Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 DAVID C. SHONKA Acting General Counsel KATHERINE WORTHMAN, DC Bar No. 488800 IOANA RUSU, DC Bar No. 1001603 Federal Trade Commission 600 Pennsylvania Avenue, NW Mailstop CC-10232 Washington, D.C. 20580 Phone: (202) 326-2929 (Worthman) Facsimile: (202) 326-3768 Email: kworthman@ftc.gov (Worthman); irusu@ftc.gov (Rusu) Colin Hector, CA Bar No. 281795 Federal Trade Commission 901 Market Street, Suite 570 San Francisco, CA 94103 Phone: (415) 848-5100 Facsimile: (415) 848-5184 Email: Attorneys for Plaintiff FEDERAL TRADE COMMISSION 14 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA San Francisco Division 15 16 17 FEDERAL TRADE COMMISSION, Case No. ____________ 18 Plaintiff, 19 v. 20 STIPULATED ORDER FOR PERMANENT INJUNCTION AND MONETARY JUDGMENT UBER TECHNOLOGIES, INC., a Delaware corporation, 21 22 23 24 Defendant. Plaintiff, the Federal Trade Commission (“Commission”), filed its Complaint for Permanent Injunction and Other Equitable Relief (“Complaint”), for a permanent injunction, 25 26 27 STIPULATED ORDER PAGE 1 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 2 of 11 1 and other equitable relief in this matter, pursuant to Section 13(b) of the Federal Trade 2 Commission Act (“FTC Act”), 15 U.S.C. § 53(b). The Commission and Defendant stipulate to 3 4 the entry of this Stipulated Order for Permanent Injunction and Monetary Judgment (“Order”) to resolve all matters in dispute in this action between them. 5 THEREFORE, IT IS ORDERED as follows: 6 FINDINGS 7 8 1. This Court has jurisdiction over this matter. 9 2. The Complaint charges that Defendant participated in deceptive acts or practices in 10 violation of Section 5 of the FTC Act, 15 U.S.C. § 45, in connection with its false, misleading, 11 or unsubstantiated claims regarding driver earnings and its Vehicle Program. 12 3. 13 14 Defendant neither admits nor denies any of the allegations in the Complaint, except as specifically stated in this Order. Only for purposes of this action, Defendant admits the facts necessary to establish jurisdiction. 15 4. Defendant waives any claim that it may have under the Equal Access to Justice Act, 28 16 17 18 U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, and agree to bear its own costs and attorney fees. 19 5. Defendant and the Commission waive all rights to appeal or otherwise challenge or 20 contest the validity of this Order. 21 DEFINITIONS 22 23 24 For the purpose of this Order, the following definitions apply: A. “App” shall mean any software application or code that can be transmitted or downloaded to any mobile device. “App” also includes any software referred to as an 25 26 27 STIPULATED ORDER PAGE 2 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 3 of 11 1 “App” or “MobileApp” by Defendant in the course of its communications or business practices, 2 or in any App Store. 3 4 B. “Defendant” means Uber Technologies, Inc. and its successors and assigns. C. “Driver” means someone who receives transportation requests from members of the 5 6 7 8 public using Defendant’s App. D. “Vehicle Program” means a program offering or advertising motor vehicles or motor vehicle financing or leasing. 9 ORDER 10 I. PROHIBITION AGAINST MISREPRESENTATIONS 11 IT IS ORDERED that Defendant, Defendant’s officers, agents, employees, and 12 attorneys, and all other persons in active concert or participation with any of them, who receive 13 14 actual notice of this Order, whether acting directly or indirectly, in connection with promoting or offering for sale any good or service are permanently restrained and enjoined from: 15 A. making any misrepresentation, or assisting others in making any misrepresentation, 16 17 expressly or by implication, regarding: 18 19 1. the income a Driver is likely to earn; 2. the terms and conditions of financing or leasing, whether offered by Uber or another entity; and 20 21 3. the terms and conditions of any Vehicle Program. 22 B. 23 by implication, unless the representation is non-misleading, and, at the time such representation 24 25 making any representation, or assisting others in making any representation, expressly or is made, Defendant possesses and relies upon competent and reliable evidence that is sufficient in quality and quantity to substantiate that the representation is true, regarding: 26 27 1. the income a consumer is likely to earn as a Driver; STIPULATED ORDER PAGE 3 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 4 of 11 1 2. 2 the terms and conditions of financing or leasing, whether offered by Uber or another entity; or 3 3. the terms and conditions of any Vehicle Program. 4 II. MONETARY JUDGMENT 5 IT IS FURTHER ORDERED that: 6 7 A. Judgment of the amount of twenty million dollars ($20,000,000) is entered in favor of 8 the Commission against Defendant as equitable relief. 9 B. 10 which, as Defendant stipulates, their undersigned counsel holds in escrow for no purpose other 11 than payment to the Commission. Such payment must be made within 7 days of entry of this 12 Order by electronic fund transfer in accordance with instructions previously provided by a 13 14 Defendant is ordered to pay to the Commission twenty million dollars ($20,000,000), representative of the Commission. C. Defendant relinquishes dominion and all legal and equitable right, title, and interest in 15 all assets transferred pursuant to this Order and may not seek the return of any assets. 