[00:00:19] Speaker 00:
Good morning, and may it please the court.

[00:00:22] Speaker 00:
My name is Brent Rosenthal, and I represent the plaintiffs below and appellants here, the survivors of Cherno Cisse.

[00:00:32] Speaker 00:
On December 13, 2020, Uber driver Cherno Cisse was fatally stabbed in the neck by two Uber passengers who were trying to steal the car he had rented through the Uber vehicle marketplace.

[00:00:48] Speaker 00:
the attempted carjacking occurred in Issaquah, Washington, an affluent suburb of Seattle.

[00:00:55] Speaker 00:
The Uber riders who killed Mr. Cisse had created their Uber account 11 minutes before ordering the ride using a fake name, a prepaid burner phone, and a prepaid gift card that would not allow law enforcement to trace the identities of the users.

[00:01:16] Speaker 00:
At the time of Mr. Cisse's murder,

[00:01:18] Speaker 00:
Uber required its riders in Latin America using untraceable payment methods like cash to furnish proof of identification.

[00:01:28] Speaker 02:
May I just interrupt you there for a minute?

[00:01:30] Speaker 02:
Certainly, Your Honor.

[00:01:31] Speaker 02:
So pretty familiar with all of that information you just relayed.

[00:01:37] Speaker 02:
Yes, Your Honor.

[00:01:38] Speaker 02:
What I'm really interested in is how did the district court err?

[00:01:45] Speaker 02:
The district court.

[00:01:45] Speaker 02:
The district court determined, if I'm not mistaken, that there was no duty owed in this particular situation.

[00:01:52] Speaker 00:
Is that correct?

[00:01:53] Speaker 00:
That is correct.

[00:01:54] Speaker 02:
Under Washington law.

[00:01:55] Speaker 00:
Yes.

[00:01:56] Speaker 02:
Right?

[00:01:57] Speaker 02:
OK.

[00:01:58] Speaker 02:
So how did the district court misinterpret Washington law?

[00:02:05] Speaker 00:
Well, of course, there's a general duty to exercise ordinary care, not to injure another.

[00:02:10] Speaker 00:
That's the general rule that's applicable in Washington.

[00:02:13] Speaker 00:
There is an exception to that.

[00:02:15] Speaker 00:
general rule, and that exception is that a party does not have a duty to exercise ordinary care to prevent foreseeable criminal acts of a third party.

[00:02:30] Speaker 00:
That was the rule that the court relied on.

[00:02:34] Speaker 00:
But there are exceptions to the exception, and two of the exceptions are

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If one party has a special relationship with the other, a special protective relationship to protect the victim, or has a relationship with the perpetrator who is likely to commit crime, that's one of the exceptions.

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They have a duty to exercise ordinary care in that circumstance.

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We contend that that exception clearly applies in this case under Washington law.

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The second exception is if the party executes

[00:03:06] Speaker 00:
an affirmative act that increases the risk of criminal harm and a recognizable high degree of risk, there is also a duty to exercise reasonable clear.

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We contend that that exception exists in this case.

[00:03:20] Speaker 00:
So she failed.

[00:03:21] Speaker 02:
Which of these exceptions do you think is the strongest one that applies here under Washington law and in light of the Washington Supreme Court's recent decision?

[00:03:32] Speaker 00:
Well, our first contention is that there's a special relationship between Uber that retained Mr. Cisse to perform these driving services.

[00:03:45] Speaker 00:
That's the first contention.

[00:03:47] Speaker 02:
Is it analogous to any other relationship the Washington Supreme Court has recognized or the Washington Appellate Court and the Supreme Court have recognized?

[00:03:57] Speaker 00:
Absolutely.

[00:03:57] Speaker 00:
The two strongest special relationships or the two strongest analogies

[00:04:02] Speaker 00:
are the relationship between employer and employee.

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And I think maybe perhaps even a stronger one is premises owner and business invitee.

[00:04:13] Speaker 02:
If you take the first one, I gather Uber is going to say, as they often do, there's no employer-employee relationship between Uber and the driver.

[00:04:24] Speaker 00:
That's absolutely correct.

[00:04:25] Speaker 00:
And they say that all the time.

[00:04:27] Speaker 00:
They say that ad infinitum.

