Amicus Curiae Brief — Lydia Olson, et al., Petitioners v. California, et al.

Supreme Court briefOct 1, 2024

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No. 24-269

In the

Supreme Court of the United States

LYDIA OLSON, ET AL.,

Petitioners,

STATE OF CALIFORNIA, ET AL.,

Respondents.

-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE NINTH CIRCUIT

-----------------------------------------BRIEF OF AMICI CURIAE

CALIFORNIA EMPLOYMENT LAW COUNCIL AND

CHAMBER OF PROGRESS IN SUPPORT OF

PETITIONERS

------------------------------------------

Alexander T. MacDonald

Counsel of Record

Michael J. Lotito

WORKPLACE POLICY INSTITUTE

LITTLER MENDELSON, P.C.

815 Connecticut Avenue, P.C., Suite 400

Washington, D.C. 20006-4046

(202) 772-2505

amacdonald@littler.com

mlotito@littler.com

Counsel for Amici Curiae

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

TABLE OF CONTENTS

PAGE:

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICUS ................................................... 1

SUMMARY OF ARGUMENT ............................................. 2

ARGUMENT .................................................................. 7

1. The Ninth Circuit’s opinion invites

legislators

target

individual

companies out of pure spite............................. 7

2. States and cities are already accepting

the Ninth Circuit’s invitation........................ 12

CONCLUSION .............................................................. 19

TABLE OF AUTHORITIES:

PAGE(S):

CASES:

Alvarado v. Dart Container Corp. of Cal.,

4 Cal. 5th 542 (2018) ............................................. 1

Bisonnette v. LePage Bakeries Park St., LLC,

No. 23-51 (U.S. 2023) ............................................ 1

Buchanan v. Warley,

245 U.S. 60 (1917) ................................................. 2

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ......................................... 6, 11

Civil Rights Cases,

109 U.S. 3 (1883) ................................................... 2

Donahue v. AMN Servs., LLC,

11 Cal. 5th 58 (2021) ............................................. 1

DoorDash, Inc. v. City & Cnty. of San Francisco,

No. 21-CV-05502-EMC,

2022 WL 867254

(N.D. Cal. Mar. 23, 2022)............................ 3, 6, 13

DoorDash, Inc. v. City & Cnty. of San Francisco,

No. 21-CV-05502-EMC

(N.D. Cal. July 16, 2021) .................................... 13

DoorDash, Inc. v. City of New York,

692 F. Supp. 3d 268 (S.D.N.Y. 2023) .... 3, 6, 17, 18

Ferra v. Loews Hollywood Hotel, LLC,

11 Cal. 5th 858 (2021) ........................................... 1

Frlekin v. Apple Inc.,

8 Cal. 5th 1038 (2020) ........................................... 1

Gulf, C. & S.F. Ry. Co. v. Ellis,

165 U.S. 150 (1897) ................................... 6, 12, 19

iii

Louisville Gas & Elec. Co. v. Coleman,

277 U.S. 32 (1928) ................................................. 9

Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) ............................................... 5

Olson v. Becerra,

Case No. 2:19-cv-10956

(C.D. Cal. Nov. 9, 2020) ........................................ 5

Olson v. California (Olson I),

62 F.4th 1206 (9th Cir. 2023) ............................. 10

Olson v. California (Olson II),

104 F.4th 66 (9th Cir. 2024) ................5, 10, 12, 19

People v. Uber Techs., Inc.,

56 Cal. App. 5th 266,

270 Cal. Rptr. 3d 290 (2020) ................................. 9

Romer v. Evans,

517 U.S. 620 (1996) ..................................... 6, 9, 11

S. G. Borello & Sons, Inc. v.

Dep’t of Indus. Rels.,

769 P.2d 399 (Cal. 1989) .................................... 7-8

Silver v. Silver,

280 U.S. 117 (1929) ....................................... 10, 11

Troester v. Starbucks Corp.,

5 Cal. 5th 829 (2018) ............................................. 1

U.S. Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973) ............................... 2, 6, 11, 18

U.S. R.R. Ret. Bd. v. Fritz,

449 U.S. 166 (1980) ......................................... 6, 11

United States v. Windsor,

570 U.S. 744 (2013) ..................................... 2, 6, 18

Vanzant v. Waddel,

10 Tenn. 260 (1829) ............................................ 19

Viking River Cruises, Inc. v. Moriana,

142 S. Ct. 1906 (2022) ........................................... 1

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ......................................... 2, 18

STATUTES:

Cal. Lab. Code §§ 2100–2112 ................................... 15

Cal. Lab. Code § 2102............................................... 15

Cal. Lab. Code § 2750.3.............................................. 7

Cal. Lab. Code § 2777(b) ............................................ 8

Cal. Lab. Code § 2777(b)(2)(C) ................................... 8

Cal. Lab. Code § 2786................................................. 8

N.Y. City Admin. Code §§ 20-563 to 20-563.13 ....... 17

S.F. Police Code § 5300 ............................................ 13

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. XIV ....................................... 3, 19

OTHER AUTHORITIES:

