speaker-0: That is concerning as a parent that someone can order a ride for a teenager and they be transported in the middle of the night without any apparent questions and without any apparent precautions. We're not getting into a car with a stranger. We're getting into a Lyft or an Uber. Because most of us would never get into a car with a stranger. But we've been led to believe that getting into an Uber or a lift is okay. And the sad fact is we don't know that to be true.
speaker-1: Welcome to Parallel Justice, the podcast that dives into the crimes and cases that are dominating the national headlines through exclusive interviews with the attorneys who actually fought the cases. Some of the discussion you'll hear today may be controversial, however, we know silence, especially on tough issues, only enables and encourages wrongdoers. Our goal is to bring these issues to light through meaningful discourse. The views expressed in the following podcast are those of our guests who are Experts in these areas. Their opinions are invaluable, however, they do not necessarily reflect the views of the National Center for Victims of Crime. The topics that we discuss may be disturbing and they are intended for adult audiences. Some of these topics may also be triggering, and we encourage you to practice good self-care and seek support when you feel overwhelmed. I'm Renee Williams, CEO of the National Center for Victims of Crime, and your guide through these conversations. Now let's start the show. Welcome back to another episode of Parallel Justice. I'm your host, Renee Williams, and we are bringing you another new topic with this episode, and that is one that should concern all of us, and that's Uber and sexual assaults. Now you've probably heard a lot about these cases in the news, but today we've got one of the leading attorneys on these cases in the country to explain them and what's going on, Mike Neff. And Mike, could you just please introduce yourself quickly?
speaker-0: Yes, thanks Renee. My name is Mike Knaff. I practice law nationally, but I'm headquartered in Atlanta, Georgia. And ⁓ happy to be here today talking about issues that are important for the national centers for victims of crime. And ⁓ sadly, rideshare cases are a problem source for many people.
speaker-1: And so just so everybody knows, as always, we will put Mike's contact information in the show notes. Please, please check those out and reach out to him. And I know, Mike, we're here to talk about one case in particular and and we're going to get to that. But I first want to talk about Uber and the assaults in the news in general. And with all rideshares, really, we just happen to hear the name Uber a lot. But why does this seem to keep happening?
speaker-0: Well, it's a really interesting question. And ⁓ part of my perspective on that ⁓ was shaped by a book called Super Pumped by Mike Isaac, who was a New York Times reporter. And Super Pumped also became a showtime ⁓ series, and it was about the rise of Uber, and it was a fascinating read because Uber basically started as a ⁓ limousine service high-end to ⁓ serve people in San Francisco who didn't want to wait on a cab and could afford to pay for something nicer. And then my recollection is Lyft, which was known as a different company ⁓ initially, got into the mass market where they're like, why should we just have limos and black car service on call? We should have more economical choices. And then Uber jumped in to compete with Lyft, and it became a race for market share. It became a race for hiring drivers. And whoever could hire the most drivers fastest would have greater supply and then be able to serve more people. And when you're in a race to hire people fast, things can get overlooked and problems can occur. And that is essentially the story of Uber and Lyft in this country and yet Uber also operates extensively internationally. So they're they were trying to create new businesses in many, many, many, many locations and trying to do it as super fast as possible in order to to beat the competition.
speaker-1: And I'm glad you brought that up and and the rapid hiring. I think most of our listeners are probably very familiar with this point of the concept of negligent hiring and negligent supervision. But Uber's a little different here in litigation. And I'm wondering if you can explain that to us. Why or how are they not viewed as a typical, you know, employer?
speaker-0: Well, that's a that's a really good question. And it gets into the laws and and how corporations get set up and how they choose to identify themselves and the choices they make. So Uber and Lyft both claim that their drivers are independent contractors and therefore they're not responsible for what the drivers do from a legal perspective. Now that's an issue that I think a lot of lawyers ⁓ would contest, like myself, because you can call somebody whatever you want, but there's the old saying, if it walks like a duck, swims like a duck, quacks like a duck, then it's a duck. And under the law, ⁓ in in many states, there are situations like that when assessing whether someone is truly an independent contractor or whether They're really an employee just being called an independent contractor. And ⁓ from my perspective, that's what's occurring here. Uber and Lyft both exercise extraordinary control over the driver. They hire the driver, they identify rules that the driver are is governed by, they set the fare, they control the amount that ultimately goes to the driver, they select and identify the riders for the driver. They identify what the driver can talk about, should talk about. They set extraordinary requirements on what the driver must do in order to keep driving for Uber andor Lyft. And in my view, that meets most states' definition of a statutory employer. But since Uber and Lyft don't want to pay benefits, they don't want to pay taxes, and they surely don't want to be held responsible for the actions of drivers. Uber and Lyft will fight vehemently that the drivers are not their employees.
speaker-1: And I think it's interesting, and these are super important cases for the public to hear about because Uber is holding itself out to the public as the employer. And they are giving the impression in an Uber that you're dra that your ride is safe and you're being tracked, but none of that is actually true in the long run.
speaker-0: It is interesting to look at what Uber's public statements are. And if you go to their published safety report and you go to their website and you go to their advertisements that talk about, you know, initially when Uber came out, they they had advertisements saying that they were everyone's private driver. And then you get into litigation. In fact, they trademarked everyone's private driver at one point, and then they let the trademark expire because They realized they didn't want to be the driver. They wanna just introduce you to the driver and like it's a dating app or something. But it's it's not a dating app. ⁓
speaker-1: You don't get to take your driver.
speaker-0: That's right. You don't get to pick your driver. You have no idea who your driver is. You don't know what their background is. In a dating app, you have some control, but Uber and Lyft don't give you any control. You put your request in for a ride and they give you the driver. And you know nothing about them other than potentially their rating, which gets into a whole nother issue.
