From the Courtroom to the Headlines: The $8 Million Uber Rideshare Verdict

Matt Dolman: Welcome to another episode of the David versus Goliath podcast. I'm Matt Dolman, managing partner of the Dolman Law Group. Today I have my esteemed guest, and this is like an A-lister. I got Alexandra — Alex. She's known as Alex Walsh. Alex previously clerked for the Supreme Court. I don't know how to say that without like a drum roll, but you clerked for Justice Breyer, the Supreme Court. Before that, Merrick Garland, the DC Court of Appeals. Then you started in the private sector as a defense lawyer at Paul Weiss, which is one of AmLaw's biggest firms out there, defending Fortune 100 companies and bet-the-company stakes litigation. And you moved over to plaintiff side. You moved away from the forces of evil, joining the good guys. And just this past February, you made national news in the first MDL trial against Uber in the Uber rideshare passenger sexual assault litigation, which is a mouthful. But how did it feel to walk out of that courtroom that day with an $8 million verdict, holding one of the biggest corporations in America responsible for sexual assaults against passengers — and admittedly, in my humble opinion, it wasn't the best fact pattern. That's not to be cavalier about what this plaintiff went through. To pick out like you went to central casting for the best case — this wasn't the best case to put in front of a jury. It was a tough one. Fair. They walk out of a giant verdict against one of the best defense firms in America, Kirkland's. They threw their best talent at you. You co-tried that case with Sarah London and I believe Deborah Chang. Lead trial lawyer. And I mean that's tip of the hat to you. Tell us about that.

Alexandra Walsh: Thank you. Well, it felt utterly fantastic. And obviously the best part of it was to be able to look our client in the eye — Jaylen Dean, an incredibly brave young woman who showed the most grace and courage and integrity to come forward as a woman in her young 20s to stand up against one of the most powerful companies in the world and say, "I will not be silenced. I will not be silenced. No matter how much you try to intimidate me and blame me for what happened and try to shame me, I am going to stand up for women everywhere to say that what Uber did in sending that driver to pick her up that night — a driver they knew was dangerous, a driver they knew was not the right driver for her — Uber went ahead and sent that driver anyway, and she said, 'No, that is wrong and I am going to hold this company accountable.'" And to have the jury come back and say, "We believe you. We believe what happened to you and what happened to you was wrong and it's not okay and Uber has to pay." I mean, it felt amazing.

Matt Dolman: It has to be one of the biggest events of your career.

Alexandra Walsh: Absolutely. Yeah. Really, it was. I mean, I have no regrets about spending almost two decades on the defense side. I'm proud of the work that I did there. I worked with some of the best lawyers in America and I think really honed the craft of litigation. But to be able to use those skills to fight, to stand up to power, and to fight for an individual, to fight for a young woman who came forward so bravely — yes, it was definitely one of the top three highlights of my career for sure.

Matt Dolman: Had to be. I mean, before that, everyone in the plaintiff bar knew who you were. You're already a big name. But that kind of makes you a darling of the plaintiff bar — like in the names of Mark Lanier — and you're now considered one of the best. You're the choice to go to for the biggest cases. They chose you among many other lawyers who could have tried this case. There are many other lawyers who would have lined up happily to go try this case and you were chosen and you came home with a big verdict on what is, in my opinion, a very tough case to try.

Alexandra Walsh: Well, thanks. And I was — it was a huge honor to try that case with Sarah London of Girard Sharp and Debbie Chang, who has her own law firm. I mean, these are two just powerhouse women trial lawyers and I learned so much from them. And the way we worked together as a team, and with so many other people who helped support us during trial — it was truly awesome in the sense of inspiring.

Matt Dolman: All right. Take those listeners out there who don't understand what a bellwether is — this is a bellwether trial. What is a bellwether trial?

