Arbitrator rewrote rules with help from Gibson Dunn attorney, emails indicate

After nearly 6,000 couriers filed arbitration demands against DoorDash last year, the food delivery company switched to an arbitration service that rewrote its rules for handling mass employment claims by following instructions from DoorDash's attorneys, according to emails unsealed by a federal judge.

DoorDash is no longer enforcing these rules for the plaintiffs in Abernathy et al. v. DoorDash, Inc., CV19-07545 (N.D. Cal, filed Nov. 15, 2019), said Travis D. Lenkner, one of the plaintiffs' representatives from Keller Lenkner LLC. This is "perhaps because they knew that the agreement is unfair, and that there is a real risk that the court would rule against DoorDash if the agreement were challenged," Lenkner added in an interview Monday.

Michael J. Holecek, one of DoorDash's attorneys from Gibson, Dunn & Crutcher LLP, said neither his firm nor DoorDash would comment.

The emails showing Holecek working with the International Institute for Conflict Prevention and Resolution Inc to tailor its arbitration rules were unsealed last week, following a Feb. 10 order in which U.S. District Judge William Alsup told DoorDash to lift the seal and immediately start arbitration with 5,010 of the 5,879 courier plaintiffs in Abernathy. The plaintiffs filed their first motion to compel arbitration with DoorDash last November, after they each filed individual arbitration demands alleging the company had wrongly classified them as independent contractors instead of employees.

A September 2019 email from Holecek to Conflict Prevention and Resolution said DoorDash's then-arbitration provider, the American Arbitration Association, charged the company $1,900 in filing fees per arbitration demand. The email continued to say DoorDash was looking for an "alternative arrangement -- such as a cap on filing fee expenses, a fixed monthly retainer and hourly arrangement." The emails also show Conflict Prevention and Resolution later sending drafts of new claims rules to Holecek and Holecek responding with edits.

An email to the Conflict Prevention and Resolution board written by Allen Waxman, the company's CEO, said with regard to Holecek's proposals, "I would like to explore a way to work on this because it is the kind of problem that demands CPR innovation, would further our mission, and could be an important source of funding going forward."

The court documents containing the unsealed emails, which were filed by Aaron Zigler, a partner at Keller Lenkner, said, "Despite DoorDash's and Gibson Dunn's active participation in the drafting of the protocol, CPR did not discuss the protocol at any point with any lawyer representing drivers asserting misclassification claims."

DoorDash did not appeal the unsealing order before a 14-day deadline.

"CPR has designated these materials as confidential, purporting that they contain, among other things, trade secrets, proprietary information and sensitive information," Alsup wrote in his Feb. 10 order. "The district court should not be a party to concealing this information from the public, especially as it concerns an arbitration organization that holds itself out to the public as impartial."

Lenkner said Monday, "Defendants like DoorDash are on notice, if they weren't already, that rewriting arbitration rules in secret with a supposedly neutral arbitration forum and then forcing those rules on workers, including workers who are already trying to arbitrate under the old rules plainly is so brazen and is plainly unconscionable."

"There are real questions about the CPR protocol and CPR itself as a forum for consumer and employment claims. And those questions are not limited to DoorDash," Lenkner added.