Case: 1:15-cv-02653-JG Doc #: 1 Filed: 12/21/15 1 of 17. PageID #: 1

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
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LADON BRUSTER, individually
and on behalf of all others similarly-situated,

Case No.:

Plaintiffs,
COMPLAINT AND JURY
DEMAND
v.
UBER TECHNOLOGIES, INC. and RAISER, LLC.
Defendants.
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Plaintiff LaDon Bruster brings this action on behalf of himself and all other individuals
who have worked or are currently working in the State of Ohio as drivers for Defendants Uber
Technologies, Inc. and Rasier, LLC (collectively, “Uber” or “Defendants”), and alleges the
following:
INTRODUCTION
1.

This case is about one thing: Uber, a company valued at more than $50 billion,

taking advantage of its struggling drivers to bolster its bottom line. Though it likes to call
itself a technology company, Uber is a transportation company. Uber does not sell software.
It sells rides.

Thus, Uber’s drivers—like Plaintiff and the Class he represents—are the

lifeblood of the company. Nonetheless, to increase profits, Uber uses its position of power to
mislead and take advantage of its drivers at every turn.
2.

First, Uber refuses to pay its drivers a living wage. After accounting for

drivers’ expenses, which Uber should pay (but does not), most drivers barely make enough

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money to make ends meet.

Moreover, to further squeeze its drivers, Uber routinely

misappropriates money from their fares and does not follow through on its financial
commitments. Uber continues to achieve record valuations, while its drivers barely scrape by.
3.

Second, Uber falsifies the employment status of its drivers. Though Uber

exercises near complete control over its drivers and many of its drivers work the equivalent of
two fulltime jobs for Uber, it improperly classifies drivers as “independent contractors,” rather
than “employees.” Why? So they are not subject to the protections of the Ohio Labor Code
and Uber does not have to pay the costs of compliance (e.g., higher wages, benefits, and
reimbursement of expenses).
4.

Third, Uber misrepresents how drivers are paid so that it can retain a larger

percentage of the fares generated. Uber tells customers that gratuity is included in the fares
charged when they use Uber’s electronic payment service, which results in customers not
leaving additional tips for drivers. In reality, however, Uber fails to remit the gratuity to its
drivers—instead, it lines its own pockets with the drivers’ money. Uber takes the tips that
drivers would otherwise receive were it not for Uber’s blatant misrepresentations.
5.

Plaintiff brings this action to prevent Uber from continuing to take advantage of

its drivers by violating their contractual and statutory rights and to return to Uber’s drivers
what is rightfully theirs.
6.

Accordingly, Plaintiff seeks to recover damages for Uber’s numerous violations

of the Ohio Revised Code: (a) failure to maintain payroll records in violation of Ohio R.C. §
4111.08; (b) failure to pay minimum wages in violation of R.C. § 4111.01, et seq.; (c) failure
to pay wages promptly upon resignation and termination in violation of R.C. § 4115.10(A);
and (d) failure to pay overtime compensation in violation of R.C. § 4111.03; and (e) failure to

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timely pay and improper retention of gratuities in violation of R.C. § 4113.15, et seq.
7.

Plaintiff also seeks to recover damages for Uber’s common-law violations: (a)

tortious interference with prospective business relations; (b) breach of contract; (c) promissory
estoppel; (d) unjust enrichment; (e) conversion; (f) unfair competition; and (g) fraud.
PARTIES, JURISDICTION, AND VENUE
8.

LaDon Bruster is a resident of Cuyahoga County, Ohio. Plaintiff currently

works for Defendants as an Uber driver.
9.

Uber Technologies, Inc. is a Delaware corporation headquartered in San

Francisco, California that is authorized to conduct business and does conduct business
throughout Ohio, including in Cuyahoga County. It provides a service where individuals can
login to a software application on their smartphone, request a ride, and be paired with an
available driver.
10.

