Lawson v. GrubHub Inc. et al.

Northern District

U.S. Magistrate Judge Jacqueline Scott Corley

Defense Lawyers: Theodore J. Boutrous Jr., Theane Evangelis, Michele L. Maryott, Dhananjay Manthripragada, Brandon Stoker, Peter Squeri, Megan Cooney, Shailey Jain, Gibson, Dunn & Crutcher LLP

Plaintiff's Lawyers: Shannon Liss-Riordan, Thomas Fowler, Matthew Carlson, Lichten & Liss-Riordan PC

In one of the first "gig economy" cases to be fully decided on the merits in a California federal court, Raef Lawson, a former driver for restaurant delivery service GrubHub Inc., was ruled to have been an independent contractor, not an employee.

Lead defense counsel Theodore J. Boutrous Jr., Theane Evangelis and Michele L. Maryott -- faced with an enterprise-threatening class and representative action -- persuaded U.S. Magistrate Judge Jacqueline Scott Corley to rule in February 2018 that delivery drivers who have significant freedom and flexibility to choose when and where to work are properly classified as independent contractors.

The case is currently before the 9th U.S. Circuit Court of Appeals on the issue of whether the state Supreme Court's Dynamex opinion should have retroactively altered the outcome. Lawson v. GrubHub Inc. et al., 15-CV05128 (N.D. Cal., filed Nov. 9, 2015).

"We really dug in to focus on our freedom and flexibility themes," Maryott said.

First, the Gibson, Dunn & Crutcher LLP team won a preemptive motion asking the court to deny class certification by showing that almost the entire potential class was bound by valid arbitration agreements with class action waivers. That narrowed the case to just the named plaintiff's claims and his attempt to proceed under California's Private Attorney General Act.

Next, the defense used Lawson's deposition and trial testimony to highlight his dishonest conduct as a GrubHub driver.

"We showed he had figured out how to claim he was driving for GrubHub when he was really sitting at his house," Maryott said. "He was being fraudulent. He contradicted himself on the stand. We showed he was gaming the system and that tied into our theme that GrubHub did not have control over the manner and means of his work."

"He played games and we could prove it," Maryott added. "He had no supervisor, no boss, and that was key when we looked at whether he was an independent contractor."

Evangelis said those were significant moments when she felt they were on their way to persuading the judge that the defense should prevail. "Certainly on the issue of the plaintiff's credibility, we were confident she was seeing what we were seeing. None of us was so bold as to say we had it wrapped up, but we felt pretty good."

Shannon Liss-Riordan, representing Lawson, said she expects Corley to be reversed on appeal.

"The judge seemed taken with GrubHub's argument that my client violated its rules, but that wasn't really the point of the case," she said. "It was a trumped-up defense that had nothing to do with the central classification issue."

-- John Roemer