Uber offices in the Fells Point neighborhood of Baltimore. May 3, 2018. Photo: Diego M. Radzinschi/ALM

Uber Technologies’ attempt to disqualify a plaintiffs-side firm in an ongoing lawsuit is a strategic move, rather than a reflection of a legitimate fear that a former top appellate attorney for the U.S. Chamber of Commerce would have an unfair advantage in the case, Keller Lenkner told the California federal court in a filing Wednesday.

Morgan, Lewis & Bockius attorneys, representing Uber, filed a motion to disqualify Keller Lenkner last week, because they claim a conflict of interest exists with partner Warren Postman, who left the U.S. Chamber Litigation Center this summer to join the plaintiffs-side firm.

Postman is on the Keller Lenkner team representing Diva Limousine in a suit against Uber in the U.S. District Court for the Northern District of California. The lawsuit alleges Uber’s classification of its drivers as contractors, and not employees, violates state labor law in the wake of a California Supreme Court ruling in April that could upend how gig companies classify their workforce. Uber’s lawyers say Postman, in his role at the chamber, had access to “shared legal analysis and litigation strategy.” 

Ashley Keller, partner at Keller Lenkner. Courtesy photo

Keller Lenkner partner Ashley Keller tells the court that Uber and Morgan Lewis’ attempt to disqualify the firm is disingenuous.

“Uber’s conduct suggest that it seeks to disqualify Keller Lenkner for strategic gain, rather than out of genuine concern about unfair advantage,” Keller writes. “Courts routinely deny otherwise meritorious disqualification motions when the moving party failed to raise the same conflict in an earlier, similar case involving the same allegedly conflicted firm. That is precisely the situation here.”

The U.S. Chamber has backed Uber’s claims in friend-of-the-court briefs and, in one instance, was a co-plaintiff, Morgan Lewis partner Brian Rocca in San Francisco wrote in the motion filed last week. Rocca did not respond to request for comment Thursday.

Keller Lenkner’s response calls disqualification “a drastic remedy” and says the case “bears no resemblance to the rare fact patterns in which courts have imposed disqualification.”

Brian Rocca, Morgan Lewis San Francisco co-managing partner

“Nothing in Mr. Postman’s past gives him any privileged insight into misclassification or any of the other issues in this case,” Keller argues. “Mr. Postman has no confidential information from or about Uber that is related to this case.”

The response also points to a U.S. Court of Appeals for the Third Circuit case in which the firm is fighting Uber on similar misclassification grounds. The attorneys there have not sought disqualification because of Postman’s role with the firm.  

“So what has changed? Perhaps it is Diva’s motion for partial summary judgment, which creates a risk that Uber’s business model in California could be declared unlawful shortly before it plans to conduct a public offering,” Keller writes.

Uber and other gig economy companies are facing enormous pressure following a California Supreme Court ruling in April that will force companies to apply a stricter test in order to classify their workers as contractors and not employees. Management-side lawyers said the ruling in Dynamex Operations West v. Superior Court had the potential to upend the business model in the gig economy that eschews employee status for independent contractors.

According to Keller Lenkner, Postman communicated with hundreds of businesses, including Uber, on various topics of interest to the community. He was never Uber’s lawyer, however, they argue, and none of the conversations were privileged, including an email cited by the defense attorneys in which he describes the Dynamex case in a note sent to several companies and lawyers from several different law firms.

The firm acknowledges Postman collaborated with Uber on a case alleging that a Seattle ordinance was pre-empted under federal antitrust and labor law. The ordinance in dispute would have given independent contractors who worked for companies such as Uber, Lyft and Postmates the opportunity to collectively bargain.

“The Seattle litigation did not present either similar facts or similar legal arguments to this case. No party argued that Uber’s drivers were employees, much less employees under California law, much less employees under Dynamex, which had not yet been decided,” Keller tells the court.

Postman also worked on amicus briefs in appeals that involved Uber. These dealt with whether the company’s arbitration clauses could be enforced.

“None of the appeals concerned whether Uber’s drivers are its employees. It is implausible that Uber gave Mr. Postman troves of confidential information that is relevant to this case while he was litigating preemption claims based on federal antitrust and labor law or filing amicus briefs about the Federal Arbitration Act,” the response states. “More importantly, Uber has not produced any actual evidence that it did so.”

A hearing before Judge Edward Chen is scheduled for Nov. 20 on the motion to disqualify. Uber is scheduled to file its response next week.