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That's their mantra.

[00:04:31] Speaker 02:
We have independent contractors.

[00:04:36] Speaker 00:
Give me your reasoning.

[00:04:37] Speaker 00:
I've got two reasons for that, or two responses to that, Your Honor.

[00:04:41] Speaker 00:
The first is that the Washington Supreme Court has made crystal clear that it does not

[00:04:49] Speaker 00:
consider dispositive, formalistic labels about relationships.

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In the Vargas case that we cited, involved an independent contractor on a work site, the court held that because the premises owner

[00:05:08] Speaker 00:
that had control over the workspace in the relevant respects, that it had a duty to exercise ordinary care.

[00:05:17] Speaker 00:
The second argument is that, or response, is that Uber is, or I'm sorry, the second case is the FOA case, which also says we don't, a premises owner owns a duty,

[00:05:35] Speaker 00:
a contractor, a general contractor, owes a duty to the independent contractor, the subcontractor, to provide a safe workspace if it has control over the workspace.

[00:05:46] Speaker 00:
So labels don't matter under Washington law.

[00:05:49] Speaker 00:
The second argument, now Uber makes much in its brief of the recently enacted statute that

[00:05:55] Speaker 00:
that does define relationship between Uber drivers and Uber.

[00:06:02] Speaker 00:
And it says Uber drivers are considered independent contractors.

[00:06:06] Speaker 00:
But the statute goes on to provide obligations on Uber that are typical of the employee-employee relationship.

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It requires Uber to provide

[00:06:23] Speaker 00:
workers' compensation, it requires Uber to provide benefits, other benefits that, and they're listed in our brief, that aren't required between contractors, they're required of employers.

[00:06:39] Speaker 00:
So we say that the relationship between Uber and its drivers is functionally identical to that of employer-employee.

[00:06:50] Speaker 00:
So that's the first one.

[00:06:52] Speaker 00:
The second one is... Let me just ask you this.

[00:06:55] Speaker 02:
So it seems that in that context, that control is a critical factor.

[00:07:02] Speaker 00:
Is that right?

[00:07:03] Speaker 02:
Yes, that's correct.

[00:07:04] Speaker 02:
So Uber would say, well, we don't have any control over these drivers.

[00:07:10] Speaker 02:
We have absolutely no control.

[00:07:11] Speaker 02:
They can work whenever they want.

[00:07:13] Speaker 02:
They can work whenever they want.

[00:07:14] Speaker 02:
Whatever time, you know, they can work from 8 a.m.

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at night to 2 p.m.

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in the morning, or they can work from 10 a.m.

[00:07:21] Speaker 02:
in the morning till 4 o'clock in the afternoon.

[00:07:23] Speaker 02:
Absolutely.

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They're free to do whatever they want to do.

[00:07:26] Speaker 00:
We have no control.

[00:07:27] Speaker 00:
They certainly don't have control over those aspects of the Uber relationship.

[00:07:33] Speaker 00:
What they do have complete control over is who enters Uber vehicles.

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They are the ones who match

[00:07:41] Speaker 00:
Riders with the drivers and they have complete control.

[00:07:44] Speaker 03:
Is that is that true?

[00:07:45] Speaker 03:
Can't uber driver reject a Ride, I see it all the time.

[00:07:50] Speaker 03:
They they can reject a ride But they're how's that complete control?

[00:07:55] Speaker 00:
Because well, first of all, they have no reason to reject the ride they're they're working for money their relationship between uber and

[00:08:04] Speaker 00:
and the drivers are commercial.

[00:08:06] Speaker 00:
So it's an independent decision to accept the ride?

[00:08:10] Speaker 00:
Yes, and it's based on the personal factors, but Mr. Cisse in this case, Uber drivers in general, didn't know that Uber was matching its driver with unidentified, unverifiable riders.

[00:08:29] Speaker 00:
He had no idea.

[00:08:31] Speaker 00:
The ride was placed and was requested in Issaquah, not in an urban area where crime is rampant, like in the Hutchins case.

[00:08:41] Speaker 00:
He had no reason to know that there was any risk at all and accepted the ride.

[00:08:46] Speaker 03:
I thought your briefing said that there was a huge jump in carjackings.

[00:08:50] Speaker 03:
around that period.