Rasier, LLC is a subsidiary of Uber Technologies, Inc. and is its equivalent for

purposes of this action. It is authorized to conduct business and does conduct business
throughout Ohio, including in Cuyahoga County.
11.

This Court has subject matter jurisdiction over the controversy pursuant to 28

U.S.C. § 1332(a) because Plaintiff is a resident of the State of Ohio and Defendants are
foreign corporations incorporated in the State of Delaware with principal offices in the State of
California. The amount in controversy exceeds $75,000.
12.

This Court has supplemental jurisdiction over Plaintiff’s state law claims

pursuant to 28 U.S.C. § 1367 because the state law claims are so closely related to the claims
in which the Court has original jurisdiction that they form part of the same case or
controversy.

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13.

Venue is proper in the Northern District pursuant to 28 U.S.C. § 1391 as the

events and conduct giving rise to the claims occurred in this District.
FACTUAL ALLEGATIONS
A. Plaintiff Ladon Bruster
14.

In 2014, Plaintiff began working for Uber as an UberX driver in Ohio.

15.

For the previous year and a half, Plaintiff drove approximately thirty-five (35)

hours per week for Uber.
16.

Recently, Plaintiff’s account was deactivated and he has been unable to continue

driving for Uber.
17.

On December 11, 2015, Defendants issued a new Technology Services

Agreement, which contained an arbitration agreement. On December 16, 2015, Plaintiff opted
out of the arbitration agreement by sending an e-mail to optout@uber.com and complying with
the directions in the agreement.
18.

Uber compensates its drivers weekly. Uber takes 20% of the total fares and the

driver receives the remaining 80%.

Because Plaintiff was improperly classified as an

independent contractor, he had to pay all employment related expenses, including gas, tolls, car
repairs, lease payment and insurance, from his portion of the fare.
19.

Plaintiff was compensated approximately $350 per week and incurred

approximately $200 per week in expenses.
20.

Thus, after expenses, Plaintiff made an approximate income of $5.00 per hour—

significantly less than the state required minimum wage.
B.

Uber Increases its Profits by Deceiving its Drivers

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21.

In addition to the 20% of the fare retained by Uber, it also takes $1 for each fare

Plaintiff accepted. Specifically, Uber deducts a $1 “safe ride” fee from each fare, which is
allegedly used to pay for background checks, driver safety education, and development of safety
features in its mobile application—an expense that Uber, the employer, should pay.
22.

Uber’s contract with its drivers provides that drivers must be compensated $5.00

for cancelled fares, but Uber failed to compensate Plaintiff for a majority of cancelled fares.
23.

Uber misled Plaintiff regarding the amount of money that drivers can earn. For

example, Uber told Plaintiff that drivers can earn guaranteed money working at a certain time.
However, Plaintiff did not earn the guaranteed hourly pay that Uber promised.
24.

Uber also purports to offer a class to drivers who are seeking reactivation for $50

dollars. Those who complete the class are given the opportunity for reinstatement. However,
Uber refused to offer the class to Plaintiff, even though this was his first time falling below the
required 4.5-star minimum, and even though he raised his rating above that minimum on his own
accord.
C.

Uber Increases its Profits by Misappropriating its Drivers’ Tips

25.

During the course of his employment, Plaintiff did not receive gratuities.

26.

Uber advertised to customers, on its website and in marketing materials, that a

gratuity is included in the total cost of the fare for the car service and that there is no need to tip
the driver:

27.

Uber intentionally misrepresented to customers that gratuity was included in the

cost of its fares and instructed passengers not to leave a tip in addition to the amount of the fare.
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28.

Via its training video, Uber also misrepresented to Plaintiff that tips would be

added to his wages. Uber explicitly instructed Plaintiff and other drivers not to ask for or accept
tips from passengers.
29.

Despite Uber’s misrepresentations to customers that “there’s no need to tip” and

misrepresentations to Plaintiff and other drivers that tips would be added to their wages, Plaintiff
and other drivers failed to receive any gratuities.
30.

