Date: 04-23-2016

Case Style: Douglas O'Connor v. Uber Technologies, Inc.

Case Number: 13-cv-03826

Judge: Edward M. Chen

Court: United States District Court for the Northern District of California (San Francisco County)

Plaintiff's Attorney: Shannon E. Liss-Riordan, Ben Weber, , Adelaide Pagano, Sara Smolik

Defendant's Attorney: Ted Boutrous, Theane Evangelis, John Fisher, Josh Lipshutz, Dhananjay Saikrishna Manthripragada, Caitlin May, Marcellus McRae, Kevin Ring-Dowell

Description: San Francisco, CA - Uber Settles Some Driver's Claims for $100 Million


Plaintiffs Douglas O‟Connor, Thomas Colopy Matthew Manahan, and Elie Gurfinkel are current or former drivers who have performed services for Defendant Uber Technologies, Inc. Docket No. 330 (Second Amended Complaint) (SAC).1 Plaintiffs moved to certify a class of approximately 160,000 other “UberBlack, UberX, and UberSUV drivers who drove for Uber in the state of California at any time since August 16, 2009.” Docket No. 276-1. Plaintiffs contended that they and all 160,000 putative class members were Uber‟s employees, as opposed to its independent contractors, and thus are eligible for various protections codified for employees in the California Labor Code. See SAC at ¶ 21. Specifically, Plaintiffs brought claims for: (1) expense reimbursement under California Labor Code section 2802 (hereafter, Expense Reimbursement Claim) and (2) converted tips under California Labor Code section 351 (hereafter, Tips Claim).

The Second Amended Complaint alleged:

1. This case is brought on behalf of individuals who have worked as Uber drivers in
California. Uber is a car service that provides drivers who can be hailed and dispatched through
a mobile phone application. As set forth below, Uber has advertised to customers that gratuity is
included in the cost of its car service. However, Uber drivers do not receive the total proceeds of
any such gratuity. Instead, they receive only a portion of such gratuity, if any is charged to the
customer.

2. Plaintiffs bring this action on their own behalf, and on behalf of other similarly
situated Uber drivers, for violation of the California Unfair Competition Law, Cal. Bus. & Prof.
Code § 17200 et seq. (“UCL”), based upon Uber’s violation of the California Gratuities Law,
California Labor Code Section 351, and failure to remit to drivers the entire gratuity paid by
customers or that customers would otherwise intend to leave for them.

3. In addition, Plaintiffs bring this action on behalf of Uber drivers who have been
misclassified as independent contractors and thereby required to pay business expenses (such as
for their vehicles, gas, and maintenance) in violation of California Labor Code Section 2802.
1 Plaintiffs have removed from the complaint portions of claims that the Court dismissed in
its Order of December 5, 2013 (Doc. 58), and its Order of September 4, 2014 (Doc. 136).
However, in so doing, Plaintiffs do not waive their rights to the claims that have been dismissed,
for appellate purposes, and Plaintiffs do not waive their rights to reinstitute claims against Travis
Kalanick and Ryan Graves, individually, if appropriate. Plaintiffs have also removed from the
complaint named plaintiffs from outside California, and allegations regarding a national class
brought under the statutory claims, based on the Court’s Order of September 4, 2014 (Doc. 136).
In doing so, Plaintiffs do not waive their rights to assert these claims on behalf of a national class
should the Court’s order be altered on reconsideration or appeal.
SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

II. PARTIES

4. Plaintiff Douglas O’Connor is an adult resident of South San Francisco,
California, where he has worked as an Uber driver.

5. Plaintiff Thomas Colopy is an adult resident of San Francisco, California, where
he works as an Uber driver.

6. Plaintiff Matthew Manahan is an adult resident of Los Angeles, California, where
he works as an Uber driver.

8. Plaintiff Elie Gurfinkel is an adult resident of San Diego, California, where he
works as an Uber driver.

9. Plaintiffs bring this action on their own behalf and on behalf of all others similarly
situated, namely all other individuals who have worked as Uber Black, Uber SUV, or UberX
drivers in California.

10. Defendant Uber Technologies, Inc. (“Uber”) is a corporation headquartered in
San Francisco, California.

III. JURISDICTION

11. This Court has jurisdiction over the state law claims asserted here pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), since Defendant is a California citizen and,
upon the original filing of this complaint, members of the putative plaintiff class resided in states
around the country; there are more than 100 putative class members; and the amount in
controversy exceeds $5 million.

SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

IV. STATEMENT OF FACTS

12. Uber provides car service in cities throughout the country via an on demand
dispatch system.

13. Uber offers customers the ability to hail a car service driver on a mobile phone
application.

14. Uber’s website has advertised that “Uber is your on-demand private driver.”

15. Uber has stated to customers, on its website, and in marketing materials, that a
gratuity is included in the total cost of the car service and that there is no need to tip the driver.

16. However, Uber drivers have not received the total proceeds of this gratuity.

17. Instead, Uber has retained a portion of the gratuity for itself.

18. For Uber Black, Uber SUV, and UberX drivers, Uber has not specified the
amount of the gratuity.

19. However, it is customary in the car service industry for customers to leave
approximately a 20% gratuity for drivers. Thus, where the amount of the gratuity is not
specified, reasonable customers would assume that the gratuity is in the range of 20% of the total
fare.