A.B. 5, Reg. Sess. (Cal. 2019) [“AB 5”].... 4, 5, 7-10, 15

A.B. 701, Reg. Sess. (Cal. 2021) .......................... 14-15

A.B. 2257, Reg. Sess., § 2 (Cal. 2020) ........................ 8

Alejandro Lazo, California Enacts Law to

Classify Some Gig Workers as Employees,

Wall St. J. (Sept. 18, 2019)

https://www.wsj.com/articles/californiaenacts-law-to-classify-some-gigworkers-as-employees-11568831719 ......................... 9

Alina Selyukh, California Bill Passes,

Giving Amazon Warehouse Workers Power to

Fight Speed Quotas, NPR (Sept. 8, 2021)

https://www.npr.org/2021/09/08/1034776936/

amazon-warehouse-workers-speed-quotascalifornia-bill .................................................... 3, 4, 16

Assembly Floor Analysis: AB 701 Summary

(Sept. 3, 2021) https://leginfo.legislature.

ca.gov/faces/billAnalysisClient.xhtml

?bill_id=202120220AB701#

[“Assembly Floor Analysis”]............................... 15, 16

Eli Rosenberg, Can California Rein in

Tech’s Gig Platforms? A Primer on the

Bold State Law That Will Try, Wash. Post

(Jan. 14, 2020) https://www.washington

post.com/business/2020/01/14/can-californiareign-techs-gig-platforms-primer-bold

-state-law-that-will-try/ ............................................. 9

FREELANCERS AGAINST AB 5,

https://thelibreinitiative.com/wpcontent/uploads/2021/04/FreelancersAgainst-AB5-List-of-600-Affected-Professions002.pdf (last visited Sept. 14, 2024) .......................... 9

Kate Conger & Noam Scheiber, California

Labor Bill, Near Passage, Is Blow to Uber and

Lyft, N.Y. Times (Sept. 9, 2019)

https://www.nytimes.com/2019/09/09/

business/economy/uber-lyft-california.html .............. 4

Lisa Herbold, Instacart Wants to Use

You to Deny App-Based Workers

Their Rights, Stranger (Oct. 11, 2023)

https://www.thestranger.com/guesteditorial/2023/10/11/79204890/instacartwants-to-use-you-to-deny-app-basedworkers-their-rights [“Instacart Op-Ed”] ................ 14

Lisa Herbold, Open Letter to

DoorDash Customers: Support a

Minimum Wage, Stranger (Mary 13, 2022)

https://www.thestranger.com/slog/2022/

05/13/73204725/open-letter-to-doordashcustomers-support-a-minimum-wage

[“DoorDash Op-Ed”] ................................................. 14

Lorena Gonzalez (@LorenaSGonzalez),

Twitter (Nov. 21, 2019) (tweet from

author of AB 5) https://x.com/lorenas

gonzalez/status/1197546573158158336

[“Gonzalez Tweet”] ....................................4, 5, 7, 8, 16

Margot Roosevelt, California Bill Curbing

Use of Contractors Would Not Exempt Uber,

Lyft, Other Tech Firms, L.A. Times (Mar. 26,

2019) https://www.latimes.com/business/lafi-uber-lyft-employee-contractor-bill20190326-story.html .................................................. 8

Memorandum: Council Bill 120294 –

App-Based Worker Minimum Payment

Standards, Seattle City Council

Central Staff (April 8, 2022)

https://seattle.legistar.com/View.

ashx?M=F&ID=10708185&GUID=

694EFC45-9ED0-4BBC-9A65907AE842C3D3 .................................................. 13, 14

vii

News Release, Labor Commissioner

Cites Amazon Nearly $6 million for

Violating California’s Warehouse Quotas

Law, State of Cal. Dep’t of Indus. Rels.

(June 18, 2024) https://www.dir.

ca.gov/DIRNews/2024/2024-46.html ............. 6, 16, 17

Noam Scheiber, Amazon is Fined Nearly $6

Million Over Warehouse Work Quotas, N.Y.

Times (June 18, 2024) https://www.nytimes.

com/2024/06/18/business/economy/amazoncalifornia-productivity-quota.html .......................... 17

Noam Scheiber, California Senate Passes

Bill Reining In Amazon Labor Model,

N.Y. Times (Sept. 8, 2021) https://www.ny

times.com/2021/09/08/business/economy/

amazon-labor-california-senate.html

[“N.Y. Times Report”] ......................................... 15, 16

PayUp Legislation, City of Seattle

https://www.seattle.gov/council/

issues/payup (last visited May 18, 2024)

[“PayUp”] .......................................................... 3, 6, 13

Press Release, Serv. Emps. Int’l Union Loc.

721, California Uber and Lyft Drivers

Complete Historic Three-Day, 500Mile

Caravan for Workers Rights and a Union

(Aug. 29, 2019) https://www.seiu721.org/pressrelease/press-release-for-thurs-aug-29-2019california-uber-and-lyft-drivers-completehistoric-three-day-500-mile-caravan-forworkers-rights-and-a-union.php ................................ 4

S.F. Ord. No. 234-20 (Nov. 3, 2020) ......................... 13

viii

Senate Rules Committee, Office of Senate

Floor Analyses (Sept. 3, 2021) https://leginfo.

legislature.ca.gov/faces/billAnalysisClient.

xhtml?bill_id=202120220AB701#

[“Senate Floor Analysis”] ............................. 15, 16, 17

Susannah W. Pollvogt,

Unconstitutional Animus,

81 Fordham L. Rev. 887 (2013)............................ 3

William Araiza,

Animus: A Short Introduction to

Bias in the Law (2017) ................................... 3, 11, 18

INTEREST OF AMICUS

Amicus curiae California Employment Law

Council (CELC) files this brief in support of

Petitioners Uber Technologies, Inc., et al. 1 CELC is a

voluntary, non-profit organization that promotes the

common interests of employers and the public in

fostering the development in California of reasonable,

equitable, and progressive rules of employment law.

