In spring of 2017, sleep starved and bleary eyed, Nicole Bartow, coleader of the US litigation team at Uber, was at her laptop, sifting through files for the discovery phase of an intellectual property suit that Google’s self-driving car spin-off, Waymo, had brought against Uber. The claim alleged Anthony Levandowski, a former Google engineer, stole proprietary files to create his own start-up, Otto. That company was then sold to Uber, where, months later, Levandowski became the head of Uber’s self-driving car division.
Bartow would, nearly a year later, be excited for the case to go to trial, but back in the spring of 2017, when she answered a call from Randall Haimovici, Uber’s other coleader of the US litigation team, regarding a list of job applicants for several newly vacated positions, her head was swimming. Not only was she working around the clock on the Waymo matter, but the litigation team at Uber was dwindling.
The team had shrunk from thirteen lawyers to just six in a matter of months, due, in part, Haimovici says, to the emotional toll of a spate of negative reports coming out in the press: the New York Times had raised red flags about an Uber-operated Greyball program allegedly intended to deceive law enforcement, then CEO Travis Kalanick had fallen under public scrutiny for overseeing a combative workplace culture, and Susan Fowler, a former employee, had published a lengthy blog post describing alleged incidents of sexual harassment that were ignored by human resources. Morale was low, to say the least.
“Imagine February and March, when lawyers in the department started to leave,” Haimovici says. “The workflow was dramatically increasing, and the challenges the company was facing became very public. Nicole and I would get together and go through hundreds of resumes many nights—late nights.”
Their work helped turn the department back around, and now they’re prepared to handle even their toughest cases—and they’ve also played a key role in helping families impacted by recent changes in US immigration policy.
The Right People For the Job
When Bartow and Haimovici began looking for appropriate hires to restaff their team, they weren’t necessarily looking for tenure at a top law school or years at a high-profile firm. “We were short-staffed and couldn’t have any sharp elbows in the room,” Bartow says. “People incredibly well qualified didn’t get offers; credentials were important, but there was also an emphasis on finding resilient people who could support each other and work well together.”
The people they found came mostly from California and New York firms, and a few came from Fortune 500 companies such as HP. But, there was diversity to their backgrounds, reflecting the priorities of Salle Yoo, Uber’s general counsel until 2017.
The revamped litigation team—just twelve lawyers, four paralegals, and a three-person e-discovery unit—is now handling a whopping 130 active cases. Separate teams deal with employment suits and insurance matters, and outside counsel are called in to assist with most cases, but the bulk of the work falls in the lap of the litigation team that Bartow and Haimovici helped build.
Among other matters, the team has handled high-profile sexual harassment complaints, discussions regarding wheelchair-accessibility requirements under the Americans with Disabilities Act, and, recently, the legalities surrounding a widely publicized security breach, during which hackers reportedly stole the personal data of fifty-seven million Uber customers and drivers. Uber paid them to delete the stolen data and keep quiet.
In a triage-like atmosphere of near-constant disruption and crisis management, preserving morale is a major part of the job. “When you have all these negative headlines that seem to come at such a rapid pace, what we need to do, on the litigation team, is be open and honest with each other,” Haimovici says. “That means being very transparent, on the one hand, and hitting the local bar and having a glass of wine on the other.”
Outside counsel appreciate the efforts toward transparency and inclusivity as well. “It’s a great pleasure to partner with Nicole and Randy,” Reed Smith attorney John Bovich says. “They structure their matters so that in-house and outside counsel all work on the same team and toward the same goals.
Signaling a Shift
CEO Dara Khosrowshahi says that for all the tough press Uber has endured, there is a genuine cultural shift happening within the company. Even before he took over as chief executive in August and Uber launched a company-wide effort to adopt the recommendations made by Eric Holder, of Covington & Burling, regarding Uber’s workplace culture and employee policies, the litigation team had been overseeing measures to make the company more transparent and accountable.
For example, the team pushed Uber to open an anonymous employee help line, begun in March 2017, that provides a method for any worker to report a grievance—from sexual harassment to workplace discrimination—and have that claim formally investigated. Additionally, online and in-person management training courses, led by Achia Swift, an Uber attorney, and Frances Frei, senior vice president of leadership and strategy, have focused on fair and appropriate treatment of employees and leadership and strategy concepts such as building trust and working with teams.
More recently, at an all-staff meeting in San Francisco, Khosrowshahi introduced a new set of cultural norms and tenets such as “We do the right thing.” They’re intended to strike a warmer tone than the combative corporate mantras that reined under his predecessor, and they offer further evidence that the company is changing.
Aid to Immigrants
Even before its transformation, Uber’s legal team had always been quick to respond to crises. Back in January 2017, for instance, when President Trump signed an executive order issuing a ban of travelers from certain Muslim-majority countries, the company stepped in to provide legal counseling to its cadre of nonnative-born drivers working as independent contractors—as well as their siblings, parents, spouses, fiancées, and children.
