Lawmakers May Need to Rethink Aggressive Regulation of Gig Economy

1 minute read | April.18.2023

In this Bloomberg Law article, partners Rob McKenna and Daniel Rubens explore the recent legal landscape surrounding the gig economy and what is on the regulatory horizon as a result.

The article analyzes the likely consequences of several court decisions, including a recent Washington Supreme Court ruling that backed our client Instacart in a challenge to a Seattle premium-pay ordinance. The court allowed Instacart’s constitutional claims to proceed to trial.

“Lawmakers should collaborate with workers and companies to craft regulatory approaches that preserve the best parts of gig work,” the article concludes. “Unilateral top-down dictates will generate only more litigation. And as the recent court decisions show, that litigation isn’t likely to turn out the way these lawmakers hoped.”

Authors

Rob McKenna Partner, State & Federal Government Solutions, Cyber Privacy and Data Innovation

Seattle; Washington, D.C.

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D:+1 206 839 4415
E: [email protected]

Practice:

Technology & Innovation Sector
Life Sciences Sector
State & Federal Government Solutions
Cyber Privacy and Data Innovation
State Attorneys General Investigations & Enforcement
Strategic Advisory & Government Enforcement (SAGE)

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Rob McKenna Partner

Seattle; Washington, D.C.

A former Washington State Attorney General and President of the National Association of Attorneys General, Rob is accomplished in all areas of public policy, appellate law and investigations. He is a Chambers USA Band 1 Partner in Government Relations: State Attorneys General.

Rob represents a wide range of technology, energy, finance and other companies in matters involving cyber security, data privacy, litigation, appellate litigation, regulatory proceedings, state attorney general investigations and legislative issues. His experience, stature and proficiency add essential capabilities for clients seeking coordinated policy advocacy, regulatory compliance and litigation strategies in state capitols across the country and in Washington, D.C., where he has testified before Congress and assisted clients who have been called to testify before Congressional committees. While at Orrick, Rob has represented clients in both state and federal court, typically in cases centered on constitutional questions.

Rob served two terms as Attorney General of Washington, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and helped negotiate three of the largest consumer protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of data protection and privacy regulation. Rob was the first state Attorney General to build a computer forensics lab to collect evidence of Internet fraud and passed one of the nation's first anti-spyware laws.

Rob served as President of the National Association of Attorneys General (NAAG) from 2011–12 where he co-launched the NAAG Intellectual Property Task Force to advance the national fight against counterfeiting and piracy. While serving as NAAG President, he created and led a national initiative to combat human trafficking which continues to this day. The NAAG human trafficking summit he hosted in Seattle in 2012 led AGs to launch state-level initiatives around the country. His fellow attorneys general honored him in 2011 with the Kelley-Wyman Award for “Outstanding Attorney General” in America.

Daniel A. Rubens Partner, Supreme Court & Appellate

New York

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D:+1 212 506 3679
E: [email protected]

Practice:

Supreme Court & Appellate

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Daniel A. Rubens Partner

New York

Danny's practice focuses on appellate litigation. He has led the drafting on dozens of appellate briefs, and regularly argues appeals in state and federal courts. Danny has extensive trial litigation experience as well, with an emphasis on dispositive motions, preserving appellate issues, and developing creative legal strategies.

Danny’s work has covered a wide range of subject areas, including securities, bankruptcy, intellectual property, arbitration, class actions, and criminal law. He has a deep understanding of appeals and critical motions in financial services litigation, and in recent years has played a key role in representing financial institutions in major RMBS cases brought by trustees, investors, and monoline insurers. His financial services clients include Credit Suisse, Goldman Sachs, Mr. Cooper, and Ocwen. He also represents leading technology companies in precedent-setting cases involving antitrust law and ballot initiatives, as well as other complex commercial litigation. In addition, Danny is an experienced bankruptcy litigator, having represented various debtors and creditors in fraudulent transfer cases and other contested insolvency-related matters involving U.S. and foreign law.

Danny is a member of the Second Circuit's pro bono panel and maintains an active pro bono practice focusing on criminal, immigration, racial justice, and LGBTQ+ rights matters in the Supreme Court and other appellate courts. He was recently recognized by the National LGBTQ+ Bar Association as a “Best LGBTQ+ Lawyer Under 40,” by the New York Law Journal as a Rising Star, and by LawDragon in its inaugural 500 X – The Next Generation listing. As part of his commitment to diversity, equity, and inclusion, Danny serves as a mentor for The Appellate Project, an organization focused on empowering law students of color to thrive in the appellate field. He has also served as an Orrick ambassador for the Move The Needle Fund, a collaborative effort designed by Diversity Lab to create a more diverse and inclusive legal profession.

Before joining Orrick, Danny served as a law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg, Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit, and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York. Following his clerkships, he was selected to represent the American Inns of Court as a Temple Bar Scholar in London.