately attempted to repurchase from the company for approximately $4 million? The answer

Judge Rakoff has published in The New York Review of Books a piece entitled Why You Won’t Get Your Day in Court, in which he describes several factors that have caused ordinary citizens to have less and less access to courts.  He argues, for example, that the Supreme Court’s decision in AT&T v. Concepcion, which upheld mandatory arbitration clauses with class action waivers, treated the Seventh Amendment’s right to a jury trial like an “outmoded procedure that could be forfeited in the interest of saving time.”
Continue Reading Judge Rakoff Bemoans “Insidious Trend” of Ordinary Citizens’ Decreasing Access to Courts

In an opinion today, Judge Rakoff denied a motion to compel arbitration of antitrust claims against Uber’s CEO because he found that the arbitration clause was too concealed for the plaintiff to have reasonably agreed to it.  (See our prior posts on the case here.)

When a user enters his or her credit card information, there is a button that says “Register,” and below that, in a “barely legible” font, it says:  “By creating an Uber account you agree to the Terms of Service and Privacy Policy.”  The phrase “Terms of Service” is a hyperlink to terms that include a mandatory arbitration clause.

Judge Rakoff acknowledged that there is extensive case law upholding arbitration agreements when users must click a button stating “I agree” to the terms of use (so called “clickwrap” agreements), but found that the facts here were towards the other end of the spectrum, where the clauses are not enforceable:
Continue Reading Judge Rakoff Rules That Uber’s Customer Arbitration Clause Is Not Conspicuous Enough to Be Enforceable

In the latest chapter of the saga over Uber’s background investigations into an antitrust plaintiff and his counsel (see coverage here), Judge Rakoff has ordered Uber and its investigative firm, Ergo, to cease their background investigations and has enjoined Uber from using any information found during the investigation in the antitrust proceeding.  Uber had hired Ergo to investigate the plaintiff and plaintiff’s counsel, an Ergo allegedly made various misrepresentations to gain information from friends and colleagues of the plaintiff and plaintiff’s counsel.

Judge Rakoff did not reach the issue of monetary sanctions, as defendants “have reached an agreement to pay plaintiff a reasonable (though publicly undisclosed) sum in reimbursement of plaintiff’s attorneys’ fees and expenses incurred in conjunction with these matters.”  Judge Rakoff described the proceedings as a “sad day” and noted that:
Continue Reading Judge Rakoff Orders Uber Investigative Firm to Stop “Arguably Criminal Conduct,” Uber Will Pay Plaintiff’s Fees