Within forty-eight hours of the ban, Kalanick had conceived the idea and committed $3 million to fund it. Deputy general counsel Angela Padilla was responsible for executing the plan, and she set out to mobilize in-house lawyers and outside counsel at brick-and-mortar driver-support centers, known as Green Light Hubs, in roughly a dozen cities.
Haimovici got his marching orders over the weekend. He left his San Francisco home Monday morning, without a suitcase, and was in Seattle by noon. Later that week, he found himself in Dallas. Bartow covered Atlanta and Denver, with other team members fanning out to Green Light Hubs across the country to oversee in-person counseling provided by hired attorneys from Gibson, Dunn & Crutcher; Boies Schiller Flexner; Shook, Hardy & Bacon; and Fragomen, Del Rey, Bernsen & Loewy. Many specialized in immigration law.
The size, swiftness, and coordination of the operation were like nothing Haimovici had ever seen. “It came out of thin air,” he says. “We’re talking about a 24-7 methodology to get people legal advice online and by telephone—and mobilizing people at Green Light Hubs. And of course, in order to do that effectively, we have to know, legally, how the travel ban will affect these people.”
In the frantic days following the ban, many unresolved legal questions loomed: whether out-of-country relatives would be able return to the US and when, how long travelers would be detained, whether they would be deported, how individuals’ VISA statuses would be affected, etc. Haimovici remembers seeing drivers and their families arrive at Green Light Hubs grimly concerned and desperate for answers. “There was a lot of uncertainty,” he says. “People were scared and wanted to know how to get their relatives back in the country.”
For a brief period, he says, Uber was essentially operating a free legal clinic in cities across the country. Finding their legal status in the United States suddenly in jeopardy, drivers and families turned to Uber as their most reliable source of information. In total, the company offered 556 free consultations, reunited twenty-six families, and got sixty-eight people flown home when the ban was lifted.
Outside counsel were particularly impressed with Bartow and Haimovici’s grace under pressure. “Nicole and Randy are not just exceptional attorneys; they are steady hands with excellent judgment who ably guide their teams in-house and out, no matter what comes their way,” Boies Schiller Flexner partner Karen Dunn says. “I am grateful for their leadership.”
Nine months after the travel ban, in September 2017, the Trump administration formally announced the end of DACA (Deferred Action for Childhood Arrivals), a program that had protected nearly 800,000 young undocumented immigrants brought to the United States. The about-face regarding federal immigration policy gave Uber’s legal team the opportunity to come to its drivers’ aid again.
With the groundwork in place from the earlier clinics, Uber’s reassembled litigation team launched a new counseling program. Once again, it turned to Fragomen, Del Rey, Bernsen & Loewy, recruiting the New York-based immigration firm to prepare a slide deck for the online Dreamer Resource Center, covering the practical repercussions of the decision. The program, on a smaller scale, was still a success: at Green Light Hubs in seven cities, 100 people received in-person counseling, and the Dreamer Resource Center has received more than 17,000 views.
Waymo v. Uber
Earlier this year, Bartow and her team had their sights set on Feb. 5, 2018, the start date of the Waymo v. Uber trial. They had already achieved numerous small victories in the pretrial proceedings, including Waymo’s dropping of all patent claims and a pivotal trade-secret claim and the exclusion of a damages expert, pegged as a key witness. Then, four days into the trial the parties reached a settlement, and the case was dismissed.
It’s yet another in a line of successes that Bartow and Haimovici have contributed to during Uber’s shift, but there’s plenty more work waiting for them ahead. “This company has no shortage of interesting and challenging issues, legal and otherwise,” Bartow says. “We have great people, super smart and strategic, and phenomenal outside lawyers. Fundamentally, I like the chaos, like a firefighter who sees a fire and runs toward it to try to help.”
[Editor’s note: Since this article first went to print, Nicole Bartow has been promoted to lead Uber’s US litigation team as senior director of litigation. She is also now the acting associate general counsel for litigation, government and regulatory investigations and litigation, and competition law.]
Uber partner Boies Schiller Flexner (BSF) is a firm of internationally recognized trial lawyers, crisis managers, and strategic advisors known for creative, aggressive, and efficient pursuit of success for clients. Over two decades, BSF has established a record of taking on and winning complex, groundbreaking, and cross-border matters under diverse circumstances and in a broad range of industries for many of the world’s most sophisticated companies. BSF’s litigators are recognized for prevailing when the odds are longest and the stakes highest. The firm regularly goes to trial, and it prepares each case accordingly, from the start. BSF’s litigators have the experience, judgment, and vision to develop arguments that achieve favorable outcomes, whether those arguments are needed inside or outside of the courtroom. The firm builds deep relationships with its core clients that allow it to represent them in any matter, in any forum, anywhere in the world. BSF regularly represents its clients as plaintiffs as well as defendants, often sharing the risk of litigation through creative fee structure. BSF brings the same skill to bear in its pro bono and public-impact litigation as it does in its commercial work.
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