The next shot has been fired in the long-running misclassification dispute between plaintiff Raef Lawson and gig economy giant Grubhub, as the company filed its Answering Brief with the 9th Circuit Court of Appeals late Wednesday night. As regular readers of this blog know, Lawson and Grubhub squared off in the nation’s first-ever gig economy misclassification trial in late 2017, leading to a victory for Grubhub in February 2018. Things took a turn for the worse in April 2018 when the California Supreme Court dropped a bombshell and changed the misclassification standard with its infamous Dynamex decision, which ushered in the notorious ABC test, and Lawson’s attorneys quickly pounced and argued that he should now be declared the victor given the new standard. Lawson filed an appeal with the 9th Circuit Court of Appeals and filed his opening brief in November 2018. Now, it’s Grubhub’s turn.
Grubhub’s 71-page Answering Brief presents three main arguments to the court:
Let’s take a look at each of these arguments in a little more depth:
Finally, Grubhub argues that, if the court is inclined to apply the Dynamex standard retroactively, it should have the opportunity to present further evidence and argument to the trial court on remand. After all, it says, “the ABC test turns on evidence that the parties had no occasion to investigate or develop when trying their case under Borello.” So rather than take the loss at the 9th Circuit, Grubhub says that it should at least get a do-over at trial, and have another chance to conduct discovery, present new arguments, and create a new record for the fact-finder. The company’s brief presents a long list of concepts that it would like to present in order to satisfy the Dynamex standard, none of which it claims were relevant to the Borello standard and were therefore ignored at trial. “Neither this court nor the district court can fairly consider plaintiff’s claims under the ABC test without all the relevant evidence, and due process guarantees Grubhub the opportunity to develop and present that evidence for consideration,” it concludes.
Next up: Lawson will have a chance to submit a reply brief. You can be sure we’ll review it and summarize it for you once it is filed.