Alexandra Walsh: Sure. Yeah. So some people might be surprised to hear — maybe people aren't surprised to hear — there are thousands of women and men who have come forward because they were sexually assaulted when they were relying on Uber for a safe ride. They believed what Uber said — like, we can transport you safely — and they did not get a safe ride. They were sexually assaulted. There are thousands of people who have come forward to stand up to this company about that. And so all of those cases, many of those cases, have been filed in court. And what happened is they all got consolidated or centralized in one federal court based in San Francisco in front of Judge Brier. And so Judge Brier has presided over all of the legal challenges that Uber — Uber's tried to throw up blockade after blockade to try to prevent these cases from getting to —

Matt Dolman: Not to interrupt you, but this is Charles Brier — Brier, the brother of —

Alexandra Walsh: Brier, the Supreme Court justice that you clerked for.

Matt Dolman: The much cooler little brother of the two Brier brothers. How did the guy go from the Supreme Court to California? Okay, go on.

Alexandra Walsh: So Justice Breyer, who's retired from the Supreme Court, his younger brother is Charles Brier, who goes by Chuck, who is a district court — a trial court judge — in San Francisco. So Judge Brier has presided over all of these Uber cases, brought together in what we call an MDL. And there have been lots of legal wrangling, lots of discovery, all of that. And finally, Judge Brier said, "Okay, we're ready to actually try one of these cases." Like, let's try one of these cases and use it as a model to see how these cases will present to a jury and what issues will arise. And in the parlance of an MDL, we call that a bellwether. And bellwether is an old nautical term, actually, for sort of like a signal of what the weather's likely to be — like what's to come. And so this term bellwether is used to describe the first few cases that go forward in a proceeding like this. So Jaylen Dean's case was the very first bellwether in the MDL, which allows us as plaintiff lawyers and defense lawyers to get a sample of what a jury will do with this evidence and what sort of legal issues may arise during a trial and what the strong points are for the defense and what the strong points are for the plaintiff.

Matt Dolman: Understood. What does the future of the Uber rideshare litigation look like? I know I can't hold you to that — 50,000 foot view. Where are we at? Where's it going?

Alexandra Walsh: Sure. Well, Judge Brier, who is a very experienced MDL judge — he's presided over other MDLs — he has moved this case very quickly and he also understands the power and importance of trial. So just a month after we got that verdict in the first bellwether case, there was another trial. And this trial was the case Uber got to choose — from all the cases that are filed, all the thousands of cases, the judge said, "Which case do you want to try, Uber?" So of all the cases that are filed, Uber said, "We want to try this one." Because Uber thought it could win that case. That was the case it thought it was most likely to win. And you want to know what happened? Uber lost.

Matt Dolman: I know, but the listeners don't.

Alexandra Walsh: Yes, Uber lost. It was not a large verdict in that case. And one would say it was an impossible case to win. My amazing partner William Smith tried that case — one of the rising stars in the plaintiff bar, just a truly really brilliant litigator. Honestly, because it was seen as just very likely to be a loser, I was able to convince the leadership of the MDL that we should use this case to give our younger lawyers an opportunity to get experience. And they agreed, and I went to William and I said, "William, it's all upside. No one expects you to win. So see what you can do." And together with two of the amazing lawyers who represented the plaintiff throughout all these proceedings, they tried the case together and they got a plaintiff verdict.

Matt Dolman: Kudos. So let's segue for a second. You've had a pretty storied legal career. You started on the defense side, before that obviously the Supreme Court and Merrick Garland. You defended Scooter Libby at one point. Take us through that, then how did you walk us through how you went from there to being a plaintiff's lawyer.

Alexandra Walsh: So when I first graduated from law school I really was very interested in doing criminal defense work and in particular what we call white collar criminal defense work, because I liked the idea of representing individuals. I have definitely a law nerd side to my life as a lawyer, and these white collar cases often present really cool constitutional issues. And there were a lot of lawyers I really looked up to who did this kind of work. So I got right into doing white collar work. And the first big case I worked on was being on the defense team for Scooter Libby, which was amazing and it really gave me the trial bug. I was working for two senior lawyers who are two of the best trial lawyers in the country and I learned a tremendous amount from them doing that trial. Coming out of it, what I realized is what was most important to me was getting to try cases and being in court and getting in front of juries. And so I did white collar work for a little bit, but what I realized was that doing products liability work was the way to maximize my time in front of juries, because those cases go to trial a lot. White collar cases often end up with plea deals made before they go to trial, because when what's at stake is someone's liberty, maybe they're less likely to roll the dice with a jury. So a mentor of mine, a woman named Beth Wilkinson — who is also one of the country's great trial lawyers — she said if you really just want to be in front of juries as much as possible, you should do products liability. But I was at a defense firm, and so the way to do that was to defend companies being sued in tort cases and products liability cases. So I did a lot of work for pharmaceutical companies and some consumer brand companies.