16 17 18 D. The facts alleged in the Complaint will be taken as true, without further proof, in any subsequent civil litigation by or on behalf of the Commission, including in a proceeding to 19 enforce its rights to any payment or monetary judgment pursuant to this Order, such as a 20 nondischargeability complaint in any bankruptcy case. 21 E. 22 by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. 23 § 523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes. 24 25 F. The facts alleged in the Complaint establish all elements necessary to sustain an action Defendant acknowledges that its Taxpayer Identification Numbers (Employer Identification Number), which Defendant must submit to the Commission, may be used for 26 27 collecting and reporting on any delinquent amount arising out of this Order, in accordance with STIPULATED ORDER PAGE 4 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 5 of 11 1 31 U.S.C. §7701. 2 G. 3 4 All money paid to the Commission pursuant to this Order may be deposited into a fund administered by the Commission or its designee to be used for equitable relief, including consumer redress and any attendant expenses for the administration of any redress fund. If a 5 6 7 representative of the Commission decides that direct redress to consumers is wholly or partially impracticable or money remains after redress is completed, the Commission may apply any 8 remaining money for such other equitable relief (including consumer information remedies) as 9 it determines to be reasonably related to Defendant’s practices alleged in the Complaint. Any 10 money not used for such equitable relief is to be deposited to the U.S. Treasury as 11 disgorgement. Defendant has no right to challenge any actions the Commission or its 12 representatives may take pursuant to this Subsection. 13 III. DRIVER INFORMATION 14 IT IS FURTHER ORDERED that Defendant, Defendant’s officers, agents, employees, 15 and attorneys and all others in active concert or participation with any of them, who receive 16 17 18 actual notice of this Order, whether acting directly or indirectly, are permanently restrained and enjoined from directly or indirectly failing to provide sufficient Driver information to enable the 19 Commission to efficiently administer consumer redress. Defendant represents that it will 20 provided this redress information to the Commission. If a representative of the Commission 21 requests in writing any information related to redress, Defendant must provide it, in the form 22 prescribed by the Commission, within 14 days. 23 IV. ORDER ACKNOWLEDGMENTS 24 25 IT IS FURTHER ORDERED that Defendant obtain acknowledgments of receipt of this Order: 26 27 A. Defendant, within 7 days of entry of this Order, must submit to the Commission an STIPULATED ORDER PAGE 5 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 6 of 11 1 acknowledgment of receipt of this Order sworn under penalty of perjury. 2 B. 3 4 For 5 years after entry of this Order, Defendant must deliver a copy of this Order to: (1) all principals, officers, and directors; (2) all employees, agents, and representatives who participate in marketing, promotion, offering of any good or service offered by the Defendant or 5 6 7 a third party relating to the activities covered in this Order and (3) any business entity resulting from any change in structure as set forth in the Section titled Compliance Reporting. Delivery 8 must occur within 7 days of entry of this Order for current personnel. For all others, delivery 9 must occur before they assume their responsibilities. 10 C. 11 Defendant must obtain, within 30 days, a signed and dated acknowledgment of receipt of this 12 Order. From each individual or entity to which Defendant delivered a copy of this Order, 13 V. COMPLIANCE REPORTING 14 IT IS FURTHER ORDERED that Defendant make timely submissions to the 15 Commission: 16 17 18 A. One year after entry of this Order, Defendant must submit a compliance report, sworn under penalty of perjury: (a) identify the primary physical, postal, and email address and 19 telephone number, as designated points of contact, which representatives of the Commission 20 may use to communicate with Defendant; (b) identify all of Defendant’s businesses by all of 21 their names, telephone numbers, and physical, postal, email, and Internet addresses; (c) describe 22 the activities of each business, including the goods and services offered, the means of 23 advertising, marketing, and sales; (d) describe in detail whether and how Defendant is in 24 25 compliance with each Section of this Order; and (e) provide a copy of each Order Acknowledgment obtained pursuant to this Order, unless previously submitted to the 26 27 Commission. STIPULATED ORDER PAGE 6 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 7 of 11 1 B. 2 notice, sworn under penalty of perjury, within 14 days of any change in the following: (a) any 3 4 For 9 years after entry of this Order, Defendant must submit a compliance designated point of contact; or (b) Defendant’s structure or that of any entity Defendant has any ownership interest in or controls directly or indirectly that may affect compliance obligations 5 6 7 arising under this Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order. 