Court Denies Proposed Temporary Restraining Order, Uber Can Continue Prop 22 Campaign

On Wednesday, Judge Richard B. Ulmer Jr. of the California State Superior Court in San Francisco County issued an order denying the Uber driver plaintiffs’ ex parte application for a temporary restraining order against Uber for its campaign to urge Uber drivers to vote for its ballot measure, Proposition 22.

On Oct. 22, the plaintiffs filed a putative class action against Uber claiming that the company is conducting an unlawful campaign that is coercing drivers to support Proposition 22 in California, in order to exempt Uber from California Assembly Bill 5 (AB-5), which would require Uber to reclassify its drivers as employees, not independent contractors.

The court noted that the application for a temporary restraining order came “six days before the election that will decide Prop 22” to “enjoin all ‘coercive’ campaigning on Uber’s app.” The court stated that “the request for extraordinary injunctive relief is belated” because Uber began this campaign in August. The judge asserted that “[w]hy plaintiffs waited months to sue and seek injunctive relief is not explained, and such delay casts doubt on their case.” As a result, the judge argued that the “delay in seeking injunctive relief can be the basis for its denial.”

Furthermore, Judge Ulmer Jr. declared that both prongs of the two-prong test to determine if preliminary injunction should be granted are in Uber’s favor. The court began with interm harm, which the plaintiffs asserted is Uber’s “political coercion.” The court found that in a few days “[o]n November 3, Californians will vote Proposition 22 up or down, Uber’s campaign will of necessity end and thus any TRO enjoining Pop 22 campaigning would be effectively moot.” Additionally, the judge stated that the plaintiffs do not provide any examples of Uber drivers who were “in any way punished for not cooperating with the Proposition 22 campaign or for advocating against it” and that drivers who did complain about Uber’s campaign “claim minimal change to their behavior.” As a result, the court stated that there is no reason to “believe that this lack of harm will change during the six days Uber’s campaign continues.”

Uber alleged that it will be harmed by an injunction due to impacts on its right to free speech. The court averred that a few features of the proposed temporary restraining order “are particularly repugnant to free speech rights.” The court noted that this temporary restraining order would infringe free speech, particularly political speech, and thus is a “prior restraint” and “the most serious and the least tolerable infringement on First Amendment Rights.” Moreover, the court stated that the proposed TRO would “require Uber to disseminate plaintiffs’ messages – e.g., to ‘inform’ drivers that they have ‘the right to vote…against Proposition 22 or not vote at all.’” However, the court felt that this would “require even more immediate and urgent grounds than the compelled silence of a prior restraint.” While the plaintiffs argued that Uber’s communication should not have First Amendment protection because it is “false and misleading,” the judge noted that the Supreme Court has precedent that “truth or falsity of a statement on a public issue is irrelevant to the question whether it should be repressed in advance of publication.” Therefore, the court found that the proposed TRO would wrongly hinder Uber’s First Amendment rights.

The court added that the second prong, the likelihood to prevail on the merits, weighs in Uber’s favor because “it is unlikely that plaintiffs will ultimately prevail on the merits” for the aforementioned reasons.

Uber is represented by Gibson, Dunn & Crutcher.