Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 1 of 14 1 2 3 4 5 6 7 8 9 KING COUNTY SUPERIOR COURT FOR THE STATE OF WASHINGTON JOSHUA FISHER, individually, and on behalf of all others similarly-situated, Plaintiff, 10 13 14 15 CLASS ACTION COMPLAINT ij 11 12 No. UBER TECHNOLOGIES, INC., a Delaware corporation; RAISER, LLC, a subsidiary of UBER TECHNOLOGIES, INC.; JOHN DOES IV and JANE DOES I-V; BLACK CORPORATIONS I-V; WHITE LIMITED LIABLITY COMPANIES I-V; and GREEN PARTNERSHIPS I-V, 16 Defendants. 17 18 19 20 For their Complaint against the Defendants, Plaintiff JOSHUA FISHER, on behalf of himself and all other individuals who have worked or are currently working as drivers for Defendants Uber Technologies, Inc. ("Uber") and Raiser LLC ("Raiser"), an Uber subsidiary 21 ("Defendants" or "Uber") in the State of Washington, by and through counsel, alleges the 22 23 following: 24 25 CLASS ACTION COMPLAiNT - 1 MYERS & COMPANY, P.L.LC. 1530 EASTLAKS AVENUE EAST SEATFLE, WASHINGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 2 of 14 PARTIES, JURISDICTION, AND VENUE 1 2 3 1. Plaintiff Joshua Fisher is a resident of King County, Washington. 2. Defendant Uber is a Delaware corporation headquartered in San Francisco, 4 California, that is authorized to conduct business and does conduct business throughout the State 5 of Washington, including in King County, Washington. 6 3. Defendant Raiser is a subsidiary of Uber and is the equivalent of Uber for the 7 purposes of this action, and is authorized to conduct business and does conduct business 8 throughout the State of Washington, including in King County, Washington. 9 10 4. Defendants JOHN DOES I-V and JANE DOES I-V; BLACK CORPORATIONS I-V; WHITE LIMITED LIABLITY COMPANIES I-V; and GREEN PARTNERSHIPS I-V, are 11 fictitious Defendants whose true names or capacities, whether individual, corporate, associate or 12 otherwise, are unknown to Plaintiff at this time. Plaintiff therefore sues the Defendants by such 13 fictitious names and will seek leave of the Court to amend this Complaint when their true names 14 15 and capacities become known. 16 5. Defendants have caused events to occur in King County, Washington. 17 6. Venue is proper in King County, Washington, because the Defendants conduct 18 business in King County, Plaintiff is a resident of King County, and the events that give rise to 19 Plaintiffs causes of action occurred in King County. 20 21 22 CLASS ALLEGATIONS 7. Plaintiff brings this Class action pursuant to CR 23(a), on behalf of himself and all other similarly situated Uber drivers in the State of Washington. Plaintiff reserves the right to 23 modify this class definition prior to moving for class certification. 24 25 CLASS ACTION COMPLAINT -2 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUS EAST SEATFLE, WASHINGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 3 of 14 8. Subject to additional information obtained through further investigation and I discovery, the foregoing definition of the Class may be expanded or narrowed by amendment or 2 3 amended complaint. Excluded from the Class are Defendants and their affiliates, parents, 4 subsidiaries, employees, officers, agents, and directors; government entities or agencies, their 5 affiliates, employees, officers, agents, and directors in their governmental capacities; any judicial 6 officer presiding over this matter and the members of their immediate families and judicial staff; 7 and class counsel. 8 9. 9 10 This action is properly maintainable as a class action pursuant to CR 23 for the following reasons: a. The Class is ascertainable and there is a well-defined community of interest 11 among the members of the Class; 12 b. Membership in the Class is so numerous as to make it impractical to bring all 13 Class members before the Court. The identity and exact number of Class 14 15 16 17 members is unknown but is estimated to be at least in the thousands. c. Plaintiff's claims are typical of those of other Class members, all of whom have suffered harm due to Uber' s violations of the law. 18 d. Plaintiff is a member of the Class. 