By Hannah Albarazi

Law360, San Francisco (October 22, 2020, 7:56 PM EDT ) A San Francisco judge ordered an Instacart courier to arbitrate claims that the grocery delivery platform falsely advertised that workers would receive personal protective equipment amid the novel coronavirus pandemic, finding Thursday that the courier's claims fell under the Federal Arbitration Act and rejecting his bid for public injunctive relief.

San Francisco Superior Court Judge Ethan Schulman ruled during a video hearing Thursday that Brendon McDonnell and other Instacart workers must arbitrate their claims, finding that they are not engaged in interstate commerce and, therefore, not exempt from the FAA and that he's not persuaded that their public nuisance and unfair competition law claims require public injunctive relief.

McDonnell's argument that Instacart is causing harm by inducing individuals into employment with false promises to provide personal protective equipment amid the pandemic isn't enough to warrant public injunctive relief, Judge Schulman said, explaining that courts have repeatedly found that "where the focus is on the alleged injury to the employees, the fact that it may have ripple effects is not enough to transform something into a suit for a public injunction."

Judge Schulman said the harm alleged by McDonnell focuses "on the effect on the employee, not on the public," and pointed to the Northern District of California's decisions in Rogers v. Lyft Inc. and Capriole v. Uber Technologies Inc., finding that while misclassification of workers has public consequences — including the potential impact on public health — the consequences are too indirect for the court to issue a public injunction.

McDonnell, a courier in California who signed an arbitration agreement with Instacart, filed a putative class action against the delivery giant in California state court in June alleging failure to pay overtime wages and provide required meal and rest breaks, among other labor code violations.

McDonnell asserts that the FAA does not apply to Instacart couriers because they are engaged in interstate commerce, saying they deliver goods manufactured across the country and the world.

He also brought unfair competition and public nuisance claims saying the company refuses to provide masks and hand sanitizer to its couriers amid the pandemic and has refused to reimburse them for their purchase of those products.

Instacart did not respond to Law360's requests for comment on those allegations.

Robert N. Fisher of Bradley Grombacher LLP, counsel for McDonnell, told Judge Schulman that this case is different from the worker misclassification cases brought against Uber and Lyft, arguing Thursday that unlike those cases the courier has brought an unfair competition law claim that's based on alleged misrepresentations made by Instacart.

Judge Schulman is no stranger to cases involving the gig economy. In August, he issued a landmark preliminary injunction requiring Uber and Lyft to reclassify their drivers as employees. That injunction has been stayed pending appeal.

"The allegation is that Instacart falsely advertises to prospective workers — that is the public at large — that it will provide personal protective equipment," Fisher said.

"It's not a labor law claim. The masks and other PPE are necessary to prevent community spread of the virus," Fisher said, arguing that Instacart's misleading advertising is causing harm to the public at large, not just to individual couriers.

"By not providing masks, they are allowing workers to go spread Covid publicly as they go about their deliveries," Fisher said.

But Instacart's attorney, Erin E. Meyer of Keker Van Nest & Peters LLP, told the judge that the allegations of public nuisance focus on the class, not the public.

"At bottom, what they are asking for is reimbursement of costs for PPE, mask purchases, hand sanitizer purchases," Meyer said, arguing that is not enough to justify public injunctive relief.

"Any benefit to the public would just be ancillary," Meyer told the judge.

Judge Schulman concluded the hearing by granting Instacart's motion to compel arbitration and to stay the case.

Following the hearing, Fisher told Law360 via email, "We disagree with the court's conclusion that Instacart's workers are not engaged in interstate commerce and that Instacart's failure to provide PPE to its workers is not an issue that primarily impacts the public. Nevertheless, we plan to proceed with individual arbitration in accordance with the court's order on behalf of plaintiff and other members of the putative class."

Representatives for Instacart did not respond to requests for comment Thursday.

Brendon McDonnell is represented by Marcus J. Bradley, Kiley Lynn Grombacher and Robert N. Fisher of Bradley Grombacher LLP.

Instacart is represented by Rachael E. Meny and Erin E. Meyer of Keker Van Nest & Peters LLP.

The case is McDonnell et al. vs. Maplebear Inc. et al., case number CGC-20-585037, in the Superior Court of California, County of San Francisco.

--Editing by Jay Jackson Jr.

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