8 C. 9 petition, insolvency proceeding, or similar proceeding by or against such Defendant within 14 10 days of its filing. 11 D. 12 perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: “I 13 14 Defendant must submit to the Commission notice of the filing of any bankruptcy Any submission to the Commission required by this Order to be sworn under penalty of declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: _____” and supplying the date, signatory’s full 15 name, title (if applicable), and signature. 16 17 18 E. Unless otherwise directed by a Commission representative in writing, all submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by 19 overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau 20 of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 21 Washington, DC 20580. The subject line must begin: FTC v. Uber Technologies Inc. 22 VI. RECORDKEEPING 23 24 25 IT IS FURTHER ORDERED that Defendant must create certain records for 9 years after entry of the Order, and retain each such record for 5 years. Specifically, Defendant must create and maintain the following records: 26 27 A. accounting records showing the revenues from all goods or services sold; STIPULATED ORDER PAGE 7 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 8 of 11 1 B. 2 an independent contractor, employee or otherwise, that person’s: name; addresses; telephone 3 4 personnel records showing, for each person providing transportation services, whether as numbers; job title or position; dates of service; and (if applicable) the reason for termination of the relationship; 5 6 7 C. records of all Driver complaints relating to Driver earnings or the Vehicle Program whether received directly or indirectly, such as through a third party, and any response; 8 D. all records necessary to demonstrate full compliance with each provision of this Order, 9 including all submissions to the Commission; and 10 E. 11 of money Drivers can earn driving on the Uber platform or the Vehicle Program. a copy of each unique advertisement or other marketing material relating to the amount 12 VII. COMPLIANCE MONITORING 13 14 IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant’s compliance with this Order, including the financial representations upon which the judgment 15 was suspended and any failure to transfer any assets as required by this Order: 16 17 18 A. Within 14 days of receipt of a written request from a representative of the Commission, Defendant must: submit additional compliance reports or other requested information, which 19 must be sworn under penalty of perjury; appear for depositions; and produce documents for 20 inspection and copying. The Commission is also authorized to obtain discovery, without further 21 leave of court, using any of the procedures prescribed by Federal Rules of Civil Procedure 29, 22 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69. 23 B. 24 25 For matters concerning this Order, the Commission is authorized to communicate directly with the Defendant. Defendant must permit representatives of the Commission to interview any employee or other person affiliated with any Defendant who has agreed to such 26 27 an interview. The person interviewed may have counsel present. STIPULATED ORDER PAGE 8 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 9 of 11 1 C. 2 representatives as consumers, suppliers, or other individuals or entities, to Defendant or any 3 4 The Commission may use all other lawful means, including posing, through its individual or entity affiliated with Defendant, without the necessity of identification or prior notice. Nothing in this Order limits the Commission’s lawful use of compulsory process, 5 6 pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1. VIII. RETENTION OF JURISDICTION 7 8 9 10 IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes of construction, modification, and enforcement of this Order. SO ORDERED this day of , 2017. 11 12 _______________________________ 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 STIPULATED ORDER PAGE 9 Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 10 of 11 SO STIPULATED AND AGREED: FOR PLAINTIFF: TRADE CODIMISSION Date: Ka?t?'erine Worthman, AttoT??y Federal Trade Commission Seattle, WA 98174 202-326-2929 (phone) 202-326-3768 (fax) Ioana Rusu, Attorney Federal Trade Commission Washington, DC 20580 202-326-2788 (phone) 202-326-3768 (fax) irusu@ftc.gov Colin Hector, Attorney Federal Trade Commission 901 Market Street, Suite 570 San Francisco, CA 94103 415-848-5100 (phone) 415-848-5184 (fax) chector@ftc.gov FEDERAL TRADE COMMISSION STIPULATED ORDER PAGE 10 ?00qume Case 3:17-cv-00261 Document 2 Filed 01/19/17 Page 11 of 11 Andrew Smith John Grauben One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 202-662-5049 (phone) (Smith) 202-662-5938 (phone) (Graubert) 202-778-5938 (fax) andrewsmith@cov.com jgrauben@cov.com COUNSEL For Uber Technologies Inc. DEFEND T: Technologies Inc. Travis Ka 3 ie' . Uber Technologies, Inc. San Francisco, CA 94l03 STIPULATED ORDER Date; [9/7417 Date: Yl PAGE 11