[00:08:52] Speaker 03:
Yes, there was.

[00:08:53] Speaker 00:
Well, then he would have to reject every rod because it's not location specific.

[00:08:58] Speaker 00:
I guess you're saying he's got the right not to be an Uber driver.

[00:09:02] Speaker 03:
Correct.

[00:09:03] Speaker 00:
But I think that the relationship is predicated on Uber, in this case, on Uber's representations.

[00:09:10] Speaker 00:
Uber represented generally that its platform did not permit anonymous riders.

[00:09:16] Speaker 00:
It said,

[00:09:17] Speaker 00:
We only permit qualified riders, so we'll know who you're picking up, and so will you.

[00:09:24] Speaker 00:
That's a direct quote from Uber's materials prior to the carjacking.

[00:09:28] Speaker 00:
So I think that under those circumstances, it's unfair and unrealistic.

[00:09:34] Speaker 02:
How much information does Uber share with a driver about a potential rider?

[00:09:41] Speaker 02:
I mean, do they just say Ryder at 4th and Grand or something?

[00:09:45] Speaker 02:
Yes, that's it.

[00:09:46] Speaker 02:
Is that all they do?

[00:09:47] Speaker 00:
That is it.

[00:09:48] Speaker 00:
As of December 13, 2020.

[00:09:50] Speaker 00:
But back when this happened.

[00:09:52] Speaker 00:
I don't know what information they share currently, but that's true.

[00:09:57] Speaker 00:
They said, here's these Ryders or this Ryder wants to be picked up.

[00:10:01] Speaker 00:
The Ryder, the Uber Ryder was Stephanie Tyler, fake name provided by the assailants.

[00:10:08] Speaker 00:
So that's the only information he had.

[00:10:11] Speaker 00:
I will add.

[00:10:13] Speaker 03:
Isn't that exactly what every cab situation was before 10 years ago before Uber existed?

[00:10:22] Speaker 03:
You're just acting like you're just saying that this is a normal taxi cab relationship.

[00:10:26] Speaker 00:
Well, there are a couple of distinctions there, Your Honor.

[00:10:28] Speaker 00:
First of all, Uber cars are unmarked.

[00:10:31] Speaker 00:
private vehicles.

[00:10:33] Speaker 00:
So they're more susceptible to carjacking than taxis.

[00:10:36] Speaker 00:
Somebody who wants to hijack a car wouldn't hijack a taxi.

[00:10:39] Speaker 00:
They would get caught.

[00:10:41] Speaker 00:
Those vehicles are immediately identifiable.

[00:10:44] Speaker 00:
Uber cars are not.

[00:10:46] Speaker 00:
And secondly,

[00:10:49] Speaker 00:
I think taxis have the obligation to exercise ordinary care, which is what we're talking about in this case.

[00:10:56] Speaker 00:
Uber holds itself up to a different standard by assuring drivers that the drivers are not anonymous and are accurately identified.

[00:11:06] Speaker 03:
But is there any cases showing a special relationship between a taxi company and a taxi driver?

[00:11:12] Speaker 00:
I haven't found one, Your Honor.

[00:11:15] Speaker 00:
But if a taxi driver is an employer,

[00:11:19] Speaker 00:
then the existing law would cover that relationship.

[00:11:23] Speaker 00:
It does with innkeeper and guest.

[00:11:28] Speaker 00:
That's the case that established the relationship between, or that held for the first time, that there's a special relationship between employer and employee.

[00:11:36] Speaker 03:
Can I ask about the foreseeability question?

[00:11:38] Speaker 03:
So your argument is that using a prepaid phone and a prepaid card is a flag for criminality, essentially.

[00:11:45] Speaker 03:
Yes.

[00:11:46] Speaker 03:
Aren't the people that use those, those that don't have access to credit and so therefore they have to use that?

[00:11:54] Speaker 03:
It just seems like a pretty broad brush to strike anyone without credit to get a phone or a credit card to say that they're likely to commit crime.

[00:12:03] Speaker 00:
Two responses to that, Your Honor.

[00:12:08] Speaker 00:
First of all, the

[00:12:12] Speaker 00:
Uber requires that today.

