This is even true in public transportation, where it usually does. Just look at the non-emergency medical transportation (NEMT) sector (see https://transalt.com/article/nemt-brokers-motivecare-and-mtm-stealing-hundred-of-billions-from-our-healthcare-system/ and https://transalt.com/article/responses-to-declining-ridership-part-1-contracting-independent-contractors-and-brokers/), where two mega-brokers – Motivcare (formerly LogistiCare) and Veyo (formally MTM) — steal between $200B and $300B a year (my conservative estimate) from our healthcare system.
The corruption of Uber and Lyft is comparable but not as nuanced. And because Uber and Lyft are not “middlemen,” like brokers, the complexity of filing against them does not frighten away so many attorneys. Plus, the typical lazy lawyer too cheap and lazy to find and converse with an expert who understands demand-responsive operations (like NEMT service) does not face the same complexity in cases against TNCs. At the same time, attorneys facing Uber and Lyft still focus on driver error – not the institutional structure that creates the dangerous operating environment within which Uber and Lyft passengers travel. Peiffer Wolf’s class action lawsuit is different than most lawsuits in that way.
While I have been a visible and outspoken proponent of eliminating TNC’s from the public transportation landscape since at least 2014 (they were barely visible before then), no individual or institution has been able or willing to stop them. They just grow and grow, steal and sell, and facilitate mayhem. Last year, in NYC, newly-elected Mayor Eric Adams finally put a cap on the number of Ubers in the City, technically limiting them to 60,000 after former Mayor DeBlasio began letting them into the City in 2014 – without charging them the then-going-rate for taxi medallions (about $1.1M), a sum what would have deprived the City coffers of close to $70B if most of them had paid for these medallions (few would have).
This free entry was enough to decimate the City’s taxi industry – currently including about 13,500 vehicles – about the same as there were when the 60,000 unneeded vehicles began entering the City. All the taxi drivers and owners lost a fortune since the free entry of Uber and Lyft devalued the medallions to a fraction of their former self, economically destroying the lives of tens of thousands of owners, drivers and their families in the process.
In recent years, the blight of “TNCs” (transportation network companies, like Uber and Lyft) has penetrated the schoolbus industry (ZUM provides this service in Los Angeles and San Francisco, for starters), the limousine industry (obviously), the motorcoach industry, the transit industry, the paratransit sector and even the disturbingly-corrupt non-emergency medical transportation (NEMT) sector. But the motorcoach industry will pay for its apathy as Uber and Lyft dive into the opportunities to replace short- and medium-distance airline trips that the motorcoach industry has shown virtually no interest in.
Some of these sectors were so duped that, as their ridership has been peeled away by Uber and Lyft, the dummkopfs in certain competing sectors actually supported them: In New York City, and others, one can purchase transit passes through one’s Uber app – a doorway to a mode split away from transit. (NYC contributed to this problem by closing most of the ticket kiosks in the subway; one cannot obtain most discount passes from the often-broken robots that masquerade as ticket booths.) So increasingly, transit riders must purchase passes through their Uber app. (This may be a good thing for certain riders since one cannot purchase certain discounted passes – like those for elderly and disabled riders — from the robot machines. Of course, many of these riders don’t have the digital skills to purchase passes from an app. (At the bus level, at least, the drivers who hate and loathe these passengers must be thrilled by these constraints.)
Total Crime
Very few corporate criminals are able to commit both strategic and tactical crimes – for example regular institutional crimes as well as daily crimes at the operating level. Uber and Lyft effortlessly commit both – with complete impunity, largely because of the failure of plaintiffs’ lawyers to hold them accountable:
At the institutional level, these criminals steal the personal information from their passengers’ social media accounts – and also steal this information from everyone else in their passengers’ social media networks, i.e., the friends, relatives and strangers with whom their passengers communicate – information which they then sell to their colleagues in Silicon Valley and, more than likely, to companies all over the world. Further at the institutional level, these criminals do not pay “medallion” fees or other steep fees like those with which their taxi counterparts are gouged in most U.S. cities.
