[AaronFriel]

You're right about the article, I was responding to people in this thread: "broadcasting their intention [to break the law] in advance", "[admitting] that they will not adhere to the law" and so on. Those are the statements I am responding to.

[shkkmo]

I was responding to your incorrect assertion about the argument ABC's lawyers would advance (as indicated by the article.)

[AaronFriel]

Perhaps you should have indicated that's what your disagreement was, I think we agree but you misrepresent what I mean by "apply". Since it's not clear what it means to "pass" or "fail" the ABC test, and Uber is using the term "pass" to indicate that condition of the test is false (i.e.: failed), I used the term apply.

For example, when the Lemon test applies to something, it's because all of its three prongs are true. Is that a "pass" or a "fail"? That distinction I think is irrelevant to the law, but I'm sure the litigants on both sides would argue that their argument is good ("pass"), and the opposing argument is bad ("fail").

A city putting up decorations for a religious event and denying others would argue that they have "passed" the Lemon test, while articulating that one of its conditions "fails".

A litigant against such a city would argue the city "fails" the test.

I did not want to use Uber's language ("But just because the [ABC] test is hard does not mean we will not be able to pass it") because their job is to frame things positively for their client. Passing the ABC test is trivial - I'm doing it right now! So are you! What we care about is whether or not the test applies to something, that is, it entails some consequences, and Uber is going to argue that one of the specific prongs of the test will fail. From their view, this is a win, and this is them "passing" the test.

So, I used the word apply.