[00:12:14] Speaker 00:
Uber did adopt what it calls and what we call a subsequent remedial measure demonstrated conclusively, in my opinion, that it does have control over the environment of its drivers in relevant respects.

[00:12:29] Speaker 00:
But secondly,

[00:12:30] Speaker 00:
The requirement to showing an ID is not onerous.

[00:12:33] Speaker 00:
I had to do that today to get into this courthouse.

[00:12:36] Speaker 00:
Uber says you can use an anonymous payment method, but if you do, you have to provide identification.

[00:12:43] Speaker 00:
And they required that.

[00:12:44] Speaker 03:
My problem is it just seems like you're suggesting that if you're poor, essentially Uber should have known that you're at a heightened risk of committing a crime.

[00:12:53] Speaker 03:
Do you see the problem with that?

[00:12:55] Speaker 00:
Well, if that were the case, I'm not sure I agree with the premise.

[00:12:59] Speaker 00:
I agree that if you are, if you insist on being anonymous or if you don't have the ability to prove your identity, you present a higher risk.

[00:13:08] Speaker 00:
That's what they found in Latin America.

[00:13:11] Speaker 00:
They required proof of identification in Latin America in 2018.

[00:13:18] Speaker 00:
So I don't think that it requires too much.

[00:13:22] Speaker 00:
And again, that is Uber's practice today.

[00:13:24] Speaker 00:
Your Honor, I would like to reserve some time for rebuttal, so I'm happy to answer questions now, or I'll take the remaining time in a couple of minutes.

[00:13:33] Speaker 01:
All right.

[00:13:33] Speaker 01:
Why don't you save the rest of your time, then?

[00:13:35] Speaker 00:
Thank you.

[00:13:54] Speaker 04:
Good morning, Your Honors, Greg Miller of Perkins Cooey LLP on behalf of the defendant appellees.

[00:14:00] Speaker 04:
This is a case where third party criminals carried out a horrific act against Mr. Cherto Cisse.

[00:14:06] Speaker 04:
Washington law is clear that is a general rule

[00:14:08] Speaker 04:
the liability for those acts falls on the criminals themselves.

[00:14:13] Speaker 04:
And there are two major concerns running through every Washington case that keep the limits on those exceptions very, very narrow.

[00:14:22] Speaker 04:
The first is a general concern that it's simply unfair to impose liability for criminal conduct on businesses.

[00:14:29] Speaker 04:
And the second, and I think is what Judge Bumate was hinting at in some of his questions, is there's a constant concern that

[00:14:36] Speaker 04:
over-deterrence can lead to collateral consequences, particularly on disadvantaged groups and in urban core areas that the Washington courts, since the Hutchins case in 1991, have always cautioned against.

[00:14:50] Speaker 04:
the plaintiffs in this case simply have not presented the kind of evidence that Washington courts.

[00:14:56] Speaker 02:
This case was kicked out on 12b6, right?

[00:14:58] Speaker 02:
Was it summary judgment or was it 12b6?

[00:15:00] Speaker 04:
No, Your Honor, there was a 12b6 order that dismissed the punitive damages claims, but summary judgment was granted in this case.

[00:15:08] Speaker 04:
Okay.

[00:15:08] Speaker 04:
So, and to kind of walk through or kind of

[00:15:10] Speaker 04:
to speak to some of your questions.

[00:15:12] Speaker 04:
What Judge Rothstein did is she ran the table for us on all of the issues.

[00:15:16] Speaker 04:
She said, first of all, there's no special relationship because you don't fit into any of the established boxes.

[00:15:23] Speaker 02:
So counsel just argued that Washington Supreme Court doesn't require literal

[00:15:30] Speaker 02:
You have to be a true employer and a true employee.

[00:15:34] Speaker 02:
It can be analogous.

[00:15:35] Speaker 02:
So I use that as an example, not as a... Yeah.

[00:15:38] Speaker 04:
So the formalism that he's referring to is mentioning, do you use the label general contractor or independent contractor?

[00:15:45] Speaker 04:
But the functional test...

[00:15:46] Speaker 04:
has always been clear and consistent, which is control over the work itself that's being performed by the independent contractor.

[00:15:53] Speaker 04:
And I would submit to you that the No versus Hurst case that we've cited in our briefs is the closest thing that you have to this situation where you had a newspaper delivery person who was attacked in a high crime area.