speaker-1: So I want to look at the converse really quickly, and then we're going to get off generalizations because this case is a really disturbing case. But just in the converse, we get a lot of referral requests from actual Uber drivers who have been assaulted by passengers. So what justice can they seek? Because as an attorney who's not doing the Uber work every day, my mind goes to: is it a worker's compensation claim? But Uber's saying they're not employers, so can it be a workers' compensation claim?
speaker-0: Yeah, our firm has worked on cases where riders were assaulted by drivers, and we've worked on cases where drivers were assaulted by riders. We've certainly looked at a number of ones that we decided we didn't want to take. And this is where, you know, the sword has has two sides. So Uber and Lyft are vehement that the drivers are not their employees, so there's not a workers' comp claim involved. And there are issues for lawyers representing drivers to explore about how well does Uber vet their riders? And Uber and Lyft both allow for guest riders. And what does Uber and Lyft know about the guest rider that they are assigning to their driver? And if that guest rider or that rider ⁓ who in some cases had opened an account with fraudulent credit card or gift card and gave a fraudulent name, That can be potentially very dangerous for the driver.
speaker-1: Well, and I'm thinking back, I signed up in the early days of Uber that you were discussing when it was only in New York and I could only use it when I was in New York, but I signed up maybe 15 years ago when it very, very first came out, and they've never checked on me since. They've never done anything. I've just kept the same account. Not always the greatest rating, but nobody's ever checked on me.
speaker-0: Right. And my understanding is that Uber does not and Lyft does not require any type of background check for the riders. Right. And most states in which they operate require them to do at least some type of background check on drivers. But it appears to me that there's no similar requirement for riders. So drivers do not appear to get the same level of protection. That riders do.
speaker-1: So I've teased it a couple of times with all of this as a background. I do want to talk about a specific case. And this case is actually incredibly disturbing and a nightmare for parents. And and that is the trafficking case you just worked on. So can you just walk us through what happened here?
speaker-0: Sure, this is a ongoing current case. And it is a case that although we filed it probably about a year ago, we have not taken any 30 B six depositions yet, meaning we have not been able to get testimony from Uber's corporate representative. And so there's what we believe and allege in the complaint, and there's what we know because we've gotten some documents. And there's what we don't know because we haven't talked to people. So, you know, what I'm saying today is based in ⁓ in part on our beliefs in terms of what we've alleged in the complaint. And what happened in this case is that a young girl, 14 years old, was communicating with a person online through one of the apps where people connect. And that person had an Uber account. And that person ordered a ride for this 14-year-old and arranged for her to be picked up at a closed, abandoned convenience store. Well, abandoned because it was closed. It was one o'clock in the morning. He picked her up at one o'clock in the morning, the driver did, the Uber driver, and apparently did not ask any questions about what are you doing here at one o'clock in the morning and why is this person? having me drive you 30 miles away to him. And so she was transported to this person that she met online and was drugged and assaulted for four days. So this happened even though the parents received no questions from Uber and this girl did not have access to a phone and did not have government ID was not asked to present government ID. That is concerning as a parent that someone can order a ride for a teenager and they be transported in the middle of the night without any apparent questions and without any apparent precautions.
speaker-1: And I wanna put a pin in this because I do wanna talk about this case, but I don't wanna leave anybody hanging, especially when we're talking about kids. How how is this child doing now? I know she escaped. How did she escape? How is she?
speaker-0: Well, she's on the road to recovery. The local police did a very good job of tracking where she could be and finding video from the convenience store that allowed them to identify the car and the license plate and the driver and then reached out to find out where she was taken. And so she was she was rescued. by the police after about four days and is doing the best she can, is going through counseling and trying to move forward with her life.
speaker-1: So what was the driver's response when he was questioned? There was a police search, people reacted pretty immediately. The driver was questioned, what what did he say? What were his reasonings for not thinking through?
speaker-0: Well, that's a very good question. And the driver did not file an answer to the complaint. So ⁓ the driver is not under criminal investigation. The driver continues to drive for Uber, is my understanding. Uber did not terminate his access to the platform. So that's concerning to me.
speaker-1: You know, I've seen a lot of Uber statements in this. What has their response been?
speaker-0: Well, that's a good question. They deny they're responsible. We haven't had a chance to ask them questions lawyer to witness yet. ⁓ we anticipate that'll happen in the next month. So basically the public statements are boy, this is a terrible thing. And we educate our drivers. They don't like to use the word train, because train has significant elements of control. Well we edge they claim that they educate the drivers, but they don't demand the drivers do anything, is my understanding. And that's where gaps in the system apparently exist. And I I don't know that, but I'm looking forward to asking questions about these issues in the near future.
speaker-1: Well, and I think that's part of my question. I just saw something when I was researching this case where they said, Well, we we encourage drivers to cancel rides if they don't have teen accounts. Yep. How about we just don't take them? Why isn't there Uber has policies on everything. As an Uber rider, I know this. They have policies. Why don't they just have a policy that you can't get in a car if you're not on your account?
speaker-0: Well this is just my opinion. My opinion is Uber does not want to have a policy mandating what the drivers must do because they don't want to be seen as exercising control over the driver. Because if they do that, then they're much more likely to be held as a statutory employer, and they're much more likely to be held responsible for the actions of the drivers under the legal theory of respondent superior. And so they're very cagey about the words they use. They use educate. They won't use train. They use ⁓ suggest rather than mandate. Now there's a lot of mandates that Uber has with its drivers if you get an opportunity to look at that relationship. But many of the documents are deemed confidential. But if you look at your own rider agreement with Uber, I expect there will be a lot of shells and mus when it comes to your responsibility as a writer. I canceled my Uber account probably five or six years ago after I read ⁓ Super Pumped by Mike Eis at
speaker-1: So I'm going to encourage every listener to log into their Uber or Lyft or whatever rideshare you use to review that agreement ASAP.