Matt Dolman: Shame on you. Now you're on our side. This is what made you — this is how you became an all-star.

Alexandra Walsh: Yeah, I learned a lot from it. I defended some very tough cases and that really helped me hone my abilities as a trial lawyer. But what I can tell you is that it took a toll. I went into the law wanting to represent individuals, to stand up to power — in the white collar space, it was the power of the government. But what I found myself doing was representing some of the most powerful companies in the world. And what really finally made me say I need to make a change was around the time that a lot of the litigation in the products liability space were opioid cases, also cases involving Juul. And I decided that those were not cases that I was — you know, everyone deserves a lawyer, but I don't have to be that lawyer. And so I said, I really want to do something where I feel like I'm deploying my legal skills for something I feel passionately about. And that's what motivated me to make the change to the plaintiff side.

Matt Dolman: I mean, your pedigree would have opened up any doors to you on the plaintiff side anyway. But do you think you'd be as good if you didn't have the defense experience? Better stated, if you didn't have that experience defending corporations, would you know how to take those corporations apart?

Alexandra Walsh: I think it definitely helps. I think the experience that I've had helped. The reason I'm hesitating in answer to your question is a lot of young lawyers ask me now — well, should I do what you did? Should I spend five, ten, twenty years on the defense side before I become a plaintiff lawyer? And what I can tell them is that was my path and I think it's worked really well for me, but I never want to discourage anyone from just going straight to the plaintiff side if that's where their heart and their passion is. And I think the most important thing to develop your skills as a lawyer is to find people at your firm or at other firms on litigation teams — find people who will take the time to serve as your mentor, who will take the time to talk to you about your goals and what's important to you and how to get opportunities and how to develop your skills. I had on the defense side amazing mentors, people who taught me a ton and also really went to bat for me in getting opportunities. I feel really strongly that that is my job now as a more senior lawyer — to go to bat for younger lawyers and support them and help them get good opportunities.

Matt Dolman: So we only got so much time. We're going to jump around a little bit. Uber's main defense is the independent contractor defense. Explain what the independent contractor defense is.

Alexandra Walsh: Okay. So I think a lot of people know this, but Uber drivers — the people who drive on the Uber rides — they're not employees of Uber. Uber contracts with them. So they are, in most states, formally designated independent contractors rather than employees. And why doesn't Uber just hire these people as their employees? Why are they instead contractors? Uber will tell you, "Oh, it's because we want people to have flexibility and we don't want people to have to work a certain number of hours. Maybe they just want to do this as a supplement to their other job." Those may be some advantages to Uber's model, but the real reason Uber does this is by having these people as independent contractors rather than employees. One, Uber doesn't have to pay payroll taxes. And as people who run businesses and have to pay taxes, that's a big expense. Uber doesn't want to do that. What else Uber also doesn't have to do? Give those people benefits. Those people get no benefits. Uber doesn't provide that to its drivers. It's also impossible for those drivers to organize, to the extent they're being mistreated by Uber. The other thing that the independent contractor model gives Uber is the ability to say, "That guy doesn't work for us. He's not our employee. We can't be held liable for what he did." It's so disingenuous that it makes me very upset. And here's why. Because it is so hypocritical. If you look right now at Uber's marketing, at Uber's social media, what you're going to see is Uber saying, "Our drivers provide safe rides. We will send you a good driver. Our drivers are really well vetted. Uber will get you there safely." So when Uber is trying to convince you to get into one of those cars — because Uber makes a lot of money from each of those rides — when Uber's trying to convince you, they wrap their arms around those drivers. Those are our drivers. We're providing the rides. But as soon as something goes wrong on one of those rides, Uber's like, "We barely know this guy. He's an independent contractor."