CELC’s membership includes roughly 80 privatesector employers in California who collectively

employ more than a half-million Californians. CELC

has participated as an amicus in many of California’s

leading employment cases 2 and several cases in this

Court. 3

Amicus curiae Chamber of Progress is a tech

industry coalition devoted to a progressive society,

economy, workforce, and consumer climate. It is an

industry organization that backs public policies that

1 In accordance with Supreme Court Rule 37.6, amici declare

that no party or counsel in the pending appeal either authored

this brief in whole or in part or made a monetary contribution to

fund the preparation or submission of the accompanying brief,

and no person or entity made a monetary contribution intended

to fund the preparation or submission of the accompanying brief

other than amici or their members. In accordance with Supreme

Court Rule 37.2, amici certify that they notified counsel for all

parties of their intent to file this brief at least ten days before

filing the brief.

2 See, e.g., Donahue v. AMN Servs., LLC, 11 Cal. 5th 58 (2021);

Ferra v. Loews Hollywood Hotel, LLC, 11 Cal. 5th 858 (2021);

Frlekin v. Apple Inc., 8 Cal. 5th 1038 (2020); Troester v.

Starbucks Corp., 5 Cal. 5th 829 (2018); Alvarado v. Dart

Container Corp. of Cal., 4 Cal. 5th 542 (2018).

3 See, e.g., Bisonnette v. LePage Bakeries Park St., LLC, No. 23-

51 (U.S. 2023); Viking River Cruises, Inc. v. Moriana, 142 S. Ct.

1906 (2022).

will build a fairer, more inclusive country in which all

people benefit from technological leaps. Many of

Chamber of Progress’ corporate partners have

interests in promoting innovative, technology-driven

labor-market solutions.

Amici have a significant interest in the outcome of

this case. In recent years, amici’s members have

witnessed a significant increase in targeted, animusbased legislation. Some members have even been the

targets of that legislation. The lower court’s opinion

would invite more of the same legislation—perhaps

even legislation even more blatantly targeted at

specific companies. Amici therefore offer this brief to

help the Court understand the wider implications of

the lower court’s decision.

SUMMARY OF ARGUMENT

It is a principle as old as the Republic: the law

must treat like people alike. That rule was once

understood as a ban on “class legislation,” later as a

corollary of due process, and later still as a bulwark

against “animus.” See, e.g., United States v. Windsor,

570 U.S. 744, 770 (2013) (animus); Buchanan v.

Warley, 245 U.S. 60, 77 (1917) (due process); Civil

Rights Cases, 109 U.S. 3, 23–24 (1883) (class

legislation). But whatever its label, it has always

meant that lawmakers may legislate only to promote

the common good. They cannot write laws to resolve

some private dispute or target some individual

person. They must legislate for all people, equally.

See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528,

534 (1973) (explaining that legislators may not pass

laws out of a “bare desire to harm”); Yick Wo v.

Hopkins, 118 U.S. 356, 369–70 (1886) (legislators

cannot pass laws to exercise “purely personal and

arbitrary power”). See also William Araiza, Animus:

A Short Introduction to Bias in the Law 14–18 (2017)

(describing development from “class legislation” to

“animus” doctrine) (“[T]he Fourteenth Amendment

constitutionalized the rule against class legislation.”);

Susannah W. Pollvogt, Unconstitutional Animus, 81

Fordham L. Rev. 887, 887 (2013) (“It is well

established that animus can never constitute a

legitimate state interest for purposes of equal

protection analysis.”).

Venerable as that principle is, it is now under

threat. State and local legislators are increasingly

weaponizing the legislative process to target

individual businesses. And worse, they are making no

effort to conceal their intent: they are calling their

shots in the public square. See, e.g., DoorDash, Inc. v.

City of New York, 692 F. Supp. 3d 268, 293 (S.D.N.Y.

2023) (finding that app-based platform companies

plausibly alleged that “they were the singular target

of regulated price caps”); DoorDash, Inc. v. City &

Cnty. of San Francisco, No. 21-CV-05502-EMC, 2022

WL 867254, at *2 (N.D. Cal. Mar. 23, 2022) (reciting

statements by members of San Francisco Board of

Supervisors naming specific companies as targets of

commission-cap ordinance); PayUp Legislation, City

of Seattle 4 [hereinafter PayUp] (naming specific

companies as targets of new regulations); See also

Alina Selyukh, California Bill Passes, Giving Amazon

Warehouse Workers Power to Fight Speed Quotas,

4 Available online: https://www.seattle.gov/council/issues/payup

(last visited May 18, 2024).

NPR (Sept. 8, 2021) 5 (quoting author of bill) (“We’re

absolutely targeting the practices of Amazon . . . .”).

