From JDSupra, Richard Reibstein discusses a recent decision by the 9th Circuit Cout of Appeals that said privacy and wiretapping claims for activity outside of the Terms of Service that the independent contractor drivers agreed to. Richard writes:
The U.S. Court of Appeals for the Ninth Circuit affirmed a California federal district court’s order denying Amazon.com’s motion to compel arbitration of a proposed class action lawsuit asserting wiretapping and privacy claims. The court ruled that such claims fell outside the scope of the arbitration clause contained in the drivers’ Terms of Service Agreements. The named plaintiff, a driver for Amazon’s delivery program known as Amazon Flex, sought to represent a class of about 800 Flex drivers claiming damages and injunctive relief for alleged privacy violations under state and federal laws. No contractual violations were alleged. Plaintiff alleged that Amazon monitored and wiretapped the drivers’ conversations when they communicated during off hours in closed Facebook groups. The court concluded that “the controversy in this case is ultimately not about any characteristics or conduct of class members, but whether Amazon is indeed liable for wiretapping and invasion of privacy….This dispute therefore does not touch on any matters related to the contract that would fall within the arbitration clause.” The court also rejected Amazon’s argument that it should apply a later version of the Flex drivers’ agreement that provided for an arbitrator to decide whether the dispute is covered by the arbitration clause. The court held that Amazon failed to provide evidence sufficient to demonstrate notice to the Flex drivers of the revised agreement and their assent to it. Jackson v. Amazon.com, Inc., No. 21-56107 (9th Cir. Apr. 19, 2023).