Uber offices in the Fells Point neighborhood of Baltimore. May 3, 2018. Photo: Diego M. Radzinschi/ALM

Attorneys for Uber Technologies at Morgan, Lewis & Bockius say a plaintiffs firm suing the company in California federal court should be disqualified because a lawyer on the team formerly worked closely with the ride-hailing giant as the top appellate counsel at the U.S. Chamber of Commerce.

Uber's attorneys contend the plaintiffs lawyer, Warren Postman, who left the U.S. Chamber Litigation Center this summer to join the firm Keller Lenkner, has a conflict of interest and that he and his firm should be barred from participating in the lawsuit.

Postman is on the Keller Lenkner team representing Diva Limousine in a suit against Uber in the U.S. District Court for the Northern District of California. The law firm Robins Kaplan is also serving as counsel for the plaintiffs, who allege Uber's classification of its drivers as contractors, and not employees, violates state labor law in the wake of a California Supreme Court ruling in April that could upend how gig companies classify their workforce.

Uber's lawyers allege Postman, in his previous role at the Chamber, had access to “shared legal analysis and litigation strategy” involving the ride-hailing company, which has fought worker-classification suits in courts across the country. The U.S. Chamber has backed Uber's claims in friend-of-the-court briefs and, in one instance, was a co-plaintiff.

“In hundreds of emails, regularly scheduled teleconferences, and face-to-face meetings, Uber shared legal analysis and litigation strategy—core attorney work product—with Mr. Postman and the Chamber, including on the driver classification issue,” Morgan Lewis partner Brian Rocca in San Francisco wrote in court papers filed Wednesday.

Rocca continued: “Given its long professional relationship with Mr. Postman, Uber does not bring this motion lightly. Uber is rightfully concerned about Mr. Postman's prior extensive access to privileged and confidential information from Uber, which could now be put to use in litigation against Uber. The Chamber is similarly concerned.”

Travis Lenkner

Travis Lenkner, a founding partner of Keller Lenkner, said Thursday the firm will respond to the court next week to the disqualification motion. The firm plans to argue, in part, that a lawsuit Postman worked on with Uber in Seattle as a co-counsel was unrelated to the issues presented in Diva Limousine's case in California. Lenkner said Uber's arguments fall “well short of the standard for disqualification.”

“Uber's disqualification motion is wrong on the facts and wrong on the law,” Lenkner said. “All the lawyers at our firm, including Warren, take our ethical obligations very seriously. This is nothing more than an Uber-concocted sideshow to distract from its misclassification of its drivers and the liability that it faces in the litigation.”

Uber and other gig economy companies are facing enormous pressure following a California Supreme Court ruling in April that will force companies to apply a stricter test in order to classify their workers as contractors and not employees. Management-side lawyers said the ruling in Dynamex Operations West v. Superior Court had the potential to upend the business model in the gig economy that eschews employee-status for independent contractors.

The plaintiffs attorneys for Diva Limousine filed a motion for partial summary judgment on Oct. 5 asking the judge to decide whether Uber's drivers should be classified as employees, rather than independent contractors. “The California Supreme Court recently held that a transportation worker is an employee unless the hiring entity can show that the worker 'performs work that is outside the usual course of the hiring entity's business,'” Diva's lawyers wrote. “Uber cannot make that showing.”

Uber's lawyers on Wednesday filed various declarations that included statements from attorneys who worked with Postman when he was at the Chamber. Postman, a former clerk to retired Justice David Souter, had held various litigation roles there since 2014. He formerly was an associate at Jones Day.

Jason Allen, an in-house lawyer at Uber, said the company's attorneys “regularly exchanged confidential attorney-client privileged information and attorney work product with Mr. Postman, trusting that he would neither use it against Uber or its affiliates nor later sue Uber or its affiliates on the very subject matters on which we worked together.”

Allen, Uber's legal director for litigation, said in a declaration: “My colleagues at Uber and I were, and remain, shocked that Mr. Postman would violate our trust and seek to exploit confidences, learned under a common interest agreement, concerning Uber's business model, its legal strategies, and the relationship it and its subsidiaries have with drivers.”

Diva Limousine's case is being closely watched by labor and employment attorneys. The complaint alleged Uber is saving $500 million annually by classifying its workers as independent contractors.

“Each day that Uber misclassifies its primary workforce, it steals wages from drivers earning below a living wage and gains millions of dollars in unlawful cost savings. Uber uses these savings to price its services far below their cost,” the plaintiffs lawyers said in the complaint.

The next hearing in the case is scheduled for Nov. 15 in front of U.S. District Judge Edward Chen of the Northern District of California.

Read more:

US Chamber's Top Appellate Lawyer Joins Plaintiff-Side Litigation Boutique

Plaintiff Asks Judge to Classify Uber Drivers as Employees Under 'Dynamex'

Uber May Be Saving $500M a Year in California by Misclassifying Drivers, Suit Says

Supremes Embrace Worker-Friendly Classification. Why This Matters to Gig Companies