This case involves one such shot. In 2019,

California legislators passed AB 5, a bill to change

worker-classification rules. Though the bill facially

applied to hundreds of industries, its real target was

clear. Legislators, labor unions, and the press all

described it as a bill aimed at certain app-based

service platforms—in particular, Uber Technologies.

See, e.g., Lorena Gonzalez (@LorenaSGonzalez),

Twitter (Nov. 21, 2019) [hereinafter Gonzalez Tweet]

(tweet from author of AB 5) 6; Press Release, Serv.

Emps. Int’l Union Loc. 721, California Uber and Lyft

Drivers Complete Historic Three-Day, 500Mile

Caravan for Workers Rights and a Union (Aug. 29,

2019) 7 (stating that AB 5 “would properly classify

[Uber] drivers as employees instead of independent

contractors”); Kate Conger & Noam Scheiber,

California Labor Bill, Near Passage, Is Blow to Uber

and Lyft, N.Y. Times (Sept. 9, 2019) 8 (reporting that

bill’s author opposed any amendments “watering

down” AB 5 to exempt Uber).

The bill’s author, Lorena Gonzalez, did not hide

that purpose. Rather, she wore it like a badge of

Available online: https://www.npr.org/2021/09/08/10347

76936/amazon-warehouse-workers-speed-quotas-california-bill.

Available

online:

1197546573158158336.

https://x.com/lorenasgonzalez/status/

7 Available online: https://www.seiu721.org/press-release/press-

release-for-thurs-aug-29-2019-california-uber-and-lyft-driverscomplete-historic-three-day-500-mile-caravan-for-workersrights-and-a-union.php.

Available online: https://www.nytimes.com/2019/09/09/

business/economy/uber-lyft-california.html.

honor. She declared in public that the bill would force

Uber to change its business practices. See Gonzalez

Tweet, supra. She also promoted the bill by attacking

Uber’s business model. As detailed in the pleadings,

she lambasted Uber in social media, in the press, and

in legislative hearings. See 2d Am. Compl., Olson v.

Becerra, Case No. 2:19-cv-10956, at ¶ 85 (C.D. Cal.

Nov. 9, 2020), ECF No. 81 [hereinafter 2d Am.

Compl.]. 9 She accused the company of exploiting

workers, abusing the legal system, and perpetuating

“modern slavery.” Id. ¶¶ 85–93. And she even called

on the enforcement officials to sue Uber the day after

AB 5 took effect. Id. ¶ 56 (citing Gonzalez Tweet,

supra).

Shocking as these statements were, they carried

no weight with the Ninth Circuit. In fact, the Ninth

Circuit didn’t even mention them. Instead, the court

reasoned that California legislators could have

reasonably identified Uber as the “pioneer” of appbased misclassification. Olson v. California (Olson II),

104 F.4th 66, 79 (9th Cir. 2024) (en banc). They could

also have reasonably decided to strike that problem at

its source. Id. So they could legitimately burden Uber

with an unfavorable legal standard—even as they

offered a more lenient standard to essentially

identical businesses. Id.

That logic turns the no-animus principle on its

head. It treats animus not as an illicit motive, but as

its own justification. And if allowed to stand, it would

mean that legislators can target a business whenever

they decide that the business is worth targeting. It

9 As this case was resolved on a motion to dismiss, the lower

court was required to treat the allegations in the complaint as

true. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 195 (2024).

would reduce a venerable principle to a tautology. Cf.

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 180 (1980)

(Stevens, J., concurring) (explaining that too wooden

an application of rational-basis review would reduce

judicial review into “a mere tautological recognition of

the fact that Congress did what it intended to do”).

That result would matter for more than just this

case. Already, legislators in California, Seattle, New

York, and elsewhere are legislating with the express

purpose of harming specific companies. See, e.g., City

of New York, 692 F. Supp. 3d at 293; San Francisco,

2022 WL 867254, at *2; PayUp, supra. They have not

only admitted that goal, but cited it as a special

justification. See News Release: Labor Commissioner

Cites Amazon Nearly $6 million for Violating

California’s Warehouse Quotas Law, State of Cal.

Dep’t of Indus. Rels. (June 18, 2024) 10 (citing as

justification for fines against Amazon under

California warehouse-quota law that the law was

written to target Amazon’s practices). And if the

Ninth Circuit’s decision is allowed to stand, they will

have no reason to slow down. They will be able to

declare their animus openly and enact it into law.

This Court has corrected similar abuses before.

See, e.g., Windsor, 570 U.S. at 770; Romer v. Evans,

517 U.S. 620, 632–33 (1996); City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 449 (1985);

Moreno, 413 U.S. at 534. See also Gulf, C. & S.F. Ry.

Co. v. Ellis, 165 U.S. 150, 154–55 (1897) (explaining

that “[a] state has no more power to deny to

corporations the equal protection of the law than it

has to individual citizens” and that “classification

10 Available online: https://www.dir.ca.gov/DIRNews/2024/2024-

46.html.

cannot be made arbitrarily”). It should again here. It

should grant the petition for certiorari, reverse the

Ninth Circuit’s decision, and return the case for

further proceedings.

ARGUMENT

1. The

Ninth

Circuit’s

opinion

invites

legislators to target individual companies

out of pure spite.

There is no serious question that AB 5 targeted

Petitioners. On its face, the law adopted a new,

restrictive classification test for workers in multiple

industries. See A.B. 5, Reg. Sess. (Cal. 2019)

[hereinafter AB 5] (codified as amended at Cal. Lab.

