Photos by Michelle Nolan.
Judge William Alsup has presided over legal disputes born and bred from the gristle and grind of Silicon Valley since 1999. From Uber to Google to Oracle, the San Francisco federal judge has watched the need of businesses to scale collide with the interests of those being scaled – and has been called upon to find something called justice.
But what happened in his courtroom in December was a new day for the little guy. DoorDash was in the judge’s sights because – like, it seems, most of the new boom-or-bust businesses in the so-called “gig economy” – it had used “contractors” to pick up eggrolls and pepperoni pizzas and deliver them to the masses, without providing the benefits or dignity of treating them as employees.
Now 6,000-plus Dashers had hired their own lawyers and called DoorDash’s bluff.
“We’re here because your client had an agreement to go to [the American Arbitration Association], and when it came time to pay the fee, you backed out and reneged the agreement,” said Alsup. “Your defense law firm and all the defense law firms have tried for 30 years to keep employment cases out of court. Suddenly, it’s not in your interest anymore, and now you’re wiggling around to find some way to squirm out of the agreement.
“I’m a lot older than you,” he said, “and there’s a lot of poetic justice here.”
The DoorDash case was classic Keller Lenkner, the two-year-old Chicago plaintiff firm whose founding partners made their name by launching Gerchen Keller Capital - then the world’s largest and fastest growing litigation finance firm - and selling it to Burford Capital for $175M in 2016.More poetry: The sale of GKC fueled a new type of plaintiff firm built on litigating, at significant scale, claims of those who had essentially been left on the sidelines.
For the DoorDash drivers, Keller Lenkner paid their $1.2M in AAA filing fees, while DoorDash refused to pay its share. That sent the parties to Judge Alsup’s courtroom. In early February, he ruled decisively for the drivers in a decision that made headlines across the country: “DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.”
Keller Lenkner’s founders could easily be mistaken for Wall Street executives and white-shoe defense lawyers - with resumes that include Supreme Court clerkships and prior stints at investment banks, hedge funds, and blue-chip companies and law firms (including one that is defense counsel to DoorDash). They saw an opening in the plaintiffs’ lawyer market for original, creative lawsuits that leverage their financial and legal wherewithal in ways beyond many marketing-savvy law firms.
Now, their practice includes identifying societal shifts that impose costs on large numbers of individuals, and how to use existing law to protect those individuals from the fallout. Examples include changes in technology, such as facial recognition and voice-activated digital assistants.
“Employers, retailers, and other companies are tracking employees’ fingerprints every time they clock in or out or open certain doors, or tracking your face every time you go into certain retail stores, remembering you, knowing you from store to store, from visit to visit,” explains managing partner Travis Lenkner.
“In many cases, you don’t know what’s happening until the data is amassed and used for commercial or other purposes for which you never gave your consent,” he says.
Amazon’s Echo is a perfect example, says co-founder Ashley Keller, explaining how it works when you ask “Alexa” to play a song, provide the weather or answer more complex questions on topics like medical conditions.
“You get the answer, but Amazon is also recording your voice, creating a voiceprint and then sending that to the cloud and having all sorts of people analyze it. And it recognizes you and distinguishes you from your kids, from other people in the house, from your neighbors, from anybody who comes over,” explains Keller. “It might not know their name, but it creates a separate profile for each one, and it’s using and permanently storing these recordings.”
Keller says Amazon’s Echo devices run afoul of laws in many states, including Illinois and California, that require both parties to consent to a conversation being recorded. The firm sued Amazon last June in California state court and Washington federal court, alleging invasion of privacy on behalf of children being recorded in those states without their consent.
To conceive and pursue such legal theories, Keller Lenkner is hiring more than one lawyer a month on average, having already assembled a team of more than 20 lawyers and roughly 50 professional staff. Their focus is on litigators with defense-side experience and an entrepreneurial mindset.
Warren Postman, for example, was Vice President and Chief Counsel for Appellate Litigation at the U.S. Chamber Litigation Center, managing appellate strategy for the U.S. Chamber of Commerce on more than 150 cases each year. Before that, he was an appellate lawyer at Jones Day. He met Keller and Lenkner when all three were Supreme Court law clerks. Ten years later, in 2018, he joined their new law firm as a partner.
Nicole Berg worked with the founding partners at Gerchen Keller Capital, before which she was a litigator at Jenner & Block. Prior to law school, she was an options trader for five years in Chicago. In January, she became the first Keller Lenkner associate to be promoted to partnership.
“Nicole comes from a mix of disciplines, and she addresses problems and thinks about the world in many of the same ways we do,” says Lenkner. “Our strategy has been to find like-minded and well trained people who come from the rigors and background of the defense bar, but who also are entrepreneurial and see more interesting challenges and greater opportunities on the plaintiffs’ side - including being part of a nimble and aggressive boutique as opposed to a large defense law firm.”
