Albert Giang

Giang is a former appellate lawyer who moved to K&S from Boies Schiller Flexner LLP last year. His work blends class action defense, regulatory investigations and advocacy work and public policy counseling for technology disruptors, especially those facing litigation or government enforcement over their worker classification models.

He said his long involvement with constitutional and administrative law adds valuable perspective as it overlaps with questions of how to apply old case law to modern tech issues.

“As the plaintiff bar gets increasingly creative, I enjoy getting calls from sophisticated clients looking for answers in novel legal situations,” Giang said.

He built on his success last year—when he won dismissal of a proposed consumer class action over robocalls for client Postmates Inc.—by taking on a new employment matter for the logistics and food delivery service now owned by Uber Technologies Inc. The new case, among the first arising from the Covid-19 pandemic, asserted claims under the California Labor Code for alleged unpaid wages and failure to provide workers with necessary personal protective equipment. McGhee v. Postmates Inc., CGC-20-584341 (S.F. Super. Ct., filed May 22, 2020).

The plaintiff framed her allegations as a public health matter that qualified for public injunctive relief under the state Supreme Court’s McGill v. Citibank opinion, a ploy that if successful would have voided the arbitration clause in workers’ contracts. The plaintiffs also contended that Postmates couriers qualified as interstate transportation workers exempt from the Federal Arbitration Act.

The idea was to take advantage of rapidly-developing exemptions that can force defendant companies to litigate in court rather than in arbitration, Giang said. “For timing and for the sake of a salacious claim, this plaintiff tried to put public pressure on my client with her PPE allegations,” Giang added.

“But at heart, we saw that this was a misclassification case. She said ‘I didn’t get PPE—and, by the way, I was misclassified.’ The complaint hooked into Covid as a catchy issue, but it goes after employment claims that predated Covid. We tried to cut through that and explain to the court that this was not a public health suit.”

Giang persuaded the court to compel individual arbitration, and he obtained important rulings that Postmates couriers were engaged in local, not interstate, transactions, and that the plaintiffs did not qualify for public injunctive relief simply by invoking public health concerns.

“There was a real design strategy by the plaintiffs here,” Giang said. On the interstate commerce claim, he cut through with a simple contrary argument, pointing out that Postmates facilitates local deliveries by couriers, not long supply chains from elsewhere. “Put differently,” he concluded in one pleading, “even if you could theoretically order live poultry from out-of-state manufacturers, it does not transform your chicken cacciatore from a local restaurant into an interstate transaction.”

— John Roemer