19 e. There are numerous and substantial questions of law and fact common to all of 20 the members of the Class which control this litigation and predominate over any 21 individual issues pursuant to CR 23(b)(3). The common issues include, but are 22 not limited to, the following: 23 i. Whether Defendants have charged customers a gratuity for class 24 members' services; 25 CLASS ACTION COMPLAINT -3 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUE EAST SEATFLE, WASHINGTON 98102 TELEPHONE (206) 398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 4 of 14 ii. Whether Defendants failed to distribute the total proceeds of those 1 gratuities to the class members; 2 iii. Whether Defendants have informed customers that gratuity is included in 3 the price of the Uber service and so there is no need to tip the drivers; 4 iv. Whether class members have suffered damages based upon Uber's 5 representation to customers that there is no need to tip the drivers; 6 7 v. Whether Defendants improperly classified class members as independent 8 contractors rather than employees; 9 vi. Whether class members have been required to pay the expenses of their 10 employment, including the cost of a vehicle, repairs, gas and tolls; 11 vii. Whether Uber unlawfully denied to compensate its employees, Uber' s 12 drivers, those expenses; and 13 viii. Whether class members were denied employee benefits as required by 14 law. 15 16 10. As provided in CR 23(a)(3), the proposed lead Plaintiff's representative claims 17 are typical of those of the proposed Class because the proposed lead Plaintiff's damages are 18 based upon the same legal theories. The proposed representative Plaintiff's grievances, like the 19 proposed Class grievances, arise out of the same business practices and course of conduct of 20 Defendants. Further, Plaintiffs' damages arise out of a pattern of nearly identical and repetitive 21 business practices conducted by Defendants. Finally, the representative Plaintiff has no special 22 circumstances that would put him in conflict with the other members of the Class. 23 24 25 CLASS ACTION COMPLAINT -4 MYERS & COMPANY, P.LL.C. 1530 EASTLAKE AVENUE EAST SEATrLE, WASHINGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 5 of 14 11. 2 3 4 5 As provided by CR 23(a)(4), the representative Plaintiff can adequately represent the Class. No conflict of interest exists between the representatives and the Class members or with respect to the claims for relief requested. 12. Without a class action, the Class will continue to suffer damage and Defendant's I violations of the law or laws will continue without remedy. 13. The representative Plaintiff and his chosen attorneys are familiar with the subject 7 matter of the lawsuit and have full knowledge of the allegations contained in this complaint so as 8 to be able to assist in its prosecution. In addition, the representative's attorneys are competent in 9 10 the relevant areas of the law and have sufficient experience to vigorously represent the Class. Furthermore, the resources available to Class counsel ensure that the litigation will not be 11 hampered by a lack of financial capacity. Plaintiffs' attorneys have sufficient financial resources 12 and are willing to absorb the costs of this litigation. 13 14 15 14. As provided by CR 23(b), a class action is superior to any other available method for adjudicating this controversy. This proposed class action is the surest way to fairly and 16 expeditiously compensate so large a number of injured persons; to keep the courts from 17 becoming paralyzed by hundreds, perhaps thousands of repetitive cases, and to reduce 18 transaction costs so that the injured Class can obtain the most compensation possible. Class 19 treatment of this controversy presents a superior mechanism for fairly resolving similar issues 20 and claims without repetitious and wasteful litigation. 21 15. The claims in this case are properly certifiable under applicable law. 22 23 24 25 CLASS ACTION COMPLAiNT -5 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKS AVENIJS EAST SEArFLE, WASHINGTON 98102 TELEPHoNE (206) 398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 6 of 14 STATEMENT OF FACTS 1 . 3 3 4 A. Background 16. Uber is a car service that provides drivers who can be hailed and dispatched through a mobile application. At all relevant times, Uber was an "employer" within the meaning of all 5 17. 6 applicable statutes. 7 18. 8 9 Uber compensates its drivers weekly. Uber takes a percentage of the total fares driven and the driver receives the remainder of the fare. Because Uber classifies its drivers as independent contractors, Plaintiff had to pay expenses, including gas, tolls, car repairs and lease 10 payments, from his portion of the fare. 11 19. Uber also deducts a $1 "safe ride" fee from each fare which is allegedly used to 12 pay for background checks, driver safety education and development of safety features in its 13 14 15 16 17 18 19 20 21 22 mobile application - an expense the employer should pay, not the employee. 