Code § 2750.3). But its authors made clear from the

beginning that it was aimed at app-based rideshare

and delivery platforms—especially Uber. As detailed

in the complaint, the law’s chief author, Lorena

Gonzalez, repeatedly attacked Uber in public. See 2d.

Am. Compl. ¶¶ 85–93. She accused it of using

loopholes in existing law to misclassify drivers as

independent contractors. Id. She described its

business model as exploitative and predatory. Id. She

accused it of “wage theft.” Id. ¶ 93 And at one point,

she even endorsed the idea that it was perpetuating a

modern form of slavery. See id. (reciting Gonzalez’s

statements on social media).

That animus toward Uber informed AB 5’s design.

Though the bill adopted a strict classification test, it

carved out multiple industries. See AB 5, supra, § 2.

Those industries could use a more flexible “common

law” test, which allowed them to partner with

independent

contractors

easily.

Id.

(incorporating standard set out in S. G. Borello &

Sons, Inc. v. Dep’t of Indus. Rels., 769 P.2d 399, 403

(Cal. 1989)). But each of these carveouts was written

with Uber in mind—in a bad way. From the

beginning, Gonzalez made clear that she was open to

the carve outs only if they excluded Uber. See 2d. Am.

Compl., supra, ¶ 85. In other words, she was willing

to keep the old test for some companies as long as

Uber had to deal with the new one. See id. See also

Margot Roosevelt, California Bill Curbing Use of

Contractors Would Not Exempt Uber, Lyft, Other Tech

Firms, L.A. Times (Mar. 26, 2019). 11

Gonzalez also made sure the bill would be enforced

against Uber. She included a provision allowing

certain public officials to sue companies for

misclassification and seek injunctive relief. See AB 5,

supra, § 2 (codified as amended at Cal. Lab. Code §

2786). And she publicly called on those same officials

to sue Uber on day one. See Gonzalez Tweet, supra

(calling on “the 4 big city City [sic] Attorneys offices

to file for injunctive relief on 1/1/20”).

Later, when the legislature moved to amend AB 5

to add more exceptions, Gonzalez agreed. But again,

she insisted that the new exceptions exclude Uber.

See 2d Am. Compl. ¶ 92. And that insistence resulted

in the exemptions’ unusual structure. The bill

expanded an exception for certain “referral”

businesses to include new categories, including appbased dog-walking services. See A.B. 2257, Reg. Sess.,

§ 2 (Cal. 2020) (codified at Cal. Lab. Code § 2777(b)).

But it also expressly excluded rideshare and delivery

services. Id. § 2777(b)(2)(C) (excluding, among others,

“delivery, courier, [and] transportation” services).

And only one company in the state regularly

11 Available online: https://www.latimes.com/business/la-fi-uber-

lyft-employee-contractor-bill-20190326-story.html.

facilitated both delivery and rideshare services—

Uber. Cf. Romer, 517 U.S. at 633 (“[D]iscriminations

of an unusual character especially suggest careful

consideration to determine whether they are

obnoxious to the constitutional provision.” (quoting

Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32,

37–38 (1928))). 12

As a result, no one was confused about AB 5’s

purpose. Media reports widely described the law as a

measure to target Uber. See, e.g., Alejandro Lazo,

California Enacts Law to Classify Some Gig Workers

as Employees, Wall St. J. (Sept. 18, 2019); 13 Eli

Rosenberg, Can California Rein in Tech’s Gig

Platforms? A Primer on the Bold State Law That Will

Try, Wash. Post (Jan. 14, 2020) 14 (reporting that AB

5 was “[k]nown informally as the gig-economy bill”).

And even a California court of appeal, having

reviewed the legislative history, concluded that the

law had been designed to target a handful of appbased platforms, Uber included. People v. Uber Techs.,

Inc., 56 Cal. App. 5th 266, 270 Cal. Rptr. 3d 290, 297

n.18 (2020) (agreeing with Uber’s counsel that “the

Legislature ‘targeted’ ride-sharing companies, even if

its aim was not a rifleshot”). The record practically

By some counts, AB 5 ultimately exempted more than six

hundred professions. See, e.g., FREELANCERS AGAINST AB 5,

https://thelibreinitiative.com/wp-content/uploads/2021/04/Free

lancers-Against-AB5-List-of-600-Affected-Professions-002.pdf

(last visited Sept. 14, 2024) (listing exempted professions).

Available online: https://www.wsj.com/articles/californiaenacts-law-to-classify-some-gig-workers-as-employees-1156883

1719.

Available online: https://www.washingtonpost.com/business/

2020/01/14/can-california-reign-techs-gig-platforms-primer-bold

-state-law-that-will-try/.

dripped with animus. See Olson v. California (Olson

I), 62 F.4th 1206, 1219–20 (9th Cir. 2023) (panel

decision) (“Plaintiffs plausibly allege that their

exclusion from wide-ranging exemptions, including

for comparable app-based gig companies, can be

attributed to animus rather than reason.”).

And yet, sitting en banc, the Ninth Circuit found

no cause for concern. The court reasoned that, on its

face, AB 5 affected a variety of industries. Olson II,

104 F.4th at 79 –80. Many businesses, not just Uber,

had to deal with its strict classification standard. Id.