Matt Dolman: So how did we take apart that defense?

Alexandra Walsh: We just laid that hypocrisy bare to the jury. We showed all of the ads and all of the marketing where Uber tries to pretend — where Uber says the ride is safe and we care about you and we're going to provide you a safe ride — and then pointed out how hypocritical it was for them, when something went wrong on the ride, not to take responsibility for it.

Matt Dolman: So Uber has become like a thorn in our profession. They are now outspending the Chamber of Commerce — $2.50 for every dollar the chamber spends. They are the biggest proponent of tort reform now. And you're obviously well aware of the Uber initiative in California — the cap on attorney fees at 20% after medical bills are paid, which basically would close the door on many personal injury practices. What do you make of that?

Alexandra Walsh: I mean, it's a cynical attempt to entrench their power and to secure their profits. Their CEO has made an average of $35 million a year, every year since he's been there. The profits that they're delivering to their executives and to their stockholders are just astronomical, and they are not willing to have those margins go down by doing what is needed to make their rides safe. So what are they doing instead? All the money that they're pouring into trying to shut down access to justice and access to good lawyers — they're using that to try to demonize plaintiff lawyers, and it's shameful. It's truly shameful.

Matt Dolman: Let's talk about another company. And I'll be careful with my language because we're currently in litigation with them. You were the first lawyer in the country to file lawsuits against Roblox for the sexual predation of minors on their platform — for the facilitation, the grooming, and the actual physical sexual abuse of children. What's going on in that case? And how do you show that a corporation has done wrong when they claim they had no notice of the wrongdoing, or claim these are isolated events?

Alexandra Walsh: In general, when you're looking to show the wrongdoing of a company — the attitude you have to go into it with is patience, persistence, resilience. Because often what these companies do — once we get inside their files, once we get to see their emails, once we get to put their executives under oath in a deposition — the truth will come out. The truth will come out. And what turns out is that they can say, "We had no idea," but it is very rare that when you actually get the evidence that the evidence isn't damning. And what we have to do is plan and be so strategic and deploy all of the talents of all the lawyers who are fighting this company to get past all the roadblocks that companies like Roblox throw up against us. And Roblox is so scared of the truth coming out. What they're doing in this litigation is something that is dastardly. Our clients in these cases are children. They're children who've been subjected to sexual assault and sexual exploitation. And rather than letting these kids — these brave kids and families — rather than letting them have a voice and present their claims in court, Roblox is trying to force them into secret arbitration. That's how scared Roblox is of the truth coming out. And so in a situation like that, what do we do? We do what — Matt, you've been a huge leader in this litigation — what we've done together over these last years is pull together an incredible team of really really bright legal minds to shut down what Roblox is trying to do and to give these kids an opportunity to be heard in court. That's what we're doing.

Matt Dolman: Well stated. Going back to Uber — are there lessons for others watching to better ensure their safety with Uber?

Alexandra Walsh: Yes, absolutely. I will shout it from the rooftops. I have four kids — a boy who's 24 and then three girls, 21, 19, and 14. And they don't take Uber. We don't take Uber in our family. But if they were to take Uber, what they know is — do not get in an Uber alone. Do not get in an Uber alone. Don't get in any rideshare alone. And call your mom instead to come pick you up. Sometimes that's not an option, I get that. But do not get in an Uber alone. Please don't do that is the advice I give.

Matt Dolman: What could Uber have done to make their cars safer? What didn't they do?

Alexandra Walsh: Mandate cameras. Cameras in every single car. Uber knows — and it came out in the first trial, the first case that we tried — Uber has discussed internally for years what an important and powerful deterrent cameras are. Dashcams — I get in taxi cabs all the time, they've got cameras on, and that is a deterrent. It protects the driver. It protects the rider. And Uber won't do it. They will not mandate cameras in their cars. And you want to know why? It comes back to this independent contractor issue. They're scared that if they put cameras in the cars, it will be harder for them to call these drivers independent contractors, because under the law, if Uber is supervising the drivers, if Uber is monitoring them, some courts will say, well, you can't call them an independent contractor. They're not actually an independent contractor if you're monitoring them all the time. So they don't want to mandate those cameras because then they'll have to pay them benefits and they'll have to pay taxes like the rest of us have to pay.