speaker-0: Well there will be a mandatory arbitration provision in Uber and Lyft. ⁓ they don't seek to enforce it usually in sexual assault cases. ⁓ they do seek to enforce it in vehicle or correct cases, which we also work on.
speaker-1: We talk about all of this in the context of Uber picking up teen drivers, but really we're saying underage. Are there any policies or or is there any case law or anything that would indicate Uber would pick somebody up who's under 10 or clearly a child? Do we know anything about that?
speaker-0: I am not aware of any document that specifically prohibits or forbids that. And the challenge with that is that the language that Uber uses publicly is sometimes different than the language Uber uses between it and its drivers. So that's a challenge. I think Uber's hesitance is to not mandate Anything, but they represent to the public that drivers should not do this and there's a gap there.
speaker-1: That's absolutely terrifying because I'm thinking eight and nine year olds are very smart today. They're very smart and they're very tech savvy, more so than some their parents often. And and it's a natural conclusion.
speaker-0: Yeah, this is the challenge. It's not unheard of for there to be fraudulent Uber accounts or Uber accounts in another person's name. Like the PERP in this case did not use his legal name on his Uber account. Wow. How did that happen? I'm not sure yet.
speaker-1: The big question is how does that happen?
speaker-0: Well, yeah, what gaps are there in the system that would allow I'll say Joe Smith to have an account with Robert Jones, for example, as a name. How does that happen? I don't know yet. I have suspicions, but I'll be looking to that because that that does appear to be a troubling concern when people think they can avoid detection, predators like that. type of environment.
speaker-1: And in practice they are avoiding detection. It's not even that they think they can. They are.
speaker-0: It's very troubling. The FBI warned Uber back in two thousand and twenty-two and four US senators in two thousand and twenty-three wrote a letter to Uber CEO about trafficking issues. And my recollection is it was bipartisan, two Republicans and two Democrats. So what is Uber doing? What is Uber's response? And I I don't know. I hope to find out.
speaker-1: Mike, you mentioned a little bit ago that Uber has a different process, ⁓ and we call it mandatory arbitration in their rider agreement, but that they don't usually follow that for sexual assault. So how do the ways they handle car accidents and rider injuries differ from these sexual assault claims?
speaker-0: Yes. So Uber and Lyft are both much more aggressive in mandating that arbitration occur when there's a serious wreck. And Uber will still argue that the drivers are independent contractors, but because the wreck occurs as part of an Uber ride or a Lyft ride, they realize that that argument is not gonna be as effective. ⁓ so they're They are limiting people's access to a jury in serious car wreck cases. So you still want a lawyer that's experienced working against Uber and Lyft. You still want to be able to point out where they may have negligently approved a driver, where they may have negligently retained a driver, where they have been aware potentially about a driver's dangerous behavior in the past and still kept them. So those issues are really important because. The more knowledge the company has, the more preventable ⁓ an event would have been. So when you get into sexual assault, they'll argue that that's outside the scope of any agreement. And that's right, but you want to look and see if you're in a state that allows common carrier claims. ⁓ they can't make that argument as well when it's a car wreck case. So it whether it's a car wreck or a sexual assault or transporting people or things for an illegal purpose. You definitely wanna make sure that your lawyer has screened these cases before, has fought statutory employment cases before, so that you can have someone who knows how to prove control.
speaker-1: Back to this case, where are you in it? And what are some of the challenges you're already seeing? And what are some of the challenges you're anticipating?
speaker-0: So Uber has a playbook that they adhere to in most cases that I've worked on. And when I get involved in a case, they hire a national law firm like Perkins-CUI, and they have lawyers that are very experienced in working on Uber cases. And the first thing that I've seen Uber do is file a motion to dismiss that is a request of the judge. That the case be thrown out before any discovery be done. And ⁓ they do that because even when they lose, they delay the case six months to a year, because these are ⁓ very detailed-oriented motions. And to combat that, we file very detailed complaints, sometimes four or five hundred paragraphs worth, because in a motion to dismiss, the judge has to assume the facts are true. ⁓ unless they're conclusory facts. So you want a lawyer that is going to be very detailed and very thorough in what they allege, because that will help you survive the motion to dismiss that's almost assuredly coming. And then once you do that, you get into discovery. Well, Uber doesn't want to give you any documents without a confidentiality order. And they frequently insist that everything that they want to give you relating to a particular case deals with something proprietary or a trade secret or deals with privacy issues.
speaker-1: Not to interrupt, but why do they get to decide that? Are they doing motions or cause litigation usually means everything comes to light because you screwed up? So why are they getting to make that call?
speaker-0: Well, because they have the money to pay the lawyers to fight that fight. And you're right that Uber will refuse to respond to certain things and under many objections, including relevance, which is defined broadly in Georgia. And ultimately it's up to a judge to rule on whether or not Uber's objections are sustained or overruled. But there's more delay because what the lawyer has to do and what we've done is file motions to compel Uber To order things, to produce documents, to answer questions in writing. And that takes six months generally to a year. And so you have a delay from the motion to dismiss, you have a delay on an argument whether or not these documents are confidential. You have a delay on arguing whether or not Uber has a responsibility to produce any of the documents at all. And then you get into depositions and Uber objections, files, motions for protective order, because Everything that we've asked for is, according to Uber, improper and not detailed enough. And so there's another generally six-month delay involved before a deposition occurs. And so in the case in front of us, we've fought all of those issues. The motion to dismiss, the motion to get documents, the demands about confidentiality, and also the motions to get to take depositions of Uber representatives. And so that all factored in is usually an eighteen month to two year delay before you get any substantive information in your case.
speaker-1: Now let's talk about timing and legal strategy. You were able to file this case pretty quickly after it happened, and sometimes we do see a delay. Can you explain kind of the the why you wanted to file it so quickly and win that race to the courthouse?