Yes, some legislators had criticized Uber’s business

model. And yes, some amendments had treated other

companies more favorably. But in the court’s view,

legislators could have reasonably concluded that Uber

was the “pioneer” of app-based misclassification. Id.

at 79. And given that conclusion, they could have

reasonably chosen to target the problem its perceived

source. See id. (“It is certainly reasonable for the

legislature to try to target the problem of

misclassification at its origin.”).

That logic was circular. In effect, it meant that as

long as legislators thought a business was

contributing to a problem, they could single that

business out. And as long as the resulting law singled

out that business reasonably well, the law would be

rationally related to a “legitimate” public purpose—

i.e., targeting that business. See Olson II, 104 F.4th

at 78 (finding that the California legislature acted

rationally by ‘strik[ing] at the evil where it is felt and

reach[ing] the class of cases where it most frequently

occurs.’” (quoting Silver v. Silver, 280 U.S. 117, 123–

24 (1929))). 15 Cf. Fritz, 449 U.S. at 187 (Brennan, J.,

dissenting) (“It may always be said that Congress

intended to do what it in fact did. If that were the

extent of our analysis, we would find every statute, no

matter how arbitrary or irrational, perfectly tailored

to achieve its purpose.”).

But that is not the law. As this Court has

explained over and over, legislators must legislate for

the public good. They cannot intentionally single out

individuals or groups for unfavorable treatment. They

must act for a legitimate public purpose—not out of

pure spite or a “bare desire to harm.” Moreno, 413

U.S. at 534. See also Romer, 517 U.S. at 632 (“[E]ven

in the ordinary equal protection case calling for the

most deferential of standards, we insist on knowing

the relation between the classification adopted and

the object to be attained.”); City of Cleburne, 473 U.S.

at 450 (finding that law based solely on “irrational

prejudice” failed rational-basis review). See also

Araiza, supra, at 101–10 (explaining that under the

Court’s precedent, even rational-basis analysis

necessarily requires a legitimate public goal—and

15 Silver is inapposite. It involved a Connecticut law providing

that no person carried gratuitously in a car could recover for

injuries caused by the car’s negligent operation. There was no

suggestion that the law targeted any person or group; the

challengers argued only that the distinction between paid

passengers and those who rode for free was irrational. The

opinion said nothing about animus or a desire to harm. See 280

U.S. at 123–24 (“In this day of almost universal highway

transportation by motorcar, we cannot say that abuses

originating in the multiplicity of suits growing out of the

gratuitous carriage of passengers in automobiles do not present

so conspicuous an example of what the Legislature may regard

as an evil, as to justify legislation aimed at it, even though some

abuses may not be hit.”).

animus is not such a goal) (“What all this suggests is

that

non-public

regarding

legislation

unconstitutional.”).

Yet that kind of irrational targeting is just what

the Ninth Circuit’s rationale would allow. It would

effectively declare that targeting a “problematic”

business is a legitimate public purpose. Animus

would no longer be an illicit legislative motive; it

would be a legitimate legislative goal. See Olson II,

104 F.4th at 79 (reasoning legislators could

reasonably target the “pioneer” of app-based

misclassification). And that would mean legislators

wouldn’t even have to hide their animus-based

motives. They could, as they did here, announce their

antipathy in the public square. See 2d Am. Compl.,

supra, ¶ 13 (reciting statements by legislators

accusing Uber of “wage theft” and describing Uber’s

business model as “f—g feudalism, all over again”).

2. States and cities are already accepting the

Ninth Circuit’s invitation.

That risk is not hypothetical. In fact, states and

cities are already targeting disfavored businesses. Of

course, that kind targeting is hardly new; legislators

have long tried to help their friends and punish their

enemies. See, e.g., Gulf, C. & S.F. Ry. Co. v. Ellis, 165

U.S. 150, 154 (1897) (considering a law requiring

certain class of railroad corporations to pay legal fees

of injured claimants). What is new about this

targeting is its audacity. Increasingly, legislators are

not only trying to harm specific companies, but

announcing their goals in advance.

Coincidence or no, much of this targeting has

germinated in the Ninth Circuit’s territory. For

example, in 2020, San Francisco adopted a

“commission cap” ordinance targeting a handful of

app-based delivery platforms. See S.F. Ord. No. 23420 (Nov. 3, 2020). The ordinance forbade the

platforms from charging restaurants more than 15%

of an order’s purchase price in fees. Id. § 1 (codified at

S.F. Police Code § 5300). Though it facially applied to

all third-party delivery services, its authors made no

secret of their real targets. In open hearings, they

lamented that the delivery market was dominated by

four specific companies—DoorDash, Uber Eats,

Postmates, and GrubHub. See San Francisco, No. 21CV-05502-EMC, 2022 WL 867254, at *2 (reviewing

statements of members of the board of supervisors).

They accused those companies of “exploiting”

restaurants and extracting profits from the city’s

economy—profits they believed should have gone to

local businesses. See Compl., DoorDash, Inc. v. City &

Cnty. of San Francisco, No. 21-CV-05502-EMC, at ¶

27 (N.D. Cal. July 16, 2021), ECF No. 1. So they wrote

the ordinance with the express goal of draining those

companies’ profits. See id. ¶ 61 (quoting Supervisor

Aaron Peskin) (“The legislation before you today

seeks to extend protections that were passed during

the pandemic . . . [W]e really have an imperative to

protect independent restaurants from the exploitive

and predatory practices of third-party food delivery

apps that seek to extract wealth from our local

economy.”).

