MoFo Team Three-for-Three in Appeal Wins for UPS

On May 8, 2019, a Morrison & Foerster team won the third of three Ninth Circuit appeals for United Parcel Service, Inc. in cases related to UPS's branded Next Day and 2nd Day Air package-delivery services. Several weeks before, the Ninth Circuit affirmed judgment of dismissal in favor of UPS in two nationwide class actions (including one MDL proceeding) alleging that UPS could not charge Next Day Air or 2nd Day Air rates for packages that were transported by surface transportation rather than by airplane. The Ninth Circuit held that UPS’s shipping contracts clearly disclose that UPS can use any mode of transportation to provide the service requested by the shipper.

The Ninth Circuit May 8th decision affirmed a MoFo trial-court victory in a related case brought by a UPS employee, as a relator on behalf of the United States, alleging that UPS violated the False Claims Act by transporting Air level packages by surface transportation. The Ninth Circuit held that UPS made no false statement and submitted no false claims to the United States. Deanne Maynard, co-chair of Morrison & Foerster’s Appellate and Supreme Court practice, argued the consumer class actions in the Ninth Circuit. James Sigel, an associate in the San Francisco office, argued the False Claims Act appeal. The trial team that won dismissal in all three cases in district court included Paul Friedman, Greg Koltun, Ruth Borenstein, Stacey Sprenkel and Caitlin Blythe.