[00:16:05] Speaker 04:
They tried to hold the newspaper liable, arguing that you have greater access to information about the paper outs and kind of contracting them out on

[00:16:12] Speaker 04:
to make this delivered to a particular area, the newspaper had a duty to warn him or to take certain preventative measures.

[00:16:19] Speaker 04:
And the court said, he's an independent contractor.

[00:16:22] Speaker 04:
There's no control over how you can do that.

[00:16:23] Speaker 02:
So is your whole argument here is these Uber drivers are nothing but independent contractors and end the story?

[00:16:29] Speaker 04:
Well, that is our argument where they're making the special relationship between an employer and an employee.

[00:16:33] Speaker 02:
I mean, that should have limited to that scenario.

[00:16:37] Speaker 04:
And to push back against my front on the other side,

[00:16:40] Speaker 04:
I'm not going to say that ad infinitum, but what I will tell you is the Washington legislature has expressly legislated recently in this area, and they passed two provisions that we've cited, one in our brief and one in our reply letter, that I think, at the very least, place a thumb on the scale against broadening the relationship or adding any additional duties.

[00:16:59] Speaker 02:
So let me ask you this.

[00:17:00] Speaker 02:
Doesn't Uber, though, control the amount of information that goes to the driver when they're picking up somebody?

[00:17:08] Speaker 04:
Yes.

[00:17:09] Speaker 02:
Uber has complete control over that.

[00:17:12] Speaker 04:
Uber has control over its own app, yes, as any platform has control over the information that's being exchanged on a digital platform.

[00:17:21] Speaker 04:
And this is a point that we make in our brief, that to recognize a special relationship here, you're basically saying that every app, every delivery system, every website that has any kind of membership or that connects two people together is now all of a sudden going to have a special relationship

[00:17:35] Speaker 04:
where they could be potentially liable for any third party crimes that are committed on that platform.

[00:17:39] Speaker 04:
And the Washington Supreme Court has been clear, I would submit the Rob v. Seattle case, says that we don't want, we're worried about unpredictable expansions of liability.

[00:17:49] Speaker 04:
And I would refer you to McCown.

[00:17:50] Speaker 01:
I don't know that it's so clear, counsel.

[00:17:52] Speaker 01:
You keep saying Washington law is clear, but I think that the problem that I struggle with this case, and it comes up every time we're trying to apply law to new technological situations, is trying to predict

[00:18:06] Speaker 01:
whether the Washington Supreme Court would be willing to look at this case and expand the special relationship based on new technologies, essentially, because there are mechanisms in place for Uber to minimize these sort of tragedies from happening, right?

[00:18:27] Speaker 01:
And so, you know, when I look at Washington law, cases like HBH and Barlow, it clearly says that the key factors to look at is, and I'm reading now from either Barlow or HBH, that the duty is not based on custody, but dependence of the victim.

[00:18:44] Speaker 01:
The key issues are dependence and control.

[00:18:48] Speaker 01:
So those are the factors.

[00:18:50] Speaker 01:
So talk to me about

[00:18:51] Speaker 01:
dependence and control and how the Washington courts would apply to this because from the driver's perspective, he or she has no control over the identity of the individuals that they pick up, right?

[00:19:06] Speaker 01:
That's solely controlled by Uber.

[00:19:10] Speaker 04:
Yes.

[00:19:10] Speaker 04:
So in the Bartow case,

[00:19:12] Speaker 04:
You're referring to the 315B special protective relationship analysis that they do.

[00:19:17] Speaker 04:
And they say point blank, if there's going to be any kind of special protective relationship, you need effectively a legally helpless individual in some sense.

[00:19:26] Speaker 04:
You need a child who is in the foster system.

[00:19:30] Speaker 04:
You need an adult who is living in assisted living care, someone who is completely dependent upon you for their basic activities in their life.

[00:19:40] Speaker 04:
You essentially need a legally

[00:19:42] Speaker 04:
Invalid.

[00:19:43] Speaker 04:
Vulnerability is a legal term of art that refers to basic incapacities on the part of the individuals.

[00:19:49] Speaker 04:
It does not apply to individuals who are in an arm's length contract situation where they enter into a business relationship with the person.