20. Uber1 s contract provides that drivers are to be compensated $6 for cancelled fares but fails to actually pay the drivers any amount at all. 21. From July of 2012 through June of 2013, Plaintiff worked for Uber as an UberBLACK driver. 22. On average, Plaintiff drove eight (8) hours per week throughout the course of his employment with Uber. 23. Plaintiff received 80% of the total fare, and Uber received the remaining 20% of the total fare. 23 24 25 CLASS ACTION COMPLAINT -6 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUE EAST SEATFLE, WASHINGTON 98102 TELEPIONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 7 of 14 1 n L 3 4 24. Plaintiff earned approximately $200 per week. From the $200, Plaintiff then had to pay his employment related expenses, including gas and tolls, which totaled between $35 and $50 per week. 25. In the beginning of his employment, Plaintiff's expenses also included $10 per 5 week for use of a borrowed iPhone. Once the application for Uber became accessible on an 6 Android device, Plaintiff no longer needed to pay $10 per week for the cell phone rental. 7 Nonetheless, Uber's practice is to continue to charge the $10 fee. 8 9 10 26. Uber also has a practice of denying drivers fares on the basis that they are not eligible to drive when in fact they are; for example, at the beginning of the month, Uber will deactivate a driver whose registration is not due until the end of the month. 11 27. Uber makes deceptive statements concerning the amount that drivers can earn. 12 For example, during surge pricing surrounding a public event, such as a college football game, 13 Uber will claim that drivers can make more than their usual fare, which is not possible due to 14 15 16 17 18 traffic congestion. 28. Uber told drivers that they would receive a credit card that would entitle them to a discount for fuel; however, no card was ever provided. 29. Over the course of his employment, Uber failed to compensate Plaintiff for any 19 employment related expenses incurred, including gas, tolls, cellular phone bills, insurance, car 20 maintenance and repairs. 21 22 30. During the course of his employment, Plaintiff did not receive gratuities. 31. Uber specifically advertises to its customers that tips are included in the cost of 23 the fare: 24 25 CLASS ACTION COMPLAINT -7 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUE EAST SEATTLE, WASH!NGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 8 of 14 1 DO I NEED TO TIP MY DRIVER? 2 You don't need cash when you ride with Uber. Once you arrive at your destination, your fare is automatically charged to your credit card on file - there's no need to tip. 3 32. 4 5 6 Despite Uber's representation that "there is no need to tip," Uber drivers are not compensated for gratuities. In fact, Uber specifically instructed its drivers to refuse a cash gratuity if offered. B. Misclassification of Drivers 33. Plaintiff alleges that Uber uniformly misclassifies its drivers as independent 7 8 contractors when they should be categorized as employees. 9 34. Uber exerts significant control over its drivers. For example, upon signing a 10 11 12 13 license agreement to work for Uber, new drivers of Uber must watch a video demonstrating how Uber wants its drivers to interact with customers. 35. In addition, all drivers for Uber must maintain an average customer star 14 evaluation of at least 4.5 out of a possible 5 stars. Instructions on how to improve one's star 15 rating are given to drivers who fall below this average in any given week. If a driver fails to 16 maintain an average customer rating of 4.5, Uber will deactivate his or her ability to use the 17 application to pick up customers, an action tantamount to terminating the driver "at will," a 18 19 hallmark of an employee-employer relationship. 36. Uber also unilaterally sets the fares for all rides and drivers are required to charge 20 the cost determined solely by Uber. 21 37. As a result of its misclassification, Uber failed to provide Plaintiff and other 22 similarly aggrieved employees with itemized wage statements, minimum wages and 23 24 reimbursement for necessary expenses. Uber failed to keep accurate payroll records evidencing 25 CLASS ACTION COMPLAINT -8 MYERS & COMPANY, P.L.LC. 1530 EASTLAKE AVENUE EAST SEATTLE, WASHINGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 9 of 14 drivers' hours worked and wages paid and unlawfully retained gratuities owed to drivers, despite 1 2 3 4 representing to customers and advertising that gratuity is included in the total cost of the service. C. Violations of Washington Employment Laws 38. Plaintiff further alleges that Uber violated the Revised Code of Washington in its 5 (i) failure to provide prompt payment of wages to drivers upon termination and resignation in 6 violation of RCWA 49.48.010; (ii) retention of gratuities intended for drivers; (iii) failure to keep 7 required payroll records in violation of RCWA 49.46.070; (iv) its failure to pay minimum wages 8 in violation of RCWA 49.12.150; and (v) its failure to pay overtime in violation of RCWA 9 10 11 12 13 14 49.46. 