Sexual assault multidistrict litigation against Uber revs up

On Oct. 4, the Judicial Panel on Multidistrict Litigation (“Panel”) transferred 13 sexual assault cases involving Uber to be heard before Judge Charles R. Breyer in the Northern District of California. In re: Uber Technologies, Inc., Passenger Sexual Assault Litigation (MDL No. 3084.) This marks the first time sexual assault cases have been centralized for pretrial proceedings by the Panel, despite previous denials in sexual abuse cases. See In re Varsity Spirit Athlete Abuse Litigation, 2023 WL 3828645 (J.P.M.L. 2023); In re Hotel Indus. Sex Trafficking Litig., 433 F. Supp. 3d 1353 (U.S. Jud. Pan. Mult. Lit. 2020).

The Panel’s authority stems from 28 U.S.C.A. § 1407, allowing it to transfer civil actions pending in different federal district courts to a single district court for coordinated or consolidated pretrial proceedings. The purpose of consolidating the pretrial proceedings is to avoid inconsistent pretrial rulings and duplicative discovery, and conserve resources of litigants and the judiciary. In determining which matters to consolidate, the Panel looks to whether the civil actions involve one or more common questions of fact, whether the transfer is convenient for the parties and witnesses, and whether it will promote efficient resolution of all actions. In re Auryxia (Ferric Citrate) Pat. Litig., 412 F. Supp. 3d 1347, 1349 (U.S. Jud. Pan. Mult. Lit. 2019). For decades multidistrict litigation, which is distinct from class actions, has been used to centralize pretrial proceedings in product liability and antitrust actions. E.g., In re Allergan BIOCELL Textured Breast Implant Prod. Liab. Litig., 412 F. Supp. 3d 1361 (U.S. Jud. Pan. Mult. Lit. 2019); In re Fisher-Price Rock ‘N Play Sleeper Mktg., Sales Pracs., & Prod. Liab. Litig., 412 F. Supp. 3d 1357 (U.S. Jud. Pan. Mult. Lit. 2019); In re Sensipar (Cinacalcet Hydrochloride Tablets) Antitrust Litig., 412 F. Supp. 3d 1344 (U.S. Jud. Pan. Mult. Lit. 2019).

Uber argued against the transfer and centralization of sexual assault lawsuits, citing different state laws and factual inquiries, and sought to draw parallels with In re Varsity Spirit Athlete Abuse Litigation, where the Panel denied centralization of sexual abuse lawsuits. However, the Panel disagreed, emphasizing common questions related to Uber’s “knowledge of the prevalence of sexual assault, representations regarding safety, and policies and practices for handling complaints about drivers.” (MDL No. 3084, Doc. 94, Transfer Order, at p. 2.) The large and growing number of actions and counsel involved further supported centralization. Id. At the time of the Order, 79 actions were pending in 13 districts, with at least 14 different plaintiffs’ firms involved.

This decision not only establishes a precedent for consolidating sexual assault cases under section 1407, but also has potential implications for class actions, as it identifies common factual questions among the Uber sexual assault cases. For a class action to be approved, the court needs to find common legal or factual questions. Fed. R. Civ. P. 23(a)(2). In cases of sexual assault and harassment, defendants often resist class certification, as Uber did with centralization here, claiming that unique and atypical issues amongst the plaintiffs make it inappropriate. As a result, courts find class actions for sexual assault and harassment cases to be appropriate in only very limited circumstances. For mass sexual abuse cases where class certification is not possible, Plaintiffs can now consider multidistrict litigation.

Uber has faced legal troubles over sexual assaults, resulting in hefty fines and regulatory demands. Three years ago, the California Public Utilities Commission fined Uber $59 million and threatened its license for not providing assault-related documentation. Almost a decade ago, San Francisco and Los Angeles District Attorneys sued Uber for deceptive claims, including that it was the “safest ride on the road,” and that its drivers’ background checks were “the gold standard.” They required Uber to rename its $1 fee added to rides to “booking fee” from “safe ride fee.” Over the years, many individual sexual assault cases have been brought against Uber, including a class action filed in November 2017 in California. This consolidation of Uber sexual assault cases is poised to become the biggest sexual assault litigation in the nation. It also holds potential to improve safety for Uber riders nationwide.