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Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
Tel 212.351.4000
www.gibsondunn.com
Gabriel Herrmann
September 28, 2023 Direct: +1 212.351.3974
Fax: +1 212.351.6251
GHerrmann@gibsondunn.com
VIA NYSCEF AND ELECTRONIC MAIL
The Honorable Nicholas Moyne
Supreme Court of the State of New York
80 Centre Street, Room 309
New York, NY 10007
Re: DoorDash, Inc. et al. v. N.Y. City Dep’t of Consumer & Worker Protection et al.,
Index No. 155947/2023 (Sup. Ct. N.Y. Cnty)
Honorable Justice Moyne:
I write as counsel for Petitioners DoorDash, Inc. and Grubhub Inc. in the above-captioned
proceeding. Petitioners are in receipt of the Court’s September 28, 2023 Order denying their
motion for a preliminary injunction seeking to restrain Respondents from implementing or
enforcing the agency determination challenged in this proceeding—i.e., the New York City
Department of Consumer and Worker Protection’s adoption of the Final Rule, entitled Minimum
Pay for Food Delivery Service Workers, that was published in the New York City Record on
June 12, 2023 (the “Rule”). Petitioners respectfully request an in-person or remote conference
with the Court this evening after 8:00 p.m. or as early as possible tomorrow morning to discuss
the matter further.
Petitioners intend to file an application to the Appellate Division, on or before October 10, 2023,
for permission to appeal from this Court’s Order and for interim relief enjoining implementation
or enforcement of the Rule pending resolution of Petitioners’ appeal. 1 Petitioners respectfully
submit that this Court should exercise sua sponte its authority under CPLR 7805 to stay
enforcement of the Rule on a temporary basis pending a ruling from the Appellate Division on
Petitioners’ forthcoming application for interim relief (or, in the alternative, at least for the next
fourteen calendar days).
CPLR 7805 authorizes this Court, “[o]n the motion of any party or on its own initiative,” to
“stay…the enforcement of any determination under review.” Case law confirms, moreover, that
such authority is appropriately exercised in cases where, as here, the ruling subject to appellate
review implicates matters of public concern and “require[s] determination of novel legal issues
upon which reasonable minds could easily disagree.” Congdon v. Washington Cnty., 134 Misc.
2d 765, 779 (Sup. Ct. Washington Cnty. 1986) (issuing “stay for a period of 60 days…enjoining
…action in pursuance of construction” of project authorized by challenged determination, to
permit petitioners to “appeal and make application to the Appellate Division for stay pending
1
Because the Court’s Order was issued in a “proceeding against a body or officer pursuant to
[CPLR] article 78,” it is not appealable to the Appellate Division as of right. CPLR 5701(b)(1).
Beijing Brussels Century City Dallas Denver Dubai Frankfurt Hong Kong Houston London Los Angeles Munich
New York Orange County Palo Alto Paris San Francisco São Paulo Singapore Washington, D.C.
The Honorable Nicholas Moyne
80 Centre Street, Room 309
Page 2 of 2
appeal”), aff’d on other grounds, 130 A.D.2d 27 (3d Dep’t 1987). As the Court observed at oral
argument on Petitioners’ motion for a preliminary injunction, “this is a very complex and multi-
facetted situation that involves a wide scope of interests, goals and points of view…where there
is no easy one-size-fits-all definitive right or wrong answer that will satisfy everyone.” Aug. 3,
2023 Hr’g Tr. at 5.
Issuance of a temporary stay to allow for the orderly pursuit of appellate review is particularly
warranted here given the Court’s prior finding, at oral argument on Petitioners’ application for a
temporary restraining order, that “there has been a sufficient showing by all the petitioners…that
if the statute is not temporarily enjoined, pending a determination, that there could be irreparable
harm or injury.” July 7 Hr’g Tr. at 76 (NYSCEF Doc. 57). Petitioners have demonstrated that
they will be forced to make significant changes to their delivery platforms and business
operations in order to comply with the Rule—including increases in consumer and merchant
fees, changes to the scope of services offered on their platforms, and imposition of restrictions on
delivery workers’ ability to access and interact with those platforms. See, e.g., Pet. at ¶¶ 150–51,
172–93 (NYSCEF Doc. 1); Reply Mem. at 11–12 (NYSCEF Doc. 78).
Absent further relief, Petitioners will be required to start applying the Rule to the immediate next
weekly “pay period,” see NYSCEF Doc. 13 at 25, 32–33, which will commence only two
business days hence, on Monday, October 2, 2023. Counsel for DCWP sent an email today to
“apprise” Petitioners of DCWP’s understanding that “[f]ollowing the issuance of today’s ruling,
the first full pay period [in which the Rule will be effect] is October 2, 2023 to October 8, 2023.”
9/28/23 Email from K. Selvin (Ex. 1 hereto). No one’s interests will be served—and confusion
undoubtedly will ensue—if the Rule is allowed to take effect now, with respect to every industry
participant other than Relay, and then subsequently is enjoined, either provisionally or
permanently, by the Appellate Division. Accordingly, Petitioners submit that the public interest
warrants issuance of a brief stay of enforcement of the Rule to permit their forthcoming appellate
applications to be heard.
We thank the Court for its consideration of this matter.
