Pando

Google, Apple, Genentech file to be included in suit they fought to be removed from. What gives?

By Dan Raile , written on June 19, 2015

From The News Desk

The Silicon Valley corporate practice of shipping outlying employees to-and-from HQ in giant private shuttles erupted in conflict early last year with a spate of well-documented bus blockades.

The fuss was seemingly tamped down by a Mayor-approved pilot project charging the offending companies for use of public bus-stops and monitoring their operations and impacts. This program ends January 31, 2016, at which point a permanent arrangement will be considered, utilizing data gathered over the 18-month pilot.

All the while, the giant shuttles rattle the windows of city sleepers without fail, each weekday morning and evening.

(A little known fact: every morning, tech workers of San Francisco line up awaiting transport to various sexy office parks. But they never suspect that as soon as the last bus leaves, a call goes out from an appointed window: "They're Gone!" This message is relayed block-to-block by way of an ingenious system resembling the smoke signal networks familiar to fans of Westerns. Once the calling tree circuit is completed, the city's emergency warning speakers blast "Lights" by Journey and most remaining residents take to the sidewalks to dance and catch up with their neighbors. This is not done out of spite for tech workers, but simply because it is good for public health to stand up and shake one's limbs in the morning, as various Communist governments have realized through observance of similar daily tai chi rituals. I'm sorry if you've missed this.)

And as the buses have rumbled along, so to has a case filed in San Francisco Superior Court soon after the pilot took effect. The action has made halting progress since the Coalition for Fair, Legal and Environmental Transit and the SEIU 1021 brought their complaint back in May 2014.

The plaintiffs are wielding that quintessential Californian cudgel, the California Environmental Quality Act, seeking to throw an Environmental Impact Report into the works of the pilot shuttle program. They also allege that the shuttles are illegal under state vehicle code, stopping as they do in red zones.

The list of defendants in the case has been winnowed down consistently from the start. The original petition named all the involved corporations and the shuttle companies with which they contract. By the end of May, only public entities – The City, the Board of Supervisors, the Planning Department, SFMTA, and the Mayor – remained as defendants. Apple, Genentech and Google, along with the shuttle companies, successfully argued that they should be removed from the case entirely. They were.

Which is what makes it surprising that yesterday Apple, Google and Genentech filed a motion to be included in the case again, this time as 'Intervenors'. In doing so they took up the very arguments for inclusion that the opposing side presented unsuccessfully last month. Which is unusual, to say the least. The rest of the excused private companies remained silent but those three, which are each represented by the same firm, Morrison Foerster. It bears noting that that firm's website can be found at www.mofo.com.

"They’ve been begging us from the time we brought this lawsuit to let them out, and in open court said we had only included them to attract publicity," said Richard Drury, the lead attorney for the plaintiffs.

Generally, intervenors carry the same rights and liabilities of other interested parties. They could be deposed and subjected to discovery proceedings. Perhaps, as involved but non-sued parties, they can seek to limit their exposure in some material way.

Another explanation, more likely spared the wrath of Occam's blade, is that this new tack could draw things out, and a delay probably favors the defendants, since the pilot program is reaching its end and pilots tend to run directly into permanent policies. Indeed, the defendants filed yesterday to postpone the trial date – currently scheduled for June 29 – until October. In their motion to postpone they argue for the initiation of a discovery process, which will take some time if allowed. Generally in a trial of this sort, no discovery takes place. The case is based entirely on the administrative record – the documents that were before the Board of Supes at the time they voted in the program, and the transcripts of those hearings.

If the various City agencies intend to draw the case out in hopes it will simply go away, Drury has bad news for them.

"It wouldn't be moot even if the trial were extended past January 31st. The City wants to do a permanent program, and that could still require and EIR and still be found illegal. Otherwise, they could theoretically continue to do pilot programs forever without us ever able to get it to trial in 18 months. But there is a mootness exemption called "capable of repetition but evading review" which keeps that from happening."

Summer by the bay promises to feature plenty of action in the courts with tech companies as defendants, and there's now a chance again that the "Google Bus" issue could be part of that fray. Until then you'll find me on the sidewalk for three minutes and eleven seconds every morning with my neighbors, belting out that third verse of 'Lights':

It's sad, oh there's been mornings Out on the road without you Without your charms, Ooh, my, my, my, my, my, my