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Ninth Circuit:
Amazon Drivers Can’t Be Forced to Arbitrate Spying Claims
Pleading Alleges That Amazon Peeks at Private Postings on Facebooks; Such Conduct, If It Is Occurring, Is
Outside the Scope of an Arbitration Provision in a 2016 ‘Terms of Service’ Agreement, Majority Says
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals declared yesterday, in a 2-1 decision, that that persons who deliver goods for Amazon using their own vehicles are not compelled to arbitrate their putative class action for invasion of privacy in which it is claimed that that the technology company unlawfully accessed their private posts on Facebook.
Ninth Circuit Senior Judge Mary M. Schroeder wrote the majority opinion. It declares that the arbitration clause in a 2016 “terms of service” (“TOS”) is inapplicable because the Facebook posts are not made as part of the services that are performed by the “flex” drivers and because Amazon failed to show actual receipt by drivers of an emailed 2019 TOS which renders arbitrability subject to arbitration.
Circuit Judge Michelle T. Friedland signed Schroeder’s opinion. Circuit Judge Susan P. Graber agreed with the majority only to the extent that it found there is jurisdiction over the appeal, but otherwise dissented, maintaining that under the 2016 TOS, the dispute must be arbitrated.
According to the first amended complaint (“FAC”):
“In addition to its own drivers, Amazon contracts out to over 800 service delivery partners. These contract drivers are referred to as Flex Drivers.”
Amazon defines “Amazon Flex” in these words:
“It’s simple: You use your own vehicle to deliver packages for Amazon as a way of earning extra money to move you closer to your goals.”
Wording of Provision
The 2016 TOS provides:
“SUBJECT TO YOUR RIGHT TO OPT OUT OF ARBITRATION. THE PARTIES WILL RESOLVE BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT, ANY DISPUTE OR CLAIM, WHETHER BASED ON CONTRACT, COMMON LAW, OR STATUTE, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING TERMINATION OF THIS AGREEMENT, TO YOUR PARTICIPATION IN THE PROGRAM OR TO YOUR PERFORMANCE OF SERVICES.”
On Sept. 15, 2021, District Court Judge William Q. Hayes of the Southern District of California denied Amazon’s motion to compel arbitration of the action brought by driver Drickey Jackson. He said that “Amazon fails to meet its burden to demonstrate mutual assent to the 2019 TOS” and that the arbitration provision in the 2016 TOS is inapplicable.
He explained:
“The claims alleged in the FAC arise from Amazon’s alleged intrusion into Plaintiff’s private Facebook groups. The alleged wrongs ‘exist independently’ of Plaintiff’s employment relationship with Amazon….The alleged wrongs do not arise out of or relate to the 2016 TOS, Plaintiff’s participation in the Flex program, or Plaintiff’s performance of services.”
Agreeing, Schroeder wrote:
“This dispute… does not touch on any matters related to the contract that would fall within the arbitration clause.”
Graber’s Opinion
In her partial dissent, Graber expressed this view:
“…Defendant allegedly spied on Plaintiff solely because of Plaintiff’s independent contractor relationship with Defendant and in order to defeat, preempt, or combat work-related activities by Plaintiff and other Flex drivers. Crucially, the only legitimate way to gain access to the closed Facebook group—the source of the alleged privacy violations—is to be an Amazon Flex driver. Viewed in that light, the complaint clearly alleges ‘disputes that have their roots in the relationship between the parties which was created by the contract.”… Accordingly, the arbitration clause applies.”
She commented:
“My disagreement with the majority opinion on that legal question should not be mistaken for approval of the Defendant’s alleged actions. The alleged conduct, if proved, is repellant and may be illegal or tortious. But that assessment cannot alter our decision about the parties’ chosen forum for resolving their dispute.”
2019 TOS
Amazon contends that terms in the 2019 TOS were impliedly accepted by Jackson, reasoning:
“Amazon sent the 2019 TOS to Plaintiff via email on October 3, 2019, and afterward he performed additional Flex deliveries. Specifically, Plaintiff scheduled and completed six scheduled blocks of deliveries in March and April of 2020.”
Schroeder responded that “if Flex drivers did not receive notice of the revised TOS, the fact that they continued working and using the Amazon Flex app could not demonstrate assent.”
She said that Amazon “did not produce a copy of the 2019 email notifying drivers of the new TOS, nor did it provide any evidence that Jackson received such an email.”
The judge pointed out:
“Under California law and generally applicable principles of contract law, the burden is on Amazon as the party seeking arbitration to show that it provided notice of a new TOS and that there was mutual assent to the contractual agreement to arbitrate….Although we have experienced a technological revolution in the way parties communicate, technological innovation has not altered these fundamental principles of contract formation.”
The case is Jackson v. Amazon.Com, Inc., 21-56107.
Allegations of Pleading
Jackson seeks to represent all flex drivers in the United States and a subclass of drivers in California. The FAC avers (with paragraph numbers omitted):
“An Amazon document called ‘social media monitoring’ lists forty-three closed Facebook groups and pages run by Flex Drivers in different cities in the United States that Amazon monitors. The document states that ‘[t]he following social forums mentioned in the table are to be monitored during the Social media process.’
“Defendant continued that this document came from a sophisticated and secret program that surveils dozens of private Facebook groups set up by workers. Defendant later confirmed that this program is part of its Orwellian-sounding Advocacy Operations Social Listening Team….Amazon recruits members of the Advocacy Operations from individuals who have backgrounds and experience in [signals intelligence and communications intelligence]. The purpose of this program is to monitor information about planned strikes or protests, unionizing efforts, warehouse conditions, pay, benefits, and whether workers have been approached by researchers examining Amazon’s workforce.
“Posts are monitored and/or intercepted in real time.”
The complaint seeks certification of the classes and compensatory, punitive, and statutory damages.
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