DoorDash

Gibson, Dunn & Crutcher denied allegations it helped draft new mass arbitration rules for an arbitration venue related to thousands of DoorDash couriers, and accused opposing counsel of failing to properly vet plaintiffs in a filing Thursday.

Chicago plaintiffs firm Keller Lenkner is seeking to compel individual arbitration for more than 6,000 DoorDash contractors in the U.S. District Court for the Northern District of California.

One day after the American Arbitration Association closed out thousands of cases over DoorDash's failure to pay filing fees, the third-party delivery company rolled out an updated arbitration agreement through its app. The agreement is now governed by the International Institute for Conflict Prevention & Resolution, an arbitration venue with new rules for mass arbitration crafted by Gibson Dunn, plaintiffs attorneys alleged.

Gibson Dunn admitted to submitting input for the rules, which funnel mass arbitrations into 10 "test" cases when companies face more than 30 individual claims on the same issue from employees, but denied anything "nefarious" about the approximately six substantive phone calls with CPR representatives on mass arbitration rulemaking.

"As CPR has stated, 'Gibson Dunn did not write the terms of the Protocol. Rather, … it was CPR that conceived of, wrote the terms of, and controlled the development of the Protocol,'" wrote  Gibson Dunn's Joshua Lipshutz in a letter brief Thursday. "Gibson Dunn made some suggestions to CPR for potential changes to the draft protocol, based on Gibson Dunn's experience with mass arbitration. But CPR unilaterally decided which suggestions to accept or reject, and finalized the protocol on November 4, 2019."

Five days later, DoorDash pushed out its new arbitration agreement naming CPR as its arbitration venue, which couriers had to agree to in order to pick up new tasks. In a brief objecting to the breadth of plaintiffs' subpoenas, CPR said the rules were spurred by Gibson Dunn's inquiry into mass arbitration with the dispute resolution provider over the DoorDash cases.

"Gibson Dunn expressed concern over the current options for administration of a mass of claims and the fee structures being imposed and asked whether CPR could offer alternative fee solutions," wrote Morgan, Lewis & Bockius lawyers Kimberley Lunetta and Andrew Frederick, representing CPR. "CPR was eager to innovate in the area of mass claims and, rather than just focusing on alternative fees, took the opportunity presented to lend its expertise and resources to think anew and find an efficient and fair process for resolving these claims for all parties involved."

Gibson Dunn said the attorneys "were right to explore mass-arbitration solutions with CPR" since expedited discovery revealed that, out of 6,250 petitions, "DoorDash has no record of 142 of those people in DoorDash's database, 39 people appear in the database but never completed the application process, and 263 people completed applications but never used the DoorDash app to perform a single delivery." The pricetag to pursue arbitration for the 444 "entirely frivolous claims" would have been $843,600, Lipshutz wrote.

The law firm said that CPR is not the only ADR provider it consulted with on mass arbitration. Lipshutz said Gibson Dunn discussed mass arbitration procedures with AAA and JAMS over the past several months. In November, AAA rolled out discounted and deferred filing fees for 25 or more simultaneous claims, he wrote.

Keller Lenkner's Warren Postman argued that its request for information on how stakeholder input was incorporated into the rules was not overly broad since CPR relies on "unspecified involvement of other unspecified parties" when describing how the protocols came about.

"In light of CPR's admission that its rules were created for DoorDash, at DoorDash's request, and with the input of DoorDash and its lawyers, the extent to which CPR incorporated suggestions from other stakeholders, the identity of those stakeholders, and how CPR weighed the input of those stakeholders against DoorDash's interests are directly relevant to whether the Court should conclude that CPR is a neutral forum," Postman wrote in a Dec. 13 brief.

The briefs come after U.S. District Judge William Alsup of the the Northern District of California ordered expedited discovery in the case, following plaintiffs' claims that Doordash's updated arbitration agreement is an attempt to upend their pursuit of individual arbitration against the company. The judge rebuked Gibson Dunn, and said there was a sense of "poetic justice" in the firm trying to get out of its own arbitration agreements.

Travis Lenkner of Keller Lenkner said that rather than face his clients' claims, DoorDash and Gibson Dunn searched for an arbitrator that would rewrite the rules to their advantage. "It should go without saying that a defendant can't work behind the scenes with a 'neutral forum' to change the rules in the middle of a dispute," Lenkner said. "Sadly, this is just another example of the lengths to which companies will go to try to escape their own arbitration clauses."

Gibson Dunn's Lipshutz did not respond to a request for comment.