As a result of Uber’s misrepresentations to customers that gratuity is included in

the cost of its service but then failing to remit any gratuity to the drivers, Plaintiff has been
deprived of payments to which he is entitled and which reasonable customers would have
expected them to receive.
D.

Uber Increases its Profits by Misclassifying Drivers as Independent
Contractors, Rather than Employees

31.

Uber uniformly misclassifies its drivers, including Plaintiff, as independent

contractors when they should be classified as employees.
32.

Uber is deeply involved in marketing its transportation services, qualifying and

selecting drivers, regulating and monitoring drivers’ performance (including disciplining or
terminating those who fail to meet its employment standards), and setting prices.
33.

Uber exercises substantial control over the qualification and selection of its

drivers. Before working for Uber, applicants must complete Uber’s application process,
including a background check.
34.

Uber exercises significant control and supervision over the work details of its

drivers—the manner, methods, and means of its drivers’ provision of transportation services.
For example, upon signing an agreement to work for Uber, new drivers must watch a video
demonstrating how Uber wants them to interact with customers. Drivers are even instructed on
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such simple tasks as how to pick up a customer with their car. In short, Uber retains all
necessary control over the drivers’ performance.
35.

Uber monitors its drivers to ensure compliance with Uber’s quality control

standards. All drivers for Uber, including Plaintiff, must maintain an average customer star
evaluation of at least 4.5 out of a possible 5 stars. Instructions on how to improve one’s star
rating are given to drivers who fall below this average in any given week. If a driver fails to
maintain an average customer rating of 4.5, the driver has 30 days to raise his rating to within the
required threshold, or else Uber deactivates the driver’s ability to use the application to pick up
customers. Thus, monitoring through rider ratings is an effective mechanism for Uber to enforce
its standards. Plaintiff’s rating dropped below 4.5, but within the 30 days rose back up to the
level required. However, Plaintiff was nonetheless deactivated after his rating remained at 4.59.
36.

Uber also unilaterally sets the fares—with no negotiation or input from drivers—

for all rides, and drivers are required to charge the cost determined solely by Uber. Uber bills
customers for the entire amount before remitting a portion of the fare to drivers.
37.

Uber claims a proprietary interest in its riders, which further demonstrates that

Uber acts as more than a mere intermediary between riders and drivers. For instance, Uber
prohibits its drivers from answering rider queries about booking future rides outside the Uber
application or otherwise soliciting Uber riders.
38.

As a result of the intentional misclassification of its employees, Uber failed to

provide Plaintiff and other similarly aggrieved driver employees with itemized wage statements,
minimum wages, and reimbursement for necessary expenses (e.g., gas, tolls, car repairs, and
lease payments). Uber also failed to keep accurate payroll records evidencing Plaintiff’s and
other drivers’ hours worked and wages paid and unlawfully retained gratuities owed to Plaintiff

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and other drivers, despite representing to customers and its drivers that gratuity is included in the
total cost of the service. Uber also did not pay into any insurance funds, including Social
Security, disability and unemployment insurance.
39.

On December 16, 2015, House Bill 237 was approved by both the House and

Senate. The bill will require Uber to obtain a permit from the Public Utilities Commission of
Ohio, disclose how fares are calculated, provide a receipt, conduct background checks on drivers
and maintain records for two years. It also specifies that drivers shall be covered by Uber’s
insurance plan while the driver is acting in his employee capacity.
CLASS ACTION ALLEGATIONS
40. This action is properly maintainable as a class action pursuant to the Federal Rules
of Civil Procedure (“F.R.C.P.”) Rule 23.
41. Plaintiff seeks to proceed as a class action on behalf of himself and the following
class of persons:
All individuals who are currently working or have worked for Defendants as drivers
within the State of Ohio.
42. Subject to additional information obtained through further investigation and
discovery, the foregoing definition of the Class may be expanded or narrowed by amendment or
amended complaint. Excluded from the Class are Defendants and its affiliates, parents,
subsidiaries, employees, officers, agents, and directors; government entities or agencies, its
affiliates, employees, officers, agents, and directors in their governmental capacities; any judicial
officer presiding over this matter and the members of their immediate families and judicial staff;
and class counsel.

