In Legal Briefly, Joel Rosenblatt writes about lawyers, judges, and the compelling cases happening in San Francisco's courtrooms. This is the first column.
Each week, lawsuits seeking to hold Uber liable for allegations of sexual assault by the company’s drivers filter into San Francisco federal court from across the United States.
The complaints by rideshare passengers have been designated as multi-district litigation, or MDL, meaning they share enough in common to be combined and handled by one court and a single judge. Some weeks, complaints trickle in slowly; in others, they come in bunches. Plaintiffs are often identified only by their initials to protect their identities.
But more than eight months since the MDL was transferred to San Francisco, Uber and lawyers representing rideshare passengers are far apart on a key starting point: figuring out which instances of alleged attack get categorized as sexual assault, and as a result, how many plaintiffs will ultimately join the case.
The difference of opinion was on full display at a hearing Thursday before U.S. Magistrate Judge Lisa Cisneros.
Uber submitted two reports delineating the five most serious categories of sexual assault in its U.S. rideshares, ranging from “Non-Consensual Kissing of a Non-Sexual Body Part” to “Non-Consensual Sexual Penetration.”
In the first period, from 2017 to 2018, Uber said there was a total of 5,981 reported assaults. In the second, from 2019 to 2020, the company disclosed a total of 3,824 assaults. In total, over the four-year period, Uber reported 9,805 assaults.
In its disclosure, Uber also notes that customers took 4.4 billion rideshare trips in that time period, and that the data may “challenge assumptions.” While the media has “almost entirely” portrayed drivers as the alleged offenders, it said, they report almost the same rate of sexual assault as passengers. “Drivers are victims, too,” according to Uber.
But riders are disproportionately the victims of the most violent assaults, according to Uber’s data. In the 2019 to 2020 data, riders were reported as the survivor in 61 percent in all forms of sexual assault, while drivers were the survivor in 39 percent of incidents.
In that same period, riders were the victim in 91 percent of non-consensual sexual penetration assaults, while drivers were reported as survivors in seven percent of assaults in that most serious category.
At the hearing, Beth Wilkins, a lawyer representing the plaintiffs, said that Uber’s categorization of types of assault, and its total of about 10,000 reports, were sorted from approximately 850,000 initial claims.
“So what we're asking for is that other 99 percent of data that was reviewed and audited, behind these reports,” Wilkins told the judge.
The lawyer said a primary concern is that Uber didn’t properly categorize the complaints, and that some were discarded because the company couldn’t contact the rider or driver.
“The fact that they reviewed it, and they decided whether it goes in or out, means there's information there, and that's what we're asking for,” Wilkins told the judge. She said the rideshare plaintiffs want Uber’s incident reports, GPS data, time stamps of the incidents, and any audio and video recordings that Uber has indicated was reviewed as part of the audits.
Michael Shortnacy, a lawyer for Uber, countered that what Wilkins was asking for isn’t underlying data. Instead, he said, Uber’s incident reports originated as “tickets” generated through an intake process. The majority of them didn’t rise to any of the five most serious categories of assault, but fell into 16 other buckets of both safety and non-safety claims — like lost keys, Shortnacy said.
Figuring out which tickets belong in the five most serious categories of assault or “things that might be close to that” was an almost two-year effort, involving dozens of trained employees whose work was cross-checked and audited by third-party firms, he said.
“Data, as the plaintiffs suggest, is not really what that is,” Shortnacy told the judge, adding that they “are seeking to compel us to do something that doesn't exist.”
Cisneros didn’t say when she would rule.
Lawyers representing the plaintiffs say that Uber’s business model is built on the idea of making passengers believe that getting into a stranger’s car is safe, they said in a court filing. To make it profitable, the company has flooded the market with poorly screened drivers, they argue.
Meanwhile, the company has refused to adopt policies such as requiring cameras in drivers’ cars, or using algorithms that “pair drunk women riding late at night only with the most established and trustworthy drivers,” they add.
California passengers suing the company for assault don’t join the MDL but are channeled into a different, though similar, state lawsuit in San Francisco Superior Court, according to Roopal Luhana, an attorney at law firm Chafin Luhana who has been appointed co-lead counsel for the plaintiffs.
The MDL has about 300 plaintiffs so far, a number Luhana said could grow to more than 10,000. Eventually, victims of Uber’s earliest offending drivers, as well as those assaulted since the 2020 report, may seek to be included in the case, she said.
“What we're talking about is incident reports of people telling Uber, ‘My driver touched me, my driver kissed me, you know, my driver did these inappropriate things,’” Wilkins told the judge. “It's the heart of the case: It's what Uber knew, when they knew it, and what they did or did not do with that information.”
Correction: The story has been updated to correctly attribute Roopal Luhana and clarify the potential number of passengers who may join the lawsuit.
