Amazon Appeals Arbitration Ruling in Flex Driver’s Spying Suit

On Tuesday, e-commerce giant Amazon filed a notice of appeal with the Ninth Circuit, signifying its intent to challenge a mid-September decision denying the company’s arbitration bid. The plaintiff in the Southern District of California suit, an Inc. independent contractor and crowdsourced delivery driver or “Flex Driver,” accused the company of illegally monitoring closed Facebook groups where approximately 800 Flex Program participants discussed work-related issues.

In particular, the plaintiffs alleged that Amazon created an “Advocacy Operations Social Listening Team” to track and intercept posts to the closed groups in real time using automated tools. This happened, the complaint said, without the plaintiff or putative class’s consent.

The lawsuit stated claims for violations of the federal Wiretap Act, the Stored Communications Act, and on behalf of a California subclass, violations of the California Invasion of Privacy Act and constitutional privacy protections. For the alleged harm, the plaintiff requested declaratory relief, damages, including punitive damages, restitution, injunctive relief, and attorneys’ fees and costs. 

In last month’s contested ruling, the court determined that per circuit precedent, the plaintiff was exempt from the Federal Arbitration Act’s (FAA) coverage provisions. The opinion explained that though the FAA contains a number of enforcement mechanisms for private parties to compel arbitration pursuant to a valid arbitration agreement, it exempts several types of employment contracts.

The Ninth Circuit previously found Amazon Flex Drivers are engaged in interstate commerce, one of several types of employment contracts beyond the reach of the FAA. As such, the San Diego, California judge declined to compel arbitration. The court also ruled that the plaintiff’s allegations fall outside the arbitration provision because they do not arise from the applicable terms of service, the plaintiff’s participation in the Flex Program, or his performance of services.

The plaintiff is represented by Bursor & Fisher P.A. and Amazon by Morgan, Lewis & Bockius.