speaker-0: Well, it wasn't it wasn't specifically a race to the courthouse. It was an understanding that the case is gonna get delayed a year and a half anyway. And so, yes, there are times where you wait for criminal prosecution to proceed, but that can take two, three, five years, depending on whether there's trials and appeals. So, you know, there's an old saying, Justice delayed is justice denied. And what I need as a lawyer, what What lawyers need is evidence and documentation frequently to prove ⁓ the allegations made in the complaint, and frequently to learn in order to ask other questions. So you get a document, you're like, ⁓ I didn't know this document existed. And you can look at the New York Times, excellent reporting. You know, shout out to Emily Steele. She's just been incredibly tenacious in reporting on Uber. safety issues and uber sexual assault issues. And her reporting has opened up the eyes of, I'll say lawyers for sure. And I imagine judges. I know we've cited New York Times articles in motions to the court in other cases. So this is part of the problem. Like if you know something's gonna take two years to get started, like do you really want to wait two years in order to wait another two years? And That's not the end of the story too, because you have wait for the trial, you have to wait for an appeal. All of those issues, defendants can delay cases ten years. I know I've been through several of those.
speaker-1: Yep. And sometimes victims really lose steam and just want to move on with their lives as well, because that is a long process and discovery is an arduous process.
speaker-0: Uber is very sophisticated in knowing its audience in this litigation. ⁓
speaker-1: You're you're not allowed. We'll talk after this case is done. Now, they have filed a motion to dismiss and some of their defenses were interesting. What were they exactly?
speaker-0: ⁓ I'm going off of memory now to be honest. ⁓ they would say things like he's an independent contractor, those types of things. It was interesting because there was another case filed in North Carolina alleging similar facts. And that came out, that also was helpful. That case was filed about a year before ours. And so I was able to look at that. and get a guideline of you know how this differs from rider driver sexual assault cases. And ⁓ these are the issues. ⁓ the laws vary by state. And unfortunately in the North Carolina case the case was dismissed initially.
speaker-1: No, I like to end some of these parallel justices with some finality or an uplifting note. What's happening with the man who this child was delivered to? Where is he in the criminal justice process?
speaker-0: That that is a good question as well. And as we know, justice does not always act as swiftly as we would like. ⁓ but he is currently in jail awaiting trial.
speaker-1: But he is not currently able to call more Ubers for children or farmers.
speaker-0: I would hope that Uber had cancelled his account. I believe they did, but I I don't have a document in front of me to to confirm.
speaker-1: So Mike, wrapping up all of this and and thinking about kind of the state of play with all of these rideshare apps and technology and the world we're living in, we've got a lot of parents listening. So I wanna know, what do you tell your kids about all of this?
speaker-0: Yeah, ⁓ my kids have grown up in a home where their father sees some of the worst case scenarios. And so they're used to me giving them I'll call it advice. I it's sometimes couched more strongly than that, but but I am the dad of two daughters and a son and they are teenagers. And teenagers today are exposed to so much more than Teens of my era. Blessing and a curse is technology. And ⁓ they need to know that getting into an Uber or a Lyft isn't as safe as I would like it to be as a father. ⁓ I think one of the things that Uber and Lyft have done that has been remarkable has been to persuade us that we're not getting into a car with a stranger. We're getting into a Lyft or an Uber. Because most of us would never get into a car with a stranger. But we've been led to believe that getting into an Uber or a Lyft is okay. And the sad fact is we don't know that to be true. We have also been told don't drink and drive. And I sure I agree with that. But leave the driving to Uber or Lyft. Well, I'm not sure about that. I certainly don't want My girls riding alone. I certainly don't want them riding alone at night. I certainly don't want them riding alone at night and inebriated. I don't believe that is the right thing for my kids. And I don't think that parents know enough about the risk factors to be able to have that kind of conversation with their kids.
speaker-1: This is a tough podcast for me because this is holding up a mirror to my own habits and my own thoughts and preconceived notions, even though I'm in the field and I I know the horror stories. you know, what do you do when you create it? Well, we've been told we're safe to call an Uber and that's the responsible thing.
speaker-0: It's not just what I tell my kids. I tell my my friends and I ask them to tell their wives and their girlfriends and their nieces and their nephews and their cousins and everybody they care about. Because we don't know for the most part, unless you litigate these cases, we don't know the background story. Although you can read a lot if you look on the New York Times and you Google Uber. But you don't know the full story. A lot of the full story is not tellable or not discoverable or hasn't been tellable or discoverable yet or hasn't been heard. Right? I mean it's just trying to peel back this this onion that very smart, very well paid people are being paid to prevent you from peeling it back.
speaker-1: Mike, we we're about out of time, but we always give our guests the last thought, last word, anything you'd like to add before we sign off for the day.
speaker-0: I think that's the practical advice. I I think the last thought is when you are out there today in the world, whether you're in the digital economy or the physical world, you need to be really aware and concerned about who you're with. I think you need to try and educate yourself what the risks are the best you can. And I hate to say that looking at the world from a worst case scenario is is a happy way to live life, but sometimes it does lead you to think, but there's just there's just not enough information out there in my in my opinion that you can really know what you're getting into a lot of times. And so like the takeaway would be ride with friends.
speaker-1: Like it. Well, thank you, Mike, and thank you for all you do for victims. To our listeners, thanks for joining us for another episode of Parallel Justice. As always, again, we will put Mike's contact information in the show notes. So if any of this struck a chord with you today, please check those out and join us for our next episode. Thank you again for joining us for today's conversation. We know the topics discussed can be difficult and maybe emotionally triggering. Support is available at victimconnect.org through call, text, and chat. We encourage you to take time today to learn about your rights and options that are available to you. Building safer communities requires every one of us to take action. Visit victimsofrime.org to learn more and check out the show notes for today's guests' information. This podcast was created by the National Center for Victims of Crime in partnership with our center and affiliate, the National Crime Victim Bar Association, the nation's first professional association of attorneys and expert witnesses dedicated to helping victims seek justice through the civil justice system. To support this podcast, please visit victimsofrime.org/slash donate. Parallel Justice is produced by the National Center for Victims of Crime, written by me. Renee Williams and edited by Michael Folero.