At the operating level, in exchange to creaming off 20 percent of the fares immediately – effectively for doing nothing, including not providing the vehicles, fuel or maintenance associated with similar modes (i.e., taxis and limousines) — Uber and Lyft also provide no dispatchers, no management, no monitoring, little or no driver training, skeletal hiring (including no diametric fingerprinting), no video surveillance, or anything else above the driver level other than marketing. In other words, at the management level, they provide nothing. Further, Uber’s policy is to not report criminal activity to law enforcement authorities. And, to boot, Uber charges passengers a $1.00/trip “safe ride fee” – which Uber does not even share with its drivers.
But it gets worse: Even when you think its still too dangerous to get back into the water, the sharks crawl up onto the sand and into your hotel room. With Lyft (for certain), and likely with Uber, it is not necessarily true that drivers must operate their own vehicles. They sometimes operate rental cars from Hertz, Maven and possibly other national car-rental companies. The “rub” is that, when they do, if the driver provides 150 or more trips per week (in one lawsuit I did against both Uber and Lyft), Lyft pays the car rental fee (typically $200 for the vehicles “set aside” for Lyft rentals). And the rental car company pays for insurance, and performs maintenance on the vehicle. (This insurance lasts every moment you’re driving the rental vehicle; when using a driver’s own vehicle, he or she uses his or her own crummy insurance when driving “off the platform” – e.g., like deadheading home after a typical period of overly-long hours of exhausting driving.)
If it is not obvious 150 trips per week is an astonishing number of trips for a taxi or TNC. (Some U.S. bus lines provide less than one trip per hour!). So think about this: You are a driver, You have been driving 70 or 80 hours a week, you have 90 minutes of your week left, you’ve only provided 148 trips, and you can barely keep your eyes open even while you are jittery from all the coffee and Red Bull. What are you going to do? Pull over and take a nap? Or pick up and transport another two passengers? Get serious. Those last two passengers not only bring in a few more dollars, but save the driver $200/week, and deliver him or her free maintenance and serious, full-time insurance.
Defenses Galore.
Advertised recently (October11, 2023) in the San Francisco News Advisory (a newsletter), the firm of Peiffer, Wolf Carr, Kane, Conway & Wise (Peiffer Wolf) is filing a nationally-consolidated class action lawsuit against Uber for what it claims are more than 10,000 sexual assault victims.
While I would rarely even consider taking a case in support of Uber, I can imagine some of the rudimentary defenses its counsel will employ – beyond the litany of shenanigans that most judges accept which permit defendants to stonewall plaintiffs’ counsel and provide them virtually nothing of value from their “requests for production of documents” (known as “discovery”). Such defenses might include:
Assumption of Risk. The act of advertising safety – at least in America – is akin to telling someone to” have a nice day.” Uber’s “Safety Fee” could represent almost anything, even while its nothing but another scam to circumvent fare limitations placed on it by selective cities in or near which Uber operates. Further, most passengers are likely aware of the marketing-oriented focus of Uber, and the absence of any live Earthings involved in management should have dawned on many. And most passengers are fully aware that they signed a lengthy waiver (which almost none ever read) when they supplemented their credit-card signings for the ride by hitting “accept”). Lyft’s “contract” is 43 pages or several hundred cell-phone screens long.
The driver who will wait for a would-be passenger to review this document before accepting s ride is the driver who keeps live alligators in the back seat to keep the passengers company. (Why would this bother drivers who, collectively, molest tens of thousands of passengers?) There is no evidence whatsoever of any dispatcher communications, interior video surveillance cameras or any remote effort to monitor anything that goes on inside an Uber vehicle during an Uber trip. So the defendant’s attorneys are likely to argue that many or most Uber riders know these things, and in exchange for whatever benefits these passengers may feel they obtain from such a service, they are clearly “assuming a risk” whenever they travel on this mode. By comparison, travelers on other modes assume exponentially less risk – if they assume any. Of course, this defense is nothing but a ruse in a vehicle that is a common carrier.