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43. The Class members are readily ascertainable. For purposes of notice and other
purposes related to this action, their names and addresses are readily available from Defendants.
The number and identity of the Class members are determinable from the records of Defendants.
44. At all relevant times, Plaintiff and Class members are and have been similarly
situated, have had substantially similar job requirements and pay provisions, and are and have
been subjected to Defendants' decisions, policies, plans, programs, practices, procedures,
protocols, routines, and rules, all culminating in willful wage and hour violations.
45. The proposed Class is so numerous that a joinder of all members is impracticable,
and the disposition of their claims as a class will benefit the parties and the court. Although the
precise number of such persons is unknown, the facts on which the calculation of that number
are presently within the sole control of Defendants, upon information and belief, there are more
than forty (40) members of the Class.
46. Plaintiff’s claims are typical of those claims, which could be alleged by any member
of the Class, and the relief sought is typical of the relief, which would be sought by each member
of the Class in separate actions. All the Class members were subject to the same corporate
practices of Defendants, as alleged herein. Defendants' corporate-wide policies and practices
affected all Class members similarly, and Defendants benefited from the same type of unfair
and/or wrongful acts as to each Class member. Plaintiff and other Class members sustained
similar losses, injuries and damages arising from the same unlawful policies, practices and
procedures.
47. Plaintiff is able to fairly and adequately protect the interests of the Class and has no
interests antagonistic to the Class. Prosecution of separate actions by individual members of the
Class would create a risk of inconsistent and/or varying adjudications with respect to the

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individual members of the Class, establishing incompatible standards of conduct for Defendants
and resulting in the impairment of Class members' rights and the disposition of their interests
through actions to which they were not parties.
48. There are questions of law and fact common to the Class which predominate over
any questions affecting only individual class members, including but not limited to:
a. Whether Defendant have charged customers a gratuity for class members’
services;
b. Whether Defendant failed to distribute the total proceeds of those gratuities to the
class members;
c. Whether Defendants have informed customers that gratuity is included in the
price of the Uber service and so there is no need to tip the drivers;
d. Whether class members have suffered damages based upon Uber’s representation
to customers that there is no need to tip the drivers;
e. Whether Defendants improperly classified class members as independent
contractors rather than employees;
f. Whether class members have been required to pay the expenses of their
employment, including the cost of a vehicle, repairs, gas and tolls;
g. Whether Uber unlawfully denied to compensate its employees, Uber’s drivers,
those expenses; and
h. Whether class members were denied employee benefits as required by law.
49. The representatives and their chosen attorneys are familiar with the subject matter of
the lawsuit and have full knowledge of the allegations contained in this complaint so as to be
able to assist in its prosecution. In addition, the representative’s attorneys are competent in the

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relevant areas of the law and have sufficient experience to vigorously represent the Class.
Furthermore, the resources available to counsel ensure that the litigation will not be hampered by
a lack of financial capacity. Plaintiff’s attorneys have sufficient financial resources and are
willing to absorb the costs of the litigation.
50.

A class action is superior to any other available method for adjudicating this

controversy. The proposed class action is the surest way to fairly and expeditiously compensate
so large a number of injured persons; to keep the courts from becoming paralyzed by hundreds,
perhaps thousands of repetitive cases; and to reduce transaction costs so that the injured Class
members can obtain the most compensation possible.

In short, class treatment presents a

superior mechanism for fairly resolving similar issues and claims without repetitious and
wasteful litigation.
CAUSES OF ACTION
COUNT I
TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS
51.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
52.