A similar dynamic played out to the north in

Seattle. In 2021, the Seattle City Council announced

a package of ordinances subjecting app-based delivery

platforms to new regulatory requirements. See

PayUp, supra. The Council identified its targets in

press releases and published reports. Id. (naming

DoorDash, Uber Eats, and Instacart); Memorandum:

Council Bill 120294 – App-Based Worker Minimum

Payment Standards, Seattle City Council Central

Staff (April 8, 2022) 16 (naming DoorDash, Instacart,

and GrubHub). One councilmember, Lisa Herbold,

even wrote op-eds attacking the companies by name.

She lambasted two of them, Instacart and DoorDash,

for publicly opposing the ordinance package. See Lisa

Herbold, Instacart Wants to Use You to Deny AppBased Workers Their Rights, Stranger (Oct. 11, 2023)

[hereinafter Instacart Op-Ed]; 17 Lisa Herbold, Open

Letter to DoorDash Customers: Support a Minimum

Wage, Stranger (Mary 13, 2022) [hereinafter

DoorDash Op-Ed]. 18 She accused them of misleading

consumers and workers about the ordinances’ effects.

She also denied that the ordinances would raise prices

but, instead, would simply cut into the companies’

margins. The companies, she wrote, should not be

able to profit on the backs of Seattle residents—and

the ordinances would make sure that they didn’t. See

Instacart Op-Ed, supra (“The corporations that need

to be held accountable, like Instacart, should pay the

bill.”).

App-based platform companies haven’t been the

only targets. Also in 2021, California legislators

passed a law targeting the alleged practices of a single

company—Amazon. See A.B. 701, Reg. Sess. (Cal.

Available online: https://seattle.legistar.com/View.ashx?M=

F&ID=10708185&GUID=694EFC45-9ED0-4BBC-9A65-907AE

842C3D3.

Available

online:

https://www.thestranger.com/guesteditorial/2023/10/11/79204890/instacart-wants-to-use-you-todeny-app-based-workers-their-rights.

Available online: https://www.thestranger.com/slog/2022/

05/13/73204725/open-letter-to-doordash-customers-support-aminimum-wage.

2021) (codified at Cal. Lab. Code §§ 2100–2112). On

its face, the law banned certain production quotas

throughout the warehouse industry. See Cal. Lab.

Code § 2102. But as with AB 5, the law’s real target

was clear. The growth in warehousing had been

driven mainly by the success of Amazon, which was

rapidly expanding its warehousing capacity. See

Assembly Floor Analysis: AB 701 Summary (Sept. 3,

2021) 19 [hereinafter Assembly Floor Analysis]

(attributing increased demand for warehousing to

“giants like Amazon”). Amazon’s quota policies had

also received coverage in the press, thanks mostly to

“reports” published by certain labor organizations.

See Noam Scheiber, California Senate Passes Bill

Reining In Amazon Labor Model, N.Y. Times (Sept. 8,

2021) 20 [hereinafter N.Y. Times Report] (citing

reports from the Strategic Organizing Center and

Teamsters). And some of those same labor

organizations appeared as co-sponsors for the bill

itself. See Senate Rules Committee, Office of Senate

Floor Analyses (Sept. 3, 2021) 21 [hereinafter Senate

Floor Analysis] (listing three “co-sources”: California

Teamsters Public Affairs Council, the Los Angeles

County Federation of Labor, and the Warehouse

Workers Resource Center).

That background alone would have left no little

doubt about the law’s target. But lawmakers seemed

determined to leave no possible ambiguity. Official

Available online: https://leginfo.legislature.ca.gov/faces/bill

AnalysisClient.xhtml?bill_id=202120220AB701#.

Available online: https://www.nytimes.com/2021/09/08/

business/economy/amazon-labor-california-senate.html.

Available online: https://leginfo.legislature.ca.gov/faces/

billAnalysisClient.xhtml?bill_id=202120220AB701#.

legislative analyses referred to Amazon repeatedly,

often citing the unions’ reports. See Assembly Floor

Analysis, supra (author comments); Senate Floor

Analysis, supra (author comments) (“Workers at

distribution centers of online retail giants like

Amazon complain of relentless quotas and crushing

workloads and speeds, managed through a system of

constant surveillance.”). And the law’s author—

Gonzalez again—told the press that she and her

legislative colleagues were “absolutely targeting the

practices of Amazon.” Alina Selyukh, California Bill

Passes, Giving Amazon Warehouse Workers Power to

Fight Speed Quotas, NPR (Sept. 8, 2021) 22 (quoting

Gonzalez). She later described the bill as an attempt

to regulate “the Amazon warehouse space.” N.Y.

Times Report, supra. And in her official comments on

the bill, she accused Amazon of maintaining “brutal”

production quotas. See Assembly Floor Analysis,

supra (author comments) (“[I]ncreased demand for ecommerce giants like Amazon to provide the fastest

deliveries at the lowest cost has created a race to the

bottom and accelerated the decline in warehouse

working conditions.”).