Berg was unsurprised that the trio decided to start a plaintiff firm. “Knowing what drives them, opening a plaintiff firm was a pretty natural transition when you see how it’s working,” she said. “They are constantly looking to see how they can do something different from how everyone else is doing it.”
All three founders are enjoying the shift to the plaintiffs’ side, and defying the presumption that Big Law and defense-side practices are the most desirable path. “There are certainly some people at big firms who have a philosophical disposition that they will only represent clients on the defense side - who think they’re on the side of the angels,” says Keller. “By and large, though, people realize that sometimes plaintiffs should win and sometimes defendants should win. For those people, who I think are actually in the majority, our firm offers a more attractive value proposition in terms of intellectual brain food and satisfying the reasons you went to law school.
“In some ways, it’s easier to be a defense lawyer. You’re reacting to what someone else has done and you have lots of ways to win. If you win on any particular defense or any particular issue, you can typically kill a case.”
That’s not the case for plaintiffs. “We have to be right on everything, all the way through to the end. They also have to use their creative thinking to originate the idea in the first place, so it’s much more three-dimensional chess,” Keller says.
There’s also the benefit of not billing out your life in six-minute increments. “Here, you’re not reduced to what your billing rate is. It’s not about, ‘Oh no, an extra person can’t have an idea and sit in this meeting because the client won’t pay for that hour,’” adds Lenkner.
Adam Gerchen, the firm’s CEO, says, “We are, by necessity, a leaner organization, so that means we’re somewhat agnostic to the year of graduation, for instance. You’re getting the ball a lot earlier in your career than you might elsewhere. And those who are successful can rise very quickly.”
And rise they have. In the blink of an eye, the firm has moved to the forefront of litigation, from the nationwide opioid epidemic to wholesale assaults on venture-capital-backed companies exploiting workers. Nowhere is their impact being seen as clearly as in their representation of thousands of gig-economy drivers and other workers who previously found it difficult to enforce their rights, in large part because their individual claims were not economically viable for many lawyers.
They’ve brought claims against Uber, Lyft, Postmates, DoorDash, and others on behalf of ride-share drivers and couriers denied benefits by their classification as independent contractors rather than employees. The app-based consumer businesses pose a substantial hurdle for lawyers to reach drivers who are being wrongly forced to arbitrate claims.
“We’re different because we’re willing to take up the challenge these companies created when they imposed arbitration clauses that require individual disputes, prohibit class actions, and force everybody into the arbitration machine,” Lenkner says. “Most firms have not even tried to say, ‘We’re going to make the economics work of representing this many people on this scale in individual disputes.’”
Keller Lenkner has an answer for that, having built a massive infrastructure to serve its clients - and having the fortitude to advance the hundreds or thousands of dollars per client that can be required to pursue an arbitration. To scale those rights means to represent as many as 20,000 clients at a time against the best defense firms in the world.
“I would be worried if we weren’t against top firms,” Lenkner says, “because that would mean the defendants thought our cases lacked merit and could easily be defeated by someone who didn’t cost $1,500 an hour.”
To succeed on behalf of the workers, they’ll also muster substantial legal acumen, framing the litigation as just the most recent in a long history of business exploiting workers.
“At this point, we have almost a century of experience seeing how companies will twist the labor laws and call it ‘innovation.’ This time it’s gig-economy workers - drivers and shoppers and couriers and delivery ‘Dashers,’” says Lenkner. “Decades ago, it was strawberry pickers and piece workers. But at bottom, the theories are the same, and the ways large companies are trying to take advantage of people are the same.”
Lenkner says companies have tried to cloak harsh contractual terms and ways of treating people “in technology,” arguing that these dynamics are acceptable simply because they are part of the new economy.
“But that new economy is really harming quite a lot of people. It’s creating a workforce of people who are working through six or eight apps for 12 to 17 hours a day to make ends meet, with no benefits, no protection and not even a minimum wage,” Lenkner says.
If the farmer of 50 years ago said to the migrant farm worker, “Go pick this part of the strawberry field, go pick that part of the strawberry field,” Keller says, nobody today would say that that worker is not an employee. But if the farmer instead says, “My app is going to tell you, just look at your phone and that will tell you which part of the field to go pick,” that worker has not suddenly become an entrepreneur who controls the levers of profit and loss. He’s still a low-skilled worker who’s toiling really long, hard hours to make ends meet.
Keller says innovation and improvements in how we receive goods and services shouldn’t mean that low-skilled workers forego basic protections provided by the law.
“Our clients are exactly the people in need of this caliber of representation,” Keller says.