O'Connor et al v. Uber Technologies, Inc. et al

Filing 460

ORDER RE FINAL CLASS NOTICE. Signed by Judge Edward M. Chen on 1/12/2016. (Attachments: # 1 Exhibit)(emclc1, COURT STAFF) (Filed on 1/12/2016)

EXHIBIT A

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA

If you have used the Uber App as a driver, a class action
lawsuit may affect your rights.
A federal court authorized this notice. This is not a solicitation from a lawyer.
•

A class action lawsuit has been filed against Uber Technologies, Inc. (“Uber”) by four
drivers who have used the Uber App (the “App”) on behalf of drivers who have used the App
in California. The plaintiffs in the lawsuit allege that they and other drivers in California
should be classified as employees, and that Uber has therefore violated sections of the
California Labor Code by not reimbursing drivers for certain expenses and not passing along
to drivers the part of the fare that they allege represents a tip.

•

The Court has certified the following class to pursue the reimbursement claim (as to vehiclerelated and phone expenses, but not other expenses) and the tips claim, which include the
misclassification question (i.e., whether drivers are or are not Uber’s employees):
“All UberBlack, UberX, and UberSUV drivers who have driven for Uber in the
state of California [from] August 16, 2009 [up to and including December 9,
2015], and meet all of the following requirements: (1) who signed up to drive
directly with Uber or an Uber subsidiary under their individual name, and (2)
are/were paid by Uber or an Uber subsidiary directly and in their individual
name.”

•

The Court has not decided whether Uber has done anything wrong or whether drivers who
use the App are Uber’s employees. There is no money available now and no guarantee that
there will be. However, as you may be a member of the class described above, your legal
rights are affected. Please read the following page, which contains important information
regarding your legal rights and options in this lawsuit.

•

As you may be a member of the class, you have a choice to make now:

YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
DO NOTHING

Stay in this lawsuit. Await the outcome. Give up certain rights.
By doing nothing, you will remain a member of the class and be
bound by any judgment that you are or are not an employee of Uber
and keep the possibility of getting money or benefits that may come
from a trial or a settlement. But, you give up any rights to sue Uber
separately about the same legal claims in this lawsuit.
QUESTIONS? VISIT www._________.com
1

ASK TO BE EXCLUDED

Get out of this lawsuit. Get no benefits from it. Keep rights.
If you ask to be excluded you will not be bound by any judgment
that you are or are not an employee of Uber and, if money or
benefits are later awarded, you won’t share in those. But, you keep
any rights to sue Uber separately about the same and related legal
claims in this lawsuit, including any claims for additional expenses
that are not being pursued by Plaintiffs in this case.

•

Your options are explained in this notice. To ask to be excluded from the lawsuit, you must
act before Month 00, 0000. To exclude yourself from the lawsuit, you may email
[uberclassexclude@[Notice Administrator’s domain] or a mutually agreed-upon email
address].

•

Plaintiffs’ lawyers must prove the claims against Uber at a trial. The jury trial is scheduled to
begin on June 20, 2016. If you are found to be Uber’s employee and money or benefits are
obtained from Uber, you will be notified about how to ask for a share.

•

The Court has determined that the arbitration provision of the Technology Services
Agreement issued by Uber on or about December 11, 2015 will not have any effect on your
claims asserted in this lawsuit. However, the arbitration provision may still apply to any
other claims you have that are brought in other class action lawsuits.

•

Any questions? Read on and visit www.________.com. [a court-approved website
providing information/notice regarding the case has not yet been created]