Just Asking for it. Dismissing the defendant in a molestation case only became challenging in the past few decades or so. Before then (even while it was disregarded, the testimony of Anita Hill in the Clarence Thomas confirmation process was a disturbing constraint on the centuries of these whitewashes), the most potent defense was, “She was just asking for it.” For this not to be true, the victim would have to be morbidly-obese, physically-disabled, dressed stupidly and smell bad. (In truth, things like this have not deterred the drivers in several passenger molestation cases I have done.) Otherwise, the alleged cornucopia of inducements ranged from short skirts and strong perfume to female passengers conversing with drivers whom they made the mistake of treating as equals. To some jurors, and most jurors in the not-quite-recent past, these women could only be “coming on” to the driver.
Consolidation of Rape Cases. There are almost as many scenarios for rape as there are rapes. The perpetrators range from a child’s father to some stranger wearing nothing but shoes, socks and a raincoat. In one molestation case in which I served as an expert, the victim was a sympathetically-ugly, greatly-undersized, developmentally-disabled teenager wearing a helmet (i.e., the sign of someone periodically experiencing grand mal seizures). During the driver’s deposition, my brilliant counsel asked him,” What was it, in particular, about my client that appealed to your sexual appetite?” So between the purely-innocent, friendly banter of an average-looking 20- or 30-something woman with an Uber driver and the scenario just cited lie almost an unlimited variety of molestation scenarios. Some are more jury-friendly than others (In the not-too-distant periods in the South, the difference between a Black man accused of raping a White woman compared to a White man accused of raping a Black woman was ”black and white” [excuse the metaphor].) Until 1955, no White man in the South had ever been convicted of killing a Black individual. Statistics for raping one are similar. The point is that, statistically, until very recently, the conviction rate for rapists has been extremely low. And that rate almost always involved one-on-one lawsuits where most attention was focused on the interaction of two people – and mostly the behavior of the driver, not the management structure (or lack of it) surrounding him.
Sparsity of Data. To my knowledge, the last full-blown study of molestation in the U.S. was performed in 2002, a study documenting 52,800 “non-family abductions a year in the United States. That study identified 115 molestation scenarios. For purposes of the case in which I used that study (a crossing accident), in defending a former large private schoolbus contractor (Laidlaw) I learned that one fourth of all non-family abductions happen “in or near the woods.” The decision to have five children jaywalk across a low-speed country road also took them away from the woods and in plain sight of a batch of homeowners residing on the opposite side of the street. (I helped the defendant walk out of that case.) Unlike boarding and alighting incidents and wheelchair tipovers – which encompass only a few different scenarios separated only by details — molestation scenarios are like snowflakes. Not likely to ever see them, I am curious about the studies plaintiff’s counsel intends to employ in this class action lawsuit. I would be surprised to learn of a single study of passenger molestation on comparative modes of public transportation.
Suing an App. Talking about catching greased snakes, how does one sue an app? In Today’s legal system, one cannot sue the Tar Baby, Tinkerbell or a particular fire hydrant. But one can sue a roofer, the Walt Disney Company or a local municipality’s street maintenance department. In terms of escaping from consequences (or anything else), a good app would overwhelm Tinkerbell. With Uber, all the app does is summon a vehicle. The app does not drive it. Does not fix it. Does not even wash it. It just summons it. And neither Uber nor its drivers do this. Their passengers do. (passengers whom, as noted, will be accused of “assuming the risk”)
Do I believe these defenses deserve genuine consideration by a jury? Of course not. But I also believe that many such defenses, and others like them, will be very effective, and often convincing.
The Message for Motorcoach Operators
With a genuine loathing for TNCs, much less a nation full of them, I still think that the chances of a law firm cornering a defendant like Uber is far more challenging than succeeding in a case against most members of the transportation community – although I myself have a perfect record against Lyft. So I hope I am wrong about the difficulty of this challenge.
At the same time, the motorcoach industry – about which I do not recall even an anecdote about sexual molestation – cannot be too cavalier about such things as some impunity from prosecution in a molestation case involving some public transportation mode. In the more than 20 molestation cases on which I served as an expert, only three proceeded to trial. I won two of them (one for a plaintiff; one for a defendant). I lost the third (in 1998) simply because the judge was crooked. So as an operator, if you are thinking that you can weasel out of a molestation case that occurs on one of your vehicles (even if the driver is not involved), I have three bridges to sell you for a dollar apiece (although they all need serious maintenance).