Uber interfered with the continuing business relationship between drivers and

riders—a separate relationship from that between either Uber and its drivers or Uber and its
riders, and one to which Uber is not a party—whereby riders would have paid gratuity to drivers,
including Plaintiff, absent Uber’s interference.
53.

Uber intentionally and maliciously interfered with Plaintiff and other drivers’

enjoyment of an expectancy of tips from passengers by intentionally misrepresenting that
gratuity was included in the cost of its fares.

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54.

For example, Uber specifically advertises to its customers that tips are included in

the cost of the fare:

55.

In reality, however, Uber collected gratuities and then failed to remit them to

drivers.
56.

Based on its past practices of not remitting gratuities to drivers, Uber knew that it

was going to retain the tips for itself when it misrepresented that tips would be passed on to its
drivers.
57.

Were it not for Uber’s misrepresentations regarding gratuities, riders would have

left a tip for drivers as is customary in the car-service industry.
58.

Uber knew that this would be a benefit accruing to the drivers at the time it

discouraged tipping by telling passengers tipping is included in the fare and knew the
interference was certain or substantially certain to occur as a result of the conduct.
59.

Uber’s conduct damaged Plaintiff and other drivers.
COUNT II
BREACH OF CONTRACT

60.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
61.

Uber has an implied contract with Plaintiff and other drivers to remit the total

proceeds of all gratuities, as well as to reimburse for expenses.
62.

Plaintiff and other drivers are third-party beneficiaries of customers’ implied

contract with Uber that tips would be remitted to drivers, the terms of which were incorporated
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by reference from certain advertisements or statements Uber made on various webpages. By
entering into this agreement, customers intended to secure a financial benefit for drivers,
including Plaintiff, in the form of gratuity and to act directly for the drivers’ benefit.
63.

Uber withheld and continues to withhold gratuities and has not reimbursed

expenses.
64.

Uber contracted with Plaintiff and other drivers to pay surge fares, to provide a

credit card entitling drivers to a discount on gas, and to pay $5.00 for cancelled fares.
65.

Uber has failed to pay surge fares, to provide a credit card entitling drivers to a

discount on gas, and to pay $5.00 for cancelled fares.
66.

Uber’s conduct damaged Plaintiff and other drivers.
COUNT III
PROMISSORY ESTOPPEL

67.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
68.

Uber promised to remit all gratuities to Plaintiff and other drivers in their

paycheck. Instead, Uber kept the tips for itself.
69.

Based on its past practices of not paying tips to drivers, Uber knew at the time it

made the promise that it was a lie.
70.

Plaintiff and other drivers relied to their detriment on Uber’s promise in

continuing to drive for Uber and not seeking additional tips from passengers. It is customary to
tip drivers in the car-service industry, and it was probable that drivers would have received tips
but for Uber’s false promise.
71.

Plaintiff and other drivers’ reliance was foreseeable because Uber—the entity that

actually determines and pays drivers’ compensation—made the false promise.
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72.

Uber’s conduct damaged Plaintiff and other drivers.

73.

Injustice can be avoided only by enforcing Uber’s promise to remit all gratuities

to Plaintiff and other drivers.
COUNT IV
UNJUST ENRICHMENT
74.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
75.

Uber unlawfully retained gratuities and surge fares promised to Plaintiff and other

drivers and did not reimburse expenses.
76.

Uber obtained these benefits from drivers by making material misrepresentations

and taking undue advantage of them.
77.

As a result, Uber has been unjustly enriched.

78.

Uber’s conduct damaged Plaintiff and other drivers.
COUNT V: CONVERSION

79.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
80.

Plaintiff and other drivers had the right to possession of tips, surge fares,

cancellation fees, and money spent for expenses.
81.

Uber interfered with Plaintiff and the other drivers’ right to their personal

property by refusing to relinquish the property to them. Instead, Uber retained the property for
its own benefit.
82.

The converted property was personal.