QUESTIONS? VISIT www._________.com
2

WHAT THIS NOTICE CONTAINS
BASIC INFORMATION ....................................................................................................................... 4
1. Why did I get this notice?
2. What is this lawsuit about?
3. What is a class action and who is involved?
4. Why is this lawsuit a class action?
THE CLAIMS IN THE LAWSUIT .......................................................................................................... 5
5. What does the lawsuit complain about?
6. What is Uber’s position?
7. Has the Court decided who is right?
8. What are Plaintiffs asking for?
9. Is there any money available now?
WHO IS IN THE CLASS ...................................................................................................................... 6
10. Which drivers are included?
11. Which drivers are not included in the Class?
12. I’m still not sure if I am included.
YOUR RIGHTS AND OPTIONS ............................................................................................................ 7
13. What happens if I do nothing at all?
14. Why would I ask to be excluded?
15. How do I ask the Court to exclude me from the Class?
16. Can Uber retaliate against me for participating in the case?
THE LAWYERS REPRESENTING YOU ................................................................................................ 8
17. Do I have a lawyer in this case?
18. Should I get my own lawyer?
19. How will the lawyers be paid?
THE TRIAL ....................................................................................................................................... 9
20. How and when will the Court decide who is right?
21. Do I have to come to the trial?
22. Will I get money after the trial?
GETTING MORE INFORMATION ...................................................................................................... 10
23. Are more details available?

QUESTIONS? VISIT www._________.com
3

BASIC INFORMATION
1.

Why did I get this notice?

Uber’s records show that you may be a member of the class of individuals covered by this
litigation. This notice explains that the Court has allowed, or “certified,” a class action litigation
that may affect you. As a member of the class, you have legal rights and options that you may
exercise before the Court holds a jury trial. The jury trial is to decide whether the claims being
made against Uber, on your behalf, are correct. Judge Edward M. Chen of the United States
District Court for the Northern District of California is overseeing this class action. The lawsuit
is known as Douglas O’Connor et al v. Uber Technologies, Inc., Case No. 13-03826-EMC.
2.

What is this lawsuit about?

This lawsuit is about whether Uber has misclassified drivers as independent contractors, as
opposed to its employees. If so, this lawsuit will determine whether part of the fare includes a tip
that Uber allegedly failed to pass along to drivers and whether Uber must reimburse drivers for
certain vehicle-related and phone expenses.
3.

What is a class action and who is involved?

In a class action lawsuit, one or more people called “Class Representatives” sue on behalf of
other people who have similar claims. The people together are a “Class” or “Class Members.”
In this case, two of the individuals who initiated this lawsuit, Mr. Elie Gurfinkel and Mr.
Matthew Manahan, are Class Representatives. Together, the Class Representatives and Class
Members are called the Plaintiffs. The company that has been sued—in this case Uber—is
called the Defendant. One court resolves the issues for everyone in the Class—except for those
people who chose to exclude themselves from the class.
4.

Why is this lawsuit a class action?

The Court decided that the claims in this lawsuit can proceed as a class action because they meet
the requirements of Federal Rule of Civil Procedure 23, which governs class actions in federal
courts. Specifically, the Court found that:
•
•
•
•
•
•

The size of the Class is so large that it would be impractical to join each Class Member as
a party to this lawsuit;
There are legal questions and facts that are common to each Class Member;
The Class Representatives’ claims are typical of the claims of the rest of the Class;
The Class Representatives and the lawyers representing the Class will fairly and
adequately represent the Class’ interests;
The common legal questions and facts are more important than questions that affect only
individuals; and
This class action will be more efficient than having many individual lawsuits.
QUESTIONS? VISIT www._________.com
4

More information on why the Court is allowing the lawsuit to be a class action is in the Court’s
Order Certifying the Class, which is available at [website].

THE CLAIMS IN THE LAWSUIT
5.

What does the lawsuit complain about?

In this lawsuit, Plaintiffs claim that Uber has misclassified drivers as independent contractors and
that drivers should be classified as Uber’s employees.
Plaintiffs contend that drivers are employees under the California Labor Code. California Labor
Law considers the following factors in determining whether a worker is an employee or an
independent contractor:
(a) the degree of control exercised by the putative employer, including particularly the
employer’s right to terminate the worker at will; (b) whether the services performed by the
worker is an integral part of the employer’s business; (c) whether the one
performing services is engaged in a distinct occupation or business; (d) the kind of
occupation, with reference to whether, in the locality, the work is usually done under the
direction of the principal or by a specialist without supervision; (e) the skill required in
the particular occupation; (f) whether the principal of the worker supplies the
instrumentalities, tools, and the place of work for the person doing the work; (g) the
length of time for which the services are to be performed; (h) the method of payment,
whether by the time or by the job; (i) whether or not the work is a part of the regular
business of the principal; and (j) whether or not the parties believe they are creating the
relationship of employer-employee.
Under California Labor Law, a court or jury must consider the application of these factors.
Plaintiffs contend that it is not dispositive that a worker does not have a fixed schedule, does not
have a minimum amount of time they have to work, does not have a geographic territory
assigned to them, or is permitted to engage in another occupation or business, including working
for a competitor. Plaintiffs further claim that because these drivers are employees, they are
entitled to be reimbursed for certain expenses, and because Uber did not pass along to these
drivers the part of the fare that they allege represents a tip, Uber violated the California Labor
Code. You can read the Complaint Plaintiffs submitted at [website].
6.