20. As a result of Uber’s conduct and actions in informing customers that gratuity is
included in the cost of its service, and that there is no need to tip the drivers, but then not
remitting the total proceeds of the gratuity to the drivers, Uber drivers have been deprived of
payments to which they are entitled, and to which reasonable customers would have expected
them to receive.

SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

21. Although classified as independent contractors, Uber drivers are employees.
They are required to follow a litany of detailed requirements imposed on them by Uber and they
are graded, and are subject to termination, based on their failure to adhere to these requirements
(such as rules regarding their conduct with customers, the cleanliness of their vehicles, their
timeliness in picking up customers and taking them to their destination, what they are allowed to
say to customers, etc.)

22. In addition, Uber is in the business of providing car service to customers, and that
is the service that Uber drivers provide. The drivers’ services are fully integrated into Uber’s
business, and without the drivers, Uber’s business would not exist.

23. However, based on their misclassification as independent contractors, Uber
drivers are required to bear many of the expenses of their employment, including expenses for
their vehicles, gas, and other expenses. California law requires employers to reimburse
employees for such expenses, which are for the benefit of the employer and are necessary for the
employees to perform their jobs.

V. CLASS ACTION ALLEGATIONS

24. Plaintiffs bring this action as a class action pursuant to Rule 23 of the Federal
Rules of Civil Procedure on behalf of Uber Black, Uber SUV, and UberX drivers who have
worked for Uber in California.

25. Plaintiffs and other class members have uniformly been deprived of gratuities that
were not remitted to them.

26. The members of the class are so numerous that joinder of all class members is
impracticable.
SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

27. Common questions of law and fact regarding Uber’s conduct with respect to
gratuities exist as to all members of the class and predominate over any questions affecting
solely any individual members of the class. Among the questions of law and fact common to the
class are:
a. Whether Defendant has charged customers a gratuity for class members’ services;

b. Whether Defendant has failed to distribute the total proceeds of those gratuities to

the class members;

c. Whether Defendant has informed customers that gratuity is included in the price
of the Uber service and so there is no need to tip their drivers;

d. Whether class members have suffered damages based upon Uber’s representation
to customers that tips are included but not distributing them to the drivers.

28. Common questions of law and fact also exist as to members of the class who have
been misclassified as independent contractors. Among the questions of law and fact that are
common to these drivers are:

a. Whether class members have been required to follow uniform procedures and
policies regarding their work for Uber;

b. Whether the work performed by class members—providing car service to
customers—is within Uber’s usual course of business, and whether such service is
fully integrated into Uber’s business;

c. Whether these class members have been required to bear the expenses of their
employment, such as expenses for their vehicles, gas, and other expenses.

SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

29. The named plaintiffs are members of the class, who suffered damages as a result
of Defendant’s conduct and actions alleged herein.

30. The named plaintiffs’ claims are typical of the claims of the class, and the named
plaintiffs have the same interests as the other members of the class.

31. The named plaintiffs will fairly and adequately represent and protect the interests
of the class. The named plaintiffs have retained able counsel experienced in class action
litigation. The interests of the named plaintiffs are coincident with, and not antagonistic to, the
interests of the other class members.

32. The questions of law and fact common to the members of the class predominate
over any questions affecting only individual members, including legal and factual issues relating
to liability and damages.

33. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy because joinder of all class members is impractical. Moreover,
since the damages suffered by individual members of the class may be relatively small, the
expense and burden of individual litigation makes it practically impossible for the members of
the class individually to redress the wrongs done to them. The class is readily definable and
prosecution of this action as a class action will eliminate the possibility of repetitive litigation.
There will be no difficulty in the management of this action as a class action.

SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

COUNT I

Unfair Competition in Violation of California Business and Professions Code
§ 17200 et seq.

34. Defendant’s conduct, as set forth above, violates the California Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”). Defendant’s conduct
constitutes unlawful business acts or practices, in that Defendant has violated California Labor
Code Sections 351 and 2802. As a result of Defendant’s unlawful conduct, Plaintiffs and class
members suffered injury in fact and lost money and property, including, but not limited to loss of
gratuities to which they were entitled and customers expected them to receive, and business
expenses that drivers were required to pay. Pursuant to California Business and Professions Code
§ 17203, Plaintiffs and class members seek declaratory and injunctive relief for Defendant’s
unlawful conduct and to recover restitution. Pursuant to California Code of Civil Procedure §
1021.5, Plaintiffs and class members are entitled to recover reasonable attorneys’ fees, costs, and
expenses incurred in bringing this action.

COUNT II

Independent Contractor Misclassification and Expense Reimbursement Violation

35. Defendant’s conduct, as set forth above, in misclassifying Uber drivers as
independent contractors, and failing to reimburse them for expenses they paid that
should have been borne by their employer, constitutes a violation of California Labor Code
Section 2802.

SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND
JURY DEMAND

Plaintiffs request a trial by jury on all their claims.

WHEREFORE, Plaintiffs request that this Court certify this case as a class action,
pursuant to Fed. R. Civ. P. 23; award restitution for all charged gratuities which were not
remitted to the drivers; award reimbursement that the drivers who were misclassified as
independent contractors were required to bear; award pre- and post-judgment interest; award
reasonable attorneys’ fees, costs, and expenses; and award any other relief to which the plaintiffs
may be entitled.

Outcome: Settled for $100 million.

Plaintiff's Experts:

Defendant's Experts:

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