For example, tips were specifically

earmarked for the drivers.
83.

Uber’s conduct damaged Plaintiff and other drivers.
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COUNT VI
UNFAIR COMPETITION
84.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
85.

Plaintiff and other drivers’ property—gratuities, surge fares, and cancellation

fees—was misappropriated by Uber for its commercial advantage.
86.

Uber’s conduct damaged Plaintiff and other drivers.
COUNT VII
FRAUD

87.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
88.

Uber represented to Plaintiff and other drivers that they would receive gratuities,

surge fares, and cancellation fees. Uber did not pay these monies as promised.
89.

These misrepresentations were material because they affected Plaintiff and other

drivers’ decisions to continue driving for Uber.
90.

Uber knew at the time it made these misrepresentations—or, at the very least,

made the misrepresentations recklessly—that it would not pass along these monies to Plaintiff
and other drivers based on its past practices of not doing so.
91.

Plaintiff and other drivers reasonably and justifiably relied on these

misrepresentations and continued to drive for Uber because Uber was their employer and the
party responsible for overseeing the payment of these monies.
92.

Uber’s conduct damaged Plaintiff and other drivers.

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COUNT VIII
VIOLATIONS OF THE OHIO REVISED CODE
93.

Plaintiff, on behalf of himself and the proposed Class, repeats and incorporates

the allegations above as if fully set forth herein.
94.

Despite the existence of an agreement indicating that Plaintiff and other drivers

are independent contractors, Uber’s treatment of and control over them indicate that they are
employees who should be protected by wage and hour laws.
95.

Accordingly, Uber’s actions detailed above violate the following sections of the

Ohio Administrative Code: (a) failure to maintain payroll records in violation of R.C. § 4111.08;
(b) failure to pay minimum wages in violation of R.C. § 4111.01, et seq.; (c) failure to pay wages
promptly upon resignation and termination in violation of R.C. § 4115.10(A); (d) failure to pay
overtime in violation of R.C. § 4111.03 and (e) failure to timely pay gratuities in violation of
R.C. § 4113.15 et seq.
96.

As a result of Uber’s violations, Plaintiff is entitled to recover the wages and

benefits withheld in violation of Ohio Revised Code as well as attorneys’ fees pursuant to R.C. §
4111.10.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of the proposed Class, requests relief
against Uber as follows:
a. an award of compensatory damages, punitive damages, and treble damages, as
well as back pay, in an amount to be determined at trial;
b. Notice to the Class of the action;
c. An injunction prohibiting Uber and all those in concert with it from engaging in
each of the unlawful practices, policies, and patterns set forth above;
d. Liquidated damages;
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e. Reasonable attorneys’ fees and costs;
f. An Order requiring Defendants to return to Plaintiff any gratuities and other funds
wrongfully withheld by Defendants;
g. Pre-judgment and post-judgment interest at the highest rate provided by law; and
h. Such other and further relief that the Court may deem just and proper.
JURY DEMAND
Plaintiff, on behalf of himself and the proposed Class, demands a trial by jury on all
claims so triable.
Dated: December 21, 2015

Respectfully submitted,

/s/ John R. Climaco
John R. Climaco (0011456)
Scott D. Simpkins (0066775)
CLIMACO WILCOX PECA
TARANTINO & GAROFOLI CO., LPA
Telephone: (216) 621-8484
Facsimile: (216) 771-1632
jrclim@climacolaw.com
sdsimp@climacolaw.com
Marie Napoli (pro hac vice pending)
NAPOLI LAW PLLC
1301 Avenue of the Americas, 10th Floor
New York, New York 10019
Telephone: (212) 397-1000
MNapoli@napolilaw.com

Jeanne Lahiff (pro hac vice pending)
IMBESI LAW P.C.
450 Seventh Avenue, Suite 1408
New York, New York 10123
Telephone: (212) 736-0007
jlahiff@lawicm.com
Counsel for Plaintiffs

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