[00:19:57] Speaker 04:
And I think Judge Boumete had already pointed out at least one instance where there is

[00:20:02] Speaker 04:
not complete control and there is an ability to exercise self-protection here as Uber drivers, our drivers are free to reject a ride either at the initial point where the request is made or when they pull up.

[00:20:16] Speaker 01:
That's easy to say, right?

[00:20:17] Speaker 01:
But in order to prevent yourself from becoming a victim of crimes such as this, you'd have to reject every single rider that asks for it because you don't know anything more, as I understand and correct me if I'm wrong, as a driver you don't know anything more than that somebody's requesting a ride.

[00:20:32] Speaker 04:
So there's no evidence in the record.

[00:20:34] Speaker 01:
Whether somebody signed up with a fake identity or not, you don't have any control over that as a driver.

[00:20:39] Speaker 04:
So I don't think that the briefs expressly address this.

[00:20:43] Speaker 04:
And I'm not sure whether there's anything in the record.

[00:20:45] Speaker 04:
But you have the rating of the individual, I believe, is related to the driver, the area where they're making the request.

[00:20:52] Speaker 04:
So there's some basic information that you can kind of triangulate where a driver might decide that it's not worth their while.

[00:20:58] Speaker 04:
But a point that we do make in the brief and that isn't disputed

[00:21:01] Speaker 04:
is that drivers are also free to implement their own security measures if they want to, including having dash cams in their cars, if they want to place barriers between them, similar to what you see in a lot of taxes.

[00:21:11] Speaker 04:
Does Uber offer any help in that regard?

[00:21:14] Speaker 04:
No, your honor.

[00:21:16] Speaker 04:
But they help Uber drivers get a car, right?

[00:21:18] Speaker 04:
They do make rental cars available.

[00:21:21] Speaker 04:
I think there have been pilot programs making dash cams available, but it hasn't been made.

[00:21:28] Speaker 04:
You get in a taxi these days, and they all

[00:21:30] Speaker 04:
They all seem to have dash cams.

[00:21:33] Speaker 04:
Yeah, which I think, to go to Judge Boumete's question, further cements there's much greater control being exercised by taxi companies, including requirements that the yellow cab meet their trade dress and other things.

[00:21:45] Speaker 04:
And they're still not considered independent contractors.

[00:21:49] Speaker 04:
employees in a special protective relationship.

[00:21:51] Speaker 04:
But I think to get back to the first point is, you don't even have to get into any of the questions about what kind of relationship Uber is in with Mr. Cisse or whether or not there's a 302B act of misfeasance

[00:22:03] Speaker 04:
Because they need some evidence of foreseeability that there was a risk of this kind of premeditated carjacking being carried out by somebody who was using an anonymous payment method.

[00:22:15] Speaker 01:
And the only evidence- So let me ask you this, Council.

[00:22:18] Speaker 01:
Can a rider today sign up the way Bebeck and Wade did?

[00:22:24] Speaker 04:
No.

[00:22:25] Speaker 04:
No, there's now the doc scan program has been implemented in April of 2021.

[00:22:30] Speaker 01:
And the purpose of that is to prevent these sort of things from happening.

[00:22:33] Speaker 04:
Correct.

[00:22:34] Speaker 04:
Which is why it's a subsequent remedial measure.

[00:22:36] Speaker 04:
And when the art, the only argument they put forward in their opposition brief, they said, and I believe footnote 189 at a 400 something, they argued that this is a subsequent remedial measure, but we fit under this exception.

[00:22:50] Speaker 04:
And now

[00:22:52] Speaker 04:
So Judge Rothstein goes with that and addresses that in her summary judgment.

[00:22:56] Speaker 04:
But then they turn around in their opening brief, and they don't challenge that basis.

[00:22:59] Speaker 04:
They offer an entirely new theory, which is this isn't a subsequent remedial measure at all.

[00:23:04] Speaker 04:
And then they pivot back into their reply brief, and then they try and resurrect this committee note theory that they put forward below.

[00:23:11] Speaker 04:
This is an abuse of discretion standard.

[00:23:14] Speaker 04:
Your case law is very clear that an individual can't flip-flop on their theories of admissibility when they're challenging summary judgment.