speaker-1: Welcome to Parallel Justice, the podcast that dives into the crimes and cases that are dominating the national headlines through exclusive interviews with the attorneys who actually fought the cases. Some of the discussion you'll hear today may be controversial, however, we know silence, especially on tough issues, only enables and encourages wrongdoers. Our goal is to bring these issues to light through meaningful discourse. The views expressed in the following podcast are those of our guests who are Experts in these areas. Their opinions are invaluable, however, they do not necessarily reflect the views of the National Center for Victims of Crime. The topics that we discuss may be disturbing and they are intended for adult audiences. Some of these topics may also be triggering, and we encourage you to practice good self-care and seek support when you feel overwhelmed. I'm Renee Williams, CEO of the National Center for Victims of Crime, and your guide through these conversations. Now let's start the show. Welcome back to another episode of Parallel Justice. I'm your host, Renee Williams, and we are bringing you another new topic with this episode, and that is one that should concern all of us, and that's Uber and sexual assaults. Now you've probably heard a lot about these cases in the news, but today we've got one of the leading attorneys on these cases in the country to explain them and what's going on, Mike Neff. And Mike, could you just please introduce yourself quickly?
speaker-0: Yes, thanks Renee. My name is Mike Knaff. I practice law nationally, but I'm headquartered in Atlanta, Georgia. And ⁓ happy to be here today talking about issues that are important for the national centers for victims of crime. And ⁓ sadly, rideshare cases are a problem source for many people.
speaker-1: And so just so everybody knows, as always, we will put Mike's contact information in the show notes. Please, please check those out and reach out to him. And I know, Mike, we're here to talk about one case in particular and and we're going to get to that. But I first want to talk about Uber and the assaults in the news in general. And with all rideshares, really, we just happen to hear the name Uber a lot. But why does this seem to keep happening?
speaker-0: Well, it's a really interesting question. And ⁓ part of my perspective on that ⁓ was shaped by a book called Super Pumped by Mike Isaac, who was a New York Times reporter. And Super Pumped also became a showtime ⁓ series, and it was about the rise of Uber, and it was a fascinating read because Uber basically started as a ⁓ limousine service high-end to ⁓ serve people in San Francisco who didn't want to wait on a cab and could afford to pay for something nicer. And then my recollection is Lyft, which was known as a different company ⁓ initially, got into the mass market where they're like, why should we just have limos and black car service on call? We should have more economical choices. And then Uber jumped in to compete with Lyft, and it became a race for market share. It became a race for hiring drivers. And whoever could hire the most drivers fastest would have greater supply and then be able to serve more people. And when you're in a race to hire people fast, things can get overlooked and problems can occur. And that is essentially the story of Uber and Lyft in this country and yet Uber also operates extensively internationally. So they're they were trying to create new businesses in many, many, many, many locations and trying to do it as super fast as possible in order to to beat the competition.
speaker-1: And I'm glad you brought that up and and the rapid hiring. I think most of our listeners are probably very familiar with this point of the concept of negligent hiring and negligent supervision. But Uber's a little different here in litigation. And I'm wondering if you can explain that to us. Why or how are they not viewed as a typical, you know, employer?
speaker-0: Well, that's a that's a really good question. And it gets into the laws and and how corporations get set up and how they choose to identify themselves and the choices they make. So Uber and Lyft both claim that their drivers are independent contractors and therefore they're not responsible for what the drivers do from a legal perspective. Now that's an issue that I think a lot of lawyers ⁓ would contest, like myself, because you can call somebody whatever you want, but there's the old saying, if it walks like a duck, swims like a duck, quacks like a duck, then it's a duck. And under the law, ⁓ in in many states, there are situations like that when assessing whether someone is truly an independent contractor or whether They're really an employee just being called an independent contractor. And ⁓ from my perspective, that's what's occurring here. Uber and Lyft both exercise extraordinary control over the driver. They hire the driver, they identify rules that the driver are is governed by, they set the fare, they control the amount that ultimately goes to the driver, they select and identify the riders for the driver. They identify what the driver can talk about, should talk about. They set extraordinary requirements on what the driver must do in order to keep driving for Uber andor Lyft. And in my view, that meets most states' definition of a statutory employer. But since Uber and Lyft don't want to pay benefits, they don't want to pay taxes, and they surely don't want to be held responsible for the actions of drivers. Uber and Lyft will fight vehemently that the drivers are not their employees.
speaker-1: And I think it's interesting, and these are super important cases for the public to hear about because Uber is holding itself out to the public as the employer. And they are giving the impression in an Uber that you're dra that your ride is safe and you're being tracked, but none of that is actually true in the long run.
speaker-0: It is interesting to look at what Uber's public statements are. And if you go to their published safety report and you go to their website and you go to their advertisements that talk about, you know, initially when Uber came out, they they had advertisements saying that they were everyone's private driver. And then you get into litigation. In fact, they trademarked everyone's private driver at one point, and then they let the trademark expire because They realized they didn't want to be the driver. They wanna just introduce you to the driver and like it's a dating app or something. But it's it's not a dating app. ⁓
speaker-1: You don't get to take your driver.
speaker-0: That's right. You don't get to pick your driver. You have no idea who your driver is. You don't know what their background is. In a dating app, you have some control, but Uber and Lyft don't give you any control. You put your request in for a ride and they give you the driver. And you know nothing about them other than potentially their rating, which gets into a whole nother issue.
speaker-1: So I want to look at the converse really quickly, and then we're going to get off generalizations because this case is a really disturbing case. But just in the converse, we get a lot of referral requests from actual Uber drivers who have been assaulted by passengers. So what justice can they seek? Because as an attorney who's not doing the Uber work every day, my mind goes to: is it a worker's compensation claim? But Uber's saying they're not employers, so can it be a workers' compensation claim?
