🏛️ Today was the final trial conference in the MA v. Uber & Lyft employment classification case. The trial, in which a jury has been waived, is slated to begin on May 13.
MA’s attorney general is a seeking declaratory judgment and is alleging that under MA law, Uber/Lyft missclassifies their drivers as independent contractors.
MA is alleging that drivers provide services for the companies and they can’t overcome presumption that these drivers are employees by establishing their burden under all three prongs of Section 148B(a):
Uber & Lyft argue MA can’t establish that drivers perform services b/c they are in a business-to-business relationship, & drivers are: free from their control or direction, perform services outside of the regular course of business of Uber/Lyft & are engaged in independent trade
The court addressed Uber & Lyft’s Daubert motions from both sides that seek to exclude expert testimony.
Uber & Lyft are seeking to exclude the testimony of Dr. Lindsey Cameron who is educated in organization control & management and will be testifying on organizational control.
Uber & Lyft argue that Cameron’s methodology contains no objective standards, rendering her work entirely untestable.
Cameron’s opinions on organizational control, even if given merit as expert opinions, apply to both employees and independent workers and she is unable to conclude whether the organizational control exerted rises to the level of an "employer."
Cameron’s work in this case did not even rely on the kind of evidence she says is pertinent to her methods: long term participant observations and longitudinal interviews.
Uber& Lyft note that Cameron didn't interview any of the drivers who have been deposed in this case and instead relies on interviews she conducted up to 8 years ago, as well as her prior work/articles on the subject.
Of all the interviews she's done, only 4 drivers were from MA.
Uber & Lyft argue that there is nothing expert about talking to drivers about their experiences and that Cameron goes as far as disregarding drivers' perspectives that they have autonomy, calling their statements “illusory.”
Uber & Lyft are also seeking to exclude the testimony of Dr. Arning who is educated in in semiotics and will speak on the public branding and marketing materials of the rideshare companies.
Semiotics studies signs/symbols as applied to strategy or marketing.
Uber & Lyft argue that this field has never been accepted in courts as expert testimony, doesn’t past muster under Daubert & is a tautological methodology that shouldn't be permitted as expert testimony.
Judge Krupp inquired whether or not Arning could be admitted as a "precipient" witness, as opposed to as an expert witness but Uber/Lyft argued that semiotics is a self affirming doctrine and the court can undertake the same kind of analysis itself.
Uber & Lyft also called into question the corpus that Arning relied on, which is a critical component of a semiotician's analysis, noting that even Arning had doubts about the corpus.
MA argued that Arning's methodology can be tested by a consumer survey or by having another semiotician review the same corpus and come to the same conclusion. They also stated that Arning's inability to identify an error rate is immaterial.
MA is seeking to exclude the testimony of Dr. Terrence August who is educated in economic modeling & information security/operations and will testify on the structure/operation of multi-sided platforms.
MA argued that August's area of expertise is limited to information technology and that he looks at 2-sided marketplaces from a security perspective.
Uber sought to rebut MA's attack on August's qualifications by noting that he is a professor of business, has dissertation on economics, reviewed a large numer of papers on 2-sided marketplaces.
Uber argued that August's methodology as a soft science expert entails his review of docs and unlike MA's experts, he is able to provide a more readily testable standard underlying his conclusions.
Given that this is a bench trial, Judge Kruppa stated that his inclination was to accept all 3 experts and take their testimony for what it's worth. He noted he may find the testimony is not worth taking into consideration.
But he will give a formal ruling at a later date.
Remaining motions in limine will be heard on May 9th.
The trial will begin on May 13 and last 4 weeks with MA recieving 40% trial and Uber/Lyft receiving 30% each.
Vidushi Dyall
@vidushi_law_1
@progresschamber Breaking down key developments in important tech cases you should be following. Tech policy, cybersecurity, competition. Fordham Law alum.