Can Ordering a Pizza Invalidate Your Fundamental Rights?
Forced arbitration strikes again.

Last week, a New Jersey court ruled that a couple who had been seriously injured in an accident riding in an Uber forfeited their right to sue Uber because their 12-year-old had clicked on a pop-up box in order to track her Uber Eats pizza order a year earlier. The food delivery app contained a forced arbitration clause that the court said invalidated their right to hold Uber accountable in court.

Georgia and John McGinty were seriously injured when their Uber driver ran a red light and T-boned another vehicle. Both suffered broken bones; Mrs. McGinty was in critical care for a week and required multiple surgeries and Mr. McGinty’s broken hand had to be reconstructed. The medical treatment inflicted staggering medical debt and Mrs. McGinty had to stop working for a year to recover. 

Adding to the trauma, injuries, and expense, the McGintys have been unable to hold Uber accountable in court. Why? Because their junior high-aged daughter clicked “yes” on Uber Eats’ terms of service to order a pizza, which the company required before it would deliver her food. =The terms of service included a requirement that waived the constitutional right to trial by jury for all disputes with Uber and instead required the deeply flawed and unfair system of corporate-dominated forced arbitration. 

Uber isn’t funneling disputes about late pizza deliveries or incorrect food orders into arbitration. Uber is using its terms of service checkbox to prevent the child’s parents from holding Uber’s affiliated business accountable for injuries caused by their driver. 

And Uber is winning. A unanimous panel of three judges found that the parents had waived their right to trial by jury and that even though the McGinty’s daughter might be too young to accept the terms of service, a corporate arbitrator gets to decide whether the terms of service the daughter agreed to in Uber’s food delivery app also applied to the couple’s rideshare trip a year later. Unlike court, once in arbitration, the arbitrator will not have to give any reasons for how a decision is reached, all details will be sealed from the public, and the decision will not be appealable.

Georgia McGinty is a lawyer who may be more legally savvy than the 99 percent of people who have no idea or awareness of forced arbitration clauses. But can someone really consent to arbitration if they have no way to decline an app’s terms and conditions? The New Jersey court ruled that no-choice terms of service can impose forced arbitration requirements that protect companies from being held accountable for serious harms, like the McGinty’s injuries. 

The case is reminiscent of Disney’s effort to use forced arbitration to get a widower’s wrongful death lawsuit dismissed because of a forced arbitration clause in an unrelated free Disney+ trial subscription the widower had signed up for five years earlier. Disney ultimately reversed course and it abandoned its effort to block the suit to protect its image. But that doesn’t help the McGintys or the rest of the public who may have signed away their constitutional rights just by tapping their phone. As a result, corporations like Uber can dodge very justified lawsuits by throwing forced arbitration clauses in nearly all terms of service.

Uber should follow Disney’s example and withdraw this preposterous and repellant legal strategy, but that won’t help the rest of us. We cannot wait for companies to do the right thing as part of their corporate damage control public relations salvo. Rep. Hank Johnson (Georgia) and Senator Richard Blumenthal (Connecticut) have introduced the FAIR Act which would prevent forced arbitration clauses in civil rights, consumer, and employment cases but would allow people to choose between arbitration or the court system after a dispute occurs. Until this bill passes, clicking those pop-up boxes can still be considered a form of legally binding consent that surrenders your constitutional rights.

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