Just because a U.S. law firm may have trouble riding a bucking bronco smeared with Vaseline does not mean that you can let you guard down in both monitoring your provision of service, and exercising the highest standard and duty of care to deter any incarnation of assault or molestation incident from occurring on board any of your vehicles. As an expert, the place I first look is at a few specific sets of driver’s logs. The rest are only details – although they may be interesting details. But the evidence is almost always firmly embedded in the drivers’ logs – at least when one is experienced in reviewing them. (I reviewed at least 200,000 of my own operation’s logs during the 10 years I directed the operations of a 70-vehicle paratransit system where most service involved an AM and a PM shift.)
Not to dwell on the obvious, this discussion must include the fact that, as common carriers, motorcoaches are held to the highest standard and duty of care. While I actually (and successfully) defended two transportation companies in molestation cases, I helped squash all but one other on the plaintiff’s side. Uber and Lyft are elusive exceptions (although I managed to succeed against them – but not in any molestation cases). The rest of our modes are not.
Putting the Defendant at Risk
Then there is this thing known as injunctive relief:
In Beauchamp v. LACMTA (CA, 1999), my document outlining injunctive relief forced this leviathan transit district to actually pick up wheelchair users – a financial hardship for a County whose skeleton of a bus fleet was overflowing with standees, with little room for a wheelchair users who, with his or her chair, occupy the area of four seated non-disabled passengers. Fifteen or so years earlier, the County placed itself $7B in debt for the first three of its growing labyrinth of sparsely-used, flagrantly-unjustified subway lines.
In another California case I did involving the risks of wheelchair tipovers, my injunctive relief brought $170K to the plaintiff, along with a page and a half of additional concessions likely costing the defendant millions. The wheelchair-using plaintiff merely bumped his head on the forehead of a seated passenger in front of him – not even in a collision. But no driver on any of the system’s 20 routes had ever secured his wheelchair (or likely any other wheelchair). Our lawsuit changed this reckless indifference profoundly – at a considerable cost to the transit agency.
In a far-more-famous case (BRU v LACMTA; CA, 1998) in which I was not involved, the court ordered the defendant to purchase 3200 additional buses. This approach (injunctive relief) should be a key to the plaintiff’s strategy in the class action case against Uber.
The legal world also butts up against a post-modern institutional and industrial structure that can spin off in directions that no state’s case law can remotely keep pace with. Among them is the simple fragmentation of production into the hands of countless suppliers. (A huge number already exist, for different reasons). But breaking up a service into so many small pods – contractors, subcontractors and brokers – will imbue any lawsuit with an avalanche of attorneys, delays and motions. Trying to hold the manufacturers of subcomponents that interrelate in an infinite number of ways will not even be like catching a snake. It will be like playing whack-a-mol without the whack.
Knowing Uber as I do, as much as I hate to give it ideas, I suspect a cottage industry will emerge that will allow individuals (or group s of individuals) to invest in (and to a degree, naturally, to profit from) the robots that Uber installs to replace is drivers (few of whom I expect to be investors). I can think of some variations that will, further, give the legal world fits: All type and manner of ownership, leasing, renting and relationship variations for non-Uber management and employes or 1099 workers (or whatever they will be when this article is released thanks to another lawsuit initiated against Uber this past July, in California.
Speaking as an expert witness, — and I speak for most genuine experts in all fields—I feel that the density of genuine, hard-working and willing-to-spend attorneys available now are approaching extinction. If it takes armies of half-decent entry-level, support attorneys to mount a case against a highly-diversified, internationally-owned, exorbitantly-funded near-monopoly, where are these legions of attorneys going to come from? Particularly as almost every rarely-listening civil attorney has accomplished nothing to move the air currents surrounding Uber, the success of criminal attorneys in class action molestation suits may not be easily realized.
