Georgia and John McGinty suffered life-altering injuries on March 21, 2022, when their Uber driver ran a red light at the intersection of two New Jersey highways and T-boned another vehicle. Georgia broke her neck and fractured her spine and ribs. She sustained a protruding hernia and traumatic injuries to her abdominal wall and pelvic floor, and nearly died at the hospital after experiencing a postoperative infection. John fractured his sternum, left arm, and wrist. Georgia, a family law attorney, couldn’t return to work for over a year, and John still doesn’t have full function of his left hand.
The McGintys sued the company in February 2023, but a few months later, Uber filed a motion arguing that the McGintys had no legal right to do so. According to Uber—and a New Jersey appellate court, which agreed last month—the McGintys gave up their right to sue over the car crash months before it even happened, when they ordered dinner delivery via Uber Eats.
Back in January 2022, while the McGintys were busy packing for a trip, their 12-year-old daughter had used Georgia’s phone to order pizza for the family. After she placed the order, and as the delivery driver was en route, 7,600 words on 17 pages appeared on the screen—a standard “clickwrap agreement,” which refers to the wall of legal text that pops up when you try to do practically anything online. Within that agreement was a binding arbitration clause requiring disputes between the company and the user to be resolved not by a judge or a jury, but by an attorney appointed by Uber. The McGintys’ daughter clicked the checkbox to consent.
In its opinion, the New Jersey appeals court quoted decades-old precedent acknowledging that clickwrap agreements are valid contracts, and that the government has a “strong preference” for enforcing arbitration clauses. The court also pointed out that the agreement’s first paragraph says, in capslock, “PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND UBER,” and that the second page “contains a bolded heading entitled Arbitration Agreement in a font size substantially larger than the surrounding text.” The court basically concluded that the fine print wasn’t that fine; because the McGintys got dinner delivered, the legal system says they don’t get a day in court.
The McGintys were shocked and saddened to learn that a big corporation like Uber could avoid a lawsuit from injured customers because of buried legalese they encountered using unrelated services. As Georgia put it to the BBC, “How would I ever remotely think that my ability to protect my constitutional rights to a trial would be waived by me ordering food?”
Avoiding a lawsuit greatly increases Uber’s odds of avoiding accountability altogether. When consumers are forced to go through arbitration, they typically win less often, and if they do win, they’re awarded significantly lower damages. Arbitration also generally lacks the procedural safeguards available in a court of law, and keeps corporate wrongdoing out of public view. And arbitrators who want repeat business have their own incentives to favor the corporations that bring them in. All of these factors combine to put companies and regular people on even more uneven footing in arbitration than they would be in court.
Uber’s successful argument in the McGintys’ case is just like the argument Disney was shamed out of using over the summer. In May, Disney argued that a man whose wife had died at a Disney theme park could not sue the company for serving her food she was deadly allergic to, thanks to the terms of service he’d accepted when he signed up for a free trial of Disney+ in 2019. Disney withdrew its argument a few months later in response to public outrage, but in light of the New Jersey court’s acceptance of the same argument in this case, corporations in similar circumstances may feel re-empowered to shrug off public condemnation.
The McGintys’ case and the Disney case emphasize how huge companies and corporate consolidation expand the risk of forced arbitration to unforeseeable scenarios. Order a pizza, you may be unable to go to court for a car crash. Try out a streaming platform, you may be unable to go to court for your wife’s death at a theme park. Using any kind of product or service can relinquish your Seventh Amendment right to a jury trial in response to entirely unrelated harm. Uber and courts that agree with them are driving Americans deeper into a dystopian hellscape where the interests of capital always take precedence over the interests of regular people.