Matt Dolman: Another question — the background checks that they did are lax.

Alexandra Walsh: Yeah. I mean, yes. From what I heard, they don't go through a typical full scrub law enforcement background check. It's just using public databases. There are much more robust databases that they could use. In addition, what they could do — imagine if you wanted to make sure that you have the safest people in those cars who may be going to pick up a young woman — Uber advertises to young women who've been out on the town and need a safe way to get home. If you're going to advertise to those people, if you're going to claim that it's safe, you should do everything you can to make sure you have the safest drivers in the car. When they're signing up a driver, they don't look at the person's social media. They don't conduct interviews. They don't ask for references. They don't ask for a resume. For certain crimes, they only look back seven years. They don't do all the things that you would expect a company that cares about safety to actually do.

Matt Dolman: Is that similar to Roblox? If you're going to put a platform out there and claim it's safe for children six and above, you shouldn't allow adults to speak to children unabated on a platform all day long, every day.

Alexandra Walsh: Or how about this — some of our clients, the predators who went after them were registered sex offenders. What is Roblox doing allowing registered sex offenders to come onto their site? And how is that not foreseeable? It's not about the content because the defense is always Section 230. It's about the construct of their platform. Why not have identity verification? Why not make — if you're coming onto the platform, you need to say who you are and run the most basic checks on these people. And if the person is a registered sex offender, don't allow them on a gaming platform that is designed and built and marketed as being safe for kids. Don't do it.

Matt Dolman: I'm going to wrap it up pretty quickly, but I do want to point out that it's an honor to have this opportunity. I personally think that if something happened to me — I actually told my wife this — the first call you are to make is to go into my cell phone and look for Alex Walsh. And so does Becky, my wife, who is one of my good friends and my business partner. They know to call you. I think you are one of the top five lawyers in the country, bar none. I litigated the cases against Roblox because I knew you were involved and I thought it was going to go well. I thought I'd learn a lot by watching one of the best lawyers. I'm 48 years old. I've litigated for my entire career. I'm not learning anything new except I'm learning from someone much better than myself. And when you work in a small circle — when all you have is a hammer, everything looks like a nail. So when you're a trial lawyer in Tampa, Florida, you reach out to mentors who do car accident cases and I started evolving past doing a lot of predation cases. But I never had the opportunity to work with somebody on your level. So it's been quite an experience, quite a ride. You're an awesome lawyer. Somewhat of a mentor because I constantly lean on you with questions.

Alexandra Walsh: Okay, I'm going to tell you — your wonderful producer has to allow me some space to say that it is an honor to be on your podcast, and you need to accept this — I have learned a tremendous amount from you. I think we are a really, really good team together. And Matt, you have dedicated your career to representing people who really need you and to people who have been hurt and to survivors of sexual violence. And you have such a wealth of experience and so much sensitivity when it comes to these issues. I have learned a tremendous amount from you. I truly have. And I'm so glad that we've come together as a team. Yes, it is a great team. And all the other lawyers involved in the Roblox litigation — whether it's Sarah London, who's awesome, Brian Alto, Marty Gold, Cooper, Joe Master, who've been on my podcast before — just some of the best lawyers in the country. It's been quite a ride. If I had to put someone at the top of that mountain, I'd put you. So it is an honor.

Matt Dolman: It was great having you, Alex. We'll have you again because there's a lot more I'd like to get into with you. You are a legal nerd and that's why I go to you with a lot of my questions. You're awesome. So thank you very much for coming on today. I appreciate my audience. Have a great day. This wraps up another episode of the David versus Goliath podcast. I'm Matt Dolman. She's Alexandra — Alex Walsh. Have a great day.

Alexandra Walsh: Thank you. Thanks everybody. Thank you so much. I loved it.