Years ago, I authored six installments in National Bus Trader about Uber and Lyft – mostly about the failures to stop them at virtually every level of the public transportation and political arenas (see https://transalt.com/article/bad-regulations-and-worse-responses-part-1-introduction/; https://transalt.com/article/bad-regulations-and-worse-responses-part-2-the-rise-fall-and-transformation-of-supershuttle/; https://transalt.com/article/bad-regulations-and-worse-responses-part-3-invasion-of-the-tncs/; https://transalt.com/article/bad-regulations-and-worse-responses-part-4-judicial-heroism/; https://transalt.com/article/bad-regulations-and-worse-responses-part-5-executive-branch-responses/ https://transalt.com/article/bad-regulations-and-worse-responses-part-6-industry-and-association-responses/ and https://transalt.com/article/bad-regulations-and-worse-responses-part-7-conclusions/ ). Like most of my articles about the future, this one is continuing to unfold, continuing to come true.
In contrast, being forced to do certain things could bring a sector like the motorcoach industry to its knees. Worse still in transit: The prohibition of standees, for example (which would undoubtedly improve passenger safety) would greatly reduce transit’s already bottom-of-the-barrel farebox recovery ratio. I do not see most taxpayers ponying over the additional funds for an armada of additional buses or subway cars, like they were forced to do in Los Angeles County as a result of the BRU case (see summary above).
All said, the soon-to-be-mainstream news about the class action lawsuit against Uber may prove fascinating. Even the finest attorney of a less-than-perfect law firm will not enjoy “chasing the app” (Uber cases may soon calcify into such expressions – just as the term ‘uber’ has become a verb). But for the rest of us – owning and operating motorcoaches, transit, schoolbus service, paratransit, special needs pupil transportation, shuttles and taxis (the last of which needs no lessons about Uber from this article) – we must be vigilant. We have a physical presence. The passengers travel in vehicles we own or lease. Our drivers are usually employees, not 1099 workers. Park-outs are rare. The performance of pre- and post-trip inspections is common, if not rigorously enforced. Our drivers are critically-hired, often well-trained, usually healthy and occasionally-monitored. But they are ours.
According to Uber, its drivers (using their own vehicles) really only have a physical relationship with an app that magically directs them to passenger pickup locations in return for 20 percent of the fares. In court, Uber will present itself as a vehicular yenta – a match-making service. (Taxicab brokers have often tried to employ this ruse.) Most other modes do not have such legal luxuries. Our systems are not slick. We employ live Earthlings at the management level, a traditional characteristic of every traditional public transportation defendant. And as common carriers, the employees of these services are supposed to do things.
Lesions and Lessons
And then there is the future.
While now a mere board member, when questioned about the company’s lack of control over its drivers, former Uber CEO Travis Kalanack told Vanity Fair (December 2014 issue) that, “drivers are only a temporary nuisance.” The length of a Consent Decree – which, at best, may force a few safety requirements on Uber during its tolerance of that Decree – is usually about a decade long. So the next class action lawsuit against Uber could be far more interesting – and possibly impossible to win. As a legal matter, what will a lawsuit consist of if the principal deponents are an app and a rainbow collation of robots assembled from subcomponents from hundreds of suppliers? Of course, by then, the robots will likely be programmed with the most perfect answers to any cross-examination question imaginable. As the operators of the vehicles, the discussion about the propriety of them testifying will be a fascinating debate all its own.
As a consequence of the promises (and mostly heartbreaks) the future certainly holds, the currently-planned lawsuit may be our society’s last chance to eliminate Uber and its TNC cousin’s from the public transportation landscape – or at least wound them. They are far along their way in damaging this landscape. They are taking it over. But the plaintiff’s must first win the case on liability, and then the judge must grant the injunctive relief needed to break Uber’s business model. This injunctive relief will almost certainly involve demands to incorporate a serious range of live Earthlings into Uber’s operating structure (including the creation of a management structure from scratch) – effectively killing Uber’s business model, to which I doubt a company with virtually no knowledge of transportation can easily overcome. Michael Issac’s treatment of Uber – Super Pumped – contained only a few sentences about transportation in the entire 345-page book– apart from the notion that response times are important.
Just as there are lessons to be learned from Uber and the countless failures to clean up its behavior (new lessons should be brought closer to the light by this lawsuit), there are special lessons to be learned by the motorcoach industry. These lessons sink deeply into marketing, liability and safety. In truth, while the motorcoach industry is among the safest of modes (despite operating largely on either high-speed roadways or the tight street networks of their passengers’ destinations), it largely tries to distinguish itself, as its highest priority, by its customer service. However, invaluable lessons about customer safety can be learned from modes that provide none. Again, as former Uber CEO Travis Kalanack told Vanity Fair, “Drivers are only a temporary nuisance.”