What is Uber’s position?

Uber disputes Plaintiffs’ claims, and denies that it did anything wrong. With regard to the
employment classification question, Uber’s position is that drivers who use the App are not
Uber’s employees, and that Uber does not control them like an employer would. For example,
Uber’s position is that it never sets drivers’ schedules, never requires them to log into the Uber
App for any minimum amount of time, never requires them to accept any particular trip request
received via the Uber App, never assigns them a geographic territory, never restricts them from
QUESTIONS? VISIT www._________.com
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engaging in another occupation or business, and never restricts them from simultaneous use of
other apps like Lyft and Sidecar.
With regard to the tips claim, Uber’s position is that the fare does not include a tip, and Uber has
not withheld any tips from drivers. With regard to the expense reimbursement claim, Uber’s
position is that drivers are not Uber’s employees, and are not entitled to expense reimbursement
under the California Labor Code. Uber’s Answer to the Complaint is also at the [website].
7.

Has the Court decided who is right?

The Court hasn’t decided which side is right. By establishing the Class and issuing this Notice,
the Court is not suggesting that Plaintiffs will win or lose this case. Plaintiffs must prove their
claims at a jury trial, which is scheduled to begin on June 20, 2016. (See “The Trial” below on
page _.)
8.

What are Plaintiffs asking for?

Plaintiffs want Uber to classify drivers as Uber’s employees instead of independent contractors.
Plaintiffs also want to recover the full amount of any tips that they allege are included as part of
a fare for a ride generated by the Uber App, as well as reimbursement for certain vehicle-related
and phone expenses they allege they have incurred in order to transport passengers.
Plaintiffs will seek reimbursement of class members’ vehicle-related expenses based upon the
IRS mileage reimbursement rate for all miles that Uber’s records show that class members have
driven transporting Uber passengers. The IRS reimbursement rate (which is currently 57.5 cents
per mile) covers the following expenses: (1) depreciation or lease payments on a vehicle; (2)
maintenance & repairs; (3) tires; (4) gas; (5) oil; (6) insurance; and (7) license and registration
fees. Plaintiffs will not seek reimbursement of any expenses other than the vehicle-related
expenses based upon the IRS mileage reimbursement rate and phone expenses.
9.

Is there any money available now?

No money or benefits are available now because the Court has not yet decided whether Uber did
anything wrong, and the two sides have not settled the case. There is no guarantee that money or
benefits ever will be obtained. If they are, you will be notified about how to ask for a share.

WHO IS IN THE CLASS
10.

Which drivers are included?

Judge Chen determined that you are part of the Class if you meet the following criteria:
A. You used the App to provide transportation services requested through the UberBlack,
UberX, or UberSUV platforms in the state of California at any time from August 16,
2009 up to and including December 9, 2015;

QUESTIONS? VISIT www._________.com
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B. You signed up to use the App directly with Uber or an Uber subsidiary under your
individual name (e.g., not a corporate or fictitious name); and
C. You received payments directly from Uber or an Uber subsidiary and under your
individual name (e.g., not a corporate or fictitious name).
11.

Which drivers are not included in the Class?

The following groups of drivers are not included in the Class:
A. Drivers who signed up to use the App with Uber or an Uber subsidiary through a
corporate or fictitious name.
B. Drivers who signed up to use the App to drive for the account of a third-party
transportation company, such as a limousine company.
C. Drivers who did not use the App on or prior to December 9, 2015.
12.