Respectfully,
GIBSON, DUNN & CRUTCHER LLP
By: /s/ Gabriel Herrmann
Gabriel Herrmann
Attorneys for Petitioners
cc: All Counsel of Record
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Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166-0193 Tel 212.351.4000 www.gibsondunn.com Gabriel Herrmann September 28, 2023 Direct: +1 212.351.3974 Fax: +1 212.351.6251 GHerrmann@gibsondunn.com VIA NYSCEF AND ELECTRONIC MAIL The Honorable Nicholas Moyne Supreme Court of the State of New York 80 Centre Street, Room 309 New York, NY 10007 Re: DoorDash, Inc. et al. v. N.Y. City Dep’t of Consumer & Worker Protection et al., Index No. 155947/2023 (Sup. Ct. N.Y. Cnty) Honorable Justice Moyne: I write as counsel for Petitioners DoorDash, Inc. and Grubhub Inc. in the above-captioned proceeding. Petitioners are in receipt of the Court’s September 28, 2023 Order denying their motion for a preliminary injunction seeking to restrain Respondents from implementing or enforcing the agency determination challenged in this proceeding—i.e., the New York City Department of Consumer and Worker Protection’s adoption of the Final Rule, entitled Minimum Pay for Food Delivery Service Workers, that was published in the New York City Record on June 12, 2023 (the “Rule”). Petitioners respectfully request an in-person or remote conference with the Court this evening after 8:00 p.m. or as early as possible tomorrow morning to discuss the matter further. Petitioners intend to file an application to the Appellate Division, on or before October 10, 2023, for permission to appeal from this Court’s Order and for interim relief enjoining implementation or enforcement of the Rule pending resolution of Petitioners’ appeal. 1 Petitioners respectfully submit that this Court should exercise sua sponte its authority under CPLR 7805 to stay enforcement of the Rule on a temporary basis pending a ruling from the Appellate Division on Petitioners’ forthcoming application for interim relief (or, in the alternative, at least for the next fourteen calendar days). CPLR 7805 authorizes this Court, “[o]n the motion of any party or on its own initiative,” to “stay…the enforcement of any determination under review.” Case law confirms, moreover, that such authority is appropriately exercised in cases where, as here, the ruling subject to appellate review implicates matters of public concern and “require[s] determination of novel legal issues upon which reasonable minds could easily disagree.” Congdon v. Washington Cnty., 134 Misc. 2d 765, 779 (Sup. Ct. Washington Cnty. 1986) (issuing “stay for a period of 60 days…enjoining …action in pursuance of construction” of project authorized by challenged determination, to permit petitioners to “appeal and make application to the Appellate Division for stay pending 1 Because the Court’s Order was issued in a “proceeding against a body or officer pursuant to [CPLR] article 78,” it is not appealable to the Appellate Division as of right. CPLR 5701(b)(1). Beijing Brussels Century City Dallas Denver Dubai Frankfurt Hong Kong Houston London Los Angeles Munich New York Orange County Palo Alto Paris San Francisco São Paulo Singapore Washington, D.C. The Honorable Nicholas Moyne 80 Centre Street, Room 309 Page 2 of 2 appeal”), aff’d on other grounds, 130 A.D.2d 27 (3d Dep’t 1987). As the Court observed at oral argument on Petitioners’ motion for a preliminary injunction, “this is a very complex and multi- facetted situation that involves a wide scope of interests, goals and points of view…where there is no easy one-size-fits-all definitive right or wrong answer that will satisfy everyone.” Aug. 3, 2023 Hr’g Tr. at 5. Issuance of a temporary stay to allow for the orderly pursuit of appellate review is particularly warranted here given the Court’s prior finding, at oral argument on Petitioners’ application for a temporary restraining order, that “there has been a sufficient showing by all the petitioners…that if the statute is not temporarily enjoined, pending a determination, that there could be irreparable harm or injury.” July 7 Hr’g Tr. at 76 (NYSCEF Doc. 57). Petitioners have demonstrated that they will be forced to make significant changes to their delivery platforms and business operations in order to comply with the Rule—including increases in consumer and merchant fees, changes to the scope of services offered on their platforms, and imposition of restrictions on delivery workers’ ability to access and interact with those platforms. See, e.g., Pet. at ¶¶ 150–51, 172–93 (NYSCEF Doc. 1); Reply Mem. at 11–12 (NYSCEF Doc. 78). Absent further relief, Petitioners will be required to start applying the Rule to the immediate next weekly “pay period,” see NYSCEF Doc. 13 at 25, 32–33, which will commence only two business days hence, on Monday, October 2, 2023. Counsel for DCWP sent an email today to “apprise” Petitioners of DCWP’s understanding that “[f]ollowing the issuance of today’s ruling, the first full pay period [in which the Rule will be effect] is October 2, 2023 to October 8, 2023.” 9/28/23 Email from K. Selvin (Ex. 1 hereto). No one’s interests will be served—and confusion undoubtedly will ensue—if the Rule is allowed to take effect now, with respect to every industry participant other than Relay, and then subsequently is enjoined, either provisionally or permanently, by the Appellate Division. Accordingly, Petitioners submit that the public interest warrants issuance of a brief stay of enforcement of the Rule to permit their forthcoming appellate applications to be heard. We thank the Court for its consideration of this matter. Respectfully, GIBSON, DUNN & CRUTCHER LLP By: /s/ Gabriel Herrmann Gabriel Herrmann Attorneys for Petitioners cc: All Counsel of Record