130. COUNT I TORTIOUS INTERFERENCE WITH CONTRACT & BUSINESS RELATIONS 39. Plaintiff, on behalf of himself and the proposed class, repeats and realleges all preceding paragraphs as if fully set forth herein. 40. On its website, Defendants' specifically sets forth: 15 16 17 DO I NEED TO TIP MY DRIVER? You dr3ni need cash when you ride with tJber. Once you arrive at your dctination, your tare is automatically chargoct to your crcdiz card on file - Iheres no need to t1P. 18 41. Defendants' conduct, in failing to remit the total proceeds of gratuities to drivers 19 constitutes unlawful tortious interference with the contractual and/or advantageous relationship 20 21 22 that exists between the drivers and customers. 42. Defendants' conduct, informing customers "there is no need to tip," constitutes 23 unlawful tortious interference with the contractual and/or advantageous relationship that exists 24 between the drivers and customers. 25 CLASS ACTION COMPLAINT -9 MYERS & COMPANY, P.LL.C. 1530 EASTLAKa AvENUE EAsT SEArILE, WASHINGTON TELEPHONE 98102 (206) 398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 10 of 14 Defendants had a contract with Plaintiff, were aware of those contracts, 1 2 intentionally procured the breach of those contracts, and caused Plaintiff damages thereby. COUNT II BREACH OF CONTRACT 3 4 Plaintiff, on behalf of himself and the proposed class, repeats and realleges all 5 preceding paragraphs as if fully set forth herein. 6 Defendants have a contract with the drivers, requiring them to remit to the drivers 7 8 9 10 the total proceeds of all gratuities. At all relevant times, Defendants did withhold, and continue to withhold, gratuities given by customers to drivers, and/or gratuities that are incorporated into the set fare. 11 Defendants' withholding of gratuities constitutes a breach of contract. 12 As a result of the Defendants' withholding of gratuities, Plaintiff, on behalf of 13 himself and the proposed class, has suffered damages by, among other things, not realizing the 14 full income he and the class are entitled to receive. 15 COUNT III UNJUST ENRICHMENT 16 17 18 Plaintiff, on behalf of himself and the proposed class, repeats and realleges all preceding paragraphs as if fully set forth herein. 19 Defendants unlawfully retained gratuities owed to the drivers. 20 As a result, Defendants has been unjustly enriched through their retention of a 21 22 portion of the gratuities owed to the drivers. Plaintiff and the class members are entitled to restitution for their full share of the 23 proceeds of the improperly retained gratuities. 24 25 CLASS ACTION COMPLAINT - 10 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUE EAST SEATILE, WASHINGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 11 of 14 COUNT IV CONVERSION 53. 3 Plaintiff, on behalf of himself and the proposed class, repeats and realleges all preceding paragraphs as if fully set forth herein. 4 54. Defendants unlawfully took Plaintiff's property, namely tips and money spent for 5 expenses, without Plaintiff's permission. 6 55. As a result, Plaintiff was harmed and class members are entitled to restitution for 7 8 their full share of proceeds, as well as treble damages. COUNT V UNFAIR COMPETITION 9 10 56. Plaintiff, on behalf of himself and the proposed class, repeats and realleges all 11 preceding paragraphs as if fully set forth herein. 12 57. RCW Ch. 19.86 prohibits unfair or deceptive acts or practices in the conduct of 13 14 15 business. 58. Defendants' actions constituted unfair or deceptive acts or practices in the 16 conduct of business. Defendants' acts have the capacity to deceive a substantial portion of the 17 public, including Plaintiff and class members. 18 19 20 21 22 59. Plaintiff's property rights, specifically gratuities and expenses, were misappropriated by Defendants for their commercial advantage. 60. Defendants deceived Plaintiff by making false accusations regarding gratuities, cancelled fares and opportunities to earn during surge pricing. 