[00:23:21] Speaker 04:
And what I would submit to you, Judge Paez, is if you have some concerns about these issues, resolving this on the foreseeability issue is the easiest and cleanest way.

[00:23:32] Speaker 02:
Let me ask you this.

[00:23:32] Speaker 02:
Should we certify this issue to the Washington Supreme Court?

[00:23:39] Speaker 04:
Absolutely not, Your Honor.

[00:23:41] Speaker 04:
So we laid out, first of all, you have your own precedents making clear that you should not be- We just certified a similar issue to the California Supreme Court, but we haven't heard from them yet, but we just did that.

[00:23:52] Speaker 04:
Yeah, so our reply brief, our 28-J reply letter that we filed recently ran through the differences between those two situations.

[00:24:02] Speaker 04:
I think most importantly is your presumption against certification applies here, and there needs to be a compelling interest

[00:24:09] Speaker 04:
beyond just the parties, the merits itself.

[00:24:14] Speaker 04:
It needs to go to either some sort of federal constitutional issue, some state law issue, some sovereignty issue that would justify it.

[00:24:21] Speaker 04:
And they haven't put that forward.

[00:24:23] Speaker 02:
Usually, if it's an important question that's raised in our case, that the answer to it would resolve the case before us, we can certify it.

[00:24:33] Speaker 04:
It doesn't have to be a federal question.

[00:24:35] Speaker 04:
And I think, at least in reading that panel's order, which

[00:24:41] Speaker 04:
One of the things that was driving it was the mention that there were many cases pending in both state and federal courts that involve the same issue that would potentially clarify that answer would potentially clarify those cases.

[00:24:54] Speaker 04:
There are no cases pending in either federal or state court.

[00:24:58] Speaker 04:
that involve this issue over his implemented the doc scan program and there's no evidence that the play that the plaintiffs have presented that this is a continuing problem on the platform but over was a good corporate citizen here as soon as the Chicago police told them this was an issue they

[00:25:14] Speaker 04:
They took, Uber took action, it convened a committee, it looked back and did a diagnostic on the situation and it identified what the problem was and it took action.

[00:25:23] Speaker 04:
And so your question on certification, the biggest problem with certification here is you need to decide the admissibility issue beforehand.

[00:25:30] Speaker 04:
Otherwise, you're basically asking for an advisory opinion from the Washington Supreme Court because if they have no evidence of any prior similar acts, then

[00:25:40] Speaker 04:
You're basically asking the Washington Supreme Court to opine either on a set of evidence that clearly does not meet the standard, like their evidence, their expert witness about trafficking and drug cartels using anonymous payment methods, or you're asking them to address this 2021 carjackings report, even though it might be out afterwards.

[00:26:02] Speaker 04:
And the Washington statute says that the question needs to be necessary to the disposition of the proceeding before the federal court.

[00:26:10] Speaker 04:
And until you've resolved the foreseeability issue, and in particular, the admissibility of the 2021 carjackings report, then there is no need for the Washington court to be weighing in.

[00:26:21] Speaker 04:
And that's what really makes this a different dynamic in terms of whether or not certification is appropriate.

[00:26:26] Speaker 03:
Isn't there some evidence that Uber knew about some of these carjackings, the Jira ticket issue?

[00:26:31] Speaker 04:
So, well, we, I think, laid this out in page 10 and 11 of our brief.

[00:26:35] Speaker 04:
So the Jira ticket is sort of the incident report.

[00:26:39] Speaker 04:
Right.

[00:26:40] Speaker 04:
similar to the FBI, they didn't have a specific carjacking category that they were tracking.

[00:26:45] Speaker 04:
They would identify whether there was a theft, whether the vehicle was stolen, whether there was a physical altercation, some other potential issues between drivers and riders, but they didn't track carjacking specifically.

[00:26:57] Speaker 03:
And they had no... But do you need to have carjacking specific... Was there any ability to attempt to link the lack of identification or use of burner phones or use of prepaid credit cards to increase in crime?

[00:27:08] Speaker 04:
not not until after the Chicago police tip them off because they have a separate set of the user profiles and what they did is they cross reference these incident reports with the profiles as part of the remedial measure and that's when they made the connection between the the

[00:27:25] Speaker 04:
Increase in carjackings primarily in Chicago and a handful of other cities and then they decided to implement the doc scan program But prior to that you're saying like they essentially could have they had the data they could have figured out this relationship But they just didn't until after this incident.

