San Francisco Superior Court Judge Richard B. Ulmer said the proposed order not only raises issues of prior restraint, but also calls for Uber to disseminate the plaintiffs' political message through the app informing drivers of their right to vote against Proposition 22 or not to vote at all.
"This compelled political speech would 'require even more immediate and urgent grounds' than the compelled silence of a proper restraint," the judge wrote, citing the U.S. Supreme Court's 2018 ruling in Janus v. American Federation of State, County, and Municipal Employees
, which held that public-sector unions can't collect agency fees from nonunion workers because it violates freedom of speech.Two drivers and two nonprofits filed the proposed class action on Oct. 22, accusing Uber of waging an "aggressive" and "threatening" messaging campaign on the app its drivers must access in order to work.
The messages urged drivers to support Proposition 22, which would exempt Uber and other gig employers from a newly enacted state law that makes it tougher to label workers as independent contractors as opposed to employees.
Independent contractors aren't entitled to many legal protections and benefits that are mandated for employees, such as minimum wages, overtime pay, paid sick time and family leave, and the right to unionize.
The case spent a few days in federal court before it was remanded back to state court on Tuesday when U.S. District Judge Jon S. Tigar ruled Uber hadn't shown enough money was at stake to keep the case in a federal venue.
The drivers moved in federal court Monday for the temporary restraining order that would prevent Uber from sending the messages through its driver app and from using drivers' responses to either reward or punish them.
Judge UImer said, among other things, that the plaintiffs harmed their request by waiting too late to file a suit, noting that the complaint alleges Uber's messaging campaign began in August.
"Why plaintiffs waited months to sue and seek injunctive relief is not explained, and such delay casts doubt on their case," the judge said.
Judge UImer also said the drivers failed to allege any harm that was coming from Uber's campaign, and said they had not argued any drivers have been punished for not supporting Proposition 22 or advocating against it.
"No reason exists to believe this lack of harm will change during the six days Uber's campaign continues," the judge said, noting that the election is set for Tuesday.
"We are pleased the court rejected this baseless effort to obtain a prior restraint on the eve of an election that would have stifled speech and debate, in blatant violation of the First Amendment," Theane Evangelis of Gibson Dunn & Crutcher LLP, who represents Uber, told Law360 in an email Wednesday.
An Uber spokesperson did not immediately comment on Wednesday's order,
David A. Lowe of Rudy Exelrod Zieff & Lowe LLP, who represents the drivers, told Law360 in an email Thursday that in response to the TRO request, Uber on Wednesday "told the court that it has stopped issuing all polling on the app. With a nod to its illegal conduct, Uber still refuses to assure its drivers it will not retaliate based on how they vote, citing that this would infringe on their right to free speech."
Lowe added, "This decision seems to say that Uber's First Amendment right is more important than that of their drivers."
The drivers are represented by David A. Lowe of Rudy Exelrod Zieff & Lowe LLP.
Uber and the other defendants are represented by Theane Evangelis and Theodore J. Boutrous Jr. of Gibson Dunn & Crutcher LLP.
The case is Valdez et al. v. Uber Technologies Inc. et al., case number GCG-20-587266, in the Superior Court of the State of California, County of San Francisco.
--Additional reporting by Amanda Ottaway. Editing by Michael Watanabe.
Update: This story has been updated with a comment from the drivers' counsel.
For a reprint of this article, please contact reprints@law360.com.
