Welcome back for another week of What's Next, where we report on the intersection of law and technology. This week, we look at how the world is reacting to mass arbitration. Plus, Congress considers another federal privacy bill. And the Ninth Circuit prepares to pare down the millions of plaintiffs in the class action against Qualcomm. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

Judge William Alsup, U.S. District Court for the Northern District of California

Mass Attacks on Arbitrations

A legal strategy of filing hordes of individual arbitration claims against a company at once—essentially turning a company's own arbitration agreements against it—is being tested in the U.S. District Court for the Northern District of California. Around 6,000 DoorDash couriers are pursuing mass arbitration against the third-party delivery company in two separate actions over employee misclassification claims. Whether DoorDash folds under the pressure of mounting arbitration fees could determine mass arbitration's fate as a failed experiment or a new litigation tactic.

Chicago plaintiffs' firm Keller Lenkner asked for a temporary restraining order against DoorDash after it required couriers to accept the terms of a new arbitration agreement in the app before picking up another gig. The new click-through agreement was rolled out one day after the American Arbitration Association closed out thousands of cases against DoorDash for failure to pay $4.275 million in filing fees. The updated contracts are governed by the International Institute for Conflict Prevention & Resolution, which recently released guidelines dictating it will select 10 "test" arbitrations when companies face more than 30 individual claims from employees over the same issue, and put the rest on hold.

In the end, Keller Lenkner withdrew its TRO motion after Gibson Dunn & Crutcher's James Fogelman clarified that couriers who opted out of the agreement could still bring their claims before AAA. Instead, U.S. District Judge William Alsup of the Northern District called DoorDash's attempt to "squirm out" of its own arbitration agreements "poetic justice," and granted expedited discovery to the parties.