speaker-0: Yeah, our firm has worked on cases where riders were assaulted by drivers, and we've worked on cases where drivers were assaulted by riders. We've certainly looked at a number of ones that we decided we didn't want to take. And this is where, you know, the sword has has two sides. So Uber and Lyft are vehement that the drivers are not their employees, so there's not a workers' comp claim involved. And there are issues for lawyers representing drivers to explore about how well does Uber vet their riders? And Uber and Lyft both allow for guest riders. And what does Uber and Lyft know about the guest rider that they are assigning to their driver? And if that guest rider or that rider ⁓ who in some cases had opened an account with fraudulent credit card or gift card and gave a fraudulent name, That can be potentially very dangerous for the driver.
speaker-1: Well, and I'm thinking back, I signed up in the early days of Uber that you were discussing when it was only in New York and I could only use it when I was in New York, but I signed up maybe 15 years ago when it very, very first came out, and they've never checked on me since. They've never done anything. I've just kept the same account. Not always the greatest rating, but nobody's ever checked on me.
speaker-0: Right. And my understanding is that Uber does not and Lyft does not require any type of background check for the riders. Right. And most states in which they operate require them to do at least some type of background check on drivers. But it appears to me that there's no similar requirement for riders. So drivers do not appear to get the same level of protection. That riders do.
speaker-1: So I've teased it a couple of times with all of this as a background. I do want to talk about a specific case. And this case is actually incredibly disturbing and a nightmare for parents. And and that is the trafficking case you just worked on. So can you just walk us through what happened here?
speaker-0: Sure, this is a ongoing current case. And it is a case that although we filed it probably about a year ago, we have not taken any 30 B six depositions yet, meaning we have not been able to get testimony from Uber's corporate representative. And so there's what we believe and allege in the complaint, and there's what we know because we've gotten some documents. And there's what we don't know because we haven't talked to people. So, you know, what I'm saying today is based in ⁓ in part on our beliefs in terms of what we've alleged in the complaint. And what happened in this case is that a young girl, 14 years old, was communicating with a person online through one of the apps where people connect. And that person had an Uber account. And that person ordered a ride for this 14-year-old and arranged for her to be picked up at a closed, abandoned convenience store. Well, abandoned because it was closed. It was one o'clock in the morning. He picked her up at one o'clock in the morning, the driver did, the Uber driver, and apparently did not ask any questions about what are you doing here at one o'clock in the morning and why is this person? having me drive you 30 miles away to him. And so she was transported to this person that she met online and was drugged and assaulted for four days. So this happened even though the parents received no questions from Uber and this girl did not have access to a phone and did not have government ID was not asked to present government ID. That is concerning as a parent that someone can order a ride for a teenager and they be transported in the middle of the night without any apparent questions and without any apparent precautions.
speaker-1: And I wanna put a pin in this because I do wanna talk about this case, but I don't wanna leave anybody hanging, especially when we're talking about kids. How how is this child doing now? I know she escaped. How did she escape? How is she?
speaker-0: Well, she's on the road to recovery. The local police did a very good job of tracking where she could be and finding video from the convenience store that allowed them to identify the car and the license plate and the driver and then reached out to find out where she was taken. And so she was she was rescued. by the police after about four days and is doing the best she can, is going through counseling and trying to move forward with her life.
speaker-1: So what was the driver's response when he was questioned? There was a police search, people reacted pretty immediately. The driver was questioned, what what did he say? What were his reasonings for not thinking through?
speaker-0: Well, that's a very good question. And the driver did not file an answer to the complaint. So ⁓ the driver is not under criminal investigation. The driver continues to drive for Uber, is my understanding. Uber did not terminate his access to the platform. So that's concerning to me.
speaker-1: You know, I've seen a lot of Uber statements in this. What has their response been?
speaker-0: Well, that's a good question. They deny they're responsible. We haven't had a chance to ask them questions lawyer to witness yet. ⁓ we anticipate that'll happen in the next month. So basically the public statements are boy, this is a terrible thing. And we educate our drivers. They don't like to use the word train, because train has significant elements of control. Well we edge they claim that they educate the drivers, but they don't demand the drivers do anything, is my understanding. And that's where gaps in the system apparently exist. And I I don't know that, but I'm looking forward to asking questions about these issues in the near future.
speaker-1: Well, and I think that's part of my question. I just saw something when I was researching this case where they said, Well, we we encourage drivers to cancel rides if they don't have teen accounts. Yep. How about we just don't take them? Why isn't there Uber has policies on everything. As an Uber rider, I know this. They have policies. Why don't they just have a policy that you can't get in a car if you're not on your account?
speaker-0: Well this is just my opinion. My opinion is Uber does not want to have a policy mandating what the drivers must do because they don't want to be seen as exercising control over the driver. Because if they do that, then they're much more likely to be held as a statutory employer, and they're much more likely to be held responsible for the actions of the drivers under the legal theory of respondent superior. And so they're very cagey about the words they use. They use educate. They won't use train. They use ⁓ suggest rather than mandate. Now there's a lot of mandates that Uber has with its drivers if you get an opportunity to look at that relationship. But many of the documents are deemed confidential. But if you look at your own rider agreement with Uber, I expect there will be a lot of shells and mus when it comes to your responsibility as a writer. I canceled my Uber account probably five or six years ago after I read ⁓ Super Pumped by Mike Eis at
speaker-1: So I'm going to encourage every listener to log into their Uber or Lyft or whatever rideshare you use to review that agreement ASAP.
speaker-0: Well there will be a mandatory arbitration provision in Uber and Lyft. ⁓ they don't seek to enforce it usually in sexual assault cases. ⁓ they do seek to enforce it in vehicle or correct cases, which we also work on.
