When John and Georgia McGinty hailed an Uber in March 2022, they never expected their driver to run a red light, crash into another car, and send them to the hospital with critical injuries.
Georgia McGinty was unable to work for over a year as she underwent extensive surgeries and rehabilitation. A jury would likely find her story sympathetic, and Uber would be exposed to a public lashing over the trial proceedings.
But the McGintys may never get their day in court. Three months prior to the crash, their daughter, a minor, placed a dinner delivery order through Uber Eats, tapping “Agree” to the company’s terms and conditions before completing the transaction. A New Jersey court of appeals, citing this action by their daughter, issued a ruling that blocked the McGintys from filing a civil suit against Uber. Instead, the judges ruled, they are bound to arbitration, a private resolution process that often favors the more powerful, moneyed party.
Earlier this year, Jeffrey Piccolo filed a wrongful death suit on behalf of his late wife, who succumbed to acute anaphylaxis after dining at a Disney World restaurant, despite repeatedly communicating her allergen restrictions to staff. As with McGinty vs. Uber, Disney’s lawyers attempted to block the case from proceeding to court, citing an arbitration clause Piccolo agreed to in 2019 when subscribing to a trial of Disney+.
The most magical place on earth isn’t where a young adult should meet an untimely death, and facing significant public opposition, Disney reversed course and announced it would allow the court case to proceed.
“Businesses are experimenting with ‘infinite’ arbitration clauses: those that mandate arbitration for all disputes between any related party in perpetuity,” wrote David Horton, a law professor at the University of California, in the University of Pennsylvania Law Review.
As corporate reach expands and diversifies, it bears examining whether these connections, shaky under a consumer’s gaze but steadfast under the counsel of a robust legal team, present a threat to personal liberty. Does infinite arbitration function hand in hand with monopolistic practices that seek to take advantage of customers?
In nearly any other circumstance, arbitration is always an option for the plaintiff, whether the case is a friendly divorce or a big-dollar-sign dispute with a multinational corporation and its subcontractors. But a prosecuting attorney would never advise a client to waive their right to a trial, even if arbitration is their preference. By eliminating consumers’ choice, these large companies are wielding their power and absolving themselves of being held publicly accountable.
Not all victims prefer a public trial for the sake of privacy, but it is particularly vile that defendants have used their size and influence to limit plaintiffs’ options. On the heels of a few very public cases involving the practice, Congress passed H.R.4445—the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021—with bipartisan support. This outcome was a win for victim advocates, but it didn’t prevent businesses from otherwise continuing to sneak arbitration clauses into their terms and conditions.
Uber’s terms of service acknowledge a handful of exceptions to its arbitration clause, including individual cases of sexual assault and harassment. However, it expressly prohibits class actions related to sexual assault, a striking choice when you consider Uber reported 12,522 incidents of sexual violence between Uber drivers and passengers between 2017 and 2022.
Jessica Silver-Greenberg of the New York Times said it well: “It has been a decades-long dream of corporate America: making it harder for aggrieved customers, workers and others to file lawsuits against companies seeking compensation for alleged injuries, mistreatment and other harms.” Uber has fought for years to outsource the risks of its own business model to third parties. That extends as far as distancing itself from the very drivers who keep the service running: Uber helped raise $200 million for a California ballot initiative that enshrined contractor status for gig workers in the state, including Uber drivers. The initiative passed.
Such brazenness looms large. While forced arbitration is not an entirely surprising strategy from players like Uber, it remains unpopular in the court of public opinion. And for good reason.
Since Disney did not see through its challenge to arbitration, and McGintys have pledged to appeal the most recent ruling, this argument could reach the New Jersey Supreme Court, if not higher, to set a consequential precedent.
Until then, similar cases are likely to materialize. You can’t help but wonder what may come next. Could a pedestrian hit by an Amazon Prime truck be barred from their day in court for booking a flu shot with One Medical?
The next time you download an app or tick “Agree” on a website pop-up, consider reviewing the arbitration terms and where else they may apply. You could be signing away your right to a trial for good.