I’m not sure if I am included.

If you are not sure whether you are included, you can get free help at [website], or by calling the
toll free number, 1-800-0000. You may also send questions to the Notice Administrator at [email address] or [P.O. Box 0000, City, ST 00000].

YOUR RIGHTS AND OPTIONS
You have to decide whether to stay in the Class or ask to be excluded before the trial, and you
have to decide this now.
13.

What happens if I do nothing at all?

You don’t have to do anything now if you want to keep the possibility of being classified as
Uber’s employee and getting money or benefits from this lawsuit. By doing nothing you are
staying in the Class. If you stay in and Plaintiffs prove that you are Uber’s employee and obtain
money or benefits, either as a result of the trial or a settlement, you will be notified about how to
apply for a share (or how to ask to be excluded from any settlement). Keep in mind that if you
do nothing now, regardless of whether Plaintiffs win or lose the trial, you will not be able to sue
Uber—as part of any other lawsuit—about the same legal claims that are the subjects of this
lawsuit. You will also be legally bound by all of the orders the Court issues and judgments the
Court makes in this class action, including any orders or judgments regarding Plaintiffs’ claim
that you are an employee of Uber.
14.

Why would I ask to be excluded?

If you exclude yourself from the Class—which also means to remove yourself from the Class—
you won’t be bound by any determination that Class members are or are not Uber’s employees or
get any money or benefits from this lawsuit even if Plaintiffs obtain them as a result of the trial
QUESTIONS? VISIT www._________.com
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or from any settlement (that may or may not be reached) between Uber and Plaintiffs. However,
you may then be able to file your own suit against Uber for claims that are the same or similar to
the claims being raised in this lawsuit. If you exclude yourself, you will not be legally bound by
the Court’s judgments in this class action.
If you start your own lawsuit against Uber after you exclude yourself, you’ll have to hire and pay
your own lawyer for that lawsuit if you want to use a lawyer, and you’ll have to prove your
claims. If you do exclude yourself so you can start your own lawsuit against Uber, you should
talk to your own lawyer soon, because your claims may be subject to a statute of limitations.
15.

How do I ask the Court to exclude me from the Class?

To ask to be excluded, you must send a written request in the form of an email or a letter sent by
mail to , stating that you want to be excluded from O’Connor v. Uber. You must email your
request to be excluded from the class by Month 00, 0000. Alternatively, you may send a letter
by mail containing the same information to the address set forth below. The letter must be
postmarked by Month 00, 0000.
[Notice Administrator]
P.O. Box 0000
City, ST 00000
[uberclassexclude@[Notice Administrator’s domain] or a mutually agreed-upon email
address]email address]
Please note that excluding yourself from the Class is different from “opting-out” of the
arbitration clause, which you may have previously heard about. If you exclude yourself
from the class, you will not be eligible for any recovery that may be obtained in this
lawsuit.
16.

Can Uber retaliate against me for participating in this case?

No, it is against the law for Uber to retaliate against you for participating in this lawsuit.

THE LAWYERS REPRESENTING YOU
17.

Do I have a lawyer in this case?

The Court decided that Ms. Shannon Liss-Riordan, Esq. and Ms. Adelaide Pagano, Esq. of the
law firm Lichten & Liss-Riordan, P.C. are qualified to represent you and all Class Members.
These lawyers are called “Class Counsel.” They are experienced in handling similar cases
against other defendants. If you have questions about the lawsuit or your rights in this case, you
can contact them at the address below:
Plaintiffs’ Counsel
Shannon Liss-Riordan, Esq.
Adelaide Pagano, Esq.
QUESTIONS? VISIT www._________.com
8

Lichten & Liss-Riordan, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
[phone]
[e-mail]
Erin O’Reilly, Legal Assistant, [e-mail]

18.

Should I get my own lawyer?

You do not need to hire your own lawyer because Class Counsel is working on your behalf. But,
if you want your own lawyer, you will have to pay that lawyer. For example, you can ask him or
her to appear in Court for you if you want someone other than Class Counsel to speak for you.

19.

How will the lawyers be paid?