Given those comments, it was little surprise when

Amazon became one of the first companies prosecuted

under the law. In 2024, the California Department of

Industrial Affairs accused Amazon of violating the

law almost 60,000 times. See News Release, Labor

Commissioner Cites Amazon Nearly $6 million for

Violating California’s Warehouse Quotas Law, State

22 Available online: https://www.npr.org/2021/09/08/1034776936/

amazon-warehouse-workers-speed-quotas-california-bill.

of Cal. Dep’t of Indus. Rels. (June 18, 2024). 23 And for

those alleged violations, it assessed fines totaling

nearly $6 million. Id. Though the figures were eyewatering, few observers could claim to be surprised.

As the Department itself explained, without irony,

Amazon’s policies were “exactly the kind of system

that the Warehouse Quotas law was put in place to

prevent.” See also Noam Scheiber, Amazon is Fined

Nearly $6 Million Over Warehouse Work Quotas, N.Y.

Times (June 18, 2024) 24 (reporting that the

Department’s investigation was assisted by the

Warehouse Worker Resource Center); Senate Floor

Analysis, supra (listing the Warehouse Workers

Resource Center as a “co-source” of the bill).

This kind of targeting hasn’t been limited to the

West Coast. On the other side of the country, New

York City has been sued for singling out specific

companies with its own commission-cap law. See N.Y.

City Admin. Code §§ 20-563 to 20-563.13. Like San

Francisco, New York allegedly targeted a handful of

app-based delivery platforms and tried to transfer

those platforms’ revenues to local restaurants. City of

New York, 692 F. Supp. 3d at 292–93. And like San

Francisco lawmakers, New York councilmembers

were explicit about their goals. They “lamented” that

the companies were “subsidized by Silicon Valley

money.” Id. at 286. They also complained that

“restaurants across the city and across the country

are at the mercy of third party food delivery services

like Grub Hub [sic] and Uber Eats.” Id. at 280. And

23 Available online: https://www.dir.ca.gov/DIRNews/2024/2024-

46.html.

Available online: https://www.nytimes.com/2024/06/18/

business/economy/amazon-california-productivity-quota.html.

they vowed to return profits to their preferred

constituents. As one councilmember explained, “I will

always stand by my small business owners over a

billionaire-owned company any given day of the

week.” Id. at 283.

After reviewing those comments, a federal district

court blocked the law. The court concluded that the

companies had plausibly alleged that “they were the

singular target of regulated price caps.” Id. at 293.

And that kind of targeting violated blackletter law. As

this Court has often explained, legislators may not

write laws out of a “bare desire to harm.” Moreno, 413

U.S. at 534. See also Yick Wo v. Hopkins, 118 U.S. 356,

369–70 (1886) (“When we consider the nature and the

theory of our institutions of government . . . we are

constrained to conclude that they do not mean to leave

room for the play and action of purely personal and

arbitrary power.”).

But even blackletter law can fade with time.

Though often repeated and reinforced, the no-animus

principle is losing currency. Legislators are targeting

disfavored businesses with only the thinnest veil of

public-oriented rationales. And if the Ninth Circuit’s

decision stands, they will be able to dispense even

with that charade. They will be able to legislate for no

reason but to harm a disfavored business. That is not,

and cannot be, the law. See Windsor, 570 U.S. at 770

(“The Constitution's guarantee of equality ‘must at

the very least mean that a bare congressional desire

to harm a politically unpopular group cannot’ justify

disparate treatment of that group.” (quoting Moreno,

413 U.S. at 534)); Araiza, supra, at 7 (“[S]ubjective

dislike of a group lies at the core of legislation we can

legitimately condemn as based in animus.”).

CONCLUSION

Few principles are more fundamental than equal

protection of the laws. Today, that principle is

embodied in the Fourteenth Amendment. But even

before the Amendment’s adoption, equal protection

ideals were threaded through the law. See Vanzant v.

Waddel, 10 Tenn. 260, 269 (1829) (“A law which is

partial in its operation, intended to affect particular

individuals alone, or to deprive them of the benefit of

the general laws, is unwarranted by the constitution,

and is void . . . .”). Courts have long held that the law

must lay its burdens equally on similarly situated

people. And while laws must often differentiate

between groups, they must do so only to pursue a

legitimate public purpose. They cannot differentiate

solely to harm:

While good faith and a knowledge of existing

conditions on the part of a legislature are to be

presumed, yet to carry that presumption to the

extent of always holding that there must be

some undisclosed and unknown reason for

subjecting certain individuals or corporations

to hostile and discriminating legislation is to

make the protecting clauses of the fourteenth

amendment a mere rope of sand, in no manner

restraining state action.

Ellis, 165 U.S. at 154. The Ninth Circuit’s decision

mocks that principle. It invites legislators to pass

laws solely to punish individual companies—

companies they perceive as the “pioneers” of some

problem. See Olson II, 104 F.4th at 79. Legislators are

unlikely to ignore that invitation; and in fact, some

are already accepting it. Throughout the Ninth

Circuit’s jurisdiction and beyond, states and cities are

passing laws simply to harm companies they dislike.

The Ninth Circuit has shown that it is unwilling to

stop them. That leaves only this Court.

Respectfully submitted,

/s/ Alex T. MacDonald