Unless this lawsuit destroys Uber (and its fellow TNCs), by the time even a seemingly-effective Consent Decree runs its course, Uber will have found a way to reconfigure itself around its small handful of uber-selfish goals, and re-emerge more quickly than the legal world can catch up with it. Uber is public transportation’s version of Hamas. If you only wound it, even badly (as the class action lawsuit noted above may), it will only pop up a decade later in a different, and likely even more impugn, incarnation. Keep in mind that oligopolies like Uber can thrive for years without earning a dime in profits, and can sustain enormous losses during bad times. And even in the best of times, many oligopolies pay no taxes; the loopholes in the maximum 15 percent of revenue they start out with are gaping.
But, of course, the U.S. legal system is not the physical gridlock of Gaza. But it is surely its equal in institutional, political and legal molasses, where the defendants, swollen with untaxed profits, will give no second thoughts to some reluctance to appeal (or try to appeal) a lower court ruling of any kind. One problem is that defendants like Uber – whose next incarnation (perhaps triggered by the current class action suit) may include highly-automated-vehicles (HAVs) – or more bluntly, vehicles driven by robots, will be even harder to hold accountable for anything related to safety. Since there is no accident history comparing the safety of human drivers to robots, much less an absence of the decades of case law that generally follow such radical changes, the evolution of Uber is likely to permanently remain ahead of efforts to stop it.
A few National Bus Trader readers may recall the era (before President Reagan quickly changed it), where banks could only operate in a single state, and the debt-to-asset ratio was three-to-1 (Reagan is not responsible for the radical, exponential – if not interplanetary – explosion of this ratio we experience now.) Before then, no comedian ever spoke of anything that was too big to fail. But Uber did not grow up in that world. It grew up half a decade after the era in which Leyman Brothers and AIG, among others, demonstrated the costs of addressing this dilemma from both directions (i.e., limits on debts or untaxed assets). But years ago, around the time of Trump’s succession, Uber’s investors had amassed an untaxed war chest of $63B – including money from several foreign investors.
Frankly, no class action lawsuit is likely to make a long-term dent in Uber’s pocketbook. Instead, the suit will cost it pennies on the dollar – although those dollars will likely be spent making Uber a bit safer, sexually. But with these features, Uber will be even easier to market in the next incarnation, which will be even less safe for more clever and profitable reasons. The time to kill it is now. Most likely this will not happen. So it may never again be safe to go back into the water.
Regardless of the outcome of the Uber case, the lesson is that every public transportation mode should stuff its pockets with monitoring tools and approaches. In Puddin’head Wilson, Mark Twain noted that, “Only a fool is afraid to put all his marbles in one basket. A wise man puts all his marbles in one basket …and watches the basket.” Uber kept its collective eyes on nothing but profits, investments and tax avoidance schemes. But it may now be paying for this narrow, safety-less focus. Other public transportation modes do not have such luxuries.
There is only one answer to Uber – just as there is really only one answer to Hamas: Eliminate them completely. At least until their next time around (much more quickly with Uber) I myself know how to make Uber’s business model obsolete through injunctive relief. But whether Pieffer Wolf can is another matter.
Wouldn’t it be nice if one could craft our legal system, and formally “coordinate” it with the legislative branch, to create the seeds to rid ourselves of the self-proclaimed “disrupters” of everything they touch” To answer that questions readers must ask themselves, “ Can this country make rudimentary adjustments that will “kill the beast” without being shredded by layer upon layer of political, institutional and legal administrativa that get in the way? I am betting not. But this is a bet I would love to lose.
In certain transportation modes, crime really pays – especially with TNCs like Uber & Lyft. Once in a blue moon this backfires – and soon may in a huge upcoming class action lawsuit in California alleging that Uber drivers committed more than 10,000 sexual molestations.
#uberexpertwitness #lyftexpertwitness #uberaccidents #lyftaccidents #ubersexualmolestations