speaker-1: We talk about all of this in the context of Uber picking up teen drivers, but really we're saying underage. Are there any policies or or is there any case law or anything that would indicate Uber would pick somebody up who's under 10 or clearly a child? Do we know anything about that?
speaker-0: I am not aware of any document that specifically prohibits or forbids that. And the challenge with that is that the language that Uber uses publicly is sometimes different than the language Uber uses between it and its drivers. So that's a challenge. I think Uber's hesitance is to not mandate Anything, but they represent to the public that drivers should not do this and there's a gap there.
speaker-1: That's absolutely terrifying because I'm thinking eight and nine year olds are very smart today. They're very smart and they're very tech savvy, more so than some their parents often. And and it's a natural conclusion.
speaker-0: Yeah, this is the challenge. It's not unheard of for there to be fraudulent Uber accounts or Uber accounts in another person's name. Like the PERP in this case did not use his legal name on his Uber account. Wow. How did that happen? I'm not sure yet.
speaker-1: The big question is how does that happen?
speaker-0: Well, yeah, what gaps are there in the system that would allow I'll say Joe Smith to have an account with Robert Jones, for example, as a name. How does that happen? I don't know yet. I have suspicions, but I'll be looking to that because that that does appear to be a troubling concern when people think they can avoid detection, predators like that. type of environment.
speaker-1: And in practice they are avoiding detection. It's not even that they think they can. They are.
speaker-0: It's very troubling. The FBI warned Uber back in two thousand and twenty-two and four US senators in two thousand and twenty-three wrote a letter to Uber CEO about trafficking issues. And my recollection is it was bipartisan, two Republicans and two Democrats. So what is Uber doing? What is Uber's response? And I I don't know. I hope to find out.
speaker-1: Mike, you mentioned a little bit ago that Uber has a different process, ⁓ and we call it mandatory arbitration in their rider agreement, but that they don't usually follow that for sexual assault. So how do the ways they handle car accidents and rider injuries differ from these sexual assault claims?
speaker-0: Yes. So Uber and Lyft are both much more aggressive in mandating that arbitration occur when there's a serious wreck. And Uber will still argue that the drivers are independent contractors, but because the wreck occurs as part of an Uber ride or a Lyft ride, they realize that that argument is not gonna be as effective. ⁓ so they're They are limiting people's access to a jury in serious car wreck cases. So you still want a lawyer that's experienced working against Uber and Lyft. You still want to be able to point out where they may have negligently approved a driver, where they may have negligently retained a driver, where they have been aware potentially about a driver's dangerous behavior in the past and still kept them. So those issues are really important because. The more knowledge the company has, the more preventable ⁓ an event would have been. So when you get into sexual assault, they'll argue that that's outside the scope of any agreement. And that's right, but you want to look and see if you're in a state that allows common carrier claims. ⁓ they can't make that argument as well when it's a car wreck case. So it whether it's a car wreck or a sexual assault or transporting people or things for an illegal purpose. You definitely wanna make sure that your lawyer has screened these cases before, has fought statutory employment cases before, so that you can have someone who knows how to prove control.
speaker-1: Back to this case, where are you in it? And what are some of the challenges you're already seeing? And what are some of the challenges you're anticipating?
speaker-0: So Uber has a playbook that they adhere to in most cases that I've worked on. And when I get involved in a case, they hire a national law firm like Perkins-CUI, and they have lawyers that are very experienced in working on Uber cases. And the first thing that I've seen Uber do is file a motion to dismiss that is a request of the judge. That the case be thrown out before any discovery be done. And ⁓ they do that because even when they lose, they delay the case six months to a year, because these are ⁓ very detailed-oriented motions. And to combat that, we file very detailed complaints, sometimes four or five hundred paragraphs worth, because in a motion to dismiss, the judge has to assume the facts are true. ⁓ unless they're conclusory facts. So you want a lawyer that is going to be very detailed and very thorough in what they allege, because that will help you survive the motion to dismiss that's almost assuredly coming. And then once you do that, you get into discovery. Well, Uber doesn't want to give you any documents without a confidentiality order. And they frequently insist that everything that they want to give you relating to a particular case deals with something proprietary or a trade secret or deals with privacy issues.
speaker-1: Not to interrupt, but why do they get to decide that? Are they doing motions or cause litigation usually means everything comes to light because you screwed up? So why are they getting to make that call?
speaker-0: Well, because they have the money to pay the lawyers to fight that fight. And you're right that Uber will refuse to respond to certain things and under many objections, including relevance, which is defined broadly in Georgia. And ultimately it's up to a judge to rule on whether or not Uber's objections are sustained or overruled. But there's more delay because what the lawyer has to do and what we've done is file motions to compel Uber To order things, to produce documents, to answer questions in writing. And that takes six months generally to a year. And so you have a delay from the motion to dismiss, you have a delay on an argument whether or not these documents are confidential. You have a delay on arguing whether or not Uber has a responsibility to produce any of the documents at all. And then you get into depositions and Uber objections, files, motions for protective order, because Everything that we've asked for is, according to Uber, improper and not detailed enough. And so there's another generally six-month delay involved before a deposition occurs. And so in the case in front of us, we've fought all of those issues. The motion to dismiss, the motion to get documents, the demands about confidentiality, and also the motions to get to take depositions of Uber representatives. And so that all factored in is usually an eighteen month to two year delay before you get any substantive information in your case.
speaker-1: Now let's talk about timing and legal strategy. You were able to file this case pretty quickly after it happened, and sometimes we do see a delay. Can you explain kind of the the why you wanted to file it so quickly and win that race to the courthouse?