If Class Counsel get money or benefits for the Class, they may ask the Court for fees and
expenses. You won’t have to pay these fees and expenses. If the Court grants Class Counsel’s
request, the fees and expenses would be either deducted from any money obtained for the Class
or paid separately by Uber.

THE TRIAL
The Court has decided to allow this lawsuit to proceed to a jury trial to decide who is right in this
case.
20.

How and when will the Court decide who is right?

As long as the case isn’t resolved by a settlement or otherwise, Class Counsel will have to prove
Plaintiffs’ claims at a jury trial. The jury trial is scheduled to begin on June 20, 2016. During
the trial, a jury will hear all of the evidence to help them reach a decision about whether
Plaintiffs or Uber are right about the claims in the lawsuit. There is no guarantee that Plaintiffs
will win, or that they will get any money for the Class.
21.

Do I have to come to the trial?

You do not need to attend the trial. Class Counsel will present the case for Plaintiffs, and Uber
will present the defenses. You or your own lawyer are welcome to come at your own expense.

22.

Will I get money after the trial?

If Plaintiffs obtain a judgment that drivers are Uber’s employees and money or benefits as a
result of the trial or settlement, you will be notified about how to participate. We do not know
how long this will take.
QUESTIONS? VISIT www._________.com
9

GETTING MORE INFORMATION
23.

Are more details available?

Visit the website, [website], where you will find the Court’s Orders Certifying the Class, the
Complaint that Plaintiffs submitted, and Uber’s Answer to Plaintiffs’ Complaint. You may also
speak to one of the lawyers by calling [dedicated number] or writing to [dedicated address].
PLEASE DO NOT CALL THE COURT

Dated: Month 00, 0000

Clerk of the Court for the United States District
Court for the Northern District of California

QUESTIONS? VISIT www._________.com
10

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA
A federal court authorized this notice. This is not a solicitation from a lawyer.

NOTICE THAT YOU ARE NOT INCLUDED IN A CLASS ACTION
AGAINST UBER TECHNOLOGIES, INC.
A federal court authorized this notice. This is not a solicitation from a lawyer.

Dear current or former Uber driver:
This notice is to provide you important information regarding a class action
lawsuit that has been filed against Uber Technologies, Inc., alleging that Uber has
misclassified its drivers as independent contractors, in violation of California wage laws.
The lawsuit is called O’Connor et al v. Uber Technologies, Inc., C.A.Case No. 1303826-EMC, and it is pending in the U.S. District Court for the Northern District of
California.
The case alleges that Uber drivers are entitled to reimbursement for certain
expenses that have been necessary for them to perform their work for Uber. The case
also alleges that Uber has failed to remit to drivers the total proceeds of gratuities that
they allege that Uber has informed customers are included in the Uber fare.
The Court has now certified this case as a class action, and so it includes certain
individuals who have driven for Uber in California. However, based on Uber’s records,
you are not a member of the class and so you will not be included in the case, or able to
obtain any recovery the plaintiffs may obtain from the case.
You are not included in this case because the Court excluded the following
categories of drivers from the class action: (1) drivers who contracted to drive for Uber
(or its subsidiary Raisier) through a corporate or fictitious name; and (2) drivers who
contracted to drive for Uber through an intermediary transportation company (like a limo
company).
The fact that you have been excluded from the class action does not mean that
the Court has ruled on whether the claims that were filed on your behalf are legally
correct or not. The Court has simply decided that the claims of the drivers who fall into
the categories listed above cannot be tried together with the claims of the drivers who
were included in the class.

Thus, if you want to pursue the claims for gratuities and expense reimbursement
that have been asserted in this case on behalf of Uber drivers, you will need to take
action.
Please note also, that if you currently drive for Uber, you have recently been
asked by Uber to agree to a new contractdriver-partner agreement. This contract
agreement contains a revised arbitration clause that may require you to bring any
claims against Uber individually in arbitration (and prevent you from bringing a legal
claim against Uber in court and may prevent you from becoming a member of any other
class actions that may be filed). You have been sent or will shortly be sent a new notice
explaining your rights and opportunity to opt out of the arbitration clause.