[00:27:42] Speaker 04:
Is that correct?

[00:27:43] Speaker 04:
They had they didn't have They did not have any reports specifically letting them know that there was a connection between these two things they would have had to

[00:27:54] Speaker 04:
have been tracking and investigating these reported incidents in a completely different way.

[00:27:59] Speaker 04:
And as we pointed out in our brief, no state has ever said that businesses can be liable for failing to identify a modus operandi by investigating past events

[00:28:11] Speaker 04:
drawing the connection themselves and effectively doing the work of law enforcement.

[00:28:15] Speaker 04:
And that's why this would be a truly novel burden.

[00:28:17] Speaker 04:
And I think to kind of seal up your question, Judge Paez about certification is what the Washington Supreme Court has said in footnote six of McCown is unless you have a concrete proposal for what the new test for assessing foreseeability is going to be, we're not going to venture into those waters.

[00:28:32] Speaker 04:
We're not going to chart a new test.

[00:28:34] Speaker 04:
And they did not present any alternative test in the district court.

[00:28:38] Speaker 04:
They haven't articulated anyone in their briefs here.

[00:28:40] Speaker 04:
And so it would be inconsistent with that basic instruction from the Washington Supreme Court's precedent to certify here.

[00:28:48] Speaker 04:
I think the case law is clear.

[00:28:50] Speaker 04:
Judge Rothstein got it right.

[00:28:52] Speaker 04:
And this court should affirm the grant of summary judgment.

[00:28:55] Speaker 01:
Thank you, counsel.

[00:29:05] Speaker 00:
I'll start with the last point that we mentioned, not certification, but foreseeability.

[00:29:10] Speaker 00:
In McCowen, the court did not hold, as they represented in their briefs, that prior similar incidents is the only way to demonstrate foreseeability.

[00:29:20] Speaker 00:
Instead, the Washington Supreme Court held that the place and character of a defendant's business or prior experience could also establish that, but said that the parties hadn't discussed it in that case.

[00:29:35] Speaker 00:
And so it wasn't going to say what kind of evidence that would constitute, but on remand, the district court allowed evidence of institutional knowledge just as we have presented here, evidence of Uber's knowledge in different parts of the country and different parts of the world that this was a risk and held that that did establish foreseeability.

[00:29:59] Speaker 00:
So the court in McAllen said, we will hold for a future case exactly what type of evidence will satisfy this.

[00:30:08] Speaker 00:
This may be that case.

[00:30:09] Speaker 00:
I think it's obvious that we established foreseeability here.

[00:30:15] Speaker 00:
The reference to Barlow and the requirement of vulnerability for a special relationship, well, that is presented as an absolute requirement.

[00:30:24] Speaker 00:
But in Barlow, the plaintiff herself was not

[00:30:28] Speaker 00:
vulnerable in the sense that they suggest that it was not invalid or completely incapable of taking care of herself.

[00:30:34] Speaker 00:
And yet the university still had a special relationship with her, so long as she was on campus or in university-controlled activity, which means as long as you're under the university's control, we do have that special relationship, regardless of whether you're physically vulnerable or infirm.

[00:30:55] Speaker 00:
As far as its previous knowledge, Uber is a good corporate citizen.

[00:31:00] Speaker 00:
Well, whether they behaved reasonably is clearly a breach of duty question, not whether the duty existed.

[00:31:07] Speaker 01:
What about certification on the special relationship question?

[00:31:10] Speaker 00:
Well, we suggested certification in our motion for reconsideration in the judicial court and in our reply brief.

[00:31:18] Speaker 00:
under similar circumstances, this court has certified the question.

[00:31:22] Speaker 00:
And should the court believe it unclear under Washington Law, or as the District Court put it, this case involves uncharted legal waters, certification is definitely an option.

[00:31:32] Speaker 00:
We think the duty is clear, but it's the court's decision, not ours and not opposing counsel's.

[00:31:39] Speaker 01:
Thank you.

[00:31:39] Speaker 01:
Thank you very much, counsel, to both sides for your argument today.

[00:31:42] Speaker 01:
The matter is submitted.