speaker-0: Well, it wasn't it wasn't specifically a race to the courthouse. It was an understanding that the case is gonna get delayed a year and a half anyway. And so, yes, there are times where you wait for criminal prosecution to proceed, but that can take two, three, five years, depending on whether there's trials and appeals. So, you know, there's an old saying, Justice delayed is justice denied. And what I need as a lawyer, what What lawyers need is evidence and documentation frequently to prove ⁓ the allegations made in the complaint, and frequently to learn in order to ask other questions. So you get a document, you're like, ⁓ I didn't know this document existed. And you can look at the New York Times, excellent reporting. You know, shout out to Emily Steele. She's just been incredibly tenacious in reporting on Uber. safety issues and uber sexual assault issues. And her reporting has opened up the eyes of, I'll say lawyers for sure. And I imagine judges. I know we've cited New York Times articles in motions to the court in other cases. So this is part of the problem. Like if you know something's gonna take two years to get started, like do you really want to wait two years in order to wait another two years? And That's not the end of the story too, because you have wait for the trial, you have to wait for an appeal. All of those issues, defendants can delay cases ten years. I know I've been through several of those.
speaker-1: Yep. And sometimes victims really lose steam and just want to move on with their lives as well, because that is a long process and discovery is an arduous process.
speaker-0: Uber is very sophisticated in knowing its audience in this litigation. ⁓
speaker-1: You're you're not allowed. We'll talk after this case is done. Now, they have filed a motion to dismiss and some of their defenses were interesting. What were they exactly?
speaker-0: ⁓ I'm going off of memory now to be honest. ⁓ they would say things like he's an independent contractor, those types of things. It was interesting because there was another case filed in North Carolina alleging similar facts. And that came out, that also was helpful. That case was filed about a year before ours. And so I was able to look at that. and get a guideline of you know how this differs from rider driver sexual assault cases. And ⁓ these are the issues. ⁓ the laws vary by state. And unfortunately in the North Carolina case the case was dismissed initially.
speaker-1: No, I like to end some of these parallel justices with some finality or an uplifting note. What's happening with the man who this child was delivered to? Where is he in the criminal justice process?
speaker-0: That that is a good question as well. And as we know, justice does not always act as swiftly as we would like. ⁓ but he is currently in jail awaiting trial.
speaker-1: But he is not currently able to call more Ubers for children or farmers.
speaker-0: I would hope that Uber had cancelled his account. I believe they did, but I I don't have a document in front of me to to confirm.
speaker-1: So Mike, wrapping up all of this and and thinking about kind of the state of play with all of these rideshare apps and technology and the world we're living in, we've got a lot of parents listening. So I wanna know, what do you tell your kids about all of this?
speaker-0: Yeah, ⁓ my kids have grown up in a home where their father sees some of the worst case scenarios. And so they're used to me giving them I'll call it advice. I it's sometimes couched more strongly than that, but but I am the dad of two daughters and a son and they are teenagers. And teenagers today are exposed to so much more than Teens of my era. Blessing and a curse is technology. And ⁓ they need to know that getting into an Uber or a Lyft isn't as safe as I would like it to be as a father. ⁓ I think one of the things that Uber and Lyft have done that has been remarkable has been to persuade us that we're not getting into a car with a stranger. We're getting into a Lyft or an Uber. Because most of us would never get into a car with a stranger. But we've been led to believe that getting into an Uber or a Lyft is okay. And the sad fact is we don't know that to be true. We have also been told don't drink and drive. And I sure I agree with that. But leave the driving to Uber or Lyft. Well, I'm not sure about that. I certainly don't want My girls riding alone. I certainly don't want them riding alone at night. I certainly don't want them riding alone at night and inebriated. I don't believe that is the right thing for my kids. And I don't think that parents know enough about the risk factors to be able to have that kind of conversation with their kids.
speaker-1: This is a tough podcast for me because this is holding up a mirror to my own habits and my own thoughts and preconceived notions, even though I'm in the field and I I know the horror stories. you know, what do you do when you create it? Well, we've been told we're safe to call an Uber and that's the responsible thing.
speaker-0: It's not just what I tell my kids. I tell my my friends and I ask them to tell their wives and their girlfriends and their nieces and their nephews and their cousins and everybody they care about. Because we don't know for the most part, unless you litigate these cases, we don't know the background story. Although you can read a lot if you look on the New York Times and you Google Uber. But you don't know the full story. A lot of the full story is not tellable or not discoverable or hasn't been tellable or discoverable yet or hasn't been heard. Right? I mean it's just trying to peel back this this onion that very smart, very well paid people are being paid to prevent you from peeling it back.
speaker-1: Mike, we we're about out of time, but we always give our guests the last thought, last word, anything you'd like to add before we sign off for the day.
speaker-0: I think that's the practical advice. I I think the last thought is when you are out there today in the world, whether you're in the digital economy or the physical world, you need to be really aware and concerned about who you're with. I think you need to try and educate yourself what the risks are the best you can. And I hate to say that looking at the world from a worst case scenario is is a happy way to live life, but sometimes it does lead you to think, but there's just there's just not enough information out there in my in my opinion that you can really know what you're getting into a lot of times. And so like the takeaway would be ride with friends.
speaker-1: Like it. Well, thank you, Mike, and thank you for all you do for victims. To our listeners, thanks for joining us for another episode of Parallel Justice. As always, again, we will put Mike's contact information in the show notes. So if any of this struck a chord with you today, please check those out and join us for our next episode. Thank you again for joining us for today's conversation. We know the topics discussed can be difficult and maybe emotionally triggering. Support is available at victimconnect.org through call, text, and chat. We encourage you to take time today to learn about your rights and options that are available to you. Building safer communities requires every one of us to take action. Visit victimsofrime.org to learn more and check out the show notes for today's guests' information. This podcast was created by the National Center for Victims of Crime in partnership with our center and affiliate, the National Crime Victim Bar Association, the nation's first professional association of attorneys and expert witnesses dedicated to helping victims seek justice through the civil justice system. To support this podcast, please visit victimsofrime.org/slash donate. Parallel Justice is produced by the National Center for Victims of Crime, written by me. Renee Williams and edited by Michael Folero.
