DoorDash (Courtesy photo)

Lawyers who represent more than 2,000 DoorDash delivery workers pursuing individual arbitration against the company are crying foul over moves the company recently made, which they claim frustrate their clients' ability to move forward with worker misclassification claims. The lawyers at Keller Lenkner also claim that changes made by DoorDash and its counsel at Gibson, Dunn & Crutcher to push a new arbitration agreement directly to their "Dasher" clients via the delivery app skirted ethical rules against communicating directly with a represented party.

"They know our clients to be represented by counsel, they know our clients are pursuing arbitration against DoorDash, and yet they are communicating directly with them," via the app, said Keller Lenkner' Travis Lenkner, calling the move a "shocking breach of the ethical rules."

Gibson Dunn's Joshua Lipshutz declined to comment, but this isn't the first time lawyers at Keller Lenkner and Gibson Dunn have tussled over batches of arbitration claims.

Keller Lenkner previously went to court to compel arbitration on behalf of 5,257 couriers who work for DoorDash rival Postmates. In that case, Gibson Dunn labeled Keller Lenkner's tactics "a shakedown" and claimed that the firm attempts to use the case administration fee charged by arbitrators in individuals cases to leverage outsize settlements. In the footnote of an order compelling arbitration in the case, U.S. District Judge Saundra Brown Armstrong of the Northern District of California wrote "the possibility that Postmates may now be required to submit a sizeable arbitration fee in response to each individual arbitration demand is a direct result of the mandatory arbitration clause and class action waiver that Postmates has imposed upon each of its couriers."

In the newly filed DoorDash action, the Keller Lenkner lawyers are seeking to compel arbitration on behalf of 2,236 DoorDash delivery workers on whose behalf the firm had served demands for arbitration on DoorDash with the American Arbitration Association in late August. The firm claims that AAA found that they all met its requirements to proceed with arbitration, DoorDash declined to pay its portion of the arbitration fees—$1,900 per individual claimant. The Keller Lenkner lawyers claim that they and their co-counsel in the arbitrations at Quinn Emanuel Urquhart & Sullivan are prepared to move forward with the individual cases seeking to show that DoorDash misclassifies delivery workers as independent contractors and therefore fails to pay them required minimum wage, overtime and for business reimbursements.

"DoorDash's actions make clear that it does not actually support the right of a meaningful number of Dashers to pursue arbitration; rather, it is willing to comply with the Mutual Arbitration Provision it drafted only so long as a small number of Dashers invoke it," the Keller Lenkner lawyers wrote in their petition to compel arbitration filed Friday in U.S. District Court for the Northern District of California. "That is not a choice DoorDash's contract allows it to make."

The Keller Lenkner lawyers further claim that the day after AAA administratively closed the pending arbitrations due to DoorDash's failure to pay, the company began pushing out a new arbitration agreement incorporating the recently developed mass claims protocol of the International Institute for Conflict Prevention and Resolution, or CPR, a separate arbitration organization. CPR's new "Employment-Related Mass-Claims Protocol "includes a procedure to randomly choose 10 bellwether cases in matters where many individual employees bring the same sorts of claims against an employer. The Keller Lenkner lawyers complain Doordash's new agreement incorporated the new protocol just three days after it was announced, and Doordash couriers must accept the agreement prior to taking on new delivery assignments.

"Doordash and its counsel forced a new arbitration agreement directly on our clients on a Saturday the day after AAA administratively closed their files due to Doordash's non-payment," Lenker said. "That timing is at best suspicious."

"It's an obvious attempt by DoorDash having imposed a class action and group action bar to essentially force a group procedure where Doordash controls the timing and the outcome," Lenkner said.

The Keller Lenkner lawyers are seeking to get a federal judge to issue a temporary injunction barring DoorDash and its lawyers from "forcing Petitioners to sign new arbitration agreements pending a decision on the permissibility of that conduct by an arbitrator." In the alternative, they're asking that DoorDash be barred from forcing workers to sign the new agreements until the court decides its motion to compel arbitration under the AAA rules.

The DoorDash dispute comes as 12 states attorneys general, including California Attorney General Xavier Becerra, announced last week that they were investigating the potential harms of mandatory arbitration clauses for low wage workers, including asking AAA and JAMS about instances where employers require arbitration but refuse to pay required fees for cases to move forward. California Gov. Gavin Newsom earlier this year signed a new state law making non-payment of fees by the drafting party of an arbitration agreement a material breach and potentially sanctionable.