61. Defendants unjustly profited by Plaintiff's expenditure of time, labor and talent. 62. As a result of Defendants unfair or deceptive acts or practices, Plaintiff and the 23 24 proposed class suffered economic damages in an amount to be proven at trial. 25 CLASS ACTION COMPLAINT - 11 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUE LAST SEATrLE, WASHINGTON 98102 TELEPHONE (206)398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 12 of 14 COUNT VI FRAUD AND MISREPRESENTATION 63. 3 4 Plaintiff, on behalf of himself and the proposed class, repeats and realleges all preceding paragraphs as if fully set forth herein. 64. Defendants made a material representation of fact, that Plaintiff would receive 5 gratuities, which was untrue, which Defendants knew was an untrue statement at the time, with 6 the intent to deceive, which Plaintiffjustifiably relied upon, causing Plaintiff to incur damages. 7 8 9 65. Defendants also informed Plaintiff and proposed class members that they would receive a cancellation fee refund if a passenger cancelled, which Defendants knew was an untrue 10 statement at the time, with the intent to deceive, which Plaintiff justifiably relied upon, causing 11 Plaintiff to incur damages. 12 66. Defendants made a material representation of fact, that Plaintiff would receive a 13 card for discounted gas, which Defendants knew was an untrue statement at the time, with the 14 intent to deceive, which Plaintiff justifiably relied upon, causing Plaintiff to incur damages. 15 COUNT VII VIOLATIONS OF WASHINGTON EMPLOYMENT LAW 16 17 18 19 20 21 22 67. Plaintiff, on behalf of himself and the proposed class, repeats and realleges all preceding paragraphs as if fully set forth herein. 68. Despite the existence of an agreement indicating Plaintiff is an independent contractor, the treatment of Plaintiff and control exercised by Uber indicate that Plaintiff is an employee. 69. Plaintiff seeks damages pursuant to the Revised Code of Washington for 23 violations of the following sections: 24 25 CLASS ACTION COMPLAINT - 12 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AvENUE EAST SEATFLE, WASHINGTON 98102 TELEPHoNE (206) 398-1188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 13 of 14 a. Failure to provide prompt payment of wages to driver employees upon 1 2 termination and resignation in violation of RCW 49.48.010; b. Improperly retaining portions of gratuities intended for driver employees; 3 4 c. Failure to keep required payroll records in violation of RCW 49.46.070; 5 d. Failure to pay minimum wages in violation of RCW 49.12.150. 6 e. Failure to pay overtime in violation of RCW 49.46.130. 7 8 9 10 70. As a result of Uber' s violations, Plaintiff is entitled to recover damages associated with the wages and benefits withheld in violation of the Revised Code of Washington as well as attorneys' fees pursuant to RCW 49.48.030. In addition, Plaintiff seeks the imposition of penalties on the Defendants with respect to the applicable provisions of RCW 49.60.180 and 11 49.60.210 12 REQUEST FOR RELIEF 13 14 15 16 17 WHEREFORE, Plaintiff, individually and on behalf of the proposed class, requests relief against the Defendants as follows: a. An award of damages, including compensatory and treble damages, in an amount to be determined at trial; 18 b. Notice to the Classes of the action; 19 C. An injunction against Defendants prohibiting Defendants from engaging in each 20 21 22 of the unlawful practices, policies and patterns set forth herein; d. Liquidated damages, pursuant to RCW; e. Reasonable attorneys' fees and costs of this action; f. Pre-judgment and post-judgment interest as provided by law; and 23 24 25 CLASS ACTION COMPLAiNT - 13 MYERS & COMPANY, P.L.L.C. 1530 EASTLAKE AVENUE EAsT SEATTLE, WASHINGTON 98102 TELEPHONE (206) 398-I 188 Case 2:15-cv-01787-TSZ Document 1-3 Filed 11/13/15 Page 14 of 14 An Order requiring that Defendants return to Plaintiff any gratuities and any other 2 3 4 funds wrongfully kept by Defendants; and Such other and further relief that the Court may deem just and proper. DATED this 121h day of October, 2015. 5 MYERS & COMPANY, 6 Attorneys for Plaintiff P.L.L.C. 7 8 By: Michael David Myers WSBA No. 22486 9 10 NAPOLI LAW, P.L.L.C. 11 By: 12 5/ Marie Napoli Marie Napoli (pro hac vice pending) 13 IMBESI LAW, p.c. 14 15 By: s/Brittany Weiner Brittany Weiner (pro hac vice pending) 16 17 18 19 20 21 22 23 24 25 CLASS ACTION COMPLAINT - 14 MYERS & COMPANY, P.L.L.C. 1530 EASTLARE AVENUE EAST SEATFLE, WASHINGTON 98102 TELEPHONE (206) 398-1 188